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 24th, 2005 25
21 Appearances 2 Derry Millar ) Commission Counsel 3 Susan Vella ) (np) 4 Donald Worme, Q. C ) (np) 5 Katherine Hensel ) 6 Megan Ferrier ) (np) 7 Murray Klippenstein ) (np) The Estate of Dudley 8 Vilko Zbogar ) (np) George and George 9 Andrew Orkin ) (np) Family Group 10 Basil Alexander ) 11 12 Peter Rosenthal ) Aazhoodena and George 13 Jackie Esmonde ) Family Group 14 15 Anthony Ross ) Residents of 16 Cameron Neil ) (np) Aazhoodena (Army Camp) 17 Kevin Scullion ) (np) 18 William Henderson ) Kettle Point & Stony 19 Jonathon George ) Point First Nation 20 Colleen Johnson ) (np) 21 22 Kim Twohig ) Government of Ontario 23 Walter Myrka ) (np) 24 Susan Freeborn ) (np) 25 Michelle Pong ) (np)
31 APPEARANCES (cont'd) 2 Janet Clermont ) Municipality of 3 David Nash ) (np) Lambton Shores 4 5 Peter Downard ) The Honourable Michael 6 Bill Hourigan ) (np) Harris 7 Jennifer McAleer ) 8 9 Ian Smith ) (np) Robert Runciman 10 Alice Mrozek ) (np) 11 Harvey Stosberg ) (np) Charles Harnick 12 Jacqueline Horvat ) 13 Douglas Sulman, Q.C. ) (np) Marcel Beaubien 14 Dave Jacklin ) (np) 15 Trevor Hinnegan ) 16 17 Mark Sandler ) Ontario Provincial 18 Andrea Tuck-Jackson ) Ontario Provincial Police 19 Leslie Kaufman ) (np) 20 Ian Roland ) (np) Ontario Provincial 21 Karen Jones ) Police Association & 22 Debra Newell ) (np) K. Deane 23 Ian McGilp ) (np) 24 Annie Leeks ) (np) 25 Jennifer Gleitman ) (np)
41 APPEARANCES (cont'd) 2 Julian Falconer ) Aboriginal Legal 3 Brian Eyolfson ) (np) Services of Toronto 4 Kimberly Murray ) (np) 5 Julian Roy ) (np) 6 Clem Nabigon ) (np) 7 Adriel Weaver ) (np) Student-at-Law 8 9 Al J.C. O'Marra ) Office of the Chief 10 Robert Ash, Q.C. ) (np) Coroner 11 12 William Horton ) (np) Chiefs of Ontario 13 Matthew Horner ) 14 Kathleen Lickers ) (np) 15 16 Mark Fredrick ) (np) Christopher Hodgson 17 Craig Mills ) (np) 18 Megan Mackey ) 19 Erin Tully ) (np) 20 21 David Roebuck ) (np) Debbie Hutton 22 Anna Perschy ) 23 Melissa Panjer ) 24 Danya Cohen-Nehemia ) (np) 25
51 TABLE OF CONTENTS 2 PAGE NO. 3 List of Exhibits 6 4 5 THOMAS BERNARD O'GRADY, Resumed 6 7 Cross-Examination by Mr. Peter Rosenthal 7 8 Continued Cross-Examination by Mr. Julian Falconer 99 9 10 11 12 13 14 15 16 17 Certificate of Transcript 298 18 19 20 21 22 23 24 25
61 EXHIBITS 2 No. Description Page 3 P-630 Document Number 1003937. Toronto 4 Globe and Mail article, "OPP Chief 5 breaks 10 month Ipperwash Silence", 6 July 25/'96. 27 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Note: Exhibit No. 531: Entirety of Document 6000379. 22 23 24 25
71 --- Upon convening at 9:03 a.m. 2 3 THE REGISTRAR: This Public Inquiry is 4 now in session, he Honourable Mr. Justice Linden 5 presiding. Please be seated. 6 COMMISSIONER SIDNEY LINDEN: Good 7 morning. Good morning. 8 Good morning, Mr. Rosenthal. 9 MR. PETER ROSENTHAL: Good morning, Mr. 10 Commissioner. 11 COMMISSIONER SIDNEY LINDEN: Carry on. 12 13 THOMAS BERNARD O'GRADY, Resumed; 14 15 MR. PETER ROSENTHAL: And good morning, 16 former Commissioner, now Mr. O'Grady. 17 THE WITNESS: Good morning. 18 19 CROSS-EXAMINATION BY MR. PETER ROSENTHAL: 20 Q: My name is Peter Rosenthal, I'm one 21 of the counsel for a group of Stoney People under the 22 name Aazhoodena and George Family Group at this Inquiry. 23 I would like to ask you about several 24 areas. In particular I'd like to begin with discussing 25 this policy with respect to the use of force which you'll
81 find at your Tab 5 of the Commission documents. And it's 2 Exhibit P-472 to these proceedings and it's Inquiry 3 Document 3000759. And it's now, also, through the kind 4 efforts of Mr. Millar, on the screen. 5 Now, you've told us that you introduced 6 this policy or you formalized one might say, in 1991; is 7 that correct? 8 A: That's correct, sir. 9 Q: And it wasn't that it was a new 10 policy at that time, it's just that at that time you 11 thought it was important to formally state the policy? 12 A: As I recollect that was our general 13 direction and so this is the first time that I had 14 committed to the paper, right. 15 Q: Yes. And you thought that it was 16 important to put it on paper so it would be clarified? 17 A: That's correct. 18 Q: And you're talking about protesters, 19 hostage takers and armed persons. And you emphasize: 20 "The initial response of the OPP has 21 traditionally been one of negotiation 22 in an effort to avoid the use of 23 physical force if at all possible. 24 The only exception to this approach has 25 been in situations where a death or
91 serious injury was immediately probable 2 if force was not used to control 3 events. 4 This philosophy remains the OPP's 5 approach to demonstrations or social 6 unrest including blockades." 7 That was the essence of the policy, right? 8 A: Yes. 9 Q: Now, the idea I gather is that safety 10 of human beings is the most important thing in any police 11 operation, right? 12 A: That's paramount. 13 Q: That's paramount. Safety of police 14 officers and civilians; all human beings? 15 A: Correct. 16 Q: And that's much more important that 17 property? 18 A: Exactly. 19 Q: And you know as an experienced police 20 officer, that once force is used it can escalate and can 21 result in serious harm to human beings even if there are 22 just small amounts of force are used at the beginning, 23 right? 24 A: That could happen. 25 Q: And so, unless you're dealing with a
101 situation where death or serious injury is probable in 2 which case you have to do something to avoid that, you 3 should avoid force? 4 A: If possible. 5 Q: Now, you told us that there were 6 several investigations of the Ipperwash events by various 7 members of the OPP afterward, three (3) or four (3) 8 depending upon how one counts, perhaps? 9 A: That's true. There were reviews of 10 documents and people that had already been involved and 11 these were compilations of those -- 12 Q: Yes. 13 A: -- things. 14 Q: Now, did any of those reports deal 15 with the question, whether or not this policy had been 16 followed in this case? 17 A: I can't recollect. There's -- 18 there's a lot of verbiage in the reports and I was of the 19 view that it had been one (1) of the reports has to do 20 with the plan, Project Maple, and certainly that -- right 21 at the outset that was set out that that was going to be 22 the approach. 23 So, I can't specifically point to anything 24 that says, "yes," but that was my understanding. 25 Q: Yes, and Project Maple is consistent
111 with this policy; is that correct? 2 A: I think so. 3 Q: However, we -- we know that what 4 happened, in fact, was Dudley George got killed, right? 5 A: Right. 6 Q: And that's the most extreme use of 7 force possible, shooting someone to death, right? 8 A: Correct. 9 Q: Now, we also know that that was 10 proceeded by the Crowd Management Unit marching down the 11 road banging on their shield with shield chatter, with 12 the idea that they would force, according to the evidence 13 we've had, people who were in the sandy parking lot back 14 into the Park. 15 You're aware of that, right? 16 A: That's my understanding. 17 Q: So, did you, then, consider in your 18 mind when you were evaluating the situation, whether or 19 not your policy had, not in the planning stages of 20 Project Maple, but in the actual event, been followed? 21 A: There's a great deal -- as you can 22 well imagine, there's a great deal of responsibility that 23 falls upon the incident commander. The incident 24 commander has to decide within those guidelines, 25 hopefully, what the process will be in dealing with the
121 particular incident. 2 My understanding is that at some point, 3 the incident commander decided that it was necessary to 4 go down that particular road. He concluded from, as I 5 understand it, from the information that he had, that his 6 people could be in jeopardy as a result of various things 7 that occurred if they were not sent down that road with 8 the -- with the correct amount of protection. 9 I also understand that he came to the 10 conclusion that he needed to do this in the interest of - 11 - of personal safety to the -- to the -- his own people 12 and to other people that were in the area. And so, I 13 think what his evidence is, is that it falls within the 14 ambit -- in his view, it falls within the ambit of the 15 policy at that time. 16 Q: Did you specifically ask him whether 17 -- about this policy? 18 A: I didn't specifically ask him, but I 19 have spoken to his supervisors and I've heard his 20 testimony and I'm content that in his view, being the 21 incident commander on the ground, he felt what he did was 22 justifiable. 23 Q: At, on, or about September of 1995, 24 or October of 1995, or November of 1995, did you turn 25 your attention to the question of whether or not in the
131 events that took place at Ipperwash as they actually 2 transpired, this policy was adhered to? 3 A: My recollection is, and that's a long 4 time ago, but my recollection is that, yes, that was of 5 importance to me and that the advice I got from his 6 superiors was that, in his view as the incident 7 commander, he had followed that policy. 8 Q: And that was sufficient for you, that 9 his -- in his view, he had followed the policy? You 10 didn't feel it incumbent upon you to check whether or 11 not, in your view, he would have followed the policy? 12 A: Well, the problem I have is that I 13 was not there and I guess I would compare it to a 14 constable who arrests somebody and the issue is, did the 15 constable, in his own mind, have reasonable and probable 16 grounds at that time to do it. 17 And I saw this very similar to that. The 18 incident commander, on the ground, at the time, not 19 afterwards but at the time, in his mind, indicated that 20 he found this necessary to do and that it was, he 21 thought, within the guidelines and I was satisfied with 22 that explanation. 23 Q: And who gave you that explanation; 24 not Inspector Carson himself? 25 A: Not him himself, but my recollection
141 is, in talking with Chief Coles, and -- well, my 2 recollection is Coles at the moment. I may have spoken 3 to other people -- 4 Q: Yes. 5 A: That I was satisfied that that was 6 his explanation and that that's what he was satisfied 7 that he stayed within the policy on that particular 8 night. 9 Q: So, am I correct in understanding 10 your evidence that, in your role as Commissioner, you 11 felt that as long as the incident commander himself 12 believed that he had followed the policy, it did not 13 require further examination by you? 14 A: That's correct. 15 Q: That is correct. I see. Is that 16 your view with respect to all the policies of the OPP; 17 when you are the Commissioner as long as an officer feels 18 that he obeyed a policy, you don't look behind that? 19 A: Not necessarily so. Some policies 20 might be much more difficult to -- or at least might be 21 much more rigid, shall I say. 22 But in this particular instance, much 23 depends on the state of mind of the incident commander 24 who is in possession of the facts. 25 In afterthought, after the situation is
151 cleared and so on, things may come to light which, had he 2 known those things at the time, might have changed his 3 mind. 4 But what my judgment is based on is what 5 he thought at the time. And what he thought at the time 6 was that this was justified and within the guidelines 7 that were set down. 8 Q: And you didn't feel it incumbent upon 9 you to find out not only what he thought at the time, but 10 what the actual circumstances were in your concluding 11 whether or not this policy was followed? 12 A: Well, I thought I knew what the 13 circumstances were at the time. His -- I've heard his -- 14 his -- his testimony and I was generally aware, and it's 15 consistent with what I knew at the time that there were 16 occurrences in the days leading up to this, there were 17 occurrences that night. 18 All of them had come together to allow him 19 to form an opinion. 20 Some of those -- some of that information, 21 it turned out later, was not accurate. But, at the time 22 that's what he knew and it's very hard to second guess 23 the incident commander after the fact. 24 Q: Now, you were aware, were you not, 25 that Mr. Coles when he testified here, was asked whether
161 or not the exception -- the exception being in situations 2 where death or serious injury was immediately probable if 3 force was not used to control events, whether or not that 4 exception obtained at ten o'clock on the evening of 5 September 6th, 1995. 6 And he answered he agreed that there was 7 no evidence that death or serious injury was immediately 8 probable on that evening. 9 Are you -- you're aware of that evidence, 10 right? 11 A: That's what I understand, but I also 12 understand that the incident commander felt that it fell 13 within the guidelines and, indeed, he needed to do it. 14 I should expand on it, however, just so 15 that all the information is available. If you look at 16 the policy that was developed after this, and that sort 17 of thing is an understanding within -- certainly within 18 the OPP, is again, there's a tremendous responsibility 19 placed on the incident commander. 20 And the incident commander in the policy 21 that was -- was put into writing afterwards, but was 22 verbally in effect before, was the incident commander 23 should he wish to do something which departs from that 24 was allowed to do that. 25 There's a tremendous responsibility placed
171 on the incident commander. 2 Q: I see. Where is it written that the 3 incident commander should he decide to deviate from this 4 policy, is allowed to do that? 5 A: It is written. 6 Q: No -- yeah, I'm sure it's just my 7 ignorance, sir, and I should like to know where it is. 8 A: I'm not sure I have it with me right 9 at the moment but it's attached -- the document was 10 introduced by Commission Counsel and it's a draft order. 11 Q: That's an order that was after 1995? 12 A: That's what I said. 13 Q: After 1995? 14 A: Yes. But the reason that it was 15 included in writing after 1995 was that it was understood 16 that the incident commander had that authority. When we 17 were writing up the policy to put in police orders, we 18 decided that we should incorporate it. 19 Q: So, the incident commander had the 20 authority to not follow this policy if -- 21 A: It's a guideline. 22 Q: I see. 23 A: The feeling is that you cannot be 24 absolutely rigid. One never knows what situation the 25 incident commander is going to face. The incident
181 commander afterwards is going to have to justify what he 2 did at that time. 3 Q: I see. So, did you obtain the 4 understanding then in the ensuing time after September 5 6th, 1995 from Inspector Carson that he felt he had to 6 deviate from this guideline because of the other 7 circumstances -- 8 A: My understanding was that he felt he 9 was within the guidelines as a result of his decision 10 that night that he -- that he decided that given all the 11 circumstances that he was justified within the 12 guidelines. I merely point out that there was an 13 exception. 14 Q: For the record My Friend, Mr. Millar, 15 informs me that the exhibit that was being discussed by 16 the officer of the guidelines or the ensuing order was P- 17 584, should anyone else not me, who want to look at that. 18 Sir, so you say then Inspector Carson did 19 not tell you that he used the prerogative that an 20 incident commander that has to deviate from the 21 guidelines. 22 He told you he followed the guidelines, in 23 his mind; is that right? 24 A: In my understanding, that's correct. 25 Q: So he thought he followed the
191 guidelines, right? 2 A: That's my understanding. That's my 3 recollection. 4 Q: So, in other words, he thought that 5 there was probable serious injury or death as he ordered 6 the CMU to march down that road? 7 A: It's my recollection that -- that he 8 thought that was quite -- quite possible. 9 Q: I see. And so we have Chief 10 Superintendent Coles expressing the opposite view, right? 11 A: I'm not sure. I'm not sure of that. 12 Q: Well we just went through that a 13 moment ago. 14 COMMISSIONER SIDNEY LINDEN: I think I 15 understand what -- Mr. Sandler, yes? 16 MR. MARK SANDLER: Actually Mr. Coles, 17 this is a matter that was dealt with in re-examination 18 and he made it clear that despite word-smithing that had 19 occurred earlier on, he felt that it was in compliance 20 with the guidelines as well. 21 So, I'm not suggesting My Friend can't 22 cross-examine in the area but that really isn't Mr. Coles 23 ultimate evidence on the -- 24 COMMISSIONER SIDNEY LINDEN: Yes. 25 MR. PETER ROSENTHAL: Yes, he was led by
201 Mr. Sandler in that direction, sir, in re-examination and 2 Mr. Sandler introduced the notion of word-smithing 3 whereas most of us might think it was just reading the 4 policy. And that's for argument later, not -- not at 5 this point. 6 I did accurately quote Chief 7 Superintendent Coles' evidence and the Witness 8 acknowledged that he was aware of that evidence. 9 THE WITNESS: And by way of explanation, 10 I sat here in the -- in this room when Chief Coles gave 11 his evidence as to -- as to Carson's approach to it which 12 was I believe on his last day. And that's what was fresh 13 -- freshest in my mind. 14 15 CONTINUED BY MR. PETER ROSENTHAL: 16 Q: I would suggest to you, sir, that 17 what happened, the death of Dudley George, is an example 18 of why this policy must be adhered to, to avoid death in 19 circumstances like this. Would you not agree, sir? 20 A: Well certainly none of us wanted that 21 to occur and certainly that's why there was a focus on 22 this policy by me. 23 Q: I see. Now, if we could turn please, 24 to your Tab 75 which is Exhibit P-612 to these 25 proceedings and is Inquiry Document 2002292.
211 (BRIEF PAUSE) 2 3 COMMISSIONER SIDNEY LINDEN: I think Tab 4 75 is 1001163. 5 MR. PETER ROSENTHAL: Sorry, I have -- 6 your indulgence, sir -- sorry, I'll check. 7 8 (BRIEF PAUSE) 9 10 MR. PETER ROSENTHAL: I believe it has -- 11 it occurs twice in the -- in the record with the document 12 number that I gave and also with the document number 13 1001163. 14 COMMISSIONER SIDNEY LINDEN: Oh, we are 15 looking at the same document? 16 MR. PETER ROSENTHAL: Yes, we're looking 17 at the same document. 18 COMMISSIONER SIDNEY LINDEN: There's -- 19 MR. PETER ROSENTHAL: There's just many 20 documents, Mr. Commissioner. It occurs twice -- 21 COMMISSIONER SIDNEY LINDEN: That's fine. 22 But you're talking about -- 23 MR. PETER ROSENTHAL: -- in the big 24 database that we all have. 25 COMMISSIONER SIDNEY LINDEN: Right. But
221 you're referring to the remarks of Commissioner O'Grady? 2 MR. PETER ROSENTHAL: Yes, yes. 3 COMMISSIONER SIDNEY LINDEN: That's what 4 you're referring to? 5 MR. PETER ROSENTHAL: Thank you. 6 COMMISSIONER SIDNEY LINDEN: That's fine. 7 MR. PETER ROSENTHAL: It's -- it's what's 8 on the screen. 9 10 CONTINUED BY MR. PETER ROSENTHAL: 11 Q: Now, as you've told us sir and as is 12 indicated, these are remarks that you made on July 24, 13 1996, after the SIU had concluded its investigation of 14 the shooting of Dudley George and had laid charges 15 against Mr. Deane? 16 A: That's correct. 17 Q: Now, on the first page of that 18 document after the introductory heading page, you 19 indicate that there's a considerable amount of 20 misinformation concerning the acts of the Ontario 21 Provincial Police that had been circulating and, I gather 22 that the reason you wanted to issue this document was to 23 correct some of that misinformation? 24 A: That is correct. 25 Q: And then, you indicate that during
231 that time the OPP remained silent: 2 "However, remained silent not because 3 we had something to hide, but because 4 the OPP, as a part of the Criminal 5 Justice System, must respect due 6 process and should not say anything 7 which could be perceived as interfering 8 in ongoing investigations." 9 And you've told us that you have quite a 10 lot of experience in investigating criminal charges, 11 right? 12 A: I have. 13 Q: And doing criminal investigations and 14 you know from your experience that public statements or 15 information getting out can influence investigations and 16 that's why it's important to remain silent -- 17 A: That's true. 18 Q: -- in that period, right? 19 A: That's true. 20 Q: And, for example, if you had issued 21 statements about what had happened, then it might affect 22 witnesses that the SIU would want to interview, right? 23 A: We tried to avoid that. 24 Q: Yes, and that's -- that's a danger 25 that you recognize as a police officer and especially as
241 a commissioner that you want independent witnesses, for 2 example, who are not influenced by public statements? 3 A: True. 4 Q: So, that's -- that's what you mean; 5 that's why you had a responsibility to not interfere with 6 the investigation? 7 A: Yes. 8 Q: Now also, as someone who has 9 investigated many criminal charges in your time, you know 10 also it's important for investigators to get at the 11 investigation as soon as possible? 12 A: Yes. 13 Q: And, that's important, for example, 14 to be able to interview witnesses before they get other 15 information that might perturb their memories, right? 16 A: Yes. 17 Q: And it's important to be able to have 18 access as quickly as possible to any real evidence that 19 may exist -- 20 A: Correct. 21 Q: -- before it can get disturbed and so 22 on? 23 A: Exactly. 24 Q: So, one (1) of the requirements that 25 the SIU had was that they be notified immediately if
251 there's any occurrence that might invoke their mandate; 2 in other words, any serious injury or death that was 3 caused by a police officer, right? 4 A: Yes. 5 Q: And, the reason for the immediacy is 6 so that they can do their investigation as soon as 7 possible, right? 8 A: Yes. 9 Q: Sir, I understand that the procedure 10 that was in effect at this time with the OPP with respect 11 to such notification was that someone offsite would be 12 the person who actually phoned the SIU and told them 13 there was an incident that they might wish to 14 investigate, right? 15 A: I think there was a designated member 16 within a designated part of the OPP that was -- was the 17 representative that always called SIU, made the contact. 18 Q: Yes. And, evidently, that person 19 performed his or her function on this evening? 20 A: Correct. 21 Q: And then we understand that the SIU 22 was given the direction that they should speak to the 23 incident commander, John Carson, in order to begin their 24 investigation? 25 A: Yes.
261 Q: And we've had evidence that Inspector 2 Carson received a message to telephone the SIU to begin 3 that interaction? 4 A: Yes. 5 Q: Now, would you agree that in that 6 circumstance, it was incumbent upon Inspector Carson to 7 return that call as soon as possible, subject to any 8 emergencies he would have to deal with? 9 A: Yes. 10 Q: And for the reasons that we've talked 11 about with respect to an investigation? 12 A: Yes. 13 14 (BRIEF PAUSE) 15 16 Q: Now, I gather that you released this 17 written document at a public press conference; is that 18 correct? 19 A: Correct. 20 Q: And it appears that at Tab 76 we have 21 a document that is a newspaper account of that press 22 conference? 23 A: Yes. 24 Q: And this is Inquiry Document number 25 1007937; it's an article from the Globe and Mail which is
271 headlined, "OPP Chief Breaks ten (10) month Ipperwash 2 Silence". Is that -- 3 A: Yes. 4 Q: -- correct, sir? 5 I don't believe that this has been made an 6 exhibit to these proceedings and I would respectfully 7 request that it be made so. I'm not sure what number 8 we're up to? 9 Sorry, this is at Tab 76 of the... 10 MR. DERRY MILLAR: Inquiry Document 11 1003937. It's in this book; our book. 12 MR. PETER ROSENTHAL: Mr. Millar usually 13 does know about these things. 14 THE REGISTRAR: P-630. 15 COMMISSIONER SIDNEY LINDEN: P-630. 16 MR. PETER ROSENTHAL: Thank you. 17 18 --- EXHIBIT NO. P-630: Document Number 1003937. 19 Toronto Globe and Mail 20 article, "OPP Chief breaks 10 21 month Ipperwash Silence", 22 July 25/'96. 23 24 CONTINUED BY MR. PETER ROSENTHAL: 25 Q: Now, if one reads this article, there
281 is extensive quotation from the written document that we 2 saw earlier, but there's some other information as well. 3 Now, I'd like to turn to some of the other 4 information. In the first column, the fourth paragraph, 5 "Commissioner Mr. O'Grady also said 6 that although he was not privy to the 7 evidence against Sergeant Kenneth 8 Deane, quote: 9 'I am confident our officer acted in 10 good faith in the performance of his 11 duty.'". 12 Now, first off, sir, is that an accurate 13 quote of what you said on that occasion? 14 A: It probably is. 15 Q: And can you tell us on what basis you 16 were so confident of that fact, sir? 17 A: The information that I had at that 18 time was that there was gunfire from within the camp, 19 that it was an exchange of gunfire, and the information I 20 had was that Deane believed that he needed to return fire 21 with respect to the protection of his people that were 22 onsite there, and that was the information that I had at 23 that time. 24 Q: And had you interviewed many of the 25 officers who were there to obtain that information, sir?
291 A: No, that was the information that I 2 received from -- from the site or from the -- from the 3 western region. 4 Q: Well, were you aware that some of the 5 officers said they thought that the person that Mr. Deane 6 shot had a gun and some thought he didn't have a gun and 7 so on? 8 Were you aware of contradictory evidence 9 among the officers? 10 A: The evidence -- as my recollection 11 goes, the information I received was as I've just stated 12 and I -- I thought I put it in terms where I wanted to 13 give Mr. Deane the presumption of innocence until proven 14 guilty. 15 I did indicate in my statement that I was 16 not aware of the evidence that SIU, Special 17 Investigations Unit, had, nor should I have been aware of 18 that; that was their investigation. 19 But given what I had, I was trying to give 20 him the presumption of innocence until such time as -- as 21 it was decided in a Court of law. 22 I think, in my statement, I go further to 23 say this is an allegation. In due course, the Courts 24 will rule on this, or words to that effect. 25 Q: Yes.
301 A: They are in statement. 2 Q: Well, I -- I might suggest, sir, I 3 would have no problem with you saying what you just said, 4 as a presumption of innocence and the courts will 5 determine it. But I would submit to you, sir, that you 6 go much beyond that when you say, I am confident our 7 officer acted in good faith in the performance of his 8 duty. 9 Would you agree that's going much beyond 10 just a presumption of innocence? 11 A: Well, perhaps, I should have chosen 12 my words more carefully. Perhaps I should have chosen 13 them as I did today, but -- 14 Q: Yes. 15 A: -- on that occasion I didn't. 16 Q: And, would you agree that there's a 17 serious danger that officers under your command who hear 18 you, the Commissioner, say, I am confident that our 19 officer acted in good faith in the performance of his 20 duty, might be reluctant to testify in ways that they 21 knew would contradict that? 22 A: I would like to think that our 23 officers would tell the truth under oath, or being 24 interviewed and give evidence as they saw, regardless of 25 what anybody else said.
311 Q: Yes. 2 A: Especially police officers. 3 Q: But, you acknowledge, sir, that you 4 know, as an experienced investigator of criminal matters, 5 that statements can influence witnesses, right? 6 A: It could. 7 Q: And here we have not just a statement 8 from someone else as to what might have happened, but we 9 have a statement from the Commissioner of the OPP that 10 he's confident that Sergeant Deane acted in good faith. 11 Isn't there extraordinary danger that that 12 would affect, consciously or subconsciously, the 13 testimony of OPP officers about that event? 14 A: Well, there's two (2) points I guess 15 I would like to make, one (1) is, I might have chosen my 16 words better. Secondly, I think I made it clear that I 17 was not privy to the investigation, the SIU was doing it; 18 that's why there's a special investigation unit. 19 If my officers were doing it, that would 20 have been a different thing. But I made it very clear I 21 wasn't in -- in possession of all of the information that 22 SIU would have in their investigation. 23 Q: Your officers were not doing the 24 investigation, but you were aware, sir, were you not, 25 that undoubtedly at Kenneth Deane's trial, many of your
321 officers would be called upon to testify? 2 A: Yes. 3 Q: Yes. Now, going to the third column 4 of this document, you are -- it's indicated that you said 5 the following, starting with the second complete 6 paragraph on the third column: 7 "These incidents, he said, gave the OPP 8 every reason to believe that an armed 9 occupation of Ipperwash Provincial Park 10 was a very real possibility and he had 11 no reason to change the statement made 12 last fall after Mr. George was killed. 13 He said the police were under fire at 14 the time of the killing." 15 Now, again, sir, is that an accurate 16 reporting of what you said at this press conference? 17 A: I would have to look at my -- at my 18 written document. 19 Q: Well, it doesn't imply that it was 20 necessarily from the written document, but feel free to 21 look at whatever you wish. The other matter about 22 Kenneth Deane was not in the written document was it? 23 Your confidence about that Kenneth Deane 24 had acted in good faith; that was not in the written 25 document, I don't believe, sir, was it?
331 A: I thought it was. 2 Q: I see. 3 A: But I -- I'd have to look through it 4 to be sure. 5 6 (BRIEF PAUSE) 7 8 MR. DERRY MILLAR: The first statement is 9 in the written document at the bottom of page 5. 10 MR. PETER ROSENTHAL: Yes, that's -- the 11 first phrase is, but I don't believe the second phrase 12 is. 13 14 (BRIEF PAUSE) 15 16 MR. PETER ROSENTHAL: Oh, I'm sorry. I'm 17 sorry, I am -- it is in the written document. I am -- I 18 am incorrect. 19 Sorry, at -- at the bottom of page 5, " 20 confidence in Kenneth Deane," is -- is in the written 21 documents, sir, you're absolutely right. 22 COMMISSIONER SIDNEY LINDEN: In any 23 event, that statement in the article is in quotation 24 marks; the statement you're referring to now is not in 25 direct quotation marks, so...
341 MR. PETER ROSENTHAL: Yes, it's in the 2 printed statement. 3 COMMISSIONER SIDNEY LINDEN: It's in the 4 article. 5 MR. PETER ROSENTHAL: I stand corrected, 6 you're absolutely right. You said it both -- apparently 7 you verbalized it at the press conference, your 8 confidence in Kenneth Deane and it's also, without 9 mentioning Mr. Deane by name I don't believe, at the 10 bottom of page 5 of you're written statement. You're 11 absolutely correct. 12 COMMISSIONER SIDNEY LINDEN: No, but the 13 quote you're putting to him now in the article is not in 14 quotation marks, that's -- 15 MR. PETER ROSENTHAL: The article -- yes, 16 that's right, yes. 17 COMMISSIONER SIDNEY LINDEN: That's why 18 he's looking for it I gather. 19 MR. PETER ROSENTHAL: But, I -- I'm 20 asking if it's accurate that he -- and the combination of 21 written and verbal messages conveyed that information or 22 is the reporter inaccurate. 23 24 CONTINUED BY MR. PETER ROSENTHAL: 25 Q: May I ask you, sir, you did make some
351 verbal statements. You didn't just hand down this 2 written document at the press conference; is that 3 correct? 4 A: I used it as my guide and I don't 5 think in -- again, I'm recollecting back a number of 6 years, but the reason that it was prepared was that so 7 that I could use it to speak from and I believe I -- I 8 stayed with the text. 9 So, I don't recall -- I -- I looked 10 through here quickly and I may very well have missed it, 11 but I just don't recall the -- the information that's in 12 the paper. 13 14 (BRIEF PAUSE) 15 16 Q: Did you read over this article, sir? 17 The article that's at your Tab 76; it's now Exhibit P- 18 630. Did you read that prior to today? 19 A: Prior to today? 20 Q: Yes. 21 A: I may have read it at some point in 22 time but I -- I can't recall everything that was in it. 23 Q: No. Of course you can't recall 24 everything that was in it, but you did read it over, did 25 you not?
361 A: I think I may have. 2 Q: And especially in preparation for 3 your testimony at this Inquiry you read over all these 4 documents. 5 A: I read -- I read everything that's in 6 this book. 7 Q: Yes. 8 A: It's a lot of information. 9 Q: And you didn't, when you read this 10 over, find anything in this document that you thought was 11 falsely attributed to you, did you? 12 A: Well, I just don't right now -- no, I 13 did not note anything that drew my attention to something 14 which I thought was incorrect. 15 Q: Yes. 16 A: But I must say I looked at the 17 statement that I made, the written statement, and I 18 didn't pay as much attention to the -- what is in the 19 paper. I have known papers to be incorrect before, so I 20 was focussing more on what I had written. 21 Q: The passage that I read to you that 22 led to this looking back at the written document, do you 23 have any reason to think that the reporter got it wrong? 24 A: I don't know. 25 Q: Do -- you don't know if you have a
371 reason? 2 Well, would you please put your mind to it 3 and -- and consider whether or not you have reason? 4 MR. DERRY MILLAR: It's hard to -- to -- 5 this was ten (10) years ago and the -- I don't think it's 6 fair to say to the Witness: "Do you have any reason to 7 think that the reporter got it wrong?" 8 The quotes that are -- that -- the items 9 that are in quotes, "every reason to believe", et cetera, 10 that is found at page 2 of Tab 75, Exhibit P-612 as Mr. 11 Rosenthal said. 12 The other quote at the bottom and he had 13 no reason to change his statement made last fall after 14 Mr. George was killed, said the police were under fire at 15 the time of the killing. 16 He's answered the question, but I don't 17 know how he can answer the question that whether or not 18 the reporter got it wrong, particularly when he's 19 answered the question, he doesn't know and I don't 20 recall. 21 COMMISSIONER SIDNEY LINDEN: I can't tell 22 from reading this whether that statement -- he said the 23 police were under fire at the time of the killing is a 24 statement that was made at the time of the press 25 conference or was a statement that was made last fall. I
381 just can't tell that. 2 MR. PETER ROSENTHAL: Or a statement that 3 was what, sir? 4 COMMISSIONER SIDNEY LINDEN: Was made 5 last fall like when -- it looks to me that it's 6 ambivalent. So, I don't know how -- I was just trying to 7 follow your question. 8 MR. PETER ROSENTHAL: I see. 9 COMMISSIONER SIDNEY LINDEN: He said -- 10 MR. PETER ROSENTHAL: Yes. 11 COMMISSIONER SIDNEY LINDEN: -- that the 12 police were under fire at the time of the killing. 13 When was that statement made? 14 MR. PETER ROSENTHAL: Yes, I understand 15 your point, sir. 16 17 CONTINUED BY MR. PETER ROSENTHAL: 18 Q: It is ten (10) years later. But, 19 would you agree that it's possible that you reiterated 20 your assertion that the police were under fire at the 21 time of the killing, that you reiterated that in July of 22 1996? 23 A: To be as honest as I can with you, I 24 just cannot recall. 25 Q: No, but is it possible that you would
391 have said that? 2 There's some things you know you never 3 would have said, right? 4 A: I think I would have -- I felt that 5 this was a rather important thing, that's why I decided 6 to make a statement, and for those reasons, I wrote down 7 in the document that we've referred to what I was going 8 to say, and I'm quite sure that I would have stayed as 9 close to that as I possibly could. 10 Other than that, I cannot recall. 11 Q: Okay, I'll move on. Now, there were 12 earlier press releases as we know, by the OPP. There 13 were two (2) on September 7 and I should like to look at 14 them in turn. 15 The first one is not in your -- the books 16 there and therefore I should ask that somebody assist me 17 in giving you and also the Commissioner a copy. 18 It's Exhibit P-440 to these proceedings. 19 It's Inquiry Document 1009047. 20 A: Thank you. 21 Q: And I believe you've seen this press 22 release -- 23 A: Yes. 24 Q: -- a number of times before now; is 25 that correct?
401 A: Yes. I -- I -- whether I would have 2 seen it then or not, I don't know, but I have seen it in 3 the interim. 4 Q: I see. Are you telling us now you 5 don't know if you saw it on September 7? 6 A: No, I don't know. 7 Q: And you don't know if you saw it 8 briefly before this Inquiry? 9 A: Oh, I did see it before this Inquiry, 10 that's what I said. 11 Q: When did -- when did you first see 12 it? 13 A: I think I've seen it a couple of 14 times. Certainly I've seen it this week. 15 Q: Yes, when did you first see it? 16 A: Some time ago, but I -- I can say 17 with any certainty exactly when I saw it. It's a local 18 release from the western region, from Forest. 19 Q: Well, sir, you testified in -- on 20 August 22nd in these proceedings and at page -- turn to 21 the bottom of page 114 of your testimony that day, and 22 then continuing on to page 115, you were asked: 23 "And P-440 is a release that was issued 24 on September the 7th? 25 A: Yes.
411 Q: And did you see the press release? 2 A: Yes. 3 Q: On September the 7th? 4 A: Yes." 5 A: There are -- 6 Q: You didn't seem to have any 7 difficulty at that time, sir. 8 A: Well there are two (2) releases. One 9 is from general headquarters in Orillia -- 10 Q: Yes. 11 A: -- which includes the same -- some of 12 the same material, and there's this one. 13 Q: Yes. 14 A: Just exactly when I first saw this 15 one, I today, right at this moment, I can't say. But I 16 saw material on the 7th that reflected some of this 17 material. 18 There are two (2) -- you'll see two (2) 19 releases. One came from headquarters where I was located 20 and the other one apparently came out the same day down 21 this way. 22 Q: Yes, I'll get to that, sir. Are you 23 telling us that you were confused when you gave the 24 answers that I quoted on August 22nd? 25 A: Probably not.
421 Q: So, how could you be definitive on 2 August 22nd that you did see this press release on 3 September 7 and now, a couple of days later, tell me that 4 you didn't think you saw it until recently? 5 A: Well, I certainly saw the material 6 and so I guess I would be splitting hairs if I said I 7 didn't see this particular piece of paper, but I saw the 8 information that was in it. 9 Q: Well, I'll save that for argument. 10 In any event, I should like to look at this press 11 release. 12 A: Yes. 13 COMMISSIONER SIDNEY LINDEN: Excuse me, 14 Mr. Rosenthal, where is the other press release? Where 15 can I find the other one? 16 MR. PETER ROSENTHAL: The other one is 17 the one that quotes -- 18 COMMISSIONER SIDNEY LINDEN: Yes. 19 MR. PETER ROSENTHAL: -- Commissioner 20 O'Grady and I'm going to be coming to that one, if I may, 21 sir, but I can -- 22 COMMISSIONER SIDNEY LINDEN: That's fine. 23 MR. PETER ROSENTHAL: -- indicate that 24 that is -- 25 COMMISSIONER SIDNEY LINDEN: Was that
431 the -- 2 MR. PETER ROSENTHAL: It's -- 3 MR. DERRY MILLAR: P-576, and it's 37 -- 4 COMMISSIONER SIDNEY LINDEN: Yes, and it 5 is in this tab -- 6 MR. DERRY MILLAR: -- of the black book. 7 MR. PETER ROSENTHAL: Right. 8 COMMISSIONER SIDNEY LINDEN: I'm sorry, 9 what tab? 10 MR. PETER ROSENTHAL: 37. 11 COMMISSIONER SIDNEY LINDEN: 37. 12 MR. PETER ROSENTHAL: And it's also 13 Inquiry Document 1001088. 14 COMMISSIONER SIDNEY LINDEN: That's fine. 15 MR. PETER ROSENTHAL: That's the -- you 16 recall, Mr. Commissioner -- 17 COMMISSIONER SIDNEY LINDEN: I do. 18 MR. PETER ROSENTHAL: -- there were two 19 (2) press releases? 20 COMMISSIONER SIDNEY LINDEN: No, I do 21 recall that. 22 MR. PETER ROSENTHAL: This was the one 23 that -- we've had evidence. 24 COMMISSIONER SIDNEY LINDEN: That's fine. 25
441 CONTINUED BY MR. PETER ROSENTHAL: 2 Q: I do want to look at this press 3 release, Mr. O'Grady, the one in front of you, P-440. 4 We've had evidence that this press release was virtually 5 dictated by Inspector Carson and was, apparently, 6 released earlier on September 7. 7 I gather that the press release that 8 quotes yo was released later on September 7; is that 9 correct? 10 A: Correct. 11 Q: And, you were aware that there had 12 been an earlier press release when you released the one 13 with your quotation, weren't you? 14 A: I knew that there was information in 15 mine coming from this one, so to me they were essentially 16 one (1) and the same; the wordsmithing might be a little 17 bit different. And in addition to that, there were, I 18 think, two (2) quotes -- two (2) pieces of information 19 that were quotes of mine. 20 Q: Now, when did you first find out that 21 it was incorrect as a certain -- that it's not correct, 22 the assertion in this press release, that a private 23 citizen's vehicle was damaged by a number of First 24 Nations people armed with baseball bats? 25 What's your evidence as to when you first
451 realized that that was false, sir? 2 A: Well, I'm going to be very careful in 3 answering when I first found that out. Again, it -- it's 4 very difficult to think back and say when was the first 5 time that you found out about this; I'm not sure of that. 6 Q: Approximately, it would have been in 7 September of 1995, surely, would it not, sir? 8 A: It -- it may have been after -- after 9 Deane's trial, which -- 10 Q: After Deane's trial? 11 A: It maybe -- it may have been. 12 Q: It would have been before Deane's 13 trial? 14 A: I cannot recall. 15 Q: Sir, and this press release goes on 16 to say: 17 "As a result of this, the OPP Crowd 18 Management Team was deployed to 19 disperse the crowd of First Nations 20 people." 21 A: Yes? 22 Q: As a result of what I just read to 23 you, are you telling us that you did not investigate 24 anything about that sentence until after Deane's trial 25 when there was a press release issued by the Ontario
461 Provincial Police that said that was the reason they 2 marched down the road? 3 A: It -- that was my understanding as to 4 why they went down the road. The -- the full details of 5 it, I can't recall at this point. 6 Q: I'm not asking you the full details, 7 sir. Did you investigate at the time of -- during, say, 8 September 1995 at least, whether or not it was true that 9 a private citizen's vehicle had been damaged by a number 10 of First Nations people armed with baseball bats? 11 A: I did not investigate. The 12 information that I received was that there was damage to 13 a vehicle; that was the information that I was given and 14 that was the information I accepted. 15 Q: And were you given the information 16 that as a result of that, the OPP was deployed to 17 disperse the crowd? 18 A: There was much more to it than that. 19 If you look in the various that I've received and the 20 evidence that has been tendered here, John Carson made a 21 decision to send people down the road on September the 22 6th for a variety of reasons. I think the damage to the 23 vehicle and threat to a person was one (1) of the 24 reasons. 25 Q: Now, sir, this document says it was
471 as a result of that, correct? 2 A: You're looking at...? 3 Q: I'm looking at P-440, sir. 4 A: P-440. That's the press release 5 from... 6 Q: Dictated by John Carson. 7 8 (BRIEF PAUSE) 9 10 A: That's what I believed to be -- to be 11 correct at that time -- 12 Q: So, you believed this to be correct 13 at the time? 14 A: Yes. 15 Q: That it was as a result of that that 16 they marched down the road? 17 You -- you didn't think that they were 18 issuing a press release that was false in that crucial 19 aspect, right? 20 A: No, I did not. 21 Q: So, you -- you assumed it was 22 correct? 23 A: Yes. 24 Q: And, only later did you find out 25 there were other explanations for marching down the road,
481 right? 2 A: Well, in a -- yes. 3 Q: Yes. 4 A: To a degree. In a -- in a press 5 release not all the details that the police are in 6 possession of are in it. 7 Q: Yes. 8 A: And so, I thought that, from the 9 point of view of the first paragraph, that that would be 10 factual, but my -- my knowledge of -- of policing told me 11 that there would be all kinds of other details that 12 eventually would be -- would be known. 13 Q: But in any event, in September 1995 14 shortly after the killing of Dudley George, you thought 15 it was correct -- 16 A: I thought -- I thought this was 17 generally correct, yes. 18 Q: You thought it was correct, that as a 19 result of the damage by baseball bats to a private 20 citizen's vehicle, they marched down the road? 21 A: Yes. 22 Q: And therefore I would put it to you, 23 it was incumbent to investigate whether or not, indeed, a 24 private citizen's vehicle had been damaged by a number of 25 First Nations people on the baseball bats, if that was
491 the reason as you understood it, for the marching down 2 the road. 3 What's your reaction to that, sir? 4 A: Well there was an investigation 5 underway as a result of the death of Dudley George by the 6 Special Investigations Unit and we would have to be very 7 careful not to interfere with their investigation. 8 In addition to that, there was a second 9 investigation that was being conducted by the OPP into 10 other aspects of it. I knew it was somewhat complicated 11 and I certainly wouldn't want to be launching into a 12 parallel investigation to that which the SIU was doing. 13 I knew that eventually all the circumstances would be 14 brought forward. 15 Q: And you're maintaining that, in spite 16 of your understanding, that it was as a result of that, 17 that the Crowd Management Team was deployed, you did not 18 find out that that was incorrect until years later. 19 Is that your evidence, sir, that the 20 baseball bats description was incorrect? You didn't find 21 that out until years later? 22 A: Right. 23 Q: I see. And nonetheless you issued a 24 press release later that day, right? 25 A: Yes.
501 Q: And that's at Tab 37 of your binder. 2 And this is headed, "Clarification of Events", correct? 3 A: Yes. 4 Q: I gather that's because you wanted to 5 clarify beyond the earlier press release that had been 6 issued, correct? 7 A: Yes. 8 Q: You knew there had been the other 9 press release but you didn't feel that it adequately 10 expressed what the OPP needed to say on this occasion; is 11 that fair? 12 A: Yes. Yes. 13 Q: And was this your personal decision 14 that there should be a second press release issued? 15 A: I can't recall at this time whether 16 it was my -- we have a media relations unit at 17 headquarters and that was the person that prepared it, or 18 that was the area that it was prepared in, but I would 19 have seen it. 20 Q: You would have not only seen it, you 21 are quoted in it, right? 22 A: Yes. 23 Q: And the quote attributed to you 24 begins -- by the way, is the quotation accurate, sir? 25 A: I believe it is.
511 Q: And it begins: 2 "The OPP were there to address a 3 disturbance involving First Nations 4 persons causing damage to private 5 property in the area." 6 Who gave you that information? 7 A: That would have been -- well, I think 8 that would have strung from the press release that we've 9 just been discussing which says words to that affect. 10 Q: And were you aware at the time that 11 the damage to the vehicle, however caused, had occurred 12 approximately three (3) hours before the Crowd Management 13 Unit marched down that road, sir? 14 A: I'm aware of that now. I wasn't 15 then. 16 Q: You weren't aware then. When did you 17 first become of that, sir? Approximately? 18 A: It would be some time after the 19 incident, but I can't remember when. 20 Q: Well, sir, would you agree with me 21 that it's very misleading in the circumstances in the 22 three (3) hour time gap to say the OPP were there to 23 address a disturbance. 24 MR. DERRY MILLAR: Excuse me. It's not a 25 three (3) hour time gap. The -- this is at 7:55, just in
521 fairness to the Witness, the evidence is that the CMU was 2 on the road marching down the road at 10:44, two (2) 3 hours. 4 MR. PETER ROSENTHAL: 10:44? And then 5 the -- did I say 11:00? 6 MR. DERRY MILLAR: You said three (3) 7 hours. 8 MR. PETER ROSENTHAL: Well -- and what 9 time was the incident? 10 There -- about eight o'clock, so it's two 11 -- two and three quarters hours perhaps, okay. 12 COMMISSIONER SIDNEY LINDEN: It's 13 pretty -- 14 MR. PETER ROSENTHAL: I stand corrected. 15 Mr. Millar is always much more precise than I am. 16 MR. DERRY MILLAR: I'm wrong. 17 MR. PETER ROSENTHAL: Sorry? 18 MR. DERRY MILLAR: I'm wrong. 19 MR. PETER ROSENTHAL: Oh, you're wrong in 20 this one. Oh, okay. Well, I was -- 21 COMMISSIONER SIDNEY LINDEN: Three (3) 22 hours is a reasonable estimate, Mr. Rosenthal. 23 MR. PETER ROSENTHAL: In my -- it seemed 24 to be but I thought I was being corrected by fifteen (15) 25 minutes.
531 2 CONTINUED BY MR. PETER ROSENTHAL: 3 Q: In any event, sir, approximately 4 three (3) hours seems to be accepted by the Commissioner. 5 This Commissioner is the one who has to accept the 6 evidence here. 7 A: Exactly, and that would seem to be 8 correct. 9 Q: So, sir, would you not agree that 10 this gives a very different impression to say the OPP 11 were there to address a disturbance involving First 12 Nations persons causing damage to private property in the 13 area, than a statement that three (3) hours earlier there 14 had been a vehicle damaged in the area, so the OPP went 15 down there? 16 A: It may. I should -- I should say 17 that, as the Commissioner, I did not go out and 18 investigate each incident across the province. I had to 19 depend on the information that I got from those that I 20 was responsible for. 21 And in the course of my work, I have found 22 that occasionally mistakes are made but, generally, the 23 people that I am responsible for give me accurate 24 information and I have to rely on that and then respond 25 on that information.
541 That's what I did. If it was wrong, then 2 I -- if it was wrong, it was wrong, that's all. 3 Q: So, sir, are you suggesting that at 4 the time you made this statement, it was your 5 understanding that a disturbance involving First Nations 6 people causing damage to private property was in the 7 process of occurring when the officers marched down that 8 road? 9 A: I wouldn't think so that that was my 10 understanding. It could have been at -- at a particular 11 time in the evening that -- that evening. 12 I wasn't -- I didn't focus my mind on did 13 it just exactly occur at that point. It -- it seemed to 14 be one of the causes that Inspector Carson used to decide 15 and if he'd waited two (2) hours he probably was 16 considering the actions that he needed to take and 17 activating the -- his staff to move down the road for the 18 purposes stated. 19 Q: Well, at the time you told us you 20 thought that was the cause. You believed the press, the 21 first press release, it was as a result of that damage to 22 the vehicle that the crowd management unit marched down 23 that road, right? 24 That's what you understood on September 25 7th, is that not what you told us, sir?
551 A: That's one of the causes. 2 Q: I thought you told us that on 3 September 7, you understood that that -- it was as a 4 result of that. Later, you learned from testimony that 5 there were other causes as well; is that not fair, sir? 6 A: I trusted that the incident commander 7 would have assessed the situation. That was part of the 8 information or that was the information that came in the 9 press release and I believed that to be true. 10 My experience tells me that there would be 11 other information surrounding that, that would have 12 caused him to -- to activate his staff. 13 Q: Well, would you agree, sir, with the 14 following. If you had known at the time that the damage 15 to the vehicle had occurred approximately three (3) hours 16 before the CMU marched down that road, it would have been 17 improper for you to say without further explanation, the 18 OPP were there to address a disturbance involving First 19 Nations persons causing damage to private property in the 20 area? 21 A: Yes. 22 Q: So that would have been improper if 23 you had known the true facts? 24 A: Well what it basically says, the OPP 25 was there to address a disturbance involving First
561 Nations persons causing damage to private property in the 2 area. 3 I think it was much -- it was much wider 4 than that, but it seems to me that that is -- that is 5 true. 6 Q: It's misleading is it not, sir? 7 A: It certainly isn't detailed with all 8 of the exact material under it but it's very difficult to 9 give a full, detailed report in a -- in a quick press 10 release. 11 Q: And, sir, as you said that on 12 September 7th, 1995 didn't it ring alarm bells in your 13 own mind when it said they were there to address damage 14 to property, and somebody ended up getting killed over 15 it. 16 Didn't that make alarms ring in your mind 17 about the policy, about not using force unless death or 18 serious injury is probable and the policy that property 19 does not count the way people count? 20 Didn't that come to your mind as you 21 uttered this sentence, sir? 22 A: Well, I was concerned as to why the 23 staff was activated to go down the road that night and I 24 did make inquiries to learn about that and was assured 25 that the incident commander on the scene felt that what
571 he did was necessary and fell within the guidelines. 2 Q: And would you agree that it's very 3 misleading for you to -- for the press release to 4 continue, not in your quotes, that: 5 "The officers were pelted with rocks 6 and sticks. As OPP personnel were 7 preparing to leave the area, two (2) 8 vehicles broke through the fence of the 9 Park and came at the officers. It was 10 at this time that OPP personnel were 11 fired upon from the vehicles. The 12 officers felt that their safety was 13 endangered and returned fire, fatally 14 injuring one (1) man." 15 Isn't that a very misleading account of 16 what happened on any measure and any understanding of 17 what happened, sir? 18 A: That was the information that was 19 available at the time, it's an initial press release and 20 SIU was there to investigate or would be coming there to 21 investigate and that's all the information I had at that 22 time. 23 Q: Now, sir, when did you find out that 24 the Crowd Management Union -- Unit as it marched down 25 that roadway was doing shield chatter?
581 A: Again, from recollection at this 2 point in time, I'm not sure. Those are all details of -- 3 of what goes on, they're not necessarily things that I, 4 as the commissioner, would know right away. 5 Q: You would have found out, surely, in 6 September of 1995, would you not, sir? 7 A: No. 8 Q: No? I see, not until this Inquiry? 9 A: I think I certainly knew before that, 10 but I did not know the details, the individual details, 11 intricacies of the activities. 12 Q: I would suggest to you, sir, that 13 this clarification of events that you issued on September 14 7, 1995 gives an entirely incorrect description of the 15 events as far as the First Nations people and maligns 16 those people in a way that's inexcusable. 17 What's your reaction to that, sir? 18 A: It was the information that was 19 available at the time and in hindsight, one can always 20 revise what one might have done, but that's what was done 21 at the time. 22 Q: Do you agree that the upshot of this, 23 the message that you conveyed to the public with this 24 press release was, First Nations people were damaging 25 property?
591 Our officers went there to try to stop 2 them from damaging the property; they started throwing 3 sticks and rocks at us for no reason at all. Then they 4 charged us with vehicles and started shooting at us and 5 unfortunately, we had to kill someone. 6 Is that a fair summary of the message, 7 sir? 8 A: Yes. 9 Q: And that's an entirely incorrect 10 message, is it not, sir? 11 A: I wouldn't say that it's entirely 12 incorrect, but certainly it's -- it's incorrect in 13 certain areas. 14 Q: And it reinforces stereotypes that 15 some people have about First Nations people, doesn't it? 16 A: It's hard for me to say that. I can 17 really only speak for myself in -- in my views. 18 Q: Would you not agree that it has the 19 danger at least of reinforcing negative stereotypes about 20 First Nations people? 21 A: Well, I would say that if it is in 22 reference to anybody and if it wasn't entirely accurate, 23 then it isn't very helpful to them. 24 Q: Yes, in reference to anybody, but -- 25 A: Anybody.
601 Q: -- it specifically says, Involving 2 First Nations people and it doesn't describe them in any 3 other way. And I would suggest to you, sir, that it's 4 apparent that such a description would potentially, at 5 least, have very negative affects on people's perceptions 6 of First Nations people. 7 Do you disagree with that, sir? 8 A: No, I don't. 9 Q: And therefore, I would put it to you, 10 sir, since you don't disagree, it was incumbent upon you 11 as soon as you found out that this was false, to correct 12 the public record. Do you agree with that, sir? 13 A: Well, at this point in time, the 14 Special Investigations Unit was investigating and I think 15 that the decision I made was that we should not be saying 16 anything more about it, and that was what I maintained 17 for the next ten (10) months. 18 Q: Okay. And you maintained that for 19 approximately a year until the special investigations 20 unit concluded their investigation, right? 21 A: Yes. 22 Q: And then you issued a clarification 23 that we've looked at? 24 A: Yes. 25 Q: Why did you not in that
611 clarification, clarify that the information in the two 2 (2) press releases that had been issued by the OPP on 3 September 7, 1995 was incorrect and why did you not 4 apologize for any negative impression people might have 5 gotten about First Nations people as a result of those 6 press releases? 7 A: I could have done that, but I didn't. 8 Q: I asked you why you did not, sir. 9 You indicated that the purpose of that was to set the 10 record straight. 11 What could be more important about setting 12 the record straight, sir, than correcting the two (2) 13 press releases that you had issued prior? 14 A: My focus when I issued this one was 15 on two (2) things to set the record straight. The one 16 was to say something which I believed to be true, was 17 that our officers did not come down to the Provincial 18 Park to evict anyone, to remove those individuals 19 occupying the Park. 20 That was the clarification. The other was 21 a repetition of what had been already issued. And then 22 the second part on the back to say that it was an 23 isolated incident, that the OPP did not get involved in 24 these types of issues, with violence involved, on a 25 regular basis.
621 Q: The OPP never, to your knowledge, 2 corrected the information that they put out in the two 3 (2) press releases on September 7, 1995; is that correct? 4 A: Not to my knowledge. 5 Q: Now you told us, moving to a 6 different area, that you weren't aware of the Premier's 7 view that the OPP had made mistakes or believed he had 8 the authority to correct the OPP until a few months ago; 9 is that correct? 10 A: Yes, and I don't want to be pinned 11 down to the -- just a few -- it would be some -- a few 12 months ago. I think I said four (4) months yesterday. 13 Q: I'm not concerned with the exact 14 months, sir. 15 A: Okay. 16 Q: Until after the year 2000? 17 A: That's fair. 18 Q: Take a look at the transcript, 19 briefly, of the famous telephone call between Inspector 20 Carson, Inspector Fox and Chief Superintendent Coles. 21 Now this is in Exhibit 444(a) at Tab 37. 22 23 (BRIEF PAUSE) 24 25 Q: Sorry, Mr. Commissioner. I'm
631 correlating two (2) copies of the transcript. 2 3 (BRIEF PAUSE) 4 5 Q: Yes, look at page 264, please. 6 7 (BRIEF PAUSE) 8 9 Q: Towards the beginning of that page, 10 Inspector Fox, he believes that he has the authority to 11 direct the OPP. He is, of course, Premier Harris. 12 "Carson: Oh. 13 Fox: Yeah. 14 Carson: Okay. 15 Fox: So. 16 Carson: I hope you'll be talking to 17 the Commissioner about that?" 18 That's the corrected version, slightly 19 corrected version. 20 "Fox: Pardon me? I hope he has -- I 21 hope he calls the Commissioner and have 22 that discussion [or something]." 23 And then Fox says: 24 "Oh, yeah, yeah. Well of course the 25 Commissioner is already brought into
641 the loop on this." 2 So, Inspector Fox is obviously 3 communicating, sir, that at that time you already were 4 aware of these issues and problems. You were already in 5 the loop. 6 Now, I know it's ten (10) years later, 7 sir, but what were you doing in that loop on September 8 6th, 1995? 9 A: I don't know what Inspector Fox's 10 information was. I was not aware nor did I speak to the 11 Premier. I take it that's who they're speaking about, 12 the Premier. And I was not aware of any information -- 13 what he's talking about of the Commissioner being in the 14 loop, I'm unaware of. 15 Q: Well, I would suggest to you, it 16 doesn't necessarily imply that you spoke to the Premier. 17 But it does certainly imply that you were aware of 18 something about these problems of the Premier having that 19 view and Inspector Fox having a different view. 20 Do you agree it certainly implies that, 21 sir? 22 A: I don't know. But I can only tell 23 you that I was not. 24 Q: You were not in the loop in any sense 25 of the word?
651 A: I was not aware of this particular 2 conversation. 3 Q: No, you were not aware of this 4 particular conversation. 5 A: Or the information in it. 6 Q: But you were aware that there was 7 concern at high levels of government about what the OPP 8 was doing or not doing with respect to Ipperwash Park. 9 That's what you were in the loop for, was 10 it -- were you not, sir? 11 A: I think you're incorrectly 12 categorizing that. I knew that the Ministry of Natural 13 Resources wanted the OPP to remove the occupiers. 14 Q: I see. 15 A: And I knew that there was a -- an 16 approach which we insisted would involve a court order, 17 an injunction, and I knew that we would act on that. I 18 fully expected that the Government which would include 19 the Ministry of Natural Resources, which would include 20 the Ministry of the Attorney General, were seeking an 21 injunction. 22 And if we were presented with an 23 injunction we would follow its directions. 24 Q: And are you telling us it was your 25 understanding that the OPP would not move against the
661 persons in the Park until an injunction had been 2 obtained? 3 A: The intention was not to move against 4 the persons in the Park until an injunction was obtained, 5 but as you know from our earlier discussion this morning, 6 there were some exceptions to the rule. And according to 7 Inspector Carson's approach, he thought his actions fell 8 within that exception -- 9 Q: Yes. 10 A: -- and that we know he acted. But 11 our intention right from the beginning was to begin with 12 negotiation and if we had to use force, we would do it on 13 the strength of an injunction. 14 And we also knew that the injunction would 15 have to be obtained by the complainant which would have 16 been the Ministry of Natural Resources and that the 17 Ministry of the Attorney General would act for them to 18 obtain through the courts, an injunction. 19 Q: Yes, sir. Now we have had some 20 evidence and it is expected that we'll have more evidence 21 concerning the extent to which various government 22 officials wanted an exception to that rule; wanted hasty 23 action rather than waiting for an injunction. Okay. I'm 24 just telling you that is background. 25 And I'm suggesting to you, sir, that it's
671 clear from the context here that that tension one might 2 say, is what Inspector Fox was speaking about. 3 And when he says that you're already 4 brought into the loop, he meant that you are somehow 5 involved in that discussion of that tension about whether 6 to act immediately or wait. 7 A: I don't know if he meant that or not 8 but if he did, he's wrong. 9 Q: I see. Now you agree that Inspector 10 Fox is an accurate person in general? You told us that? 11 A: Generally, yes. 12 Q: Yes. 13 A: But I qualified my answer by saying, 14 if he did think that, then he's wrong. I'm not sure he 15 thought that. 16 Q: You're not sure if he -- well you 17 don't doubt that he said to Inspector Carson: "The 18 Commissioner is already brought into the loop on this?" 19 You don't doubt that do you? 20 A: If that's what the quote is in the -- 21 on the transcript, I'm sure he -- that's what he said. I 22 don't know what he -- 23 Q: And you listened to it yesterday, do 24 I have to play it -- 25 A: I'm not sure what loop he's talking
681 about. 2 Q: Do I have to play it again for you, 3 sir. 4 COMMISSIONER SIDNEY LINDEN: No. He's 5 not doubting the word so let's be fair. He's not 6 questioning the word. He's -- 7 MR. PETER ROSENTHAL: Well I -- I want to 8 make that clear. 9 10 CONTINUED BY MR. PETER ROSENTHAL. 11 Q: You do agree -- you do agree, do 12 you, sir, that Inspector Fox said within a word or two 13 (2) at least to the accuracy of the transcript: 14 "Well, of course, the Commissioner is 15 already brought in to the loop on 16 this." 17 Do you agree with that, sir?" 18 A: That's what he said. 19 Q: That's what he said? 20 A: That's what he said. 21 Q: And you agree that he was saying this 22 to the incident commander, Carson? 23 A: Yes, he was. 24 Q: And it was in the context of a 25 question about, the Commissioner had better help us with
691 these political issues, right? 2 Is that a fair characterization? 3 A: I don't know. 4 Q: Well, I'll be -- previously, did you 5 read this transcript, sir? 6 A: Yes, sir. 7 Q: And you listened to the tape? 8 A: Yes, I have. 9 Q: And, the previous couple of 10 sentences: 11 "Carson: I'll be talking to the 12 Commissioner about that. [Pardon me] 13 I'll talk to the Commissioner and have 14 that discussion. [and] The 15 Commissioner's already brought in to 16 the loop." 17 That's what it says, right? 18 A: Well, what I know is that he did not 19 talk to me about that and I believe he said he didn't 20 talk to me about that. And the interpretation of being 21 in the loop, there was a -- a process going forward which 22 I've described, which would involve the activities of 23 various Ministries and I certainly was in that loop. 24 Q: Yes. And, sir, would you agree that 25 it would be very serious if Inspector Fox was
701 misinforming Inspector Carson about whether or not you 2 were in the loop when Inspector Carson's concern is that 3 the Commissioner should know about these things, right? 4 A: I'm not sure what was in Inspector 5 Fox's mind. You'll see there that he said he was going 6 to call me; he did not do so. 7 Q: Are you sure of that? 8 A: Absolutely. 9 Q: I see. Ten (10) years later that's 10 something you remember for sure? 11 A: I think I would remember that. 12 Q: I see. 13 14 (BRIEF PAUSE) 15 16 Q: Sorry, I'm having a correlating 17 problem again, sir. 18 COMMISSIONER SIDNEY LINDEN: Would this 19 be an appropriate time to take a break? I'm in your 20 hands. 21 MR. PETER ROSENTHAL: I'm going to 22 continue with this -- 23 COMMISSIONER SIDNEY LINDEN: With this 24 area? 25 MR. PETER ROSENTHAL: -- but I'm in your
711 hands. It might save a minute -- 2 COMMISSIONER SIDNEY LINDEN: Do you want 3 to finish -- 4 MR. PETER ROSENTHAL: -- of the Inquiry's 5 time because I'll spend a minute during the break. 6 COMMISSIONER SIDNEY LINDEN: No, no, 7 that's -- I'll allow you to complete. 8 MR. PETER ROSENTHAL: I'm sorry? 9 COMMISSIONER SIDNEY LINDEN: Perhaps you 10 should complete what you've started. 11 MR. PETER ROSENTHAL: Okay. Thank you, 12 yes. And then we'll do a couple of things with this 13 transcript. 14 COMMISSIONER SIDNEY LINDEN: And then 15 we'll take the morning break. 16 17 (BRIEF PAUSE) 18 19 MR. PETER ROSENTHAL: Oh yeah, okay. 20 Thank you. 21 You didn't' really help me, but you 22 offered to. I found it myself for a change. 23 COMMISSIONER SIDNEY LINDEN: What page 24 are you on? 25
721 CONTINUED BY MR. PETER ROSENTHAL: 2 Q: So, at page 272, sir, of the 3 transcript... 4 A: Yes? 5 Q: Coles, about a third of the way down: 6 "I'll stall them to the amount -- I 7 mean right now I know the Commissioner 8 is resurrecting the old -- what has 9 always been our approach, because he 10 feels he's now going to start getting 11 some pressure." 12 Now, it seems that Chief Superintendent 13 Coles is expressing, as one reads it, that there's some 14 thought that he -- that either you expressed to him or 15 that he got from someone else as emanating from you, 16 right? 17 A: That's what he says there. I'm not 18 sure what his grounding is for saying that. I note that 19 he talks about: 20 "resurrecting the old -- what has 21 always been our approach". 22 It's very clear that it's not a 23 resurrecting, it was always there and Project Maple 24 reflects just exactly that. So, that was the approach 25 all the way along; that's not entirely --
731 Q: I appreciate that, sir. 2 A: Pardon me? 3 Q: I appreciate that, sir. I'm not 4 asking you about that. I'm asking you about the phrase: 5 "Because he [you] feels he's now going 6 to start getting some pressure." 7 A: Well, he's -- he's saying that that's 8 what he thinks. 9 Q: Yes, but he's saying that it's your 10 feeling. Does he know you so well that he can express 11 your feelings without any communication? 12 A: I don't think so. 13 Q: No, I don't think so, sir. So, would 14 you not agree that that seems to imply that, somehow, 15 either by you telling him or someone on your behalf 16 telling him he understood your concern that you might be 17 getting some pressure? 18 A: That's maybe what he said -- 19 obviously what he said there. 20 Q: Yes. And then, Coles, in the next 21 sentence I would suggest to you, indicates the nature of 22 the pressure. People saying, Why aren't you acting, why 23 are you acting on this stuff? 24 But then Inspector Fox says, "He's already 25 got it, Chris." And I would submit to you that that
741 means, there's no other possible interpretation of this, 2 unless you can assist me with one, that he's already got 3 the pressure. 4 He's responding to the Commission, feels 5 he's going to start getting pressure; he's saying, He's 6 already got it. 7 Now, sir, can you assist us as to the 8 basis of -- Inspector Fox has come to that conclusion? 9 A: No, I cannot. 10 Q: And would you not agree -- it's ten 11 (10) years later, sir. 12 A: Yes. 13 Q: And Chief Superintendent Coles and 14 Inspector Fox and you might have different memories and 15 might have a lack of memory as to what happened ten (10) 16 years ago, all right? 17 A: Could have, yes. 18 Q: But we do have a transcript here and 19 we do have the actual voices recorded as to what they 20 understood at the time. 21 A: Yes. 22 Q: And so I'm asking you, sir, now, 23 given this information, to take your mind back that ten 24 (10) years, because we know that at the time, Inspector 25 Fox was saying that you were in the loop. And we know
751 that at the time Coles says you're going to start getting 2 pressure about why you're not acting on this stuff and 3 Fox says you already got the pressure. 4 And Coles says, You feel that. So, given 5 that, sir, I ask you to take your mind back and tell us 6 what you learned in the loop, if you can, sir. 7 A: What I know in the loop is that we 8 had an approached which I've outlined before which we had 9 used with regard to First Nations protests and blockades 10 and occupations over the years that worked well without 11 any injury or death to people. 12 The occupiers had -- had come into the 13 Park on the 4th. there was no injury or concerns to any 14 -- to much of an extent, at that point. And from the 4th 15 until the 6th, I had no pressure on me, I was quite 16 relaxed about. 17 I had every belief that this would be 18 settled in the manner that we had settled these types of 19 things previously, and I saw it as not really a great 20 concern. 21 Q: Now, sir, if you could turn to page 22 262 of this transcript. 23 24 (BRIEF PAUSE) 25
761 Q: And the context is that Inspector Fox 2 is asking Inspector Carson at this point whether or not 3 he would be willing to give viva voce evidence, in other 4 words actually appear in Court rather than just by 5 Affidavit. And Carson says, at the top of that page: 6 "Yes, and I guess I don't have any 7 problem as long as, uh, the Chief and, 8 uh, the Commissioner don't have a 9 problem with that." 10 And Fox says: 11 "Yeah, well, I think you know we'd want 12 to check that out." 13 And that leads to Carson saying, "the 14 Chief's here", and it goes off into a conversation with 15 the Chief. 16 But Carson says he doesn't have any 17 problem giving viva voce evidence as long as the Chief 18 and the Commissioner don't have a problem with it. 19 Now, did either John Carson or Ron Fox or 20 Chris Coles ask you whether or not you had a problem with 21 John Carson giving viva voce evidence? 22 A: No. 23 Q: And did you know that he was going to 24 give viva voce evidence? 25 A: I don't think so.
771 Q: Well, sir, again the record of ten 2 (10) years ago says that Carson is concerned that he 3 would only do it as long as you and Chief Coles don't 4 have a problem with it. 5 A: Well, by way of explanation, this is 6 what strikes me as rather strange. You had mentioned 7 earlier -- asked me if I had experience in criminal 8 investigations, and I have had and I know of many, many 9 occasions when we applied for permission to do various 10 things that you had to have Court approval or the 11 approval of a judge to do. And we had to appear before 12 the judge to give evidence as to why we wanted, perhaps, 13 an affidavit for interception. 14 And I never in all of my career felt that 15 I needed to ask the Commissioner for permission to do 16 that. It just wasn't done. So -- 17 Q: Well John Carson evidently felt he 18 had to ask the Commissioner. 19 A: And I don't -- I don't know why he 20 said that. 21 Q: I don't either, sir. But, he did say 22 it, did he not? 23 A: He appears that he has. 24 Q: And presume -- we do know that he 25 did, in fact, give viva voce evidence on -- on this
781 injunction application, sir. 2 A: I don't think he did. 3 Q: He did. 4 A: I don't think so. 5 Q: Oh sorry, Mark Wright did, yeah. 6 Mark Wright gave the evidence. 7 But, it was viva voce evidence given, in 8 fact. And are you saying that in spite of John Carson 9 saying he would have to check with the Commissioner, 10 there was no checking with the Commissioner before that 11 viva voce evidence was given? 12 A: No, there was not. 13 Q: I see. Yes, Ms. Esmonde reminds me, 14 I do think John Carson did give evidence at a second 15 injunction hearing, viva voce evidence; is that not 16 correct? 17 MR. DERRY MILLAR: Yeah. He gave -- he 18 gave evidence at a second hearing, the one I believe that 19 was on the Friday the 8th but not the one on the 7th. 20 MR. PETER ROSENTHAL: Yes well, so I'm 21 not as inaccurate as I -- I'm always in awe of Mr. 22 Millar. If he says I'm wrong, I assume he's -- he's 23 right even when he's wrong with three (3) hours and wrong 24 on this too. 25
791 CONTINUED BY MR. PETER ROSENTHAL: 2 Q: John Carson did evidently give viva 3 voce evidence, as well, at the continuation of the 4 Injunction Hearing. And you're saying then in spite of 5 his concern as expressed here and we have it that he said 6 it on that day about speaking to the Commissioner, you 7 were not even aware that he was going to give viva voce 8 evidence? 9 A: I was not. 10 Q: I see. 11 A: I just find it very difficult to 12 understand if a -- if Crown Counsel wished to make an 13 application for an injunction and felt that a member of 14 the OPP would have information that would be valuable in 15 addressing his case and he asks a member of the OPP to 16 come and give evidence, I -- I can't see any -- any 17 rationale to why he would refuse to do that. 18 Q: But he did express a concern that he 19 would only do it with your approval. 20 A: I see that. I see that. 21 MR. PETER ROSENTHAL: Now is a good time, 22 Mr. Commissioner, thank you. 23 COMMISSIONER SIDNEY LINDEN: Thank you, 24 Mr. Rosenthal. 25 We'll take a morning break now.
801 THE REGISTRAR: This Inquiry will recess 2 for fifteen (15) minutes. 3 4 --- Upon recessing at 10:29 a.m. 5 --- Upon resuming at 10:48 a.m. 6 7 THE REGISTRAR: This Inquiry is not 8 resumed. Please be seated. 9 COMMISSIONER SIDNEY LINDEN: Carry on. 10 MR. PETER ROSENTHAL: Thank you, Mr. 11 Commissioner. 12 13 CONTINUED BY MR. PETER ROSENTHAL: 14 Q: Good morning again. 15 A: Good morning. 16 Q: Now, you told us that however it's 17 characterized as political pressure or attempted 18 political pressure or something more innocuous, you were 19 not aware at all of any of the information surrounding 20 what was in the phone call that we just looked at; the 21 Fox call -- cautioning phone call, correct? 22 A: I was not aware of it until some time 23 ago. 24 Q: Until after 2000? 25 A: Yes.
811 Q: I don't care more precisely than 2 that. And nothing in that direction at all? 3 Not only not aware of the phone call but 4 not aware that there was any possible interaction such as 5 Mr. Fox is describing? 6 A: Well, I have to be as candid as I can 7 here. I knew that there would be -- that they're 8 Interministerial meetings. 9 Q: Right. 10 A: I knew that there would be 11 discussions as to the best course of action with regard 12 to -- to the Ipperwash Park. There would be various 13 disciplines there, lawyers and so on that would be 14 discussing these things. 15 I knew that the understanding of the 16 Interministerial Committee was that OPP operations were 17 off limits for those in the Interministerial Committee. 18 I had every reason to believe that a 19 direction would be given with respect to a -- an 20 injunction at some point in time and if that arrived -- 21 Q: Yes. 22 A: -- that the OPP would be acting on 23 it; that the OPP would provide -- clearly, would -- if 24 they were called upon to provide evidence with respect to 25 that I would have no reason to think that they wouldn't.
821 Q: But you had no -- 2 A: And so -- all that information would 3 be -- would be in my mind. 4 Q: Yes, just -- I -- I didn't ask a very 5 good question, so it's my fault. But you had -- you had 6 no inkling that within that context that you've described 7 or any related context, there were people within the 8 Government who might have felt that the OPP had done 9 something wrong in not acting quicker and were wanting 10 the OPP to act more quickly than the OPP was acting? 11 You had no inkling of anything like that, 12 is that what you're telling us? 13 A: No. 14 Q: Okay. Now, what about with respect 15 to Mr. Beaubien. Did you get the understanding at any 16 point from 1993 until say September 7, 1995, that Mr. 17 Beaubien felt that the OPP should be more active in their 18 policing of the persons in the Army Camp and then 19 ultimately the Park? 20 A: Well, I'm trying to recollect when -- 21 with the passage of time and with the -- with the -- with 22 the documents for the Inquiry and the various newspaper 23 reports and so, it's very difficult to be accurate. 24 So, what I knew then and what I know now 25 kind of meld together. What I would have known then, I
831 guess, is that staff in the -- in the Forest, or the 2 Ipperwash area would be meeting with various 3 representatives of the communities there, First Nations 4 and non-First Nations, because -- 5 Q: So you knew such meetings were taking 6 place then? 7 A: I either knew or I would have 8 expected they would be, because that was our approach in 9 community policing, that we would do that. 10 And so people like the MP for the area, 11 the MPP for the area, the mayors and reeves of the 12 various municipalities, the chiefs of the First Nations 13 in that area, I would have expected that we would be 14 interacting with them so that we would have an 15 understanding of their views of the local communities. 16 Q: May I ask you very specifically: Did 17 you at any point prior to September 7, 1995 have any idea 18 that MPP Beaubien had some concerns about the way the 19 people at the Camp and at the Park were being policed by 20 the OPP? 21 A: It's hard for me to tell, because I 22 know now that there is -- there are -- there are letters 23 on file and so on, that indicated that he seemed to be 24 expressing some concern in that area. 25 What I knew then versus now, I'm not sure.
841 Q: And do you recall you, yourself, 2 expressing concerns that your officers might, perhaps, 3 enforce the law more vigorously than they had been doing 4 with respect to the people at the former Camp Ipperwash 5 and at the Park? 6 A: I would have expected our officers to 7 enforce the law as they should, but without some method 8 of refreshing my memory, I'm not sure. 9 Q: Do you recall your querying, perhaps 10 through Inspector Boose as to whether or not they were 11 sufficiently enforcing the law with respect to the Stoney 12 Point people? 13 A: That probably would be Deputy 14 Commissioner Boose who was the deputy commissioner in 15 charge of field operations and I could very well have. 16 Q: Yes. 17 A: If you could show me something that 18 would refresh my memory, I could -- I could try to 19 comment on it. 20 Q: Well, there is a document. I believe 21 it's -- I hadn't planned to introduce the document, but 22 there is an exhibit. I believe it's Exhibit P-499 to 23 these proceedings and I -- it's not in -- however, it's 24 not in this document book and I didn't make extra copies. 25 I hadn't intended to go that route, but he
851 -- he wants it and I'll give it to him, if I can find it. 2 This is -- thank you. 3 4 (BRIEF PAUSE) 5 6 Q: It's Exhibit P-499 and I believe it's 7 Inquiry Document Number 2003790 are notes of 8 Superintendent Parkin. And I should turn you to August 9 16, the page August 16 -- and I believe the pages are 10 numbered, but the dates are consecutive I believe. 11 A: These are the handwritten notes, sir? 12 Q: Yes. Is that what you have in front 13 of you, sir? 14 A: I -- I believe I have them and -- 15 Q: And if you could please turn to a 16 page entitled, "Wednesday, WED, 16 August/95?" 17 A: I have that. 18 Q: And if you look at the entry at 11:10 19 it reads as follows. So this is 16 August/95 and just to 20 put the context, sir, this is after the Stoney Point 21 people had taken over the built-up area as it's been 22 called of the Army Camp but before, of course, the entry 23 into the Park. And at 11:10 it appears to read: 24 "Deputy Commissioner Boose called. 25 Commissioner concerned that we say we
861 will enforce law, but are we doing 2 that?" 3 Now, sir, were you concerned on or about 4 Wednesday, August 16, 1995, as to whether your officers 5 were enforcing the law? 6 A: Well, I think what we were saying if 7 I recall our critical issue notes, we would begin with 8 saying that the OPP is enforcing the law and doing 9 investigations there as per usual and I -- I guess I 10 would be speculating as to why I was showing concern at 11 that time, but obviously Deputy Commissioner Boose is the 12 -- is the officer in charge of -- of operations and so he 13 reports directly to me and I would think his comment 14 would be accurate. 15 Q: You would think his comment would be 16 accurate? 17 A: I would think so. 18 Q: And he's attributing it to you? 19 A: Yes. 20 Q: And it says that you are concerned, 21 We say we will enforce law, but are we doing that? 22 A: Yes. 23 Q: Isn't that exactly what MPP Beaubien 24 was claiming; that you say you were enforcing the law, 25 but you're not doing it?
871 A: I don't know that. 2 Q: You don't know that? I see. 3 A: What -- 4 Q: Do you remember Mr. Falconer showed 5 you the see no evil cartoon? Now, that was a year later, 6 right? Right? 7 A: I beg your pardon? 8 Q: Do you remember the cartoon that Mr. 9 Falconer showed you about hear no evil, see no evil and 10 so on? 11 A: And I think he explained that that 12 really was -- that was in relation to people in the area 13 down there who did not feel we were doing what we should 14 be doing. 15 Q: Yes. And I'm suggesting to you that 16 that theme that the OPP says they're enforcing the law, 17 but they're not really doing it, was the theme that MPP 18 Beaubien persistently reiterated from at least August 19 1995 through September 1995; isn't that correct? 20 A: I don't know if that's correct, but 21 if you say so I -- I can't comment on -- on what he was 22 saying. My general understanding is at -- if we back up, 23 I don't know at what time he began saying this, but I 24 know now that he was concerned and I might very well have 25 known it then from newspaper articles that I would have
881 read -- 2 Q: Yes. 3 A: -- from -- from a variety of sources. 4 Something motivated me to ask that question. 5 Q: Yes, to ask that question, yes. 6 A: Yes. 7 Q: And it was asking it in language very 8 similar to the language used by MPP Beaubien; is that not 9 fair? 10 A: I don't know. 11 Q: You know now? 12 A: I don't know if it's language very 13 similar that he used, I've not thought that I ever -- 14 that I ever copied his approaches to -- to -- to my 15 language, but I think that's language that I would use. 16 Q: This language that you would normally 17 use, isn't this pretty odd language for a police officer 18 to use? Concerned that we say we will -- we in -- we 19 will enforce law, but are we doing that? 20 Isn't that odd language for a police 21 commissioner, sir? 22 A: If somebody is concerned about it, I 23 might very well be repeating what I read in the paper. 24 Q: Yes. But then you are expressing 25 that concern to Superintendent Parkin, right, through
891 Deputy Commissioner Boose? 2 A: That's correct. 3 Q: The same concern that Marcel Beaubien 4 had. 5 A: Well, I think it's my concern, if 6 we're not enforcing the law as we should. 7 Q: Yes. And that was the concern 8 expressed in slightly different language that has been 9 attributed to Premier Harris, right? 10 A: I don't know that. 11 Q: Well we just went through the Fox 12 phone call and so on. 13 So you expressed, to Superintendent 14 Parkin, that kind of concern on or about August 16, 1995; 15 is that correct, sir? 16 A: I have no reason to believe that when 17 Boose says I asked about this, I was concerned about 18 this, that he's got it accurate. 19 Q: And how was your concern met, sir? 20 A: I don't know, there -- 21 Q: You don't know? 22 A: No. 23 Q: And did -- on what other occasions 24 did you express similar concerns, sir? 25 A: To whom?
901 Q: To any of your subordinate officers, 2 to any officers in the OPP or to anyone for that matter? 3 A: Well I expressed concern about a 4 variety of things across the province and I did it on a 5 regular basis all the time that I was commissioner. 6 Q: Sir, I'm talking about concerns that 7 we say we will enforce law but are we doing that? On 8 what other occasions did you express that concern and to 9 whom, sir? 10 A: I cannot recollect. I can just tell 11 you that it was my general policy that if I had any 12 concern about anything as to how we were conducting 13 business, I would raise it. 14 Q: But doesn't this expression of a 15 concern contradict the policy that we looked at from 16 1991, expressed formally in 1991 that in situations like 17 this, you don't necessarily enforce the law with respect 18 to property issues, for example, if it requires use of 19 force that might be dangerous. 20 Would you agree that an expression like 21 this is contrary to that policy in the context? 22 A: I think we quite consistently said 23 that the OPP enforces the -- the Criminal Code. It does 24 investigations and enforces it as we always do. I think 25 we've consistently said that.
911 Q: Sir, did you become aware that the 2 people who were transporting Mr. Dudley George to 3 hospital on that fateful night were, as they arrived at 4 the hospital, arrested by your officers? 5 A: I'm aware of that, yes. 6 Q: And when did you first become aware 7 of that, sir? 8 A: Again, I cannot tell you that. It 9 would probably have been some time after September the 10 6th, but I can't tell you exactly when. 11 Q: But within days of September 6th; is 12 that fair? 13 A: It may have been, it may have been 14 longer. 15 Q: Well, can we say for sure in the 16 calendar year of 1995? 17 A: I have no notes in front of me that 18 address that and, again, looking back ten (10) years, I 19 cannot say that with any accuracy. 20 But I know it now. 21 Q: And did you know it before you 22 retired as Commissioner, sir? 23 A: I would say I probably did. 24 Q: Only probably? 25 A: Yes.
921 Q: I see. 2 A: I can only tell you what I can 3 remember. 4 Q: Yes. And you know -- you now know 5 the basic facts, do you sir? 6 A: I think I do. 7 Q: And, sir, would you agree that that 8 was at least extremely unfortunate action by your 9 officers to place under arrest persons who had, in what 10 can only be described as a heroic drive, driven their 11 dying brother to the hospital? 12 A: Well, it certainly was regrettable. 13 My understanding was that at the time that the arrests 14 were made, certainly after the activities of late 15 September the 6th, I think it fair to say that there was 16 a considerable amount of confusion as to what had 17 occurred and -- and the activities surrounding the area. 18 My understanding was that the officers 19 that made the arrests did so in good faith on reasonable 20 grounds. And the issue, I guess, as I understood it was 21 that they were -- when one arrests on -- in good faith 22 and then finds out later that the facts on which he based 23 his good faith, his reasonable, proper grounds is not 24 there, then a police officer should release the person as 25 soon as possible.
931 And so the issue seemed to be that the 2 communications didn't flow very quickly to allow the 3 people to be released. And that in itself is very, very 4 unfortunate and regrettable. 5 Q: Yes. And one of Dudley George's 6 brothers and one of his sisters were the unfortunate 7 victims of that confusion, correct? 8 A: I understand that to be the case. I 9 knew it was relatives of his. 10 Q: I'm sorry? 11 A: I knew that it was relatives of his. 12 Q: Well we've had evidence that it 13 included a sister and brother. 14 A: And I won't disagree with you. 15 Q: And sir, did you ever make any 16 apology to that sister and brother for what your officers 17 put them through? 18 A: I have not done it personally. I 19 understand that Chief Coles has expressed regret about 20 that. 21 Q: About that, I see. 22 A: That -- that's my understanding. 23 Q: I see. But you didn't feel -- 24 A: I didn't myself. 25 Q: -- it incumbent upon you to do it
941 personally. Now also we've had evidence that on the 2 fateful night a woman named Marcia Simon and her very 3 elderly mother Melva George were driving to try to get 4 ambulance help for persons who might have been injured 5 and they were subject to what was termed, 'a high risk 6 takedown' by your officers. 7 You've heard about that, sir? 8 A: I believe I have. 9 Q: And you knew about that well before 10 you retired, sir? 11 A: I may have. 12 Q: And sir, did you yourself or did you 13 direct anyone to issue any apology to those two (2) 14 persons? 15 A: No. 16 Q: Now we've heard, sir, that there were 17 several investigations of this incident that took place 18 under the umbrella of the OPP in the ensuing months. 19 A: Yes. 20 Q: It appears that none of those 21 investigations included an analyse of whether or not the 22 policy on use of force was followed? You've looked at 23 that right? 24 A: Not to my knowledge. 25 Q: And none of them dealt with the two
951 (2) press releases whether they were accurate or 2 inaccurate, right? 3 A: They did not. 4 Q: And they didn't deal with really the 5 reasons for going down the road that night? Didn't 6 clarify that, did they? 7 A: I don't -- well I'm not sure. I'd 8 have to -- 9 Q: Did you -- did you, as a result of 10 those investigations, come to a conclusion as to why the 11 CMU marched down the road at eleven o'clock or 12 thereabouts on September 6th, 1995? 13 A: Well I -- I accepted the incident 14 commander's explanation that he felt, given all of the 15 circumstances, that the situation could get much worse if 16 he didn't take some action and that indeed considering 17 all of the circumstances in the area, that there could be 18 death or serious injury. And it was that that caused him 19 to send his personnel down the road and I have accepted 20 that. 21 Q: Now these investigations didn't 22 reveal, you've told us already, any of the information or 23 anything related to it that we've learned from the 24 transcript of the Fox, Carson Coles call, right? 25 A: Not that I can recall.
961 Q: And -- and we've had evidence and we 2 expect to be going into it further, I would suggest, 3 about what role Marcel Beaubien might have played in, 4 some might allege, in exerting pressure. The 5 investigations didn't reveal any of that did it, did it - 6 - did they? 7 A: I can't recall. 8 9 (BRIEF PAUSE) 10 11 Q: Well, okay, yeah. Mr. Millar points 12 out that in Exhibit P-483, the Connolley report at Tab 13 101 in your book, it does -- the Connolley report does as 14 the question: 15 "Was there political interference 16 imposed on the Ontario Provincial 17 Police in the handling of this 18 occurrence." 19 And he answers that they all -- everybody 20 he answered said, no, they didn't have any interference. 21 But that wasn't my question, my question 22 was about the interaction with -- you didn't know 23 anything from these reports about the interaction we -- 24 we found as revealed in the Fox transcripts and with -- 25 as we've had some evidence, I expect to have more, about
971 Marcel Beaubien being in the -- at the Tactical 2 Operations Centre and so on. 3 You didn't -- none of that was revealed to 4 you; is that right? 5 A: Well I've -- I've spoken about that 6 yesterday and I did not -- I knew that they were -- would 7 have been speaking to Marcel Beaubien, not as Marcel 8 Beaubien, but as the MP -- MLA in that area and I -- 9 subsequently, I have learned that he attended at the -- 10 at the Command Post. 11 And I have indicated that it would have 12 been better had he not attended at the Command Post or 13 that any of the local representatives attend there, that 14 they would have attended off-site some place. 15 I am aware that Marcel Beaubien, at least 16 on one (1) occasion, made some reference to -- to his 17 contact with the Premier or the Premier's office. 18 Q: You're aware of that now? 19 A: I'm aware of that now. 20 Q: I was suggesting to you, sir, that 21 these investigations by the OPP revealed very little as 22 to what really happened in the incident that ended up 23 with the death of Dudley George given what we know now; 24 isn't that fair? 25 A: I think the -- the -- the focus of
981 attention for the OPP was on those things other than the 2 death of Dudley George, simply because the SIU did that 3 investigation. 4 Q: I would suggest to you, sir, that it 5 appears from the press releases, including the 6 clarification by you a year later, that the focus of the 7 OPP was trying to protect the reputation of the OPP, 8 rather than getting at the truth of this matter. 9 What's your response to that, sir? 10 A: I don't agree with your -- your 11 suggestion. I would agree that the reputation of the OPP 12 is important to us and if there was information there 13 that we believed that was correct, even if we were in 14 error, certainly that was important to us too, but I can 15 assure you that the death of deathly -- Dudley George was 16 very, very -- and more important to us or to me than our 17 reputation. 18 Q: Well, we'll see how the Commissioner 19 decides on all this evidence. Thank you, sir, and thank 20 you, Mr. Commissioner. 21 COMMISSIONER SIDNEY LINDEN: Thank you, 22 Mr. Rosenthal. I understand that Mr. Falconer needs a 23 couple of minutes to set up so why don't we take a short 24 break now and give Mr. Falconer a chance to get 25 organized.
991 MR. DERRY MILLAR: And perhaps before we 2 do that, the building has asked us to remind everyone 3 that the roadway on the northeast side of the building is 4 a service road and fire route and has asked that I remind 5 -- we remind everyone not to park in the roadway. 6 COMMISSIONER SIDNEY LINDEN: We'll just 7 take a short break now. 8 THE REGISTRAR: This Inquiry will recess. 9 10 --- Upon recessing at 11:14 a.m. 11 --- Upon resuming at 11:22 a.m. 12 13 THE REGISTRAR: This Inquiry is now 14 resumed. Please be seated. 15 MR. JULIAN FALCONER: Thank you for that. 16 I apologize, Mr. Commissioner. 17 COMMISSIONER SIDNEY LINDEN: That's fine. 18 MR. JULIAN FALCONER: I needed a little 19 bit of setup time. 20 Good morning, Mr. O'Grady. 21 THE WITNESS: Good morning. 22 23 CONTINUED CROSS-EXAMINATION BY MR. JULIAN FALCONER: 24 Q: Mr. O'Grady, there's a couple of 25 matters that Mr. Rosenthal touched on and just for the
1001 freshness of memories I thought is the best time to 2 address them so that we don't split things up too much. 3 One of the things that Mr. Rosenthal 4 touched on with you related to your knowledge in relation 5 to what I'll call the alleged baseball bat incident. All 6 right? And by that I mean you know that it was 7 originally alleged that a group of Natives attacked a 8 private citizen's vehicle with baseball bats. 9 A: I'm aware of that, yes. 10 Q: And ultimately that turned out not to 11 be the case, it turned out to be a single stone thrown at 12 a quarter panel of the car. You know that. 13 A: My understanding now is that there 14 was a rock used to damage a car and that the individual 15 had some connection with the First Nations group that was 16 present at that time. 17 Q: And the significance of the 18 difference in version of events, so we're all clear, is, 19 first of all, instead of being a group of Natives with 20 baseball bats, it was a single stone, yes? That's the 21 first significance. 22 A: That's my understanding. 23 Q: Right. And the second significance, 24 instead of a group of Natives with baseball bats randomly 25 picking a private citizen out there, it was actually an
1011 internal dispute involving the driver of the motor 2 vehicle and an occupier, correct? 3 A: That's what I understand. 4 Q: Right. So it was neither an attack 5 with baseball bats nor a random attack? 6 A: In that particular incidence I 7 understand that's the case. 8 Q: Well and when you say in that 9 particular incidence, there was no other incidents of 10 attacks with baseball bats, was there? 11 A: That I'm not sure of. I have 12 information or what information it was that -- that 13 people were seen with -- initially, I think somebody said 14 baseball bats. Then I think that changed to possibly axe 15 handles and then I understand that there was some 16 suggestion of sticks. 17 I also remember that there was some 18 question as to the numbers that were involved. That -- 19 this -- this is all information that came to my 20 attention. 21 Q: All right. More recently. And I -- 22 I didn't want to interrupt you but I could have focussed 23 you much faster. My question was, that was the only 24 incident of a report of attacks by Natives with baseball 25 bats. Emphasis on the word "attacks."
1021 Mark Wright reported siting a number of 2 individuals holding stick like, bat like, axe handle like 3 sticks by the Park. But he never reported seeing them 4 attack anyone. That's the evidence. So back up for a 5 moment. 6 You don't know of any other incident where 7 Natives are reported of attacking with baseball bats, do 8 you? 9 A: My recollection is I don't know. 10 Q: You don't know. 11 A: No. 12 Q: You don't know of any other 13 incidents? 14 A: I don't know. 15 Q: All right fair enough. And so the 16 only incident where that was alleged, just simply turned 17 out to be wrong. 18 A: It appears that way. 19 Q: Well when you say, "it appears that 20 way," I'm troubled because it -- 21 A: The reason I say, it appears that 22 way, is that the whole issue is a rather complex issue 23 over a period of days and there were various people that 24 were there on the ground that investigated it. In my 25 position, hundreds of miles away, I am not a -- I am not
1031 a good person to respond accurately as to the various 2 intricacies of what went on that night. 3 Q: If you could assist me on something. 4 You testified to Mr. Millar that you received what is Tab 5 -- could you look at Commission Counsel documents Tab 6 102. 7 A: Yes. 8 Q: You told Mr. Millar that you received 9 the Coles report, a portion of this, because we're now 10 calling this document, which is Exhibit P-482, we're now 11 calling it a compilation, because it seems to be a 12 compilation of a number of OPP reports, correct? 13 A: Yes, it does seem to be that. 14 Q: All right. And they're OPP reports 15 that, in essence, you commissioned? 16 A: I asked for, yes. 17 Q: Yes. And your evidence to Mr. 18 Millar, not a day and a half ago, was that the Coles 19 portion of this report was something that you sought and 20 it was provided to you in or around mid to late September 21 1995, in preparation for a meeting you and Coles were 22 going to have and then, in turn, you, Coles and the 23 Deputy Minister were going to have; am I right? 24 A: I recall that, and I think that's 25 right.
1041 Q: Okay. So it's fair to say that you 2 had the Coles portion of this report in and around mid to 3 late September 1995? 4 A: Correct, and I thank you for bringing 5 that to my attention. 6 Q: Good. now, this is -- and -- and you 7 didn't ask Mr. Coles to do this report out of idle fancy, 8 did you? 9 A: I hope not. 10 Q: There was a point to it? 11 A: Yes. 12 Q: The point was, you were relying on a 13 person who was reporting directly to you about the 14 Ipperwash incident to put something down in writing so 15 you could read it and have a sense of what happened on 16 the ground? 17 A: Correct. 18 Q: And so you read it? 19 A: I did. 20 Q: And you read it prior to meeting with 21 the Deputy Minister in mid to late September, 1995? 22 A: I did. 23 Q: And the idea of reading it was so 24 that yo could inform the Deputy Minister, in mid to late 25 September 1995, what happened on the ground?
1051 A: Correct. 2 Q: Would you do me a courtesy? During 3 the break would you review P-482 in terms of the Coles 4 report and find me where there is a suggestion or a 5 description of a group of natives with baseball bats 6 damaging a private vehicle. I can't find it. 7 A: The -- 8 Q: Would you do that? 9 A: I will do that. 10 Q: Thank you. And I'm going to suggest 11 what you do look for, though, is the clarification by 12 Chief Coles in that report, that in fact it was a stone 13 incident. 14 A: I -- 15 Q: So if you could check that I'm 16 appreciative. 17 A: -- I am quite willing to accept that 18 the initial report was corrected to -- and I've said 19 that, was corrected to an incident of a vehicle being 20 damaged by a rock and that the person that was the 21 occupant of the vehicle was connected with the people 22 that were there that night. 23 Q: And so -- 24 A: No question in my mind about that. 25 Q: Oh, I'm -- all right, all right. So,
1061 no matter what answer you gave Mr. Rosenthal before about 2 learning after the Deane conviction was finished that the 3 baseball bat incident wasn't, in fact, accurate, now on 4 reflection you realize that you knew as of mid to late 5 September 1995 that the baseball bat incident wasn't 6 accurate, correct? 7 A: This report would seem to suggest 8 that. 9 Q: Yes. Well, and when you say this 10 report would seem to suggest that, to be fair to the 11 facts, that's just simply true. The answer is yes, isn't 12 it? 13 A: I think it is. 14 Q: Yeah. And -- but I do invite you, 15 because to be fair to you to ask you to pour through it 16 during the evidence is a bit unfair. 17 You don't have to; I'm inviting you at the 18 break. It's not something you are compelled to do. I'm 19 inviting you at the break to correct me if I'm wrong, all 20 right? 21 A: And I just want to remind you that 22 first of all, there was a great volume of paper that I 23 would have received on or after September the 7th. 24 Subsequent to that, there had been all kinds of 25 information in the media, there have been all kinds of
1071 pieces of information with respect to this Inquiry. 2 Ten (10) years has gone by and if you ask 3 me to be accurate as to what happened ten (10) years ago 4 with any particular issue, I'm telling you that my memory 5 will not be good enough to be absolutely accurate. 6 Q: There are two (2) things that are 7 important from -- I take from what your answer was. 8 First of all, you don't doubt -- you're not resiling from 9 your evidence that your read the Coles portion of this 10 compilation, are you? 11 A: I would be sure that I read it before 12 we attended to -- to brief the Deputy Minister. 13 Q: So whatever is in the Coles portion 14 of this compilation, you knew as of mid to late September 15 1995? 16 A: Yes. 17 Q: Thank you. In terms of your other 18 answers to Mr. Rosenthal, you said something that 19 interested me. You said -- you used an analogy that when 20 you look at Carson's decision making process that he 21 engaged in about deploying CMU, to you it's much like a 22 police officer exercising a right or a power of arrest 23 based on -- on what that officer's state of mind is, 24 right? 25 A: Clearly, I think that the actions
1081 that he took subsequently were based on what he thought 2 was accurate at that time. 3 Q: No, but I'm -- I'm simply trying to 4 refresh your memory because I have a question about what 5 you said; that you likened that, you used the metaphor, 6 or metaphor is the wrong word, you used, perhaps, the 7 best word is analogy, of a scenario where you no more 8 would question a police officer who had a subjective 9 state of mind about power of arrest than you would 10 question Carson who had certain things in his mind when 11 he deployed CMU, am I right? 12 A: Well, I think he -- I think there's - 13 - there are similarities to that, yes. 14 Q: Well, because that's why you raised 15 it Mr. Rosenthal? 16 A: Indeed. 17 Q: Right. He didn't raise it to you, 18 you raised it to him? 19 A: And, I think the processes would be - 20 - that was something that I would be familiar with so I 21 would think his process would be something similar to 22 that. 23 Q: And what I'm asking you is this, you 24 do know today and you knew back then that routinely 25 courts are called upon and have ruled that the power of
1091 arrest has a subjective component, what was actually in 2 the officer's mind, but an objective component as well. 3 We're expected to assess whether objectively it was 4 reasonable for the officer to add one (1) and one (1) and 5 get two (2), you know that? 6 A: When you -- when you talk about the 7 various legalities involved, I can't say as I do know 8 that at this point. 9 Q: Thank you. In terms of an objective 10 component, the idea of the objective component is so that 11 anyone assessing what the officer did in exercising a 12 power of arrest is using a measure of reasonableness. 13 Isn't that what your understanding is? 14 A: Yes. 15 Q: All right. So, you know and knew 16 back then that when looking at what Carson did, you're 17 not simply supposed to look at what Carson believed, 18 you're supposed to make sure what he believed was 19 reasonable. 20 A: Yes. 21 Q: All right. And so, I take it that 22 when we look at and analyse the deployment that day, we 23 should be looking at it through the lines of what was in 24 Inspector Carson's mind at the time and whether what was 25 in his mind was reasonable, shouldn't we?
1101 A: Yes, I guess so. 2 Q: All right. And may I ask you a 3 question based on your answers to Mr. Rosenthal: Did you 4 do that or did you simply say that was what was in 5 Carson's mind and abandon the reasonableness part of it? 6 I just want to know which one you did? 7 A: I think I probably did. Again, I'm - 8 - I'm trying to think back to that particular time and 9 put my mind to it, but it would seem to me that I would 10 have tried to learn about the circumstances at the time, 11 especially through information that I had -- 12 Q: So -- 13 A: -- put myself in -- in Inspector 14 Carson's position. But it's very, very, very difficult 15 to do that since I was not there and I was not aware of 16 what he was addressing at that time. In hindsight... 17 Q: Yes? In hindsight? 18 A: In hindsight when certain issues 19 appear not to be correct, that clouds my judgment in 20 trying to decide if what he -- if -- if his approach was 21 reasonable. 22 Q: Would you agree with me that in terms 23 of what analysis you were conveying to Mr. Rosenthal that 24 perhaps, mistakenly, you mistakenly conveyed to Mr. 25 Rosenthal that the only thing we should look at was what
1111 was in Carson's mind and not what was reasonable? 2 You perhaps mistakenly did that? 3 A: Well, I didn't expand on it. 4 Q: Right. 5 A: And I certainly don't have the 6 ability to -- to dissect the -- the law and the court 7 decisions and explain it quite as well as you, but I hope 8 that what I would do would fall within that ambit. 9 Q: Well, I appreciate the -- the 10 compliment, but based on my take on your articulation 11 you're well above me, sir. 12 In terms of where we go with the 13 reasonableness component of this, you'd agree with me 14 that one (1) of the factors you should have assessed at 15 the time and the Commissioner must assess now is whether 16 whatever misinformation Inspector Carson had, whether it 17 was misinformation he ought to have known better about. 18 You would agree that that's an important 19 question? 20 A: Yes. 21 Q: In other words, if Inspector Carson 22 thought that five (5), ten (10) Natives attacked randomly 23 a private citizen's car out there, while they're in the 24 car, with baseball bats, when a simple review of a police 25 report or an interview of the officer who took the
1121 report, would have told him something different, then 2 that would feed into the reasonableness of his actions, 3 wouldn't it? 4 A: Yes, it would. 5 Q: All right. Do you recall ever 6 undergoing that kind of process yourself in assessing 7 Carson's actions? 8 A: I can't recall. 9 Q: And in terms of what we're doing here 10 today, would you agree that it's very important that it 11 enters the analysis at this stage. 12 A: Absolutely. 13 Q: And the reason it's important that it 14 enters the analysis at this stage is because if and I say 15 "if" because that's ultimately up to the Commissioner. 16 If it turns out that the misinformation Inspector Carson 17 was operating on was misinformation that he didn't need 18 to be operating on. 19 That he could have had better information. 20 Not perfect information but better information. And 21 there were reasonable ways to accomplish that. Then that 22 would be very important towards preventing future deaths, 23 wouldn't it? 24 A: I absolutely agree with you. 25 Q: That the deployment of the CMU, if it
1131 was predicated on misinformation that if the OPP had been 2 more diligent or more careful about how they collected 3 information, might not have happened. 4 That would be very significant, wouldn't 5 it? 6 A: It would be significant, yes. 7 Q: Well, would you -- I -- I apologize 8 for being picayune with you but, in fairness to my 9 question, it would actually be very significant, wouldn't 10 it? Because it would mean that the deployment of CMU 11 didn't have to happen and it was based on misinformation 12 that didn't need to have been in existence. 13 So that's very significant, wouldn't you 14 agree? 15 A: Yes, I agree. 16 Q: Okay. Now Ms. Murray, who really 17 runs the show, isn't with me today and so I'm going to 18 fumble a little bit as I find a passage. 19 20 (BRIEF PAUSE) 21 22 Q: We heard from Inspector Carson on his 23 views in relation to the deployment of CMU and I just 24 want to read a brief passage by him to you. And I want 25 to do it without spilling all the binders that I'm piling
1141 up in front of me, sir, so I'm going to do this really 2 slowly. 3 4 (BRIEF PAUSE) 5 6 Q: It's always these magic moments, when 7 you're looking for something and you're hoping that if 8 you fill the air long enough you'll find it. And then 9 every now and then the magic moment doesn't turn out and 10 you don't find it. I'm going to abandon the search at 11 this point and bring you back to it, subsequently. 12 But I want to share something with you and 13 I'll ask you to take my word for it and you can be sure 14 of one thing, counsel will be on their feet if I get it 15 wrong. 16 Inspector Carson, in answer to my 17 questions, in a very, what I thought, was candid way and 18 it was quite poignant and I'm sorry I'm not going to have 19 the passage to read to you. 20 I said to him, based on everything you 21 know now, right? With the lens of hindsight of course, 22 but based on everything you know now, are you sure you 23 would have deployed CMU that night? And his answer -- 24 the answer that Inspector Carson very candidly I thought 25 gave was, I'm not sure I would have.
1151 A: I -- you really don't need to double 2 check on that because I completely remember that answer. 3 Q: I -- I appreciate your candour. 4 A: And I think he was being extremely 5 honest. 6 Q: And I appreciate your candour and I 7 appreciate counsel who are all helping me, handing me 8 transcripts. I appreciate your candour for this reason, 9 sir. That's not an easy concession to make. 10 A: It is not. 11 Q: Because, ultimately, at the heart of 12 the death of Dudley George, is a clash that occurred 13 between CMU and the occupiers? 14 A: Correct. 15 Q: And, of course, while the occupiers 16 could never be free from any blame or criticism; that's 17 impossible, they're not perfect, the clash wouldn't have 18 happened if CMU had not been deployed, correct? 19 A: I think that's correct. 20 Q: And therefore, the decision to deploy 21 CMU must under -- come under very close scrutiny, 22 correct? 23 A: Yes. 24 Q: And would you agree with this, that 25 if it turns out that the incident commander, as he has in
1161 this case, says, you know, based on the information I 2 have now, I'm not sure I would have done it. That means 3 that, called into question, certainly in these 4 proceedings, were the information gathering techniques 5 used at the time? Would you agree with that? 6 A: I would agree with that. 7 Q: And if it turns out that those 8 information gathering techniques -- it's not just that 9 they weren't perfect because you -- you and I know that 10 the real world isn't about perfection, right? 11 A: Right. 12 Q: Correct? But you and I also know 13 that there are certain things that we can do to improve 14 the world, right? 15 A: Yes. 16 Q: And without looking for perfection we 17 can actually improve things, right? 18 A: Right. 19 Q: And there are better ways to build a 20 mousetrap sometimes? 21 A: Yes. 22 Q: Other times it's simply not 23 realistic, correct? 24 A: Correct. 25 Q: And if there were better ways and are
1171 better ways to build a mousetrap in relation to the 2 intelligence gathering function that occurred during the 3 Ipperwash incident, that would be very significant, 4 correct? 5 A: That would be very significant. 6 Q: And the reason it's so significant is 7 because we've heard, from the incident commander, that if 8 he knew then what he knows now, he might not have 9 deployed CMU, correct? 10 A: Correct. 11 Q: Example, the baseball bat incident, 12 correct? 13 A: Yes. 14 Q: Let me ask you something else. Had 15 you focussed your mind on potential frailties in 16 intelligence gathering at the time? 17 A: Yes, I think that's why we initiated 18 a study on emergency preparedness and I believe that's 19 one (1) of the components. 20 Q: And is it fair to say that it would 21 be one (1) of the areas you think that the OPP may have 22 been deficient in, in September 1995, at the Ipperwash 23 incident? 24 A: Yes. 25 Q: And would you agree with me, in that
1181 very candid acknowledgement, built into that 2 acknowledgement, is the recognition that human frailty 3 will always be a reality of life, correct? 4 A: Can't be avoided. 5 Q: That's right. We're not computers or 6 robots and therefore we're not, you know, capable of 7 measuring every action we do with 100 percent precision, 8 correct? 9 A: Correct. 10 Q: But while that's built into it, what 11 you're really telling us is something more than that. 12 You're not just telling us that we weren't perfect, 13 you're actually saying you're looking at it and on 14 reflection this should have been done better, right? 15 A: I think with respect to the 16 intelligence gathering and -- and assessing, it could 17 have been done better. 18 Q: And that man's brother died, yes? 19 A: Yes. 20 Q: And so, when you say, "It could have 21 been done better," in your own mind, "could", because 22 we're talking about a death, really means, "should," 23 doesn't it? 24 A: Yes, I think we have a responsibility 25 to look at it and to improve to the degree that's
1191 possible. 2 Q: And now, getting back to the 3 specifics, though, because I -- that's a generality 4 that's very fair, but I want to be specific. 5 In this case, from the perspective of 6 intelligence gathering during the Ipperwash incident, the 7 OPP should have done better, correct? 8 A: I think so, yes. 9 Q: All right. And I thank you for your 10 candour and what that tells, in my respectful submission 11 to you, and I'm asking you to respond to this, what that 12 tells us is that if the information gathering process 13 were better, what information the incident commander, at 14 the time, had available to him, might have been 15 different? 16 A: Yes, it might have. 17 Q: And now, to go to your analogy you 18 gave to Mr. Rosenthal before, if the information base had 19 been different in Carson's mind, he may very well have 20 chosen not to deploy CMU, correct? 21 A: I think that's very true. 22 Q: Mr. Rosenthal -- and I'm going to 23 finish on the Rosenthal area because I -- and -- and -- 24 you answered some interesting areas and I -- and I want 25 to make -- and I don't want to ask you later when you've
1201 forgotten or the Commissioner's stuck balancing a number 2 of things in the air, so I'm -- I'm trying to stay 3 focussed for a moment, uncharacteristically so, perhaps. 4 Would you help me on this? Could you 5 assist me, when you talked about Tab 75 -- could you pull 6 Tab 75 up for a minute? 7 8 (BRIEF PAUSE) 9 10 A: Yes, I have it. 11 Q: When you talk about Tab 75, the 12 public statements, did you discuss with Mr. Rosenthal the 13 level of authorization that SIU gave you to make this 14 statement at the time that you did? Did you discuss that 15 with Mr. Rosenthal? 16 A: I don't think I did. 17 Q: I didn't think you did either, but I 18 was -- 19 A: No. 20 Q: -- monitoring it electronically and I 21 didn't want to get it wrong. 22 I need to understand that because there's 23 a couple of things that are built into that question and, 24 of course, everything's tactical, I concede that to you 25 sir.
1211 But there's a couple of things that are 2 built into the question. The first thing built into the 3 question is you and I can agree, as different members of 4 the justice system, that the notion that an investigation 5 finishes when a charge is laid is completely wrong, isn't 6 it? 7 A: That's true. 8 Q: Okay. Because we know that an 9 investigation is ongoing right through a trial, yes? 10 A: Yes. 11 Q: In fact, an investigation can be 12 ongoing through a trial right up to appeals? 13 A: It could be, yes. 14 Q: Because in an appeal scenario, 15 somebody want to may -- may want to put in fresh 16 evidence? 17 A: Yes. 18 Q: Does this sound familiar? 19 A: Yes. 20 Q: Yes. It sounds like the Deane case. 21 A: It could be, yes. 22 Q: Well not could be, it was; that's 23 what happened. 24 A: That may very well be, I was not 25 involved in respect to Mr. Deane's appeals or the --
1221 Q: He filed fresh evidence. 2 A: That may very well be. 3 Q: All right. 4 A: If you tell me that, I agree with 5 you. 6 Q: It's part of the materials before the 7 Commissioner. The bottom line is this, it is standard 8 knowledge, standard wisdom among investigators that an 9 investigation is always ongoing while the proceedings are 10 before the Courts; isn't that right? 11 A: I agree. 12 Q: And it's a particularly important 13 principle when it comes to crime prevention, because 14 witnesses may well come forward after charges have been 15 laid, but before it goes to trial? 16 A: That's true. 17 Q: Defence lawyers don't get to get up 18 and trail and say, hey, wait a minute. You got that 19 statement after the charge was laid, so you can't use it. 20 Do they -- they -- 21 A: I don't think so. 22 Q: No. Your standard response to that 23 defence lawyer would be, wait a minute, investigations 24 are ongoing, right? 25 A: Right.
1231 Q: Okay. Now let's take ourselves to 2 the facts here. Special Investigations Unit investigates 3 the incident, yes? 4 A: Yes. 5 Q: They lay a charge? 6 A: Yes. 7 Q: And they lay a charge which tells you 8 the matter is going to trial? 9 A: Yes. 10 Q: Would you agree with me that at the 11 point in time you learned that a charge was laid, you 12 knew an investigation was ongoing? 13 A: I -- with respect to this statement, 14 I contacted SIU before I held my press conference and I 15 told them -- 16 Q: I'm sorry, sir. I do need an answer 17 to my question first and then maybe you can go to some 18 other question, but my -- my -- I just wanted to know if 19 you knew an investigation was ongoing? 20 I just want to know that. 21 A: I think I concluded that when the 22 charge was laid, they may have completed their 23 investigation; I think that's what I -- what I felt. 24 Q: So, I'm confused by that, because I 25 thought we just went over this quite carefully.
1241 A: Well, I know that -- 2 Q: Were the charges -- 3 A: -- it can be -- that it can be 4 ongoing, but what I was trying to explain was that I 5 contacted SIU -- 6 Q: All right. 7 A: -- and advised them I was going to 8 issue a statement and what my feedback was from them was 9 that was not an issue any more to them. 10 Q: All right. Did you canvass the 11 statement you chose to issue with them? 12 A: I think I -- the individual that I 13 spoke to was the chief investigator. His name was James 14 Harding. 15 Q: Yes. 16 A: And I think I reviewed with him what 17 I was going to say. 18 Q: All right. 19 A: I know that he did call me afterwards 20 and say absolutely fine, we don't have a problem with 21 that. 22 Q: Okay -- 23 A: We realize that you needed to say 24 something, that's fine. 25 Q: All right. So you then did take some
1251 precautionary steps with respect to -- 2 A: I did. 3 Q: -- the SIU? And I appreciate your 4 answer on that. 5 I want to look at the statement for a 6 moment, if we can. Now I'm going to tread where Mr. 7 Rosenthal tread, but because it's fresh I want to -- 8 we're going to go back to areas I was on before, but I 9 just want to create some level of continuity in the 10 evidence. 11 Assist me with this. The idea this 12 statement was to clarify the circumstances surrounding 13 the incident at Ipperwash, correct? 14 A: To the degree that I could, yes. 15 Q: All right. You knew in doing that, 16 that you were, in essence, treading into facts relating 17 to ongoing proceedings and an ongoing investigation, 18 right? 19 A: I don't think I spoke of anything 20 that I can think of that I thought was evidence in the -- 21 in the upcoming trial. 22 Q: Well, I'd like to unpack that for 23 moment and see -- see where we go. But whatever you did 24 say in the statement, you knew the context was an 25 upcoming trial and an ongoing investigation. That's all
1261 I want to understand. 2 A: Well I know, in general terms, that 3 investigations don't necessarily stop when charges have 4 been laid. And that was why I took the precaution of 5 calling to ensure that if I made a statement, it wouldn't 6 be -- it wouldn't impede any investigation. 7 Q: All right. The reason I ask that is, 8 in terms of the construct of your public statement, which 9 is located at Tab 75, it depicts a situation that the OPP 10 was faced with, doesn't it? 11 A: I think so. 12 Q: And -- and thus provides context for 13 the shooting by Mr. Deane of Dudley George, doesn't it? 14 A: There is certainly comments that 15 surround the activities that occurred that night. 16 Q: Wasn't -- wasn't the intention to 17 give context to it? Wasn't that the idea? 18 A: Was to explain, yes. 19 Q: The context to the shooting 20 perpetrated by Kenneth Deane? 21 A: To some extent. I'm trying to read 22 through what I said. I see I talked about various things 23 which I don't think were connected to the shooting. 24 Q: I -- I didn't say that it was 25 exclusive, I'm just asking.
1271 A: I -- I'm trying to look through it 2 quickly. 3 Q: Oh, okay. That's fine. Don't do it 4 quickly, sir. And Mr. Commissioner will tell you this. 5 When you're being asked about a document it's very 6 important you feel free to look at it. Because I'll be 7 honest with you, I'm going to be critically crossing you 8 on this issue. 9 So I think you should take your time and 10 read it. 11 12 (BRIEF PAUSE) 13 14 COMMISSIONER SIDNEY LINDEN: We're going 15 to adjourn for lunch at twelve o'clock. Is that all 16 right? 17 MR. JULIAN FALCONER: That's fine, 18 whatever you -- 19 COMMISSIONER SIDNEY LINDEN: Would this 20 be -- should we adjourn a little early to give you -- 21 MR. JULIAN FALCONER: Yes. That would be 22 very helpful to me. Yes. 23 COMMISSIONER SIDNEY LINDEN: If he's 24 going to be examined on it critically I think you should 25 take the time to read it.
1281 MR. JULIAN FALCONER: That -- that's 2 fine. 3 COMMISSIONER SIDNEY LINDEN: I'm going to 4 adjourn for lunch now. It's five to 12:00. 5 THE REGISTRAR: This Inquiry stands 6 adjourned until 1:15 p.m. 7 8 --- Upon recessing at 11:55 a.m. 9 --- Upon resuming at 1:26 p.m. 10 11 THE REGISTRAR: This Inquiry is now 12 resumed. Please be seated. 13 MR. DERRY MILLAR: Commissioner, before 14 we begin, there's just a scheduling issue that -- that we 15 have. And the concern is we have a witness that we're 16 calling tomorrow when Mr. O'Grady is done. 17 And I'm pleased to advise you that as a 18 result of my inquiries of -- of Counsel that Mr. Ross 19 thinks that he'll be no more than an hour. Mr. Henderson 20 based on what's happened will not have any cross- 21 examination. Mr. Horner will have no more than thirty 22 (30) minutes and presently Mr. Sandler estimates about 23 fifteen (15) minutes in reply depending on what else 24 happens. 25 So, that's about an hour and forty-five
1291 (45) minutes and -- and Mr. Falconer is, with some arm 2 twisting, has said that he'll be done by eleven o'clock 3 tomorrow. 4 So, theoretically hopefully we'll be at 5 our next witness by two o'clock tomorrow. We're going to 6 sit until 4:30 so that would be two and a half hours. 7 And so I think we're on schedule for that witness. 8 COMMISSIONER SIDNEY LINDEN: Yes. I 9 understand the witness would be reluctant to come up 10 unless there was some reasonable certainty of being 11 called. The witness is coming from Toronto I understand? 12 MR. DERRY MILLAR: He is and that's why 13 we're trying to figure it out. If we thought that -- 14 that we couldn't call him, we wouldn't have him come up. 15 But -- 16 COMMISSIONER SIDNEY LINDEN: But it looks 17 like we will have at least a couple of hours and possibly 18 more -- 19 MR. DERRY MILLAR: Yes. 20 COMMISSIONER SIDNEY LINDEN: -- for that 21 witness, so I think we should call him. That's fine. 22 23 (BRIEF PAUSE) 24 25 COMMISSIONER SIDNEY LINDEN: Not to put
1301 any pressure on anybody of course. 2 MR. JULIAN FALCONER: Nature of the 3 business, Mr. Commissioner. 4 5 CONTINUED BY MR. JULIAN FALCONER: 6 Q: Good afternoon, Mr. O'Grady. 7 A: Yes. 8 Q: Mr. O'Grady, I asked you to review 9 Tab 75, your public statement. Did you get an 10 opportunity to do that? 11 A: I've done that, yes. 12 MR. JULIAN FALCONER: A brief indulgence, 13 Mr. Commissioner. 14 COMMISSIONER SIDNEY LINDEN: Fine. 15 16 (BRIEF PAUSE) 17 18 CONTINUED BY MR. JULIAN FALCONER: 19 Q: I'm going to just ask, 20 foundationally, you'd agree with me now that you've 21 looked at it, but the intention and in fact the affect of 22 the public statement remarks you made on July 24th, 1996, 23 was to, among other things, provide context to the 24 shooting by Kenneth Deane of Dudley George? 25 A: It was to provide context to the --
1311 to all of the activities of the night of September the 2 6th and that would include the shooting of Dudley George. 3 Q: All right. And it was no fluke that 4 that public statement came on the heels of the issued 5 decision by SIU to charge Kenneth Deane? 6 A: No it was not. 7 Q: And it's fair to say that once that 8 decision was made by SIU, first of all, that would have 9 been a fairly traumatic decision in terms of its impact 10 on the OPP? 11 A: I think so. 12 Q: All right. And that in that 13 circumstance, you felt it, as leader of the OPP, to put 14 some context to the circumstances from the point of view 15 of the OPP? 16 A: That was my hope. 17 Q: All right. And you felt you owed 18 that to the men and women of the OPP? 19 A: I certainly did. 20 Q: And so that was a major priority in 21 terms of what drove or motivated this public statement? 22 A: That was a major consideration, yes. 23 Q: All right. But you knew, as you did 24 this public statement, as you drafted it, and as you read 25 it out publicly, that no matter what loyalty you may have
1321 to the men and women of the OPP, you still knew you had 2 an obligation to tell the truth? 3 A: I definitely did. 4 Q: Yes. And that obligation never 5 ceases? 6 A: Never ceases. 7 Q: And you'd agree with me that telling 8 the truth isn't just a matter of form, that is that each 9 word is accurate, the message has to be honest? 10 A: Yes. Not to say that it can always 11 be done, because we make mistakes, but certainly that was 12 what I had in mind at the time. 13 Q: And may I point out when I use the 14 word "honest" it doesn't have to be perfect, it just has 15 to be motivated by good faith. 16 A: Yes. 17 Q: So, when I "honest", you have to, 18 yourself, believe that what you're saying is accurate and 19 honest. 20 A: Yes. 21 Q: And you did? 22 A: I hope I did, yes. 23 Q: All right. There were guns at 24 Gustafson Lake, weren't there? 25 A: I -- yes, there were.
1331 Q: There were guns at Gustafson Lake. 2 There were guns to the point that a major leader in the 3 Aboriginal community spoke out against the occupiers at 4 Gustafson Lake; isn't that true? 5 A: That may be true, I'm not positive of 6 that, but I wouldn't -- I wouldn't be at all surprised if 7 that's the case. 8 Q: There were reports -- confirmed 9 reports, that forestry workers employed by the Federal 10 Government were fired upon by occupiers at Gustafson 11 Lake; isn't that true? 12 A: I -- it may very well. I just -- I 13 just can't answer that question with -- in trying to be 14 as truthful as I can now. 15 I wouldn't deny that that's the case; I 16 just don't remember at this point. 17 Q: But you -- 18 A: But I knew there were guns there. 19 Q: And you knew there were shootings 20 and -- 21 A: Yes. 22 Q: Yes. And you actually dispatched a 23 representative from the OPP to attend at Gustafson. 24 A: Exactly. 25 Q: And that was to provide you an
1341 information flow, along with other senior officers as to 2 what was going on at Gustafson. 3 A: That's true. 4 Q: And so you made it your business to 5 know what was going on at Gustafson? 6 A: Yes. 7 Q: And so you knew that there were 8 occupiers with guns who shot at government people, didn't 9 you? 10 A: I knew there were -- there were 11 occupiers with guns that shot at people. 12 Q: All right. Now, I'm going to suggest 13 something to you, that no matter what regard one may have 14 on the facts of this case, at the time in September 1995, 15 there was not one (1) gun seized from the occupiers 16 following the September 6th shooting of Dudley George; 17 true or false? 18 A: I don't know of any guns seized. 19 Q: You're the Commissioner of the OPP at 20 the time. 21 A: Yes. 22 Q: If a gun was seized by the police, 23 wouldn't you know about it? 24 A: Not necessarily so. There are guns 25 seized across this province all the time that I wouldn't
1351 know about. 2 Q: Okay. So, it's your evidence that 3 there may well have a gun seized by a representative of 4 the OPP in relation to the shooting of Dudley George, a 5 gun by the occupiers, and you didn't know about it? 6 Is that your evidence? 7 A: I don't know that that's the case. 8 COMMISSIONER SIDNEY LINDEN: He didn't 9 say that. 10 MR. JULIAN FALCONER: No, okay, that's 11 fair, I've pushed -- 12 THE WITNESS: I just don't know. 13 COMMISSIONER SIDNEY LINDEN: He didn't 14 say that. 15 MR. JULIAN FALCONER: -- a little far. 16 I've pushed it a little far, sir, only to challenge you 17 on the -- 18 COMMISSIONER SIDNEY LINDEN: He said he 19 didn't know of any guns. 20 21 CONTINUED BY MR. JULIAN FALCONER: 22 Q: I think it's a fair -- a fair comment 23 by me, not a spin or a submission. It's a fair comment 24 by me that it's an undisputed fact that no gun was seized 25 by any occupier by the OPP following the shooting of
1361 Dudley George. 2 A: Well, I have never said publicly that 3 there was and I didn't say that in this statement, so -- 4 Q: I didn't say you did -- 5 A: -- so I had -- 6 Q: We're not there yet -- 7 A: -- I had no comment on it at all. 8 Q: Right. But you -- you do know that 9 that's an undisputed fact? 10 A: I know that now, yes. 11 Q: Yes, all right. Now, at the time in 12 September 1995, some facts had made their way to you 13 about the incident, right? 14 A: Yes. 15 Q: In fact, you had the benefit of 16 whatever information Chris Coles had by mid to late 17 September 1995? A: Yes. 18 Q: And you knew that Chris Coles was 19 someone you could count on to give you relevant 20 information? 21 A: Yes. 22 Q: And he, in fact, gave you an 23 executive summary and you read it? 24 A: Yes. 25 Q: And he gave you that executive
1371 summary in mid to late September 1995? 2 A: That's true. 3 Q: And the executive summary makes 4 absolutely no reference to the seizure of guns by the 5 occupiers -- I'm sorry, seizure of guns belonging to the 6 occupiers by the OPP, the SIU or anyone else, correct? 7 A: Correct. 8 Q: All right. So, your information 9 base, as of mid to late September 1995, is there's no 10 guns seized by the police, correct? 11 A: By late September '95, that's 12 correct. 13 Q: Right. And then flash forward to 14 July 1996. Now, we're ten (10) months later, correct? 15 In the ten (10) month interval between 16 late September 1995 and July '96, does your information 17 base change as to the existence of guns in the hands of 18 the occupiers? 19 A: No, it does not. 20 Q: So, by July 1996, you still have no 21 situation where a single firearm belonging to the 22 occupiers is seized by the police or the SIU? 23 A: That's true. 24 Q: All right. That's in stark contrast 25 to Gustafson Lake, isn't it?
1381 A: Yes, it is. 2 Q: Right, and you know that Gustafson 3 Lake was about an armed occupation where members of the 4 Aboriginal communities actually engaged in armed conflict 5 with government authorities, you knew that? 6 A: That's right. 7 Q: And the occupation of Ipperwash Park, 8 certainly on the evidence at the time, beyond the 9 suggestion of some muzzle flashes, beyond that, there was 10 nothing to compare it to Gustafson Lake in terms of an 11 armed conflict; am I right? 12 A: It certainly wasn't comparable to 13 Gustafson Lake. I would like to make a point. 14 What I was putting in my message was an 15 explanation of our thought processes prior to September 16 the 6th to try to explain why we were concerned about 17 these issues not -- afterwards we knew, but this was 18 prior to. 19 Q: Thank you for that. I am going to 20 now go to the statement you -- because you're -- you're 21 moving us a step ahead and I understand it's quite 22 logical for you to move that step ahead. 23 But, I started with asking you about 24 Gustafson Lake because you know, having had the lunch 25 hour to review your public statement, that with virtually
1391 -- without a skip in a line you moved from Ipperwash to 2 Gustafson Lake; isn't that right? 3 A: It's in the -- in the paragraph 4 following that. But the point I was trying to make is, 5 what I'm trying to explain in this document is not what's 6 happening on the date of the document, but what caused 7 the OPP to decide that they needed various things prior 8 to, as a contingency plan, because things had been 9 reported in the media which suggested that it seemed to 10 be unnecessary or unusual. 11 And I was trying to explain why we 12 prepared in the manner we did and this would be prior to 13 September the 6th. 14 Q: All right. I'm taking you to the 15 public statement which is Exhibit P-612 and it's at Tab 16 75 of Commission Counsel's documents. And it is -- I 17 don't have the document number in front of me, but I 18 think we've all got it. 19 MR. DERRY MILLAR: 1001163. 20 MR. JULIAN FALCONER: 1001163? 21 22 (BRIEF PAUSE) 23 24 MR. JULIAN FALCONER: And, Mr. 25 Commissioner, somehow the way the electronic data flows
1401 from our system, when we print out there's apparently a 2 monkey in the -- in the computer that keeps stopping the 3 document numbers, because Mr. Millar has accurately 4 identified the fact that all of our documents, when they 5 print out from the database, come with no document 6 number. And that's why you see me struggle. 7 I look down and I see no document number. 8 I don't know, it's a -- it's and active monkey, he -- he 9 sees, hears, and talks evil. 10 11 CONTINUED BY MR. JULIAN FALCONER: 12 Q: All right. Mr. O'Grady, if you look 13 at page 1? 14 A: Yes? 15 Q: July 24th, 1996 -- 16 A: Yes. 17 A: -- Ontario Provincial Police remarks 18 of T. B. O'Grady re: Ipperwash Provincial Park. There's 19 no doubt about when you do this? 20 A: Yes? 21 Q: All right. So -- and -- and that's 22 important, right, because of July 1996, you have the 23 benefit of ten (10) months of accumulation of 24 information? 25 A: Yes.
1411 Q: All right. Now, at page 1 -- and 2 this is all in the context of a response to the decision 3 to lay charges against Kenneth Deane, right? 4 A: No, I think it's -- it indicates very 5 clearly that it's purpose is to clear up what we thought 6 were some misconceptions that had been appearing in the 7 media. 8 Q: But it's in the context? 9 A: But it occurred immediately after he 10 was charged. 11 Q: Right. 12 A: And, rightly or wrongly, I came to 13 the conclusion that after he was charged I could say a 14 few things without interfering with SIU. I contacted 15 them and they told me that seemed to be the case. 16 Q: And -- and that's fair that you 17 imparted that to us. 18 A: Yes. 19 Q: And -- and I, you know, how can I 20 argue with that? You sought permission and they gave it 21 to you, fair? 22 A: Right. 23 Q: Okay. Now, at page 1 -- at page 1 24 you say -- you spend seven (7) paragraphs at page 1 and 25 most of the seven (7) paragraphs is dedicated to first
1421 saying that you were silent up until the decision 2 yesterday, that's the first three (3) paragraphs if we 3 could turn to page 1? 4 Page 1 is marked, "1," it's the next page. 5 Thank you. 6 And you notice how: 7 "during the past years since the 8 occupation and the fatal shooting a 9 considerable amount of misinformation 10 concerning the actions of the OPP has 11 been circulating." 12 Do you see that? 13 A: Yes, I do. 14 Q: "During that time the OPP remained 15 silent"? 16 A: Yes. 17 Q: All right. 18 "We remain silent, not because we had 19 something to hide, but because the OPP, 20 as part of the Criminal Justice System, 21 must respect due process and should not 22 say anything which could be perceived 23 as interfering in ongoing 24 investigations." 25 A: Correct.
1431 Q: "Since the Director of SIU announced 2 his decision yesterday, I'm now able to 3 set the record straight in certain 4 areas and I will do so." 5 A: Yes. 6 Q: Now, you'd agree with me that that 7 statement isn't entirely accurate, that the OPP remained 8 silent? 9 A: Well, if you're speaking of the press 10 release that was released on September the 7th, yes. But 11 when I said over the last ten (10) months, I thought that 12 was generally fair? 13 Q: Just generally, but not actually 14 specifically accurate? 15 A: Well, I suppose I could have said 16 nine (9) months and so many days, but I didn't. I said 17 the last ten (10) months. 18 Q: And the only reason I ask you that is 19 we've heard from now deputy Commission Carson -- deputy 20 Commissioner Carson about a, quote/unquote, "window of 21 opportunity," that the OPP took advantage of, following 22 the death of Dudley George, following his shooting. 23 A window of opportunity to put the OPP's 24 version of events out there. 25 A: Yes.
1441 Q: Did you read that in his evidence? 2 A: I understand that, yes. 3 Q: Yes. Did you ever teach or train 4 anybody to use windows of opportunity to make public 5 statements about shootings that clearly and blatantly 6 trigger SIU's mandate? 7 A: No. 8 Q: Right. In fact, you wouldn't agree 9 with that approach, would you? 10 A: If I had my druthers today, the issue 11 from headquarters and the issue from -- from -- from 12 Forest would merely say the SIU was coming in. That's 13 all it would say and that would probably have been the 14 appropriate thing to do. 15 That wasn't done by him or I and in that 16 regard, I think we were in error. 17 Q: And that's very candid and fair of 18 you to acknowledge that. And one of the reasons, I'm 19 sorry I have to capitalize on it, just -- 20 A: All right. 21 Q: I'm trying to be a gentleman, but I 22 have to. One of the reasons it was an error is because 23 it actually made reference to facts which are integral 24 facts in the investigation; isn't that right? 25 A: It just should not have been done.
1451 If we had -- if we had stuck to what we really thought we 2 should be doing or what -- what is, in hindsight, the 3 most appropriate thing, we merely should have announced 4 the arrival of the SIU and said nothing else and then we 5 would not be put in the position of arguing whether we 6 had put misconstrued facts or not, but we didn't do that. 7 Q: And fair enough, and -- and I only go 8 to this for this reason. It is a reality that -- that 9 the press release that was issued described natives 10 attacking a vehicle with baseball bats, right? 11 A: Some of the information that was in 12 there was shown not to be accurate in due course and we 13 should not have done it. 14 Q: And that information, and that's why 15 I'm pausing on this, you have prescribed aboriginal 16 sensitivity training, you have, in fact, supported 17 publicly, not just here but as a Commissioner you 18 believed in that, correct? 19 A: Yes, I did. 20 Q: Cultural sensitivity is all about not 21 necessarily treating everybody the same, is it? 22 A: People can be treated equally but not 23 necessarily treated the same. 24 Q: And that's because you take a 25 sophisticated approach to understanding cultural
1461 sensitivity issues, right? 2 A: I don't know how sophisticated I am, 3 but I try. 4 Q: Right. And so one of the realities 5 you've come across is certain stereotypes are developed 6 about certain cultures; isn't that right? 7 A: That's true. 8 Q: And like it or not, we're getting 9 better as a society, but we have historically seen the 10 aboriginal community at times, in -- in a form of 11 savages. Isn't that true, at times? 12 A: I think we've seen movies like that, 13 yes. 14 Q: Yes. And it became part of our 15 cultural reality to cast them in that role and then to 16 take Roy Rogers or whomever, put a white hat on him, and 17 have him save the day; isn't that right? 18 A: There have been movies like that. 19 Q: And that was part of the American 20 psyche and, to a lesser extent, part of the Canadian 21 psyche; isn't that true? 22 A: I think that's accurate. 23 Q: And would you agree with me, 24 depicting a group of natives with baseball bats randomly 25 attacking a private citizen's car in the charged
1471 circumstances of the Ipperwash Park event, where there 2 had already been allegations that the OPP wasn't 3 enforcing the rule of law, would do nothing but conjure 4 up the image of those savages; isn't that right? 5 A: We should not have done it. 6 Q: And it would have had that effect, 7 potentially? 8 A: Potentially. 9 Q: And so that's one of the reasons it 10 was an error; isn't that right? 11 A: That's correct. 12 Q: In terms of the process that you did 13 undergo, you -- after stating that we were silent, in the 14 next paragraph you put the first misinformation, if we go 15 to the next paragraph -- 16 A: Yes. 17 Q: It's the fourth paragraph. 18 A: Yes, I'm reading it. 19 Q: You -- you stated: 20 "The first misinformation I'd like to 21 put to rest involves reports that the 22 OPP took its tactical direction from 23 government officials." 24 That was the first misinformation on your 25 hierarchy of issues; is that true or false?
1481 A: I don't know where I placed it on a 2 hierarchy, but it was important to me. 3 Q: Well, in your public statement -- 4 A: It's first -- it's first in this 5 statement, yes. 6 Q: And you used the word, "first." 7 A: Yes. 8 Q: Right. You say: 9 "The first misinformation I would like 10 to put to rest involves reports that 11 the OPP took its tactical direction 12 from government officials. 13 I am the Commissioner of the Ontario 14 Provincial Police and I do not take 15 tactical or operational direction from 16 the Government. Every police agency in 17 this province is accountable to 18 civilian authority, the OPP's 19 accountable to the Solicitor General. 20 We keep official's apprised of policing 21 situations in a broad framework. 22 That however does not include sharing 23 details of operation or plans 24 beforehand. The OPP would not risk the 25 safety of its officers by revealing
1491 such details on any operation." 2 Going to the next page, page 2: 3 "The OPP which receives broad policy 4 direction from the Ministry of 5 Solicitor General similar to that of a 6 police services board would not seek 7 operational direction from the Ministry 8 of the Solicitor General." 9 Do you see how -- for five (5) paragraphs, 10 the first substantive five (5) paragraphs you dedicated 11 your public statement to how the OPP did not take 12 direction from the government? 13 A: Yes. 14 Q: And would you agree with me to some 15 extent, it's reasonable for us to infer that at the time 16 in July 1996, that issue was front and centre for you? 17 A: There were many media reports and I 18 certainly wanted to set it straight. 19 Q: And you decided the first thing to 20 set straight was that issue? 21 A: Well I have to start someplace. 22 Obviously I started with that one. 23 Q: And you're not a stranger to 24 communication issues, right? You -- you know that 25 strategies and communication have certain realities to
1501 them. You -- you get advised by people on that all the 2 time when you're the commissioner; isn't that right? 3 A: I do get some advice. I -- I'm not 4 sure how astute I am but I certainly do get some advice 5 from time to time. 6 Q: And you know that one of the basic 7 messages is when you give a speech to people or issue a 8 commentary to people or speak publicly, one of the things 9 they remember most is what you said first and the next is 10 what you said last. Isn't that true? 11 A: I'm afraid I'm not that -- that 12 sophisticated on it but if you say that's correct, I'm 13 not in a position to argue. 14 Q: Fair enough. The reason I ask you 15 that is because of your answers yesterday, that's all. 16 You -- you said that you didn't have any real basis to 17 believe that there was a problem and -- and you actually 18 told us -- you told the Commissioner yesterday, that you 19 did not make either formal or informal inquiries about 20 improper political pressure on the OPP. That's what you 21 told us yesterday. 22 A: I can't recall that I made any formal 23 inquiries, no. 24 Q: Right. And you also said, well, sir, 25 to be fair to the facts -- you actually went further.
1511 You said: 2 "I did not because I didn't see there 3 was a problem." 4 That was your evidence yesterday, wasn't 5 it? 6 A: That's correct. 7 Q: And has it changed. Do you resile 8 from that today? 9 A: Given the -- the tape it might have 10 altered my mind somewhat. But at the time I was focussed 11 on, if I am running the Ontario Provincial Police and 12 somebody wants to influence the activities of the Ontario 13 Provincial Police from government, then they're going to 14 have to come to me to get that done. 15 And I knew at that time and I know now 16 that nobody did that. 17 Q: All right. And -- and you may have 18 understood my question. It's probably my fault and I 19 apologize. 20 What I asked you was, yesterday you said 21 that the reason you did not make formal inquiries or 22 informal inquiries about potential improper political 23 pressure on the OPP, was that you did not see a problem. 24 And therefore there was no reason to make inquiries. 25 That's what you said yesterday. I'm just
1521 asking do you resile from that or do you still take that 2 -- I'm not asking you if you take a different position 3 about the existence of political pressure. 4 I just want to know, when you described 5 your thinking to us yesterday, back then, you're thinking 6 back then, that you didn't make formal or informal 7 inquiries because you didn't see a problem. 8 When you told us that was your thinking 9 back then, do you resile from that today or do you agree 10 and confirm that that was your thinking back then? 11 A: My thinking was that it couldn't have 12 occurred -- 13 Q: Yes. 14 A: -- and therefore the media reports 15 needed to be false and that I needed to set the record 16 straight with respect to it, simply because I knew that 17 no one in authority or otherwise had approached me to 18 give me any direction on what should happen at Ipperwash. 19 Q: And for that reason because as you 20 put it, quote, "It couldn't have occurred," close quotes, 21 you just said that right? 22 A: Yes. 23 Q: For that reason, it couldn't have 24 occurred; that's why you didn't make formal inquiries or 25 informal inquiries?
1531 A: I didn't make them. 2 Q: And that's why, isn't it? 3 A: I was satisfied that there had been 4 no influence. 5 Q: Fair enough. Now, having made the 6 statements you made in the five (5) paragraphs, you then 7 go in that fifth paragraph and I'm at the top of page 2, 8 to refer to the Ministry of the Solicitor General 9 providing broad policy directions similar to that of a 10 police services board. 11 Do you see that? 12 A: Yes. 13 Q: And I'm going to have some questions 14 for you about this issue because I think a commissioner 15 who was a commissioner for ten (10) years in the OPP can 16 be of some assistance to the Commission and -- and I hope 17 to get -- I will get to that, but I just have a quick 18 question because I don't want to come back to the 19 document. 20 It's fair to say that, in your mind, the 21 reason you said this is that to you, the Ministry of the 22 Solicitor General serves a similar oversight function as 23 a police services board, correct? 24 A: Yes, and I said similar because it 25 isn't identical, but it's similar.
1541 Q: Fair enough, fair enough. And in 2 your mind, if we're to look for civilian oversight of the 3 OPP we look to the Ministry of the Solicitor General? 4 A: Correct. 5 Q: And in your mind, the only place 6 there exists oversight over the OPP is through the 7 Ministry of the Solicitor General? 8 A: Yes, except I think I -- I know what 9 your specific question is, but -- but you also know that 10 there are a variety of other pieces of legislation, et 11 cetera, that provide oversight to the police, too. 12 Q: They provide rules to the police, not 13 oversight, example, Criminal Code, powers of arrest. 14 A: That's what I'm getting at. 15 Provides -- 16 Q: Those are rules, they're not 17 oversights. 18 A: -- yeah, well they provide control. 19 Q: Okay. I see your point. 20 A: Yeah. 21 Q: And -- and so, with that 22 qualification -- 23 A: Yes. 24 Q: -- the rules come from many different 25 places.
1551 A: Yes. 2 Q: The only place oversight is provided 3 for is through the Ministry of the Solicitor General? 4 A: It's legislated. 5 Q: Right. And it's legislated only to 6 this extent, it just says, Subject to the direction of 7 the Solicitor General; isn't that right? 8 A: It's pretty broad, yes. 9 Q: Right. And that's it? 10 A: That's it. 11 Q: That's the oversight in a nutshell 12 for the OPP? 13 A: That's the legislation that deals 14 with it. 15 Q: Well, it's not just the legislation, 16 there is nothing else, when it comes to oversight of the 17 OPP; it just says, Subject to the direction of the 18 Solicitor General, isn't that right? 19 A: That's correct. 20 Q: It doesn't say the Deputy Solicitor 21 General will be a buffer who will not discuss things with 22 the Solicitor General or will be a buffer that the 23 Commissioner of the OPP is accountable to and the Deputy 24 Solicitor General shall not discuss operational issues 25 with the Solicitor General.
1561 There are no rules, correct? 2 A: It's absolutely silent in those 3 areas. 4 Q: Right. There's no meat on the bones 5 on what this oversight is to look like, correct? 6 A: That's correct. 7 Q: Going on to the next portion of the 8 statement you make reference to realities and -- and you 9 make a reference in the last sentence of the next 10 paragraph and I'm going to try to move quickly, Mr. 11 Commissioner, I apologize for the snail-like pace. I -- 12 I am sorry, it's just that I do believe and I apologize 13 if I'm wrong, there are some important issues in this 14 statement: 15 "It is not the responsibility of the 16 OPP or any other police agency to 17 negotiate 18 land claims." 19 Isn't that -- that's -- 20 A: Yes. 21 Q: And -- and your point is simple that 22 you can't solve that? 23 A: Exactly. 24 Q: But you did think that it was your 25 responsibility to negotiate a peaceful resolution of the
1571 Ipperwash incident? 2 A: I did. 3 Q: And you counted on that happening 4 much as it happened in previous cases? 5 A: I did. 6 Q: And, in fact, you've already candidly 7 acknowledged that up until the shooting the night of 8 September 6th, 1995 you thought it would resolve itself? 9 A: Yes. 10 Q: You didn't foresee this form of 11 clash? 12 A: I was hoping that I wouldn't. 13 Q: You were not only hoping, you 14 actually said, I thought it would work itself out the way 15 the others have. 16 A: Yes. 17 Q: Isn't that what you testified to? 18 A: Yes. 19 Q: So that's not a hope, that's actually 20 an expectation? 21 A: Yes. 22 Q: And one (1) of the reasons you had 23 that expectation is, in contrast to Gustafson Lake, you 24 didn't have a situation where members of the aboriginal 25 community, specifically these occupiers, were firing on
1581 police officers with guns or threatening them with guns; 2 this wasn't happening, correct? 3 A: Correct. 4 Q: Right. And you had access to either 5 incident commander Carson or his superiors who were 6 telling you Carson didn't believe that they were going to 7 do that, correct? 8 A: I thought it was going to be settled 9 as all -- I can't remember right at this time what Carson 10 believed or not, but it seemed to be proceeding well. 11 Q: In essence, it appeared that the 12 occupiers were not proposing a form of armed 13 insurrection; isn't that right? 14 A: I really -- at that time there were - 15 - I don't think there was any evidence to indicate that 16 other than, perhaps, a couple of occurrences in close 17 relationship to the Park that had occurred earlier. 18 Q: Right. But -- but it didn't trigger 19 alarm bells. You thought -- 20 A: I thought we were doing well. 21 Q: That's right. Now you stated in the 22 fourth paragraph: 23 "This approach has worked many, 24 many..." 25 I'm sorry:
1591 "This approach has worked many times 2 previously and appeared to be working 3 at Ipperwash, but unfortunately tragedy 4 occurred on September 6th." 5 A: Yes. 6 Q: And that's a reflection of your 7 expectation before the shooting? 8 A: Yes. 9 Q: Now last paragraph, page 2, 10 "The events during the two (2) years 11 previous to the occupation of the Park 12 afforded the OPP every reason to 13 believe that an armed occupation of 14 Ipperwash Provincial Park and all of 15 the public safety concerns that would 16 accrue from such an occupation, was a 17 very real possibility." 18 A: Yes. 19 Q: Now, I'm trying to -- it was a 20 possibility that the occupiers might arm themselves as in 21 Gustafson Lake, correct? That was a possibility -- 22 A: Possibility, yes. 23 Q: And we're talking about a rural 24 community where whites and non-whites routinely are armed 25 for purposes of non-violence related to hunting?
1601 A: Yes. 2 Q: Right. So there's no issue that 3 somebody might have a gun, right? 4 A: No, you're quite entitled to have one 5 for hunting. 6 Q: And in the rural communities, such as 7 Forest, Ipperwash and the surrounding areas, it's not 8 unusual that people hunt? 9 A: That's right. 10 Q: So the existence of guns alone is 11 proof of nothing? 12 A: It's not proof of anything wrong, but 13 it does tell you that there is access. 14 Q: That's -- 15 A: Guns are there. 16 Q: For white people? 17 A: For everybody. 18 Q: For everybody, because that's the -- 19 it's a cultural reality in more rural communities that 20 hunting is a reality and part of life. 21 A: Yes. 22 Q: Right. And access is an issue for 23 everybody, not just natives? 24 A: Yes. 25 Q: Okay. And having said that, the
1611 reason I ask you this, is when you use that word, "very 2 real possibility," in respect of an armed occupation of 3 Ipperwash Provincial Park, where do you get the armed 4 occupation? Where does that happen? 5 You had no information that -- that 6 occupiers had forced themselves onto the Park using guns. 7 That did not happen, did it? 8 A: Not that I am aware of, but I must 9 explain. If we look at the paragraph before that, we 10 would be remiss if we did not plan for any eventuality 11 that could jeopardize the public peace and safety. 12 So even though I thought it was going 13 well, I think I would have been foolish if I hadn't had 14 considered resources that might be required if, indeed, 15 we did have a problem and when we considered that there 16 had been shooting at Canadian Forces Base at Borden at a 17 helicopter. 18 We don't know or I don't know right now 19 who did it. There had been some violence on the grounds. 20 There was violence taking place elsewhere at Gustafson 21 Lake, there had been shootings taking place -- there was 22 shooting at Oka. 23 It just seemed to me that we would be 24 foolish if we thought it couldn't happen there, so 25 therefore we should be prepared and that's what we
1621 intended to do. 2 Q: You mean that it wasn't out of the 3 question that it could happen? 4 A: It could happen. 5 Q: Mr. Commissioner, there's a very real 6 possibility that my examination of Mr. O'Grady may take 7 us through next Monday. 8 Now, I pause there. I said that with 9 respect, Mr. Commissioner. 10 Mr. O'Grady, I'm not going to take it 11 through next Monday, but what I told Mr. Commissioner, 12 that there was a very real possibility, so everybody 13 looked at me like it was going to happen, right, 14 including you, you thought it was going happen, didn't 15 you? 16 A: I thought it was going to happen last 17 night? 18 Q: Right. But you thought it was going 19 to happen just now, because I told the Commissioner there 20 was a very real possibility that's what I was going to 21 do. 22 A: Yes. 23 Q: Right. Because I didn't say 24 possibility. I didn't say one of many options. I said a 25 very real possibility this is going to happen, so
1631 everybody turned around and went, well, the guy -- they 2 guy knows, he knows his brief. It's going to happen. 3 You told the world, in July 1996, that 4 there was a very real possibility that the natives were 5 involved in an armed insurrection, didn't you? 6 A: I didn't think I was. 7 Q: Were the words, "very real 8 possibility," your words? 9 A: Well they are now. I have to accept 10 responsibility for them. 11 Q: They weren't then? 12 A: I don't know. 13 Q: I would ask you, sir, to reconsider 14 that answer in the light of your decision to read from a 15 text that you no doubt read before you read it to the 16 world. 17 I ask you to reconsider whether these are 18 your words. 19 A: I am saying they are my words. 20 Q: Thank you. And at the bottom of the 21 page, the words, "very real possibility," are attached to 22 the words, "armed occupation." 23 A: Yes. 24 Q: Now there was no armed occupation, 25 was there?
1641 A: There was not. 2 Q: Now we move to the next page: 3 "In August '93, during the land dispute 4 for the Military Base at Camp 5 Ipperwash, not to be confused with 6 Ipperwash Provincial Park, an OPP 7 investigation was undertaken into the 8 damage sustained by a Military 9 helicopter by rifle fire from the 10 ground." 11 Right after the very real possibility of 12 the armed occupation, you refer to the firing of one (1) 13 bullet at a helicopter several years earlier don't you? 14 A: Yes. 15 Q: That's not a fluke is it? 16 A: I think I was just trying to put 17 together my reasoning at that time. 18 Q: Right. Armed occupation's going to 19 happen because a single bullet was fired at a helicopter 20 two (2) years earlier, right? 21 A: I just think I had to consider those 22 eventualities. 23 Q: Moving on, you refer to the incident 24 in July '95 where a school bus was driven through a door. 25 And you refer to the clash with a Military Officer in a
1651 jeep where the bus struck the jeep and pushed the jeep 2 back fifty (50) feet, right? 3 A: Yes. 4 Q: These are all forms of violence. The 5 top two (2) paragraphs at page 3. 6 A: Yes. 7 Q: All right. These incidents provided 8 every indication that violence would escalate, correct? 9 A: Yes. 10 Q: Would escalate? 11 A: Yes. 12 Q: In August 1995 a land claim dispute 13 at Gustafson Lake, three thousand (3000) miles away, 14 involving the RCMP was unfolding. 15 "Police agencies do not operate in 16 isolation and as a result I dispatched 17 an OPP detective inspector to British 18 Columbia to monitor this similar 19 situation." 20 In July 1996 you told the world that 21 Gustafson Lake was similar to Ipperwash and Ipperwash was 22 similar to Gustafson Lake; isn't that right? 23 A: I don't agree that that's what I did. 24 I told the world what our thought processes were prior to 25 September the 6th, as to why we would gather in resources
1661 to deal with them. At least that was my intention. 2 Q: You went onto the next paragraph: 3 "We were made aware that RCMP officers 4 had been fired upon and that they had 5 been saved from death or serious injury 6 by high grade body armour. 7 The RCMP had available to them APC's on 8 site for rescue purposes. It was our 9 belief, based on careful analysis of 10 all available information, that the 11 same safety concerns were present at 12 Ipperwash." 13 A: Yes. 14 Q: Can we go back a page. I -- I don't 15 -- you -- you don't have to, Mr. Millar, on the screen. 16 Let's go back a page to the last paragraph. 17 "Armed occupation, very real 18 possibility." 19 Last paragraph page 3 -- 2, right? 20 A: I see -- I see that. 21 Q: Next page single -- you call it rifle 22 fire against a helicopter. 23 A: Yes. 24 Q: Then you refer to the jeep incident. 25 And
1671 then you go into Gustafson Lake and call Gustafson Lake, 2 quote: 3 "This similar situation." Close 4 quotes. 5 And finally you refer to in the fourth 6 paragraph at page 3: 7 "The same safety concerns were present 8 at Ipperwash". Close quote. 9 What message, but that an armed 10 insurrection at Ipperwash was likely to flow as it did at 11 Gustafson? 12 Let me rephrase. I mangled my words. 13 What possible message other than an armed 14 insurrection at Ipperwash was likely to happen much as it 15 happened at Gustafson? 16 What message other than that could you 17 have been sending in these paragraphs, sir? 18 A: The message I was sending was, this 19 is why we prepared as we did given the circumstances. We 20 wanted to be on the side of caution and safety and ensure 21 that we had the equipment and resources that we needed if 22 that happened. It did not and at that point, some months 23 later, I think that everybody knew that it didn't happen. 24 So, I was just trying to explain why we 25 had prepared in the manner that we did with an abundance
1681 of caution to ensure that we had the appropriate 2 resources if we needed them. And I'm very pleased that 3 we didn't. 4 Q: Because -- and I apologize, I thought 5 you were finished, so I was looking down. So, I'm sorry, 6 sir. 7 A: Okay. 8 Q: And the reason you needed to be 9 prepared the way did, your mindset at the time and the 10 mindset of your senior officers you were instructing was 11 that the armed insurrection was a very real possibility, 12 right? 13 A: It could occur. 14 Q: No, sir. I'm using your words. The 15 armed insurrection was a very real possibility, correct? 16 A: And I will agree with you that I 17 would have been wiser to have used the word 'possibility' 18 without 'a very real' in there. I agree with that. 19 Q: All right. Well let's backup. 20 A: But I didn't. 21 Q: So, if you had an opportunity to 22 rewrite this document, you would remove the words, "very 23 real?" 24 A: I would say, "possibility." 25 Q: So, you would remove the word --
1691 A: Yes, I would. 2 Q: Because they're, in essence, in 3 error? 4 A: I think that they -- they suggest -- 5 they suggest that there's stronger reason to think that 6 it's going to happen than really existed at that time. 7 Q: Now, you -- then you -- having 8 referred to the rifle fire and the jeep incident, you 9 went right to Gustafson Lake. 10 And at the fourth paragraph of page 3 you 11 actually give details on how RCMP officers were fired 12 upon at Gustafson Lake and then you say, quote: 13 "The same safety concerns were present 14 at Ipperwash." 15 Right? 16 A: Yes. 17 Q: Officers had been fired upon at 18 Ipperwash, right? 19 A: Yes. 20 Q: They had? 21 A: As far as I know they may have. 22 Q: Oh, I'm sorry, let's backup. We're 23 in July 1996. We're ten (10) months after the incident. 24 With the exception of the allegations of muzzle flashes, 25 you had absolutely no foundation to draw a conclusion
1701 that, in fact, officers had been fired upon, true? 2 A: I'm sorry, I must have misunderstood 3 your question. I thought you were talking about 4 Gustafson Lake. 5 Q: Oh, all right. 6 A: I thought that's what you said. 7 Q: Oh, then I'm glad you clarified. I'm 8 talking about Ipperwash. 9 A: Ipperwash. 10 Q: You had no basis to believe officers 11 had been fired upon at Ipperwash in July of '96? 12 A: No. 13 Q: No? 14 A: That doesn't necessarily mean that 15 those wouldn't be safety concerns. 16 Q: Fair enough, but I just want to be 17 clear. You had no basis? 18 A: Yes. Right. 19 Q: Right. 20 A: Well -- that's correct. 21 Q: Right. So, when you say RCMP 22 officers were fired upon and death or serious injury 23 could have happened to them, which is what you're saying 24 here, right? 25 A: Yes.
1711 Q: Which is logical. If -- if someone 2 shoots a gun at you, you can expect one (1) of the 3 results is what happened to Dudley George, for example, 4 correct? 5 A: Exactly. 6 Q: Right. And when somebody shoots a 7 gun at a police officer and you say there's another 8 incident over here where we have the same safety 9 concerns, you're saying to people that this is like 10 Gustafson, aren't you? 11 A: I'm saying that those were the things 12 we considered before September the 6th. 13 Q: All right. But you, ten (10) months 14 later in terms of your state of mind with the benefit of 15 ten (10) months' reflection, you certainly, as of July 16 1996, knew that it wasn't Gustafson, right? 17 A: Yes. 18 Q: Right. And that's -- I'm being fair, 19 I'm not tricking you on this am I? 20 A: Well -- just let me explain. The 21 question that I was trying to answer was: Why, back 22 prior to September the 6th, did you think you needed to 23 assemble the resources that you did? 24 And so, I'm trying to tell the public this 25 is what our thought processes were back then. We're all
1721 very fortunate that nothing worse happened than did and 2 it was a tragedy at that, but in any event, these things 3 that we prepared for that we thought was a possibility, 4 and I use that word now, as a possibility, didn't occur. 5 Q: And the same safety concerns didn't 6 happen? No one shot at a police officer in the fashion 7 you described at Gustafson? 8 A: That's true, but our thought process 9 prior to September the 6th was that could happen, 10 therefore, we better be prepared. 11 Q: Would you agree with me that while 12 that was a reasonable thought process and without being 13 facetious, we're talking about officer safety and -- and 14 occupier safety, so I'm not being facetious, but this 15 sort of Boy Scout mentality of being prepared, would you 16 agree with me that while that makes a whole host of 17 sense, people are allowed to go home to their husbands, 18 their wives, and children whether they're police officers 19 or otherwise? 20 So, you want to protect them; right? 21 A: Yes. 22 Q: Having said that, while that's a 23 reasonable preparatory step, the actual expectation you 24 had was of peaceful resolution and the information you 25 had from the incident commander is he did not believe
1731 those occupiers would use guns on the police officers; 2 isn't that right? 3 A: We certainly -- I currently expected 4 a peaceful resolution. 5 Q: And you knew, based on the 6 information you were getting from your senior officers, 7 is there was an expectation these occupiers would not use 8 guns on the police officers; isn't that right? 9 A: That maybe right. I can't recall 10 that portion that you're giving me right now. I can't 11 recall that. 12 Q: Deputy Commissioner Carson -- 13 A: If he said it, I agree with it. 14 Q: I just have to finish for the record. 15 So, Deputy Commissioner Carson, who was 16 then incident commander, has testified unequivocally 17 before Commissioner Linden that he did not think these 18 were the kinds of people to use guns on the police 19 officers. 20 Do you contest that? 21 A: No. 22 Q: And do you contest that you had 23 access to that information at the time? 24 A: I'm not sure if I did or not. 25 Q: But do you contest you access to it?
1741 A: Oh, I would have had access to it. 2 Q: Right. Now, this is why I ask this, 3 and maybe you can see where I'm coming from. You're 4 preparing like a boy scout, but your expectation is, 5 these are peaceful people, right? 6 A: That's my hope. 7 Q: No, no, you said expectation before, 8 sir. I suggested it and you agreed with it. 9 A: Right. 10 Q: True? 11 A: Right. 12 Q: And you still -- all right -- do you 13 resile from that or is it still an expectation? 14 A: Still an expectation. 15 Q: All right. So, you prepare like a 16 boy scout but your expectation is that these are peaceful 17 people, correct? 18 A: Yes. 19 Q: Where you do depict that expectation 20 in this public statement to the world after Kenneth Deane 21 is charged? 22 Where do you tell the world that this is - 23 - wasn't a Gustafson Lake and these were peaceful people? 24 Where do you say that here? 25 A: It's not in there.
1751 Q: No. What you do is, having been 2 traumatised by the existence of charges against Kenneth 3 Deane, and rallying around your troops, you send the 4 message out that this was a very real possibility of an 5 armed occupation that RCMP almost died at Gustafson and 6 the same thing was facing you at Ipperwash. 7 That's the message you sent, wasn't it? 8 A: I don't agree that that was the 9 message. The message was, this is why we prepared as we 10 did. If it can be read that way, then it probably should 11 have been written in another manner. But that was the 12 intention when I wrote it. 13 Q: Fair enough. And accepting 14 hypothetically that was your intention, would you agree 15 with me having reviewed a portion of this, and we'll keep 16 going, but you read it at lunch hour, yes? 17 A: Yes, I did. 18 Q: Would you agree with me, and I was 19 right, I was going to be critical. 20 A: You're right. 21 Q: That having reviewed this with me, 22 you'd agree with me that the message that unfortunately 23 appears to emanate from this statement, unfortunately 24 suggests, in fact, that your expectation was quite the 25 contrary to peaceful occupiers, but that your expectation
1761 was that they would resort to armed insurrection. 2 Doesn't that unfortunately send this 3 message? 4 A: It may send that message, but I just 5 repeat that here were all the things that I was aware of 6 where violence had occurred and it struck me that if it 7 occurred in those -- under those circumstances, it could 8 happen there. And so as a result of an abundance of 9 caution, I assembled or I had assembled the resources 10 that were assembled there. 11 And that was just -- the only reason to -- 12 to issue the statement was to explain to those that read 13 the media reports, why the OPP assembled this material. 14 Q: And you candidly told the 15 Commissioner that you thought at the time you owed it to 16 the men and women of the OPP to give the perspective of 17 the OPP in the face of the decision to charge Kenneth 18 Deane? 19 A: Certainly. 20 Q: Now, what is absent is the reference 21 and this is why I ask you. What is absent is the good 22 stuff, the good stuff about these people, that they 23 occupied a Military Base through a peaceful method. 24 Not perfect, right? There were run-ins, 25 but as Fox called them, they were the kinds of things if
1771 ever printed in the newspaper people would talk about 2 things our kids got involved in, right? 3 MR. DERRY MILLAR: No, no, that's not 4 it -- 5 MR. JULIAN FALCONER: All right, that 6 could be a misstatement and if it is, I retract it. 7 MR. DERRY MILLAR: It is -- 8 MR. JULIAN FALCONER: I retract it. 9 10 CONTINUED BY MR. JULIAN FALCONER: 11 Q: You'd agree with me they were 12 isolated and of a fairly innocuous nature, yes? 13 A: I'm not sure of the things that -- 14 that you're speaking of. I certainly indicated that 15 these issues had been settled before without any problems 16 and that this particular incident was an isolated one. 17 Q: Now, the reason I go there, and let 18 me be more precise, the only thing that creates a 19 parallel between Oka, Gustafson and Ipperwash is they are 20 members of the Aboriginal communities. 21 That's the only parallel, isn't it? Isn't 22 that right? 23 A: No, I don't think so. It's -- it's 24 an occupation of property by a group of people and as I 25 understood it, the others were somewhat similar to that.
1781 I merely come back to the intent of the 2 message was to explain why we prepared the resources that 3 we did; the fact that we didn't need them was excellent. 4 Q: Were you familiar with the fact that 5 the confrontation at Gustafson involved a confrontation 6 with relation to the right to use certain lands for a 7 ceremony? Did -- did you know about that? 8 A: Yes, I did. 9 Q: And did you also know that it did not 10 involve any of the community members that were at 11 Ipperwash? 12 A: I was -- well, I'll put it this way. 13 I didn't know that it did involve any of the people from 14 Ipperwash. 15 Q: Be fair, sir. The Stoney Pointers 16 had nothing to do with Gustafson. Nothing at all. 17 A: And I'm not suggesting that they did. 18 Q: And they had nothing to do with Oka; 19 nothing at all. 20 A: I'm not suggesting that they did. 21 Q: If a group of people engages in 22 protest against President Bush in Washington, do you 23 issue a public statement that there is likely to engage 24 in arm insurrection as a group of protesters that may 25 have resulted and resorted to violence in another state,
1791 in another part of the United States; do you do that? 2 A: I don't think you do. 3 Q: No. And the reason you don't do it 4 is just because people have concerns or engage in 5 protest, the colour of their skin doesn't decide what 6 they're going to do, does it? 7 A: It absolutely does not. 8 Q: It's who they are that decides what 9 they're going to do. 10 A: Correct. 11 Q: And who these occupiers were, were 12 the kind of people, as Inspector Carson then put it, the 13 kind of people he would least expect to fire on police 14 officers. Right? 15 A: Correct. 16 Q: So drawing parallels between them and 17 the people at Gustafson Lake represented misinformation 18 didn't it? 19 A: It could be construed that way. But 20 I just come back to saying if these sorts of things 21 happen elsewhere and you have to be prepared in the event 22 if they happen elsewhere there's no guarantee that they 23 can't happen here. 24 And if that's the case and you know that, 25 you need to have prepared resources in the event that
1801 that does happen. 2 Q: And if I look at the bottom of page 3 3 and I make my way over to page 4 and I am moving along, 4 Mr. Commissioner, I've been on this a long time, I'm 5 sorry. 6 If I make my way through page 4 and onto 7 page 5, I don't find that confidence in those people, 8 that respect for who they are, do I? I don't find it in 9 four (4) or five (5) of your public statement. 10 A: If you're saying that I should have 11 put a paragraph in here saying our concerns that we 12 prepared for, thankfully did not -- did not need to be 13 addressed, I agree with you. 14 Q: No. No. I want a step further from 15 you, sir. I want you to say that the people that were at 16 Ipperwash weren't like the people at Gustafson. You 17 don't say that. 18 A: I -- I have no reason to believe that 19 they were like the people at Gustafson. 20 Q: Do you understand why, unfortunately, 21 that would be the message people received, based on this 22 statement? 23 A: You certainly could receive that 24 message. 25 Q: And would a reasonable person receive
1811 that message? 2 A: They might. 3 Q: And so if a reasonable person would 4 receive that message, would you agree with me that this 5 statement could have been crafted in a better fashion? 6 A: I've already said that. Yes, it 7 could have. 8 Q: In a more accurate fashion? 9 A: Certainly. 10 Q: In a fairer fashion? 11 A: Well I think the suggestion is that 12 the intent is to be unfair and it wasn't. 13 Q: I didn't say your intent. I said, it 14 could have been crafted in a fairer fashion. 15 A: Yes, it could have been. 16 Q: And would you agree with me it's 17 difficult being a leader when one of your own comes under 18 fire the way Kenneth Deane did when he was charged? 19 A: Well certainly you don't like to 20 think that officers that you -- you have out at certain 21 risk find themselves in that position. You can't help 22 but have sympathy for them. 23 Q: And that that can potentially, 24 especially if the very next day after you get the 25 decision, you make a public statement. That could
1821 potentially colour your thinking as a human being in 2 making that statement. 3 A: It could but I didn't think it did. 4 Q: Well of course not. Because if you 5 thought it did, you wouldn't have done it. 6 A: Exactly. 7 Q: Right. And because that's the thing 8 about bias, right? If the person who's exhibiting the 9 bias knew they were biassed they wouldn't be biassed, 10 true? 11 A: That's right. 12 Q: Right. Now I want to read a passage 13 to you. 14 A: I -- I would like to make one other 15 point with respect to that. You were saying that the 16 people at Ipperwash were people that wouldn't do this. 17 And I agree with you. 18 However, I am very familiar with the fact 19 that, on a regular basis, you hear of a tragedy committed 20 by someone and all of the neighbours say, I really 21 wouldn't have thought -- I just couldn't believe that 22 that individual would do that. 23 So I don't think you can assure yourself 24 on an assessment of anybody that they wouldn't do a 25 particular thing, therefore, preparation is required.
1831 Q: And that's pretty fair of that 2 neighbour to say that; that doesn't seem to me the kind 3 of person that would do that, right? 4 A: I'm sorry? 5 Q: The neighbour that you talked about, 6 it's a very fair thing for the neighbour to say. That 7 person doing that -- 8 A: Yes. 9 Q: -- that doesn't seem like them, 10 right? 11 A: That's right or I wouldn't believe, 12 but we know, as a matter of course, that it does happen. 13 Q: Right. 14 A: And the people -- the person that is 15 involved was thought by all around not to be the type of 16 person that would do a thing like that. 17 Q: Right. That -- that's the part 18 that's missing from your public statement, that they were 19 not the type of people to do that; that's missing, isn't 20 it? 21 A: That's true. 22 Q: Yeah. And the only difference from 23 your analogy you've just drawn is that, ultimately, those 24 nice people didn't do it, true? 25 A: They did not.
1841 Q: Right. I'm going to read to you a 2 passage from the evidence of former chief Ovide Mercredi. 3 Now -- now you know Ovide Mercredi? 4 A: Yes, I do. 5 Q: And I have one (1) copy of it and I 6 apologize, Mr. Commissioner, I'm -- I'm flying solo and 7 as a result I'm -- I'm using that as an excuse for any of 8 my frailties today. I have a single copy. You -- you 9 were party to this evidence, Mr. Commissioner, and I'm -- 10 I'm asking it be put in front of the Witness to be fair 11 to the Witness -- 12 COMMISSIONER SIDNEY LINDEN: That's fine. 13 MR. JULIAN FALCONER: -- because he 14 wasn't hear for it and I'm going to read it slowly. It's 15 not that long and -- well, to be honest, it's five (5) 16 pages, it's four (4) to five (5) pages. 17 It's an explanation by former Chief 18 Mercredi about his thinking about a leader in Gustafson 19 Lake and what he had to do as a leader and I would like 20 to read it to the Witness and get his response on it, if 21 I may? 22 COMMISSIONER SIDNEY LINDEN: How much are 23 you going to read to him -- how many paragraphs? 24 MR. JULIAN FALCONER: I'm going to read 25 about five (5) paragraphs.
1851 COMMISSIONER SIDNEY LINDEN: Well, I 2 think you should give him a chance -- 3 MR. JULIAN FALCONER: He's got a copy in 4 front of him. 5 COMMISSIONER SIDNEY LINDEN: Yeah, but 6 have a chance to read them before... 7 MR. JULIAN FALCONER: Well, I'll read to 8 him. 9 COMMISSIONER SIDNEY LINDEN: Okay. 10 That's fine. 11 MR. JULIAN FALCONER: Thank you. This 12 was evidence given on April 1st, 2005, it can be found at 13 page 116 of former Chief Mercredi's evidence. Give me a 14 brief indulgence, Mr. Commissioner. 15 COMMISSIONER SIDNEY LINDEN: Yes. 16 17 CONTINUED BY MR. JULIAN FALCONER: 18 Q: And -- and Mr. Millar's kindly agreed 19 to bring it up on screen so while he's doing that if you 20 could give it a gander and where I'm going to be starting 21 is, you'll see there's a page 115 in the top right 22 corner? 23 A: I'm looking at a line 20 where it 24 says: "A: Yeah." 25 Is that where you're starting?
1861 Q: No. If you -- do you see a page 2 which has a 115 in the top right-hand corner? 3 A: Yes, I do. 4 Q: Perfect. If you go halfway down to 5 line 22, you'll see: 6 "Q: All right." 7 A: Yes. 8 Q: Thank you. And if you started to 9 read there -- oh, we're -- that's fast. 10 11 (BRIEF PAUSE) 12 13 Q: I had no idea we could get CBC news 14 during the currency of the hearing. 15 April 1st, 2005. 16 17 (BRIEF PAUSE) 18 19 Q: Mr. Millar's doing all of this in 20 about thirty (30) seconds. It's page 115. Thank you. 21 And it starts with line 22: 22 "Q: All right." 23 Do you see that? 24 A: Yes. 25 Q: This is on April 1st, 2005, and it's
1871 my questioning of former Chief Mercredi and you know who 2 former Chief Mercredi is? 3 A: I do. 4 Q: You'd agree with me, not only is he a 5 highly-respected leader in the aboriginal communities, 6 he's a highly-respected leader in this country? 7 A: Correct. 8 Q: "Q: All right. Now, I'm going 9 to move to a slightly different area 10 and ask you about some evidence you 11 gave yesterday. 12 It can be found at page 269 of your 13 transcript from yesterday's proceedings 14 of March 31st, but in short, you'd 15 indicated that, [open quote], 'from an 16 Aboriginal leader's point of view in 17 confrontations with the police, all 18 leaders will first side with their 19 people. it's a natural tendency. 20 Even if you don't know all the facts, 21 you automatically support your people." 22 You'd agree with me that that's not only a 23 reality for aboriginal leaders, and now I'm off quoting 24 the page, I'm now asking you a question, you would agree 25 with me that that's not only a reality for aboriginal
1881 leaders, it's a reality for leaders in the police 2 community as well? 3 A: Yes, I think so. I think probably 4 it's broader than that. I think it's a human reality. 5 Q: Thank you. 6 "Do you remember testifying along those 7 lines? 8 A: Yes. 9 Q: Did I accurately capture what 10 you'd said? 11 A: Yes, you did." 12 My question to him was, Could you 13 assist me somewhat? That tendency is 14 part of your mandate to support your 15 people in those circumstances. Could 16 you explain that? 17 A: Yeah, it's based on history, like 18 our historical relations and 19 experiences with police as aboriginal 20 people, you know, similar to what the 21 black community knows and experiences 22 when they deal with the police. 23 There is an historical conduct there 24 where -- where situations have arisen 25 and the enforcement of aboriginal -- of
1891 law that could have resulted in the 2 death of an aboriginal person, that 3 happens." 4 Then he goes on to cite an example in 5 Winnipeg where a young man was killed. And then he goes 6 on to cite the example of J. J. Harper, his good friend, 7 and I'm trying to keep us moving and I mean no disrespect 8 to Mr. Mercredi's evidence. 9 And then he says, at line 21, do you have 10 line 21? 11 A: I do. 12 Q: "Like, and when the facts are known, 13 then it's incumbent upon us to stay 14 with the facts." 15 Do you see that? 16 A: I do. 17 Q: And then I ask him: 18 "Q: Can I -- can I explore that a 19 little bit if I may? As an aboriginal 20 leader, national aboriginal leader and 21 may I add in your communities you 22 continue to be a leader, could you 23 assist me on whether there is any 24 tension at all between that obligation 25 to stay with the facts and that
1901 tendency to support your people? Is 2 there ever any tension between these 3 two (2) things? 4 A: You know, when it comes to full 5 disclosure about these incidents 6 involving the police, internal 7 investigations will -- will probably 8 expose some of that information. 9 But when a police officer and someone 10 that they're pursuing, there's only two 11 (2) of them, right, you'll never really 12 know the truth, but a dead man doesn't 13 speak, right? 14 And if the aboriginal person's the dead 15 man, you're going to side with that 16 dead man because he's not speaking for 17 himself, right?" 18 So it's in that context that we would 19 always take the side of our people and 20 until the truth is found. 21 Like, I mean, like when I discovered in 22 Gustafson that weapons were present and 23 guns were fired, I condemned that 24 action. 25 I did, because I have to support the
1911 facts, right?" 2 Now top of the next page: 3 "Q: Now, is that the same as 4 automatically supporting your people, 5 no matter what the facts are? 6 A: No, it's not the same." 7 Further down the page to 120, line 6, and 8 I apologize for jumping around. I'm simply trying to 9 give you the gist of Mr. Mercredi's statement. 10 "A: There's always risk involved in 11 leadership, okay? And Aboriginal 12 leaders, sometimes when the facts and 13 the information, the truce is there, 14 they have to stay with that, even if it 15 means reversing their previous role or 16 position on issues. 17 It's not an easy thing to do, but if 18 the truth is facing you, you have to do 19 it. I mean, you can't dismiss the 20 truth, right? 21 You have to side with it, even if it 22 means taking some risk with your 23 community." 24 Do you agree with Mr. Mercredi's analysis 25 of what leadership means?
1921 A: I do. 2 Q: Do you agree with Mr. Mercredi that 3 it is essential that you stay with the facts? 4 A: I do. 5 Q: And do you agree with Mr. Mercredi 6 that even if it means jeopardizing your relationship with 7 your people, you still have to say with the truth? 8 A: I do. 9 Q: Now Mr. Mercredi pointed to Gustafson 10 as an example where, in staying with the truth, he became 11 unpopular; isn't that right? 12 A: That's correct. 13 Q: He became unpopular because he 14 recognized the existence of guns and the existence of 15 violence using guns and he spoke out against it, correct? 16 A: I understand he did. 17 Q: Turning to the next page, 121, right 18 at the bottom, line 25 of 121 and it's kind of difficult 19 to find but I'm trying to keep us moving. 20 You see line 25 when Mr. Mercredi is 21 speaking, it's his answer: 22 "And there's nothing more dangerous 23 than us." 24 Do you see that? 25 A: I see that.
1931 Q: "And there's nothing more dangerous 2 than us and them in a conflict 3 situation, you know what I'm saying? 4 So if there's sensitivity on the part 5 of the other party of our rights, it 6 goes a long ways to dispelling, you 7 know, our concerns and may be our 8 disputes with them." 9 And he's talking about disputes with non- 10 aboriginals, all right? 11 And then I ask him a question, line 6: 12 "Q: You know this Commission has 13 heard evidence..." 14 Do you see this? Line 6? 15 A: I'm reading it. 16 Q: "Q: You know this Commission has 17 heard evidence, some extensive evidence 18 about different issues surrounding 19 guns. Allegations about shooting at a 20 helicopter on a different occasion. 21 Allegations about a gun on a different 22 occasion." 23 And now what I want to ask you is, you 24 faced a challenge at Gustafson Lake, you faced a 25 challenge of having to condemn an action by your own
1941 people in recognizing the truth, the facts, that there 2 were guns. 3 What did you perceive as the police 4 leadership responsibility at Ipperwash when it became 5 apparent there weren't guns? What was your perception as 6 to their responsibilities? 7 There's a series of objections and I'm 8 simply going to take you to Mr. Mercredi's answer once 9 the question is not objected to. And it's the last page 10 of your materials and it's the bottom of page 124, line 11 17. 12 A: Yes, I have it. 13 Q: We're at: 14 "A: You know." 15 A: I -- I have it. 16 Q: And I'm just waiting for the screen 17 to pick it up. Just before 125. 18 19 (BRIEF PAUSE) 20 21 At line 18. 22 "A: You know, I guess a reasonable 23 person, regardless of who they 24 represent, you know, in a situation 25 like Ipperwash, if faced with the
1951 knowledge that there were no guns would 2 stay with the truth. 3 And that's what I'm saying. That as an 4 Aboriginal leader I have a duty to 5 honour the truth. Otherwise I 6 dishonour my people by lying about 7 this, you know, about what's really 8 going on, right? 9 So I can only speak for -- for my 10 actions in Gustafson, right? And since 11 I saw no evidence of guns or no proof 12 of guns in Ipperwash, there was no 13 action to condemn." 14 Now I'm asking you, sir, there was no guns 15 at Ipperwash that you knew of, correct? 16 A: That's right. 17 Q: You have and had an obligation to 18 stay with the truth, correct? 19 A: Correct. 20 Q: The impression created by your public 21 statement of a very real possibility of armed 22 insurrection, that wasn't staying with the truth was it? 23 A: It could be construed that way. I -- 24 I've explained a number of times what the intention was 25 and if it's construed that way it wasn't my intention
1961 that it be construed that way. 2 Q: And you'd understand why perhaps the 3 day after Kenneth Deane was charged, you may have been in 4 a defensive state of mind, correct? 5 A: It's possible. I didn't think I was. 6 Q: You agreed with me that it was 7 traumatic for all of the OPP, including yourself. 8 A: That's true. 9 Q: You were in a defensive state of 10 mind, I'm going to suggest to you, and in that defensive 11 state of mind you sent out a message that didn't stay 12 with the truth, in order -- in order to be loyal to your 13 people. 14 Isn't that what happened? 15 A: That's not true. 16 Q: But that's what happened though, 17 isn't it? In order to be loyal to your people you sent 18 out a message that you now regret. Isn't that true? 19 A: I could have placed the message 20 better and I could have put some of the information in 21 that you suggested. And that would have made it more 22 fair. But it wasn't my intention to mislead. 23 Q: I understand. And staying with the 24 truth is tough when it may result in disharmony or 25 unpopularity with your people; isn't that right?
1971 A: I -- I really am not concerned about 2 my popularity with my people. I just thought it was an 3 appropriate time to clear up what I thought were some 4 misconceptions. If I didn't word it correctly, if I 5 didn't include the appropriate information, then that's 6 my error. But it wasn't my intention to do that. 7 Q: I'm moving on, Mr. Commissioner. 8 Staying with the truth and it's a term Mr. 9 Mercredi used, and it's a good term I'm going to suggest 10 to you but that's just my analysis, it's a good term, 11 staying with the truth. 12 Staying with the truth is a challenge and 13 often it may mean taking a step back and being somewhat 14 embarrassed by previous statements. It can mean that. 15 A: It can. 16 Q: I want to ask you -- I'm going to put 17 certain facts to you about the existence of political 18 heat or political pressure on the OPP, that is senior 19 officers. 20 And I'm going to ask you to consider 21 staying with the truth in your own mind and in your heart 22 rather than simply staying with the position you've 23 maintained all along that there was no political 24 pressure, all right? 25 MR. DERRY MILLAR: Well, I'm not certain
1981 that's -- 2 MR. JULIAN FALCONER: Well, I can -- I 3 can rephrase it. 4 MR. DERRY MILLAR: My Friend makes 5 editorial comments and -- 6 MR. JULIAN FALCONER: That's not 7 editorial comment. 8 MR. DERRY MILLAR: Well, but it -- you 9 know, he can ask him questions, but the -- the Witness 10 has been very forthcoming and has answered all his 11 questions in a very forthcoming manner and he can ask if 12 -- a question without implying something about the 13 Witness' conduct. 14 MR. JULIAN FALCONER: Well, first of all, 15 Mr. Commissioner, I am pleased to hear that Mr. Millar' 16 already made findings of facts about this Witness and his 17 credibility; that's reassuring to me. It's your job, 18 with respect, and Mr. Millar ought not to be telling us 19 what level of credibility this Witness as any other 20 witness, enjoys in the proceedings. 21 COMMISSIONER SIDNEY LINDEN: I didn't -- 22 MR. JULIAN FALCONER: That wasn't the 23 right thing to say, with respect. 24 MR. DERRY MILLAR: But I didn't say that. 25 COMMISSIONER SIDNEY LINDEN: I don't
1991 think -- 2 MR. DERRY MILLAR: I only suggested -- 3 MR. JULIAN FALCONER: Well, saying that 4 he is being candid and that he has told the truth means 5 that he's made a determination of this Witness' 6 credibility. It's the wrong thing to say, with respect. 7 MR. DERRY MILLAR: I just picked up on 8 what My Friend Mr. -- Mr. Falconer has said about the 9 very same words about this Witness; he appreciates his 10 candour, he appreciates his truth. That -- those are 11 words that I picked up that Mr. Falconer used. 12 MR. JULIAN FALCONER: On a specific 13 question. 14 COMMISSIONER SIDNEY LINDEN: No, I'm 15 going to stop this and ask you, Mr. Falconer, to confine 16 yourself to asking questions which I think you're trying 17 to do. Just ask a question. 18 MR. JULIAN FALCONER: Thank you. 19 COMMISSIONER SIDNEY LINDEN: The Witness 20 has been answering. 21 MR. JULIAN FALCONER: Thank you. 22 COMMISSIONER SIDNEY LINDEN: Let's 23 continue. 24 MR. JULIAN FALCONER: Thank you. 25
2001 CONTINUED BY MR. JULIAN FALCONER: 2 Q: I'm going to try to rephrase so you 3 understand the thrust of my question to you. 4 I'm going to put certain issues around 5 political pressure to you and ask you to reconsider your 6 conclusion today if there was no political pressure at 7 the time, do you understand? 8 A: I understand. 9 Q: Could I please have the handwritten 10 scribe notes, Exhibit 426, I believe, placed before the 11 Witness? 12 13 (BRIEF PAUSE) 14 15 Q: Sorry, maybe it's Exhibit 427. It's 16 the handwritten notes? 17 18 (BRIEF PAUSE) 19 20 Q: It's Exhibit P-427, Document Number 21 1000152. 22 23 (BRIEF PAUSE) 24 25 Q: At page 390 of the scribe notes on 8
2011 -- at 8:34 a.m. on September 5th, 1995, Mr. Carson is 2 advised, that is incident commander Carson, is advised 3 and the -- the evidence seems to be that it was likely 4 Mr. Kobayashi who indicated it. 5 You see it says, L.C. a third of the way 6 down the page? 7 "Talked to lawyer, waiting for 8 injunction?" 9 A: Yes. 10 Q: And J.C.: 11 "Marcel Beaubien calling Premier; 12 that's final." 13 Do you see that? 14 A: I see that. 15 Q: Now, the indication is, it is at that 16 point in time, 8:30 in the -- or 8:34 a.m. September 5th, 17 1995, the incident commander has received the information 18 that Mr. Beaubien is going to contact the Premier. 19 Do you see that? 20 A: I see that. 21 Q: At page 438 -- would you flip to page 22 438? 23 24 (BRIEF PAUSE) 25
2021 Q: Page 438 at the bottom of the page in 2 an exchange, you'll see the time. It's an exchange among 3 the command team, if you flip back to 4 -- page 423 you 4 see the notes relating to the meeting and at 217 that 5 day, and I believe it's still September 5th, 1995 but I 6 stand to be corrected. 7 At 4 -- at page 438, do you see the bottom 8 of the page? 9 A: I have that, yes. 10 Q: "Premier: No different treatment 11 from anybody else." 12 Do you see that reference? 13 A: Yes. 14 Q: It's the evidence of incident 15 commander Carson and it's reflected in the typed notes 16 that Mr. Carson was conveying that the Premier wanted the 17 occupiers treated no differently than anybody else. All 18 right? 19 A: I see that. 20 Q: Now, can I ask you this. Are the 21 Premier's wishes relevant to incident commander Carson? 22 A: No. 23 Q: Should incident commander Carson be 24 sharing with his command group what the Premier's wishes 25 ought to be or should be?
2031 A: My preference would be that he 2 wouldn't. 3 Q: Isn't it fair to say when you say 4 "preference" it's because you tend to somewhat try to be 5 diplomatic about it? 6 It's fair to say he simply ought not to 7 have, correct? 8 A: The more correct course would be not 9 to have. 10 11 (BRIEF PAUSE) 12 13 Q: Does that in any way change your 14 position that there existed no political pressure on 15 senior officers of the OPP? 16 I'm going to be taking you through other 17 things, I just want to know, does that change your 18 position at all? 19 I don't ask that they give into it, I 20 asked did it exist? 21 Does it change your position on whether 22 political pressure on senior officers of the OPP existed? 23 A: Well, my understanding from 24 information from John Carson is that he in no way felt 25 any pressure and that's -- to know whether he's feeling
2041 pressure or not, as a result of any particular comment or 2 information that he learned, the only one that knows that 3 is John Carson. 4 5 (BRIEF PAUSE) 6 7 Q: So, it doesn't change your view that 8 there existed no political pressure on the officers, the 9 senior officers of the OPP in relation to Ipperwash; 10 those passages that I've just read to you? 11 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 12 Sandler...? 13 MR. MARK SANDLER: Yes. You will recall 14 that this issue came up with Mr. Klippenstein and these 15 passages were put and I complained that the following 16 line wasn't being put and I believe -- and you agreed 17 with me, commissioner, and I think we have the same 18 problem here which is a lack of context. 19 The last one: 20 "Premier: No different treatment from 21 anywhere else." 22 And then immediately following: 23 "We're okay on the right track." 24 And my submission that one shouldn't be 25 one without the other, because it gives context and you
2051 agreed at that time, and I suggest it's equally 2 applicable here. 3 And it held true for the first portion 4 that My Friend put and it held true for the second as 5 well. 6 MR. JULIAN FALCONER: Well, I agree with 7 Mr. Sandler, it's fine to put it to the Witness. But to 8 be fair to me, my question is not whether he accepted the 9 twenty dollar ($20), whether he gave into the pressure. 10 COMMISSIONER SIDNEY LINDEN: We're -- 11 MR. JULIAN FALCONER: We're fine, were on 12 the right track means he didn't give into it. I've got 13 that, that's not my question. 14 COMMISSIONER SIDNEY LINDEN: No, I -- 15 MR. JULIAN FALCONER: My question was 16 about the existence of political pressure. 17 COMMISSIONER SIDNEY LINDEN: We're trying 18 to be fair to the Witness. 19 MR. JULIAN FALCONER: No, that's fine. I 20 have no difficulty with that. 21 COMMISSIONER SIDNEY LINDEN: That's fine. 22 MR. JULIAN FALCONER: That's fine. 23 COMMISSIONER SIDNEY LINDEN: Have you got 24 the whole passage -- 25 THE WITNESS: Yes, I have.
2061 COMMISSIONER SIDNEY LINDEN: -- Mr. 2 O'Grady, down at the bottom of page 438? 3 4 (BRIEF PAUSE) 5 6 CONTINUED BY MR. JULIAN FALCONER: 7 Q: So you've seen that, sir? 8 A: I've seen that. 9 10 (BRIEF PAUSE) 11 12 Q: Now, I now ask you, does it change 13 your answer, not about whether Mr. Carson caved to the 14 political pressure or gave into it, I'm asking you does 15 it change your answer about the existence of political 16 pressure? 17 A: The only way I can -- I can answer is 18 because it's there, it could cause a perception but I'm 19 also convinced that Carson was not influenced or was not 20 pressured into changing his approach. 21 Q: You're saying that the pressure might 22 have been there but it didn't change what Carson did? 23 A: I'm saying there's a perception when 24 you look at it, there's a perception that it could have 25 been there. People could have believed that, but my
2071 understanding is that Carson continued and the remainder 2 of the -- of the note would certainly indicate that he 3 wasn't influenced by it. 4 Q: So, when you say, as you just did, 5 that looking at that there's a perception. What you're 6 saying then is that you would modify your answer as to 7 the absence of political pressure to this extent based on 8 what I've just showed you? 9 You would now say that there is certainly 10 -- you would now concede that based on this, and I would 11 suggest to you the Fox tapes, that there's now a 12 reasonable basis for having a perception that there 13 existed political pressure on senior officers of the OPP? 14 A: You could draw that perception. 15 Q: All right. And it would be a 16 reasonable perception to draw based on what you've seen 17 and the Fox tapes and what I've just showed you? 18 A: Yes. 19 Q: Right. And when you say that, you're 20 still not at the point of saying there was actually 21 political pressure and I'm not saying they gave into it; 22 you do know the line I'm drawing, right? Yes? 23 A: I think I do. 24 Q: Okay. You're not saying there was 25 political pressure. You're saying based on this, there
2081 certainly a perception, a reasonable perception that it 2 existed, correct? 3 A: Yes. 4 Q: Okay. What I'm going to ask you is 5 to also consider as I show you other things, whether in 6 fact, in addition, to there being a reasonable 7 perception, whether in fact, in actuality, there was 8 political pressure. So, I'm going to take you to other 9 facts, all right? 10 If you could turn to page -- 11 COMMISSIONER SIDNEY LINDEN: I'm sorry. 12 Yes, Mr. Sandler...? 13 MR. MARK SANDLER: Just before My Friend 14 does, I have this question for you, Commissioner, and 15 it's simply this. 16 My Friend is putting passages to make the 17 case for why these documents suggest there's political 18 pressure. There is or isn't political pressure. This 19 witness learns about the documents as My Friend is 20 putting them to him. 21 So, I'm wondering how this is assisting 22 you. He's conceded that he didn't go to these documents 23 and that he didn't get the information that's contained 24 in the documents. So, the question whether or not the 25 documents or the witnesses who spoke to the documents
2091 tell you that there was or wasn't political pressure, 2 it's your determination to make. 3 So, I'm asking rhetorically, how is this 4 helping you, with great respect? 5 Because at the end of the piece what 6 you're going to get at its highest is Mr. O'Grady's 7 opinion on whether or not these documents that he has no 8 knowledge of or what the witnesses have said about those 9 documents, whether they say to him that there was or 10 wasn't political pressure. 11 And -- and respectfully what My Friend is 12 in effect doing is asking Mr. O'Grady to come to a 13 conclusion that you're going to be asked to, one way or 14 the other. And I don't know how that assists you, with 15 great respect. 16 COMMISSIONER SIDNEY LINDEN: Well, it 17 might be helpful but let's hear what Mr. Downard says. 18 MR. PETER DOWNARD: Well, just very 19 briefly, I agree with what Mr. Sandler is saying, and in 20 addition, the answers are doubly useless to you because 21 My Friend is being very careful to say to the Witness, 22 Well look at this part of this document and look at this 23 document, this Fox tape and tell me whether there's 24 political pressure. 25 My Friend's being very careful not to
2101 remind the Witness that Inspector Fox came here and said 2 that in no way was the Government directing him to direct 3 the OPP to do anything. And to the -- to the contrary, 4 the bottomline of the dining room was that there was to 5 be no political direction of the OPP. 6 My Friend is -- is putting forward facts 7 in a fashion that is very likely to mislead the public. 8 COMMISSIONER SIDNEY LINDEN: Mr. Millar, 9 would you like to comment or should I hear from some 10 others first? 11 Mr. Henderson, you've got something to 12 add? 13 MR. WILLIAM HENDERSON: Commissioner, I'm 14 -- I'm troubled that -- that this line of questioning 15 might be considered of no assistance to you. With all 16 respect to former Commissioner O'Grady, there is a 17 position which he took ten (10) years ago and which he 18 brought to this Commission a few days ago that there was 19 no pressure at all. 20 I think there is a real and viable 21 distinction between pressure and the effect of pressure 22 and that is one that Mr. Falconer has been careful to 23 maintain. 24 And I think it should assist you if it 25 turns out that former Commissioner O'Grady, having now,
2111 if only for the first time, been aware of all of the 2 circumstances surrounding the events of the death of 3 Dudley -- Dudley -- Dudley George, is modifying the 4 position that he's held for ten (10) years and the 5 position that he brought here and the position that he 6 advanced here. That should assist you on the question of 7 whether or not there's pressure and whether or not that's 8 relevant. 9 COMMISSIONER SIDNEY LINDEN: Well, 10 Commissioner O'Grady or Mr. O'Grady's already 11 acknowledged now that there is a perception of pressure, 12 which he hadn't before. 13 MR. WILLIAM HENDERSON: That -- that's 14 true, Commissioner, and -- and the objection actually 15 comes after the answer, so I'm not sure that the 16 discussion, which is more by way of argument, is 17 assisting you anymore beyond what's already happened. 18 And -- and, of course, I don't know 19 whether or not My Friend Mr. Falconer intends to pursue 20 that line at all, but it is a -- of value to you, in my 21 respectful submissions, sir and -- and I say that, of 22 course, in response to Mr. Sandler and... 23 COMMISSIONER SIDNEY LINDEN: Do you have 24 any advice for me, Mr. Millar, or should I -- 25 MR. JULIAN FALCONER: Well, if you want
2121 to hear from -- 2 COMMISSIONER SIDNEY LINDEN: Do you want 3 to move on? 4 MR. JULIAN FALCONER: No, I -- I wanted 5 to respond to his objection, but do you want to hear from 6 Mr. Millar first? 7 COMMISSIONER SIDNEY LINDEN: No, you 8 respond to it then, I'm happy to hear your response. 9 MR. JULIAN FALCONER: Well, in my 10 question, I'm trying to -- there isn't a lawyer alive who 11 doesn't have a tactical intention or motive in doing a 12 cross-examination so I'm not going to pretend I don't, 13 but I'm trying to also put my cards on the table with the 14 Witness and say, you've taken position 'A' and I'm asking 15 you to reconsider that position and I'm critically 16 challenging the position he's taken. 17 Now, the Witness has now, based on what 18 he's seen, acknowledged, well, there's a reasonable 19 perception but I'm now going to the next stage with him 20 and, again, putting my cards on the table. 21 I'm actually saying to him, I'm going to 22 now show you other information and ask you, in addition 23 to the perception, would you agree with me, based on this 24 other information that, in fact, contrary to your 25 knowledge at the time, there was political pressure on
2131 your senior officers. 2 And to me, with great respect, that is an 3 appropriate line of questioning. This Witness has said 4 there wasn't, period. He's started to modify that as 5 he's entitled to do, but that -- he shouldn't be attacked 6 for that and I'm trying not to. 7 I'm actually saying, Now, I would like to 8 take you to other things and ask you 'A' if you knew 9 about them, which I'm entitled to do, and 'B' does that 10 change your evidence and that's standard 11 cross-examination. 12 COMMISSIONER SIDNEY LINDEN: Mr. Millar, 13 do you have anything to say which will help me make this 14 decision? 15 MR. DERRY MILLAR: No. Ultimately, it's 16 up to you to determine whether or not there was political 17 pressure. They -- 18 COMMISSIONER SIDNEY LINDEN: That doesn't 19 mean that his answers might not be helpful. 20 MR. DERRY MILLAR: Well, it's -- it's -- 21 all this -- the Witness has given his evidence, whether 22 or not it's helpful to put to him statements and comment 23 on them is something you have to decide. 24 COMMISSIONER SIDNEY LINDEN: Whether it's 25 fair or not is...
2141 MR. DERRY MILLAR: Yes. 2 COMMISSIONER SIDNEY LINDEN: It may be 3 helpful, whether it's fair -- is that your position as 4 well. You're on your feet, Mr. Downard, so I presume 5 you've got something you want to say or? 6 MR. PETER DOWNARD: Well, I don't want to 7 belabour it, but it's -- it's an ultimate issues question 8 and I don't understand -- 9 COMMISSIONER SIDNEY LINDEN: I'm sorry, 10 it's a which issue? 11 MR. PETER DOWNARD: It's an ultimate 12 issue question -- 13 COMMISSIONER SIDNEY LINDEN: Yes, I 14 understand. 15 MR. PETER DOWNARD: -- whether there's 16 political pressure. And, surely, there cannot be a 17 helpful or relevant answer on that ultimate issue, 18 assuming that that's the proper question, unless all the 19 material facts are put to the Witness for the opinion, 20 and My Friend is cherry picking, and in my respectful 21 submission, that's not appropriate. 22 MR. JULIAN FALCONER: Well, Mr. 23 Commissioner, I can do this in terms of modifying my 24 question. I think my question's completely fair, but I 25 also think back and forth arguing instead of getting on
2151 with it is -- is not helpful. 2 Here's my suggestion. I want to know 3 whether the opinion expressed by this Witness, his 4 statement that there existed no political pressure was 5 informed by certain facts. And I'm entitled to ask him 6 that without eliciting -- 7 COMMISSIONER SIDNEY LINDEN: Without 8 asking him the ultimate issue? 9 MR. JULIAN FALCONER: That's right and -- 10 and I propose to do it that way, that should allow us to 11 move on. There can't be a doubt that I'm entitled to ask 12 him, as Commissioner -- 13 COMMISSIONER SIDNEY LINDEN: Well -- 14 MR. JULIAN FALCONER: -- whether he knew 15 about X or Y. 16 COMMISSIONER SIDNEY LINDEN: If you don't 17 put to him the ultimate issue question, which is mine to 18 resolve, then I think we can go forward -- 19 MR. JULIAN FALCONER: Thank you. 20 COMMISSIONER SIDNEY LINDEN: -- and see 21 what happens, as long as the information you're putting 22 to him is put to him fairly and in the proper -- 23 MR. JULIAN FALCONER: Fair enough. 24 COMMISSIONER SIDNEY LINDEN: -- context. 25 MR. JULIAN FALCONER: Fair enough.
2161 2 CONTINUED BY MR. JULIAN FALCONER: 3 Q: If you could direct your attention -- 4 COMMISSIONER SIDNEY LINDEN: 5 Incidentally, before you begin with this line of 6 questioning, I think this is a good place for us to have 7 a break. I'm trying to keep my eye on the afternoon and 8 the length of it. If we break now -- 9 MR. JULIAN FALCONER: That's fine. 10 COMMISSIONER SIDNEY LINDEN: -- and then 11 we go to 4:30, and then break for the afternoon. 12 THE REGISTRAR: This Inquiry will recess 13 for fifteen (15) minutes. 14 15 --- Upon recessing at 2:47 p.m. 16 --- Upon resuming at 3:06 p.m. 17 18 THE REGISTRAR: This Inquiry is now 19 resumed. Please be seated. 20 21 (BRIEF PAUSE) 22 23 COMMISSIONER SIDNEY LINDEN: You're going 24 to ask him now, Mr. Falconer, if he's aware of certain -- 25 MR. JULIAN FALCONER: Thank you.
2171 COMMISSIONER SIDNEY LINDEN: -- pieces of 2 evidence, whether or not they existed. 3 MR. JULIAN FALCONER: Thank you. 4 COMMISSIONER SIDNEY LINDEN: Yes. That's 5 fine. 6 7 CONTINUED BY MR. JULIAN FALCONER: 8 Q: Now it's fair to say that what I 9 showed you at page 438, incident commander Carson 10 indicating to his command group as to the Premier's 11 desires in terms of the treatment of the occupiers, 12 treating them the same as anyone else. 13 That is not something you were aware of, 14 that passing on of the Premier's views? 15 A: No. 16 Q: All right. Now, if you could direct 17 your attention, please, to the typed scribe notes, which 18 are Exhibit 426. And keep the handwritten open, we're 19 going to move between the two (2). 20 And I have actually a few questions for 21 you later about how scribe notes get done, maybe you 22 know. But there's certain things that are in the 23 handwritten version that aren't in the typed version and 24 -- and I just -- I'm reminding myself I have a few 25 questions for you about that.
2181 But if you could direct your attention, 2 please, to page 69. And this is September 6th, 1995; all 3 right? 4 A: Yes. 5 Q: At 18:42. 6 A: Yes. 7 Q: Now, this is basically three (3) -- 8 three (3) hours before the decision to have CMU march 9 towards the occupiers; all right? 10 A: Yes. 11 Q: At 18:42, it states: 12 "Inspector Linton, Inspector Carson, 13 Les Kobayashi and Member of Parliament 14 Marcel Beaubien meeting in command 15 trailer. Marcel Beaubien advised that 16 he had sent a fax to the Premier 17 advising him of his intentions and that 18 he wanted a return phone call regarding 19 his intentions. Inspector Carson 20 advised that there is a court hearing 21 for an injunction at 9:00 a.m., 7 22 September '95. Marcel Beaubien aware 23 of situation." 24 Now, firstly, this is the kind of meeting 25 in incident command that you've candidly said you thought
2191 was unfortunate? 2 A: Yes. 3 Q: And then at the top of page 70: 4 "Marcel Beaubien wondered if there was 5 anything else that he could do. 6 Inspector Carson advised that things 7 are towards the court order so the 8 Criminal Code charges can be laid." 9 Now, that's not something that has 10 happened. In other words, he's not briefing a community 11 leader or a member of the community on something that has 12 already happened by way of communications. 13 He's actually advising Marcel Beaubien 14 about how the police intend to go about charging people; 15 isn't that right? 16 A: What I read there is that Marcel 17 Beaubien is aware that there is an injunction being 18 sought. 19 Q: No, I'm talking about the top of page 20 70. 21 A: I see that. But I think you would 22 read them all together. 23 Q: Fair enough. 24 A: And then it goes: 25 "Marcel Beaubien wondered if there's
2201 anything else that he could do. 2 Inspector Carson advised that things 3 are towards the court order so that 4 Criminal Code charges can be laid." 5 Q: Now, you'd agree with me what that 6 means is, get the injunction and if they act in breach of 7 it, charges can be laid? 8 A: Yes. 9 Q: That's what that means to you? 10 A: That's what that means to me. 11 Q: And so the head of incident command 12 is telling the MLA this is what our plan is. 13 COMMISSIONER SIDNEY LINDEN: Mr. 14 Falconer, I want to stop you there. I'd rather you 15 didn't make a speech about it and ask him if he was aware 16 of this piece of information. I thought that's how we 17 agreed to go forward. 18 MR. JULIAN FALCONER: It is but -- but -- 19 COMMISSIONER SIDNEY LINDEN: If he's 20 aware of this, then that's one thing. If he's not, it's 21 another thing. 22 MR. JULIAN FALCONER: No. Agreed but... 23 COMMISSIONER SIDNEY LINDEN: Well, I mean 24 that's what we -- how we're going to move forward. 25 MR. JULIAN FALCONER: Yeah, but, that's -
2211 - that -- 2 COMMISSIONER SIDNEY LINDEN: Otherwise 3 we're going to be arguing about conversations that he 4 wasn't party to. 5 MR. JULIAN FALCONER: Well no, but I want 6 -- what I'm -- I can do that on -- on this one. My only 7 point is, Mr. Commissioner, important to -- to the 8 question of his knowledge is what he would be 9 knowledgeable of. 10 If I simply read him a line and ask him if 11 he knew that without bringing out from him the inferences 12 to be drawn from the line, because example -- 13 COMMISSIONER SIDNEY LINDEN: Some context 14 is necessary but a long song and dance isn't. 15 MR. JULIAN FALCONER: But not too much. 16 Fair enough. I hear you. 17 COMMISSIONER SIDNEY LINDEN: So, let's 18 try and keep it... 19 MR. JULIAN FALCONER: I hear you. Okay. 20 21 CONTINUED BY MR. JULIAN FALCONER: 22 Q: So, but you -- so far you agree with 23 me that's, in essence, communicating a plan to Mr. 24 Beaubien, correct? 25 A: If Mr. Beaubien knows that there is
2221 an injunction being sought, and he knows that, flowing 2 out of that, charges could be -- well, if he knows 3 there's an injunction being sought and Carson merely 4 tells him that flowing out of that, charges could be 5 laid. 6 As I had indicated before, I would have 7 preferred that the MLA was not in the command centre. 8 But that's a pretty straightforward piece of information 9 that I don't see interferes -- or interferes very much 10 with operational issues. 11 Q: And it goes on in a full discussion 12 and I'm taking you through it, I'll be very quick, but, 13 it's a -- a full communication with Beaubien in incident 14 command in several hours before. 15 And you know, that in the previous page 16 I've already shown you, how Beaubien is advising that he 17 sent a fax to the Premier advising of his intentions and 18 that he wanted a return phone call regarding his 19 intentions. 20 Right? You've got that? 21 A: I see that. 22 Q: All right. So reading on: 23 "Marcel Beaubien advised that property 24 owners are very concerned. They are 25 frustrated and feel that they're not
2231 being treated equally. 2 John Carson states that there is not a 3 land claim. There has been no legal 4 claim to the land. 5 Les Kobayashi has had the land 6 researched. There's no burial ground 7 on the land. Inspector Linton 8 questioned if there's anything from the 9 Solicitor General. Marcel Beaubien 10 advised they were meeting today." 11 So it's fair to say we're now at the stage 12 where Marcel Beaubien's talking about communications with 13 the Premier and communications with the Solicitor 14 General, correct? 15 A: That's correct. 16 Q: All at incident command with the 17 incident commander. 18 A: Yes. 19 Q: Do you see that? 20 A: I see that. 21 Q: If you look at the previous page you 22 will see that it's also with Inspector Linton. 23 A: Could I just backup to the top of 24 page 70? 25 Q: Sure.
2241 A: Where: 2 "Inspector Carson advised that there 3 are -- that things are towards the 4 court order so that Criminal Code 5 charges can be laid -- or criminal 6 charges -- yeah -- can be laid." 7 I really don't see that any different than 8 any land or house owner who came to the police and said, 9 I think somebody broke into my place, and the police 10 saying, Well if we can prove that, we can lay criminal 11 charges. 12 That -- that really is a pretty 13 straightforward piece of information. But -- 14 MR. JULIAN FALCONER: How about the 15 information that Mr. Beaubien is meeting with Solicitor 16 General today. How's that for incident commander, 17 knowing he's getting it straight from the Solicitor 18 General? 19 MR. DERRY MILLAR: Well I'm not certain 20 that that is what it says. 21 MR. JULIAN FALCONER: It says: 22 "Inspector Linton questioned if there's 23 anything from the Solicitor General. 24 Marcel Beaubien advised they were 25 meeting today."
2251 COMMISSIONER SIDNEY LINDEN: Period. 2 Okay. 3 4 CONTINUED BY MR. JULIAN FALCONER: 5 Q: You'd agree with me this isn't what 6 you expect out of the average citizen? 7 MR. MARK SANDLER: Excuse me. 8 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 9 Sandler. 10 MR. MARK SANDLER: The evidence so far is 11 not that Marcel Beaubien's meeting with the Solicitor 12 General that day. But to say -- 13 COMMISSIONER SIDNEY LINDEN: The 14 Solicitor General's meeting. 15 MR. MARK SANDLER: -- at the Ministry's 16 meeting that day. And I suggest in the context of an 17 injunction it's on, that that's not a fair statement to 18 put to the witness. 19 COMMISSIONER SIDNEY LINDEN: Yes. I 20 understand. 21 22 CONTINUED BY MR. JULIAN FALCONER: 23 Q: And -- and so whether it's Mr. 24 Beaubien meeting with him and I appear to have miscast it 25 and I apologize or that the Solicitor General is meeting,
2261 he's now passed on information to incident command about 2 the Solicitor General and about the Premier, correct? 3 A: He has. 4 Q: Reading on. If you could go down to 5 the third-to-last paragraph: 6 "Marcel Beaubien..." 7 And I encourage you, by the way to read -- 8 to read the whole thing. I'm not trying to take the 9 context from you, it's just that if I read the whole 10 thing the Commissioner is going to penalize me in some 11 awful way. 12 COMMISSIONER SIDNEY LINDEN: I'm not 13 going to penalize you, I just want you to be fair to the 14 Witness. 15 MR. JULIAN FALCONER: No, and I'm -- and 16 I'm happy to, I just -- 17 COMMISSIONER SIDNEY LINDEN: I know that 18 you want to be fair to him. 19 MR. JULIAN FALCONER: Thank you. 20 COMMISSIONER SIDNEY LINDEN: Carry on. 21 22 CONTINUED BY MR. JULIAN FALCONER: 23 Q: Third-to-last paragraph: 24 "Marcel Beaubien states that he doesn't 25 mind taking controversy. If situation
2271 can't be handled by Police Services, 2 something has to be done to handle the 3 situation. John Carson states that we 4 want it resolved, but we don't want 5 anyone to get hurt. 6 Wants everything that can be done to 7 stress the point of no one getting 8 hurt. 9 John Carson also stated that we have a 10 lot of good people; two (2) teams on 11 ground at time. Officers going a great 12 job. 13 Dale Linton advised Marcel Beaubien 14 that we appreciate everything that he 15 has done. Marcel Beaubien talked to 16 Chief Chris Coles and suggested MNR 17 contact Chief Coles so they're aware of 18 the situation. 19 John Carson brought up issue that if 20 the Park is cleared, what happens after 21 that?" 22 The meeting ends -- do you see in the last 23 paragraph at 7:05? Do you see that? 24 A: Yes. 25 Q: And the next page there's a
2281 handwritten note, "MB", which we're led to believe in 2 evidence is Marcel Beaubien. 3 Do you see the handwritten note? The top 4 of the next page? If you flip over to the next page. 5 COMMISSIONER SIDNEY LINDEN: I don't see 6 a handwritten note. 7 MR. JULIAN FALCONER: In my version -- 8 MR. DERRY MILLAR: That's a different 9 version. You have to use the exhibit version, which as 10 I've explained before, this -- that was put together by 11 the OPP to try to assist everybody. 12 The -- the -- the exhibit copy is Exhibit 13 426. The handwritten note copy is Exhibit 427. The -- 14 neither one of these have -- is the same. So, one (1) -- 15 and as I've explained to the parties before, you have to 16 use 426 and 427. 17 COMMISSIONER SIDNEY LINDEN: There's no 18 handwritten note on my copy of Exhibit 426. 19 MR. JULIAN FALCONER: I understand -- 20 COMMISSIONER SIDNEY LINDEN: That's fine. 21 MR. JULIAN FALCONER: -- Mr. Miller's 22 point, but the handwritten note we're talking about, I 23 don't believe is a scribe note. I thought it was a note 24 of Mr. Carson's. If I'm wrong, I'm sorry. 25 MR. DERRY MILLAR: It's a scribe note.
2291 MR. JULIAN FALCONER: Fair enough. Then 2 the scribe -- handwritten note I have that accompanies 3 mine says: 4 "M. B. Premier is in constant touch. 5 Good communications." 6 M.B., being Marcel Beaubien. 7 Now, assuming for a moment -- 8 MR. DERRY MILLAR: Well, I would ask -- I 9 would ask that we use the -- the exhibit that the Witness 10 has, which is Exhibit 427. 11 MR. JULIAN FALCONER: That's fine. 12 MR. DERRY MILLAR: That is not the 13 exhibit -- the document that was put together as an aid 14 for Counsel to -- and which the Witness doesn't have. 15 MR. JULIAN FALCONER: I hear his point. 16 I can -- I can -- 17 COMMISSIONER SIDNEY LINDEN: That's fine, 18 but I still haven't found that handwritten note, so -- 19 MR. JULIAN FALCONER: That's fine. If 20 you turn to page 468 of the handwritten notes? 21 COMMISSIONER SIDNEY LINDEN: Okay. 22 That's fine. I see what you've done now. Carry on. 23 You've gone from the typed scribed notes, 24 back. 25 MR. JULIAN FALCONER: Yes.
2301 2 CONTINUED BY MR. JULIAN FALCONER: 3 Q: If you turn to 468 of the handwritten 4 notes, sir? 5 A: The -- just for one (1) moment. 6 Before we leave page 71 -- 7 Q: Well, I'm happy to go to other 8 matters but because we're trying to manage a -- a 9 document point, I promise you, sir, as soon as we've 10 managed the document point we will return to your query. 11 And I -- I have no difficulty entertaining 12 -- number 71 is where you wanted me to go, right? 13 A: Yes. Which page do you want me to go 14 to now? 15 Q: 468. If you turn to page 472, you'll 16 see the full conversation in 468 to 472. 17 And if you turn to page 472, what was not 18 included in Exhibit P-426 in the typed version, in other 19 words, this didn't end up typed, but is in the 20 handwritten version and ended up in my book, that's why 21 the confusion, is at page 472 where Marcel Beaubien is 22 quoted as saying, quote: 23 "The Premier is in constant touch. 24 Good communications." 25 A: I see that.
2311 Q: And that was told to both incident 2 commanders that the Premier is in constant touch. And 3 the inference one draws from that and came from Mr. 4 Carson is that Beaubien and the Premier were in constant 5 touch over this issue. 6 And that's similar to Lacroix, isn't it? 7 Lacroix said the Premier was uptight about this; do you - 8 - do you recall that? 9 A: I do, yes. 10 Q: All right. So it's obvious that what 11 is being bandied about in incident command is the fact 12 that the Premier has taken a personal interest in this, 13 correct? 14 A: You could come to that conclusion. 15 Q: Now, if you look at page 468 and 469, 16 we have the same conversation that I read to you on the 17 typed but it's slightly different, so I have to do this 18 and I apologize. It's -- it's -- 19 COMMISSIONER SIDNEY LINDEN: I thought 20 the idea was to ask him if he was aware of these -- 21 MR. JULIAN FALCONER: That's right. But 22 I need to -- to give him -- 23 COMMISSIONER SIDNEY LINDEN: You need to 24 put some more. Okay. 25
2321 CONTINUED BY MR. JULIAN FALCONER: 2 Q: That's right. 18:42, do you see 3 that? 4 A: I see that. 5 Q: "Dale Linton, John Carson, Marcel 6 Beaubien, made fax, sent to Premier. 7 Five (5) minutes after, person called 8 and stated they will be on it." 9 Do yo see that? 10 A: I see that. 11 Q: The -- when you combine that with the 12 statement at page 472, about the Premier is in constant 13 touch, good communications, it's fair to say that a 14 reasonable person reading this would draw the conclusion 15 that incident command was being advised by Marcel 16 Beaubien that the Premier takes a personal interest in 17 this, correct? 18 A: You could reach that conclusion. 19 Q: All right. And did you know that 20 incident command, in the form of Dale Linton and John 21 Carson, were being advised of that only three (3) hours 22 before the decision to detail out Crowd Management Unit 23 against the occupiers? 24 A: I think I said before that I didn't 25 know that Marcel Beaubien was at the command centre and I
2331 didn't know what information was exchanged. 2 3 (BRIEF PAUSE) 4 5 Q: Brief indulgence, Mr. Commissioner. 6 I just have to track down a piece of transcript I wish to 7 read to the Witness in order to determine his knowledge 8 in respect of the evidence of Mr. Carson. 9 10 (BRIEF PAUSE) 11 12 Q: Mr. Carson, in his evidence on May 13 18th, 2005 -- on May 18th, 2005, and if I could ask that 14 it be brought up on the screen. 15 16 CONTINUED BY MR. JULIAN FALCONER: 17 Q: I apologize. The evidence of Deputy 18 Chief Carson on May 18th, 2005 at page 30. And it's a 19 very short passage, so I'm just going to read it to you. 20 Mr. Millar is asking Mr. Carson questions: 21 "Q: Then if I could take you to page 22 450 of Exhibit 427, there's a note to 23 you. There's a note that says, quote: 24 'Sergeant Skinner is to attend command 25 post meeting.' And you wanted Sergeant
2341 Skinner to be part of the command team 2 as it's noted in the handwritten 3 notes?" 4 And these are the same notes that we've 5 been reviewing, sir; all right? 6 A: Yes. 7 Q: "A: That's correct." 8 And you can turn and see it on the screen 9 now. At line 3, the top: 10 "Q: And then it's attributed to you, 11 quote: 'Heat from political side, made 12 strong comments in the house, and court 13 injunction moving along.' And the 14 scribe note include, quote: 'Advised 15 members that court injunction is moving 16 along.' The scribe notes as typed do 17 not include: Heat from political side, 18 made strong comments in the house." 19 Do you see that? 20 A: I see that. 21 Q: Now, just pausing there and leaving 22 that on the screen, could you turn to page 450 of the 23 handwritten notes, please. 24 25 (BRIEF PAUSE)
2351 A: I'm at 450. 2 Q: At 450, do you see where it says: 3 "J.C., if someone can get it, do it 4 tonight. Bring here to office. 5 Skinner be part of command team. Heat 6 from political side. Made strong 7 comments in the House. Court 8 injunction moving along. Keep tonight 9 quiet. Keep on checkpoints wherever 10 you are. Let Logistics know." 11 Now, this is a meeting among the command 12 team, all right? 13 A: Yes. 14 Q: It's a meeting the evening of 15 September 5th, 1995, the day before Dudley George is 16 shot. 17 Mr. Millar asks at page 30, what's on the 18 screen, Mr. Millar asks John Carson about that reference, 19 heat from the political side. Do you see the reference? 20 A: Yes, I see that. 21 Q: At line 13: 22 "And do you recall today what you're 23 referring to when you made those? I 24 take it that this accurately reports 25 these comments as having come from you
2361 on the evening of September 5th?" 2 Mr. Carson answers: 3 "Yes, they are attributed to myself. 4 Q: Do you recall today what you were 5 referring to, heat from political side. 6 Made strong comments in the House? 7 A: I don't recall the -- that 8 particular terminology, however, I 9 suspect I'm reflecting on the 10 discussion Inspector Fox and I had in 11 regards to the Blockade Committee and 12 the issues around whether the different 13 types of injunctions and all those 14 discussions and his general comments, 15 generally. 16 [Mr. Millar] Q: And what about your 17 discussion with Mr. Beaubien -- I mean 18 Mr. Lacroix -- about Mr. Beaubien? 19 A: Well, there would be those 20 comments, obviously, the information 21 that's being passed along through Staff 22 Sergeant Lacroix. There's also the 23 comments from Mayor Thomas, Ken 24 Williams. I mean, there's a number of 25 people at the various areas of
2371 responsibility who are voicing concerns 2 and issues so it's, quite frankly, 3 coming from all angles." 4 Would you please advise the Commissioner 5 as to whether you knew that as far as the incident 6 commander was concerned, the political heat was coming 7 from all angles? 8 A: No. 9 Q: And reading on: 10 "Q: And what -- at six o'clock on 11 September 5th what effect, if any, did 12 the political heat, as you put it, have 13 on you and your planning with respect 14 to this incident? 15 A: Well, certainly what we had been 16 planning and what we continued to plan 17 was our approach to this incident by 18 means of an injunction. All it meant 19 was that we had to stay the course. I 20 was informing people of information 21 that I had received, but the reality of 22 it all is, we simply continue to move 23 forward and there maybe some obstacles 24 at the Ministry level in regards to how 25 the injunction or what type of
2381 injunction, but we are going to 2 continue to pursue our injunction 3 process and that, quite frankly, it's 4 just business as usual." 5 Now, the fact that Inspector Carson was 6 prepared to stay the course in the face of political heat 7 from all angles doesn't change the existence of the 8 political heat, does it? 9 A: I'd just like to -- I think what he 10 said was, So, it's quite frankly coming from all angles. 11 Could you refer to me where he indicates it's political 12 heat? 13 Q: If you reverse on the page, Mr. 14 Millar asked: 15 "Q: And do recall today what you were 16 referring to, heat from political side. 17 Made strong comments in the House. 18 A: I don't recall the particular 19 terminology, however, I suspect I'm 20 reflecting on the discussion Inspector 21 Fox and I had in regards to the 22 Blockade Committee and the issues 23 around the different types of 24 injunctions and all those discussions 25 and his general comments, generally."
2391 Then he's asked: 2 "Q: What about your discussion with 3 Beaubien -- I mean Lacroix -- about 4 Beaubien? 5 A: Well, there would be those 6 comments. Obviously, the information 7 is being passed along through Staff 8 Sergeant Lacroix. There is also the 9 comments from Mayor Thomas, Ken 10 Williams. I mean, there's a number of 11 people at the various areas of 12 responsibility who are voicing concerns 13 and issues so it's, quite frankly, 14 coming from all angles." 15 Now, wouldn't you agree with me, sir, a 16 fair reading of that evidence is he's asked to define, 17 "political heat" and he indicates what that was from his 18 point of view? 19 A: Well, I certainly read there what he 20 -- who he is talking about. He mentions a series of 21 municipal politicians and he mentions, I think -- well, 22 you can connect Mr. Beaubien to it and he talks about the 23 conversations that he's had with Fox. 24 And then he essentially says there's 25 pressure from all angles.
2401 Q: And would you agree with me that you 2 know today, based on what's been indicated to you and 3 based on your own evidence, that Lacroix was responsible 4 for passing on information to Carson from Beaubien? 5 A: I know he -- from what I've seen here 6 today, it's clear he passed on information from Mr. 7 Beaubien. 8 Q: And you were played a tape. 9 A: Yes. 10 Q: And in that tape the information 11 included the personal views of the Premier. 12 A: Yes. 13 Q: And it's fair to say that whether it 14 was the Premier, Premier Mike Harris, who was described 15 as uptight and as a result Lacroix said, We'll be 16 getting, I expect, a signal to evict, whether it was that 17 or whether it was Beaubien speaking directly to Lacroix 18 about his concern and his constituents' concerns. 19 Whether it was the Mayor. As far as 20 Carson testified it was coming from all angles. Yes? 21 A: He indicates that there is -- I've 22 lost the -- 23 Q: Page 31: "It's, quite frankly, 24 coming from all angles." 25 A: Okay. So I --
2411 Q: Page 31, line 9. There's a number of 2 people of the various areas responsibility were voicing 3 concerns and issues so it's quite frankly coming from all 4 angles. That's what he's saying, isn't it? 5 A: That's what he's saying? 6 Q: Now did you know that your incident 7 commander was under this kind of pressure? 8 A: I would -- first of all I did not 9 know the content of this at all. I would certainly 10 expect that the incident commander is under pressure 11 given what he's -- he's there to do. That comes with the 12 job. 13 And no matter who calls, citizens, 14 whatever, that are concerned about things, there is 15 pressure to do the job right. I just don't think, from 16 what I know, that the incident commander changed his 17 views as to what he was going to do as a result of any of 18 those issues. 19 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 20 Downard. 21 MR. PETER DOWNARD: It may be that we're 22 -- we're dealing with a difficulty that's inherent in the 23 vagueness of the word, "pressure." So that it may be 24 viewed as meaning one thing from one angle and another 25 thing from another angle.
2421 But when My -- My Friend appears to be 2 suggesting that what was happening with incident 3 commander Carson is that at least one of these sources of 4 pressure from all directions, that he was referring to in 5 the scribe note, is pressure from my client or members of 6 his government at the time as to how Inspector Carson 7 should do his job. 8 And that's -- and maybe I'm being too 9 strict. But it seems to me that's clearly the 10 implication and clearly the point that what My Friend is 11 saying. And that was not incident commander Carson's 12 evidence. 13 In cross-examination on these very notes 14 he said -- well one of the things that's informing this 15 note is -- is call from Fox on the 5th. And he says: 16 "Ron Fox shared information with me and 17 in no way shape or form is that advice 18 on how I do my job." 19 So it's -- what -- what I'm concerned 20 about is that My Friend is putting facts which, in my 21 view, are being put, at least implicitly, to make 22 suggestions that is contrary to incident commander 23 Carson's evidence. Not a suggestion that is supported by 24 his evidence. 25 MR. JULIAN FALCONER: I read Inspector
2431 Carson's evidence to the witness so I could avoid this. 2 I tried to be fair and I was and I would just like to 3 move on. Because the best I can do is read the evidence, 4 the answer to the question on what he meant. I read the 5 extract in the notes and I read his answer to the 6 questions about the extracts and I would like to move on. 7 COMMISSIONER SIDNEY LINDEN: And if you 8 simply ask the witness if he was aware of that, I think 9 we wouldn't get into any difficulty. 10 MR. JULIAN FALCONER: Well I did, that's 11 what I did. 12 COMMISSIONER SIDNEY LINDEN: Well as long 13 as you don't do anything else. 14 MR. JULIAN FALCONER: That's right. 15 That's why I would like to move on. 16 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 17 Downard. 18 MR. JULIAN FALCONER: This is -- I am 19 concerned that even when I do what I'm directed to do 20 we're still doing this. So that really means that in the 21 end -- 22 COMMISSIONER SIDNEY LINDEN: That's fine. 23 Mr. Downard's entitled to voice his objections. Just as 24 you are, Mr. Falconer. Carry on. 25 MR. PETER DOWNARD: My only concern is
2441 that if Counsel's going to suggest to the Witness what 2 incident commander Carson's evidence was or any other 3 witness' evidence was on a particular point, he has to 4 fairly encapsulate all the evidence. 5 COMMISSIONER SIDNEY LINDEN: I don't 6 think we disagree with that. I think he's trying to put 7 the evidence to him. The way it appears. He's putting 8 from the transcript now. The evidence that he's reading 9 to him comes from the transcript, not from the scribe 10 notes. 11 Okay. Carry on. 12 13 CONTINUED BY MR. JULIAN FALCONER: 14 Q: Thank you. You had mentioned, and I 15 -- I want to give you a full opportunity to do it, you 16 had mentioned you wanted to advise the Commission of 17 something about page 71 of the typed scribe notes? 18 A: Yes. I just wanted to, I guess, 19 reinforce, I -- I've already said that it may have been 20 wiser if Mr. Beaubien was not in the command centre. 21 However, I could understand that there was valuable 22 information that Mr. Beaubien had, and it's sort of 23 outlined in the second paragraph on page 71, where John - 24 - it says: 25 "John Carson brought up the issue that
2451 if the Park is cleared, what happens 2 after that. Marcel Beaubien is 3 concerned about the residents, stated 4 that they are -- that they had a 5 meeting and a hundred (100) or more 6 residents turned out, they are very 7 frustrated. Instructed to contact me 8 if something occurs, and he would try 9 to find out about things. Marcel 10 Beaubien curious about the feelings of 11 Kettle Point people. John Carson 12 advised that he was keeping in touch 13 with Kettle Point to get their 14 feelings." 15 So, clearly, there's valuable information 16 that he's getting there. My -- my feeling is it would -- 17 would be better if he wasn't in the command post and that 18 information was exchanged between another person and him. 19 Q: I want to clarify with you though, 20 it's not just about location. Would you agree with me 21 that some of the topics of conversation are also 22 regrettable? 23 A: Yes. I would prefer but -- but it's 24 -- it's very difficult, it's -- if you're talking to an 25 MLA and he wishes to refer to the Premier, it's difficult
2461 to stop him. But it -- it's unfortunate, you're right, 2 that those conversations were held. 3 Q: Now, we have heard from Deputy 4 Commissioner Carson, then incident commander, that he did 5 not caution his command team about not allowing political 6 heat to affect their decision-making. He -- 7 COMMISSIONER SIDNEY LINDEN: I'm sorry. 8 Mr. Sandler apparently doesn't agree with that 9 characterization of Mr. Carson's evidence. 10 MR. MARK SANDLER: I think that was 11 cleaned up, that he -- he didn't caution them are the 12 precise words in the cross-examination, but I took him to 13 a variety of passages which did precisely that, with 14 great respect. 15 COMMISSIONER SIDNEY LINDEN: I can't 16 remember exactly how it ended, but I want you to put it 17 to him correctly. 18 MR. JULIAN FALCONER: Can I -- can I 19 respond? First of all -- 20 COMMISSIONER SIDNEY LINDEN: Sure. 21 MR. JULIAN FALCONER: -- I -- I don't 22 want to think for a minute that Mr. Sandler cleaned up 23 evidence. I'm hopeful what he did was he re-examined. 24 But assuming he didn't clean up the evidence, the 25 evidence was, and remains today, that when asked
2471 repeatedly by Mr. Klippenstein in particular and then 2 followed-up on by me, he was asked many times: You never 3 sat your men down or talked to your men directly about 4 not giving in to political pressure or not allowing it to 5 influence you? 6 And he repeated that many times. And it's 7 not fair to -- to force me to pull the transcript. I 8 will do it, but it will take us much longer. But that is 9 absolutely unequivocal. And whatever Mr. Sandler may 10 have cleaned up later, I'm allowed to refer to that 11 evidence. 12 COMMISSIONER SIDNEY LINDEN: Yes. 13 MR. MARK SANDLER: I accept that. 14 COMMISSIONER SIDNEY LINDEN: That's fine. 15 MR. MARK SANDLER: I'll withdraw my 16 objection. 17 COMMISSIONER SIDNEY LINDEN: That's fine. 18 MR. MARK SANDLER: That's fine. 19 COMMISSIONER SIDNEY LINDEN: Carry on, 20 Mr. -- 21 MR. MARK SANDLER: I'll argue the 22 implications of it later. 23 COMMISSIONER SIDNEY LINDEN: Carry on, 24 Mr. Falconer. 25
2481 CONTINUED BY MR. JULIAN FALCONER: 2 Q: Having heard the exchange I just had 3 with the Commissioner, I'm -- I'm just asking you, sir, 4 Mr. Carson's evidence, now Deputy Commissioner Carson's 5 evidence quite simply was he did not caution his men 6 about this issue, and -- and I say "men" because the only 7 senior officers were males in -- in incident command. 8 There were women involved too but not the 9 senior officers that were on these meetings involving 10 political discussions. 11 He did not caution his men. And his 12 evidence was he didn't caution them because they knew 13 their duties and they would know not to give in to 14 political pressure, so that he didn't need to caution 15 them. That was the gist of his evidence. 16 Now I ask you, sir, given the decision by 17 the incident commander to involve his command team in 18 this information flow from Fox, and this information flow 19 from Beaubien through Lacroix, and this information flow 20 through the mayor of Bosanquet, given that decision to 21 involve his men, wouldn't it had been preferable for 22 incident commander Carson to have cautioned his senior 23 officers that he can't -- they can't allow that political 24 heat to affect their judgment? 25 A: You're asking me for my opinion?
2491 Q: Yes. 2 A: In the context of whether he did or 3 whether he didn't, and there seems to be some argument 4 about that, but -- 5 Q: Please accept for the purposes of my 6 question that he did not. 7 A: Then he would have to assess the 8 situation and consider did he -- did the situation demand 9 that he caution them or in some instances, occasionally 10 you make the situation worse when you do that, so he'd 11 have to decide which was better and then take that course 12 of action; that would be my opinion. 13 Q: So, you -- you don't express the view 14 that he ought to have cautioned his men? 15 A: Well, it's very difficult for me to - 16 - to decide. If I was there, I would assess what 17 information was available and then I would say I can 18 improve the -- I can improve the -- the issues here by 19 issuing a caution and I really feel I should do it or, 20 given the circumstances as I know it, that may even make 21 the situation worse, so I better not. 22 Q: You'd agree with me, though, that the 23 one (1) way to avoid that question, should I caution them 24 or not, is to never pass on information that's not 25 relevant to their duties, correct?
2501 A: I think I've said consistently that 2 the various notes and remarks that refer to political 3 people and the comments that refer to political people, 4 would be better if that was not -- had not been shared. 5 Q: Could we now turn to page 52 of 6 Exhibit 426, the typed scribe notes. And this is the 7 morning of September 6th, 1995. 8 So, all of these comments, you understand, 9 are the 5th and the 6th before the shooting? You 10 understand that? 11 A: I understand you. 12 Q: All right. 13 A: Which number did you want to go to? 14 Q: Page 52. This is the morning of 15 September 6th, 1995. 16 A: 52? 17 Q: Yes, it's the typed scribe notes. 18 A: Yes. 19 Q: Now, this is a meeting that 20 apparently is between the mayor of Bosanquet, Fred Thomas 21 the -- 22 A: Yes. 23 Q: -- incident commander, Carson, and it 24 includes Mark Wright; based on a review of the two (2) 25 pages it appears to. Mark Wright being, basically, the
2511 second-in-command to Carson based on what we've heard. 2 A: Yes. 3 Q: "8:17. Mayor of Bosanquet, Fred 4 Thomas, attends Command Post." 5 If you look at 8:15 it says: 6 "Mark Wright advises that the Mayor of 7 Bosanquet is here to see him. John 8 Carson advised Mark Wright to bring him 9 in." 10 All right? 11 A: I see that. 12 Q: "John Carson advises -- John Carson 13 advises trying to deal with it best we 14 can. Mayor said they had regular 15 council meeting. This didn't help, 16 plus opening a tender for water line 17 for Ipperwash. 18 Had discussions about water line. John 19 Carson states Tom Bressette is 20 supportive of dealing with the people 21 there. Mayor doesn't want John Carson 22 to take offence to what they're doing. 23 Mayor trying to take low key to this. 24 Mayor feels we are third party here. 25 Mayor doesn't know if Ken Williams
2521 mentioned should be watching Outer 2 Drive. John Carson states they're 3 dealing with it. John Carson put a 4 patrol on it specifically. ERT teams 5 taking care of this. 6 Residents may not be happy going 7 through checkpoints. Fred Thomas 8 states residents are pleased with the 9 visibility of the officers; happy to 10 see you there. 11 Mayor Fred Thomas inquired about school 12 buses. John Carson advising go down 13 there and turn around, we prefer they 14 don't go around the corner. 15 John Carson informed Fred Thomas that 16 three (3) of our cruisers got stoned; 17 smashed windows out of three (3) cars. 18 About forty (40) people there working 19 on injunction. Mayor contacted Marcel 20 Beaubien and informed him of the 21 situation. 22 Fred Thomas inquired about injunction. 23 John Carson advised that if he went in 24 and physically removed them, they are 25 just trespassing, we can only fine
2531 them. Get a court order and fine them 2 with a criminal offence we charge them 3 with. They do it again and we can 4 arrest them and have a bail hearing. 5 Part of conditions usually are they 6 can't go back to location. 7 John Carson advises once we get a court 8 order, then we have the force of the 9 Court that says, yes, the Province owns 10 the Park, we agree they shouldn't be 11 there." 12 Top of 53: 13 "Mayor Fred Thomas states we have full 14 support of community; they are 15 terrorized. John Carson states the 16 Premier and Solicitor General want to 17 deal with this. Interministerial 18 Meeting is this morning. John Carson 19 advised Fred Thomas they moved in 20 garbage containers right up against 21 gate, piled wood and started it on fire 22 and when officers responded, ambushed 23 our guys with rocks." 24 Now, there's a discussion going on between 25 the incident commander and the mayor of Bosanquet, Fred
2541 Thomas, in the presence of the second-in-command, a 2 discussion in which the mayor seeks assurance from the 3 incident commander, the mayor refers to the contact with 4 the MLA. 5 And then, in turn, the incident commander, 6 as you see at the top of page 53, indicates: 7 "The Premier and the Solicitor General 8 want to deal with this." 9 You'd agree with me that this is not 10 information you knew about when you made the claim there 11 was no political pressure on the OPP in relation to the 12 Ipperwash incident? 13 A: I did not know about this 14 information. 15 Q: And you'd agree with me that this is 16 material to the existence of political pressure? 17 A: Yes. 18 Q: And you'd agree with me that it is 19 unfortunate that the incident commander thought that one 20 of his duties included advising what the Premier and the 21 Solicitor General wanted to do about this? 22 A: Yes. 23 Q: I want to pause there, there are 24 other facts but I want to pause there and ask you a 25 question.
2551 Does community policing mean that every 2 police officer performing a function in the course of 3 their investigations should be accessible to every 4 citizen? 5 A: It depends on what you mean by -- I'm 6 really not clear on what you mean by that question. Any 7 police officer doing their -- their normal duties, and a 8 citizen wants to speak to them, yes, they should be 9 accessible to them. 10 Q: Should they be entitled to discuss 11 the operations? 12 A: It would depend on what the issues 13 were. For instance, I come back to an example of, let's 14 say a theft or a -- a break-and-enter from a house. If 15 you're talking to the house owner and they want 16 information as to the status of the investigation, in 17 general terms they're entitled to know. 18 Q: Now, you see the reference to the 19 Premier and Solicitor General at page 53? 20 A: I do. 21 Q: That has nothing to do with the kind 22 of community policing you're talking about, is it? 23 A: I've already said, I think that's 24 unfortunate. 25 Q: And so we don't use community
2561 policing as a reason to explain the discussions of a 2 political nature at incident command, do we? 3 A: I don't think so. 4 Q: No. And in accepting that, in 5 essence, this was unacceptable for an incident commander 6 either, 'A', to be discussing it; right, that -- that's 7 not acceptable? 8 A: It would be better if he didn't. 9 Q: And 'B', would you agree with me 10 that, in fairness, there is very little reason for the 11 incident commander to be receiving this information? 12 A: Well, he's made a generalized 13 statement there and I really don't know what it means. 14 What he needs to be receiving is information with respect 15 to things that are taking place that he is not party to, 16 that will impact on what action he eventually takes. 17 And by that I mean one of the pieces that 18 he has to keep track of is what is happening with respect 19 to the injunction. So, there may be some reason for him 20 to keep track of that information, and so some of that 21 information comes to him through what happens at the 22 Interministerial Committee. 23 What his reference there, "Premier and 24 Solicitor General want to deal with it", just exactly 25 what that means, I'm not sure.
2571 Q: In the context of the other 2 references I showed you, where it says that, "the Premier 3 is of the view"; he says that to this men. Carson says 4 that to his men: 5 "The Premier is of the view that they 6 should be treated like anyone else." 7 You saw that? 8 A: I saw that. 9 Q: You saw the information flowing to 10 Carson through Lacroix -- 11 A: Yes. 12 Q: -- that the Premier is uptight about 13 this? 14 A: Yes. 15 Q: Do you have any doubt that, in 16 essence, there was a free flow of information to incident 17 command about the views of the top political figures in 18 the Province on the Ipperwash incident; do you have any 19 doubt about that? 20 A: There were instances there, clearly, 21 as you look at it, where there were references to the 22 Premier and those -- that information was communicated to 23 others within the ranks of the officers present. 24 Q: And would you agree with me that one 25 way to have avoided this problem is to simply ensure that
2581 the incident commander isn't exposed to this information? 2 A: I agree with you. 3 Q: And so systemically if we're trying 4 to go backwards and fix this, build a better mouse trap-- 5 A: Yes. 6 Q: -- would a better mouse trap include 7 a buffer for the incident commander so that the views of 8 leading political figures are not part of his information 9 base that he proceeds on? 10 Would you agree with that? 11 A: Yes. 12 Q: If Exhibit P-531 can be placed before 13 the Witness please. 14 15 (BRIEF PAUSE) 16 17 Q: And there's only one (1) line I'm 18 going to read from it. I'm going to try to give you the 19 document number in an efficient fashion and I may fail at 20 this. It's the answers to undertakings that included 21 descriptions of the meetings of September 5th and 6th. 22 It's Document Number 6000379. 23 24 (BRIEF PAUSE) 25
2591 Q: Could I see the document you were 2 handed, sir? Could you just turn it facewards towards me 3 please? 4 A: And it is 6000379? 5 6 (BRIEF PAUSE) 7 8 MR. JULIAN FALCONER: Brief indulgence, 9 Mr. Commissioner. There are so many documents that I now 10 have to go down under the desk to get the document I 11 want. 12 13 (BRIEF PAUSE) 14 15 Mr. Commissioner, I thought that the 16 entirety of Document 6000379 was filed when I filed it 17 last day. Obviously I was under a misapprehension. 18 I am referring to page 4 of that document 19 6000379, so Counsel have access to it. I'm afraid the -- 20 the witness doesn't. I'm going to put the single page I 21 want to put to him, in front of the Witness. 22 I'm going to -- is it possible to have it 23 on the board? Thank you. 24 25
2601 CONTINUED BY MR. JULIAN FALCONER: 2 Q: Could you focus on that for a moment. 3 There is a question directed to Scott Patrick. 4 Do you know who Scott Patrick is? 5 A: Yes, I do. 6 Q: He was the assisting -- in essence 7 assisting Inspector Fox in his function as First Nations 8 liaison officer. 9 A: Correct. 10 Q: Now ,among other questions and if you 11 look at this, I -- I assume given this sophistication 12 your position you've been exposed to having to answer 13 questions to undertakings in civil litigation. And 14 that's what this document is. So questions are asked by 15 the Plaintiff in the case the George Estate litigation 16 and answers are provided. 17 At question number 17, do you see Scott 18 Patrick is asked, is in the left column, why did he not 19 keep notes, especially since he took notes at the 20 Interministerial Committee meeting earlier that day. 21 Now, this is the meeting in which Fox 22 meets with the Premier and a number of cabinet ministers. 23 Do you see that? All right? That's the meeting he's 24 talking about. 25 A: I see that.
2611 Q: All right. The answer is provided in 2 the right hand column. Scott Patrick advises, quote: 3 "The discussion that I recall was led 4 by Larry Tamon (phonetic) and centred 5 on the OPP's approach to such an 6 incident. Namely with the goal of 7 successfully negotiating a peaceful 8 resolution of the incident. 9 As I recall the meeting appeared to be 10 a meeting of the Premier and cabinet 11 and I did not feel it was appropriate 12 to take notes." 13 Did you know that officers attended a 14 meeting that appeared to be a meeting of the Premier and 15 cabinet? 16 A: No. And I'm not sure that it was. 17 Q: Well, do you know that it wasn't? 18 A: I do not know. 19 Q: All right. So -- so, you're not 20 going to give an opinion. You don't know that it was. 21 But to Scott Patrick the assistant to Mr. Fox, that's 22 what it appeared to him to be. 23 A: That's what he says. 24 Q: And you didn't know that, did you? 25 A: I did not know that.
2621 Q: And again, when we're talking about 2 the question of whether there was political pressure on 3 senior members of the OPP, it certainly would have been 4 something you would have liked to have known at the time? 5 A: Yes. 6 7 (BRIEF PAUSE) 8 9 Q: In that same document, if the same 10 document could be held up, please? 11 12 (BRIEF PAUSE) 13 14 Q: In that same document, there are a 15 number of descriptions of the meetings at the 16 Interministerial Committee meeting, and I want to read 17 you a couple, or one (1) or two (2) of the descriptions 18 and ask you if you knew or understand that these views of 19 the Premier were being communicated at the meeting, all 20 right? 21 A: You're just going to read from the 22 document or do I get a copy of it? 23 Q: I'm about to produce a copy. Mr. 24 Commissioner, because of my misunderstanding as to what 25 was filed as an exhibit, this -- if we could take a brief
2631 break, I can make sure that the witness has a copy that 2 we can follow, because I know I have an extra copy. 3 COMMISSIONER SIDNEY LINDEN: Well, that's 4 fine, we'll take a brief break. You can stay in place. 5 I'd still like to try to complete the evidence today at 6 4:30. 7 MR. JULIAN FALCONER: Fair enough. 8 COMMISSIONER SIDNEY LINDEN: I think it's 9 not fair to the witness to go any longer than 4:30, so 10 we're going to adjourn at 4:30, but we'll take a brief 11 break now. 12 THE REGISTRAR: This Inquiry will recess. 13 14 --- Upon recessing at 3:57 p.m. 15 --- Upon resuming at 4:09 p.m. 16 17 THE REGISTRAR: This Inquiry is now 18 resumed. Please be seated. 19 MR. JULIAN FALCONER: Mr. Commissioner, 20 and I'm not sort of whining or complaining about it and 21 Mr. Registrar has been great throughout this in terms of 22 his management of paper. 23 I think the -- with respect, there was an 24 error. When I filed the entirety of document 6000379 at 25 the time and read from major portions of it. It was
2641 intended to be filed. 2 What it appears, from the copy that the 3 filing's were removed from this, only the base page for 4 some reason was taken. 5 So, I think there was an error. Mr. 6 Millar and I are agreed to simply file the full document 7 as P-531 to fix it, if that's all right. 8 COMMISSIONER SIDNEY LINDEN: That's fine, 9 so the whole document. 10 MR. JULIAN FALCONER: But, I certainly 11 mean no criticism. It could have been my mistake -- 12 COMMISSIONER SIDNEY LINDEN: No, that's 13 fine. 14 MR. JULIAN FALCONER: I have no idea. 15 COMMISSIONER SIDNEY LINDEN: Exhibit 531. 16 Just before you go on -- well, I'll wait 17 until you've finished. We'll wait to the end of the day, 18 I just wanted to say something about starting early 19 tomorrow morning because we're losing some time and I 20 want to make sure that you finish in the time that you 21 said. 22 So, perhaps we'll have a brief discussion 23 regarding a start time tomorrow morning, at the end of 24 the day, is that okay, yes? 25 MR. JULIAN FALCONER: Fair enough, Mr.
2651 Commissioner. 2 I -- I during the break, asked the -- the 3 witness, through his Counsel, if he wanted to give a 4 quick read to some of the portions I'm going to take him 5 to during the break, so we could try to give him a heads 6 up on the information. 7 8 CONTINUED BY MR. JULIAN FALCONER: 9 Q: Now, in essence, so you have a little 10 context, you recall yesterday that I read to you a 11 portion of the notes of Julie Jai of September 6th, 1995 12 relating to the comment the Premier wants -- the longer 13 they stay there, the more difficult it'd be. Premier 14 wants them out in a day or two (2), words to that effect. 15 A: I believe I recall that. 16 Q: And you pointed out, well, it would 17 depend -- you had problems with it, but it would depend 18 if it was an isolated comment or not. 19 Do you remember that discussion? 20 A: Yes. 21 Q: All right. I want to take you now to 22 September 5th, 1995, another meeting of the 23 Interministerial Committee and what -- what occur -- has 24 occurred is that Deb Hutton is alleged to have made a 25 comment that the Premier is hawkish on this issue,
2661 relating to the occupation of Ipperwash Park. 2 Plaintiff's Counsel through the questions 3 to undertakings, through the questions and answers in 4 undertakings asked, do other members of the 5 Interministerial Committee Meeting, mostly government 6 staffers, do they remember that comment by Deb Hutton, 7 the Premier is hawkish on this issue? 8 And the answers I'm about to take you 9 through are answers given by the political -- I'm sorry, 10 given by the bureaucratic staffers, et cetera, and 11 lawyers about their recollection of Deb Hutton's 12 comments. I'm not by any means reading all of the 13 comments to you. 14 I have given you the full package of paper 15 because there are other people who don't remember the 16 same thing, but I'm reading you some of the comments and 17 I'm going to ask you after I've read them to you whether 18 you knew this information, all right? 19 COMMISSIONER SIDNEY LINDEN: Yes. Just 20 before you do that I see Ms. Perschy has a -- 21 MR. JULIAN FALCONER: I'm at page 13. 22 COMMISSIONER SIDNEY LINDEN: -- objection 23 or a comment or observation? 24 OBJ MS. ANNA PERSCHY: Yes, Commissioner, I 25 do have an objection to this.
2671 One (1) of -- one (1) of the problems that 2 I have with this is that, as Mr. Falconer has just 3 indicated, he's going to be referring to selected 4 passages of what certain people's individual and entirely 5 subjective perceptions were with respect to a particular 6 comment which is all being taken completely out of 7 context. 8 I don't see how it's fair to this Witness 9 to put this sort of information to him and expect him to 10 give you any kind of answer on that that's at all 11 meaningful to you. It's not fair to this Witness and, 12 frankly, it's of no assistance to you. 13 COMMISSIONER SIDNEY LINDEN: Is this 14 information being put to the Witness in the same context 15 as the information -- 16 MR. JULIAN FALCONER: Yes. 17 COMMISSIONER SIDNEY LINDEN: -- that 18 we've been talking about to see whether or not he was 19 aware of it? 20 MR. JULIAN FALCONER: Yes. 21 COMMISSIONER SIDNEY LINDEN: Is that what 22 you're doing? 23 A: Yes. Yes. And we -- we also need to 24 keep in mind this is the same information I ran by 25 Inspector Fox, the liaison police officer who
2681 acknowledged that that information constituted his 2 recollection and understanding of comments by Ms. Hutton 3 on behalf of the Premier. 4 So, in my submission, all I'm asking him 5 to do is tell me whether he was aware of this body of 6 information or not, that I am trying to be fair -- 7 COMMISSIONER SIDNEY LINDEN: Yes. 8 MR. JULIAN FALCONER: -- to point out to 9 him that in the full -- fullness of the document, there 10 are other accounts about it, but I want to know about 11 these accounts and I'm asking about them and since Fox 12 has testified that that's what he remembers -- 13 COMMISSIONER SIDNEY LINDEN: So, it's 14 already on the record -- 15 MR. JULIAN FALCONER: That's right. 16 COMMISSIONER SIDNEY LINDEN: -- in fact, 17 these things? 18 MR. JULIAN FALCONER: That's right. 19 COMMISSIONER SIDNEY LINDEN: Well -- 20 MS. ANNA PERSCHY: Well, that's not 21 quite right. What was put to Mr. Fox was with respect to 22 his own subjective perceptions and whether or not his 23 subjective perceptions coincided with the subjective 24 perceptions of a small number of other participants at 25 this meeting.
2691 This is all entirely subjective, it's not 2 evidence as to what actually occurred at the meeting. 3 There's much better evidence as to what actually occurred 4 at the meeting. 5 COMMISSIONER SIDNEY LINDEN: Yes. 6 MS. ANNA PERSCHY: And -- and this is a 7 significant issue -- 8 COMMISSIONER SIDNEY LINDEN: Yes. 9 MS. ANNA PERSCHY: -- and I -- and I 10 really feel My Friend should tread very carefully on this 11 issue to ensure that there's an accurate -- 12 COMMISSIONER SIDNEY LINDEN: Yes. 13 MS. ANNA PERSCHY: -- and complete 14 context -- 15 COMMISSIONER SIDNEY LINDEN: Yes. 16 MS. ANNA PERSCHY: -- that he provides 17 to this Witness who wasn't at the meeting. 18 COMMISSIONER SIDNEY LINDEN: And 19 witnesses who these comments are allegedly attributed to 20 will be testifying? 21 MS. ANNA PERSCHY: Yes, my understanding 22 is that there will be number of witnesses testifying. 23 COMMISSIONER SIDNEY LINDEN: I think they 24 will. I think a lot of them are coming up. 25 MR. JULIAN FALCONER: But I just want to
2701 be clear about one (1) thing. I agree with My Friend and 2 that's why I prefaced my comments the way I did, but I 3 want to emphasize, the evidence of Inspector Fox was that 4 was his understanding of the gist of the comments. 5 Now My Friend Ms. Perschy says, Well that 6 was a subjective understanding. Of course it was, but 7 what I want to know is, whether that subjective 8 understanding was passed on to the Commissioner, whether 9 he knew about it. 10 Now, does -- does -- does Ron Fox's 11 impressions make it fact? No, but it's information that 12 could be relevant to the answer to the question, there 13 was no political pressure which is a question My Friends, 14 one (1) after the other all asked him and I wanted, under 15 the same rubric, ask him did he know about this from the 16 point of view of Fox who says and adopted this. 17 That -- that's -- and so, that's what the 18 intention, and that's the only intention. 19 COMMISSIONER SIDNEY LINDEN: Mr. 20 Millar...? 21 MR. DERRY MILLAR: I think that -- that 22 it -- he can ask -- if there's a -- some -- a fact, for 23 example, the -- apparently Ms. Hutton said according to 24 Ms. Hipfner, the Premier is hawkish on this issue. Did 25 you know about that?
2711 Facts, you can put, but not somebody 2 else's subjective views, I agree with Ms. Perschy about 3 that, but if -- if there's a statement that is alleged to 4 have been made, then I can -- firstly, he -- he was never 5 -- he wasn't even there, but if you're going to do this, 6 you -- you really only can give him the -- the statement 7 of fact that's attributed to someone and say, did you 8 know about that? 9 MR. JULIAN FALCONER: That's fine, I can 10 -- I can work with that. 11 MR. DERRY MILLAR: And not subjective 12 views. 13 COMMISSIONER SIDNEY LINDEN: That's what 14 I thought we were doing before, just giving facts -- 15 MR. JULIAN FALCONER: And we are still 16 doing it. 17 COMMISSIONER SIDNEY LINDEN: -- and 18 asking if he was aware of them or not. 19 MR. JULIAN FALCONER: That's exactly what 20 we're doing. 21 COMMISSIONER SIDNEY LINDEN: When you go 22 too far afield it gets to be a little hard. 23 MR. JULIAN FALCONER: That's right, but - 24 - but you -- you appreciate it means I need to sift very 25 finely on the documents --
2721 COMMISSIONER SIDNEY LINDEN: Well, I 2 understand that. 3 MR. JULIAN FALCONER: -- to get to -- and 4 I've got that. 5 6 CONTINUED BY MR. JULIAN FALCONER: 7 Q: Now, turn to page 15. Could you turn 8 to page 15, one (1) of the documents I asked you to 9 review, please? 10 A: Yes. 11 Q: And these are the comments attributed 12 to Ms. Hutton at the meeting that Officer Fox 13 acknowledged were made. Julie Jai, who was the Chair of 14 the Interministerial Conference -- Committee, do you know 15 who she is? 16 A: I'm vaguely familiar with the name. 17 Q: All right. 18 A: I wouldn't -- 19 Q: Julie Jai advises -- 20 A: -- I've never met her. 21 Q: And, by the way, the question is 22 posed at page 13; do you see the question at 13? You 23 should see the question: "Please make inquiries" -- this 24 is 13, the left-hand side column. 25 A: I see it.
2731 Q: "Please make inquiries and advise 2 whether individuals in attendance at 3 the meetings recall Ms. Hutton 4 commenting that the Premier was hawkish 5 in the circumstances of such comments, 6 including Ms. Hutton's manner of 7 speaking and other people's reactions." 8 Right? And now I'm taking you to facts 9 though. I just -- I'm just going to go to facts and not 10 impressions. 11 "Julie Jai", at page 15: 12 "Julie Jai advises, Yes, I recall Deb 13 Hutton commenting that the Premier was 14 hawkish on this issue. She was 15 speaking quite assertively and in her 16 capacity as a representative of the 17 Premier's office. The comments were 18 made during an Interministerial 19 Emergencies Committee meeting and were 20 a strong assertion, almost a response 21 to the civil servants' rather cautious 22 approach on the issue." 23 And -- and then, moving on -- 24 MR. DERRY MILLAR: But -- 25 MR. JULIAN FALCONER: I just said,
2741 "moving on." 2 MR. DERRY MILLAR: Okay. But I would ask 3 My Friend, it just -- the question is -- 4 MR. JULIAN FALCONER: I'm trying. I hear 5 you. 6 MR. DERRY MILLAR: -- about hawkish -- 7 MR. JULIAN FALCONER: That's fine. 8 MR. DERRY MILLAR: -- all of the latter 9 part of what you just read was somebodies subjective 10 opinion. 11 MR. JULIAN FALCONER: That's fine. 12 COMMISSIONER SIDNEY LINDEN: Now, I'm not 13 sure what question you're going to ask now. Now that 14 you've stated that fact, what question are you -- 15 16 CONTINUED BY MR. JULIAN FALCONER: 17 Q: Did -- did you -- did you at the time 18 know that Deb Hutton, representative of the Premier, had 19 communicated to -- to members of the Interministerial 20 Committee that the Premier was hawkish on this issue? 21 A: No. 22 Q: Again, given the presence of a 23 representative, Ron Fox, First Nations Liaison Officer 24 among other things, would you agree with me that that 25 would be relevant to the issue of the existence of
2751 political pressure, given the other information I've 2 provided to you? 3 A: It wouldn't be helpful. 4 Q: All right. And -- but would you 5 agree with me it would be relevant to the existence of 6 political pressure that it was being communicated that 7 the Premier was hawkish on this issue? 8 A: It could be perceived that way. 9 Q: And would you agree with me that it 10 could be reasonably perceived that way? 11 A: Yes. 12 Q: Could you turn to page 17, please. 13 A: Yes. 14 Q: Anna Prodanou, another attendee at 15 the Interministerial Committee meeting recounted some 16 other details of the comments by Ms. Hutton; I want to 17 know if you were familiar with it? 18 A: I was not. 19 Q: Quote: 20 "Yes, I do. I recall Deb Hutton saying 21 that the Premier was hawkish. 22 Circumstances were as follows, Ministry 23 staff were advocating caution and 24 debating whether to proceed with an 25 injunction or to wait for the occupiers
2761 demands in order to enter into 2 negotiations with them. Someone said 3 that if the Committee got an 4 injunction, it would have to act on it, 5 and this will escalate the issue. 6 Someone else said the Committee should 7 wait for their statement, that is the 8 occupiers demands. The court will 9 expect the Committee to act on the 10 injunction and to execute it and remove 11 the occupiers. Someone stated that 12 public safety was not an issue. 13 Someone asked what was the government's 14 tolerance level. And there might be 15 some potential damage to Park property. 16 There was a short discussion about 17 another First Nations site, Serpent 18 Mounds, where there was a disturbance. 19 Deb Hutton asked why this Committee, 20 the Interministerial Committee, did not 21 meet to deal with Serpent Mounds. Deb 22 Hutton said that the Premier was 23 hawkish and that, quote: 'We're being 24 tested.' Close quotes. Deb Hutton 25 said that we have clear ownership of
2771 property, maybe we should act. Ms. 2 Hutton interrogated members of the 3 Committee" -- 4 MR. DERRY MILLAR: I -- 5 MR. JULIAN FALCONER: I'm sorry. Stop 6 there. 7 MR. DERRY MILLAR: Yes. 8 MR. JULIAN FALCONER: Stop there. I see. 9 MR. DERRY MILLAR: And My Friend knows 10 when he should stop. 11 MR. JULIAN FALCONER: Don't -- don't 12 attribute -- don't -- 13 COMMISSIONER SIDNEY LINDEN: Okay. 14 That's fine. We stop there and move on. You've read it 15 out. 16 17 CONTINUED BY MR. JULIAN FALCONER: 18 Q: Now, were you familiar with the fact 19 that these comments by Ms. Hutton were made purportedly 20 on behalf of the Premier? 21 A: No, I was not. 22 Q: And, in particular, did you know that 23 the information was being passed on that the Premier felt 24 his government was being tested? 25 A: No, I did not know that.
2781 Q: Would you agree with me that that 2 would be relevant to the existence of political pressure? 3 A: That I'm not sure about. I'm not 4 sure what -- what the inference is there, My government 5 is being tested; I really don't know. 6 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 7 Perschy...? 8 MR. JULIAN FALCONER: Fair enough. 9 COMMISSIONER SIDNEY LINDEN: Ms. Perschy, 10 yes...? 11 MS. ANNA PERSCHY: I'm sorry, 12 Commissioner. 13 COMMISSIONER SIDNEY LINDEN: No, don't be 14 sorry, you -- I appreciate your -- 15 MS. ANNA PERSCHY: I have a concern. 16 COMMISSIONER SIDNEY LINDEN: -- I 17 appreciate your intervention. I appreciate it. 18 MS. ANNA PERSCHY: What's implicit in 19 these questions is that somehow there's pressure on the 20 OPP with respect to what is being said at this meeting 21 and there are a whole lot of assumptions that are going 22 into the -- 23 COMMISSIONER SIDNEY LINDEN: I think 24 the -- 25 MS. ANNA PERSCHY: And I have some --
2791 COMMISSIONER SIDNEY LINDEN: -- question 2 was, if he had known about that information, would that 3 have -- I'm not sure exactly -- I don't want to misstate 4 -- 5 MR. JULIAN FALCONER: Would it be 6 relevant. 7 COMMISSIONER SIDNEY LINDEN: Would it be 8 relevant to the existence of political pressure. 9 MS. ANNA PERSCHY: Precisely. But it's 10 only relevant to the issue with respect to the OPP if it 11 was actually being communicated to the OPP. 12 This is a meeting within government, 13 between political staff and civil servants to talk about 14 the Government's response and to consider various 15 options. 16 It begs the question as to whether or not 17 this was ever to be communicated to anybody within the 18 OPP. And the evidence thus far has been that Ron Fox 19 attended this meeting because he was a representative of 20 the Ministry of Sol Gen. 21 COMMISSIONER SIDNEY LINDEN: But, he was 22 also a police officer and he was a liaison officer. 23 MS. ANNA PERSCHY: He was on secondment. 24 COMMISSIONER SIDNEY LINDEN: He was a 25 liaison officer, he --
2801 MS. ANNA PERSCHY: Well -- 2 COMMISSIONER SIDNEY LINDEN: He 3 understood his role to be a two way communicator. 4 MS. ANNA PERSCHY: That -- that's, 5 frankly, quite contentious as to what, in fact, his role 6 was. 7 COMMISSIONER SIDNEY LINDEN: No, I'm 8 saying, he -- he thought he was. I understand it might-- 9 MS. ANNA PERSCHY: Fair enough. 10 COMMISSIONER SIDNEY LINDEN: -- it might 11 be, but that's what he said. 12 MR. JULIAN FALCONER: The Commissioner 13 testified that he agreed with that. 14 COMMISSIONER SIDNEY LINDEN: No, I know. 15 That's what he said his role was, to pass information 16 both ways. 17 MS. ANNA PERSCHY: Well -- 18 COMMISSIONER SIDNEY LINDEN: More or 19 less. 20 MS. ANNA PERSCHY: There's an issue there 21 as to which way the information was supposed to flow and 22 what kind of information should have flowed. 23 MR. JULIAN FALCONER: I agree with that-- 24 MS. ANNA PERSCHY: But -- 25 COMMISSIONER SIDNEY LINDEN: All right,
2811 carry on, Ms. Perschy. 2 MS. ANNA PERSCHY: I'm not saying that 3 Mr. Falconer doesn't have any questions that he can ask 4 in this area, but he should be exceedingly careful in -- 5 COMMISSIONER SIDNEY LINDEN: Yes. 6 MS. ANNA PERSCHY: -- which questions he 7 asks and -- 8 COMMISSIONER SIDNEY LINDEN: I agree with 9 that. 10 MS. ANNA PERSCHY: And the trouble that I 11 have with the question that he has asked is that it's 12 rolling in a variety of assumptions and frankly, the 13 basis for those assumptions isn't in evidence at this 14 point. 15 COMMISSIONER SIDNEY LINDEN: Well, I 16 agree with that, and that's why we're trying to keep 17 these questions very tight and he agrees that they should 18 be tight. And the last one wasn't as tight as it could 19 have been. 20 And that's your point, is it, Mr. Downard? 21 MR. PETER DOWNARD: Well, my point is 22 that My Friend is trying to find a way to move off the 23 question that you suggested he should be asking and to 24 move back toward the ultimate issue again -- 25 COMMISSIONER SIDNEY LINDEN: Well --
2821 MR. PETER DOWNARD: -- without putting 2 the full and fair context to the Witness. 3 COMMISSIONER SIDNEY LINDEN: We don't 4 want the ultimate issue question. I think we're clear on 5 that, and Mr. Falconer, if you'd try your best to keep it 6 tight, we won't have any more objections. 7 MR. JULIAN FALCONER: And I'm doing that, 8 Mr. Commissioner. 9 COMMISSIONER SIDNEY LINDEN: Okay. 10 MR. JULIAN FALCONER: And I'm also -- I 11 am moving on. I do -- I do want to point something out; 12 this reference to ultimate issue question. 13 I know you didn't make a ruling on it. I 14 do want to establish one thing. Is My Friend Mr. Downard 15 and all the others now conceding that henceforth, no 16 witness will be asked whether, in their view, there was 17 political pressure being exerted on the OPP? 18 Because if -- if I can't ask him to change 19 his evidence about that, then they can't ask the next 20 witness or the witness after that, which is what they've 21 been doing all along. 22 They ask, was there political pressure, 23 the witness says yes or no and then we get up and do the 24 other side of it. 25 Now, if My Friends are now saying that
2831 somehow that question goes to ultimate issue, then what 2 they're, in essence, doing saying we're not going to hear 3 that from them and therefore you won't hear cross on it. 4 I mean, it's -- I just want to caution My 5 Friend that this has got to be a two-way street. 6 COMMISSIONER SIDNEY LINDEN: Yes. Well, 7 we're -- this isn't an ultimate issue debate right now. 8 MR. JULIAN FALCONER: All right, and I -- 9 COMMISSIONER SIDNEY LINDEN: And I 10 think -- 11 MR. JULIAN FALCONER: -- just -- I -- and 12 I'm content to work with what we've got, but I now have 13 run by a number of things by the witness and I have a 14 question I want to ask him, because I don't want to stay 15 in P-531 any longer. I'm finished with it. 16 COMMISSIONER SIDNEY LINDEN: Okay. But I 17 just want to hear Mr. Downard before you start. 18 MR. JULIAN FALCONER: Okay. 19 COMMISSIONER SIDNEY LINDEN: He's got a 20 right to be heard, too. 21 Yes, Mr. Downard...? 22 MR. PETER DOWNARD: Mr. Falconer can ask 23 the Witness, was there political pressure or any witness 24 was there political pressure, and if the witness says 25 yes, say well, why do you say that?
2841 There's nothing wrong with that question. 2 My objection is that what Mr. Falconer has repeatedly 3 trying to do is to conscript this Witness as a trial 4 judge and say I'm going to give you the evidence and you 5 tell me whether that's political pressure or not. And 6 Mr. Falconer gets to cherry pick evidence out of context 7 and not disclose to the Witness other relevant evidence. 8 And, in my submission, that's -- he's -- 9 he's acting in a -- well, I'm not going to say anything 10 personal. It's not an appropriate approach to the 11 evidence, in my submission. 12 COMMISSIONER SIDNEY LINDEN: All right. 13 Let's carry on and -- 14 MR. PETER DOWNARD: Thank you. 15 COMMISSIONER SIDNEY LINDEN: -- not get 16 too carried away. 17 MR. JULIAN FALCONER: No, am I -- 18 COMMISSIONER SIDNEY LINDEN: You're close 19 to the end of the day -- 20 MR. JULIAN FALCONER: That's right. 21 COMMISSIONER SIDNEY LINDEN: And you're 22 close to the end of this document. So, let's get to the 23 end of it. 24 MR. JULIAN FALCONER: I am at the end of 25 the document.
2851 COMMISSIONER SIDNEY LINDEN: Good. 2 3 CONTINUED BY MR. JULIAN FALCONER: 4 Q: Now, I've -- I've -- Mr. 5 Commissioner, and Mr. Commissioner, I'm asking Mr. 6 O'Grady now, I've read -- you testified -- Mr. O'Grady 7 you testified in-chief, and you testified in answer to 8 questions by lawyers for politicians. 9 You answered their questions that as far 10 as you were concerned there was not political pressure on 11 the OPP. 12 Do you remember saying that? 13 A: Yes, I do. 14 Q: All right. And you didn't say simply 15 there was no political pressure on me. You said there 16 was no political pressure on the OPP. 17 Do you remember saying that? 18 A: I remember saying that. 19 Q: All right. Now, what I'm asking you 20 is based on all of the information I took you to and only 21 based on that because to be fair to you I didn't take you 22 to a whole plethora of other things. 23 But, based on that information, would you 24 agree with me there is now some doubt in your mind as to 25 whether political pressure existed on the OPP based on
2861 that information? 2 COMMISSIONER SIDNEY LINDEN: Before you 3 answer the question, Mr. Downard has an objection. 4 OBJ MR. PETER DOWNARD: It's just the same 5 objection. 6 COMMISSIONER SIDNEY LINDEN: Well I -- 7 MR. PETER DOWNARD: This Witness was not 8 -- was not present in these events. This Witness is 9 being asked to make a conclusion of fact on fragmentary 10 evidence. And -- and in my respectful submission, it's 11 improper. 12 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 13 Henderson...? 14 MR. WILLIAM HENDERSON: With respect to 15 My Friend's objection, Commissioner, former Commissioner 16 O'Grady is being conscripted as the former commissioner 17 who was the commissioner at the time. He formed opinions 18 and he made statements at that time. He's repeated them 19 here as I mentioned earlier. 20 If, in light of further information he 21 would qualify or change some of those statements, 22 opinions or perceptions of his, as a commissioner that 23 does not conscript him as a trial judge. It is a 24 perfectly legitimate line of questioning which normally 25 we would call cross-examination.
2871 COMMISSIONER SIDNEY LINDEN: It's his 2 opinion, it's not mine. That's what you're saying. 3 Yes, Mr. Rosenthal? 4 MR. WILLIAM HENDERSON: Nor is it intended 5 to supplant yours. 6 COMMISSIONER SIDNEY LINDEN: Yes, I 7 understand. 8 MR. PETER ROSENTHAL: I was simply going 9 to say that. Under cross-examination he's asking him, do 10 you resile from your earlier position? That's a 11 standard question. 12 COMMISSIONER SIDNEY LINDEN: Yes. You're 13 saying you -- in light of this information that you 14 weren't aware of at the time you made your original -- 15 MR. PETER ROSENTHAL: Yes. Given this 16 information that I put to you, does that create doubt in 17 your earlier answer. That was the question and it's 18 entirely appropriate. 19 COMMISSIONER SIDNEY LINDEN: I think it's 20 a legitimate question. 21 Shall I hear from you, Mr. Millar? 22 MR. DERRY MILLAR: No, I don't think that 23 you have to hear from me. I think that it's fair to ask 24 him that question in my mind. 25 COMMISSIONER SIDNEY LINDEN: Yes. Well I
2881 think it's a question and it's the last question of the 2 day, unless there's something that comes right out of 3 it. 4 MR. JULIAN FALCONER: Well, yeah. I -- 5 I don't want the witness to get the last question of the 6 day. 7 COMMISSIONER SIDNEY LINDEN: I'm sorry. 8 Unless there's something that comes right out of it. 9 MR. JULIAN FALCONER: That's right. 10 11 CONTINUED BY MR. JULIAN FALCONER. 12 Q: And so again I ask you, sir, based on 13 the information I've imparted to you from the scribe 14 notes, from the notes of -- of parties at meetings, does 15 this information now create some doubt in your mind as to 16 the existence of political pressure on the OPP? 17 A: Having seen that, I think, using one 18 of your phrases, a reasonable person might feel that 19 there was a perception of -- there's a perception of 20 influence. 21 Q: And you'd agree with me that that 22 perception of influence arises because of the indications 23 in the records that the Premier's opinion, among other 24 things, was being passed on to operations at the OPP, 25 correct?
2891 COMMISSIONER SIDNEY LINDEN: Well 2 again -- 3 4 CONTINUED BY MR. JULIAN FALCONER. 5 Q: You'd agree with me that in some 6 people's minds, that's all I said, I didn't say it 7 happened in some people's minds. You have people saying 8 the Premier is uptight. You have people saying the 9 Premier's hawkish. You have people saying the Premier 10 wants them out in two (2) days. 11 These are opinions. The Premier may never 12 have said any of these things. Mike Harris one day will 13 take the stand and we'll hear from him. But, these were 14 the impressions passed onto incident command. 15 It's based on those impressions being 16 passed on that you say there's a perception of political 17 influence; isn't that right? 18 A: A person looking in knowing that 19 could come to the conclusion I think that they perceived 20 that there was political pressure. 21 Q: And if you had known this 22 information, I shared with you this afternoon in such a 23 painful way, if you had known about this information 24 would it create some doubt in your mind as to the 25 existence?
2901 Would you be so confident that there was 2 no political pressure? 3 A: I would have some concern. 4 Q: Thank you, sir. Now, I had a four 5 (4) minute line of questioning on an area that I was 6 hoping to close off today, but I don't have to. 7 COMMISSIONER SIDNEY LINDEN: If it's four 8 (4) minutes you can do it. 9 MR. JULIAN FALCONER: It's four (4) 10 minutes. 11 12 CONTINUED BY MR. JULIAN FALCONER: 13 Q: Yesterday you testified in relation 14 to the -- a role of Ms. Todres and I actually have the -- 15 the transcript. If it could just be passed onto the 16 Witness. I'm going to read three (3) lines to him and I 17 want to make sure that he gets it. 18 19 (BRIEF PAUSE) 20 21 Q: At the bottom of 252, you testified - 22 - this is yesterday in answer to my questions. It's the 23 front page of the extract. I asked you: 24 Elaine Todres, [at line 5] was in the 25 room when Ron Fox attended and made the
2911 statements that he did and when Ron Fox 2 attended and describes how the 3 situation developed in terms of the 4 Premier's comments, could you assist 5 me? Elaine Todres never told you about 6 this? 7 Your answer: 8 She did not. Again, she should have, 9 would you agree? 10 And you said: 11 It's hard for me to know. You say she 12 was in the room." 13 And then I said: 14 "Hypothetically, if she was there." 15 And it's the next page I want to ask you 16 about, the top of page 253? You said this, you said -- 17 and Elaine Todres was the Deputy Solicitor General at the 18 time, correct? 19 A: Yes, she was. 20 Q: All right. You said, quote: 21 "Elaine Todres is neither a police 22 officer or a lawyer and she's used to 23 dealing with other line ministries. 24 And if you recall information with 25 respect to the Ministry of Natural
2921 Resources, there are no such 2 restrictions for them. 3 And I think there was information that 4 most other provincial ministries 5 operate in a different manner than the 6 Minister of the Solicitor General when 7 it came to the OPP. So, whether she 8 knew or whether she knew that she 9 should advise me if she knew, I don't 10 know." 11 Now, you said that yesterday? 12 A: Yes. 13 Q: Was it true? 14 A: Whether she knew she should advise me 15 or not? 16 Q: No, was what you explained here about 17 Elaine Todres, was it true? 18 A: I'm not entirely sure. 19 Q: It is accurate what you say at the 20 top of 253? Do you resile from it, is it accurate? 21 A: I think it is. 22 Q: All right. So it's your evidence 23 that the Deputy Solicitor General, the -- the person who 24 is to be the buffer, right? 25 A: Yes.
2931 Q: Was a person that you're not 100 2 percent sure actually understood the intricate rules that 3 attended the separation between police and politicians; 4 is that true? 5 You're not 100 percent confident about 6 that? 7 A: I think it would be unfair for me to 8 say that she did not. She may very well have. I'm -- 9 I'm -- what I'm saying is, I don't really know. 10 Q: That's right. And so you, as the 11 Commissioner of the OPP, viewed Ms. Todres as, as you put 12 it, the buffer between you and the Solicitor General? 13 A: Yes. 14 Q: But as you sit here today -- and you 15 met with her numerous times? 16 A: Yes. 17 Q: And you reported directly to her? 18 A: Yes. 19 Q: But as you sit here today, you don't 20 really know, based on what you knew about her and her 21 experiences, whether she really understood the line 22 between police operations and politics, correct? 23 Isn't that what you're saying? 24 A: As I -- as I think back right now I'm 25 trying to think of instances that would indicate to me
2941 that she did or she didn't and I can't think of any so I 2 -- I really can't go beyond that. 3 Q: And so, you don't know? 4 A: I don't know. 5 Q: Thank you, that's it for today. 6 Thanks. 7 COMMISSIONER SIDNEY LINDEN: Thank you 8 very much. That's the end of the evidence for today. 9 MR. DERRY MILLAR: And, if I might remind 10 My Colleagues about the meeting at 5:00 -- 11 COMMISSIONER SIDNEY LINDEN: Yes. 12 MR. DERRY MILLAR: At the Forest Golf and 13 Country Hotel. And also you were going to raise the 14 issue -- 15 COMMISSIONER SIDNEY LINDEN: Yes. 16 MR. DERRY MILLAR: -- about starting a 17 little earlier tomorrow morning? 18 COMMISSIONER SIDNEY LINDEN: Yes, we're 19 trying to make up some time and we're bringing a witness 20 up from Toronto tomorrow and we want to make sure that we 21 reach him so we thought we might start at 8:30. 22 MR. JULIAN FALCONER: I'm -- because I'm 23 the one dragging it out in the sense that I'm taking -- 24 although I'm taking what I said I would -- 25 COMMISSIONER SIDNEY LINDEN: Yes.
2951 MR. JULIAN FALCONER: -- I'm happy to 2 cooperate any way you want, Mr. Commissioner. 3 COMMISSIONER SIDNEY LINDEN: Would you 4 start at 8:30? 5 MR. JULIAN FALCONER: That's fine. 6 COMMISSIONER SIDNEY LINDEN: And you're 7 still reasonably certain that you'll be finished within a 8 couple of hours? 9 MR. JULIAN FALCONER: I'll be finished by 10 1l:00. 11 COMMISSIONER SIDNEY LINDEN: Well, if we 12 start at 8:30, you might be finished -- 13 MR. JULIAN FALCONER: I thought I'd get a 14 little slack because I was given it -- none. All right. 15 COMMISSIONER SIDNEY LINDEN: Well, the 16 idea is to get -- get finished -- 17 MR. JULIAN FALCONER: All right. No, 18 that's fair. I got it. 19 COMMISSIONER SIDNEY LINDEN: -- so we can 20 be sure that we'll finish. I don't -- 21 MR. JULIAN FALCONER: Now, what I would 22 ask, Mr. Commissioner, is there is a matter in -- in our 23 research -- excuse me if I just obtain a binder? 24 COMMISSIONER SIDNEY LINDEN: That's fine. 25 I didn't ask all the Counsel, but I presume that there
2961 isn't any difficulty, everybody's here and we could start 2 at 8:30, I presume. And no one is vociferously objecting 3 and I appreciate that. That doesn't mean we're going to 4 do it every day, but we'll do it tomorrow. 5 MR. JULIAN FALCONER: Mr. Commissioner, 6 at a symposium of June 29th, 2004 a paper was presented 7 and it's entitled, "Conference Draft by Kent Roach on 8 Four Models of Police Government Relationships." 9 And we have here the Commissioner of the 10 OPP for ten (10) years. There are discussions by Mr. 11 Roach, academic discussions, on the realities -- 12 COMMISSIONER SIDNEY LINDEN: Yes. 13 MR. JULIAN FALCONER: -- of oversight. 14 COMMISSIONER SIDNEY LINDEN: I'm aware of 15 the paper, it's on our website. 16 MR. JULIAN FALCONER: That's right. And 17 I think that we would be all -- we would benefit, and I'm 18 not just trying to suck up, Mr. O'Grady, although I do 19 that too. We would all benefit from hearing Commissioner 20 O'Grady's views on some of these. 21 I may not agree with those views, I may 22 critically challenge him on it, but I think it's 23 important that we don't lose the benefit of Commissioner 24 O'Grady's views on some of these important systemic 25 issues; that's where I'm going tomorrow.
2971 Because he -- he spoke to the issue of a 2 Deputy Solicitor General as a buffer, et cetera. And 3 without something -- some meat to work with, this -- this 4 Commission ends up in a vacuum. 5 And I would respectfully suggest that if I 6 gave the paper to Mr. O'Grady and asked -- gave him an 7 opportunity to look at it over the evening and then I was 8 careful in slowly putting in some passages, not the whole 9 paper by any means, but that along with the other 10 references in Commission Counsel's roles of Deputy 11 Solicitor General, Solicitor General, control of police 12 by State, those papers at Tabs 5 and 92, I believe, are 13 the tab references, if -- if Mr. O'Grady could look at 14 the Roach (phonetic) paper, I have some questions I want 15 to ask him about models of oversight, which, I want to 16 emphasize, if we don't -- if we lose the benefit -- 17 COMMISSIONER SIDNEY LINDEN: No, no. 18 That's fine. You don't need to make a speech. We 19 commissioned those papers, we put them on the website so 20 people would look at them, would read them and would 21 comment on them. 22 MR. JULIAN FALCONER: Thank you. 23 COMMISSIONER SIDNEY LINDEN: So I have no 24 problem with you doing that. If Commissioner O'Grady has 25 the time and the energy to look at them overnight, I'm
2981 sure you'll be able to ask him questions about them 2 tomorrow. 3 MR. JULIAN FALCONER: Thank you. 4 COMMISSIONER SIDNEY LINDEN: So we'll 5 adjourn now and we'll see you all tomorrow morning at 6 half past 8:00. Thank you. 7 THE REGISTRAR: This Public Inquiry is 8 adjourned until tomorrow, Thursday, August 25th, at 8:30. 9 10 --- Upon adjourning at 4:38 p.m. 11 12 13 14 15 Certified Correct 16 17 18 19 20 ________________________ 21 Dustin Warnock 22 23 24 25