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 25th, 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 ) The Estate of Dudley 8 Vilko Zbogar ) (np) George and George 9 Andrew Orkin ) (np) Family Group 10 Basil Alexander ) 11 12 Peter Rosenthal ) (np) 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 ) (np) Kettle Point & Stony 19 Jonathon George ) (np) Point First Nation 20 Colleen Johnson ) 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 ) Robert Runciman 10 Alice Mrozek ) (np) 11 Harvey Stosberg ) (np) Charles Harnick 12 Jacqueline Horvat ) (np) 13 Douglas Sulman, Q.C. ) 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 ) (np) 24 Danya Cohen-Nehemia ) (np) 25
51 TABLE OF CONTENTS 2 PAGE NO. 3 List of Exhibits 6 4 5 Discussion 6 THOMAS BERNARD O'GRADY, Resumed 7 8 Continued Cross-Examination by Mr. Julian Falconer 8 9 Cross-Examination by Mr. Anthony Ross 139 10 Cross-Examination by Mr. Matthew Horner 166 11 Cross-Examination by Mr. Mark Sandler 184 12 Re-Direct Examination by Mr. Derry Millar 236 13 14 15 SCOTT COLIN Hutchison, Sworn: 16 Examination-In-Chief by Ms. Katherine Hensel 250 17 18 19 20 Certificate of Transcript 326 21 22 23 24 25
61 EXHIBITS 2 No. Description Page 3 P-631 1989 Hansard Extracts, May 18/89 to 4 May 29/89. 73 5 P-632 Document Number 2001028. MSGCS issue 6 note, version 25, November 07/'96. 7 Issue: First Nations Occupation, 8 Ipperwash Provincial Park 9 (HBF 96, Level 1). 187 10 P-633 Curriculum Vitae of Scott C. Hutchison. 251 11 12 P-634: P-634: Document Number 1011745. Criminal 13 and civil proceedings to terminate 14 the occupation of Ipperwash Provincial 15 Park by the "Stoney Pointers".284 16 17 P-635 Scott Hutchison's hand written notes 18 Sept.06 to 07/'95. 19 305 20 21 22 23 24 25
71 --- Upon commencing at 8:30 a.m. 2 3 THE REGISTRAR: This Public Inquiry is 4 now in session, the Honourable Mr. Justice Linden 5 presiding. Please be seated. 6 COMMISSIONER SIDNEY LINDEN: Just a 7 couple of quick points before we start. 8 The first one, I want to thank everybody 9 for coming at 8:30 and being on time, not a single, 10 solitary complaint, and I do appreciate that. 11 The second thing I wanted to say is just 12 at the end of the day Mr. Falconer said something about 13 cross-examining on an expert report that we've had 14 commissioned. I just want to make sure we're on the same 15 wavelength. I'm sure we are. 16 But just to be clear, we do have a policy 17 of not cross-examining in a classic sense on those 18 papers. Those papers were prepared for the purpose of 19 assisting all of us, parties and a Commissioner, to ask 20 better questions if necessary and to make recommendations 21 at the end of the day. 22 We go to great lengths not to refer to any 23 of the facts in this matter specifically and we ask all 24 of the experts not to make any reference. And the papers 25 are still in draft form, but the ideas contained therein,
81 of course, are useful; that's what we do them. That's 2 why we put them on the website. 3 And if anybody finds those ideas useful in 4 formulating questions, that's fine, but it isn't classic 5 cross-examination. I want you to understand that and I'm 6 sure we all do. 7 So, I think with that we will proceed. 8 9 (BRIEF PAUSE) 10 11 MR. JULIAN FALCONER: Sorry, Mr. 12 Commissioner, just a brief indulgence. 13 COMMISSIONER SIDNEY LINDEN: Thank you. 14 15 THOMAS BERNARD O'GRADY, Resumed; 16 17 CONTINUED CROSS-EXAMINATION BY MR. JULIAN FALCONER: 18 Q: Good morning, Mr. O'Grady. 19 A: Good morning, sir. 20 Q: Mr. O'Grady, yesterday we closed with 21 some questions with respect to your understanding of Ms. 22 Todres' knowledge of issues surrounding the separation 23 between police and politicians. 24 Do you recall that discussion? 25 A: Yes.
91 Q: You had expressed some uncertainty in 2 that area. I'm trying to be fair to you. I don't -- I'm 3 not trying to recast it. I think you expressed some 4 uncertainty as to her knowledge? 5 A: I did and I think I'll -- I'll let my 6 answer stand. 7 Q: Sure. 8 A: And I'm -- I'm sure that she can 9 address that issue. 10 Q: And am I right in inferring from what 11 you said, and now this is an inference, that is, I'm 12 going beyond what you answered and now I'm going to the 13 next step and I'm making a suggestion to you. 14 Am I right in inferring from that that you 15 had no discussions with Ms. Todres about that specific 16 issue? 17 A: If we did I can't recall them. 18 Q: All right. And taking it a step 19 further, that, in part, accounts for your uncertainty? 20 A: Yes. 21 Q: And am I also right in inferring from 22 that then and -- and maybe I'm wrong that there was no 23 formal mechanism by which you briefed Ms. Todres on your 24 understanding of the division between politicians and 25 police?
101 A: I don't recall having done that. 2 Q: And there existed at -- during the 3 time of your -- I'm sorry, there did not exist -- I 4 rephrase -- there did not exist during the time of your 5 term as a commissioner, a formal training mechanism for 6 you and the Deputy Commissioner together on this issue? 7 A: No, the only -- 8 Q: I said Deputy Commissioner. I'll 9 have to rephrase again. I apologize, sir, it's the early 10 start. 11 There did not exist a formal training 12 mechanism for you and the Deputy Solicitor General 13 together. 14 A: No. 15 Q: Thank you. 16 A: I would just add and I think we all 17 know it, there was a -- there was a policy paper which 18 had been introduced in 1991 and that was available to 19 anybody to read. And I think I indicated that I had read 20 it, but that was it. 21 Q: And in terms -- and we're going to 22 get to that and I believe it's located at Tab -- 23 A: Yes. 24 Q: -- 4 of the Commission Counsel's 25 documents.
111 But, did you know of any formal training 2 mechanism available to the Deputy Solicitor General on 3 this issue independent of you? 4 A: I don't know of one. 5 Q: All right. And then was there a 6 formal training mechanism for you as commissioner, 7 independent of the Deputy Solicitor General? 8 A: I don't recall one. 9 Q: All right. And you'd agree with me 10 that as commissioner for ten (10) years you'd probably 11 remember if you were formally trained on divisions of 12 power between politicians and police? 13 A: I would hope that I would. 14 Q: Right. So stopping there because I'm 15 in my own poor ways going to forget to raise this with 16 you. 17 Would you agree with me that given the 18 facts in this case and potentially your experience over 19 ten (10) years that such formal training mechanisms would 20 have a useful purpose? 21 A: I think it would be useful if there 22 was a definite format with respect to training and also a 23 definite format as to what the relation should be and 24 that that format was approved by an appropriate 25 authority.
121 Q: So, in your mind you -- and if I can 2 take -- I'd rather use your words because this is you 3 idea, in your mind it's not just the question of 4 training, it's the question of creating clearer rules? 5 A: Exactly. 6 Q: By the appropriate authority? 7 A: Yes. 8 Q: All right. And -- and I'm going to 9 get to that, the issue of clearer rules, but just taking 10 a step back, even if no clearer rules existed, there are 11 some rules right now? 12 A: There is a -- there is a section in 13 the Police Act that -- that speaks to the relationship of 14 the Commissioner and the Minister. I don't think there 15 are any rules that relate to the Deputy Minister -- 16 Q: Fair enough. 17 A: -- in the Police Act. 18 Q: In the section in the Police Services 19 Act, Section 17, it refers to the relationship between 20 the Solicitor General and the Commissioner. It simply 21 says: 22 "Subject to the direction of the 23 Solicitor General the Commissioner has 24 the following powers." 25 Correct?
131 A: Yes. It's very broad. 2 Q: Right. There are however conventions 3 and practices that attend to the relationships between 4 the Solicitor General and the Commissioner on the one 5 hand and then the Solicitor General, the Deputy Solicitor 6 General, and the Commissioner on the other hand, correct? 7 A: Correct. 8 Q: And those conventions and practices, 9 even if we were not to create any further rules or 10 recommend any further rules, it would make some sense to 11 have formal training mechanisms on those conventions and 12 practices, would you agree? 13 A: I would agree. 14 Q: And you'd agree with me that as far 15 as you know, as you sit here today and based on the ten 16 (10) years as commissioner, there were no such formal 17 training mechanisms certainly from the point of view of 18 the OPP? 19 A: I -- I think the extent of it would 20 be reading the brief. 21 Q: I'm not try to be facetious about it, 22 but if you tell a group of people there's a paper out 23 there, some of the people that are different than me will 24 go out there and read that paper. Many people as you 25 know will not. Am I right?
141 A: That probably is true. I was 2 basically trying to make it clear, the brief was there 3 and you could read it; that's it. 4 Q: But that's not a formal training 5 mechanism is it? 6 A: Not -- not in the sense that we think 7 of the application of training, no. 8 Q: No. So there -- leaving aside 9 creating new rules because that's -- or creating rules, 10 that -- that's an important issue. Just the issue of 11 training on what body of information we do have certainly 12 is, in your mind, a good idea. 13 A: I think so. 14 Q: And it doesn't exist right now. 15 A: No. 16 Q: Thank you. 17 A: Perhaps I would qualify that in that 18 it didn't exist when I retired in 1998. 19 Q: Fair enough. Fair enough. Now we 20 dealt with the level of knowledge of Ms. Todres as far as 21 you knew and to be fair to Ms. Todres, she's going to 22 testify -- 23 A: Yes. 24 Q: -- and -- and you can't give any 25 certainty on this issue. You gave more confident answer,
151 in respect of Mr. Runciman, I recall. 2 A: Yes. I always found that -- or I 3 always felt that in any discussions with him that he had 4 it under good -- a good understanding of that. 5 Q: And I recall you explained it in- 6 chief, and I don't want to make you repeat evidence, but 7 I'm going to have to ask you to, because otherwise I'm 8 going to get it wrong and then we're going to get off the 9 side. 10 What was the con -- basis of your 11 confidence of his knowledge? 12 A: Well, first of all, he was the -- the 13 critic before he became the Minister, so he was focussed 14 on police issues. There was an incident that arose some 15 time after I was appointed with respect to the Minister 16 of the day. 17 And the -- the accusation was the 18 perception or influence -- perception that the police 19 could have been influenced by the Minister's actions. 20 Mr. Runciman was quite active in 21 addressing that issue in the house and the end result of 22 it was that the Minister resigned. And I certainly had 23 the understanding that because of the result of it, and 24 because he was the Minister, that he had a full 25 understanding of the dangerous of treading into police
161 operational issues. 2 Q: And did you perhaps misspeak yourself 3 just now. You said because he was the "Minister". Do 4 you mean because he was the critic? 5 A: When he became the Minister. 6 Q: Oh, I see, all right. 7 A: I wouldn't have been talking to him 8 before, but since when he became the Minister, I had the 9 sense that because of that he had -- he took a great deal 10 of care to make sure that he did not tread into 11 operational issues. 12 Q: And I take it you raised that example 13 on the last day, I believe, when you spoke to this during 14 your examination in-chief, you actually named the person 15 who was forced to -- to resign. Who was that? 16 A: I can do that. 17 Q: It's Joan Smith. 18 A: Yes, it's Joan Smith. 19 Q: Right. And I take it you referred to 20 that incident -- I know, you're not trying to embarrass 21 Ms. Smith? 22 A: No, I hope not. 23 Q: No, no and understand it's a little 24 bit awkward but -- 25 A: Yeah.
171 Q: -- but in terms of that example and 2 you having raised it, you raised it in the context where 3 you candidly acknowledged to Mr. Millar you had no direct 4 discussions with Mr. Runciman about that notion of a 5 division between police and -- and politicians, correct? 6 A: When he became minister or when -- 7 Q: Yes. 8 A: -- he was a critic? 9 Q: When he became minister. 10 A: I don't recall that I did, but -- 11 Q: Right. 12 A: -- I certainly the sense in dealing 13 with him that he understood. 14 Q: Fair enough. And the reason you 15 raised the -- the -- that past example when Mr. Runciman 16 was critic is, as far as you were concerned, that past 17 example was quite similar in triggering the same issues 18 as the issues relating to the allegations of political 19 interference in the Ipperwash incident? 20 A: Well, I think it was -- it was posed 21 on perception, the perception of interference, in that 22 incident. I don't think there was any conclusion reached 23 that there was interference, but certainly there was the 24 perception of interference, and in that respect, it's 25 similar to what we've been talking about earlier.
181 Q: And it's similar because it involved 2 the OPP, yes? 3 A: Yes. 4 Q: And it actually involved the OPP when 5 you were the Commissioner? 6 A: That's correct. 7 Q: And so you had somewhat of a personal 8 knowledge about it? 9 A: That's correct. 10 Q: And so when you tell us about it, you 11 tell us about it from the vantage of someone who had 12 personal involvement and knowledge about it? 13 A: Correct. 14 Q: And you tell us about it because it 15 involved the Solicitor General, yes? 16 A: Yes. 17 Q: And it involved allegations of a 18 Solicitor General creating a perception of improper 19 interference of police operations? 20 A: Correct. 21 Q: All right. While Ms. Murray was 22 tending her sick child, she was digging among Hansards to 23 track down some information on this. 24 Could I ask that two (2) -- one (1) be 25 provided to the Witness, please?
191 These are the Hansard extracts? 2 3 (BRIEF PAUSE) 4 5 COMMISSIONER SIDNEY LINDEN: Are we 6 seeing this for the first time, Mr. -- 7 MR. JULIAN FALCONER: Yes, we -- 8 COMMISSIONER SIDNEY LINDEN: -- Falconer? 9 MR. JULIAN FALCONER: I got the answer 10 during an examination in the last two (2) days and we -- 11 we did a lot of work to find the Hansard references in 12 1989 to this. 13 So, this was some simple -- 14 COMMISSIONER SIDNEY LINDEN: Yes. 15 MR. JULIAN FALCONER: -- and we're moving 16 as best we can. And what I'm going to do is take the 17 Witness to some portions that I say, with respect, are 18 very relevant to the issues he's testified to and the 19 issues we're dealing with. And I will do it slowly and 20 make sure I'm fair to the Witness. 21 And I also have one (1) final clean copy. 22 I'm not taking us through this whole document piece by 23 piece. I'm providing the large document to be fair to my 24 colleagues. 25 I gave a copy to Mr. Sandler so that they
201 have it -- the large context. 2 COMMISSIONER SIDNEY LINDEN: Yes. 3 MR. JULIAN FALCONER: But I intend to be 4 quick and efficient. There's only some passages I want 5 to take him to. 6 COMMISSIONER SIDNEY LINDEN: That's fine. 7 Yes, sir, you're speaking on behalf of Mr. Runciman? 8 MR. IAN SMITH: I was wondering if I 9 could get a copy -- 10 MR. JULIAN FALCONER: Certainly -- 11 MR. IAN SMITH: -- from my Client? 12 MR. JULIAN FALCONER: That's fair and -- 13 and that's the -- I'm glad, one (1) copy left. 14 COMMISSIONER SIDNEY LINDEN: If you want, 15 again, if you want to take some time and look at this, 16 Commissioner O'Grady, I think you should, but Counsel has 17 said he's going to take you through it slowly. 18 MR. JULIAN FALCONER: That's right. 19 That's right. 20 COMMISSIONER SIDNEY LINDEN: Well, if you 21 run into any difficulty and you need to stop and look at 22 it, then we'll just do that. 23 THE WITNESS: I'm comfortable. 24 25 CONTINUED BY MR. JULIAN FALCONER:
211 Q: All right. If you could look at the 2 first paragraph on page 1 and if the dates aren't on 3 every copy I've provided, I'm going to give the date on 4 each page. 5 So, the date for this is May 18th, 1989; 6 that's page 1. And, by the way, that reference to 7 Solicitor General's visit to police station comes 8 straight from the Hansard, not -- not from somebody's 9 imposed font. 10 Now, it states, quote: 11 "Mr. Runciman: My question is to the 12 Solicitor General about her visit to 13 the Lucan Police Station in the early 14 morning of 9 April and her phone call 15 to it some two (2) hours later at 3:51 16 a.m. 17 Press reports indicate that the 18 Minister went to the police station 19 because the arrested man's family was 20 out of town, however, police officers 21 report that the Minister met the young 22 man's father in the police station 23 parking lot, yet still proceeded to 24 approach the police and make inquiries. 25 The young man in question had earlier
221 warned police officers not to arrest 2 him because he was a friend of the 3 Solicitor General and they would lose 4 their jobs." 5 Then, moving to the second page, and this 6 is still May 18th, 1989, it says, "page 2 of 4" on the -- 7 on the top of the -- the Hansard issue, simply going to 8 the second page. 9 Again, quoting from Mr. Runciman, third 10 paragraph on the page. Do you see where it says, "That 11 is an unbelievable response?" Do you see that? 12 A: Yes. 13 Q: Starting with the third sentence, 14 "This Minister?" 15 "This Minister contacted her 16 employees?" 17 Do you see that? 18 A: Yes. 19 Q: "This Minister contacted her 20 employees, Ontario Provincial Police 21 officers, on two (2) occasions 22 inquiring about the arrest of a 23 friend's son. She has endorsed an 24 investigation of her activities by 25 people answerable to her, contrary to
231 everything she tells us she stands for. 2 She is guilty of terrible judgment if 3 nothing worse and I ask her, is she 4 prepared to do the right thing and 5 submit her resignation to the Premier, 6 Mr. Peterson, pending an independent 7 investigation of her actions?" 8 Then, if you could please flip to the next 9 page, page 3? Again, the date of this Hansard is May 10 18th, 1989, still the same date, page 3. If you look to 11 the third-to-last paragraph on that page it's still Mr. 12 Runciman we're quoting: 13 "Mr. Runciman: I think there is a 14 question of public confidence in the 15 administration of justice in Ontario 16 and certainly this is an assault 17 against public confidence in respect to 18 this system. There is no question 19 about it." 20 Then, flipping over to -- and as I 21 promised I'm cutting through this very quickly. Flipping 22 over to May 25th, 1989, and I'm happy -- I'm happy to 23 quote other passages. 24 COMMISSIONER SIDNEY LINDEN: Yes, I 25 understand that. I want to hear Mr. Downard.
241 MR. PETER DOWNARD: I'm sorry to object 2 in this manner of proceeding. This document is a 3 complete surprise. It's quite lengthy. There's 4 obviously a lot of context. My Friend has previously 5 been very careful to pick certain portions of documentary 6 evidence that favour him. 7 I suggest that we take a break so that 8 everyone can review this document and digest it before we 9 have cross-examination. 10 MR. JULIAN FALCONER: Well, Mr. 11 Commissioner, what I propose to do is, I'll take him to 12 the extracts that I want to bring to his attention and 13 then once I've done that, if there's a problem in my 14 question, then My Friend can object. 15 On the other hand, I have no difficulty 16 with a brief break. It's -- I'm in your hands. I just - 17 - the only reason I say that is my extracts that I'm 18 proposing to take him to aren't very lengthy and I 19 thought they should have the context of the passages I'm 20 putting to him because they're not -- I have three (3) 21 more stickies here to take him to and then -- I mean, as 22 post-its in my materials. 23 So, I thought that if I gave the passages 24 that I want to bring his attention to, then at least My 25 Friends would know what I'm raising.
251 MR. PETER DOWNARD: The problem is, sir, 2 is -- 3 MR. JULIAN FALCONER: Well, I don't -- 4 I'm not trying to push that -- 5 COMMISSIONER SIDNEY LINDEN: I 6 understand, I'm just trying to find a way to move 7 forward. Yes, I understand. 8 MR. DERRY MILLAR: Part of the problem 9 is, Mr. Falconer brings this in this morning. Mr. -- 10 most people -- everybody learned about it just this 11 morning. There's not copies for Mr. Downard or others 12 and -- 13 MR. PETER DOWNARD: I've got -- I have a 14 copy. 15 MR. DERRY MILLAR: Oh, do you have -- 16 MR. PETER DOWNARD: I can give him a 17 copy. I just can't digest the context and listen to the 18 questions at the same time. 19 COMMISSIONER SIDNEY LINDEN: I 20 understand, that's why I'm trying to find a way to move 21 it forward. 22 MR. JULIAN FALCONER: And Mr. Downard 23 makes a fair point. 24 COMMISSIONER SIDNEY LINDEN: He does. 25 MR. JULIAN FALCONER: And -- and all I'm
261 saying -- and all I'm saying is that what I'm proposed to 2 do is instead of engaging in cross-examination of any 3 kind and seeking answers from the Witness, I just thought 4 as an opener I would give him the passages that I want to 5 bring his attention to. 6 At that point, it might be -- Mr. Downard 7 may still wish to take a break to digest it, which is 8 fair. But, now he's had the context of the passages I 9 intend to put to the witness without me asking a 10 question. 11 I just thought that would be useful, 12 because that way he would know what -- what I'm putting 13 to the witness. 14 COMMISSIONER SIDNEY LINDEN: You may be 15 right, so you're not going to ask a question until -- 16 MR. JULIAN FALCONER: That's right. 17 COMMISSIONER SIDNEY LINDEN: -- you put 18 the passages -- 19 MR. JULIAN FALCONER: That's correct. 20 COMMISSIONER SIDNEY LINDEN: -- that you 21 think are relevant? 22 MR. JULIAN FALCONER: That's right. 23 COMMISSIONER SIDNEY LINDEN: And then 24 we'll see where we are? 25 MR. JULIAN FALCONER: That's right.
271 COMMISSIONER SIDNEY LINDEN: Well, I 2 don't see any harm in that. This is on the public 3 record, this is Hansard. 4 5 CONTINUED BY MR. JULIAN FALCONER: 6 Q: If you -- if you could flip, Mr. 7 O'Grady, to -- and this requires you to move. You were 8 at page 304, right? That was the last passage. 9 If you could flip to what is a May 25th 10 extract. So you -- you work your way through, you'll see 11 May 23rd, do you see that? 12 A: Yeah. 13 Q: And you -- you see on the bottom -- 14 A: Bottom right? 15 Q: That's right. If you keep flipping 16 it says May 24th, 2000 -- oh, I'm sorry, that's the -- 17 the -- the August date. If you keep flipping through, on 18 the top right hand corner you're going to make your way 19 to a document that says, "oral questions." 20 A: Yes. 21 Q: All right. 22 MR. DERRY MILLAR: On my copy the -- 23 there is no -- 24 COMMISSIONER SIDNEY LINDEN: There's no 25 date.
281 MR. DERRY MILLAR: On -- but it -- it 2 says "Hansard Issue L018." 3 MR. JULIAN FALCONER: Unfortunately, I 4 think all of them -- oh, that's right. Hansard issue 5 L018 in the top left hand corner. Do you see that? 6 If you keep flipping through, you'll get 7 to L018, top left corner. 8 9 CONTINUED BY MR. JULIAN FALCONER: 10 Q: L018 is the -- 11 A: L018 -- 12 Q: Good. 13 A: And page 6 of 6, so I -- 14 Q: That's right, that's fine. You're 15 doing fine. Now if you can go to page 1 of 6 so we can 16 get everybody at Hansard issue L018. 17 Just go to -- and it's -- and the date for 18 that is May 25th, 1989, but if you go to page 1 of 6 of 19 Hansard issue L018; do you have that? 20 A: L018? 21 Q: Yes. 22 A: And you say May 25th? 23 Q: May 25th, 1989 is the date of that 24 Hansard extract. 25 A: Right.
291 Q: All right. Are you -- are you at 2 page 1 of 6? 3 A: 1 of 6, yes. 4 Q: And it should start, "Mr. Kormos?" 5 A: Yes. 6 Q: Good. Mr. Commissioner, are you with 7 us? 8 COMMISSIONER SIDNEY LINDEN: I'm with 9 you. 10 MR. JULIAN FALCONER: Thank you. 11 COMMISSIONER SIDNEY LINDEN: I'm -- 12 MR. JULIAN FALCONER: If you could flip-- 13 COMMISSIONER SIDNEY LINDEN: It's not a 14 good way to operate -- 15 MR. JULIAN FALCONER: No. 16 COMMISSIONER SIDNEY LINDEN: But I am 17 with you. 18 MR. JULIAN FALCONER: We're -- I 19 apologize. 20 COMMISSIONER SIDNEY LINDEN: Let's move 21 on. 22 23 CONTINUED BY MR. JULIAN FALCONER: 24 Q: If you could flip to the fourth page 25 of that extract, page 4 of 6 please?
301 2 (BRIEF PAUSE) 3 4 Q: You'll see the first reference to Mr. 5 Runciman? 6 A: Yes. 7 Q: Halfway down the page where it says, 8 "Mr. Runciman, my question...?" 9 A: Yes. 10 Q: "Mr. Runciman, my question is to the 11 Premier. Again, dealing with the 12 Solicitor General's misconduct, the 13 Premier will know that all members of 14 cabinet are expected to act in a highly 15 distinguished and dignified manner as 16 ministers of the Crown. 17 I am wondering if the Premier would 18 advise us of what guidelines his 19 cabinet operates under with respect to 20 contacts between cabinet officers and 21 police? 22 A: The Honourable Mr. Peterson: There 23 are guidelines that have been issued, 24 they were issued some years ago, I 25 think, in the Davis regime and they are
311 the operative guidelines. 2 Mr. Runciman: Based on the Premier's 3 conclusion that he has reached and 4 expressed to this house and to the 5 public that the Solicitor General's 6 conduct in the early morning hours of 9 7 April does not justify a removal of 8 office, would the Premier indicate to 9 us whether or not he has reviewed the 10 guidelines as established by former 11 Premier Davis and if indeed his 12 Solicitor General conformed to those 13 guidelines? 14 Honourable Mr. Peterson: Yes, I have 15 reviewed them and, yes, she has in my 16 judgment. 17 Mr. Runciman: For the record, this 18 was dated 8 November, 1978 and it deals 19 with the policy of communication 20 between members of executive council 21 and key officials in the judicial 22 system. 23 Quote, 'With the exception of the 24 Attorney General in the performance of 25 his duties as chief law officer of the
321 Crown and the Solicitor General in the 2 performance of his duties as the 3 Minister responsible for the police, no 4 member of cabinet may communicate with 5 police officials concerning the 6 decision by the police to lay a charge 7 or charges.'" 8 Close quotes. Then flipping to the next 9 page, the third to last paragraph where it says "Mr. 10 Runciman", again to the Premier, and we are still, sir, 11 on the same date of May 25th, 1989. 12 Do you see it says, "Mr. Runciman, again 13 to the Premier," two-thirds (2/3) of the way down the 14 page? 15 A: Yes. 16 Q: "Mr. Runciman, again to the Premier, 17 the Premier has indicated that based on 18 the results of the OPP investigation of 19 the actions of the Solicitor General on 20 the morning of 9 April, he is satisfied 21 that she did not do anything that would 22 justify her removal from office. 23 Did the police report that the Premier 24 based his decision on spell out what 25 the Solicitor General said to the
331 police officers and what they said to 2 her? 3 Honourable Mr. Peterson: It dealt 4 with all the facts of the situation in 5 the eyes of the police. I did not ask 6 them how to conduct their 7 investigation. They came back with 8 their assessment of the facts and that 9 is where it sits. 10 Mr. Runciman: I think that tells it 11 all right there. Obviously the Premier 12 is telling us that his minister 13 conformed to the guidelines. He does 14 not know what she said. He does not 15 know what the police officer said to 16 her. There's very clear indication in 17 this memo from Mr. Davis with respect 18 to the conduct expected of ministers. 19 Yet the Premier has the effrontery to 20 get up in the House and say that she 21 did not violate the guidelines and her 22 actions justify her staying in the 23 office." 24 And then finally, sir, if you were to flip 25 two (2) pages from that you would get to Hansard issue
341 L019. If you flip two (2) pages you'll get to Hansard 2 issue L019. It is dated May 29th, 1989. May 29th, 1989. 3 And I would ask you to turn to page 5 of 7 of that 4 extract. If you could turn to page 5 of 7. 5 The second reference to Mr. Runciman at 6 page 5 of 7. Do you see that? It starts, "I suspect." 7 A: Yes. 8 Q: "Mr. Runciman: I suspect we in this 9 party respect the OPP much more so than 10 government or it would not have put the 11 OPP in that position. 12 I want to talk about the independence 13 question. The Premier is talking about 14 his confidence and the independence of 15 the OPP. And he's really basing his 16 case on the fact that the OPP is 17 capable in this situation of carrying 18 out an independent investigation of its 19 boss. 20 The top law enforcement officer in the 21 province. Last week I called the 22 inspector in charge of the 23 investigation to talk to him about how 24 the investigation was conducted. He 25 would not talk to me. Half an hour
351 later, who called my office? It was 2 the Deputy Solicitor General's office. 3 He talks about independence. I called 4 the OPP investigator and who calls in 5 return? It was the Deputy Solicitor 6 General. That is not independence. 7 Is the Premier prepared to stand upon 8 his feet today and indicate to the 9 House and to the people of this 10 province that he's going to take the 11 OPP off the hook and have an 12 independent investigation conducted so 13 that all of us in this House and all of 14 the people across this province can 15 rest assured that indeed the Solicitor 16 General was not carrying out some 17 independent action on the morning of 9 18 April that indeed was improper for the 19 top law enforcement officer of the 20 province." 21 That concludes the passages that I wanted 22 to bring to the attention of the witness. 23 COMMISSIONER SIDNEY LINDEN: All right. 24 MR. JULIAN FALCONER: And I had some 25 questions that relate directly back to Ipperwash, flowing
361 from those passages. 2 COMMISSIONER SIDNEY LINDEN: All right. 3 Now let's hear what everybody has to say. 4 Yes, Ms. Jones...? 5 MS. KAREN JONES: Mr. Commissioner, I 6 appreciate the circumstances of this morning but not 7 everyone has a copy of what Mr. Falconer has. 8 And I also appreciate that you don't have 9 a very fast copier here but I'm wondering if -- and I 10 don't want to take up too much of the morning, but it 11 will be very helpful if we could get a copy of the 12 material -- 13 COMMISSIONER SIDNEY LINDEN: More 14 important that we do it right. 15 MS. KAREN JONES: -- before we proceed 16 too much further. 17 COMMISSIONER SIDNEY LINDEN: It's more 18 important, Ms. Jones, that we do it right. So, if we 19 need to take the time, we'll take the time. So I am 20 anxious to proceed but I'm more anxious to proceed 21 correctly. So if we need to take a moment and I think we 22 do need to take a moment. 23 MR. DERRY MILLAR: Perhaps you could -- I 24 don't know how many people have copies. I don't know how 25 many people need copies. If you could indicate if you
371 need a copy, then I can -- because Ms. Jones is right. 2 It's not a fast copier. So we need one 3 ()1, two (2), three (3), four (4), five (5), six (6). We 4 need six (6) copies. So I'll -- if we could take a short 5 break I'll get the copies. 6 COMMISSIONER SIDNEY LINDEN: And counsel 7 needs some time to look at the copies -- 8 MR. DERRY MILLAR: Yes. 9 COMMISSIONER SIDNEY FALCONER: -- and see 10 if there's other context that they may wish to look at. 11 But I don't want to go back and -- 12 MR. DERRY MILLAR: So if we could adjourn 13 maybe for fifteen (15) minutes. 14 COMMISSIONER SIDNEY LINDEN: Let's take a 15 break. 16 THE REGISTRAR: This Inquiry will recess. 17 18 --- Upon recessing at 8:59 a.m. 19 --- Upon resuming at 9:33 a.m. 20 21 THE REGISTRAR: This Inquiry is now 22 resumed. Please be seated. 23 COMMISSIONER SIDNEY LINDEN: I very much 24 regret the consumption of time, Mr. Falconer, I 25 understand that you produced a document to put some
381 context and to be fair to the Witness. 2 I think it would have been possible for 3 you to ask the questions even without the document. But 4 once you produce a twenty-five (25) page document, I 5 think you have to understand that Counsel are going to 6 want to read it and that's why I regret that we've 7 consumed this time. But I think you were doing it to be 8 fair and it's unfortunate. 9 But let's get on with it. 10 MR. JULIAN FALCONER: And -- and I -- I 11 take your point, Mr. Commissioner, and I'm sorry to the 12 extent -- 13 COMMISSIONER SIDNEY LINDEN: Yes. 14 MR. JULIAN FALCONER: -- I could have 15 avoided the delay. I didn't think I could and frankly, 16 I'll be honest, I still, in my heart think I did the 17 right thing -- 18 COMMISSIONER SIDNEY LINDEN: Yes. 19 MR. JULIAN FALCONER: -- but I know that 20 there was delay and I wish I hadn't caused it. 21 COMMISSIONER SIDNEY LINDEN: If somebody 22 else had produced a twenty-five (25) page document, Mr. 23 Falconer, I think you would have been the first to 24 object -- 25 MR. JULIAN FALCONER: That -- that's
391 right. 2 COMMISSIONER SIDNEY LINDEN: -- that you 3 would have wanted to take the time to read it. 4 MR. JULIAN FALCONER: I think Mr. Downard 5 was very -- is very fair about it. 6 COMMISSIONER SIDNEY LINDEN: Well -- 7 MR. JULIAN FALCONER: I don't -- I 8 don't -- 9 COMMISSIONER SIDNEY LINDEN: You know 10 what questions you intend to ask and you know what's in 11 the document, but nobody else did so they have to read 12 it. 13 MR. JULIAN FALCONER: That's very fair. 14 COMMISSIONER SIDNEY LINDEN: Okay. Let's 15 carry on. 16 17 CONTINUED BY MR. JULIAN FALCONER: 18 Q: Mr. O'Grady, when you were answering 19 questions from Mr. Millar on -- during your examination- 20 in-chief you were asked specifically by Mr. Millar: Can 21 you tell us what occurred -- what the allegation was with 22 respect to Ms. Smith who was, at the time, Solicitor 23 General? 24 And I'm just going to read you your 25 answer, it's a two (2) paragrapher. I'm at page 52 of
401 the transcript and, unfortunately, the extract I have 2 doesn't reflect a date. It was the first day of your 3 examination-in-chief. 4 "A: Well, I knew it was very clearly 5 at the time, but as I recall some young 6 people were arrested by the OPP 7 detachment members at Lucan and taken 8 to the detachment. Some of their 9 friends were not and they made their 10 way to Ms. Smith's home, which is 11 located in London and expressed concern 12 as to what might be happening to their 13 friends. 14 I think that they had some concern that 15 perhaps they would be being ill- 16 treated. And Ms. Smith then made her 17 way in her nightclothes to the 18 detachment to ascertain what was 19 happening and apparently assured 20 herself that -- that all was unfolding 21 as it should and returned home. 22 But, I think she felt that she would 23 not be perceived as a -- as an 24 individual that was interfering, but 25 obviously that was not the case.
411 Q: As a result of this incident, she 2 resigned as Solicitor General? 3 A: She did." 4 And you recall giving that very brief 5 synopsis? 6 A: I do. 7 Q: All right. And the reason I bring 8 you back to that is to simply say this. 9 In terms of context, and I am trying to 10 -- to bring us to -- to the Ipperwash incident, in terms 11 of context, it's fair to say that your point was that 12 this was an example where Mr. Runciman was very active in 13 -- as -- in his role as critic? 14 A: Yes. 15 Q: And, he raised the important 16 perception and independence issues that flowed from any 17 inappropriate or unconventional contact or communication 18 between the Solicitor General and the police officers, 19 correct? 20 A: Yes. 21 Q: And you felt that that example was 22 particularly helpful in understanding the line between 23 the role of the Solicitor General and police operations? 24 A: Yes. 25 Q: Now, you also would agree with me
421 that there was not a wisp of suggestion by Mr. Runciman 2 as critic at the time or by others that the police had 3 been improperly influenced in actuality, correct? 4 A: That's correct. 5 Q: So, in other words, what caused Ms. 6 Smith to resign was a situation in which there was an 7 allegation and, in fact, a finding of improper political 8 interference that had absolutely no affect on police 9 operations, correct? 10 MR. DERRY MILLAR: I don't know if this 11 Witness can answer -- 12 MR. JULIAN FALCONER: I can rephrase, 13 sir. I can re-phrase. 14 MR. DERRY MILLAR: -- the question -- 15 MR. JULIAN FALCONER: Fair enough. Fair 16 enough. 17 MR. DERRY MILLAR: -- what caused Ms. 18 Smith to resign. 19 COMMISSIONER SIDNEY LINDEN: That's 20 right. 21 MR. JULIAN FALCONER: He's right. He's 22 right and I'll rephrase and I -- and I -- 23 COMMISSIONER SIDNEY LINDEN: Okay. 24 MR. JULIAN FALCONER: -- and I said I'd 25 be careful and I'm trying to be careful.
431 COMMISSIONER SIDNEY LINDEN: Okay. I 2 know you are. Let's carry on. 3 4 CONTINUED BY MR. JULIAN FALCONER: 5 Q: In other words, your understanding of 6 the circumstances and why you raised this issue is, it 7 was an example, in your mind, of a circumstance in which 8 a Solicitor General was alleged to have engaged in 9 improper interference in police operations, but there was 10 actually no impact on the conduct of the police, correct? 11 COMMISSIONER SIDNEY LINDEN: Okay. We're 12 still getting objections. 13 MR. JULIAN FALCONER: Well, let me finish 14 that last part. When I say there was no impact on the 15 conduct of the police, as Commissioner of the OPP at the 16 time as far as you were concerned there was no impact, 17 correct? 18 COMMISSIONER SIDNEY LINDEN: Yes, sir? 19 MR. IAN SMITH: That doesn't state the 20 evidence, Commissioner, with respect. What the evidence 21 was, the reason Commissioner O'Grady raised this issue 22 was because he was asked why he thought that Mr. Runciman 23 had a good knowledge or a good understanding of the 24 separation that should exist between operational matters 25 and policy matters.
441 He didn't -- he didn't raise that issue 2 because he thought it was a good example. He was simply 3 asked why he thought Mr. Runciman had a good 4 understanding of this issue. 5 COMMISSIONER SIDNEY LINDEN: All right. 6 7 CONTINUED BY MR. JULIAN FALCONER: 8 Q: And with Mr. Smith's amendment that 9 you said that, I'm going to suggest to you that one of 10 the reasons it was relevant, in your mind, was it's an 11 example of an allegation of political interference with 12 police operations, but the political interference, in 13 your mind, as Commissioner of the OPP at the time, had no 14 impact on police operations, correct? 15 A: To the best of my recollection, it 16 had no impact on police operations. 17 Q: And nevertheless, nevertheless, even 18 though it was not alleged by Mr. Runciman that it had any 19 impact on police operations, the existence of the 20 political interference was enough, in your mind and your 21 understanding of the example and the issues discussed at 22 the time, was enough to ultimately result in, among other 23 things, Ms. Smith's resignation; is that right? 24 MR. DERRY MILLAR: I don't think he can 25 answer that question.
451 MR. JULIAN FALCONER: Fair enough. I'll 2 move on. I don't need to fight about it, because it's 3 not essential to where I'm going. 4 5 CONTINUED BY MR. JULIAN FALCONER: 6 Q: But can I ask you this, sir: Would 7 you agree with me that the -- your experience as 8 Commissioner of the OPP involved understanding the issue 9 at the time because you were in charge of the service 10 that the Solicitor General had actually went to talk to? 11 You were in charge of those OPP officers, 12 ultimately? 13 A: Yes. 14 Q: All right. And at the time, based on 15 your memory, do you -- did you form an opinion at the 16 time that the approaches by Ms. Smith in any way changed 17 police operations? 18 A: No, I didn't. 19 Q: All right. You -- and were you of 20 the view that it did change police operations at the 21 time? 22 A: I was of the view that it did not. 23 Q: All right. And your recollection of 24 Mr. Runciman as critic and the passages I've read to you 25 and the twenty-five (25) page document I've put before
461 you, does Mr. Runciman, in any part of this document, 2 allege that it actually resulted in the OPP doing 3 something different? 4 A: Having just read the passages you 5 suggested, I don't see anything in there that -- where 6 he's suggesting that. 7 Q: Mr. Runciman's concerns as critic, 8 and he was the critic on the floor of the house in 1989, 9 Mr. Runciman's concerns as critic, as reflected in the 10 passages I read to you, not anywhere else, but as 11 reflected in the passages I read to -- I'm giving Mr, 12 Millar great exercise -- as reflected in the passages I 13 read to you, not anywhere else, not any other part, but 14 the concerns I read to you, reflected a concern over 15 perception of the Solicitor General attending; is that 16 right? 17 COMMISSIONER SIDNEY LINDEN: Just before 18 you answer, Mr. O'Grady, let's hear from Mr. Downard. 19 MR. PETER DOWNARD: It's patently unfair 20 to put a twenty-five (25) page, single spaced document in 21 front of this Witness, give him a few minutes to read it 22 and come in and ask him questions about; was it in there, 23 is this in there, that in there. It's ridiculous. 24 COMMISSIONER SIDNEY LINDEN: That's -- I 25 think --
471 MR. PETER DOWNARD: No lawyer should 2 stand for it and -- and Mr. Runciman is, in fact, not -- 3 MR. JULIAN FALCONER: Mr. Downard's not - 4 - Mr. Downard is not representing Mr. O'Grady. Mr. 5 O'Grady hasn't expressed a concern -- 6 COMMISSIONER SIDNEY LINDEN: That's fine. 7 MR. JULIAN FALCONER: -- and neither has 8 Mr. Sandler. 9 COMMISSIONER SIDNEY LINDEN: Well -- 10 MR. JULIAN FALCONER: You can't object on 11 behalf of Mr. O'Grady. 12 MR. PETER DOWNARD: I'm objecting to 13 improper procedure. I have an interest in that, sir. 14 COMMISSIONER SIDNEY LINDEN: Yes, 15 ridiculous is a bit strong, but unfair is a good word. 16 MR. PETER DOWNARD: Well, I haven't seen 17 anything done like this for years, that's why it's so 18 strong. 19 COMMISSIONER SIDNEY LINDEN: Well -- 20 MR. JULIAN FALCONER: Because he's been 21 in this Inquiry for years. Mr. -- Mr. Commissioner -- 22 MR. PETER DOWNARD: No, I haven't 23 finished. 24 MR. JULIAN FALCONER: I'm content to move 25 on --
481 COMMISSIONER SIDNEY LINDEN: Mr. 2 Falconer, I want to hear what Mr. Downard has to say. 3 MR. JULIAN FALCONER: But I'm content to 4 move on. 5 COMMISSIONER SIDNEY LINDEN: Oh, you're 6 moving on? 7 MR. JULIAN FALCONER: I'll move on. 8 COMMISSIONER SIDNEY LINDEN: I'm sorry. 9 Then carry -- 10 MR. JULIAN FALCONER: All right. Thank 11 you. 12 COMMISSIONER SIDNEY LINDEN: Move on. 13 14 CONTINUED BY MR. JULIAN FALCONER: 15 Q: Sir, when you raised the example of 16 Joan Smith, would you agree with me that a hallmark in 17 the example was your experience in 1989 to 1991 of the 18 importance placed on perceptions created by improper 19 political interference? 20 In your mind that was what was raised by 21 that example? 22 COMMISSIONER SIDNEY LINDEN: No. 23 MR. DERRY MILLAR: Well, the question I 24 asked him was this -- 25 MR. JULIAN FALCONER: I read the
491 question -- 2 MR. DERRY MILLAR: -- how -- he said he 3 believed that Mr. Runciman knew the difference between 4 operational and policy. I then asked the question, how 5 do you know that? 6 And then he raised the question of Ms. 7 Smith and what happened to Ms. Smith. 8 Now, he can ask about that, because I 9 asked it. But this question goes beyond that. 10 MR. JULIAN FALCONER: No, no, I'm not 11 restricted to Mr. Millar's line of questioning. I'm 12 restricted to what's relevant and what I'm doing now is 13 saying what was in your mind at the time when you 14 answered that question, which goes beyond his answer, but 15 I'm asking him what motivated the answer, and I'm allowed 16 to do that. 17 He gave an answer and now I'm asking what 18 motivated the answer. I'm not reciting evidence to him, 19 I'm saying, what motivated that answer, what motivated 20 it. 21 I'm allowed -- I'm allowed to do that. 22 COMMISSIONER SIDNEY LINDEN: All right. 23 What is the question again? 24 MR. JULIAN FALCONER: What was in your 25 mind when you gave that answer to Mr. Millar and you used
501 that example, the Smith example, was it involved in 2 allegation of improper political interference by a 3 Solicitor General in police operations? 4 A: Well, it's a long time ago and when I 5 answered the question with respect to why did Mr. 6 Runciman -- why did I think that Mr. Runciman had an 7 understanding of that, that was the example that -- that 8 came to my mind. 9 And I knew at that time that he had been 10 instrumental in raising it in House, so I thought because 11 of that -- that discussion that he did understand and it 12 certainly was -- was something that was foremost in his 13 mind. 14 The actual particulars of it, it's a long 15 time ago. But again, in my mind it had to do with some 16 type of -- of perception of -- of improper influence or 17 the actual fact of it. 18 Q: And this morning, prior to us going 19 to these passages, I asked you some questions about it 20 and you acknowledged that there was some general 21 similarities in terms of the issues of political 22 interference in police operations in the role of the 23 Solicitor General between the Ipperwash incident and the 24 Smith incident. 25 Do you remember I asked you about that
511 this morning and you acknowledged that? Do you remember 2 that? 3 A: That's true. 4 Q: All right. Now, what I want to ask 5 you is this. Obviously, and we're not trying to 6 embarrass Mrs. Smith -- Ms. Smith, Joan Smith, goes down 7 to try to help someone as you put it on the last day, in 8 her night clothes, and the police don't in your mind from 9 the time, feel that it influenced their operations. 10 But, the simple act of in any way putting 11 her foot in those operations represented a bypassing of 12 the chain of commands; isn't that true? 13 A: True. 14 Q: All right. And you'll see from what 15 I read to you and from the general Hansard and your 16 memory, that her action was the simple action of one 17 attendance in her night clothes and two (2) telephone 18 calls, true? 19 A: True. 20 Q: And you'll see by the Hansard and 21 your memory that there was no political -- suggestion or 22 allegation of a political agenda seeking or sought to be 23 carried out by Mrs. Smith, correct? 24 A: Correct. 25 Q: She was simply trying to help out a
521 family friend, correct? 2 A: Correct. 3 Q: And exercised poor judgment, correct? 4 A: Correct. 5 Q: But even though there was no 6 political agenda being sought to be pushed through, even 7 though it didn't represent any advancement of a political 8 agenda, the simple act of bypassing the chain of command 9 was enough to trigger her resignation; is that not true? 10 A: That's my understanding. 11 Q: Now, I'm going to ask you something. 12 I read a number of passages to you that reflected, among 13 other things, the incident commander's view that there 14 was political pressure. Do you remember that? 15 A: I remember the passages. 16 Q: Yes. And specifically political 17 pressure, correct? 18 A: I believe that's correct. 19 Q: And certainly from the point of 20 view -- 21 A: I think what he talked of generally 22 was the pressures and if you look back there would be 23 some indication that there were political people and so 24 if you made the connection, you could come to that 25 conclusion.
531 Q: Well could you turn up Exhibit P- 2 444(b), it's Volume II of the logger tapes. Could you 3 just flip that open for a moment. And this is quick, 4 we're not going to play tape or anything else. Very 5 fast. 6 If you look at Tab 42, page 1. This is a 7 conversation between Mr. Carson and Jim Hutchison. Now 8 Jim Hutchison if I remember correctly, is the Detective 9 Inspector dispatched to Gustafson; is that correct? Or 10 am I wrong? 11 A: I think you're right. 12 Q: All right. And about -- I'm just 13 going to read to you the first page. 14 "Male: MacDonald. 15 Carson: Hello. Is Detective Jim 16 Hutchison there please? 17 MacDonald: Yes, he is. 18 Hutchison: Hutchison. 19 Carson: Hi Jim. John Carson here. 20 Hutchison: Yeah. Hi John, how are 21 you doing? 22 Carson: Sorry to be so slow to get 23 back to you here." 24 Now, you'll notice this conversation is on 25 September 6th at 3:41 p.m. Do you see that?
541 A: I see that. 2 Q: "Hutchison: Oh that's fine. I 3 understand you being behind closed 4 doors there. 5 Carson: Well we've had some 6 alligators. 7 Hutchison: Oh is that right? 8 [Carson laughs] 9 Hutchison: Friendly ones or ones on 10 the outside? 11 Carson: Oh well we -- just some 12 political pressures, if you would." 13 All right? 14 A: Yes. 15 Q: Now Carson's words include political 16 heat, political pressures, right? 17 A: Yes. 18 Q: All right. Would you agree with me 19 that the passages I've read to you -- all right, the -- 20 the things I've drawn your attention to, that incident 21 command was exposed to, go a fair bit further than a 22 woman attending in her nightclothes to inquire about a 23 family friend? Do -- do you agree to that? 24 A: I'm not sure if I can make that 25 assessment. I don't think I can make that assessment.
551 Q: That's okay, that's okay. Would you 2 agree with me that there would have been a chief 3 investigating officer in the Smith case that you would 4 have had to make inquiries of at the time in the -- the 5 relevant time as the Commissioner of the OPP, given the 6 nature of the issues? 7 A: Yes. 8 Q: And at any time did you get any 9 information from the chief investigating officer that he 10 or she felt political pressures as a result of Ms. 11 Smith's attendance? 12 A: Not that I recall. 13 Q: Right. Was there any wisp of 14 information like there is in this case about political 15 heat, political pressure or heat from all angles, 16 anything like that in that case? 17 A: Well, in fairness, because it's so 18 long ago I would have to say I can't recall if there was. 19 Q: Was there any -- in this case we have 20 a tape where the liaison officer -- he was -- he was 21 called something different, but among other things he was 22 the First Nations Liaison Officer -- actually says the 23 Premier thinks he can direct the OPP? 24 Was there anything like that in the -- in 25 the Smith case?
561 A: Not that I can recall. 2 Q: So a situation created a very bad 3 perception when Ms. Smith attended that police station in 4 Lucan, correct? 5 A: Yes. 6 Q: Am I pronouncing the town properly? 7 I apologize. 8 A: Lucan. 9 Q: It's Lucan? 10 A: Lucan. 11 Q: All right. And that's in the London 12 area? 13 A: Yes, it is. 14 Q: And she lived in that area? 15 A: Yes, she did. 16 Q: So she gets in her nightclothes to 17 help a family friend and she ends up resigning as a 18 Solicitor General? 19 A: Correct. 20 Q: Now, Superintendent Fox, then 21 Inspector Fox, testified and agreed that the -- there 22 were a number of channels of communication that 23 represented, based on the evidence in his mind, voices of 24 the Premier expressing views. There were a number of 25 channels of communication that I took him through, all
571 right? That was his evidence. 2 A: Right. 3 Q: And I called -- I asked him, this was 4 one (1) method for the Premier expressing his views and 5 he agreed and I took him through the contact with Deb 6 Hutton. I asked him was this, in his mind, the voice of 7 the Premier and he told me, yes, it was. 8 COMMISSIONER SIDNEY LINDEN: Yes. 9 MR. JULIAN FALCONER: In fact, he used 10 the words, "voice of the Premier." 11 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 12 Downard? 13 OBJ MR. PETER DOWNARD: I just -- I object to 14 My Friend suggesting that the Premier had adopted a 15 method for influencing the OPP. There's no evidence to 16 support that. 17 MR. JULIAN FALCONER: I'm sorry. 18 COMMISSIONER SIDNEY LINDEN: You have to 19 listen to the objection if you're going to comment. 20 MR. JULIAN FALCONER: No, I did. 21 COMMISSIONER SIDNEY LINDEN: Yeah, well. 22 MR. JULIAN FALCONER: I said I'm sorry, I 23 never said that. I never -- I didn't say that -- 24 COMMISSIONER SIDNEY LINDEN: No. 25 MR. JULIAN FALCONER: -- that Fox said
581 that the Premier adopted a method for influence, I never 2 said that. I said that he heard a number of 3 communications and agreed that a number of communications 4 represented the Premier's message, in his mind; that's 5 what he said. 6 COMMISSIONER SIDNEY LINDEN: Well, I -- 7 MR. PETER DOWNARD: I can refer to a 8 method and I was just -- I was just objecting to the 9 suggestion. 10 MR. JULIAN FALCONER: All right. I -- 11 well if I used that word -- if I used that word, 12 "method," I take it back. 13 COMMISSIONER SIDNEY LINDEN: All right. 14 15 CONTINUED BY MR. JULIAN FALCONER: 16 Q: Superintendent Fox identified a 17 number of channels of communication in which he felt the 18 Premier's message was coming through, right? 19 A: Yes. 20 Q: And those channels of communication 21 included Deb Hutton, whom he identified. That is, Fox, 22 in his mind, is the voice of the Premier, all right? 23 A: Yes. 24 Q: Deb Hutton at the IMC meetings, all 25 right?
591 A: Yes. 2 Q: Marcel Beaubien, through Lacroix, as 3 a method of hearing the same message from the Premier. 4 In addition, he referred to and agreed that the presence 5 of information from that meeting with the Premier where 6 he attended on September 6th, 1995 in which the Premier 7 stated that he had difficulties with the conduct of the 8 OPP, to him -- 9 A: I understand. 10 Q: -- represented a message, right, to 11 him it did in his mind. He was among others in the room 12 receiving a message that the OPP had made mistakes; that 13 was his evidence. 14 A: I understand. 15 Q: Not directly solely to him, he 16 couldn't tell, but he was in the room and he received 17 that message, all right? 18 A: That's my understanding. 19 Q: Now, in the circumstances -- 20 COMMISSIONER SIDNEY LINDEN: I'm not sure 21 if Mr. Downard -- if you're waiting? You're just 22 standing there? Okay, that's fine. You're just in a 23 ready position. You're in a ready position. 24 MR. JULIAN FALCONER: It's better on the 25 knees. He's right. That's fine and I --
601 MR. PETER DOWNARD: After I got up there 2 My Friend dealt with my concern. 3 COMMISSIONER SIDNEY LINDEN: Thank you. 4 MR. JULIAN FALCONER: Good. 5 COMMISSIONER SIDNEY LINDEN: Thank you. 6 MR. JULIAN FALCONER: Good. 7 8 CONTINUED BY MR. JULIAN FALCONER: 9 Q: Now we have identified some channels 10 of communication that superintendent Fox assisted us 11 with, all right? And I've summarized them for you. 12 A: Yes. 13 Q: You agree with me that just 14 objectively, just -- you were Commissioner then, correct? 15 A: Yes. 16 Q: During the time all those channels of 17 communications were happening, right? 18 A: Yes. 19 Q: And you were Commissioner when Joan 20 Smith got in her night clothes to help a family friend 21 and went down to the station in Lucan, right? 22 A: Yes. 23 Q: You'd agree with me that the channels 24 of communication in this case that have been identified 25 for you, accepting that they existed, all right, are a
611 fair bit larger than Joan Smith going down in her night 2 clothes? 3 Would you agree with that? 4 COMMISSIONER SIDNEY LINDEN: I'm having 5 difficulty seeing these relationships and these 6 relevancies? 7 MR. JULIAN FALCONER: That's fine, I'll 8 move on. 9 COMMISSIONER SIDNEY LINDEN: Yes. 10 MR. JULIAN FALCONER: If it's not helping 11 you, I'll move on. 12 COMMISSIONER SIDNEY LINDEN: All right, 13 Ms. Perschy -- 14 MR. JULIAN FALCONER: Now -- 15 COMMISSIONER SIDNEY LINDEN: -- I think 16 you should move on. I don't think that -- 17 MR. JULIAN FALCONER: Mr. O'Grady, what 18 I'm asking you is this -- 19 COMMISSIONER SIDNEY LINDEN: -- is 20 helpful. 21 22 CONTINUED BY MR. JULIAN FALCONER: 23 Q: You have to routinely assess people's 24 efforts at communication with you in your role as 25 Commissioner of OPP, correct?
621 A: Yes. 2 Q: If you sense a wisp of impropriety by 3 a politician, in particular a cabinet minister or a 4 Premier and how they address you, you -- that triggers 5 obligations and responsibilities, correct? 6 A: Yes. 7 Q: So you always have to be alive to 8 what the line is? 9 A: Yes. 10 Q: And to be fair to people, sometimes 11 they might edge the line or slightly cross the line, not 12 knowing it and you may remind them what the line is? 13 A: Yes. 14 Q: And sometimes you might help out a 15 lawyer who's asking a question who has a fly buzzing 16 around him. 17 A: I'm not -- 18 Q: And each time -- I'm assuming the fly 19 was commissioned by Mr. Sandler because each time I get 20 into some good stuff -- 21 COMMISSIONER SIDNEY LINDEN: No. 22 MR. JULIAN FALCONER: -- the fly starts 23 flying around. 24 COMMISSIONER SIDNEY LINDEN: I appreciate 25 your humour, I do, Mr. Falconer, but I --
631 MR. JULIAN FALCONER: Right. 2 COMMISSIONER SIDNEY LINDEN: -- would 3 appreciate it if you'd stick to questions and -- 4 MR. JULIAN FALCONER: Well, some people 5 may wonder why I'm swatting at something -- 6 COMMISSIONER SIDNEY LINDEN: No, I -- 7 MR. JULIAN FALCONER: -- when I'm talking 8 to -- 9 COMMISSIONER SIDNEY LINDEN: We can see 10 the fly. We can see the fly and -- 11 MR. JULIAN FALCONER: Some -- some can't 12 and yesterday I did this and it was really frustrating. 13 14 CONTINUED BY MR. JULIAN FALCONER: 15 Q: Now, sir, you had to routinely assess 16 in your own mind, that line, correct, because that's part 17 of your job? 18 A: Yes. 19 Q: There are no facts, all right, to 20 support the suggestion that Michael Harris donned night 21 clothes and went to Ron Fox's home, all right? There are 22 no facts to support that suggestion, all right? 23 A: Not that I know of. 24 Q: Right. And I'm telling you that. 25 Hypothetically, though, if Mike Harris --
641 COMMISSIONER SIDNEY LINDEN: That's -- 2 MR. JULIAN FALCONER: Well, no, I've got 3 to be able to ask my question. If Mr. Millar is going to 4 rise -- 5 COMMISSIONER SIDNEY LINDEN: Well, but I 6 mean -- 7 MR. DERRY MILLAR: But I don't think 8 he's -- 9 COMMISSIONER SIDNEY LINDEN: -- you're 10 suggesting -- 11 MR. DERRY MILLAR: I don't think he can 12 ask hypothetical questions. You can ask a hypothetical 13 question to an expert, because that's what experts do. 14 Experts base their opinions on 15 hypothetical questions. You ask a witness, a fact 16 witness, what he did, didn't do, what he knows, doesn't 17 know and not hypothetical questions. 18 MR. JULIAN FALCONER: That's simply dis - 19 - you know, My Friend routinely says this is not a trial, 20 but if it were a trial, he would be wrong with respect on 21 the law. 22 You can ask any witness a hypothetical 23 question as long as it's fair. He's, with great respect, 24 incorrect. What he's reciting is the test for opinion 25 evidence.
651 Now what we have here is a Commissioner 2 for ten (10) years whose job, among other things, he's 3 told us, is to maintain that line in his own mind, on 4 what is improper interference and what isn't. 5 And he's the point person with the 6 politicians and he's told us that's part of his job. 7 Now I want to put a hypothetical to him, 8 to understand what the line is and, with respect, I'm 9 entitled to and I didn't get the question out which is 10 really the unfair part about this. 11 COMMISSIONER SIDNEY LINDEN: Well, but I 12 think the preamble to the question that there's no 13 evidence that the Premier went down in night clothes is 14 not necessary. 15 There's no suggestion that he did and -- 16 MR. JULIAN FALCONER: Well, but -- 17 COMMISSIONER SIDNEY LINDEN: -- even 18 saying that is not necessary. 19 MR. JULIAN FALCONER: Well, but I didn't 20 get to ask my question. So I made the preamble -- 21 COMMISSIONER SIDNEY LINDEN: Well, I 22 don't -- 23 MR. JULIAN FALCONER: -- in order to 24 avoid the witness misunderstanding the evidence. 25 COMMISSIONER SIDNEY LINDEN: I don't know
661 what the question is. Why don't you ask you ask the 2 question -- 3 MR. JULIAN FALCONER: Thank you. 4 COMMISSIONER SIDNEY LINDEN: -- and then 5 we'll see where we are? 6 MR. JULIAN FALCONER: Thank you. 7 COMMISSIONER SIDNEY LINDEN: If you still 8 have an objection, Mr. Millar, I'd appreciate it if you'd 9 make it. 10 11 CONTINUED BY MR. JULIAN FALCONER: 12 Q: So, Mr. O'Grady, if you could hold 13 your answer until Mr. Millar has an opportunity. I don't 14 want you to misunderstand my asking the question as 15 trying to cut off Mr. Millar. 16 Hypothetically, if Mr. Harris had attended 17 Mr. Fox's home, in his night clothes and said to Mr. Fox, 18 I want those occupiers out in a day or two (2); this is a 19 government that doesn't pander to natives. This is a 20 test of our government and I want them out in a day or 21 two (2). 22 Would that, in your mind have constituted 23 crossing the line in terms of interfering with police 24 operations, even though Mr. Fox would be offended and it 25 didn't in any way impact police operations? That's my
671 question. 2 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 3 Downard? 4 MR. PETER DOWNARD: The point of the 5 question is plainly to have this Witness provide you with 6 a judgment as to whether Premier -- then-Premier Harris, 7 as My Friend would have it, crossed the line in this 8 case. 9 And this Witness is no position to give an 10 opinion on that. My -- what My Friend is transparently 11 seeking to do is to highlight a couple of fragments that 12 he likes, get the opinion that he likes and then he'll 13 proclaimed in the media to the prejudice of my client. 14 That makes a mockery of any fair process 15 and it makes a mockery of the truth which is what this 16 Commission is supposed to be about. 17 COMMISSIONER SIDNEY LINDEN: Yes. I'm 18 not happy with the question, Mr. Falconer. 19 MR. JULIAN FALCONER: I hope I get a 20 chance to respond. 21 COMMISSIONER SIDNEY LINDEN: Well I'm not 22 happy with the question. So you'll get a chance to 23 respond. 24 Mr. Millar, do you want to say something? 25 MR. DERRY MILLAR: Well, I think it's --
681 what it is is the question -- there's absolutely there's 2 none of these are facts, okay? And the -- it's in effect 3 argument. And what Mr. Falconer is doing is putting his 4 argument to the witness as a question. 5 And ultimately he can argue based on the 6 facts that there are in the facts, but it really is a -- 7 a -- his argument to the Witness in the guise of a 8 question. 9 COMMISSIONER SIDNEY LINDEN: Well, I'm 10 not happy with the question. But yes, Mr. Falconer, if 11 you want to say something go ahead. 12 MR. JULIAN FALCONER: Well, I think it's 13 important that I get an opportunity to respond. Thank 14 you. 15 First off, Mr. Downard has done this a 16 number of times and I've avoided being distracted, much 17 like avoided being distracted right now. Maybe I was 18 wrong. Maybe it's Mr. Downard's fly. 19 Mr. Commissioner, when Mr. Downard objects 20 to my questions, he invariably refers to and he has done 21 it a number of times, my intent with the media. Now, I'm 22 not getting distracted by that but it's happened so many 23 times that I have to respond. 24 This is not about counsel's personal 25 motivations. I don't -- I have to respond because he's
691 done it too many times. 2 COMMISSIONER SIDNEY LINDEN: That's fine. 3 I'm not paying any attention to that aspect of your 4 question. 5 MR. JULIAN FALCONER: But, I have to -- 6 he's done it on the record so many times I -- I have no 7 choice. Now, he's done it four (4) or five (5) times in 8 two (2) days. 9 Now, I don't speak to what his personal 10 motivations are in seeking to protect Mike Harris, I 11 speak to issues, legal issues. 12 He should confine himself to that because 13 what it ends up happening is he looks so defensive that 14 all he's thinking about is the media that I end up having 15 to respond to this nonsense. Now, he objected to a 16 question and I'll deal with his substantive objection. 17 And his substantive objection was it had 18 nothing to do with this case. In my submission -- in my 19 submission, what the Smith example -- that the Witness 20 raised, not -- not me. With the Smith example that the 21 Witness raised is the importance -- the importance of an 22 absolutely non-interventionist policy in police 23 operations by cabinet ministers and in particular, in 24 particular the Premier of the Province. 25 And in this case I respectfully submit to
701 you, yes, there's going to be an argument. Mr. Millar's 2 right, there's going to be an argument again, but counsel 3 routinely -- routinely has -- canvass through witnesses 4 this is the basis for their argument. 5 I am canvassing this issue, that what the 6 Premier did through the voices -- through the voices that 7 I identified in the evidence what he did amounted to 8 attending Ron Fox's home. And what he did should have 9 caused his resignation, but it didn't. 10 COMMISSIONER SIDNEY LINDEN: I think 11 you're making your argument now, Mr. Falconer. 12 MR. JULIAN FALCONER: No, but that's why 13 the question's relevant. 14 COMMISSIONER SIDNEY LINDEN: I'm asking 15 you now to leave that question and move on. 16 MR. JULIAN FALCONER: All right. I'll 17 move on. 18 COMMISSIONER SIDNEY LINDEN: Move on. 19 Move on. 20 21 CONTINUED BY MR. JULIAN FALCONER: 22 Q: In terms of your knowledge of the 23 role of the Deputy Solicitor General, you testified -- 24 you testified that the Solicitor General acted as a 25 buffer. Do you remember that?
711 A: I testified that the Deputy Solicitor 2 General acted as buffer. 3 Q: I apologize. I apologise. You 4 testified that the Deputy Solicitor General acted as a 5 buffer. Do you remember that? 6 A: Yes. Yes. 7 Q: Now, when you look at -- when you 8 look at Hansard and -- and in particular -- in particular 9 when you look at the passage I brought your attention to 10 of the Hansard concerning the attendance, or concerning 11 the inquiries made by Mr. Runciman. 12 And you'll find it in Hansard L1018. But 13 the bottomline in the May 25th extract, the bottomline to 14 the extract was that from the critics point of view, 15 getting a call back from the Deputy Solicitor General to 16 his mind didn't represent independence, correct? 17 He inquired about an investigation ongoing 18 by the OPP and he gets a call back from the Deputy 19 Solicitor General and to his mind that didn't represent 20 independence; that was the point of the statement? 21 A: That's what he said in here. 22 Q: Yes. Now, would you agree with me 23 that part and parcel of that problem, you were 24 Commissioner at the time, was that the Solicitor 25 General's actions were an issue and the critics getting a
721 call back from the Deputy Solicitor General, correct? 2 A: Yes. 3 Q: There is a relationship between the 4 Solicitor General and the Deputy Solicitor General which, 5 by necessity, is a close one, yes? 6 A: Yes. 7 Q: In fact, the primary loyalty that a 8 Deputy Solicitor General has to have is to the Solicitor 9 General, correct? 10 A: I think that's a fair assessment. 11 Q: And so, the issue of the independence 12 of the Deputy Solicitor General from the Solicitor 13 General is a thorny one, isn't it? 14 A: It's a difficult balancing act 15 without a doubt. 16 Q: Could you turn to the Tab 4 paper 17 that Mr. Millar helpfully included in his materials? 18 Oh, and Mr. Commissioner, I propose to 19 file the Hansard extract as the next exhibit in the 20 proceedings? 21 COMMISSIONER SIDNEY LINDEN: That's fine. 22 THE REGISTRAR: 630. 23 MR. JULIAN FALCONER: Exhibit P-630. 24 COMMISSIONER SIDNEY LINDEN: 630. Is 25 that right? I don't know what the last exhibit...
731 THE REGISTRAR: Number 611, 630. 2 MR. JULIAN FALCONER: Perhaps if we make 3 it the next exhibit number as we sit here and then I can 4 keep going or -- 5 COMMISSIONER SIDNEY LINDEN: That's fine. 6 We'll get the number and give it to us when you've got 7 it. 8 9 --- EXHIBIT NO. P-631: 1989 Hansard Extracts, May 10 18/89 to May 29/89. 11 12 COMMISSIONER SIDNEY LINDEN: Yes...? 13 14 CONTINUED BY MR. JULIAN FALCONER: 15 Q: I'm referring now to what is at Tab 4 16 of Commission Counsel's documents, the Ministerial 17 Control in the Ontario Provincial Police; do you see 18 that? 19 Is that not -- 20 MR. DERRY MILLAR: Exhibit P-578. 21 THE WITNESS: Yes, I have it. 22 MR. JULIAN FALCONER: Yes, okay. Good. 23 An it's Exhibit P-578, for the record. 24 25 CONTINUED BY MR. JULIAN FALCONER:
741 Q: Now, you had indicated that this 2 discussion paper in part formed your knowledge base in 3 terms of how the -- the divisions exist between police 4 and politicians, correct? 5 A: Correct. 6 Q: All right. First of all, at page 8, 7 could you direct your attention there? 8 A: I have it. 9 Q: After surveying the reports, the -- 10 the author -- and do you know who the author is? 11 A: No, I don't. 12 Q: Now, this is, we're told, the 1991 13 paper. I don't -- is -- I know My Friend for the 14 Attorney General, Ms. Twohig, is here and she maybe the 15 closest in -- in proximity to me and we'll determine 16 this. 17 Is there any possibility, I wonder aloud, 18 Mr. Commissioner, determining the author of this paper 19 because I've -- I've spent some time in the paper and the 20 paper is significant? 21 COMMISSIONER SIDNEY LINDEN: I don't 22 know. 23 MR. JULIAN FALCONER: If efforts could be 24 made, that's all I'm asking. 25 COMMISSIONER SIDNEY LINDEN: Ms. Twohig
751 wants to speak to it. 2 MS. KIM TWOHIG: Mr. Commissioner, I 3 understand that it was prepared mainly by Counsel at the 4 Ministry of the Solicitor General. 5 COMMISSIONER SIDNEY LINDEN: So you -- 6 MS. KIM TWOHIG: I don't know this -- 7 COMMISSIONER SIDNEY LINDEN: -- don't 8 know who the individual was that -- 9 MS. KIM TWOHIG: I don't know precisely 10 who it was and I'm not sure that that's relevant in any 11 event. 12 MR. JULIAN FALCONER: Well -- 13 COMMISSIONER SIDNEY LINDEN: Well, I'm 14 not sure we can find out now. 15 MR. JULIAN FALCONER: Well, I -- I'm 16 sorry, My Friend first started to give us some 17 information and then said it's not relevant. 18 COMMISSIONER SIDNEY LINDEN: Well, I -- 19 MR. JULIAN FALCONER: And with respect -- 20 COMMISSIONER SIDNEY LINDEN: No, I think 21 she means who the author is, not the paper. 22 MR. JULIAN FALCONER: That's -- that's 23 right, she does and I say that that's actually not very 24 fair. The paper is relevant and we generally, not just 25 lawyers, academics, anyone trying to do proper work don't
761 work without knowing who's authored it. 2 COMMISSIONER SIDNEY LINDEN: I'm 3 surprised that there's no author identified. 4 MR. JULIAN FALCONER: Of course. 5 COMMISSIONER SIDNEY LINDEN: I think 6 legitimate efforts could be made to determine whether or 7 not we can find out who the author is. 8 MR. JULIAN FALCONER: And that's all I'm 9 asking. 10 COMMISSIONER SIDNEY LINDEN: If we can't, 11 we can't. 12 MR. JULIAN FALCONER: Right. But Ms. 13 Twohig's ending, it's not relevant -- 14 COMMISSIONER SIDNEY LINDEN: Yes. 15 MR. JULIAN FALCONER: -- might mean she 16 doesn't think it's necessary to make legitimate efforts. 17 COMMISSIONER SIDNEY LINDEN: Well, I -- 18 MR. JULIAN FALCONER: I just don't know 19 and that's why I'm raising it because I think -- 20 COMMISSIONER SIDNEY LINDEN: May I 21 respectfully ask Ms. Twohig that you make some reasonable 22 efforts to find who the author of this is? 23 MS. KIM TWOHIG: I would be glad to know 24 that, Mr. Commissioner, but I'm just concerned where that 25 may lead.
771 COMMISSIONER SIDNEY LINDEN: Well, I have 2 no idea where it may lead, but there's a paper here and 3 we're making reference to it and we don't know who the 4 author is and I don't think it's unreasonable for us to 5 inquire who the author is. 6 MS. KIM TWOHIG: I will make those 7 inquiries, Mr. Commissioner. 8 COMMISSIONER SIDNEY LINDEN: Thank you. 9 Thank you very much. 10 And obviously, the Witness has said that 11 he has read it and it's formed his knowledge base and 12 he's relied on it. So, I'd be interested in knowing, if 13 it's possible, who the author is. Where that leads us I 14 don't know. 15 MR. DERRY MILLAR: I -- I don't have -- I 16 believe I might be able to determine who that is, but I 17 don't have it right at the moment, Commissioner. 18 COMMISSIONER SIDNEY LINDEN: Well, it 19 ought not to be a mystery. There's lots of things that 20 are mysteries. This is something that ought not to be, I 21 think. Usually a person who writes a paper like this 22 takes pride in it and would like some pride of 23 authorship. 24 I think -- I can't see why that's an 25 issue, but if you make some efforts and you find out, I'd
781 be interested in knowing. 2 If you can't, I'd be interesting in 3 knowing that. 4 Yes...? 5 MR. JULIAN FALCONER: Thank you, Mr. 6 Commissioner. 7 8 CONTINUED BY MR. JULIAN FALCONER: 9 Q: At page 8 of the document entitled, 10 "Ministerial Control and the Ontario Provincial Police," 11 the last paragraph starts, "unfortunately...;" do you 12 have that? 13 A: Yes, I do. 14 Q: And I have a clean copy of the paper 15 if there's somebody who could benefit from it, or as an 16 exhibit. It's been made an exhibit, all right. 17 It says: 18 "Unfortunately, none of these reports 19 point to a clear resolution of the 20 problem. The difficulty is that the 21 extent to which the Minister should 22 intervene in the actions of the police 23 has been determined by personalities, 24 convention and necessity rather than by 25 a clear statement of law or policy."
791 Would you agree with that paragraph? 2 A: I certainly would. 3 Q: All right. And then I'd ask you to 4 direct your attention for a moment to page 14. 5 6 (BRIEF PAUSE) 7 8 Q: And at page 14, and I want to be fair 9 to you, you'll see the context is set out at 13 with the 10 subtitle, "what is the Deputy Minister's role in 11 informing the Minister." 12 Do you see that subtitle at 13? Page 13? 13 A: Oh, at 13. 14 Q: It says -- 15 A: Yes. 16 Q: Okay, I just want to give -- 17 A: Under C? 18 Q: -- you the context? All right, and 19 then go to 14: 20 "It is difficult to codify, in detail, 21 the Ministerial deputy relationship as 22 much depends on the temperament and 23 method of work of these two (2) 24 executives. 25 The deputy is expected to be a highly
801 competent policy advisor and effective 2 crisis manager and a sound, overall 3 executive. 4 A 1985 Price Waterhouse report 5 pertaining to management and 6 accountability in the Ontario 7 government has noted, quote: 8 'While deputies have a primary 9 responsibility to serve their 10 ministers, they must also serve 11 government-wide responsibilities. 12 These responsibilities devolve in part 13 from the fact that the deputies 14 appointed by the Premier a set of 15 government expectations as part of that 16 appointment.'" 17 And I leave it with you; I'm not going to 18 go further on that passage. 19 But turning to page 20, 20 "How can ministerial authority be more 21 clearly defined?" 22 A: Yes. 23 Q: And you should know, this is in the 24 context of Solicitor General, deputy Solicitor General, 25 police. You'll see the last line?
811 I'm sorry, the first line: 2 "It is possible to define, in general 3 terms, the roles and responsibilities 4 of the Minister, deputy minister, and 5 commissioner. These relationships 6 could be set out in written form such 7 as in a letter of protocol or 8 memorandum of understanding between the 9 Minister and commissioner. 10 It, however, may be detrimental to the 11 efficient operation of the Ministry to 12 codify in detail these relationships. 13 As noted on page 8, much depends on the 14 personalities and method of work of 15 these senior executives." 16 Now, what you've seen at page 8, page 14 17 and page 20 is a repetition of a notion that I want to 18 ask you about, which is the notion that personalities 19 will often define the accountability lines in respect of 20 minister, deputy Solicitor General and commissioner of 21 the OPP; do you see that? 22 A: I see that. 23 Q: And would you agree with me that it 24 is not a desirable state of affairs, based on your ten 25 (10) years as Commissioner, to have that kind of loose
821 criteria? 2 A: I quite strongly believe that it is 3 too loose and one would prefer to work on a clearly 4 designed set -- designed set of circumstances that you 5 could use as a guide to your daily activities. 6 Q: And by designed set of circumstances, 7 may I suggest to you, you mean a set of rules? 8 A: Exactly. 9 Q: And in your business, you see rules 10 on how police officers are to behave? 11 A: Yes. 12 Q: There are rules from the Criminal 13 Code, there are rules from the Charter, there are rules 14 from the Police Services Act. Section 42 is a perfect 15 example, correct? 16 A: Yes. 17 Q: Duties of a police officer? 18 A: Yes. 19 Q: And you've still been able to do your 20 job? 21 A: Yes. 22 Q: The notion that a Solicitor General 23 and/or a deputy Solicitor General wouldn't have clear 24 rules, it's not helpful, is it? 25 A: It's not helpful to the Commissioner?
831 Q: All right. When it refers to the 2 personalities of the players involved, you mentioned, in 3 your examination in-chief, that you were a Commissioner 4 of the OPP for three (3) different governments? 5 A: Yes. 6 Q: The NDP government? 7 A: Yes. 8 Q: The Liberal government? 9 A: Yes. 10 Q: And the Conservative government? 11 A: Yes. 12 Q: And when they talk about 13 personalities of the players, they're referring to the, 14 like any reality, the reality that human beings are 15 determined by how they are, or how their personalities 16 are, correct? 17 A: I agree. 18 Q: And when left to the personalities of 19 the players, a person could be a very laissez-faire, 20 stand-offish manager, correct? 21 A: Yes. 22 Q: They may let the OPP do their own 23 thing and may take almost no role, policy or otherwise, 24 in what the OPP is doing? 25 A: That's correct.
841 Q: They might take almost no interest 2 whatsoever? 3 A: Yes, that's possible. 4 Q: A form of a laissez-faire approach to 5 the OPP? 6 A: Yes. 7 Q: And that might be detrimental for a 8 democracy, yes? 9 A: I -- I agree. 10 Q: Because it's important that the 11 government of the day takes an interest? 12 A: I agree. 13 Q: Similarly, a personality of the 14 leader might be very aggressive, yes? 15 A: Yes. 16 Q: The personality of the leader might 17 be such as they believe their government policies can 18 actually be fulfilled through the OPP, correct? 19 A: That's a possibility, yes. 20 Q: And that personality, seeking to 21 fulfil a political agenda, could well, ultimately, 22 determine a different line of accountability. 23 That's the point of the paper comments, 24 isn't it? 25 A: Correct.
851 Q: So, it -- we are faced with, in terms 2 of the systemic issues arising from the relationship 3 between the Solicitor General, the Deputy Minister and 4 the Commissioner of the OPP, with circumstances whereby 5 the particularly -- may I call it personality, the 6 particular personality of the Government will determine 7 the level of interventionism in the OPP; isn't that 8 right? 9 A: It could, yes. 10 Q: When you hear words like, this is a 11 test of our government, we can take the flak, we want 12 them out in a day or two (2), those kinds of words on 13 their own -- those kinds of words speak to an aggressive 14 political agenda, don't they? 15 COMMISSIONER SIDNEY LINDEN: Ms. 16 Perschy has a -- 17 THE WITNESS: I suppose -- 18 COMMISSIONER SIDNEY LINDEN: Ms. Perschy 19 has an objection. I think you should make until she 20 makes it before you answer. 21 22 (BRIEF PAUSE) 23 24 OBJ MS. ANNA PERSCHY: My objection, 25 Commissioner, is that what Mr. Falconer is doing, and
861 this has been raised before, is picking and choosing 2 segments of what has arisen previously and -- 3 COMMISSIONER SIDNEY LINDEN: You mean 4 parts of the evidence? 5 MS. ANNA PERSCHY: Parts of the evidence. 6 And, I mean, previously he was referring to impressions 7 that Ron Fox had had at certain meetings. 8 And then he tries to turn that into 9 something that creates some sort of objective reality and 10 then puts various questions to the witness. 11 And the concern that I have is that he's 12 putting these segments that he's selecting, that he's 13 cherry picking, in order to seek certain answers and it's 14 not fair to the Witness. And he's omitting certain 15 critical details that are entirely relevant. 16 And these questions are not fair. 17 MR. JULIAN FALCONER: Well, I -- 18 MS. ANNA PERSCHY: And that's the basis 19 of my objection. 20 MR. JULIAN FALCONER: I hear Ms. Perschy. 21 I mean, rather than argue with her, I'll go to my next 22 question. 23 COMMISSIONER SIDNEY LINDEN: All right. 24 MR. JULIAN FALCONER: Only because, Mr. 25 Commissioner, I have a limited time left and --
871 COMMISSIONER SIDNEY LINDEN: Yes. 2 MR. JULIAN FALCONER: -- to get one, 3 well -- 4 COMMISSIONER SIDNEY LINDEN: Okay. 5 MR. JULIAN FALCONER: To get one question 6 sustained in order to -- to lose a lot of time. 7 COMMISSIONER SIDNEY LINDEN: That's fine. 8 9 CONTINUED BY MR. JULIAN FALCONER: 10 Q: Mr. O'Grady, if you could help me on 11 this and I want you to turn, please, to page 9 of the -- 12 the paper, page 9. 13 14 (BRIEF PAUSE) 15 16 A: Yes. 17 Q: Second to last sentence at page 9: 18 "It may no longer be realistic to 19 assume that a minister can be aware of 20 all actions taken in his or her name. 21 A minister must delegate management 22 authority to senior officials, 23 particularly to the Deputy Minister." 24 Do you see that? 25 A: I see that.
881 Q: Now that notion of delegating 2 management authority, that really isn't about civilian 3 oversight of the police, is it? It's about a manager? 4 A: Yes. 5 Q: All right. 6 7 (BRIEF PAUSE) 8 9 Q: At page 11 of this paper, they 10 identified four (4) areas of ministerial responsibility; 11 that's what the author calls it. It just seems to be 12 four (4) areas bearing on ministerial responsibility, 13 frankly, Mr. Commissioner. 14 But in any event that's how he describes 15 it, the author, or she describes it. And -- and you see 16 that the bottom of page 10, four (4) key areas of 17 ministerial responsibility. Do you see that? 18 A: Yes. 19 Q: And then at the top of page 11, the 20 four (4) areas -- the author identifies the four (4) 21 areas. 22 1. The right -- from the part of the 23 Minister to know. Do you see that? 24 A: I see that. 25 Q: And you see sub (c); what is the
891 Deputy's role in informing the Minister? 2 And 2, the right to direct policy matters. 3 A: Yes. 4 Q: All as it relates to the OPP, you 5 understand that? 6 A: I understand. 7 Q: And 3, he right to direct operational 8 matters. 9 A: Yes. 10 Q: And 4, how can ministerial authority 11 be more clearly defined. 12 Those are the four (4) areas the author 13 deals with. 14 A: Yes. 15 Q: Now at page 12 under, "Right to 16 Know". 17 "What right does the Minister have to 18 be fully informed of matters respecting 19 the OPP." 20 A: I see that. 21 Q: "Section 2(2) of the Ministry of the 22 Solicitor General Act provides that the 23 Solicitor General shall preside over 24 and have charge of the Ministry. 25 A necessary adjunct to this
901 responsibility is the right and duty to 2 be kept fully informed of any matter in 3 the Ministry. This would include being 4 informed of any operational matter 5 including an operational decision in an 6 individual case. 7 But the minute -- Commissioner could 8 withhold information that would result 9 in a serious breach of confidence, 10 jeopardize the investigation, or put 11 any person at risk. Of course the 12 Commissioner, in making such a 13 decision, would be held accountable if 14 he held -- exercised that power 15 incorrectly." 16 A: Yes. 17 Q: That makes you smile a bit doesn't 18 it? 19 A: Yes. 20 Q: You're kind of between a rock and a 21 hard place. Nobody gives you clear rules, but if you 22 break the unclear rules, you're accountable. 23 A: That's true. 24 Q: Is -- is my rendition accurate? 25 A: I don't think I ever encountered that
911 problem but reading this document, it certainly suggests 2 that. 3 Q: And would you agree with me that 4 that's the problem of not having clear rules? 5 A: I agree. 6 Q: That it's somewhat unfair to hold you 7 accountable for breaking a rule when there's no clear 8 rule? 9 A: Exactly. 10 Q: Now, the author goes on at page 13 11 and I apologize. I'm trying to get us through it, on 12 some relevant sections. And -- and I don't expect, Mr. 13 Commissioner, I'm going to finish by 11:00 in fairness to 14 me we went down for half an hour. And -- and I -- 15 COMMISSIONER SIDNEY LINDEN: In fairness 16 to us all, that wasn't any of our doing. I don't want to 17 say whose it was but -- 18 MR. JULIAN FALCONER: Well -- no, I know 19 but -- 20 COMMISSIONER SIDNEY LINDEN: The gremlins 21 again, let's say, but here we are. 22 MR. JULIAN FALCONER: I know and I'm -- 23 COMMISSIONER SIDNEY LINDEN: I really 24 would like to try to finish by 11:00. 25 MR. JULIAN FALCONER: I understand. I --
921 COMMISSIONER SIDNEY LINDEN: I'm asking 2 you to make every effort. 3 MR. JULIAN FALCONER: I will. 4 COMMISSIONER SIDNEY LINDEN: 11:00 would 5 be the outside limit if you could possibly do it. Thank 6 you. 7 MR. JULIAN FALCONER: Thank you. 8 9 CONTINUED BY MR. JULIAN FALCONER: 10 Q: Page 13: 11 "What is the Deputy Minister's role in 12 informing the Minister? The Deputy 13 Minister is the Chief Administrative 14 Officer of the Ministry. 15 Here she should act as a buffer between 16 the political authority and the 17 Commissioner. It is the Deputy's 18 responsibility to inform 19 himself/herself of all matters being 20 handled within the Ministry and to 21 decide which matters are of sufficient 22 importance so that the Minister ought 23 to be informed or to raise issues of 24 policy for the Minister's 25 consideration."
931 The top of page 14? 2 A: Yes. 3 Q: "It is difficult to codify in detail. 4 The ministerial deputy relationship as 5 much depends on the temperate method of 6 work of these two (2) executives" 7 which I read to you before. 8 Now, what I'm going to ask you is this: 9 In the circumstances, did you ever become aware of any 10 actual rules of any kind or even a -- a policy document 11 that outlined what that means to be a buffer? 12 A: I'm not aware of one. 13 Q: So that word 'buffer', we know it's 14 not a word from the legislation, right? 15 A: Right. 16 Q: That word 'buffer', did you ever 17 actually figure out what it means? 18 A: Just the -- the common dictionary 19 definition of 'buffer' I guess. 20 Q: But, in the context of the Deputy 21 Solicitor General and the Solicitor General, did you ever 22 get any real content to it? 23 A: No. 24 Q: No. And you were Commissioner for 25 ten (10) years?
941 A: Yes. 2 Q: It speaks to the problem of the 3 absence of rules doesn't it? 4 A: I think it does. 5 Q: At page 15 the author grapples with 6 the difficult issue of what is policy and what is 7 operational. Do you see this? 15? 8 A: I'm on 15, I'm looking for your -- 9 Q: If you see five (5) lines down, "In 10 matters of policy". 11 "In matters of policy including 12 operational policy...". 13 A: Yes. 14 Q: Do you see that? 15 A: Yes. 16 Q: "...the Solicitor General should have 17 full power both to express his or her 18 views and to provide direction of the 19 Commissioner. This power flows from 20 the Solicitor General's ultimate 21 accountability with respect to the OPP. 22 In his book, Ian Oliver, 23 Police Government and Accountability, 24 has made a distinction between two (2) 25 styles of accountability.
951 The first style is described as a 2 subordinate, obedient mode which is 3 accompanied by administrative control 4 and the ability to direct or veto." 5 And pausing there for a minute, it's a lot 6 -- it's a mouthful, but the bottom line is that mode -- 7 would you agree with me at least suggests you can order 8 the body, the subordinate body as you see fit? 9 A: That's what it would seem to me. 10 Q: The second is the explanatory and 11 cooperative mode which is not supported by a capacity to 12 issue orders, but rather to require reports and 13 presumably explanations for things that will be or have 14 been done? 15 The first style of accountability, the 16 ability to direct or veto could apply to the Minister's 17 responsibility for policy matters. As discussed below, 18 the second style describes a type of accountability for 19 operational matters. 20 Now what I'm going to ask you, sir, is did 21 anyone take you through this notion of the distinction 22 between following a direction and being obligated to 23 report by way of explanation? Did that ever -- did you 24 ever get taken through that? 25 A: I formed my own views of -- of how it
961 separates, but I didn't get any instruction in that area. 2 Q: And during your entire ten (10) 3 years, did you come to any consensus between your 4 political masters on the one (1) hand and you on the 5 difference? 6 A: Just generally that I understood that 7 in broad policy matters the Minister could have influence 8 on what the OPP -- what -- what policies the OPP worked 9 under, these were broad policies and that operational 10 matters he did not or she did not. 11 Q: All right. Now, I just want to take 12 you to one (1) other area in this paper. I then want to 13 move on to the paper by Mr. or by Professor Roach. 14 At page -- if you turn to page 18? 15 A: Yes? 16 Q: The author opines that on operational 17 matters the -- the -- the Minister basically must stand 18 back somewhat. The author goes on to say: 19 "This is not to say that the police 20 have no accountability with respect to 21 specific operational decisions. As 22 noted above, however, at page 13 the 23 Minister's accountability for 24 operational matters may be to require 25 information on what has or will be done
971 rather than as in the policy area to 2 control or direct the actions of the 3 police. 4 Reporting relationships should also be 5 respected in order to avoid any 6 perception of political interference as 7 opposed to the Minister's right to be 8 fully informed on all matters under his 9 or her jurisdiction. 10 Accordingly, it would be advisable for 11 the Minister to direct his or her 12 requests for information to the 13 Commissioner." 14 Do you see that? 15 A: Yes, I do. 16 Q: Now, that notion of respecting the -- 17 does -- do you get from that what I get from that, which 18 is it's important to respect the chain of communication? 19 A: I do. 20 Q: And the notion that if you buck that 21 chain of communication or override it, especially in the 22 operational area, it could well give rise to a perception 23 of political interference? 24 A: Yes. 25 Q: All right. Now what you'll see is
981 that at page 22 and -- and so you have some context as we 2 move quickly through this, 21 is an appendix that has 3 some general guidelines apparently created by the author. 4 At page 22 it says, "Normal channels of 5 communication," do you see that? 6 A: Yes. 7 Q: "The desired chain of communication 8 is from the Minister to the Deputy 9 Minister to the Commissioner and from 10 the Commissioner to the Deputy Minister 11 to the Minister. 12 The Minister may meet with both the 13 Deputy Minister and the Commissioner 14 together or with either individually. 15 Where the Minister wishes to discuss an 16 issue with the Commissioner alone, he 17 or she should advise the Deputy 18 Minister of the intention. 19 Communication will also be enhanced 20 through official social contact." 21 Then, at page 25 at the top of the page: 22 "The Minister may ask to be informed on 23 the general activities of the OPP as 24 they pertain to any investigation or 25 activity. The Minister should make
991 such requests through normal channels, 2 that is through the Deputy Minister to 3 the Commissioner to the Investigating 4 Officer. To do otherwise might be seen 5 as political interference in the 6 operations of the police. 7 The Commissioner may refuse to make a 8 full report if he believes it would 9 contain information disclosure which 10 would be contrary to the public 11 interest." 12 Now you see how there's a repetition of 13 this notion that bucking the chain of command and 14 communications could result in a perception of political 15 interference? 16 A: Yes. 17 Q: All right. And would you agree with 18 me, not only could it result in a perception, it could 19 actually represent actual political interference; it 20 could? 21 A: It could. 22 Q: Would you agree with me that what the 23 author is proposing at page 25, that I've just read to 24 you, is -- is a notion -- and 22, is the notion that the 25 Commissioner is the person to work through?
1001 A: Yes. 2 Q: And the idea is, if you work through 3 the Commissioner then the Commissioner can make that 4 judgment call about whether this is operational 5 information? 6 A: Exactly. 7 Q: And the idea is that you get to 8 assess, based on your experience, and accountability as 9 the leader, whether this is information these cabinet 10 ministers should have? 11 A: I agree. 12 Q: Now, you can't make that call if you 13 don't know the cabinet ministers are meeting with your 14 people, correct? 15 A: That's true. 16 Q: And that's, in essence, what happened 17 with Inspector Fox, isn't it? 18 A: From what I know now, it seems that 19 is exactly what happened. 20 Q: And it's fair to say that it is 21 essential that that chain of communication be respected 22 so you can be there with your hand on the lever to ensure 23 there isn't an improper overlap between political agendas 24 and police operations? 25 A: I agree.
1011 Q: And having shown you all of the 2 information you now know of, would you agree with me that 3 unfortunately -- unfortunately you were bypassed? 4 A: It would seem that way. 5 Q: And in being bypassed, would you 6 agree with me the very danger the author refers to -- 7 COMMISSIONER SIDNEY LINDEN: I'm sorry, 8 carry on. 9 10 CONTINUED BY MR. JULIAN FALCONER: 11 Q: In being bypassed, the very danger 12 the author refers to of a perception of political 13 interference has happened? 14 A: Yes. 15 Q: Could we turn to the Roach paper, 16 please? 17 COMMISSIONER SIDNEY LINDEN: Just before 18 you leave this, I just want to make note that this is a 19 discussion paper. I mean, you didn't meant -- or I know 20 if you did at the beginning or not, the title of it, that 21 it isn't any official document or policy in anyway, just 22 a -- 23 MR. JULIAN FALCONER: Right. 24 COMMISSIONER SIDNEY LINDEN: -- a 25 discussion paper.
1021 MR. JULIAN FALCONER: I took it as a 2 discussion paper that formed -- that's right, it actually 3 says discussion paper on the cover. 4 COMMISSIONER SIDNEY LINDEN: Yes, that's 5 fine. 6 MR. JULIAN FALCONER: And the exhibit 7 speaks for itself, but I want to emphasize this. I 8 understood this formed the basis of the knowledge base 9 for the Commissioner of the OPP. 10 COMMISSIONER SIDNEY LINDEN: Well, the 11 Commissioner indicated that he read it and it did form 12 part of his knowledge base, so I understand that. 13 MR. JULIAN FALCONER: And I -- but I 14 didn't see it as an official statement of government 15 policy -- 16 COMMISSIONER SIDNEY LINDEN: That's fine. 17 MR. JULIAN FALCONER: -- because we don't 18 even know who's authored it, but... 19 20 CONTINUED BY MR. JULIAN FALCONER: 21 Q: In terms of the next document I want 22 to take you to, I want to emphasize -- oh, and by the way 23 I do, for the record, want to indicate that the other 24 document included that I brought your attention to, that 25 I won't take you through, seems to be a rendition of this
1031 discussion paper and I ask you to take a look at that. 2 I believe you'll find it at Tab 90 -- I 3 have Tab 98, but it seems that myself and Mr. Millar are 4 off by one (1) tab often, so he may have it at 99. 5 Is it 99 of his -- 6 MR. DERRY MILLAR: 99. 7 MR. JULIAN FALCONER: Yes. 8 MR. DERRY MILLAR: It's P-579. 9 MR. JULIAN FALCONER: That's correct. 10 COMMISSIONER SIDNEY LINDEN: Yes. 11 MR. JULIAN FALCONER: Exhibit P-579 12 appears -- 13 COMMISSIONER SIDNEY LINDEN: Yes. 14 15 CONTINUED BY MR. JULIAN FALCONER: 16 Q: -- to be a summary in presentation 17 fashion of this paper. Now, I could be wrong, but I 18 commend it to you, sir, to take a look at. 19 In particular, if you look at, under "the 20 right to know". 21 A: Yes. 22 Q: Under "the right to know", you see 23 that last practice -- that paragraph, "in practice --" 24 A: In practice -- 25 A: "-- the Deputy rather than the
1041 Minister has been informed of OPP 2 operational issues in order to protect 3 the Minister against allegations of 4 political interference --" 5 A: I see that. 6 Q: "-- in policing matters." 7 A: Yes. 8 Q: And if you take a look at "the right 9 to direct operational matters"; if you flip five (5) 10 pages into Tab 99. 11 A: Yes. 12 Q: "Reporting relationships should also 13 be respected in order to avoid any 14 perception of political interference. 15 Accordingly, it would be advisable for 16 the Minister to direct his or her 17 request for information to the 18 Commissioner." 19 MR. DERRY MILLAR: I'm not certain -- 20 we've got this document as an exhibit -- 21 COMMISSIONER SIDNEY LINDEN: No, I'm not 22 sure how -- 23 MR. DERRY MILLAR: -- it's being used 24 for -- 25 COMMISSIONER SIDNEY LINDEN: -- helpful
1051 this -- 2 MR. DERRY MILLAR: This -- the witness 3 said, I think, in-chief that he thinks this came up -- 4 was produced after he left as Commissioner, so -- 5 COMMISSIONER SIDNEY LINDEN: The 6 information I had was it was created in 1998. 7 MR. DERRY MILLAR: Yes, after he left as 8 Commissioner. 9 COMMISSIONER SIDNEY LINDEN: That's 10 right. 11 MR. DERRY MILLAR: So, I'm not -- you 12 know, we can all compare this document -- 13 COMMISSIONER SIDNEY LINDEN: And we can 14 all read it, so I'm not sure where you're going now, Mr. 15 Falconer. 16 MR. DERRY MILLAR: But, if I might just 17 clear up a housekeeping matter, the excerpts from the 18 Hansard should be Exhibit P-631. 19 COMMISSIONER SIDNEY LINDEN: 631. 20 MR. DERRY MILLAR: There was a bit of a 21 question because P-630 is also P-611, but rather than go 22 back and change the record, we'll have -- 23 COMMISSIONER SIDNEY LINDEN: You've left 24 it as 630. 25 MR. DERRY MILLAR: We'll leave it at 630
1061 and this Hansard extract that Mr. Falconer asked to be 2 marked will be P-631. 3 COMMISSIONER SIDNEY LINDEN: Thank you. 4 5 (BRIEF PAUSE) 6 7 MR. JULIAN FALCONER: I'm asking you to - 8 - I'm asking you to now direct your attention to the 9 other document and -- and you asked me where I was going, 10 Mr. Commissioner, with the reference to that document. I 11 had asked the Witness to take a look at it, that's all. 12 COMMISSIONER SIDNEY LINDEN: Which, the 13 Roach document? 14 MR. JULIAN FALCONER: The -- 15 COMMISSIONER SIDNEY LINDEN: Oh, oh -- 16 MR. JULIAN FALCONER: The Tab 99 17 document. 18 COMMISSIONER SIDNEY LINDEN: Right. 19 MR. JULIAN FALCONER: And -- and you'd 20 asked me and I wanted to be fair to him, to point out to 21 him that I wasn't skipping something so he didn't see it. 22 It seemed to be a general reflection of what I'd read to 23 him in the -- in the larger document and I simply point 24 that out to him as -- as a matter of fairness because I 25 asked him to look at it.
1071 2 CONTINUED BY MR. JULIAN FALCONER: 3 Q: If you could turn now, sir, to the 4 Roach -- Professor Roach's paper, please? 5 A: I have it. 6 COMMISSIONER SIDNEY LINDEN: You didn't 7 say anything at the beginning, Mr. Falconer, so I presume 8 we're on the same wavelength as far as the use of this 9 document? 10 MR. JULIAN FALCONER: Absolutely. 11 COMMISSIONER SIDNEY LINDEN: That's fine. 12 MR. JULIAN FALCONER: And -- and may I -- 13 may I add the -- the reliance on the academic work is for 14 the purposes of giving context to the Witness. I, in no 15 way, seek to criticize or I -- I could disagree with an 16 author. 17 The way to do this is -- is to ask the 18 Witness their views. Professor Roach has given some 19 helpful models, I want to run them by the Witness. 20 COMMISSIONER SIDNEY LINDEN: That's fine. 21 MR. JULIAN FALCONER: And I -- I don't 22 see -- 23 COMMISSIONER SIDNEY LINDEN: It's not 24 cross-examination, I just want to make that clear. 25 MR. JULIAN FALCONER: No. No, no. It's
1081 not -- it's not a cross-examination. 2 COMMISSIONER SIDNEY LINDEN: That's fine. 3 The ideas contained therein and asking him his views of 4 them? 5 MR. JULIAN FALCONER: That's right. 6 That's right. 7 COMMISSIONER SIDNEY LINDEN: That's fine. 8 MR. JULIAN FALCONER: And that's the only 9 way I understand to use the academic materials. 10 COMMISSIONER SIDNEY LINDEN: It's still 11 in draft form, too. 12 MR. JULIAN FALCONER: That's right. 13 MR. DERRY MILLAR: You normally use 14 academic material if the Witness, for example -- 15 COMMISSIONER SIDNEY LINDEN: Were to 16 acknowledge it's authenticity and expertise. 17 MR. DERRY MILLAR: -- acknowledged that 18 Mr. Roach, in this case, is an expert. 19 COMMISSIONER SIDNEY LINDEN: Yes. 20 MR. DERRY MILLAR: And if he doesn't, 21 then normally you would say that's the end of it. 22 COMMISSIONER SIDNEY LINDEN: I 23 understand. 24 MR. DERRY MILLAR: I don't even know if 25 he knows Mr. --
1091 COMMISSIONER SIDNEY LINDEN: Well, I know 2 that, but I know Mr. Roach and this isn't a trial and I 3 chose Mr. Roach to write this paper because I believe in 4 his expertise. So I think for the purposes of this 5 Inquiry I think it's appropriate to ask the questions; 6 that's why we did the paper. 7 Yes...? 8 MR. MARK SANDLER: I should say, 9 Commissioner, that -- that Mr. Roach's paper is being 10 digested within the OPP for that very reason so that at 11 some point we can speak to that very issue -- 12 COMMISSIONER SIDNEY LINDEN: Yes. 13 MR. MARK SANDLER: -- of some of the 14 things that he's raised. 15 COMMISSIONER SIDNEY LINDEN: That's fine. 16 MR. MARK SANDLER: I don't have any 17 problem with this. 18 COMMISSIONER SIDNEY LINDEN: Thank you, 19 Mr. Sandler. 20 21 CONTINUED BY MR. JULIAN FALCONER: 22 Q: Professor Roach -- and -- and you had 23 an opportunity to review the paper last night? 24 A: Yes, I did. 25 Q: All right. Professor Roach basically
1101 -- because -- because time is short I'm going to give you 2 a summary of four (4) areas he identifies and I encourage 3 you to satisfy yourself about this. 4 From pages 39 through in and around 47, 5 Professor Roach identifies four (4) models of police 6 government relationships; that's what he calls them. 7 And -- and the four (4) models he 8 identifies firstly at page 39 is what's called full 9 police independence; that's the first model he looks at. 10 Do you see that at page 39? 11 COMMISSIONER SIDNEY LINDEN: Your pages 12 may be different. 13 THE WITNESS: No, I think I'll have it 14 here in a moment, but I certainly remember reading it 15 last night. 16 MR. JULIAN FALCONER: Now my only concern 17 is because of the website and us getting it from the 18 conference materials. There you go, another great 19 reality. 20 COMMISSIONER SIDNEY LINDEN: Yes, the -- 21 MR. DERRY MILLAR: The website copy, 22 actually, for your purposes which I believe you have, 23 Commissioner, "full police independence," starts at page 24 28. 25 COMMISSIONER SIDNEY LINDEN: Yes.
1111 MR. DERRY MILLAR: It's a review copy 2 July 2004 that was posted on the website. 3 COMMISSIONER SIDNEY LINDEN: It's page 4 28, that's where, yes. 5 MR. DERRY MILLAR: And the four (4) 6 models of police government relationships start at page 7 27. 8 MR. JULIAN FALCONER: Thank you. 9 COMMISSIONER SIDNEY LINDEN: Yes, and the 10 full police independence one is at 28. Yes, I -- 11 MR. JULIAN FALCONER: Yes, my apologies. 12 COMMISSIONER SIDNEY LINDEN: That's fine. 13 MR. JULIAN FALCONER: What's happened is, 14 ALST attended the conference and so I'm using a paper 15 that we received at the conference. 16 COMMISSIONER SIDNEY LINDEN: That's fine. 17 That's why I say it's still in draft form. This paper 18 will likely form part of the report at the end of the day 19 or could form, possibly, part of the report at the end of 20 the day. 21 MR. JULIAN FALCONER: So, now we're on 22 the same wavelength, Mr.... 23 24 (BRIEF PAUSE) 25
1121 CONTINUED BY MR. JULIAN FALCONER: 2 Q: Do you have page 27 in front of you, 3 sir, because my suspicion is you have the copy downloaded 4 from the website? Good. So, I'm -- 5 A: I have 27. 6 Q: And now you see four models of police 7 government? 8 A: Yes, I do. 9 Q: All right. Because Mr. Millar's been 10 so helpful to me I now am on the same page as you are. 11 All right. And the four (4) models that 12 are identified as I indicated -- I had partly made my way 13 through it, but the four (4) models that are identified 14 are full police independence, 1, Quasi-judicial and core 15 police independence, 2; 3, Democratic policing, and 4, 16 Government policing. 17 I first want to -- and -- and I don't 18 propose to take you through each one in great specifics, 19 but I wanted to be fair to you so that you knew what the 20 models are. 21 If you could turn to Professor Roach's 22 introduction for a moment, please? 23 A: Yes. 24 Q: The last line of the first paragraph. 25 And of course I don't do Professor Roach justice but I'm
1131 -- I'm going very quickly. So for the record I -- I want 2 to apologize to Professor Roach for not giving this the 3 fullness of time it deserves. The last sentence of the 4 first paragraph. 5 "Indeed the relationship --" 6 or it starts: 7 "The relationship remains murky to 8 many. Even though it is a matter of 9 considerable civic and constitutional 10 significance." 11 And when you look up the relationship of 12 course that he's talking about is set out at the first 13 line of the paragraph. 14 "The contested issue whether and to 15 what extent the police are independent 16 from the government can pop up at any 17 time." 18 Now Professor Roach starts from the point 19 of view of where we sit today doesn't he? 20 A: Yes. 21 Q: In the next paragraph, again the last 22 sentence starting with, "finally," and it's on the next 23 page, page 2. 24 "Finally there's the critical question 25 of whether a distinction between the
1141 government informing itself about 2 police matters." 3 And you see this is at the top of the 4 second page, last line of the first paragraph, see, 5 "finally?" 6 A: Yes. 7 Q: "Finally there's the critical 8 question of whether a distinction 9 between the government informing itself 10 about police matters and influencing 11 the police is sustainable in the minds 12 of politicians, police and the public 13 at large." 14 And you'd agree with me that that issue of 15 the right of -- for example, the Solicitor General to 16 inform himself. But his obligation not to give you a 17 direction or even a signal is a very difficult thorny 18 problem. 19 A: It is indeed. 20 Q: Excuse me for a minute. In fact it's 21 fair to say that there is no doubt that you would be 22 crossing the line as the solicitor general if you 23 expressed an opinion to a commissioner that acted as a 24 signal in relation to police operations, correct? 25 A: I guess it would depend on the --
1151 again, I guess we get back to -- to individuals. 2 Q: I'm saying if you intended it. If 3 you, as solicitor general, expressed an opinion that you, 4 as solicitor general, intended as a signal to police in 5 respect of police operations, that would be crossing the 6 line. 7 A: Yes. 8 Q: And so there is an extraordinarily 9 artificial barrier between a discussion when you're being 10 informed as solicitor general on the one hand and a 11 discussion in which you state your views, in whatever 12 way, on the other hand, correct? 13 A: Yes. 14 Q: Because even to signal to the police 15 what they should do in operational matters would be 16 crossing the line. 17 A: Yes. 18 Q: And you'd agree with me that that, in 19 essence, is what Professor Roach is saying, at the top of 20 page 2, when he says: 21 "Finally there is a critical question 22 on whether a distinction between the 23 government informing itself about 24 police matters and influencing the 25 police is sustainable in the minds of
1161 politicians, police and the public at 2 large." 3 That's what he's talking about. 4 A: Yes. 5 COMMISSIONER SIDNEY LINDEN: I think, Mr. 6 Falconer, it sounds dangerously like cross-examination. 7 I had the impression you were going to put the models -- 8 MR. JULIAN FALCONER: All right, fine. 9 COMMISSIONER SIDNEY LINDEN: -- and ask 10 the -- 11 MR. JULIAN FALCONER: I'll keep moving. 12 COMMISSIONER SIDNEY LINDEN: -- Witness 13 what his view of them were, and that doesn't seem to be 14 the way you're proceeding. 15 MR. JULIAN FALCONER: I thought it was 16 but that's fine. 17 COMMISSIONER SIDNEY LINDEN: I intend to 18 read these papers very carefully. As you know, I'm the 19 one who commissioned them and I intend to consider them 20 very carefully, much more time to do so then you do right 21 now with this witness. 22 MR. JULIAN FALCONER: I'll keep going. 23 COMMISSIONER SIDNEY LINDEN: But, I'm 24 interested in if you care to ask this Witness his view of 25 some of these matters. He was a commissioner for ten
1171 (10) years and he may or may not have had a chance to 2 read them, to think about them and to answer. If he 3 doesn't he'll say so. 4 5 CONTINUED BY MR. JULIAN FALCONER. 6 Q: The next paragraph on page 2, the 7 third to last sentence. It starts, "The competing 8 values," do you see that? The next paragraph on page 2, 9 the third to last sentence, it starts, "The competing 10 values." 11 A: Yes. 12 Q: "The competing values were well 13 summarized by an RCMP spokesperson who, 14 in response to allegations of political 15 interference and policing in the 16 sponsorship scandal, commented that, 17 quote, 'Police have a unique role to 18 play in our democratic system. On the 19 hand their criminal investigations must 20 be absolutely free of political 21 influences. Yet on the other they must 22 not become the law onto themselves.' " 23 COMMISSIONER SIDNEY LINDEN: I'm not sure 24 what you're doing now. You're not putting the models to 25 him and asking him his views or is that what you're
1181 doing? 2 It doesn't seem like that's what you're 3 doing. It seems like you're taking sentences from Mr. 4 Roach's paper and -- 5 MR. JULIAN FALCONER: Asking him if he 6 agrees with it. 7 COMMISSIONER SIDNEY LINDEN: Well, that's 8 basically cross-examination, isn't it? I mean, I thought 9 you were going to put the models to him, models are 10 concepts -- 11 MR. JULIAN FALCONER: Yes. 12 COMMISSIONER SIDNEY LINDEN: -- or ideas 13 and having the Commissioner's view on those ideas might 14 be useful to our Inquiry. 15 But cross-examining on individual 16 statements that are made in the paper by Professor Roach 17 which are not yet even finalized, are only in draft form, 18 it's not helpful to get this Commissioner's view on what 19 Mr. Roach has said or hasn't said or thinks or doesn't 20 think. 21 MR. JULIAN FALCONER: I understand your 22 point, Mr. Commissioner, and we're on the same 23 wavelength. I thought that it wouldn't be fair to go 24 directly to the middle of the paper without outlining the 25 problem as Professor Roach --
1191 COMMISSIONER SIDNEY LINDEN: We -- 2 MR. JULIAN FALCONER: -- outlines it. 3 COMMISSIONER SIDNEY LINDEN: We've been 4 discussing the problem for some time. I think we all 5 understand perfectly well what the problem is and what 6 the issue is and how models were -- why the models were 7 developed. 8 So ,if you want to ask him about those 9 models, I think that's fair. If you want to ask him 10 anything else, I don't think that's fair at this time. 11 It's just not workable at this time. 12 MR. JULIAN FALCONER: That's -- that's 13 fine; that was my intention. 14 COMMISSIONER SIDNEY LINDEN: Go ahead. 15 16 CONTINUED BY MR. JULIAN FALCONER: 17 Q: Turning to page 27, the four (4) 18 models of police government relationships? 19 A: Yes, I have it. 20 Q: The first sentence: 21 "Models provide a convenient means of 22 highlighting different policy options 23 and the value choices and assumptions 24 that are implicit in the choice of 25 those policies."
1201 Now, the first model he identifies is on 2 the next page, at page 28. 3 A: I have it. 4 Q: Called full police independence. And 5 it, in essence, is well set out by the author in the 6 first sentence and do you see that? 7 A: I do. 8 Q: This model of full police 9 independence? 10 A: Yes. 11 Q: Based on Denning's famous comments in 12 ex parte Blackburn. And, in essence, the notion is, I 13 put it to you, sir, is that the police have no 14 accountability to government, do you understand? 15 A: That's my understanding. 16 Q: All right. The second model that 17 Professor Roach lays out is to be found at page 30. 18 19 (BRIEF PAUSE) 20 21 Q: This model at page 30, you see the -- 22 A: I have it. 23 Q: -- first sentence. 24 "This model of quasi-judicial or core 25 police independence is based on the
1211 recognition in the Campbell case that 2 while the police may be under the 3 direction of the responsible minister 4 on many aspects of policing, they 5 should be immune from ministerial or 6 other forms of government direction 7 with respect to core law enforcement 8 functions, such as starting or ending a 9 criminal investigation and deciding 10 whether to lay charges." 11 Do you see that? 12 A: I do. 13 14 (BRIEF PAUSE) 15 16 Q: Page 31, under, "Democratic 17 Policing." 18 A: Yes. 19 Q: And we're going to go back to this 20 model, I want you to know that. Under democratic 21 policing, at page 31: 22 "This model of policing is supported by 23 the recommendations of the MacDonald 24 Commission. As described above, it 25 accepted the need for core or quasi-
1221 judicial police independence, but was 2 firm that police independence should 3 not be expanded beyond this limited 4 domain. 5 In this respect, the MacDonald 6 Commission's model of democratic 7 policing is consistent with the above 8 model of core police independence." 9 I'm going to read on in this particular 10 one. 11 "The model of democratic policing 12 differs from the model of core police 13 independence described above. 14 However, in maintaining the importance 15 of allowing the responsible minister to 16 be informed and to discuss even ongoing 17 criminal investigations with the police 18 if the investigations raise more 19 general policy matters. 20 This position is based on an assumption 21 that the relevant actors; the 22 Ministers, their staff, their civil 23 service, the police and the public will 24 understand the distinction between 25 seeking information about a criminal
1231 investigation and seeking to influence 2 the police conduct of the 3 investigation." 4 And then finally, at page 33, is the 5 "Governmental Policing." 6 7 (BRIEF PAUSE) 8 9 Q: Under, "Governmental Policing," 10 you'll see the model set out. 11 "This model of policing is supported by 12 a literal reading of Canadian police 13 Acts which generally provide that the 14 police is managed by a commissioner 15 subject to direction from the 16 responsible minister. 17 It follows the Quebec Court of Appeal's 18 Decision in Bisayon (phonetic) in 19 Kiabna (phonetic) in holding that 20 police independence is, at most, a 21 common law concept that can be and has 22 been displaced by clear statutory 23 language. 24 This model is also based on 25 considerable scepticism about the whole
1241 notion of police independence. 2 Stress is placed on the dubious origins 3 of the concept that police independence 4 and civil liability cases holding there 5 is not a master and servant 6 relationship between the Crown and the 7 police." 8 Now I want to take you back, if I can, to 9 the model under, "Democratic Policing." 10 And the context of my question is, first 11 of all, having stated, as you did, that the rules are 12 unclear in the relationships between Minister, Deputy 13 Minister, and -- and the Commissioner of the OPP, you did 14 state earlier in your evidence and also in your Will Say 15 that the Deputy Solicitor General's role in some ways, as 16 a buffer, is akin to a police services board. 17 Do you remember saying that? 18 A: Yes. 19 Q: And you also referred to the -- to -- 20 and you'd agree you're somewhat familiar with the roles 21 of police services boards? 22 A: Yes, I am. 23 Q: You know that Section 31 of the 24 Police Services Act sets out the functions of a police 25 services board?
1251 A: Yes. 2 Q: And, in particular, the notion that 3 there is a civilian oversight body representative of both 4 government and the community, acts as a buffer between 5 government on the one (1) hand and the Police Service on 6 the other. You know that? 7 A: Yes. 8 Q: And I take it you also know that the 9 Police Services Board, while statutorily being prohibited 10 from giving orders to members of a municipal police 11 service are statutorily mandated to give orders to the 12 Chief of Police? 13 A: Correct. 14 Q: And you know -- 15 A: With -- with an exception to that 16 rule. 17 Q: That's right. I was about to get 18 there. And you know that statutorily, the Police 19 Services Board is prohibited, statutorily, by law from 20 interfering or giving orders or directions in matters of 21 operation to the Chief of Police? 22 A: That's correct. 23 Q: And -- and was that the exception you 24 wanted to raise? 25 A: That was the exception.
1261 Q: Good. And -- and ultimately, that 2 notion of a buffer actually has content, doesn't it? 3 A: Yes. 4 Q: And -- and there is some advantage to 5 chiefs of police that the Commissioner of the OPP doesn't 6 have in terms of the existence of a defined oversight 7 body, isn't there? 8 A: That's true. 9 Q: And would you agree with me that that 10 advantage extends to the point of having a body that is 11 non-political by definition, that is governmental in -- 12 in a reporting relationship? 13 A: It's non-political by definition, 14 yes. 15 Q: Right. Of course, there are 16 political agendas, yes? 17 A: Then you have to deal with reality 18 and it depends on who's on the Board. 19 Q: That's right, but the infrastructure 20 and -- 21 A: Yes. 22 Q: -- the setup don't depend on 23 personalities, do the? 24 A: They do not. 25 Q: You don't have to worry that
1271 depending if someone's aggressive or laissez-faire, the 2 rules change, correct? 3 A: That's correct. 4 Q: And that stands in contrast to your 5 experience as the Commissioner of the OPP, correct? 6 A: I agree. 7 Q: And would you agree that while it's 8 not a one-for-one, you couldn't simply take a municipal 9 police services board and make it in charge of the OPP, 10 that a concept of oversight similar to the concept of 11 police services boards might be a workable solution to 12 some of the difficulties we faced? 13 A: It's appealing to me. 14 Q: And it's appealing to you as a 15 Commissioner of the OPP for ten (10) years? 16 A: Yes. 17 Q: And it's appealing to you as the one 18 that is the point person in relation to the Ipperwash 19 incident? 20 A: Correct. 21 Q: And it's appealing to you as the 22 person who had to withstand a torrent of criticism over 23 improper political interference in your operations? 24 A: That's correct. 25 Q: In terms of the reporting
1281 relationships I want to take you through the Roach model 2 on democratic policing, Professor Roach's model, because 3 I want to ask you a few questions about it. 4 At the bottom of page 31? 5 A: Yes? 6 Q: "The Democratic Policing Model sees 7 ministerial responsibility for policing 8 matters as a fundamental feature of 9 responsible government and as a 10 necessary means of ensuring that the 11 police do not become a law unto 12 themselves. 13 A variation on this theme would place a 14 police board between the Minister and 15 the police as is done with the local 16 police in Ontario and many other 17 jurisdictions. 18 A police board could represent a larger 19 cross-section [and I'm now at the top 20 of page 32] of the community than the 21 Minister and constitute its own 22 democratic form on issues of police 23 policy. 24 Gordon Chong has recently called for 25 enhanced capacities and powers for
1291 local police boards in Ontario as a 2 means to ensure, 'civilian control of 3 the police'. He also has argued that a 4 far greater concern today than the 5 traditional concern about politicians 6 abusing, 'their power by attempting to 7 influence specific police activities', 8 is 'the intensified political activity 9 on the part of police, especially 10 through their militant union to unduly 11 influence police policy.' 12 The Democratic Policing Model accepts 13 that there is much policy in policing 14 and argues that those responsible to 15 the people and not the police should be 16 able to determine police policy." 17 First of all, I don't doubt your 18 intellectual ability to understand it, but do you -- do 19 you understand what Professor Roach is describing in 20 respect of the democratic policing policy? 21 A: Yes. 22 Q: And leaving aside his reference to 23 the issue of police unions which, you know, for those of 24 us in the Toronto are know true blue, et cetera. Leaving 25 that aside for a moment, all right, which is more of a
1301 problem, his discussion and description on the advantages 2 to that variation on the theme, the police board model, 3 his description of the advantages, what are your views on 4 that? 5 A: On this particular model? Well I 6 guess really I should look at all four (4) models and 7 maybe by process of elimination I can come down to the 8 model that I feel would be appropriate to -- to have a 9 focus on. 10 First of all, I suppose, that as a -- if I 11 look back as a police constable, I would -- I could 12 possibly warm up to the independent police. As a 13 Canadian and as a citizen I would be quite concerned 14 about that. I -- I do believe that we believe in 15 civilian control over -- over the police as well as the 16 Armed Forces. 17 If we go to the final model, the 18 government model, I would be just as concerned over that 19 because I know on occasions political agendas do drive 20 things and I really don't think I would be comfortable as 21 a citizen if I found myself in a system similar to that. 22 The core model -- the quasi-judicial core 23 model also has some appeal but it seems to me that it's 24 rather rigid. It draws a firewall between the -- between 25 the operational issues of the police and the policy
1311 issues and doesn't allow much interaction there. Which, 2 again from a point of view of safety from -- from 3 allegations of political interference, is correct and is 4 -- is -- would make one feel comfortable. 5 But it does not allow the civilian control 6 to address issues of policy which might very well touch 7 on operational issues. 8 So, I come back to the democratic model 9 and I feel it's probably the one most appropriate. I 10 think it requires -- one can look at that model and say 11 that seems to be the most appropriate of the four (4), 12 but I think it would require a little bit of study and 13 focus to perhaps adjust it to -- to fit the OPP. 14 The OPP is a -- has its peculiarities. 15 One of the issues that would have to be addressed, the 16 OPP contracts it's policing service to many 17 municipalities in the Province of Ontario. Each one of 18 those municipalities has its own police services board. 19 So, I would as a previous -- person 20 previously involved in administration, I wouldn't want a 21 system so rigid that it would be hard to operate. Having 22 said that, I think with a little bit of ingenuity it 23 certainly could be done. 24 And the democratic model would seem to me 25 to allow civilian control and advice, appropriate advice,
1321 on policy without interfering in operational issues. I 2 think there would need to be some codifying of the 3 responsibilities that were belonging to the Commissioner 4 and the Commissioner alone and also some definition for 5 the Minister. 6 I think really those are my comments. I 7 read this last night and the -- what I was struck with is 8 that it is a complex problem and it needs to be addressed 9 in a -- a fashion that doesn't necessarily entail a 10 speedy thing where it's done on the back of a -- of a 11 cigarette package. 12 It -- it requires a lot of thought and a 13 lot of reason. But I think that the democratic model 14 would -- it should be the focus of attention. 15 COMMISSIONER SIDNEY LINDEN: To be fair, 16 Professor Roach doesn't suggest that we need to choose 17 one of the models. He suggests that there's aspects in 18 them all. 19 THE WITNESS: That's right. They could 20 be moved from one to the other. 21 COMMISSIONER SIDNEY LINDEN: Yes. 22 THE WITNESS: The one thing I was struck 23 with by his paper, which to a degree, I think, made me 24 feel a little bit better was that there is a variety of 25 opinions of very well respected people on that sliding
1331 scale. 2 And so I think it's just a matter of 3 satisfying ourselves as to what is the appropriate one 4 for Ontario. 5 COMMISSIONER SIDNEY LINDEN: Thank you. 6 Are you coming near the end of your examination? It's 7 eleven o'clock. 8 MR. JULIAN FALCONER: I -- I am. I'm 9 coming near the end. 10 COMMISSIONER SIDNEY LINDEN: Thank you. 11 12 CONTINUED BY JULIAN FALCONER: 13 Q: In terms of you -- I appreciate your 14 comments, Mr. O'Grady. You'll note at page 31, one of 15 the sections that we read together was the last three (3) 16 lines, "a variation on this theme." 17 Do you see that? 18 A: The democratic policing model -- 19 Q: Yes. 20 A: -- you talked -- yes. 21 Q: The bottom of page 31. 22 A: Yes. 23 Q: A variation on this theme would place 24 the police board between the Minister and police and I 25 take it your comments were meant to address the
1341 democratic policing model with that variation? 2 A: Yes. 3 Q: All right. And is it also fair to 4 say that your concern at all times is that whatever form 5 of oversight is created, is one that's practically 6 implementable? 7 A: Yes. 8 Q: And -- but I take -- I don't hear you 9 suggesting that a -- a board model would not be 10 practically implementable? 11 A: I -- 12 Q: I'm sorry, I couldn't even get those 13 words out. 14 A: I think it's one of the things that 15 could be -- that should be considered. There might be 16 some crafting that needs to be done with it, to make it 17 practically -- that it could be practised and I really 18 don't have the answer to that. 19 I just think it would be extremely 20 valuable to look at that process. 21 Q: And one of the things that's referred 22 to on the variation of the theme by Professor Roach is 23 the advantage that, as he put it in the last line, a 24 police board could represent a larger cross section of 25 the community than the Minister.
1351 Do you see that? 2 A: And that's extremely valu -- 3 valuable. 4 Q: And you'd agree with me that while 5 there are many cultural groups whose interests are 6 triggered in dealings with the police, correct? 7 A: Yes. 8 Q: It's fair to say that First Nations 9 persons, the aboriginal community, stands in a unique 10 position in terms of their history in this country and 11 the thorny nature of policing as it applies to them? 12 A: Yes. 13 Q: And that's why you testified as you 14 did, that you were motivated to put in place as much 15 initiative as possible on First Nations policing, 16 correct? 17 A: Absolutely. 18 Q: You saw them as a -- you see the 19 aboriginal community as a unique -- having a unique place 20 in our Canadian cultural lexicon? 21 A: Correct. 22 Q: Would you agree with me that, in the 23 circumstances, it may well make some sense to create some 24 form of representation for the aboriginal communities on 25 such police boards?
1361 A: I agree. 2 Q: If I could ask you to -- 3 A: If I could just make one -- 4 Q: Yeah. 5 A: -- last suggestion. 6 Q: Hmm hmm. 7 A: I have not now been involved in 8 policing for 7 years and the OPP is like -- like all 9 other institutions, it rapidly changes. 10 And so I am not entirely aware of all of 11 the circumstances now and I think it would be very 12 valuable to hear from the current Commissioner, again, in 13 the -- in the -- to assist the decision making. 14 COMMISSIONER SIDNEY LINDEN: We intend 15 to, yes. 16 17 CONTINUED BY MR. JULIAN FALCONER: 18 Q: But what you represent, though, in 19 fairness, is someone who has had to go through the fall 20 out of the disadvantage of no rules, correct? 21 A: Pain does focus the mind. 22 Q: And with your very focussed mind, I 23 thank you for -- for your answers, sir. Thank you. 24 COMMISSIONER SIDNEY LINDEN: Thank you 25 very much, Mr. Falconer, for finishing on time as you
1371 said you would. Thank you very much and we'll now take a 2 morning break. 3 I'm sure there are lots of people who need 4 to use the facilities. 5 THE REGISTRAR: This Inquiry will recess 6 for fifteen (15) minutes. 7 8 --- Upon recessing at 11:02 a.m. 9 --- Upon resuming at 11:21 a.m. 10 11 THE REGISTRAR: This Inquiry is now 12 resumed; please be seated. 13 COMMISSIONER SIDNEY LINDEN: Yes -- 14 MR. JULIAN FALCONER: Mr. Commissioner, I 15 am finished my examination, but -- oh, Mr. Millar's not 16 here. 17 18 (BRIEF PAUSE) 19 20 MR. JULIAN FALCONER: I'm finished my 21 examination, but as a matter of conscience, Mr. O'Grady 22 raised with me, at the end of the day, that he had 23 something that he wanted to raise or clarify about an 24 answer and I -- I had promised that I would raise it and 25 I realized just -- that I hadn't.
1381 So has that gone by the wayside? 2 THE WITNESS: That's gone by the wayside, 3 I'm satisfied. 4 MR. JULIAN FALCONER: Thank you. Okay, 5 that -- I just -- 6 THE WITNESS: Thank you. 7 MR. JULIAN FALCONER: Because I realized 8 I may have rolled right over that. 9 COMMISSIONER SIDNEY LINDEN: Thank you. 10 Okay. Yes...? 11 12 (BRIEF PAUSE) 13 14 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 15 Ross? 16 Mr. Ross may I ask what your reasonable 17 estimate now is, of your time for cross-examination? 18 MR. ANTHONY ROSS: Please cut me off if I 19 reach forty (40) minutes, Commissioner. 20 COMMISSIONER SIDNEY LINDEN: Oh, okay. 21 And that's an invitation, is it? I'm sure you'll be 22 within the time that you say. Thank you. 23 MR. ANTHONY ROSS: If I have the 24 capacity, I would have made it a directive, but an 25 invitation's good enough.
1391 COMMISSIONER SIDNEY LINDEN: Thank you. 2 3 CROSS-EXAMINATION BY MR. ANTHONY ROSS: 4 Q: Commissioner O'Grady, my name is 5 Anthony Ross and I represent the Aazhoodena Group, the 6 people who are still in what was once known as the Army 7 Camp. 8 A: Yes. 9 Q: And Commissioner O'Grady, I've got 10 just one (1) or two (2) areas that I want to raise with 11 you. I must say thanks to the excellent examination of 12 Commission Counsel, followed up by the relentless 13 examination of Mr. Falconer. Most of the areas I wanted 14 to approach have been covered. 15 Now, sir, is it fair to say that, as 16 Commissioner, the 1993 occupation of the range would have 17 been, for all intents and purposes, below your radar 18 screen? 19 A: I was aware of it and -- and that's 20 probably the best way I can -- I can describe my 21 involvement. 22 Q: And is it fair to say, sir, that that 23 situation continued through 1994 and probably up to 24 around July 1995? 25 A: I believe that is correct.
1401 Q: And I will suggest further, sir, that 2 that would have remained so even up to when the Park was 3 occupied on the 4th of September, 1995? 4 A: Yes, I think so. 5 Q: And, sir, at that time there was 6 sufficient political agitation that you were brought into 7 -- you were brought -- this matter was brought more into 8 your focus. Would that be a correct situation? 9 A: I think what brought it into focus 10 was the desire of the -- of the Ministry of Natural 11 Resources to have it addressed in respect to having the 12 occupiers removed and so then we became involved in the 13 methodology that would be required. 14 Q: Now, as far as the occupiers and the 15 occupiers being removed, that's exactly my point. 16 In 1993 when they went -- went on to the 17 range there was no big move to have them -- no thrust to 18 have the occupiers removed; am I correct with that? 19 A: Generally, I think you are. As far 20 as the -- the OPP was concerned they had basically 21 indicated their approach and that was similar to -- with 22 respect to the Ministry of Natural Resources -- it was to 23 the National Defence to obtain an injunction if, indeed, 24 there was going to have to be action taken. 25 But clearly the Federal Government was not
1411 -- was not interested in that and, in fact, was 2 interested in -- in some passing over of possession of 3 the land, but there was a -- there were delays because of 4 various things, for instance, unexploded ammunition, et 5 cetera and that seemed to delay the -- the process. 6 Q: I see. My note says, a matter of 7 fact the -- the matters I wanted to draw to your 8 attention that you had a situation in 1993, no 9 injunction, no OPP action, correct? 10 A: Correct. 11 Q: And in 1995, when they occupied the 12 barracks, no injunction, no action by the OPP, correct? 13 A: Well, correct. In -- in fairness, 14 though, there were some individual investigations that 15 the OPP conducted with regard to allegations of assault 16 and so forth; just individual things that occurred. 17 Q: Absolutely. But yet, this would 18 still have been substantially below your radar screen? 19 A: Yes. 20 Q: Yes. And while we are talking about 21 those investigations, did it also come to your attention 22 that members -- that Camp members had been involved in 23 aggressive acts towards some of the First Nations people? 24 A: You mean members of the National 25 Defence?
1421 Q: Yes. 2 A: Yeah. I -- I know there were 3 occasions when there were -- was an altercation between 4 individuals from both groups and, as a result, there was 5 some involvement of the OPP, but that's generally about 6 all I can recall of it. 7 Q: And is it fair to say that was fairly 8 low level and on personal basis, more or less? 9 A: I think that's a correct 10 characterization. 11 Q: So, that in July 1995 when they 12 occupied the -- the barracks, again there was a 13 situation, no injunction and no action by the OPP, in the 14 broader sense? 15 A: Right. 16 Q: Yeah. And in September when they 17 occupied the Park, there was no injunction, and because 18 there was no injunction, there was no immediate action by 19 the OPP? 20 A: It wasn't contemplated, no. 21 Q: It was not contemplated. That 22 creates a problem for me, sir, and I'm going to tell you 23 why. If there's no injunction -- if there's -- no action 24 was contemplated, why would the forces be mobilized and 25 be ready on the 5th and the 6th if it wasn't
1431 contemplated? 2 A: I think there was a matter of 3 preparing -- there were two (2) things. As I understand 4 from the evidence of the incident commander, there were 5 concerns as to activities that were going on there 6 whereby he thought he would need resources. That's one. 7 And the second one was that it was -- it 8 seemed as though the Ministry of Natural Resources was 9 moving towards getting an injunction, and if that was the 10 case, again, resources may or may not have been needed. 11 So, those are -- those are the two (2) areas. 12 Q: Well yes, sir. But it appears as 13 though from what you just told me, and I'm really sorry 14 that you moved into area, that the OPP was almost 15 standing ready with a proverbial cocked gun waiting for 16 something -- waiting for something to trigger their 17 involvement. 18 A: I wouldn't characterize it what way. 19 I -- I think it's, again, as I was saying yesterday, one 20 has to be prepared for all eventualities; that's good 21 planning and preparation is necessary. And I think that 22 the OPP was preparing resources in the event that they 23 were needed. Always with the hope that there would not 24 be. 25 And that would be based on the settlements
1441 elsewhere across the Province over the last number of 2 years. 3 Q: The settlements of what, sir? 4 A: Of allega -- or at least of blockades 5 and occupations, similar in nature. And all was -- there 6 were resources brought to the area in the event that they 7 were needed and -- and happily that usually didn't 8 happen. 9 Q: You mean blockades and so on, 10 involving First Nations people? 11 A: Yes. 12 Q: Yeah. And in that regard I recall in 13 your evidence you made some reference to Oka. 14 Do you recall that in your evidence? 15 A: I had mention -- I think I mentioned 16 Oka yesterday, as one of the places where violence had 17 occurred. And the OPP would have been aware of that and 18 so with an abundance of caution would have been in a 19 position to address that kind of an issue if, indeed, it 20 occurred. 21 Q: And in that regard you all and in the 22 same kind of context you mentioned Gustafson Lake? 23 A: When I was asked for an explanation 24 as to why we would have certain resources available or 25 attempt to have them available, Gustafson Lake was one of
1451 the examples I used. 2 Q: You see the problem I have with that, 3 sir, is that with Oka there was guns and violence 4 involved; do you agree? 5 A: Yes there was. 6 Q: But they got a solution. 7 A: Yes they did. 8 Q: And a solution with respect to their 9 land problem. And in Gustafson Lake there was guns and 10 violence involved. 11 A: Yes. 12 Q: And there was a substantive treaty 13 shortly thereafter. 14 A: And both of those areas as to the 15 result, I know they're not ongoing now so I'm -- I'm 16 assuming that they were resolved but I'm not familiar as 17 to how they resolved or the extent of it. 18 Q: It would be a matter further 19 evidence. But, then with Ipperwash, no guns are 20 involved, there is a shooting death by police and the 21 matter is still not resolved. 22 A: And -- and you characterized that 23 correctly. 24 Q: Yeah. And I take it, sir, that today 25 you're prepared to accept that the First Nation members
1461 were unarmed on September the 6th, 1995? 2 A: That was a decision by the -- by the 3 judge that tried Kenneth Deane who looked into it and he 4 said that there was no evidence of -- of arms or of -- 5 arms on -- in the property there and I accept his -- his 6 decision. 7 Q: But apart from just accepting his 8 decision, are you comfortable in your own heart that 9 there were no guns involved by -- by the First Nations 10 people? 11 A: Well, I have to be because I have no 12 evidence that there was. 13 Q: I see. So that any statement that 14 you have made in the past with respect to guns and people 15 being -- and your people being fired upon, that was based 16 on misinformation? 17 A: Yes, it was. 18 19 (BRIEF PAUSE) 20 21 Q: Now, sir, when this matter became 22 something of serious focus for you, I take it that, from 23 your evidence, you suspected that at some time there 24 could be an Inquiry? 25 A: Yes, I did.
1471 Q: And as a result of that, you arranged 2 -- you sought a chronology of the events leading up the 3 death of Dudley George? 4 A: Yes. 5 Q: And I take it, sir, that is the 6 document which has been referred to as the Marshall 7 Report? 8 A: That's one of them, yes. 9 Q: Oh, okay, fine. But let's talk about 10 the Marshall Report for a minute; that's under Tab 59 in 11 your book. 12 13 (BRIEF PAUSE) 14 15 A: I have it. 16 Q: Was this the document on which you 17 based your decisions with -- after -- after the fact? 18 A: It's one of the documents. 19 Q: But... 20 21 (BRIEF PAUSE) 22 23 Q: I understand that there's a more 24 extensive copy of the Marshall Report in P-582. Have you 25 got that up there?
1481 (BRIEF PAUSE) 2 3 MR. DERRY MILLAR: It's P-482 and it's at 4 Tab 102. And, Commissioner, I think we sorted this out 5 in his chief, just to help My Friend that after the first 6 eleven (11) pages which was Chief Superintendent Coles' 7 summary, the next pages down to the divider was, I think, 8 the Commissioner said a later part of the work done by 9 Mr. -- Inspector Marshall. 10 MR. ANTHONY ROSS: Inspector Marshall, 11 yeah. Okay, fine. 12 13 (BRIEF PAUSE) 14 15 CONTINUED BY MR. ANTHONY ROSS: 16 Q: I'm not going to take you through the 17 document, Mr. O'Grady. I'll ask you just then to turn to 18 Tab number 67 for me, please. This is a one pager. 19 20 (BRIEF PAUSE) 21 22 A: I have it. 23 Q: Yes. I -- am I to understand, sir, 24 that having received the initial report, the initial 25 Marshall Report which is under Tab 59, you wanted it
1491 expanded upon as represented in the instructions under 2 Tab 67? 3 A: That's correct. 4 Q: And that led to the compilation of 5 the Coles Report and a further review of the Marshall 6 report? 7 A: I think so. 8 Q: Okay. 9 10 (BRIEF PAUSE) 11 12 Q: Now, one of the things that I have 13 been concerned about, and I'm now going to take you 14 through... 15 16 (BRIEF PAUSE) 17 18 Q: One of the things that I've been 19 concerned about, I can tell you, is the relationship 20 between the SIU and the OPP around the time of the 21 shooting of Dudley George? 22 A: Yes. 23 Q: Now, my recollection of the evidence 24 is that some time after -- some time after midnight, 25 after Dudley George had been shot, a call came in from
1501 the SIU seeking a response from the command centre? 2 A: That's my understanding. 3 Q: And my understanding is about two (2) 4 hours later, that the call was returned by Inspector 5 Carson. 6 A: I think you're correct. 7 Q: Yeah. And as I was searching through 8 the database I came across a document which perhaps you 9 can flash up on the screen, please, is document number 10 1000141. 11 12 (BRIEF PAUSE) 13 14 Q: 1000141. Yes. Yes. Go to page 277, 15 please. 16 A: Do we have a tab? 17 Q: No. It's not among your documents. 18 It's -- it's -- 19 MR. DERRY MILLAR: This, just for -- this 20 appears to be -- this document 100141 appears to be part 21 of the scribe notes -- 22 COMMISSIONER SIDNEY LINDEN: Yes. 23 MR. DERRY MILLAR: -- that -- and I don't 24 know the date. I can -- I'll just try to find the date. 25 But it appears to be -- we've marked the first a hundred
1511 and fifty-eight (158) pages of the scribe notes as 2 Exhibit 426. This appears to be later in the scribe 3 notes. 4 5 CONTINUED BY MR. ANTHONY ROSS: 6 Q: Would you scroll up for me, please. 7 A: Perhaps I'll try to address it from 8 the screen, if -- 9 Q: Yes. I -- I will get -- get him to 10 scroll up. Up. Up a little further. Okay, stop. One 11 (1), two (2), three (3) -- three (3) bullets from the 12 bottom, I read -- 13 MR. MARK SANDLER: Excuse me for a 14 moment. I'd ask My Friend, leave aside the fact that we 15 don't have any notice, I don't even know what date this 16 is, I don't have any context, I don't have the document 17 with me, and -- and Mr. O'Grady doesn't even have the 18 document with -- with him. 19 COMMISSIONER SIDNEY LINDEN: No. Well -- 20 MR. MARK SANDLER: So, with great 21 respect, I think it should be done in a little bit 22 different way. 23 COMMISSIONER SIDNEY LINDEN: Yes. 24 MR. ANTHONY ROSS: Just sit down and 25 relax.
1521 COMMISSIONER SIDNEY LINDEN: Do you know 2 the date of this -- Mr. Ross, do you know what date this 3 is? 4 MR. ANTHONY ROSS: No, I don't know. I 5 don't know, Mr. Commissioner. But there's just a minor 6 matter that I want to draw here to the attention of this 7 Commission. If we can go back to page 277. 8 MR. DERRY MILLAR: It's after September 9 14th. 10 COMMISSIONER SIDNEY LINDEN: But we don't 11 know the date, just after September 14th or on September 12 14th? 13 MR. DERRY MILLAR: Well, if I had enough 14 time I could figure it out. 15 COMMISSIONER SIDNEY LINDEN: Okay, well. 16 17 (BRIEF PAUSE) 18 19 CONTINUED BY MR. ANTHONY ROSS: 20 Q: Just under this second line, under 21 "Crime Assessment," and there's an arrow and there's "Bob 22 Goodall;" do you know who Bob Goodall is? 23 A: Yes. He was a Detective Inspector at 24 the time. 25 Q: With --
1531 A: And I believe he was in the Criminal 2 Investigation Bureau. 3 Q: Of the OPP? 4 A: Of the OPP. 5 Q: Yes. As I read down, about three (3) 6 bullets from the bottom, I read: 7 "SIU [dash] very co-op." 8 I think that means co-operative, would you 9 -- have you got a different view? 10 A: Well, I -- I'm not entirely sure but 11 I think that's what I would think if I read it. 12 Q: Yeah. And it goes on to say: 13 "Understanding. Good -- relations 14 good. No charges attempted murder. 15 Investigation yet to come. They have 16 good evidence. Outside co-operation." 17 It goes -- "outside corroboration" -- it 18 goes on further to speak about: 19 "Joint investigation with SIU, OPP and 20 First Nations people." 21 Any idea what they're talking about in 22 this document? 23 A: Well, I know there were -- there were 24 two (2) parallel investigations going on. SIU was doing 25 an investigation with respect to the death of Dudley
1541 George. 2 Q: Yes. 3 A: And Detective Inspector Goodall was 4 doing an investigation with respect to allegations of 5 activities with respect to OPP members at the site. And 6 so there were -- there's always a dilemma when there are 7 two (2) agencies doing investigations in the same area. 8 And so I think that's what he's talking about. 9 Q: I see. But as far as these good 10 relations are concerned, would that flow over, in your 11 view, to the -- the investigation of the shooting of 12 Dudley George by the SIU? 13 A: Well, I -- I don't -- I'm really not 14 sure. I know that they would have -- what he's 15 indicating there, as -- as I understood it, or understand 16 it, is that they were investigating the scene together. 17 And so SIU had members there, the OPP had 18 members there, and because there was some concern as to 19 what the protestors felt about an investigation going on 20 the scene, there were representatives from First Nations 21 who accompanied them to, I assume, to assure that things 22 were being done fairly from their point of view. 23 Q: Now which -- 24 A: So all three (3) groups had to work 25 together co-operatively to get this job done.
1551 Q: Would you agree with me, sir, that 2 from a point of their clear optics, it would be better if 3 the SIU -- if when the SIU is investigating the police, 4 there be some sort of firewall even as far as any form of 5 other investigations are concerned? 6 A: Well, I think in some instances they 7 have to work with the police to do their invest -- I 8 certainly hope that the OPP would be co-operative with 9 SIU and address any concerns, any issues that they felt 10 that the OPP had knowledge of, that they would be co- 11 operative with them so that they could complete their 12 investigation properly and to my knowledge, that's what 13 this refers to. 14 Q: And, sir, I take it then that if the 15 First Nations membership had the view that there is the 16 death of Dudley George, there's a call in by the SIU? 17 A: Yes? 18 Q: Two (2) hours later is when the 19 response goes back to the SIU? 20 A: Yes? 21 Q: After the incident commander has 22 taken the opportunity to speak with public relations 23 people so that he's got his statement out? 24 A: Yes. 25 Q: And then later on to find that, in
1561 whatever joint investigation, there's this comment about 2 the SIU being very co-operative. Do you agree with me 3 that it could lead to concerns in the minds of some 4 people? 5 A: It could be, but I think I've fairly 6 explained what I believe it to be about. I'm not the 7 best person to say because I wasn't there but, 8 undoubtedly, there would be somebody that could -- that 9 could speak to that. 10 Q: I recognize that somebody could speak 11 more directly -- 12 A: Yes? 13 Q: -- but I'm speaking to you in your 14 capacity as the Commissioner at that time and I take it 15 that your response can be expanded upon? 16 A: I don't think it can. I should tell 17 you that with the advent of SIU in conducting their 18 investigations not just with the OPP, but with the police 19 in general, off in the beginning, there -- there were 20 concerns from SIU that they needed more co-operation from 21 the police to do their job and certainly we made every 22 effort to ensure that whatever co-operation they want, 23 they got from us. 24 So, whether that's referring to that -- my 25 -- my sense is, it's referring to the scene examination.
1571 Q: I see. Okay. 2 A: And normally, First Nations members 3 or other individuals wouldn't be accompanying the scene 4 examiners, but I think it was felt, at that time, that 5 the intention was to make sure that they could see what 6 was happening and satisfy themselves that things were 7 being done appropriately. 8 Q: Thank you. Now, Mr. O'Grady, I must 9 apologize for just appearing to skip around, but I'm just 10 doing some mopping up after all that has happened. 11 Now, tell me, as far as this -- as far as 12 the occupation of the Park and what happened between the 13 4th and the 6th, I guess it's fairly -- I take it that 14 it's fairly clear that there was a governmental political 15 position on the occupation and what should be done. 16 Would you agree -- agree with that? 17 A: There was an -- are you talking about 18 the Interministerial Committee? 19 Q: That the government -- down at 20 Queen's Park they had their own views that something 21 should be done? 22 A: Well, there was an Interministerial 23 Committee and that Interministerial Committee, from my 24 knowledge, had operated for years and years. And in 25 respect to many of the blockades and occupations it -- it
1581 had produced a good result in -- in settling the issues 2 because they normally involved more than one (1) 3 ministry. That was the reason they were pulled together. 4 So there'd be the Ministry of the Attorney 5 General, the Ministry of the -- Ministry of Natural 6 Resources in this particular instance and the Ministry of 7 the Solicitor General and -- and the Ontario Native 8 Affairs Secretariat, all together, to try to establish a 9 -- an approach that could be taken to resolve the root 10 cause, the underlying issue. The police were only there 11 to be aware. 12 There was an understanding at the 13 Interministerial Committee that operational directions 14 were not to be given to the police, but the -- the 15 committee in itself had good purposes to it, but as we've 16 clearly seen with an OPP officer assigned as liaison 17 there's a danger to that. 18 And I would have a -- a different view 19 today than I had in the past as to the propriety of that. 20 Q: And, sir, is it fair to say that 21 whatever position was taken by the Government, this was 22 trans -- this was translated through Ron Fox to the 23 incident commander? 24 A: Well, I wouldn't -- I guess you're 25 correct in saying the Government. What his -- what his
1591 purpose was, was to address the issue of the injunction. 2 If the -- if the Ministry of Natural Resources, in 3 dialogue with the Ministry of the Attorney General, 4 decided to go forward with an injunction and the type 5 injunction, that would be crucial for the OPP to know. 6 And that was probably the major piece of information that 7 he needed to transmit to the OPP. 8 Q: But, I take it, sir, you'd agree with 9 me that the injunction is really part of process. 10 A: It's part of the process, yes. 11 Q: Yes, and that the end result, what 12 the Government was looking for was, we want those people 13 out of the Park, and it was made known through many 14 sources, coming from specific political -- political 15 camps? 16 A: Well, that I'm not -- I'm not 17 entirely sure of. I have listened to the Fox tapes and 18 certainly he makes reference to various -- various 19 impressions that he had and I just take that at face 20 value. 21 He was there, and I think he has spoken to 22 it, and explained how he saw it and I merely take it at - 23 - as his explanation. 24 Q: And I take it, sir, that you take the 25 position that regardless to what had been told to Ron
1601 Fox, it did not influence what -- the actions of the 2 incident commander? 3 A: I do. 4 Q: Okay. So, that what happened to 5 Dudley George is really not, in your view, a result of 6 political pressure? 7 A: No. 8 Q: Is it fair to say, then, that what 9 happened to Dudley George could have been the result of 10 bad police information, bad intelligence? Correct so 11 far? 12 A: I'm thinking. 13 Q: Or the question of the guns? 14 A: Yes. 15 Q: The guns in the Park? 16 A: Yes. 17 Q: Okay. So, bad intelligence. And I 18 would suggest to you, sir, that there was a willingness 19 to use force and I'm going to tell you why I say so. 20 There is the evidence of John Carson that 21 he was speaking to Mark Wright and saying, No, wait, 22 let's get the injunction and then we will do something. 23 24 (BRIEF PAUSE) 25
1611 COMMISSIONER SIDNEY LINDEN: Yes -- 2 MR. MARK SANDLER: That's -- that's just, 3 with great respect, not a fair analysis of what John 4 Carson said at all -- 5 COMMISSIONER SIDNEY LINDEN: Well -- 6 MR. MARK SANDLER: -- because he had the 7 discussion with Mark Wright about why they're going down 8 the road. 9 COMMISSIONER SIDNEY LINDEN: He's trying 10 to summarize it and I think in doing so, he may be not 11 stating it as accurately as he should. 12 MR. MARK SANDLER: The problem is, the 13 suggestion is that -- that because John Carson expressed 14 that view, that somehow there was a willingness on the 15 part of the OPP to be using force. 16 But it's the same John Carson that 17 explained the unwillingness to use force -- 18 COMMISSIONER SIDNEY LINDEN: Yes. 19 MR. MARK SANDLER: -- and why. 20 COMMISSIONER SIDNEY LINDEN: That was the 21 evidence he gave. 22 MR. ANTHONY ROSS: Mr. Commissioner, I 23 didn't want to go back through lots of records, because I 24 wanted to limit myself. 25 COMMISSIONER SIDNEY LINDEN: No. But
1621 we -- 2 MR. ANTHONY ROSS: Okay, I -- and I'm -- 3 COMMISSIONER SIDNEY LINDEN: -- we have 4 to be fair to the evidence and the witness. 5 MR. ANTHONY ROSS: No effort to be 6 unfair, Mr. Commissioner. 7 COMMISSIONER SIDNEY LINDEN: I understand 8 that. 9 10 CONTINUED BY MR. ANTHONY ROSS: 11 Q: I'll step past it. So, that the idea 12 was the OPP would get the injunction and then they would 13 act? 14 A: The approach was that the OPP would 15 try to talk, try to negotiate with the protesters. And 16 if an agreement could be reached whereby they wanted to 17 leave the Park, which was the -- the result in one's 18 past, that would be the ideal solution. 19 And then the root cause of it could be 20 addressed with those that were competent to speak for -- 21 for government or whoever it was that was seen as being 22 an appropriate authority. The police always tried to 23 make it clar they could only speak to policing matters, 24 keeping the peace, et cetera, could not resolve the root 25 cause.
1631 But, if some solution could be worked out 2 in a peaceful manner, that was the ideal from the point 3 of view of the OPP. 4 If that could not be done and the 5 complainant was successful in obtaining -- obtaining an 6 injunction and if the injunction, the court order, 7 detailed what the OPP was to do then they would do it. 8 Q: I see. 9 A: At their own time. 10 Q: Thank you, Mr. O'Grady. Now, since 11 the incidents, Mr. O'Grady of 1995, September, are you of 12 the view that there has been any form of a cultural 13 change within the OPP? 14 A: Well I certainly think so. But, I 15 think the OPP was embarked on cultural understanding and 16 awareness prior to 1995. With respect to the tragedy, 17 that clearly set it back considerably. 18 I remember my thought process was when I 19 heard of the tragedy, that this is going to impede our 20 direction in better relations with First Nations. But, I 21 think since then, with the passage of some time, the OPP 22 continues to improve cultural relations and continues to 23 engender a better understanding of First Nations issues 24 within its members. 25 Q: And I take it it's fair to say that
1641 there has been substantial efforts since the death of 2 Dudley George in that regard. 3 A: Yes, I agree with you. 4 Q: Yeah. Now the other thing, Mr. 5 O'Grady, is that this Commission has had the benefit of a 6 substantial amount of what I call 'raw evidence' because 7 it was tape recorded evidence when individuals did not 8 know that they were being tape recorded. 9 Are you aware of that? 10 A: I am aware of that. 11 Q: And that brings me to the question, 12 sir, that as far as policing is concerned, are you not of 13 the view that all communications into the police 14 operations should be recorded even if not to be revisited 15 on -- on a daily basis but at some time in the future if 16 there's a tragedy as what happened, they could have 17 access to first hand information? 18 A: I think it would be beneficial. 19 20 (BRIEF PAUSE) 21 22 Q: Mr. O'Grady, there were one (1) or 23 two (2) other matters that I wanted to speak you on your 24 -- on your release, your press release of July 24, 1996, 25 but they have been covered by Mr. Falconer.
1651 Mr. Commissioner, thank you, those are my 2 question. Thank you. 3 COMMISSIONER SIDNEY LINDEN: Thank you, 4 Mr. Ross. 5 MR. ANTHONY ROSS: And I take the 6 opportunity to apologize to Mark Sandler for being quick. 7 COMMISSIONER SIDNEY LINDEN: Kettle and 8 Stony Point Band. Mr. Henderson indicated there might 9 be, but I understand now -- 10 MR. DERRY MILLAR: He said -- 11 MS. COLLEEN JOHNSON: We have no 12 questions. 13 MR. DERRY MILLAR: Yes. 14 COMMISSIONER SIDNEY LINDEN: Is there no 15 questions? All right. 16 Mr. Horner...? 17 18 (BRIEF PAUSE) 19 20 COMMISSIONER SIDNEY LINDEN: I've 21 forgotten what your time estimate is and has it been 22 amended? What is it now? 23 MR. MATTHEW HORNER: Mr. Commissioner, my 24 time estimate was thirty (30) to forty-five (45) minutes 25 originally. I think I'll be under thirty (30) minutes
1661 but towards that amount of time. 2 3 (BRIEF PAUSE) 4 5 COMMISSIONER SIDNEY LINDEN: Are you all 6 right to continue on because we did start at 8:30. 7 THE WITNESS: Sure. Fine. 8 COMMISSIONER SIDNEY LINDEN: I want to 9 make sure -- 10 THE WITNESS: I know. I'm quite happy. 11 COMMISSIONER SIDNEY LINDEN: Fine. 12 13 CROSS-EXAMINATION BY MR. MATTHEW HORNER: 14 Q: Good morning, Mr. O'Grady. My name 15 is Matthew Horner and I represent the Chiefs on Ontario. 16 A: Yes. 17 Q: I just have a few questions for you 18 today. First is on the issue of injunctions and your 19 policy for -- for obtaining injunctions. And this has 20 been gone through by -- by Commission Counsel so I'm not 21 going dwell on it. 22 But, I just want to pick out one (1) 23 element that -- that we -- we didn't spend too much time 24 on. It's at Tab 5 of -- of your binders, is the -- the 25 briefing note for the Interministerial Policy Forum,
1671 Exhibit P-472. 2 And so, as you've explained already, the - 3 - the OPP's policy is that when one is dealing with 4 protestors or blockaders or those alleged to be 5 trespassing, the -- the OPP has to be very careful as to 6 the right -- as to the right of the protestors' claim, in 7 the sense that the OPP doesn't want to make decisions 8 over ownership of the land. 9 A: Correct. 10 Q: And -- and this -- this policy was 11 created, and it's not specific to First Nations but this 12 aspect of the policy, you would agree, regarding land 13 claims is -- is -- was created with a view to First 14 Nation claims? 15 A: Yes. I -- I certainly think that's 16 fair. 17 Q: And the reason for -- and so, 18 therefore, the OPP seeks an injunction in order to a) 19 give you directions on -- as to how to proceed and b) to 20 clearly delineate the respective rights of the parties? 21 A: That's reasonable except I would 22 clarify, the OPP doesn't seek the injunction, the OPP 23 wants somebody else to do it, but they will act on it if 24 the court then gives them some direction. 25 Q: I'm sorry.
1681 A: And -- and the other point I would 2 say is that I think most of us, when we think of land 3 claims, top of the mind is First Nations. But there are 4 others that have occurred in a -- perhaps a smaller -- 5 smaller scale, other people claiming a land area, and the 6 OPP would approach that no differently. 7 Q: All right. I'm sorry, I'm going to 8 move to a different topic. 9 Mr. O'Grady, you became Commissioner in 10 1988; that's correct? 11 A: Yes. 12 Q: And as Commissioner of the OPP, you 13 are in charge of all -- you were in charge of all 14 management aspects of -- of the OPP? 15 A: Yes. 16 Q: And you seek reports or are reported 17 -- reported to on all important issues facing the OPP? 18 A: Well, certainly, all reports don't 19 come to the Commissioner's office, they're filed in 20 various locations because it's -- it's divided up into 21 segments, divisions, if you will, and so some reports 22 stay there. 23 But with respect to First Nations, I saw 24 that as a -- something that I should pay particular 25 attention to and, as a result, I had a method of
1691 collecting up the overall or the general information in 2 the form of a critical issues note. 3 Q: And so -- and you've stated that 4 you're generally not -- you were generally not involved 5 in the day-to-day operational matters -- 6 A: No. 7 Q: -- around the province, obviously. 8 But at some point, at some level of seriousness, you 9 would expect that, on a particular operational matter, 10 would be brought to your attention once it reached a 11 certain level of seriousness? 12 A: Yes. 13 Q: And when an OPP officer shoots and 14 kills a civilian, you would generally expect that -- that 15 that would be brought to your attention? 16 A: Yes. 17 Q: During Deputy Commissioner Carson's 18 testimony, several incidents that he was aware of were -- 19 were raised with him, and I -- and I just wanted to 20 canvass with you if you were aware of these -- these 21 incidents and -- and what -- what steps were taken as a 22 result of them. 23 One (1) such incident involved -- occurred 24 in August of 1988, when you were Commissioner, and 25 involved a civilian by the name of Bernard Bastien
1701 (phonetic), and Deputy Commissioner Carson was actually 2 involved in that incident as a secondary negotiator. 3 And from that much information, are you 4 aware of that incident? 5 A: I'm aware of the incident. I know 6 there was an inquest. 7 Q: And you're aware that that incident 8 involved the -- the TRU team? 9 A: Yes, I do. 10 Q: And you're aware that it was a 11 nighttime operation? 12 A: Yes. 13 Q: And the TRU team was called -- called 14 in on a report of a person threatening suicide? 15 A: Correct. 16 Q: And the TRU team, before arriving at 17 the home of the person in question, shot a dog? 18 A: That -- that -- it doesn't come to my 19 mind at the moment; that may be so. 20 Q: And after they shot a dog, which was 21 Mr. Bastien's dog, Mr. Bastien came out on his porch with 22 a gun and he was fatally shot by members of the TRU team? 23 A: I understand that, if my memory 24 serves me right, Mr. Bastien fired -- had a weapon and 25 fired and the TRU team members fired also. I -- my
1711 understanding was it was almost simultaneous. 2 Q: And you said you were made aware of - 3 - of this incident? 4 A: Yes. 5 Q: And there was an inquest? 6 A: Yes. 7 Q: And did you take any steps in 8 reaction to that incident or the inquest? 9 A: I think we took -- it's a while ago 10 so I'm -- I'm not as fresh as I could be on it, but I'm 11 sure that we took a number of steps because there were 12 recommendations from the jury and we would take those -- 13 those recommendations seriously and we would -- those 14 that we thought were practical and we could introduce we 15 did, I believe. 16 Q: Do you recall taking any steps with - 17 - in particular with regard to the deployment of the TRU 18 team at night? 19 A: Right now I -- there were a number of 20 -- of issues that come to mind. I think there was 21 concern over the marking -- the uniforms -- marking of 22 the uniforms, marking of the vehicles and so on so they 23 were clearly identified as police. There was -- there 24 may have been an issue with respect to communications. 25 I'm trying to recall, but it's --
1721 Q: That's -- that's fair enough. I 2 understand, it was a long time ago. 3 Another incident involving the TRU team 4 that Deputy Commissioner Carson was aware of and was 5 brought up in this Inquiry was -- occurred in 1992 in 6 Sarnia in which a TRU team was sent out, again in a 7 night-time operation, to apprehend an eighteen (18) year 8 old individual in connection with a homicide and the TRU 9 team mistakenly shot the man's forty-three (43) year old 10 father who was sitting in his car with his wife at the 11 time? 12 A: Undoubtedly, I would -- that was '92? 13 Q: '92. 14 A: Undoubtedly, I would have been 15 apprised of it at the time. I'm not sure if I remember 16 any -- any of the details at all at this point. 17 Q: And -- and do you recall making any - 18 - giving any directions or making any changes to TRU 19 policy, as a result of that incident? 20 A: I may have but I don't recall right 21 now. 22 Q: Mr. O'Grady, at the time of your 23 retirement, you -- you were a member of the OPP for over 24 thirty-five (35) years? 25 A: Thirty-seven (37).
1731 Q: Thirty-seven (37) years? And -- and 2 you became a superintendent in 1983, correct? 3 A: I think that's correct. 4 Q: Before that time you had been a -- a 5 police officer? 6 A: Yes. 7 Q: And you had made arrests before? 8 A: Yes. 9 Q: And you had made arrests with people 10 who, perhaps, even resisted arrest? 11 A: Yes. 12 Q: And you had to use force? 13 A: Yes. 14 Q: Mr. O'Grady, the medical evidence, 15 that has been heard by this Inquiry, indicates that when 16 Mr. Cecil Bernard George was arrested by the CMU team on 17 the night of September 6th, he received twenty-eight (28) 18 blows from cylindrical objects in the nature of clubs? 19 A: Yes? 20 Q: Have you ever -- have you ever had to 21 use twenty-eight (28) blows? 22 COMMISSIONER SIDNEY LINDEN: I see 23 there's some objections to the question. 24 Yes, Mr. Sandler and Ms. Jones...? 25 MR. MARK SANDLER: With great respect, to
1741 -- to suggest do you ever have to use twenty-eight (28) 2 blows? I mean, how does that help you -- 3 COMMISSIONER SIDNEY LINDEN: I -- 4 MR. MARK SANDLER: -- at all? 5 MR. MATTHEW HORNER: I agree. I agree. 6 I agree, Mr. Commissioner. 7 COMMISSIONER SIDNEY LINDEN: It doesn't 8 help me, thank you very much. 9 10 CONTINUED BY MR. MATTHEW HORNER: 11 Q: Does twenty-eight (28) blows seem 12 excessive to you in your experience as a police officer? 13 COMMISSIONER SIDNEY LINDEN: No, just a 14 minute. 15 MR. MARK SANDLER: I just want to point 16 out that, you know, the unfairness of the situation is 17 also augmented by the fact that all of those blows, and 18 all of those injuries were investigated by the SIU, who 19 ultimately determined that excessive force -- there 20 wasn't even reasonable probable grounds to believe that 21 excessive force was used, apart from the issue of 22 identity. 23 So I'm not arguing the case now. I'm 24 making the point that how does it assist to put those 25 kinds of really simplistic questions to -- to Mr.
1751 O'Grady? 2 MR. MATTHEW HORNER: It's all right, I'll 3 withdraw that question, Mr. Commissioner. 4 COMMISSIONER SIDNEY LINDEN: Carry on. 5 Thank you. 6 7 CONTINUED BY MR. MATTHEW HORNER: 8 Q: Much was made, you'll agree -- 9 turning to -- if you'll turn to Tab 75 of your documents. 10 11 (BRIEF PAUSE) 12 13 MR. DERRY MILLAR: It's P-612. 14 15 (BRIEF PAUSE) 16 17 CONTINUED BY MR. MATTHEW HORNER: 18 Q: Mr. Millar informs me that this has 19 been beaten to death and I agree, and I just want to go 20 to one -- one part of it and at page 5, I don't think we 21 got to page 5. 22 The -- and you will agree that this 23 statement of yours was a formal statement that you made? 24 A: Yes. 25 Q: And it represented your views?
1761 A: Yes. 2 Q: And it represented the views of the 3 OPP? 4 A: Yes. 5 Q: And in the third paragraph down, you 6 state: 7 "There's been much made of the military 8 equipment we requested from the 9 Department of National Defence." 10 A: Correct. 11 Q: And you wanted to then -- you wanted 12 to allay fears and concerns that were raised by that? 13 A: I did. 14 Q: And if we move two (2) paragraphs 15 down, you state: 16 "Close scrutiny of the list of 17 equipment clearly shows all requested 18 equipment was defensive in nature 19 only." 20 A: Yes. 21 Q: "Bullet proof vests, binoculars, gas 22 masks, et cetera, and armoured 23 personnel carriers." 24 A: Yes. 25 Q: Parenthesis:
1771 "(which would have been used to 2 evacuate our members or members of the 3 public should the need arise)." 4 A: Yes. 5 Q: Could you please explain how a 6 armoured personnel carrier can be used defensively? 7 A: Yes, I can. If an individual was 8 wounded and exposed in the open and the necessity was 9 there to rescue that person, then the armoured personnel 10 carrier can be brought in and the individual, with some 11 risk, but less risk than everybody out in the open, can 12 be brought into the armoured personnel carrier and 13 removed. 14 Q: And why would you -- why would you 15 need to go out with a -- why was it envisioned that you 16 would need -- that officers would need to go out in a -- 17 in an armoured personnel carrier as opposed to just going 18 and picking them up by -- on foot? 19 A: If -- if someone had been shot, for 20 instance, as it turned out the First Nations in the -- in 21 the park were not armed, but at the point in time when we 22 were acquiring these things we wouldn't know that. 23 We were preparing for any eventuality and 24 so that was the reason for getting it and as I've 25 indicated, it was never used, it was not necessary to use
1781 it. 2 Q: So one reason to use it would be 3 concern because the occupiers may have been armed? 4 A: Could have been. 5 Q: And would the armoured personnel 6 carrier, by OPP operating procedures, have gone out if 7 there was people in the area around the wounded? 8 A: The intention was to use it as a 9 rescue vehicle if it was required. 10 Q: And is it fair to say that if there 11 had been people around the -- the wounded officer, the 12 armoured personnel carrier could still be used? 13 COMMISSIONER SIDNEY LINDEN: I am not 14 sure what you're doing, Mr. Horner. With all due 15 respect, we've heard this evidence, I know it. I mean is 16 there some new aspect of it that you're raising or 17 pursuing? 18 We've definitely heard that the -- the 19 answers to the question. We've heard them already. I'm 20 not sure if we heard them from Mr. O'Grady, but if you're 21 adding something, fine. 22 If you're not, may I suggest that you 23 consider or advise me where you're going? 24 MR. MATTHEW HORNER: Your Honour, I am 25 going somewhere --
1791 COMMISSIONER SIDNEY LINDEN: All right. 2 MR. MATTHEW HORNER: -- and I don't have 3 long to go with it. So, there will be -- maybe I'll try 4 a different question. 5 COMMISSIONER SIDNEY LINDEN: Well, we 6 heard of evidence about the armoured personnel vehicle 7 and the fact that it was -- attempts were made to obtain 8 it to be used as a rescue vehicle. So, that's where we 9 are now; if required. 10 11 CONTINUED BY MR. MATTHEW HORNER: 12 Q: If the OPP used an armoured personnel 13 carrier, they wouldn't run over people that were in the 14 area with the armoured personnel carrier? 15 A: That wouldn't be the intent. 16 Q: No. If there were people around, 17 people would hopefully move away. 18 A: Yes, or could be warned to move away. 19 Q: So, in your view and the view of the 20 OPP, driving a large armoured vehicle into a group of 21 people to rescue a stranded comrade from armed persons 22 would be a defensive of action? 23 MR. MARK SANDLER: Driving an armoured 24 carrier into a group of people? I mean, where does that 25 come from anything that Mr. O'Grady said.
1801 COMMISSIONER SIDNEY LINDEN: I see, at 2 least now. I'm sorry, I couldn't see it before. At 3 least I can see where I think he's going. And if he said 4 he just another question or two (2) I really -- what's 5 your next question? 6 I mean I'm really curious to know where 7 you're going although you've given us some indication. 8 MR. MATTHEW HORNER: Well, Your Honour -- 9 COMMISSIONER SIDNEY LINDEN: You were 10 asking -- 11 MR. MATTHEW HORNER: I'll ask -- I'll 12 just -- I'll just come right out and ask the question. 13 14 CONTINUED BY MR. MATTHEW HORNER: 15 Q: There's ev -- if you turn to Tab 37 16 of your materials, P-576. 17 COMMISSIONER SIDNEY LINDEN: There's a 18 bit of a disadvantage to being the last cross-examiner of 19 seventeen (17) parties. 20 MR. MATTHEW HORNER: No, I understand and 21 I'm going to be well under my time, Mr. Commissioner. 22 COMMISSIONER SIDNEY LINDEN: No, I 23 realize that. 24 MR. MATTHEW HORNER: So, and I -- and I 25 apologize --
1811 COMMISSIONER SIDNEY LINDEN: I'm not 2 suggesting that you're -- 3 MR. MATTHEW HORNER: And I apologize for 4 somebody on time. 5 COMMISSIONER SIDNEY LINDEN: Okay. Page 6 30? Tab 37? 7 8 CONTINUED BY MR. MATTHEW HORNER: 9 Q: Tab 37 is your clarification -- the 10 OPP's clarification of events, that was -- 11 A: Yes. 12 Q: -- released on September 7th. 13 And in that document you were trying to -- 14 the OPP is trying to clarify exactly what occurred on 15 that evening, correct? 16 A: Yes. 17 Q: And in the second para -- or the 18 third -- the second -- the last paragraph on the page it 19 was pointed out and you were aware that two (2) vehicles 20 came out including a bus that came out -- 21 A: Yes. 22 Q: -- towards the officers. And there's 23 evidence that's been heard by this Inquiry that the bus 24 was driven out in order to retrieve Mr. Bernard George 25 who was in the process of receiving, according to the
1821 medical evidence, twenty-eight (28) baton blows. 2 COMMISSIONER SIDNEY LINDEN: Just a 3 minute. There's an objection from -- from Ms. Jones and 4 from Mr. Sandler. 5 MS. KAREN JONES: Mr. Commissioner, that 6 is absolutely not what the evidence was. There has never 7 been any evidence of that and to continue to restate a 8 proposition like that, that is incorrect. It is 9 absolutely unconscionable and inflammatory. 10 11 CONTINUED BY MR. MATTHEW HORNER: 12 Q: They were coming out to retrieve Mr. 13 Bernard George; that is some evidence that we have heard. 14 And from the OPP's point of view, could 15 this not be perceived as interpreted as a defensive 16 manoeuver? 17 A: I don't know. I don't know how the 18 OPP -- well -- I'm trying to think back on the 19 circumstances, just what the issue was there, and I don't 20 think I -- my recollection doesn't provide me with enough 21 information to answer you. 22 Q: Thank you, Mr. O'Grady. 23 MR. MATTHEW HORNER: Thank you, Mr. 24 Commissioner. 25 COMMISSIONER SIDNEY LINDEN: Thank you,
1831 Mr. Horner. 2 We're up to Mr. Sandler and I'm not sure 3 if he thinks he can finish before lunch or not or wants 4 to try. I don't know. We'll leave it up to Mr. Sandler. 5 Mr. Millar, do you have something? 6 MR. DERRY MILLAR: Yes. Perhaps before 7 Mr. Sandler gets up, in response to the question as to 8 the author of Exhibit P-578, it's our -- the Commission's 9 information that it was a lawyer by the name of Ms. Anne 10 McChesney (phonetic), the lawyer in the Legal Service 11 Branch of the Ministry of the Solicitor General. 12 COMMISSIONER SIDNEY LINDEN: Have you got 13 that, Mr. Falconer? 14 What's your pleasure, Mr. Sandler...? 15 MR. MARK SANDLER: I'm not sure it's my 16 pleasure. 17 COMMISSIONER SIDNEY LINDEN: Oh, okay. 18 MR. MARK SANDLER: The Witness has been 19 on since 8:30, he's going to have to eat lunch in any 20 event, and I'm a little concerned because it's -- 21 COMMISSIONER SIDNEY LINDEN: You suggest 22 we break now for lunch and -- 23 MR. MARK SANDLER: -- it's 12:15. I 24 think we probably should break for lunch. I know, I did 25 canvass -- canvass the Witness on it, and I think that's
1841 his preference. 2 I'm going to be twenty-five (25) minutes 3 and thirty (30) seconds. 4 COMMISSIONER SIDNEY LINDEN: We'll break 5 for lunch now and then we'll come back after and do your 6 twenty-five (25) minutes. Thank you very much. 7 THE REGISTRAR: This Inquiry stands 8 adjourned until 1:30. 9 10 --- Upon recessing at 12:18 p.m. 11 --- Upon resuming at 1:32 p.m. 12 13 THE REGISTRAR: This Inquiry is now 14 resumed. Please be seated. 15 COMMISSIONER SIDNEY LINDEN: Good 16 afternoon. 17 MR. MARK SANDLER: Good afternoon, Mr. 18 Commissioner. 19 20 CROSS-EXAMINATION MR. MARK SANDLER: 21 Q: Good afternoon, former Commissioner. 22 If I can take you to Exhibit P-613, which is at Tab 91 of 23 your materials and this is an issue note that Mr. 24 Falconer cross-examined you on dated January the 7th of 25 1997. And you'll see from the top left-hand corner that
1851 this is version 28. 2 A: Yes. 3 Q: All right. And you may recall that 4 Mr. Falconer cross-examined you on how it came about that 5 the phrase, "The OPP does not take tactical or 6 operational direction from the Government" came to find 7 its way into this issue note. 8 And you expressed your view as to how it 9 probably occurred and then I intervened and suggested 10 maybe we should go back to where it first appears; which 11 version, that might give you a little more insight into 12 that? 13 A: Yes. 14 Q: So -- so, why don't we do that? If I 15 can take you back to Version 25 and you should find 16 Version 25 at Tab 85 of your materials. 17 MR. DERRY MILLAR: It's Inquiry Document 18 2001028. 19 20 CONTINUED BY MR. MARK SANDLER: 21 Q: And I can tell you from going back 22 over the various versions, this is the first time within 23 the sequence of versions that the phrase, 24 "The OPP does not take tactical or 25 operational direction from the
1861 Government" 2 appears, okay? 3 A: Right. 4 Q: And does this give you some 5 assistance as to the context within which the issue note 6 came to include that phrase? 7 8 (BRIEF PAUSE) 9 10 A: I -- I think that there had been 11 public remarks, perhaps, made and this was in answer to 12 that. 13 Q: All right. So, that there's a 14 reference there to: 15 "Aware of Lambton MPP's comments as 16 reported in the press. The Lambton MPP 17 visited the OPP command post but was 18 not involved in any operational 19 decisions." 20 So, this is a reference to the fact, I'm 21 going to suggest, that what hit the press was that Mr. 22 Beaubien had made comments reported in the press and it 23 had been revealed that he had attended the OPP command 24 post. 25 Does that seem to accord with the issue
1871 note? 2 A: That's right. 3 Q: And -- and in that context, the issue 4 note reflected as a briefing to the Solicitor General or 5 Deputy Solicitor General that the OPP does not take 6 tactical or operational direction from the Government, am 7 I right? 8 A: That was the response. 9 Q: All right. If that could be the next 10 exhibit, please? 11 THE REGISTRAR: P-632, Your Honour. 12 13 --- EXHIBIT NO. P-632: Document Number 2001028. 14 MSGCS issue note, version 25, 15 November 07/'96. Issue: 16 First Nations Occupation, 17 Ipperwash Provincial Park 18 (HBF 96, Level 1). 19 20 CONTINUED BY MR. MARK SANDLER: 21 Q: Now, you expressed your preference 22 that information as to the Premier's wishes not be shared 23 with operational officers? 24 A: Yes. 25 Q: You told the Commissioner that in a
1881 perfect world the Premier's personal views ought not to 2 be discussed but there's all kinds of information 3 discussed, it would be better if it were not, right? 4 A: That's true. 5 Q: Now, I'm interested in that from a 6 systemic point of view because we've heard evidence that 7 John Carson took a different approach to the issue. 8 And I'm going to tell you what he said and 9 I'm just going to ask you to comment on that as an 10 alternative approach. Okay? 11 A: Yes. 12 Q: John Carson testified that his 13 command style erred on the side of telling his officers 14 in the -- in the command post more, rather than less, 15 about what was happening. 16 And that although he did not specifically 17 caution his officers not to allow political pressure to 18 influence their decisions, what he did do was repeatedly 19 punctuate his references to political pressures or 20 feelings with instructions that: 21 "But we'd be staying the course. 22 It'll be business as usual. 23 Language of restraint. 24 Will await the injunction. 25 Keep tonight quiet."
1891 And those were the messages he 2 communicated, often immediately after communicating to 3 his officers that these views had been expressed out 4 there. 5 And he'd also said that in his view, he 6 hadn't felt that those who operated under him in the 7 command post would be entirely oblivious to the strong 8 views being expressed in the community and by politicians 9 whether he mentioned them to his team or not. 10 A: Right. 11 Q: I was just interested in your comment 12 on that as an alternative approach to telling them 13 nothing. 14 A: I think that that was an acceptable 15 approach, and to the degree possible I think it addressed 16 the issue. 17 Q: All right. So that especially I'm 18 going to suggest that if an incident commander is of a 19 view that some of these political comments or views or 20 pressures are -- are out there, in any event, another 21 alternative approach is to acknowledge them but give very 22 clear direction as to where we're going, right? 23 A: Exactly. And I think that's what he 24 did. 25 Q: Okay. Now Mr. Falconer --
1901 MR. JULIAN FALCONER: Mr. Commissioner, 2 My Friend went that extra -- extra step just now in 3 quoting evidence and he misstated the evidence. That was 4 not Mr. Carson's evidence. 5 Mr. Carson's evidence was not that he 6 simply -- 7 COMMISSIONER SIDNEY LINDEN: Speak into 8 the mic so we can pick it up on -- 9 MR. JULIAN FALCONER: Thank you. You may 10 want to -- 11 COMMISSIONER SIDNEY LINDEN: Just give 12 him a little room there. 13 MR. JULIAN FALCONER: Mr. Carson's 14 evidence on the issue was on reflection first of all, 15 that passing on the information he got from Fox to his 16 men may not have been entirely wise. He actually had 17 some regrets and expressed those on the record first of 18 all. 19 Mr. Sandler made no reference to that when 20 he was summarizing the evidence and he should have. 21 Secondly, Mr. Carson testified that in 22 some instances he punctuated it with some cautions, not 23 in every instance and certainly not in most of the 24 instances; that was not his evidence. So, Mr. Sandler 25 has taken it to a different level with respect. And if
1911 he's going to summarize Carson's evidence, he needs to be 2 accurate. 3 COMMISSIONER SIDNEY LINDEN: I don't 4 think he'll disagree with that. 5 MR. MARK SANDLER: First of all, I 6 started my proposition to the Witness by saying that he 7 testified his command style erred on the side of telling 8 the officers and command post more rather than less of 9 what was happening. I'm just asking -- I'm content to 10 adopt all of the suggestions that My Friend made and 11 simply put it this way. 12 13 CONTINUED BY MR. MARK SANDLER: 14 Q: That one alternative approach, if 15 you're concerned about officers knowing about the 16 political views or pressures that are out there is to 17 acknowledge them but make it clear in your direction as 18 to the course that you're pursuing, right? 19 A: And I think that's a reasonable 20 approach. 21 Q: Okay. Now you were asked about a 22 purported difficulty and taking positions unpopular with 23 the rank and file. And you said you're not concerned 24 with your popularity and wasn't -- and were not so 25 concerned as a commissioner. Do I have that right?
1921 A: That's correct. 2 Q: And I just want to talk to you about 3 that in the context of the SIU investigation of Cecil 4 George. 5 A: Yes. 6 Q: And Mr. Millar dealt with -- with 7 some of this and it was dealt with some extent in cross- 8 examination. But I -- I just want to flush this out a 9 little bit. 10 You were advised initially, by the SIU, 11 that their investigation had been completed. And 12 although there was apparent excessive use of force, the 13 inability to identify the officers stymied the continued 14 investigation. 15 Am I right? 16 A: That's correct. 17 Q: Did you find that acceptable? 18 A: No, I didn't. I felt that if there 19 was evidence of excessive use of force, there must be 20 other avenues to continue the investigation. 21 Q: Did you think that if that -- that 22 response to SIU were known to the subject officers that 23 that would be a popular decision on your part? 24 A: No it definitely would not. 25 Q: And you wrote to SIU and the
1931 Commissioner has already seen your letter to SIU 2 reflecting that that was an unacceptable basis in your 3 view for ending the investigation and -- and at a risk of 4 paraphrasing you said, if you're not going to do it, I'm 5 going to make sure that somebody does. 6 A: That was my intention. 7 Q: All right. And then ultimately an 8 extensive second investigation, a further investigation, 9 a renewed investigation, however one might characterize 10 it, did take place, didn't it? 11 A: Yes, it did. 12 Q: And -- and filed as Exhibit 626, and 13 perhaps I'd ask that that be provided to you unless you 14 have it there already, is the report that SIU did prepare 15 after that renewed second investigation. Am I right? 16 A: That's my understanding, yes. 17 Q: And you've had an opportunity for 18 this Inquiry to read Exhibit 626 which is Document 19 1005368, right? 20 A: Yes. 21 Q: And I just want to highlight three 22 (3) features of it, if I may, and it'll -- the 23 Commissioner will have the full document and has it and 24 can look at it in its entirety. 25 It's a lengthy report. It's forty-seven
1941 (47) pages from Peter Tinsley who was then the Director 2 of Special Investigations Unit. Am I right? 3 A: Yes. 4 Q: And what it reflects, and I won't 5 take you to specific paragraphs because you've read it 6 recently is that -- is that the SIU identified subject 7 officers and witness officers as part of the 8 investigation, am I right? 9 A: That's right. 10 Q: And as well, the SIU reinterviewed or 11 had interviewed many, many of the First Nations 12 witnesses, a number of medical witnesses, expert medical 13 evidence that bore upon the issues and as well as a 14 number of witness officers, am I right? 15 A: That's correct. 16 Q: And at the conclusion of that 17 investigation, and I'll take you to page 45, Mr. Tinsley 18 engaged in a -- in an extensive, and I suggest, 19 sophisticated analysis of whether or not the force 20 applied against Cecil Bernard George as described by the 21 protesters was excessive in all of the circumstances? 22 A: Yes. 23 Q: And we see that at the top of page 45 24 and he acknowledged that while a review of the medical 25 evidence alone might lead one to conclude that the force
1951 used was apparently excessive, he must consider the 2 totality of the evidence and he does so in the paragraphs 3 that follow, doesn't he? 4 A: Yes, he does. 5 Q: And he ultimately concludes, and I'll 6 look -- I'm most interested in the last paragraph at page 7 45: 8 "Lastly and perhaps most importantly, 9 one can't lose sight of the wider 10 context within which Cecil Bernard 11 George's arrest transpired. 12 The moment was an intensely hostile one 13 for all of the participants involved. 14 At the time of his arrest there was a 15 violent battle raging between members 16 of the CMU and various protesters. 17 Rocks and other projectiles were being 18 hurled at the CMU officers and 19 specifically in the direction of the 20 area of Cecil Bernard George's arrest. 21 Moments later, a school bus and car 22 would be driven out from within the 23 Park property and into the direction of 24 CMU officers. 25 Gunfire would erupt seconds later and
1961 one of the protesters would tragically 2 lose his life. 3 The latter set of circumstances 4 transpiring after Cecil Bernard George 5 had been taken into custody do not bear 6 directly on the propriety of his arrest 7 or the force applied against him. 8 They are some evidence, however, of the 9 violent and dangerous backdrop within 10 which the arrest, only moments earlier, 11 was effected. In these circumstances I 12 am mindful of Baxter with the citation, 13 where the Court of Appeal held that the 14 protection accorded to police officers 15 and the use of force is not lost where 16 a police officer, under attack, fails 17 to measure to a nicety the exact 18 measure of defensive force required in 19 the circumstances. 20 The officers who made contact with 21 Cecil Bernard George during the 22 confrontation were under attack from 23 several protesters and more 24 specifically, and perhaps to a more 25 limited extent, from Cecil Bernard
1971 George. 2 In these circumstances the law affords 3 some latitude to the officers in their 4 application of force. 5 Their response need not be exacting in 6 relation to the threat confronted. I 7 am of the view that the evidence 8 discloses no reasonable grounds upon 9 which to find that the force used by 10 CMU officers against Cecil Bernard 11 George were so disproportional in 12 relation to the threat as to render it 13 excessive and therefore criminal in the 14 circumstances." 15 And that's the reference that you made 16 earlier to Mr. Millar and the paragraph that -- that you 17 found some comfort in. Am I right? 18 A: Correct. 19 Q: And comfort, not in the sense -- I'm 20 not asking you to litigate the debate or the issue 21 involving Cecil Bernard George, but because the case was 22 resolved on the merits of whether excessive forced was 23 used? 24 A: That's true. 25 Q: And -- and I also point out that --
1981 that at the -- at the end, and the very last paragraph, 2 Peter Tinsley reflects: 3 "Despite these obstacles..." 4 And he outlines some of the obstacles, 5 including the fact that, as you have mentioned, three (3) 6 different directors were involved during the span of the 7 investigation and re-investigation: 8 "And on a more positive note, the SIU's 9 re-investigation of this matter was 10 greatly assisted by the efforts and co- 11 operation of then chief Superintendent 12 Gwen Boniface, Detective Inspector 13 Goodall, Detective Constable Mark Dew 14 of the OPP. 15 The First Nations witnesses who were 16 re-interviewed in this process are also 17 recognized for their patience and co- 18 operation." 19 Any complaints, ever, from SIU about the 20 co-operation with them in the course of this or their 21 investigation into Ipperwash at large? 22 A: Not to my recollection. 23 Q: All right. And -- and leaving aside 24 the issue of why the SIU wanted the photographs and you 25 and Ms. Jones had some discussion about whether that was
1991 related directly to Cecil Bernard George or was related 2 to an alleged threat that -- that some had claimed had 3 been made against Dudley George. 4 You took the position that the 5 photographs, within the personnel files should be 6 produced to SIU? 7 A: I did. 8 Q: All right. Did you regard that as 9 likely to be a popular decision amongst the officers 10 affected? 11 A: No, it was not. 12 Q: Was it the right thing to do? 13 A: Yes, I think it was. 14 Q: Okay. Now, I want to move from that 15 issue to your prepared comments on July the 24th of 1996, 16 and as I'm sure you know, that's at Tab 75 of your 17 materials and this is Exhibit P-612. 18 Now, I'm going to deal with a few 19 paragraphs that aren't here and I -- and I want to 20 understand a little bit more about the context within 21 which these remarks were provided. 22 And you've said a lot about it and you've 23 been asked a lot of questions about it, so I'm going to 24 try to deal with -- with a few new topics. 25 Now, first of all, as you've said, these
2001 remarks were issued by you after an extensive period of 2 silence had taken place on the part of the OPP; am I 3 right? 4 A: Yes. 5 Q: And I don't want my next question to 6 be misconstrued so let me say up front or suggest to you 7 that the OPP has to be held, and you'd agree with this, 8 to a different standard than other citizens out there in 9 terms of the dealings with the media. Am I right? 10 A: I believe that, yes. 11 Q: I mean, we're not suggesting that -- 12 that the OPP shouldn't be held to that higher standard, 13 are we? 14 A: No, it comes with the... 15 Q: But to understand a little bit for 16 the Commissioner's sake, the context within which these 17 statements are made, had everyone else remained silent 18 about what happened at Ipperwash on September the 6th 19 during the period of silence that you described by the 20 OPP? 21 A: No, there were other comments made 22 quite frequently from other sources as to what might or 23 might not have happened there. 24 Q: All right. And I'm going to suggest 25 that some of the comments -- and I should ask you this --
2011 and you described the presumption of innocence that 2 applied to Ken Deane. 3 Was the presumption of innocence respected 4 by others within -- 5 OBJ MR. JULIAN FALCONER: I object. That 6 last question, now we're getting into some kind of trial 7 of comments, the contents of which we don't have. There 8 is no evidence as to what -- 9 MR. MARK SANDLER: I'm about to ask -- 10 MR. JULIAN FALCONER: -- what the 11 comments were and now the presumption of innocence is to 12 be measured in those. In my respectful submission, not 13 only is it not helpful, but it forces us all to litigate 14 things that are not even before you. 15 MR. MARK SANDLER: I don't -- I don't 16 understand that objection. I was about to ask him the 17 kinds of comments that were out there. 18 MR. JULIAN FALCONER: No, you asked for a 19 conclusion as to what the presumption of innocence -- 20 COMMISSIONER SIDNEY LINDEN: Just leave 21 the first -- 22 MR. MARK SANDLER: I'll ask the comments 23 first. 24 COMMISSIONER SIDNEY LINDEN: Leave the 25 preamble out and just ask the question.
2021 MR. MARK SANDLER: Fair enough. 2 3 CONTINUED BY MR. MARK SANDLER: 4 Q: It was being said in public forum 5 that the OPP had brought two hundred and fifty (250) men 6 or officers to this incident, even before the shooting 7 took place, was it not? 8 A: That's right. 9 Q: It was being said that the OPP and 10 you, personally, were being directed to go into the Park 11 and eject the occupiers, wasn't it? 12 A: That's correct. 13 Q: It was being said that the reason you 14 employed an armoured personnel vehicle was to act 15 aggressively against the occupiers -- 16 A: Yes. 17 Q: -- was it not? 18 A: Yes. 19 Q: And it was being said, before and 20 after Ken Deane was charged, that he had committed 21 murder. 22 A: That's true. 23 Q: Now is that -- was that consistent in 24 your view? And again, without dealing with the merits of 25 Ken Deane's case, was that consistent with the
2031 presumption of innocence in your mind? 2 A: I didn't think so. 3 Q: All right. Now, against the 4 background of -- of these comments and -- and -- and 5 again, contrary to what Mr. Falconer just suggested, I'm 6 not putting on trial those comments that are being made 7 out there because you have to operate in a different way, 8 but what I'm suggesting is, in the context of those 9 comments, let's look at what is in here. 10 And we've already seen that -- that if we 11 look at page 1 of the comment you said, and this is near 12 the bottom of the page: 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." 17 Now, just stopping there for a moment. 18 A: Yes. 19 Q: That was your position then, that's 20 your position now? 21 A: That's correct. 22 Q: Now just stopping there for a moment 23 because we've talked about political pressure or 24 political influence and -- and sometimes I'm going to 25 suggest in cross-examination the terms were being used
2041 interchangeably, but I want to be very clear here. 2 I want to talk about -- ask you about 3 political pressure as comments being made in the 4 political forum or being communicated in the political 5 forum and I want to distinguish that from political 6 interference, which I'm going to suggest, just for the 7 purposes of my question, others can disagree, but 8 political interference, a situation where the police 9 succumb to or are affected by that political pressure. 10 All right? 11 A: Yes. 12 Q: And what I want to ask you is, you 13 told Mr. Falconer, understandably, that, based upon the 14 comments that he put to you, that you saw those comments 15 as material to the issue of political pressure? 16 A: Yes. 17 Q: Right. And that you could see how 18 you'd have a concern as to the existence of political 19 pressure, right? 20 A: Yes. 21 Q: Has anything that has been produced 22 to you over the last few days, changed your view as to 23 the existence of political interference or succumbing by 24 your officers to the political pressures out there? 25 A: No, I do not believe that happened.
2051 Q: Now, leave aside whether you believe 2 that happened, because somebody might suggest, well, 3 you're kind of disinclined to -- to believe that that 4 might happen, I want to ask you about some things and I'd 5 be interested in your views as to whether these are 6 material. 7 Would it be material to your decision as 8 to whether the OPP succumbed to political pressure that 9 Ron Fox testified that regardless of the Premier's views, 10 he did not take from the Premier's or anybody else's 11 comments that he was being directed to do anything 12 concerning operational matters? 13 A: Yes, that's exactly as I would have 14 expected and, knowing Ron Fox, that's exactly as I would 15 have expected him to act. 16 Q: And would it be material that that 17 evidence came from him? 18 A: Yes. 19 Q: Would it be material to your opinion 20 that -- whether -- whoops. 21 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 22 Falconer...? 23 MR. JULIAN FALCONER: Mr. Sandler and Mr. 24 Downard objected to my simply extracting an opinion from 25 the witness, based on certain facts.
2061 The -- ultimately the way it was handled 2 is, his level of knowledge concerning the facts fed into 3 potentially changing his evidence surrounding the 4 existence of political pressure and that's how we moved 5 on it. 6 COMMISSIONER SIDNEY LINDEN: We got -- 7 MR. JULIAN FALCONER: Now, he gives an 8 answer that is consistent with his previous answer in- 9 chief and we're on re-exam, Mr. Sandler is asking him if 10 this information was material to him when he's already 11 given the exact statement that he didn't think they 12 succumbed and he's asking him if it's material to them 13 not succumbing. 14 He's basically asking for opinion 15 evidence. He's not asking about knowledge or anything 16 else. He's just -- he's going -- in a strange way, he's 17 going to the question of getting this witness, who's 18 already said, I don't think they succumbed, he's -- he's 19 adding facts or putting facts in front of him, but it's 20 not clear for what purpose other than to make argument. 21 In other words, it's not for -- we 22 outlined defined purposes and it just doesn't seem to 23 become within what we outlined. 24 Their objections were, was that I was 25 referring to evidence in the air as argument. This is
2071 what -- exactly what Mr. Sandler -- because there's no 2 defined purpose for putting the evidence to the witness. 3 MR. MARK SANDLER: That wasn't my 4 objection, with great respect. I'm doing exactly what he 5 did; only a lawyer could make that objection, with great 6 respect. 7 COMMISSIONER SIDNEY LINDEN: Yes, well -- 8 MR. MARK SANDLER: My Friend kept putting 9 alleged facts to the witness and asking whether he would 10 regard those as material. Not that he had any knowledge 11 of them, would he regard them as -- 12 COMMISSIONER SIDNEY LINDEN: As material. 13 MR. MARK SANDLER: -- material. 14 COMMISSIONER SIDNEY LINDEN: All right. 15 I -- 16 MR. MARK SANDLER: That's what I'm 17 asking. 18 COMMISSIONER SIDNEY LINDEN: Yes, well I 19 think you went a little further, but I think that we -- I 20 think Mr. Falconer kind of worked out a phrase that 21 worked and I think that was it. 22 MR. MARK SANDLER: And I'm trying to 23 use -- 24 COMMISSIONER SIDNEY LINDEN: I think if 25 you use the same language we won't have any objections, I
2081 don't think, because it was language that he did use. 2 Other than, would that change your opinion 3 which is what I think you asked him. 4 MR. MARK SANDLER: All right. I'm 5 prepared to accept that. 6 COMMISSIONER SIDNEY LINDEN: Yes. 7 MR. MARK SANDLER: I can see Mr. 8 Falconer, without looking behind me. 9 COMMISSIONER SIDNEY LINDEN: Can you? 10 11 (BRIEF PAUSE) 12 13 CONTINUED BY MR. MARK SANDLER: 14 Q: Would you regard it as material -- 15 A: Yes. 16 Q: -- if you were to learn that between 17 the time that observations were made in the sandy parking 18 lot, that John Carson relied upon, to the time the 19 decision was made by John Carson to send the officers 20 down the road, that decision or even consideration of 21 that decision was never communicated to a single 22 politician? 23 A: Yes, I think so. 24 Q: Would you consider it material to 25 your opinion that there was no opportunity on the part of
2091 the politicians' part or their representatives, to even 2 comment on that decision or provide any direction as to 3 that decision? 4 A: Yes. 5 Q: Would you consider it as material to 6 your opinion, that purported political pressure was to go 7 into the Park and eject the occupiers from the Park when 8 the uncontradicted evidence is that John Carson 9 specifically instructed the CMU not to go into the Park 10 and not to eject the occupiers? 11 A: That's my recollection. 12 Q: Now, you were criticized for failing 13 to make inquiries about the existence of political 14 pressure. And you recall the cross-examination that you 15 didn't ask any of your people about political pressure, 16 you just assumed that there was no political pressure. 17 Do you remember the cross-examination that 18 bore upon that issue? 19 A: I do. 20 Q: And you remember it was suggested to 21 you that you were in an analogous situation to see no 22 evil, hear no evil? 23 A: I do remember that. 24 Q: Did you accept that characterization? 25 A: No, I do not -- do not believe that
2101 was true. 2 Q: Now, one (1) of the things that you 3 did tell Mr. Falconer is that you don't necessarily have 4 all the information in a perfect world. And he said, 5 Well, that's why you commission reports, you know, from 6 people like Connolley and Marshall and Coles to gather up 7 relevant information. 8 Now, I want to take you to the Connolley 9 report if I may and we'll just leave aside the -- the 10 comments -- your public comments for a moment which I'll 11 return to shortly. 12 And the Connolley report is at 101. And 13 this is P-483. 14 MR. DERRY MILLAR: 200577. 15 16 CONTINUED BY MR. MARK SANDLER: 17 Q: And I want to direct you to issues, 18 page 7 item 16. Do you have that? 19 A: Yes, I do. 20 Q: And could you read it out for the 21 Commissioner, please? 22 A: "Was there political interference 23 imposed on the Ontario Provincial 24 Police in the handling of this 25 occurrence? I ask the answer. I ask
2111 all senior officers of the Ontario 2 Provincial Police, inspectors and up if 3 they had received direction directly or 4 indirectly from politicians concerning 5 the operational handling of this 6 incident. To a person, the answer was 7 a definite, 'no.' This is the largest 8 issue that will be dissected in any 9 legislative forum." 10 Q: So, you didn't make inquiries, but 11 apparently someone did? 12 A: Yes, and I'm -- I'm afraid that I was 13 unfamiliar with the document, or I had forgotten this 14 information was in that document at the time that I was 15 speaking about this area before. 16 Q: All right. And -- and how does this 17 assist in -- in responding to the questions that Mr. 18 Falconer raised with you earlier? 19 What do you have to say about it in light 20 of what's right here? 21 A: Well, it gives some indication that 22 inquiries were made and that the -- the answers were 23 unequivocally 'no'. 24 Q: And does it give any indication as to 25 of whom inquiries were made?
2121 A: All of the senior officers, 2 inspectors and up. So, obviously, that would have 3 included John Carson and -- Ron Fox. 4 Q: All right. And does it give an 5 indication as to whether operational logs were looked at? 6 A: "The key personnel that should 7 provide the needed information, to 8 provide proof of non-interference is 9 Commissioner O'Grady, Superintendent 10 Fox, Inspector Scott Patrick, and 11 Inspector John Carson. Extensive files 12 from Superintendent Fox and the 13 operational log document any political 14 presence, but the officers can provide 15 the necessary correct information to 16 neutralize the incorrect perception." 17 Q: All right. So, that we actually see 18 that -- and the operational log, do you know what that 19 is? 20 A: Yes, it's the -- the log that Carson 21 was using. 22 Q: So -- so, the same scribe notes, some 23 of which were being put to you -- 24 A: Yes. 25 Q: -- yesterday?
2131 A: Yes. 2 Q: Okay. 3 MR. JULIAN FALCONER: Mr. Commissioner, I 4 want to be clear, I'm not objecting to My Friend 5 referring to this in any way. He's perfectly entitled. 6 It's proper. And I'm not suggesting that. 7 My only concern, though, is that this was 8 not put to Superintendent Fox in response to his evidence 9 about issues of political pressure and it wasn't put to 10 Deputy Commissioner Carson in his evidence about the 11 existence of pressure. 12 COMMISSIONER SIDNEY LINDEN: That's fine. 13 MR. JULIAN FALCONER: And so after they 14 leave the stand, the person who has access to this 15 information, who doesn't contest what they now say, gets 16 up and says, well they say X when obviously you got their 17 evidence where they indicated these things existed so. 18 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 19 Millar...? 20 MR. DERRY MILLAR: Let me just address 21 that point. I asked -- Mr. Carson when he was in the 22 box, had never seen the Connolley report. So that 23 because I -- I took him to the Connolley report and I 24 asked him because I would have taken him through the 25 Connolley report if he had seen it.
2141 And his evidence was he had never seen it 2 and he explained the reasons why. 3 COMMISSIONER SIDNEY LINDEN: Am I correct 4 that it was Commissioner O'Grady who commissioned the 5 Connolley report? 6 MR. MARK SANDLER: Yes. And I want to 7 further because -- because I think this is a very 8 important point. You may recall that I suggested earlier 9 that -- that in fairness if there was going to be a 10 suggestion, that Chris Coles should have told someone 11 about the political pressure, it should have been put to 12 Chris Coles and so on. 13 We had an allegation made here for the 14 first time that Mr. O'Grady was negligent or failed in 15 his duties to a point that we had what I suggest 16 respectfully, was this insulting cartoon that was shown 17 to him about 'see no evil, hear no evil' and My Friend 18 kind of glossed over the Connolly report. 19 Well you had all these reports and he 20 didn't ask about this, he didn't get any information 21 about it and it was right here. And I wouldn't expect 22 Mr. O'Grady to remember today, no one would. Everything 23 that's in these reports but there it is, it's a complete 24 answer and I don't know how My Friend can now object. 25 COMMISSIONER SIDNEY LINDEN: And you're
2151 bringing it to his attention now. Yes. 2 MR. MARK SANDLER: I am. 3 COMMISSIONER SIDNEY LINDEN: You're 4 saying you're not objecting, Mr. Falconer? 5 MR. JULIAN FALCONER: No, no. 6 COMMISSIONER SIDNEY LINDEN: But you 7 just -- 8 MR. JULIAN FALCONER: The problem is I -- 9 I made -- I didn't call Mr. Sandler any names, but Mr. 10 Sandler can't resist making it personal. And when he 11 suggests that in the discharge of my functions I have 12 become insulting, well he's forcing me into a situation 13 where I have no choice but to respond. 14 COMMISSIONER SIDNEY LINDEN: I don't want 15 this to become personal. But, I would be very grateful 16 is counsel refrained from make any personal allegations. 17 My view from where I'm sitting is that everybody's trying 18 their best to be professional and I would like to keep it 19 that way. Thank you. 20 21 CONTINUED BY MR. MARK SANDLER: 22 Q: Now, against that background, if we 23 can go back to your statement of July the 24th of 1996. 24 And when Mr. Falconer was cross-examining you on this 25 statement, he pointed up in the context of this damage to
2161 a vehicle -- 2 A: Yes. 3 Q: -- that as of the time of this 4 statement, July 24th, 1996, you would have been operating 5 upon the information base provided by, amongst other 6 things, Chris Coles, right? 7 A: That's correct. 8 Q: And -- and so for example when you 9 had suggested in responding to Mr. Rosenthal that you 10 couldn't pinpoint when it was that you learned that the 11 baseball bats themselves hadn't been used to damage the 12 car, Mr. Falconer took you to Chris Coles' statement or 13 suggested that you could look at Chris Coles' statement 14 and you were prepared to concede without looking at it 15 that -- that the matter was corrected as of the time of 16 the statement of July the 24th of 1996. 17 Do you remember all of that? 18 A: Yes. 19 Q: Because he said to you: 20 "Your information base was Chris Coles 21 and nothing changed from the time that 22 Chris Coles had prepared that statement 23 in September of 1995 to July the 24th 24 of 1996." 25 Right?
2171 A: Yes. 2 Q: And if we could and this isn't a 3 criticism of Mr. Falconer because he did give you the 4 opportunity to look at Chris Coles' statement and you -- 5 and you didn't take it. 6 But, I want to take you to Chris Coles' 7 statement because it is instructive on what your 8 information base was as of July the 24th of 1996. Mr. 9 Falconer and I can agree on that. 10 So, if we can take -- if I can take you to 11 Tab 104, Exhibit P-482 -- 12 MR. DERRY MILLAR: It's actually 102 in 13 his book. 14 15 CONTINUED BY MR. MARK SANDLER: 16 Q: 102, I'm sorry. P-482. And Mr. 17 Falconer referred, just so you'll know, to the Chris 18 Coles statement to demonstrate two (2) items in your 19 information base as of the time you made your statement 20 in July of 1996. 21 And I'm going slowly here because we're 22 spinning around with a -- with a few documents at once. 23 First, on what you knew about the damage 24 to the vehicle and second of all, the fact that Chris 25 Coles' statement doesn't allege that any guns were
2181 actually seized from the occupiers, okay? 2 A: Right. 3 Q: And -- and I'm interesting on 4 focussing on -- on both. 5 And if you look at the executive summary 6 which is at the first page, we see at the bottom of the 7 first page at 23:43 hours, 8 "Officers at the OPP checkpoint at Army 9 Camp Road reported hearing between 10 fifty (50) and hundred (100) rounds of 11 automatic gunfire coming from the 12 Ipperwash Army Camp area." 13 Now, if I can skip to the second page, in 14 the second paragraph, there's a reference to the fact 15 that detective staff sergeant was advised that the 16 occupiers would do their talking with guns. Do you see 17 that? 18 MR. DERRY MILLAR: Perhaps, My Friend -- 19 these are on different days and I don't -- for the 20 purposes of the record, it would be better if My Friend 21 would indicate for the -- 22 MR. MARK SANDLER: Sure, sure. 23 MR. DERRY MILLAR: The first reference 24 was September 5th, the second was -- 25 MR. MARK SANDLER: I'll do that, sir.
2191 MR. DERRY MILLAR: -- September 6th. 2 MR. MARK SANDLER: Thank you. 3 4 CONTINUED BY MR. MARK SANDLER: 5 Q: The first reference was September the 6 5th, the second reference is September the 6th to the 7 occupiers doing their talking with guns, and you see 8 that? 9 A: Yes, I do. 10 Q: And later on the same date, it's 11 reflected in the third paragraph: 12 "At approximately 19:55 hours, a 13 private citizen advised police officers 14 assigned to a checkpoint on Army Camp 15 Road that his vehicle had been damaged 16 by occupiers in the intersection of 17 Army Camp Road and the East Parkway 18 Drive." 19 A: Yes. 20 Q: Now, just stopping there for a 21 moment. So, if one actually looks at Chris Coles' 22 statement, it doesn't repeat the misinformation about 23 baseball bats being used to damage the vehicle, but it 24 says nothing about that issue, does it? 25 A: That's true.
2201 Q: Now, if you'd move ahead to page 3 2 and I'm just focussing on the last paragraph of page 3. 3 It says: 4 "A TRU observer, positioned on the west 5 shoulder area of East Parkway Drive 6 observed the bus and the car leave the 7 Park area and as the car came out he 8 saw two (2) muzzle flashes that he 9 believed was gunfire. 10 The gunfire came from the bush area 11 where the bus struck the dumpster. The 12 TRU member fired four (4) times at that 13 area. He observed the bus driving at 14 the CMU and observed what he believed 15 was a muzzle flash coming from the bus, 16 about halfway down the passenger side. 17 The bus travelled through the CMU 18 position approximately twenty-five (25) 19 metres and stopped. He watched the car 20 strike the police officers. 21 He observed a male occupier leave the 22 bush area where he had earlier observed 23 the muzzle flashes and move to the 24 southeast corner of the intersection of 25 Army Camp Road and the East Parkway and
2211 hid near a fence post. 2 He saw the car back up after it struck 3 the CMU officers." 4 And then skipping a line: 5 "The TRU member observed the occupier 6 shouldering what he believed to be a 7 rifle. This person is scanning the CMU 8 officer with the rifle. The TRU member 9 fires three (3) times at him, striking 10 him once." 11 And then skipping: 12 "The car reverses back from the CMU and 13 is about to drive forward when a 14 handgun is produced from the interior 15 of the car through the driver's window 16 and one shot is fired. 17 The car is fired at by two (2) TRU 18 members..." 19 And so on. Now -- and to be clear, I'm 20 really not interested in -- in litigating the exchange of 21 fire. I simply want to discuss in the context of July of 22 1996, what your information base was. 23 So, we see from Chris Coles' statement 24 that the information base that was available to you at 25 that point in time included information that the
2221 occupiers had fired at the police? 2 A: Yes. 3 Q: Am I right? 4 A: Yes. 5 Q: And -- and again, as I've indicated 6 earlier, Mr. Falconer suggested to you, and you agreed, 7 that that remained your information base, nothing had 8 changed when you provided the statement in July 24th of 9 1996. Am I right? 10 A: Correct. 11 Q: Now, so -- so when Mr. Falconer is -- 12 is talking to you about, well, this wasn't an armed 13 occupation because there was no basis to believe that the 14 occupiers had guns and that so it's completely different 15 than Gustafson Lake, I'm not interested in a retroscope 16 at this point, but your information base when the 17 statement was made, had certain parallels to Gustafson 18 Lake that didn't exist after Ken Deane was convicted. 19 Am I right? 20 OBJ MR. JULIAN FALCONER: I object, Mr. 21 Commissioner; that is completely, a) inconsistent with 22 the evidence and, b) with the questioning. 23 The questioning was directed to whether 24 weapons were seized at Ipperwash and I asked him in the 25 time period -- in the months, the ten (10) months that
2231 passed were any weapons seized by the police or the SIU? 2 And I asked him if there was any evidence 3 that the occupiers used weapons to occupy the Park, to 4 enter the Park and to occupy it. Those were all the 5 questions directed and the answers he gave. 6 What My Friend is doing is, it's fine for 7 him to now make suggestions that the muzzle flashes meant 8 something different -- 9 MR. MARK SANDLER: That's -- 10 MR. JULIAN FALCONER: -- and -- 11 COMMISSIONER SIDNEY LINDEN: That's not 12 what -- 13 MR. JULIAN FALCONER: -- that's not what 14 he's doing. You see, that's not what he's doing. 15 MR. MARK SANDLER: I'll rephrase the 16 question. 17 MR. JULIAN FALCONER: Thank you. 18 MR. MARK SANDLER: I -- I won't even 19 worry about what Mr. Falconer put to you. 20 COMMISSIONER SIDNEY LINDEN: Okay. Okay, 21 carry on. 22 23 CONTINUED BY MR. MARK SANDLER: 24 Q: As of July of 1996, your information 25 base included allegations from your own officers that
2241 they'd been fired on? 2 A: That's true. 3 Q: Right? And what I'm going to suggest 4 to you is, and I'm not going to embark on the debate 5 about whether they were fired on or not, but -- but what 6 happens is, that information base, in your mind, remains 7 the same until Ken Deane is convicted, right? 8 A: Correct. 9 Q: Because at that point as a 10 Commissioner of the OPP and respecting the justice 11 system, you have to accept what has been determined by 12 the Court and upheld on appeal. Am I right? 13 A: Yes, I do. 14 Q: And you've indicated to Mr. Ross the 15 basis upon which you do accept that, right? 16 A: Yes. 17 Q: And the acceptance is based upon the 18 judgment in the court, right? 19 A: Exactly. 20 Q: It's not as if you've done your own 21 independent analysis of the credibility of the various 22 officers and come to that determination? You respect the 23 system? 24 A: I do. 25 Q: Now --
2251 COMMISSIONER SIDNEY LINDEN: Just before 2 you go on, I just want to let know you're past -- way 3 past your time estimate. I just want to know if you're-- 4 MR. MARK SANDLER: I hope to be about 5 five (5) to ten (10) minutes. 6 COMMISSIONER SIDNEY LINDEN: Okay. 7 That's fine. 8 9 CONTINUED BY MR. MARK SANDLER: 10 Q: So -- so against that background and 11 again I -- I won't get into a debate on how similar or 12 how different Gustafson Lake was, but the information 13 base that existed at the time you made the statement was 14 such that you believed that the officers had been fired 15 on by those armed within the Camp or Park; am I right? 16 A: With my memory refreshed from reading 17 this, yes, it was. 18 Q: Okay. Now, so the second thing that 19 Mr. Falconer put to you, leave aside the comparisons with 20 Gustafson Lake, is that your statement neglected to 21 articulate that John Carson and others and yourself 22 regarded these people as not the kinds of people who 23 would typically fire on officers. 24 Do you remember that line of 25 cross-examination?
2261 A: I do. 2 Q: And again, I just want to look at 3 this time frame and as of this time frame the information 4 base was that the occupiers had shot at your officers and 5 had been armed in doing so; am I right? 6 A: Correct. 7 Q: Now, you articulated for Commissioner 8 Linden what the rationale was for -- for the statement 9 and some of the particulars in regard to -- to the 10 helicopter incident, in regard to some of the violence 11 that's described in there and in regards to Gustafson 12 Lake you described that you were being responsive to the 13 use of -- you were explaining the use of resources that 14 had been committed to Ipperwash? 15 A: Correct. 16 Q: Now going back to what I asked you 17 about earlier about what was out there in the public, how 18 did that relate -- the use of resources relate to what 19 was being said about the OPP, specifically in its use of 20 resources? 21 A: I'm -- I'm trying to recollect, but I 22 believe that the -- the public information was that this 23 had been a specific build-up to dislodge the occupiers 24 and I was trying to explain the rationale as to why this 25 equipment had been acquired.
2271 Q: So when we see at page 3, of the July 2 1996 statement, Exhibit P-612, that -- and I'm looking 3 at the fourth paragraph immediately after the Gustafson 4 Lake reference: 5 "We were made aware that RCMP officers 6 had been fired upon and they had been 7 saved from death or serious injury by 8 high-grade body armour. The RCMP had 9 available to them APC's on site for 10 rescue purposes. It was our belief, 11 based upon careful analysis of all 12 available information, that the same 13 safety concerns were present at 14 Ipperwash." 15 Do you see that? 16 A: Yes. 17 Q: And you were taken to something a 18 little bit later in here and if you look at page 5, Mr. 19 Horner took you to this and that was that: 20 "Much has been made of the military 21 equipment we requested from the 22 Department of National Revenue. [sic]" 23 And then Mr. Horner read you the portions 24 that follow. 25 COMMISSIONER SIDNEY LINDEN: The
2281 Department of National Defence. 2 MR. MARK SANDLER: National Defence. 3 Thank you, Mr. Ross. 4 5 CONTINUED BY MR. MARK SANDLER: 6 Q: So, putting those together, this 7 statement was directly responsive to that critique, which 8 you had described earlier, that the OPP had acquired 9 armoured personnel carrier for aggressive purposes 10 towards the occupiers wasn't it? 11 A: That was the intent. 12 Q: And we also can see that you 13 described the fact that people had alleged that two 14 hundred and fifty (250) officers had been brought to the 15 scene for aggressive action against the occupiers. 16 At page 4 of the statement we see -- which 17 leads me to another important area of misinformation I 18 would like to clarify, are a number of personnel. 19 "It has been consistently reported that 20 two hundred and fifty (250) officers 21 were moved into the area before the 22 shooting incident. 23 Let me make it clear there were never 24 two hundred and fifty (250) officers in 25 the Ipperwash area before the shooting.
2291 The number of officers increased 2 significantly only after the shooting 3 of Dudley George." 4 And then you go on to describe what had 5 existed prior to the shooting, right? 6 A: Yes. 7 Q: So that was directly responsive to 8 what was out there, alleging these two hundred and fifty 9 (250) officers showing up before the shooting, wasn't it? 10 A: Yes. 11 Q: And did you see correcting the record 12 on entering the Park, correcting the record on the use of 13 the armoured personnel carrier and correcting the record 14 on the number of officers that had been available before 15 the shooting as somehow impacting upon the quality of the 16 SIU investigation? 17 A: No, I did not. 18 Q: And SIU didn't either, from what 19 you've described. 20 A: Correct. 21 Q: Now it was alleged that what was 22 contained in the statement impacted upon stereotypical 23 notions about the First Nations community and, in 24 fairness, you reflected that you're always sensitive to - 25 - to that concern and -- and would be sensitive to that
2301 concern. 2 I simply point out, at page 6 of the 3 statement -- 4 MR. JULIAN FALCONER: Mr. Commissioner. 5 There is something I would like to put on the record. 6 Mr. Sandler, in his summaries of evidence, and he tries 7 to be -- I understand he's trying to be fair, we're all 8 trying to do a job, but he has consistently, when 9 referring to evidence that comes out, that he's trying to 10 address in re-examination, he will say, It was alleged. 11 In this case for example, the witness 12 agreed that it created that impression. So it is not 13 alleged. It is, you testified that this created this 14 impression; that would be a fair summary of the evidence. 15 In -- in response to my suggestion. But that -- it's not 16 an allegation, it's something the witness agreed to. 17 COMMISSIONER SIDNEY LINDEN: Okay. 18 MR. MARK SANDLER: The reason I framed it 19 that way is because when the Chris Coles statement was 20 shown to him, he acknowledged that he -- he misstated the 21 time frame involved and what he knew about the comparison 22 between Gustafson Lake and -- and Ipperwash. 23 So I'm not sure that the answers remained 24 valid to some of the points that My Friend took him to. 25 But I -- well we'll argue that.
2311 COMMISSIONER SIDNEY LINDEN: You've got 2 to concede the point and -- 3 MR. MARK SANDLER: We'll argue that. 4 COMMISSIONER SIDNEY LINDEN: Okay. 5 MR. MARK SANDLER: I won't get into 6 whether it's an allegation. 7 COMMISSIONER SIDNEY LINDEN: Okay. 8 9 CONTINUED BY MR. MARK SANDLER: 10 Q: Simply put, you want to avoid 11 stereotyping, right? 12 A: Yes. 13 Q: And at page 6, what you reflect is, 14 notwithstanding all that proceeds this: 15 "In closing let me say the dispute such 16 as the occupation of Ipperwash 17 Provincial Park are always difficult 18 for police agencies, the OPP had no 19 vested or directed interest in the land 20 claim or in removing the occupiers. 21 We're there to keep the peace, ensure 22 public safety and to uphold the laws. 23 As long as outstanding land claims 24 continue, the level of frustration for 25 all involved will continue to increase.
2321 It is this frustration level that 2 eventually leads to conflict and tragic 3 occurrences. 4 In order to avoid these problems it 5 must be dealt with at its roots by the 6 Federal Government as the Government 7 with a fiduciary responsibility to 8 First Nations people. 9 The OPP is working diligently with the 10 First Nations people to develop and 11 maintain open lines of communication to 12 avoid conflict such as Ipperwash again. 13 But the OPP is also calling on the 14 Federal and Provincial Governments to 15 also work with the First Nations people 16 to expedite a process to reduce 17 frustrations and tensions with respect 18 to land claims and other issues of 19 concern. 20 Finally, the OPP is grateful to all 21 communities both native and non-native 22 who have demonstrated patience, offered 23 support, and contributed to peace 24 throughout the last nine (9) months." 25 A: Yes.
2331 Q: Contributing to stereotyping? 2 A: I hope not. 3 Q: Thank you, sir, those are all my 4 questions for you. Oh, I'm sorry, there is one (1) area 5 that I meant to ask. 6 And I just want to clarify something 7 because at -- at various times in -- in your questioning 8 you were asked about whether the occupiers were armed and 9 you remember there was -- there was the dialogue about 10 the Ken Deane judgment and the implications of that. 11 I want to draw a distinction between 12 whether or not the occupiers used firearms in the 13 altercation with the police, and your evidence is clear 14 as to that and the basis upon which you've accepted that 15 they did not, and that's driven by the judgment, right? 16 A: Exactly. 17 Q: But there's another asp -- there's 18 another aspect which has been raised here and whether 19 apart from the use of firearms during the altercation 20 itself, the occupiers had access to or indeed had 21 firearms. 22 Were you speaking to that issue at all? 23 A: No. 24 Q: All right. Because I read to you, 25 for example, from Chris Coles' statement that described
2341 automatic gunfire that purportedly was heard within the 2 area controlled by the occupiers. There's been some 3 evidence about, We'll do our talking with guns, that you 4 saw and so on. 5 And again, I'm simply making the point 6 that you weren't speaking to the issue about whether they 7 had guns accessible to them? 8 A: No. 9 MR. DERRY MILLAR: Before -- well, Mr. 10 Ross has a -- 11 MR. MARK SANDLER: No, I'm not asking 12 anything else. 13 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 14 Ross...? 15 MR. ANTHONY ROSS: Can we just get that 16 one brushed off the record. As far as the automatic 17 firearms, Mr. Commissioner, there is no evidence of any 18 automatic firearms. 19 There was suggestions and brought forward 20 in the conversation with Fox that even explained two (2) 21 or three (3) people using semi-autos, whatever the event, 22 but there's nobody who can come forward and point at one 23 (1) First Nation individual who was part of any of that 24 firing process. 25 MR. MARK SANDLER: I --
2351 COMMISSIONER SIDNEY LINDEN: I don't 2 think he's suggesting -- 3 MR. MARK SANDLER: I wasn't alleging 4 whether or not there was automatic weaponry or not, I -- 5 COMMISSIONER SIDNEY LINDEN: Well, or 6 whether it was a First Nations person or -- 7 MR. MARK SANDLER: I was simply saying 8 that he wasn't speaking to that issue at all. 9 COMMISSIONER SIDNEY LINDEN: No, I 10 understand that. 11 MR. JULIAN FALCONER: Well, Commissioner, 12 that's my objection -- 13 COMMISSIONER SIDNEY LINDEN: Yes. 14 MR. JULIAN FALCONER: -- but my problem, 15 Mr. Commissioner is when someone's sitting down that 16 you're in opposition to, you generally shouldn't stop 17 them from sitting down. 18 But, Mr. Commissioner, my difficulty is 19 that when Mr. Sandler leaves the impression through the 20 witness that he didn't have that in mind, the access to 21 weapons, that actually ignores the Commissioner's -- the 22 former Commissioner's evidence on that. 23 I asked him questions about people in the 24 area being hunters and having access to weapons. I asked 25 him that specific question.
2361 COMMISSIONER SIDNEY LINDEN: No, that's 2 fine. 3 MR. JULIAN FALCONER: I directed his mind 4 to that and that all happened before he gave the other 5 answers. Unfortunately, Mr. Sandler's questioning seem 6 to leave the impression that this Witness didn't have 7 that in mind and, with great respect, the witness averred 8 his mind to that. 9 COMMISSIONER SIDNEY LINDEN: That's fine, 10 let's move on. 11 MR. MARK SANDLER: We'll argue it at a 12 later point. 13 COMMISSIONER SIDNEY LINDEN: Are you 14 finished now? 15 MR. MARK SANDLER: I'm done. 16 COMMISSIONER SIDNEY LINDEN: Thank you 17 very much, Mr. Sandler. 18 Mr. Millar...? 19 20 RE-DIRECT EXAMINATION BY MR. DERRY MILLAR: 21 Q: I have just a couple of questions. 22 Could I take you to Exhibit P-631 for a moment. That's 23 the Hansard issue that -- 24 COMMISSIONER SIDNEY LINDEN: Was put in 25 this morning.
2371 CONTINUED BY MR. DERRY MILLAR: 2 Q: Extract that came up this morning. 3 Do you have that, sir? 4 A: I don't have it right -- 5 Q: Perhaps we could get Exhibit P-631. 6 7 (BRIEF PAUSE) 8 9 Q: And could I take you to page -- on 10 the top it's -- I don't -- it's the May 25th, 1989 -- 11 well, we'll have to get a copy for the record that has 12 the Hansard pages at the top. 13 It's L018 and it's -- 14 COMMISSIONER SIDNEY LINDEN: My copy has 15 the pages at the top. I'm just looking to see if I've 16 made any marks on it. 17 MR. DERRY MILLAR: It's the tenth page 18 from the back, Mr. O'Grady, that'll be the easiest way. 19 COMMISSIONER SIDNEY LINDEN: I've made 20 some notations on my copy, or I'd give you my copy. 21 22 (BRIEF PAUSE) 23 24 THE WITNESS: I have a page that the 25 first two words at the top left-hand side say,
2381 "independently -- independent study." 2 3 CONTINUED BY MR. DERRY MILLAR: 4 Q: That's correct. And Mr. Falconer 5 took you to the -- a number of references to Mr. Runciman 6 on that page and Mr. Peterson, and he referred to, in the 7 very last reference, to Mr. Runciman and it reads -- for 8 the records, this was dated November 8th, 1978 9 And it deals with the policy of 10 communications between members of executive counsel and 11 key officials in the judicial system. 12 Do you see that reference? 13 A: Yes. Yes, I do. 14 Q: And My Friend, Mr. Falconer, read a 15 paragraph out with respect to the Attorney General and 16 the Solicitor General. 17 And do you -- were you familiar with these 18 guidelines, these November 8th, 1978, guidelines? 19 A: No, I was not. 20 Q: And -- and have you ever seen them? 21 A: I have not. 22 Q: And if memory serves me, in 1978 Mr. 23 Davis was the Premier? 24 A: There's reference to Mr. Davis here 25 as to being not --
2391 Q: As the Premier, that's right. 2 A: -- or being -- yes. 3 Q: So, that in -- as of September 1995 4 you had -- you had never seen these guidelines? 5 A: I had not. 6 Q: And can I take you to, just briefly, 7 to the -- Exhibit 482, the Executive Summary of Mr. 8 Coles. And the reference on the second page that My 9 Friend, Mr. Sandler, took you to, at approximately 19:55 10 hours: 11 "A private citizen advised police 12 officers assigned to a checkpoint on 13 Army Camp Road that his vehicle had 14 been damaged by occupiers in the 15 intersection of Army Camp Road and East 16 Parkway Drive." 17 Do you see that? 18 A: Do you have -- 19 Q: Oh, excuse me, it's Tab 102. 20 A: And that was page number -- 21 Q: Two (2). 22 A: Two (2). And it was paragraph 2? 23 Q: And the -- it's the third paragraph 24 down in the middle. 25 A: At approximately 9:55 hours, yes.
2401 Q: That's right. And at this point in 2 time, had you been advised by anyone that the occupiers 3 had not been armed with baseball bats in the sandy 4 parking lot? 5 A: I don't think so. 6 Q: And I note that Mr. Coles in this 7 document, in this executive summary, doesn't explain what 8 the quote, 9 "His vehicle had been damaged by 10 occupiers in the intersection of Army 11 Camp Road and East Parkway Drive." 12 And if I could take you to the first 13 Marshall report and that's at Tab 59 of the book in front 14 of you at Exhibit P-608, and if you could please turn to 15 the fifth page, the entry at the bottom. 16 And the first Marshall report was done on 17 February 3rd of 1996. And it appears at least at that 18 point in time, Mr. -- Inspector Marshall has simply 19 picked up the entry from Mr. Coles' September Executive 20 Summary because it's identical with respect to the 21 incident at 1955. 22 A: Yes, I see that. 23 Q: And do you recall whether, at this 24 point in time in February of '96, you had been advised 25 that the occupiers had not been armed with baseball bats?
2411 A: I don't recall. 2 Q: And lastly, and I -- I apologize 3 because I can't remember the date -- if you told us the 4 date, but if I could take you to Exhibit 102 and you 5 told us in-chief that the -- the -- after the first 6 report you got from Inspector Marshall that you sent him 7 back to do some more work? 8 A: Yes, I did. 9 Q: And we believe -- I believe we 10 identified that part of his work was part of Exhibit P- 11 482, starting after the first eleven (11) pages, that -- 12 where the work of Chris Coles? 13 A: Yes. 14 Q: And at the -- the seventh page of the 15 work of Mr. Marshall. 16 17 (BRIEF PAUSE) 18 19 COMMISSIONER SIDNEY LINDEN: What page 20 would that be on the copy I -- 21 MR. DERRY MILLAR: 18. 22 COMMISSIONER SIDNEY LINDEN: 18. 23 24 (BRIEF PAUSE) 25
2421 CONTINUED BY MR. DERRY MILLAR: 2 Q: It starts "16:12 hours" at the top. 3 And -- 4 A: I must have the wrong page -- my 18 - 5 - page -- 6 COMMISSIONER SIDNEY LINDEN: No, no, it's 7 a -- 8 MR. DERRY MILLAR: No, no, he's got a 9 different number -- 10 COMMISSIONER SIDNEY LINDEN: -- different 11 18. 12 MR. DERRY MILLAR: -- than you, sir. 13 THE WITNESS: Oh. 14 COMMISSIONER SIDNEY LINDEN: These are 15 hand marked numbers that were done. 16 17 (BRIEF PAUSE) 18 19 COMMISSIONER SIDNEY LINDEN: It looks 20 like page 8 on the copy you have there. 21 22 (BRIEF PAUSE) 23 24 CONTINUED BY MR. DERRY MILLAR: 25 Q: Yes, and...
2431 (BRIEF PAUSE) 2 3 CONTINUED BY MR. DERRY MILLAR: 4 Q: Do you recall when Mr. -- Inspector 5 Marshall provided you with his second and longer 6 chronology? 7 A: No, I'm not sure, sir. 8 Q: And it was only at this point that 9 the chronology is corrected to show that it was simply a 10 rock that was thrown? 11 A: Yes. 12 Q: Okay. Thank you, those are my 13 questions. 14 MR. JULIAN FALCONER: Excuse me, I rise 15 on this matter because Mr. Sandler has raised it 16 improperly and your Counsel has raised it. 17 I think for the sake of completeness of 18 the record and this Witness' account, because he's saying 19 he's having difficulty remembering it, on August 20 -- on 20 August 17th, 2005, former Chief Coles before you, 21 testified that he learned of the rock throwing in the 22 early morning hours of the 7th of September at the 23 briefing. 24 He learned of that at 2:00 a.m. Well, the 25 reason this is relevant is that Mr. -- Mr. Millar has
2441 canvassed with the Witness based on when the information 2 got to Coles and -- 3 MR. DERRY MILLAR: No. 4 COMMISSIONER SIDNEY LINDEN: No. 5 MR. JULIAN FALCONER: -- in turn ends up 6 in the Marshall report. 7 MR. DERRY MILLAR: No, no, it did not -- 8 the information is when they -- I specifically wanted to 9 know -- I'm not asking about what Coles did -- 10 COMMISSIONER SIDNEY LINDEN: I didn't 11 think you were. 12 MR. DERRY MILLAR: -- and what Coles 13 knew. 14 COMMISSIONER SIDNEY LINDEN: I didn't 15 think you were, as well. 16 MR. DERRY MILLAR: In Coles report it 17 didn't have the base -- it didn't make it clear what the 18 damage was and talked about -- 19 MR. JULIAN FALCONER: That -- 20 MR. DERRY MILLAR: -- occupant. No, 21 just -- 22 MR. JULIAN FALCONER: Sorry, I apologize. 23 MR. DERRY MILLAR: And I asked him, had 24 anyone told him -- 25 COMMISSIONER SIDNEY LINDEN: Meaning
2451 Commissioner O'Grady. 2 MR. DERRY MILLAR: O'Grady -- Mr. 3 O'Grady, at that point, that it wasn't baseball bats. 4 COMMISSIONER SIDNEY LINDEN: Well, that-- 5 MR. DERRY MILLAR: And then I took him to 6 the Marshall report. I appreciate what Chief 7 Superintendent Coles said -- 8 COMMISSIONER SIDNEY LINDEN: Yes. 9 MR. DERRY MILLAR: -- but the -- and it's 10 in -- and this may be -- but what I'm trying to find out 11 is what anybody told Mr. O'Grady and that's what I've 12 been asking. 13 MR. JULIAN FALCONER: No, but and my 14 concern for the record and I'm not being critical of Mr. 15 Millar or Mr. Sandler, my concern for the record is that 16 since the Witness has testified, he met substantively 17 with Chief Coles in later September, and got a briefing, 18 and the mere fact that it's not expressly in the report, 19 in circumstances where Chief Coles knew of the rock 20 throwing incident based on Chief Coles' evidence. 21 It's at page 35 -- page 70 of the 22 transcript of August 17, 2005 in answer to Ms. Esmonde's 23 questions. 24 In view of that, I'm simply encouraging 25 Mr. Millar in the circumstances to put Chief Coles' level
2461 of knowledge based on the September 7th briefing to this 2 Witness to see if that refreshes his memory, that's all. 3 4 CONTINUED BY MR. DERRY MILLAR: 5 Q: The -- you met with Chief 6 Superintendent Coles in the fall -- in -- I believe it 7 was September 19th and then again on September 27th? 8 A: Yes. 9 Q: Did Chief Superintendent Coles advise 10 you that he had been -- he had learned on the morning of 11 September 7 that the car that had been damaged had been 12 damaged by a rock thrown by a -- one (1) of the persons 13 in the sandy parking lot? 14 A: I can't recall. 15 Q: And -- thank you, those are my 16 questions. 17 COMMISSIONER SIDNEY LINDEN: Thank you 18 very much. 19 MR. DERRY MILLAR: And -- 20 COMMISSIONER SIDNEY LINDEN: I'm going to 21 take a short break now. 22 MR. DERRY MILLAR: -- and, perhaps, 23 before we -- we go I'd like to thank you very much, Mr. 24 O'Grady, for attending and assisting the Commission in 25 its work and for being here for the number of days that
2471 you've been here. Thank you. 2 COMMISSIONER SIDNEY LINDEN: I'd like to 3 thank you as well on behalf of the Commission. Thank you 4 for giving us the benefit of your experience and your 5 evidence. Thank you. 6 7 (WITNESS STANDS DOWN) 8 9 MR. DERRY MILLAR: And, perhaps, before 10 we go to the -- just have the break, I just wanted to -- 11 well, I'll raise that after the break. 12 COMMISSIONER SIDNEY LINDEN: Yes, we'll 13 take a break. 14 MR. JULIAN FALCONER: The -- the only 15 other matter unrelated to -- is Mr. Millar -- frankly I - 16 - I -- I'd requested it so I was very happy that he did, 17 asked about the guidelines, he probably was going to 18 anyway out of the -- out of the Hansard issue, but I'm 19 wondering, regardless of whether this Witness, Mr. 20 O'Grady saw what I will call the Davis Guidelines. 21 COMMISSIONER SIDNEY LINDEN: The ones 22 that were done in the... 23 MR. JULIAN FALCONER: That's right. It's 24 obvious they were in operation at the time. You have a 25 critic relying on them, you have a Premier relying on
2481 them in 1991, four (4) years before this incident. 2 It seems to me, with great respect, since 3 we know there were additional new rules between '91 and 4 '95, would it be possible that some effort could be made, 5 perhaps, through the offices of Ms. Twohig or otherwise, 6 to see if we could obtain the Davis Guidelines? 7 MR. DERRY MILLAR: We've already 8 addressed that issue with Ms. Twohig and her associate to 9 ascertain if those guidelines can be located. And so 10 that's already underway. It's -- we can only -- everyone 11 can only do some much. We -- 12 COMMISSIONER SIDNEY LINDEN: You'll 13 report on that when you find out what the story is? 14 MR. DERRY MILLAR: That's right. We got 15 the Hansard this morning. They refer to the guidelines. 16 We're trying to find the guidelines. 17 COMMISSIONER SIDNEY LINDEN: Thank you 18 very much, Mr. Millar, Ms. Twohig. Thank you. We'll 19 take a short break now. 20 THE REGISTRAR: This Inquiry will recess 21 for fifteen (15) minutes. 22 23 --- Upon recessing at 2:39 p.m. 24 --- Upon resuming at 2:55 p.m. 25
2491 THE REGISTRAR: This Public Inquiry is 2 now resumed, please be seated. 3 MR. DERRY MILLAR: Thank you, 4 Commissioner. Our next witness is Mr. Scott Hutchison 5 who's going to be led by Ms. Hensel. But before we start 6 I wanted to simply canvass -- cover an issue and advise 7 everyone that we had -- we're alert to this issue, it's 8 been raised with us by some of the parties with respect 9 to the fact that Mr. Hutchison is now a lawyer at 10 Stockwood Spies. 11 He was a lawyer -- he joined Stockwood 12 Spies in April of 2005. When he joined Stockwood Spies 13 an institutional barrier was in -- put in place because 14 of the potentiality that he might be a witness at this 15 Inquiry and he -- so the institutional barrier was put in 16 place. 17 I believe in -- by April, or in April, Mr. 18 Ian Smith who's the lead counsel for Mr. Runciman who's 19 from the firm Fenton and Smith (phonetic) came on the 20 record to replace Nancy Spies who was appointed to the 21 Superior Court of Ontario. And Mr. Smith is at his own 22 firm Fenton and Smith, not Stockwood Spies. 23 He uses as a junior -- a lawyer, Alice 24 Mrozek at Stockwood Spies, but who has had nothing to do 25 with Mr. Hutchison's evidence, nor has she -- she's been
2501 part of the institutional barrier between Mr. Hutchison 2 and this file. 3 COMMISSIONER SIDNEY LINDEN: Thank you, 4 Mr. Millar. Yes, Ms. Hensel...? 5 THE REGISTRAR: Good afternoon, sir. Do 6 you prefer to swear on the Bible -- 7 MR. SCOTT Hutchison: I'll swear. 8 THE REGISTRAR: -- or affirm? 9 MR. SCOTT Hutchison: I'll swear, thank 10 you. 11 12 SCOTT COLIN Hutchison, Sworn; 13 14 MS. KATHERINE HENSEL: Good afternoon, 15 Commissioner. Good afternoon Mr. Hutchison. 16 THE WITNESS: Good afternoon. 17 18 EXAMINATION-IN-CHIEF BY MS. KATHERINE HENSEL: 19 Q: If we could begin by taking you to 20 Tab 1 of the binder in front of you? 21 A: Yes, thank you. 22 Q: The document that appears there, is 23 that your curriculum vitae? 24 A: It is. 25 Q: Okay. And for counsel's reference
2511 that document was distributed electronically some time 2 last week. And if we could get that document entered as 3 the next exhibit. 4 THE REGISTRAR: P-633, Your Honour. 5 COMMISSIONER SIDNEY LINDEN: P-633. 6 7 --- EXHIBIT NO. P-633: Curriculum Vitae of Scott C. 8 Hutchison. 9 10 CONTINUED BY MS. KATHERINE HENSEL: 11 Q: Just turning to your CV, Mr. 12 Hutchison, I see that you graduated from Osgoode Hall Law 13 School in 1987, is that correct? 14 A: That's right. 15 Q: Okay. And you were called to the Bar 16 in Ontario in 1989? 17 A: That's right. 18 Q: And you were counsel at the Crown Law 19 Office, Criminal, for the Ministry of the Attorney 20 General of Ontario from 1989 to 2005? 21 A: That's right. 22 Q: All right. And was that April of 23 2005? 24 A: April 17th -- April 11th, 2005. 25 Q: All right. Thank you, sir. And can
2521 you just describe for us in general terms what your 2 duties were while with the Ministry of the Attorney 3 General? 4 A: I occupied a number of different 5 positions when I was there. My core responsibilities as 6 counsel of the Crown Law Office, Criminal would be to 7 take carriage of criminal appeals for the Court of Appeal 8 in the Supreme Court of Canada; to provide legal advice 9 to police officers in the course of investigations; to 10 take carriage of certain special prosecutions that would 11 be the responsibility of the Crown Law Office, Criminal. 12 During my time at the Ministry, I was also 13 cross pointed or cross positioned. At one time I was a 14 special counsel to the Assistant Deputy Attorney General 15 and I was involved in a number of policy projects there. 16 And in 1999 to I think, 2002, I was the 17 director for something called -- or a director for 18 Integrated Justice and Information Technology which it 19 was really just to be involved on behalf of the Criminal 20 Law Division of the Ministry in a large technology 21 project that government had going at that time. 22 Q: Okay. And you are currently a 23 partner with the firm Stockwoods. 24 A: That's correct. 25 Q: Stockwoods LLP?
2531 A: That's right. 2 Q: Thank you. And you have been a 3 partner there since April of 2005? 4 A: That's right. 5 Q: Okay. Turning now to your 6 involvement with Aboriginal issues, can you describe for 7 us your first involvement on a professional basis with 8 Aboriginal -- or issues affecting Aboriginal people in 9 the Province of Ontario? 10 A: I -- I believe it was -- came to me 11 through a couple of cases that I did dealing with the 12 relationship between certain claims of Aboriginal rights 13 in relation to gambling at the Shawnigan First Nation. 14 That proceeded through a number of criminal cases that 15 made the way up through the system. 16 I developed a familiarity with some of 17 those issues in that context and became sort of defacto - 18 - I won't say expert but person that people might look to 19 simply because I had that experience based on the Jones 20 and Pamajewon litigation. 21 If people had an Aboriginal situation that 22 had some criminal element to it, they might look to me 23 for advice or assistance. And similarly if people on the 24 criminal side had an Aboriginal issue arise, they might 25 look to me for some advice or assistance.
2541 And it was in that context that I had 2 slightly more formal roles. First of all with respect to 3 -- and I can't remember the exact order in which these 4 things happened. But a body that was sort of created -- 5 the Aboriginal Issues Group which was really a forum to 6 co-ordinate some policy within -- I believe it was just 7 within the Ministry of the Attorney General and as well 8 with the Aboriginal Emergencies Committee, sometimes 9 known as the Blockades Committee. 10 Q: All right. Just taking you back for 11 a moment. The process you're describing in terms of your 12 developing expertise or your body of knowledge with 13 respect to these Aboriginal -- or issues affecting 14 Aboriginal people, what was the timeframe that would have 15 occurred in? 16 A: My recollection is that the first 17 Jones and Pamajewon litigation was in '91. 18 Q: Hmm hmm. 19 A: And so I think that the Supreme Court 20 of Canada case was in '91, but the Court of Appeal 21 decision was in '90. 22 Q: Hmm hmm. 23 A: I'd obviously defer to any record 24 with respect to that and then the -- the later litigation 25 would have been in the mid '90's. I couldn't tell you
2551 off the top of my head, I'm sorry. 2 Q: Okay. Okay, I understand that you 3 also sat on a committee on interim enforcement policies? 4 A: I -- I was involved in a group that 5 was dealing -- providing advice on -- on the interim 6 enforcement policy that was developed under the NDP 7 government -- 8 Q: Hmm hmm. 9 A: I don't know if it ever was formally 10 constituted as a committee with a name as opposed to just 11 a group of officials who met and tried to hash out the 12 issues, but certainly I was involved in a group that had 13 that responsibility. 14 Q: Okay. And what was the timing of 15 your involvement with that group? 16 A: Beyond telling you that it was in -- 17 at some point under the -- the NDP government, I couldn't 18 tell you, I'm sorry. 19 Q: Okay. So that would have been prior 20 to June of 1995? 21 A: Oh certainly, yes. 22 Q: Okay. And the Aboriginal issues 23 group that you described with respect to litigation 24 issues with the Ministry of the Attorney General, do you 25 recall what the time frame was for your involvement with
2561 that particular body? 2 A: My recollection is that it -- it -- 3 my involvement started at the time of the -- the first 4 Jones Pamajewon litigation in the very early '90's. And 5 it was a group. 6 No individuals were formally assigned to 7 that group in the sense that that was their home 8 position, but they -- it was recognized that their 9 responsibilities would include this sort of policy 10 responsibility, the co-ordinating policy related to 11 Aboriginal issues as they might arise in different pieces 12 of government litigation? 13 The co-ordinator, and I think actually 14 co-ordinator might actually have been his title, was Shin 15 Imai and he really was the person who served as, like, if 16 you like, as the hub around which policy advice was 17 organized. 18 Q: Okay. And was that body a -- was it 19 an Interministerial Committee, or was it limited to -- 20 A: My recollection is that -- 21 Q: -- people? 22 A: -- it was a -- a group of lawyers and 23 that those lawyers might have had their working homes in 24 different ministries but that they were technically 25 seconded, legal counsel who were formally employees of
2571 the Ministry of the Attorney General. 2 Q: Okay. 3 A: So, for example, legal Counsel from 4 MNR, legal -- from the Ministry of Natural Resources, 5 legal Counsel from the Solicitor General who formally 6 report to the Attorney General but whose home office is 7 with a particular ministry. 8 Q: Okay. And would any members of 9 political staff ever attend committee meetings for that 10 committee? 11 A: It wouldn't be unheard of, but I 12 don't frankly recall them ever attending. It wouldn't be 13 something that would necessarily have been the kind of 14 event that you would remember. 15 Q: All right. Okay. We're going to 16 turn now, Mr. Hutchison, to some matters relating to the 17 organization of the Provincial Government and the civil 18 service, in particular. 19 Can -- you were with the civil service 20 from 1989 to 2005 -- 21 A: That's true. 22 Q: -- you testified? Okay. What, to 23 your knowledge, is -- are the respective roles of members 24 of political staff and minister's staff? 25 A: If you think of the Minister as
2581 sitting at the top of two (2) distinct reporting lines. 2 On the one side you have the civil service side, which is 3 really the entire bureaucratic infrastructure of the 4 Ministry. 5 There's a discrete body of reporting 6 authority up through the civil service, normally through 7 individual officials. They would report, normally, to a 8 director or a supervisor who reports to a director. 9 The director reports to an assistant 10 deputy in the context of the Ministry of the Attorney 11 General to Assistant Deputy Attorney General, the ADAG 12 then reports to the Deputy and the Deputy then provides 13 advice to the Minister. 14 That's on one side. On the other side, 15 there's a much small group, the Minister's political 16 staff. They are organized in whatever the Minister 17 chooses to have them organized and they provide advice, 18 often advice on the same issues, but their perspective is 19 not necessarily the same as the perspective that's 20 provided by civil service staff. 21 They obviously integrate political 22 considerations into the work that they do, quite 23 legitimately; that's their function in terms of they 24 providing the Minister with advice and how to perform his 25 duties or her duties in a way that's -- that is
2591 politically advantageous to the Minister. 2 Q: Okay. All right. And what is the 3 appropriate or accepted manner for these two arms that 4 you've described to communicate with each other? 5 A: Well, it's important to remember that 6 -- that the political staff really have no authority with 7 respect to civil service staff. In theory, if somebody 8 on the political side wants to request work be done, they 9 should go through the Deputy Attorney General and if the 10 Deputy considers it appropriate the Deputy will direct 11 that that work be done by the appropriate person in the 12 appropriate branch within a particular ministry. 13 Even the Chief of Staff for the Minister 14 on the political side can't ask directly for work to be 15 done. Obviously, this idea of reporting going all the 16 way up and then all the way down is impractical in many 17 circumstances and so it's not uncommon for political 18 staff to have contact with the official's level. 19 The key to making sure that that contact 20 remains appropriate is that the Deputy, or the 21 appropriate Assistant Deputy, is aware of the fact that 22 communication is taking place. And depending on how that 23 communication is initiated, it's either the 24 responsibility of the -- the civil servant to report up 25 that they've been approached either for a request for
2601 information or a request for some action to be taken, or 2 for the political staff to contact the Deputy and 3 indicate that they're going to be making such an 4 approach. 5 This idea that -- that the political staff 6 are distinct from the -- from the Minister is a 7 significant one and one that everybody takes very 8 seriously to the point where, if you actually go to the 9 eleventh floor of the Ministry of the Attorney General 10 physically, the only way to get to the political side is 11 to walk through the Deputy's side. 12 So it's -- it's actually physically 13 impossible for a civil servant to walk over to the 14 Minister's side unless they, in fact, walk through the 15 Deputy's office area. 16 Q: So, formally, at any rate, the Deputy 17 Minister is -- is the gatekeeper in terms of access? 18 A: Yeah. And as I said, at a practical 19 level. Not every question goes through the Deputy or the 20 Deputy's office. 21 So, for example, when I was working as a - 22 - attached to the Assistant Deputy Attorney General's 23 office it was not uncommon for somebody from the 24 Minister's staff to phone and say, can you find out when 25 such-and-such is going to happen, a particular -- when is
2611 this case going to be back in court? 2 Not a question about what's going to 3 happen on that day, not a question or -- or suggestion of 4 direction about what should happen on that day, but 5 simply information so that, for example, the Minister 6 needs to be prepared to deal with questions that might 7 arise. It's going to be in the media on a particular 8 day, can you tell me when it's going to be back in court; 9 that kind of question. 10 I don't think that I would -- if, for 11 example, if such an Inquiry came along, I wouldn't have 12 reported that up because it was really of no consequence. 13 There's no danger of it being misconstrued, but if a more 14 serious question came along I might well say, here's -- 15 well, here's my answer for now and I'm going to talk to 16 the ADAG about this and then the ADAG could make a 17 determination as to whether that was something that 18 needed to be reported up further. 19 Q: Okay. Now keeping in mind what 20 you've described in terms of the -- the reporting 21 relationships or appropriate reporting relationships, 22 what are the risks attendant on these communication 23 structures and relationships not being adhered to? 24 A: I suppose there's two (2) things. 25 One (1) that the process of having a reporting structure
2621 is normally intended to ensure the development of 2 coordinated, coherent, integrated policy with respect to 3 a broad range of issues. Individual members of the civil 4 service have expertise in their own area, they have a 5 depth of knowledge in that area, but they may not 6 appreciate how a particular issue fits into the broader 7 mandate of the Ministry or the broader mandate of 8 government in general. 9 And it's important, to the extent that 10 advice goes up, that it pass through these different 11 layers, if you like, from -- from staff to Director to 12 Assistant Deputy to Deputy, so that this process of -- of 13 -- of integration can take place. 14 And -- and really what you end up with is 15 a -- is a better policy product at the end of the 16 process, assuming that these reporting lines are adhered 17 to. So the first concern is to ensure that sort of a 18 coherent body of advice makes its way up to the Minister. 19 The other concern, obviously, because -- 20 and -- and if you think about it, you could probably 21 phone fifty (50) different civil servants and get fifty 22 (50) different opinions; that's not helpful to the 23 Minister, that's not going to be helpful to the 24 development of a coherent policy in any particular area. 25 This process, this structure, is intended
2631 to ensure that that coherence is created. 2 The other concern, obviously, is that a 3 phone call or an inappropriate contact from a person -- 4 somebody on the political side to somebody on the civil 5 service side could be perceived as an attempt to give 6 them direction or it could result in inaccurate 7 information making its way up to the Minister. 8 So that while on the one hand you have a 9 policy being developed through this normal reporting 10 structure, but by virtue of a phone call to somebody 11 lower on the pyramid this person on the Minister's staff 12 side has, if you like, sort of pulled out one little 13 piece of that -- that sort of overall policy project and 14 that little piece isn't really reflective of the coherent 15 and more refined product that the Minister would benefit 16 from. 17 Q: Thank you. And are political staff 18 made aware of the relationships you're describing and 19 those structures? 20 A: I know that when staff come in, 21 they're given a briefing with respect to how they should 22 interact with people on the civil service side. 23 And certainly at the Ministry of the 24 Attorney General, that was always emphasized because, of 25 course, the Minister -- the Attorney General is not just
2641 your average minister. 2 He has specific functions that have both a 3 constitutional and a quasi-judicial role. He's the chief 4 prosecutor of the Province. All criminal prosecutions 5 are undertaken under his direction at the very least, 6 notionally. 7 So there's a particular importance placed 8 on that on -- in the context of the Ministry of the 9 Attorney General. I couldn't speak to what happens in 10 other ministries but I know that everybody is very much 11 alive to the need to have, if you like, boundaries with 12 respect to the nature of the relationship between 13 political staff and civil service staff within the 14 Ministry of the Attorney General. 15 Q: And are you aware of any similar 16 concerns with respect to the Solicitor General and the 17 Ministry? 18 A: I certainly couldn't tell you how 19 things are structured on that side. I know that, in my 20 own dealings, that people are always very much alive to 21 the fact that -- to the extent that they have a policing 22 and public protection function and a criminal 23 investigation function that the police occupy a unique 24 role. They're not mere civil servants, they're not mere 25 employees. They occupy -- occupy a distinct office that
2651 has a constitutional status of its own. 2 They're not merely part of the executive 3 when they're performing those functions and everybody's 4 very much alive to the need to preserve for them their 5 own independent exercise of discretion as people with a 6 distinct legal authority. 7 Q: Okay. And do similar particular 8 concerns arise with respect to the roles of Crown 9 Attorneys, for example? 10 A: Sure, absolutely, and in fact it's -- 11 that's probably, in my own experience where it's most 12 significant in the sense that it would be, I would say, 13 unheard of for somebody from the political staff to ask 14 for anything more than, you know, sort of when is this in 15 Court next and perhaps what kinds of things can happen on 16 that day. 17 So for example, if something was coming 18 back and there was going to be a bail hearing, what can 19 happen on that day? 20 Don't tell me what your position is going 21 to be, don't tell me what you think will happen, just 22 give me a sense of what sorts of things can happen. 23 Sort of, if you like, kind of a flat 24 affect explanation of what the strict legal options are 25 on any particular occasion.
2661 Q: Okay. All right. Turning now to the 2 Interministerial Committee on Aboriginal Emergencies, 3 which we've heard referred to also as the 4 Interministerial Officials Committee on Aboriginal 5 Emergencies and the blockades Committee. 6 You've testified that you were a member of 7 that Committee? 8 A: I was. 9 Q: Okay. And the time frame again for 10 your involvement? 11 A: I don't have a recollection or a note 12 of being involved significantly before 1995. If there's 13 a record of me being involved before that, I'd certainly 14 defer to that. 15 The only meetings with the Committee that 16 I recall going to are the -- the two (2) on the 6th and 17 the 7th of September. 18 I may well have provided telephone advice 19 on another occasion or provided information to be folded 20 into some kind of briefing document. 21 But I don't recall it being a committee 22 that I had a lot of involvement in. 23 Q: Okay. And what was your 24 understanding of the role of that Committee? 25 A: It -- it was principally to co-
2671 ordinate the formulation of policy to assist in dealing 2 with, first of all, in planning for Aboriginal 3 emergencies as they may arise. But also to co-ordinate 4 the advice process that would happen within government. 5 These are especially challenging issues 6 because they always involve a variety of ministries and 7 indeed often involve ministries with very special 8 constitutional or governmental responsibilities. 9 So you've got the Ministry of the Attorney 10 General, Solicitor General, Ontario -- ONAS and whatever 11 the line ministry is that's directly involved. Sometimes 12 it was the Minister of Transportation, sometimes it was 13 Ministry of Natural Resources. 14 This was a body that was intended to co- 15 ordinate the formulation of advice to government. It 16 wasn't a decision making body. It didn't decide how 17 things were going to happen. It was really a forum at 18 which officials would come together. They would try to 19 develop a consensus with respect to the recommended 20 advice. 21 But it certainly wasn't a forum where 22 people sort of came and made decisions and then -- and 23 direction went out. Because you have to remember what -- 24 what you've got at that meeting is one tier in that 25 policy formulating process that I've described.
2681 And so staff would attend, I would attend 2 on behalf of the Criminal Law Division of the Ministry of 3 the Attorney General, there were other lawyers there who 4 would represent the civil division. Some lawyers would 5 be there who were seconded Legal Services with other 6 ministries. 7 People would discuss the available 8 options. If a consensus could be reached people would go 9 back and they would give their advice, based on the 10 consensus that had been reached. 11 Sometimes people couldn't reach a 12 consensus. And if that were the case, you would go back, 13 you would say, here's what -- sort of where the committee 14 was, what the issues were, how the options were being 15 talked about, our recommendation to Minister X is to do - 16 - to take this course of action. You should know that 17 it's quite possible that another minister will be 18 receiving different advice. 19 And as it works its way up, it will be 20 resolved at the cabinet level or if not necessarily at 21 the cabinet level, certainly as between the Ministers 22 responsible for ultimately giving direction as to what 23 steps should be taken. 24 Q: Okay. And how did you come by the 25 understanding that you described your own understanding
2691 of the role of the committee? 2 A: To be honest I can't tell you the 3 specific document that I looked at. I know that that's 4 certainly what I would expect the committee like that to 5 do. It would be very unusual for a committee like that 6 to actually have the authority to make a decision. 7 Ordinarily the kinds of things that that 8 committee was dealing with would be issues that would 9 have to be addressed at some -- at least at some level 10 above the people who were at the committee. 11 My recollection is that the most senior 12 person at the committee was at the director level and 13 that this was -- these were the sorts of decisions that 14 would normally be made, at least at the ADAG level or at 15 the deputy level. 16 Q: Okay. 17 A: So again, what the committee would do 18 is develop options. I mean the way -- the way decisions 19 are made in government is that that staff develop -- 20 civil service staff develop options. They'll often, in 21 fact almost always have a recommended option, but they 22 develop options and they place those options before the 23 appropriate person to make a decision. 24 Sometimes the appropriate person's a 25 deputy. Sometimes the appropriate person is a minister.
2701 The options are presented, the pros and cons are set out 2 and then it's ultimately up to the person responsible for 3 deciding to give some kind of direction. And then 4 direction flows back down the same reporting chain. 5 Q: Okay. And how did -- how did you -- 6 first of all, how did you come to be on that committee? 7 A: My -- my best recollection is that I 8 was asked by either my director at the time who was 9 Murray Segal, he was the director of the Crown Law 10 Office. I was either asked by him or I may have been 11 asked by Michael Code (phonetic) who was the Assistant 12 Deputy Attorney General at the time, to go and assist 13 because there was some request for somebody to provide 14 sort of the criminal backdrop in terms of how that fit 15 into how these issues were being addressed. 16 Q: Okay. So that was your role on the 17 committee, was to provide -- 18 A: To -- to the extent I was asked to 19 provide some sense to members of the committee as to what 20 -- what the criminal law said to any particular situation 21 that would be presented. 22 So, the question might come up, here's 23 what's happening at this particular situation. Is there 24 an offence made out in these circumstances? 25 If these facts are true, would an offence
2711 be made out? I would provide a legal opinion with 2 respect to that. 3 What options are available? To the extent 4 that the criminal law speaks to it, how does the criminal 5 law direct different actors in this situation to behave? 6 Do the police have the right to make an 7 arrest? If they do, what are the circumstances that have 8 to exist before that right to arrest arises? What are 9 the consequences if an arrest is made? 10 Fairly straightforward matters in terms of 11 the criminal law, but not necessarily the sorts of things 12 that people would just naturally or intuitively know or 13 appreciate. 14 Q: Okay. Okay. You mentioned that -- 15 first of all, if I could turn you to Tab 5 of the 16 documents in the book in front of you. 17 A different version of that same document 18 has been entered. It's as Exhibit P-498, if you could 19 turn to the third page. 20 A: The appendix? 21 Q: That's right. 22 23 (BRIEF PAUSE) 24 25 Q: Actually the first page, I'm sorry.
2721 Are you familiar with that particular document? 2 A: I certainly don't have any 3 recollection of having seen it. 4 Q: Hmm hmm. 5 A: I'm not saying I haven't seen it, I'm 6 just saying I don't remember seeing it. 7 Q: Hmm hmm. 8 A: It's entirely possible that it was 9 provided to me at some time, but besides preparing for 10 today, no. 11 Q: Okay. But you have reviewed that 12 document? 13 A: I've had a chance to look at it this 14 morning, yes. 15 Q: Okay. Inquiry Document 1012232. I'm 16 sorry, actually it's 1012287. 17 A: Yeah, that's the one I have. 18 Q: Yeah. There's a couple of different 19 versions of it in the database of different dates. 20 21 (BRIEF PAUSE) 22 23 Q: If you could turn to the appendix 24 section of that document. 25 A: Okay.
2731 (BRIEF PAUSE) 2 3 Q: You'll see on the first and -- I'm 4 sorry, the second page of the appendix at point 11: 5 "The Committee will have discretionary 6 powers to: 7 a) define problems; 8 b) agree to a negotiating agenda with 9 all parties; 10 c) make decisions on third party 11 intervention; 12 d) appoint a facilitator, negotiator; 13 e) involve the Indian Commission of 14 Ontario; 15 f) second Ontario public servants on an 16 emergency basis; and 17 g) recommend that legal action be 18 taken." 19 Now, you've already described the various 20 -- the function of the Committee in terms of its -- that 21 it's not a decision making body but that there is some 22 agency, from your description, associated with the 23 Committee, some limited -- can you comment on that 24 particular point in relation to these apparent decision 25 making, not really powers, but.
2741 A: Okay. Obviously not every decision 2 or exercise of authority -- 3 Q: Hmm hmm. 4 A: -- makes its way all the way to the 5 top of the pyramid and so -- 6 Q: Hmm hmm. 7 A: -- the Minister or the Deputy will 8 delegate to the appropriate level at where a decision 9 making authority of some kind. 10 While I don't recall seeing this 11 document -- 12 Q: Hmm hmm. 13 A: -- prior to or at the time I was 14 involved in the committee, these were the kinds of 15 decisions that, to the extent they involve actual 16 decisions, would be, you know, not uncommon to be made at 17 that level. 18 Q: Hmm hmm. 19 A: These are the sorts of things that 20 you would expect somebody at the director level to do and 21 certainly a collection of people who represented 22 different ministries to do. 23 These would be done, again, it's not the 24 sort of thing, for example, where the committee would 25 take a vote --
2751 Q: Hmm hmm. 2 A: -- if there's a hotly contested issue 3 and the vote was, you know, 9 to 11 that they would take 4 the course of the eleven (11) that voted for it. 5 It was a committee that worked on a 6 consensus basis and if there was any kind of serious 7 debate about any of these things being done, I would have 8 expected it to be escalated. 9 Most of these -- these sorts of decisions 10 that are referred to here would be made on consensus and 11 there really wouldn't be any value added in moving it up 12 the line, because realistically, the only option that 13 anybody would look at would be the kind of the option 14 that the committee would have recommended. 15 Significantly, I suppose, from my own 16 perspective, coming at it principally from the 17 perspective of somebody giving legal advice, the fact 18 that g) is specifically isolated as being one where it's 19 the power to recommend rather than instruct, that's 20 certainly the perspective I took to the committee. 21 Q: Thank you. Okay. But, in terms of 22 the -- the members themselves and who they took -- the 23 members of the Committee, who they took direction from, 24 who would that be in the end, ultimately? 25 A: Individual civil service members would
2761 have taken direction from whoever their immediate 2 supervisor was and -- 3 Q: Right. 4 A: -- so if the person was a director, 5 they took direction from the -- from their Assistant 6 Deputy Attorney General. If the person was a lawyer, 7 they would take direction from their director. 8 Q: Okay. 9 A: And again, often it's not unusual for 10 -- particularly in -- in a situation like this for -- 11 perhaps, you know, you -- you would jump one (1) level so 12 I -- for example, it wouldn't be unusual for me to report 13 to -- directly to Michael Code the Assistant Deputy 14 Attorney General. 15 Theoretically I'm -- I'm jumping a 16 reporting level, but the -- the nature of the issue and 17 the nature of the relationship between myself, Mr. Segal, 18 and Mr. Code was such that that wouldn't be inappropriate 19 at all. 20 Q: Okay. Moving now to the events of 21 1995. As you're no doubt aware, Mr. Hutchison, a new 22 government took office in June of 1995. Did you 23 participate in the briefing of any ministers or their 24 staff after their appointments during the first three (3) 25 months of that government -- after that government took
2771 office? 2 A: Not with respect to Aboriginal 3 issues. 4 Q: Hmm hmm. 5 A: I can't recall. There were -- there 6 were a number of other cases I had that may have had some 7 profile at the time and it's -- it's conceivable I was 8 involved in a briefing of some kind. I don't remember 9 it, but I wouldn't want to say I didn't just because -- 10 the absence of a memory doesn't necessarily indicate that 11 something didn't happen. 12 Q: All right. But not with respect to 13 Aboriginals? 14 A: Certainly not with respect to 15 Aboriginal issues. 16 Q: Okay. And were you, yourself, as a - 17 - a Crown -- Crown Counsel briefed or otherwise made 18 aware of the Government's policy platform with respect to 19 issues relating to Aboriginal peoples? 20 A: Not as part of my employment. I 21 lived in the Province of Ontario, I knew that the 22 Conservative Government had run on a particular platform 23 and I think that anybody who'd watched the election knew 24 that there would be a change in policy or, at the very 25 least, a change in tone between the New Democratic
2781 Government and the Conservative Government that was 2 coming in. 3 Q: All right. But in terms of the work 4 you did on a daily basis you receive -- 5 A: No. 6 Q: -- no -- no briefings or 7 instructions? 8 A: No. 9 Q: No communication of any kind with 10 respect to Aboriginal issues? 11 A: No. 12 Q: Okay. What was your -- turning now 13 to the events at Ipperwash in 1995 and perhaps earlier, 14 what was your first awareness of the emerging events at 15 Ipperwash? 16 A: My recollection is that my first 17 awareness would have been through the press. 18 Q: Hmm hmm. 19 A: It's possible that rather than 20 through the press it was in the context of a request from 21 Julie Jai to provide some of that sort of that basic 22 criminal law advice. I'd be reluctant to say exactly how 23 it happened. I know that some time probably on -- on the 24 5th I provided some basic legal advice that I understood 25 was going to be rolled into some kind of a -- a briefing
2791 document. 2 Q: It was September 5th that you -- 3 A: September 5th. 4 Q: 1995? 5 A: 1995. It's possible that I had some 6 other involvement in August -- 7 Q: Hmm hmm. 8 A: -- and that I was asked to provide 9 some kind of, again, basic advice. I don't recall that. 10 Q: Hmm hmm. 11 A: If someone said they had a 12 recollection of speaking to me, I'd certainly defer to 13 that. 14 Q: Hmm hmm. 15 A: I just don't remember it. It 16 wouldn't necessarily at the time have been a 17 particularly significant conversation. 18 Q: Okay. So were you aware of or 19 invited to an August 2nd, 1995 meeting of the -- the 20 Committee to discuss matters at Ipperwash? 21 A: As I sit here today I don't think so, 22 but, again, if someone has a record or recollection I'd 23 certainly defer to that. 24 Q: Okay. 25 A: I don't remember participating in
2801 such a meeting. 2 Q: All right. Okay. If I could take 3 you to Tab 3 of the material in front of you, what 4 appears there for the record is Inquiry Document Number 5 1011745. Do you recognize that document? 6 A: I -- I recognize it from having been 7 shown it. I can't recall specifically whether I saw it - 8 - this actual incarnation of the document before seeing 9 it in these materials. I certainly recognize the text 10 that appears up to the bottom of the first page. 11 Q: The bottom of the first page? Okay. 12 And so that would be under the heading -- by the way, 13 this document is titled, Criminal and Civil Proceedings 14 to Terminate the Occupation of Ipperwash Provincial Park 15 by the Stoney Pointers. 16 And it appears to -- to contain legal 17 advice or opinions. There's a subheading, Criminal and 18 Quasi-Criminal Offences, and then a second subheading on 19 the second page, Civil Proceedings." 20 So, can you identify for us, of the -- of 21 the text in this three (3) page document, what text 22 you're -- you're familiar with or -- 23 A: I -- I believe I'm actually the 24 author of the text that appears on the first page. And - 25 - and, you'll recall, I indicated that I believed I had
2811 been asked by Julie Jai to provide some kind of basic 2 criminal law advice based on -- on a particular factual 3 scenario. 4 And that was the -- the scenario that was 5 sort of the working scenario in terms of what was going 6 on at Ipperwash as of, you know, the level of 7 understanding on September the 5th. 8 Q: Okay. 9 A: I would have sent that to her either 10 by e-mail or by fax and she would have rolled it into 11 this document, which was a -- a document that was 12 intended to incorporate advice from other individuals. 13 I don't believe that I wrote the three (3) 14 paragraphs on -- at the top of page 2. 15 Q: Hmm hmm. 16 A: It's possible I did but I don't think 17 I did. And I certainly didn't have anything to do with 18 preparing the balance of the document. It's also 19 possible that some portion of -- of those pages have been 20 edited for style but not for substance. 21 Q: All right. Okay. And in the first 22 paragraph you'll note it states: 23 "On the facts, there would appear to be 24 at least one (1) Criminal Code charge 25 available, mischief to property, under
2821 Section 430(1)(c) or (d): Everyone 2 commits mischief who willfully [going 3 on] obstructs, interrupts or interferes 4 with the lawful use, enjoyment or 5 operation of property. The cutting 6 down of trees and the physical 7 occupation of the Park coupled with the 8 statements of the Stoney Point group 9 denying access to Park for MNR 10 officials would seem to make out that 11 charge." 12 Now, can you recall, Mr. Hutchison, where 13 you -- where you received the information that -- first 14 of all, so you're the author of that paragraph, as far as 15 you can recall? 16 A: Yes. 17 Q: Okay. Where did you receive the 18 information about the facts you refer to? 19 A: Well, by way of surmise, I would 20 have, I think, received it in a telephone call from Julie 21 Jai. It's possible that it was a -- a conversation with 22 some other AG representative who came back and said, Here 23 are -- here's the situation, Julie would like if you 24 could produce this document. I can't, sitting here, tell 25 you who gave me those facts.
2831 Q: Okay. 2 A: It certainly wouldn't have been any 3 kind of direct communication with anybody on the ground. 4 It would have been information that came back through an 5 individual, probably on the -- I keep wanting to call it 6 the Blockades Committee -- the Emergencies Committee. 7 And -- and if -- if I were a betting man, I would say 8 Julie Jai. 9 Q: All right. And were you made aware 10 of the purpose to which this document would be put? 11 A: I -- I knew it was going into some 12 kind of briefing document, whether it was a house book 13 note or some kind of briefing for a minister or the 14 Deputy, I don't know that I knew that. 15 Q: Okay. And any information that you 16 did receive in that respect would have been from Ms. Jai? 17 A: I -- I would expect so, yes. 18 Q: Okay. Okay. Now did you attend the 19 -- the meeting of the Interministerial Committee on 20 Aboriginal -- Aboriginal Emergencies on September 6th, 21 1995? 22 A: I did. 23 Q: Okay. Perhaps I should go back. Did 24 you attend the Committee meeting on September 5th? 25 A: No.
2841 Q: All right. Were you aware that it 2 was going on? 3 A: I -- I can't recall. I have a very 4 vague recollection of perhaps being asked and having a 5 conflicting obligation that made it impossible for me to 6 attend. But I -- I would have expected that they would 7 have tried to get in touch with me and ask me to go, but 8 I can't say that they did. 9 Q: And I should go back and enter the 10 document I referred to, Inquiry Document Number 1011745 11 as the next exhibit. 12 THE REGISTRAR: P-634, Your Honour. 13 MS. KATHERINE HENSEL: Thank you. 14 15 --- EXHIBIT NO. P-634: P-634: Document Number 16 1011745. Criminal and civil 17 proceedings to terminate the 18 occupation of Ipperwash 19 Provincial Park by the 20 "Stoney Pointers". 21 22 CONTINUED BY MS. KATHERINE HENSEL: 23 Q: Okay. And were you asked to attend 24 the meeting on September 6th? 25 A: Yes.
2851 Q: Okay. Who asked you to attend? 2 A: I -- I can't remember. 3 Q: All right. Do you recall when you 4 were asked? 5 A: No. My recollection -- I might have 6 been asked to come to that meeting at the same time that 7 I was asked to produce this document, but I couldn't tell 8 you when I was asked. 9 Q: Okay. And if I could take you to Tab 10 7, the -- the book in front of you, that's meeting notes 11 from the Emergency Planning for Aboriginal Issues 12 Interministerial Committee, which is yet another 13 incarnation of the name apparently. 14 That is Inquiry Document Number 1011766, 15 which has been entered in these proceedings as Exhibit P- 16 509. 17 Now, you'll see on the first page there, 18 Mr. Hutchison, a list of attendees. 19 A: I do. 20 Q: Okay. Have you had an opportunity to 21 review that list? 22 A: I have. 23 Q: All right. Do the names on that list 24 accord with your recollection of who was present? 25 A: They do. There's a few names that
2861 appear of people who I didn't necessarily know at the 2 time. 3 Q: Hmm hmm. 4 A: I recall when this was first shown to 5 me in the course of preparing, I was surprised to see Dan 6 Newman's name on there, because I didn't remember him 7 being there. I'm not saying he wasn't, I'm just saying I 8 don't remember him being there. 9 Q: Okay. And you know Mr. Newman to see 10 him? 11 A: I didn't know him at the time, I only 12 knew him -- 13 Q: Okay. 14 A: -- came to know him because he was 15 the parliamentary assistant. 16 Q: Hmm hmm. 17 A: But several years later I had to 18 prepare him to speak to a Bill. 19 Q: Okay. 20 A: But I wouldn't have known him 21 necessarily at the time. 22 Q: Okay. And it appears from this list 23 of names, that there were political staff present at the 24 meeting. Can you identify for us, to your knowledge, who 25 would have been a political staff member, as opposed to a
2871 civil servant? 2 A: Let me start by telling you the 3 people I would have known at the time -- 4 Q: Hmm hmm. 5 A: -- were political staff. I would 6 have known David Moran was political staff, I would have 7 known Carolyn Pinto, I would have known Deb Hutton as 8 political staff. I don't know that I knew at the time 9 that Katherine Hunt was political, but I know that now. 10 Q: Hmm hmm. 11 A: And after that I think you're going 12 to have to tell me, I'm sure there's others. 13 Q: All right. 14 A: Those are other people -- the first 15 three (3) I would have known at the time, and Katherine 16 Hunt, I know she was political now, I can't say for sure 17 that I knew at the time. 18 Q: Okay. And we will be calling the 19 Chair of the committee and other members, so we should be 20 able to identify that with no problem -- 21 A: Okay. 22 Q: -- through them as well. Okay. 23 So, it would appear that there were a 24 number of political staff present at the meeting. Did 25 that strike you as unusual at the time?
2881 A: Given the size of the committee, I 2 wouldn't say that it was sort of beyond the pail. It 3 wasn't unheard of to have a political staff member 4 attend. Usually simply to be able to report up to the 5 Minister how that conversation had gone at a committee 6 like this. 7 Q: Hmm hmm. 8 A: Sometimes to place before staff, the 9 Minister's views, all on the assumption, of course, that 10 the Deputy is aware that this is happening. It would be 11 odd for these people to just invite themselves to this 12 group, without letting -- 13 Q: Hmm hmm. 14 A: -- the Deputy know that it was 15 happening. I would assume that the Deputy knew that this 16 was happening, in the sense that these individuals were 17 attending directly, and that the Deputy's at -- in -- in 18 other Government offices knew. So for example, that the 19 Secretary of Cabinet would know that Deb Hutton was 20 attending. 21 Q: Okay. And can you describe for us if 22 there's any constraints or parameters around the 23 appropriate participation, to the best of your knowledge, 24 of political staff in a meeting such as this? 25 A: I -- I --
2891 Q: I'm speaking in general terms. 2 A: -- think that in terms of -- in terms 3 of expectations -- 4 Q: Yeah. 5 A: -- and what -- 6 Q: Yeah. 7 A: -- my understanding of -- of the 8 culture and what was -- what was considered appropriate 9 or inappropriate. Normally you would expect political 10 staff to perhaps indicate what the Minister's thinking 11 was on a particular issue in the sense of where they 12 wanted options to come from. 13 The kind of conversation that you would 14 expect to happen would be one (1) that would be 15 consistent with the mandate for the group. So for the -- 16 Q: Hmm hmm. 17 A: -- a group like this that was 18 responsible for creating options and moving those options 19 up through their own reporting lines, it wouldn't be 20 unheard of for someone to say, you know, the Minister 21 wants to make sure that you think about these 22 possibilities, or don't assume that this isn't a 23 possibility, we'd like to see that optioned out. 24 Those were the kinds of things that would 25 not be inappropriate for the Minister's staff to do.
2901 It would be inappropriate for the 2 Minister's staff to attend and to give specific direction 3 as to how civil service staff at that table should do 4 their job or, you know, the recommended has to be this 5 option or that option, or don't bother with these other 6 options. 7 That would be inappropriate, because of 8 course that interferes with the process of that advice 9 moving up to the civil service side in the normal course. 10 Q: Okay. And keeping in mind -- well, 11 first of all, in 1995 would that -- would you have hold - 12 - held the understanding that you've just described, 13 about the appropriate participation of political staff? 14 A: Yes. 15 Q: Okay. And keeping that -- what 16 you've just described in mind, did you witness at any 17 time during the meeting, anything that struck you as 18 inappropriate? 19 A: I -- I don't recall anything 20 inappropriate, I've looked at my notes -- 21 Q: Hmm hmm. 22 A: -- I didn't see anything that -- that 23 -- from my notes that made me think that there was 24 anything particularly inappropriate. 25 It is fair to say that it was made clear
2911 to people that the Government had a view and that some 2 ministers had expressed a view in the sense of having a 3 particular -- a tone with respect to how they wanted to 4 be advised, but I certainly wouldn't go so far as to say 5 that any said, you know, this is what the answer has to 6 be. 7 It was more in terms of that the Ministers 8 -- or at least some ministers had expressed a view that 9 they wanted certain things thought about and a particular 10 approach is not to be discounted. 11 And -- and you have to remember that, I 12 suppose if I was to put it this way, that things that 13 might not have been considered under the previous 14 government were live options under this government. 15 Q: Okay. Can you be more specific when 16 you -- first of all you referred to, "tone." 17 A: The -- the previous government had 18 developed a -- a fairly conciliatory tone in its approach 19 to dealing with issues in -- in the whole body of issues 20 around First Nations. The Interim Enforcement Policy was 21 a good example of that, that kind of conciliatory 22 approach. 23 I think it's fair to say that -- that this 24 government, certainly in terms of direction or not -- 25 direction's probably the wrong word, but in terms of the
2921 Government's -- well, the Government I suppose is wrong - 2 - to the extent that political staff made a point. 3 It was that this was to be viewed more as 4 a law and order issue than a First Nations issue and to 5 the extent that that was the perspective they took, it 6 put certain options on the table. 7 Q: Okay. And I -- I have a couple of 8 questions about that. 9 First of all, when you say, "the political 10 staff," who are you referring to in terms of who was 11 speaking or were they all... 12 A: I -- I can't attribute it to a 13 particular person. I know that Deb Hutton certainly said 14 things to that effect, again, not -- not comments that I 15 would particularly say were -- were off-side in terms of 16 what political staff could legitimately ask for. 17 The important thing to remember is, again, 18 it's not a body that makes a decision, it's a body that 19 develops advice. The advice makes its way up and -- and 20 eventually makes its way to the Ministers that way. 21 Q: Okay. All right. And you also 22 referred to a number of specific options. At this point 23 it may be helpful, actually, if we turn -- take you to 24 your notes which are at Tab 2 -- 25 A: Thank you.
2931 Q: -- of the book in front of you and 2 have also been distributed electronically to Counsel. 3 Now, first of all, these are your notes 4 that are at Tab 2? 5 A: They are. 6 Q: Okay. 7 A: And I should -- these notes aren't 8 necessarily meant to be a verbatim description of what 9 was said, they're notes really just to assist me in 10 following the meeting. 11 Q: Right. And you've had a chance to 12 review these notes -- 13 A: I have. 14 Q: -- to refresh your memory? 15 Okay. So you referred to a -- a number of 16 options being on the table and that being communicated by 17 members of the political staff present. Can you tell us 18 what options you're referring to? 19 A: I'm -- I -- I suppose the only thing 20 I would say is that it -- it was clear that the 21 Government -- and I keep saying, "government," and that's 22 suggesting it's some sort of body that's made the 23 decisions. 24 It's clear that -- that some direction's 25 coming down that there was a desire to move the occupiers
2941 out of the Park and that that was to be the focus of the 2 options that were to come back up. In other words, how 3 can we get the occupiers out of the Park? 4 Q: Okay. All right. Okay. And what 5 else went on at the meeting, that you can recall? 6 A: There were updates provided by the 7 Ministry of Natural Resources. My recollection is that 8 someone at the meeting relayed information that came from 9 somebody within that Ministry who was on site. 10 Superintendent Fox provided some factual 11 updating and then there was a discussion with respect to 12 the legal backdrop against which any decision had to be 13 made, That would include: What were the legal options 14 in terms of seeking or obtaining an injunction and then 15 legal advice or at least, some understanding of what the 16 legal options were for the OPP, what was the backdrop 17 against which they would exercise their independent 18 discretion. 19 Q: Okay. Do you recall there being any 20 disagreement -- that may be too strong a term -- but any 21 -- any debate at the meeting about different approaches 22 to be taken? 23 A: I don't know if I'd -- if I'd call it 24 debate. I think that there were some people who were 25 more eager to be more proactive. And others preferred
2951 to follow the path that had been taken in other cases. 2 Q: Hmm hmm. 3 A: In general, the way these issues had 4 been approached in the past is to essentially have a -- a 5 process where you sort of hang back -- 6 Q: Hmm hmm. 7 A: -- have some sort of negotiation take 8 place. The object of the negotiation isn't to settle the 9 ultimate claim but simply to develop a process that will 10 allow the occupiers or protestors to remove themselves 11 and essentially allow the situation to sort of burn 12 itself out. 13 And that's certainly the process that the 14 OPP indicated was their preferred avenue because it's 15 one that they had known from the past and that had worked 16 in other situations. 17 Other individuals -- and I can't attribute 18 this to any particular individual -- preferred a course 19 that was more proactive, and that would be certainly the 20 injunction approach. The injunction approach from the 21 perspective of things that government could legitimately 22 do was a more proactive way to deal with the situation. 23 There was a desire to ensure that, to the 24 extent that they could, the Government -- or, again, I 25 keep saying "the Government," I simply mean that -- that
2961 the Province did what it could to assert its rights as a 2 landowner or a claimant. 3 There was legal advice given during the 4 course of the meeting that the Government is in no better 5 or worse position -- or the Province is in no better or 6 worse position than any other landowner here. 7 If they think that there's a person or 8 persons trespassing on property that -- that's theirs, 9 they can go to the police and ask the police to take 10 action. But they can't do anything more than ask. They 11 have no right to direct or demand that the police take 12 any action. 13 And that goes back to the point we talked 14 about at the beginning with respect to the unique role 15 that the police have or the unique place that the police 16 have in the context of government as office holders who 17 have their own statutory authority to look to, not being 18 mere employees of the Ministry. 19 Q: Okay. Do you recall who was 20 providing the advice you're referring to? 21 A: I -- I know I provided the advice 22 with respect to the Criminal Law issues. My recollection 23 is that Tim McCabe -- I can't recall if she was at this 24 meeting, but -- Elizabeth Christie, were there providing 25 advice with respect to the questions related to the
2971 injunction. 2 And I can't recall if he was at the 3 meeting or not, I think it was Andrew McDonald who had 4 advice with respect to the trespass -- the Property Act. 5 Q: Okay. And -- and specifically in -- 6 with respect to advice being provided about the legal and 7 other discretion that resided with the OPP, do you recall 8 who provided that specific advice? 9 A: That would have been me. 10 Q: That would have been you. 11 A: And that advice is fairly 12 straightforward and, what we already talked about -- 13 Q: Hmm hmm. 14 A: -- the OPP have an independent 15 discretion. It's their role and function to decide 16 whether to lay a charge, what charge to lay, what action 17 to take on the basis of that charge. They can't be 18 directed in that regard. 19 And, again, it's this notion that they 20 occupy a unique role in government, notwithstanding the 21 fact that they're all employees of the Ministry, they 22 occupy a position that's created by statute, not by mere 23 employment relationship. 24 Q: Okay. Did anyone verbally or -- 25 disagree with you or appear to disagree with you at the
2981 meeting? 2 A: No. My recollection is that, when it 3 was made clear that you can ask but you can't direct, 4 there was then a discussion of, Well then let's ask. And 5 -- I can't sort of recall exactly how that discussion was 6 initiated or where exactly it went but that was -- I 7 think people accepted that advice. 8 And one (1) advantage to being in a group 9 like this as the only lawyer who understands how the 10 Criminal Law works, is that when you speak you're 11 normally listened to. And if you tell people in the room 12 that they can't direct the police to take action and -- 13 and you say that that's not policy advice, that's legal 14 advice, normally people listen. 15 And in -- my perception was in this case 16 that people were listening. 17 Q: Okay. And what can you recall about 18 the discussion of the legal options surrounding the 19 injunction? 20 A: I know that Tim McCabe, who is a 21 lawyer, par excellence, he was responsible for providing 22 that advice and presenting it in a way that again sort of 23 optioned out the different approaches that could be 24 taken, to civil remedies that would be available to the 25 Province.
2991 My recollection is that he was less than 2 enthusiastic about the possibility of an ex parte 3 injunction, because he had some concerns with respect to 4 the issue of irreparable harm and the lack of notice. 5 I -- again, it was more -- I mean, that 6 was -- that was -- if you like, that was Mr. McCabe's 7 show, and I was letting him run it. 8 Q: Hmm hmm. 9 A: At the time, I wouldn't have known an 10 ex parte injunction if you'd put it in front of me. 11 That said, it was a legal option that was 12 available, Mr. McCabe explained the pros and the cons, 13 what the circumstances were, in terms of when you could 14 get one (1), when you wouldn't be able to get one (1). 15 And offered it up as one of the options that was 16 available. 17 Q: Okay. And do you recall Mr. McCabe 18 communicating any of the direction that had been provided 19 to him by either the AG, or the Deputy AG? 20 A: I don't right now -- 21 Q: Hmm hmm. 22 A: -- but if you have a -- a section in 23 a note that suggests that I did -- 24 Q: I do. 25 A: -- I'd be happy to be referred to it.
3001 Q: Okay. 2 A: I only say that it had been made 3 clear that -- 4 Q: Hmm hmm. 5 A: -- Ministry of the Attorney General 6 was certainly prepared to provide whatever advice or 7 assistance it could -- 8 Q: Hmm hmm. 9 A: -- so to the extent that there'd been 10 direction to that point, it was do your best to help. 11 Q: Okay. I -- I completely -- 12 A: And to work with other Ministries. 13 Q: Right. I can take you to a 14 particular passage. I'm not certain that -- what it 15 means actually, so I was going to ask you to explain. It 16 appears to be on page 1 of your notes, that's the right- 17 hand side -- 18 A: Okay. 19 Q: -- of the first page? 20 A: Yes. 21 Q: You'll see the words that starting 22 with: 23 "No legal basis. Danger of arresting." 24 And then if you could read the -- the 25 notes immediately below there, as you're probably a
3011 better interpreter of your handwriting than I am. 2 A: Don't -- don't assume such things. 3 My -- my reading of the note is: 4 "No legal basis. Danger if arresting. 5 Views of AG influential." 6 And then I've got a point that says: 7 "Deputy AT -- AG --" 8 I'm not sure what the next reference is: 9 "SG. Need to be cautious, moderate." 10 I couldn't tell you who said that. I know 11 that one of the issues that was discussed, and it may be 12 that this is a comment that's at least partially 13 attributable to Mr. Fox. 14 I know one (1) of the issues was that the 15 OPP indicated a preference to act in the context of an 16 injunction, rather than simply acting on the basis of 17 possible offences, because of course there was at least a 18 discussion going on already with respect to the 19 possibility of a defence of honest but mistaken belief, 20 with respect to colour of right. 21 And that issue, in terms of the propriety 22 of any further police action disappears in the face of an 23 injunction, where the OPP are then simply giving affect 24 to a Court Order rather than becoming embroiled in the 25 debate with respect to property rights associated with a
3021 particular piece of land. 2 Q: Okay. can you comment at all on the - 3 - the arrows, DAG, AG, DSG, SG, need to be cautious and 4 moderate? 5 COMMISSIONER SIDNEY LINDEN: Just a 6 minute, Ms. Hensel. 7 MS. KATHERINE HENSEL: Okay. 8 COMMISSIONER SIDNEY LINDEN: Ms. 9 Perschy...? 10 MS. ANNA PERSCHY: I don't have an 11 objection, I just had a question. I noted that the notes 12 have a numbering system to them, and I just wanted to 13 know if -- if the numbers have been added later, or what 14 they signify. Like I wasn't sure which -- which of these 15 notes come first? 16 MS. KATHERINE HENSEL: Yeah, so if you -- 17 THE WITNESS: So which numbering system 18 are you referring to, the numbers that are in circles, or 19 the P-101, if you're looking at it from the right hand -- 20 MS. ANNA PERSCHY: The numbers in -- the 21 numbers in the circles, I was just having some trouble 22 following what I'm actually looking at. 23 THE WITNESS: You know, I'm not sure how 24 they ended up like that. That's the order that the notes 25 go in though, if you follow that -- that numbering in
3031 circles, that's the order that the note -- the notes go 2 in. 3 4 CONTINUED BY MS. KATHERINE HENSEL: 5 Q: So just for clarity, you go from the 6 right hand side on the first page to the left-hand side? 7 A: That's right. And I don't know how 8 they've ended up like that. This was one (1) of those 9 little black memo books. 10 Q: Right. Okay. 11 A: In the course of document assembly, I 12 would have provided these in response to the discovery 13 obligations of the Ministry and -- 14 Q: Hmm hmm. 15 A: -- they've ended up in this form -- 16 Q: Okay. 17 A: -- as they passed through different 18 hands. 19 Q: All right. Thank you. All right. 20 And in terms of your own participation in the meeting 21 you've mentioned the -- the advice you provided with 22 respect to the OPP's legal discretion and obligations. 23 Did you provide any other advice? 24 A: The only other advice I would have 25 given wouldn't necessarily have been strictly legal and I
3041 can't recall whether it was at this session or the other 2 session, but simply that, you know, you should defer to 3 the OPP on operational issues if for no other reason than 4 they know what they're doing and you don't. 5 Q: Hmm hmm. 6 A: And that would have applied to 7 everybody in the room. The only person in that room who 8 had any experience in policing was Ron Fox and if he 9 tells you that you should do something a particular way, 10 you should defer to that because it's probably legally 11 and operationally the best path. 12 Q: All right. And just one (1) final 13 point. On your -- in terms of your advice, if I could 14 take you to the documents in the blue folder that I 15 provided to you earlier, Document Number -- Inquiry 16 Document Number... 17 First of all, if I could have Mr. 18 Hutchison's handwritten notes at Tab 2 entered as the 19 next exhibit? 20 THE REGISTRAR: P-635, Your Honour. 21 COMMISSIONER SIDNEY LINDEN: P-635. 22 There's two (2) sets of notes it looks like, is that 23 right? 24 MS. KATHERINE HENSEL: Yes, and we will 25 be coming back to --
3051 COMMISSIONER SIDNEY LINDEN: It's all P- 2 635? 3 MS. KATHERINE HENSEL: That's right. 4 5 --- EXHIBIT NO. P-635: Scott Hutchison's handwritten 6 notes Sept. 06 to 07/'95. 7 8 CONTINUED BY MS. KATHERINE HENSEL: 9 Q: And, for the record, those appear to 10 be Mr. Hutchison's and perhaps Mr. Hutchison can confirm 11 this, his notes from September 6th and September 7th -- 12 A: That's right. 13 Q: -- 1995. Okay. Now, if I could 14 take you to Inquiry Document Number 1011784, it's 15 handwritten notes? 16 A: Yes. 17 Q: 1011784? Okay. And just to advise 18 you, Mr. Hutchison, we've been made aware that these are 19 the -- the handwritten notes of Ms. Eileen Hipfner from 20 that day. I just -- 21 COMMISSIONER SIDNEY LINDEN: Are these 22 notes in the binder? 23 MS. KATHERINE HENSEL: Pardon? 24 COMMISSIONER SIDNEY LINDEN: Are they in 25 the binder?
3061 MS. KATHERINE HENSEL: No, they're in the 2 -- the blue folder that's just to your -- your left, Mr. 3 Commissioner. 4 COMMISSIONER SIDNEY LINDEN: Okay. I've 5 got them. 6 7 CONTINUED BY MS. KATHERINE HENSEL: 8 Q: Now, I'm not going to be -- I'm only 9 taking you, really, to one (1) point in these notes. On 10 the final page, page 8 you can see a note there, 11 apparently: 12 "Scott, don't comment on criminal 13 charges." 14 A: I -- I know that there was -- sorry, 15 you just want my comment on that? 16 Q: Yes. 17 A: I know that a fair bit of the 18 discussion was around communications issues, that that 19 was something -- 20 Q: Hmm hmm. 21 A: -- that again, quite legitimately the 22 political staff were concerned about. One (1) point that 23 I simply made is that to the extent that there's any 24 question of criminal charges, no comment should be made 25 in the media, it's entirely inappropriate.
3071 There's always the danger that making 2 some comment in the media will interfere with the ability 3 for somebody to have a fair trial later and it's standard 4 advice in this situation to make sure that everybody 5 understands that no comment should be made with respect 6 to outstanding or possible criminal charges. 7 Q: All right. And you were giving that 8 advice specifically to the Committee members as -- as 9 civil servants and members of the Government? 10 A: And really, well, to everybody in the 11 room to the extent that, for example, a civil servant 12 goes back and helps develop a communications strategy or 13 members of the political staff go back and develop 14 communication strategies for their ministers, they should 15 know that nobody should be commenting on criminal 16 charges. 17 Q: Okay. And were you asked at this 18 point or at any other point in relation to Ipperwash to 19 provide advice to the OPP? 20 A: I -- I don't recall ever being asked 21 to provide advice to the OPP as a Crown in the sense of a 22 police officer phones you and says, I have a live issue, 23 I need legal advice with respect to the following 24 situation. 25 It's possible that at some point the Crown
3081 Attorney in Sarnia contacted me and asked me for advice 2 at some later point. I know that at different times I 3 provided some legal advice in prosecutions that arose 4 later, but again that was not directly related to the 5 events that we're focussing on. 6 Q: Okay. Thank you. And what was your 7 sense amongst -- or your impression based on the 8 communication you witnessed at the meeting of the sense 9 of urgency attributed to the situation by Committee 10 members? 11 A: I think everybody appreciated that it 12 was -- it was a significant -- crisis would probably put 13 it too high and certainly as of the 6th I wouldn't 14 necessarily -- crisis would be a bit overstating, it was 15 a very significant situation that required urgent 16 attention. 17 It had to be dealt with expeditiously. 18 Advice had to be developed and passed up the line. And 19 it was clear that decisions would have to be made in a -- 20 a fairly expeditious basis. 21 Q: Okay. And -- 22 A: And that -- that's regardless of what 23 option you're -- you're working towards. If you want to 24 move and -- and, for example, if you ultimately want to 25 decide to pursue an injunction, you should make that
3091 decision quickly. If you're going to decide not to 2 pursue the injunction, that decision should be made 3 quickly as well. 4 Q: Okay. And for your own part, at any 5 rate, based on what you heard and what you knew of the 6 situation, why was it urgent or particular significant 7 that it would warrant urgent attention and action? 8 A: My recollection is that there were 9 reports of weapons being in -- in the hands of 10 individuals who had been -- who had taken over the -- or 11 who had -- who had occupied the Park. I -- I have a 12 recollection of there being some concern that Park 13 property was being damaged by the occupiers. 14 And -- and, in fairness, there was some 15 urgency presented by political staff, who indicated that 16 ministers wanted to deal with the matter expeditiously. 17 Q: Okay. And can you add anything 18 beyond the comments that you made earlier in terms of the 19 -- the communication from -- on the part of the political 20 staff in terms of the urgency or dealing with the 21 situation expeditiously? 22 A: You know, I -- I certainly recall a 23 desire to -- the expression of a desire to -- to be and 24 to be seen to be proactive and moving on the situation. 25 Beyond that, I don't have a -- a specific comment or
3101 quote that I can attribute to anybody, but I don't think 2 anybody left the room thinking that this was one that 3 could, you know, go home for the weekend and think about 4 it between then and Monday. 5 Q: Okay. And do you recall what 6 consensus -- you've indicated that it was a consensus- 7 based forum, what consensus, if any, the Committee 8 reached or Committee members reached? 9 A: I -- I do think there was a consensus 10 that an injunction should be sought. I don't know that 11 there was a -- a crystallised consensus about whether or 12 not it should be ex parte or on notice. 13 Q: Hmm hmm. 14 A: Beyond that, I -- I don't think that 15 it really -- that any sort of specific advice 16 crystallised coming out of that meeting. 17 Q: Okay. All right. And -- 18 A: And, again, if -- if there's a 19 reference or a note that suggests that there was some 20 specific advice, I'd be happy to be referred to it. 21 Q: It might be helpful at this point to 22 take you back to Ms. Hipfner's notes. Actually, I'm 23 sorry, I -- I should take you to Ms. Jai's notes, which 24 are in the -- in the book in front of you, at Tab -- 25 A: 4.
3111 Q: Yes. Her notes from the September 2 6th meeting appear at Inquiry Document Number 1012579. 3 This has been made an exhibit at this Inquiry -- I'll 4 just get the exhibit number. Okay. I'll find the 5 exhibit number in a moment. 6 Now, just taking you to page 4 of those 7 notes, at the bottom. 8 A: Right. 9 Q: Okay. You'll note there, Ms. Jai has 10 noted: 11 "We will seek injunction ASAP Friday." 12 Or I assume that's Friday. 13 A: It's at page 4? I think you're at 14 page 9. 15 Q: Yeah. At Tab 4, yeah, if you go into 16 -- if you go into her actual notes from September 6th. 17 A: On page 4? 18 Q: On page 4, at the very bottom. 19 A: Oh, If we obtain an injunction? 20 Q: Right. No, I see, "agreed." Perhaps 21 it would be helpful if you look at the screen. Mr. 22 Millar has -- can you see that, Mr. Hutchison? 23 COMMISSIONER SIDNEY LINDEN: Bottom of 24 the page. 25
3121 CONTINUED BY MS. KATHERINE HENSEL: 2 Q: Is that the same page you have there? 3 A: I don't have that as page 4. 4 Q: You maybe looking at the notes from 5 September 5th which appear after the notes from September 6 6th. So, if you go to the very beginning of the 7 document... 8 A: Oh, you're quite right. That's 9 right, I'm sorry. 10 Q: That's all right, it's confusing. 11 A: Yes, you're quite right. So, it 12 says: 13 "We'll seek injunction asap Friday. 14 Criminal Code charges within police 15 discretion. They are trying to remove 16 people. All agreed. The goal is to 17 remove people, ASAP." 18 Q: Okay. And I just have one (1) more 19 question with respect to that particular meeting. At any 20 point during the meeting did you hear Ms. Hutton utter 21 the words that the Premier wanted to -- those present to, 22 "get those fucking Indians out of the Park," and use guns 23 if they had to? 24 A: I certainly never heard that. I 25 would have -- remember I talked about appropriate and
3131 inappropriate? And if -- if I'd heard her say that I 2 would have perceived that as being inappropriate in terms 3 of the -- even if you sort of leave out the issue of 4 language. 5 Q: Hmm hmm. 6 A: Inappropriate kind of direction. 7 Q: Okay. Did you hear any -- any 8 direction of any kind communicated through the meeting? 9 A: Beyond the suggestion that the -- 10 that the objective was to try to deal with the situation 11 by removing the protestors through some means that would 12 be legally available to government, that's the kind of 13 direction that was, if you like, being communicated 14 through political staff; beyond that, no. 15 Q: All right. But as to specifics, how 16 that was to be accomplished, there was no direction 17 provided? 18 A: No, and indeed, the -- the purpose of 19 the meeting was to try to figure out what the options 20 were to do that. 21 Q: Right. Okay. And, just for record, 22 I'd referred earlier to Inquiry Number 1012579? That has 23 been identified in these proceedings as Exhibit P-536. 24 Okay. So, on leaving the meeting what did 25 you do or can you recall what you did on leaving the
3141 meeting? 2 A: I can't recall. I can tell you that 3 my -- my practice -- 4 Q: Hmm hmm. 5 A: -- would have been to go back to my 6 office, update either Mr. Segal or Mr. Code. I can't 7 remember who, it was probably Mr. Segal with respect to 8 what had happened at the meeting so that he'd be aware in 9 the event that questions came down through him. He knows 10 what I've been up to and he has a sense of - 11 Q: Hmm hmm. 12 A: -- what went on at that meeting. 13 Again, I can't recall whether it was Mr. Segal or Mr. 14 Code and I -- I don't recall whether or not I came away 15 from this meeting with any specific document or work to 16 do. 17 Q: Okay. 18 A: And I may have had a conversation 19 with somebody about it later, but again, I don't recall. 20 Q: Okay. And did you have any other 21 involvement on September 6th with the Ipperwash matter? 22 A: Not that I recall at this time. 23 Q: Okay. And when -- when and how did 24 you first learn about the events at -- outside of 25 Ipperwash Provincial Park on the evening of September
3151 6th? 2 A: I heard it on the radio in the 3 morning -- and then when I came into the office the next 4 day I had a voice mail, the -- the general substance of 5 which is reflected in the first portion of my notes for 6 that day. 7 Q: Okay. Turning now to your notes. 8 A: So if you look at the first page 9 related to September the 7th. 10 Q: Hmm hmm. 11 A: My recollection is that everything up 12 to the top of page 2 is simply notes recording 13 information from a voice mail message. My -- my 14 recollection is it was one (1) of those sort of broadcast 15 voice mail messages that gets sent out to a number of 16 people. 17 And that it was from Julie Jai. I'd be 18 happy to be corrected if I've remembered that wrong, but 19 that's my recollection on that. 20 Q: Okay. And did you do anything as a 21 result of receiving that information? 22 A: I probably would have gone and told 23 Murray Segal what had happened and that I was going to a 24 meeting of the Emergency Committee later that day. 25 Q: Okay. All right, and did you do
3161 anything -- anything else as a result of that, other than 2 attending the committee meeting. 3 A: I certainly don't remember anything 4 right now. 5 Q: All right, okay. But you mentioned, 6 and it's reflected in your notes, I believe -- perhaps 7 not, I might -- that there was an Inter-ministerial 8 Committee meeting on September 7th? 9 A: That's right. 10 Q: All right, and you attended that 11 meeting? 12 A: I did. And you'll see the notes 13 begin for that -- 14 Q: Hmm hmm. 15 A: -- meeting begin at page 2. 16 Q: All right. And what can you recall 17 about what happened at that meeting? 18 A: There was an update provided, I 19 believe, by Mr. Fox. The focus of the meeting as I 20 remember it was a desire by Deputy Taman to ensure the 21 orderly flow of information up and down. 22 Q: Hmm hmm. 23 A: It was one of these situations where 24 you had a large number of people all talking at the same 25 time and there was a concern that that had, at this
3171 point, sort of hampered the ability of information to 2 flow up to the Minister in an orderly way and for 3 direction to flow down from the Minister in an orderly 4 way. 5 And you'll see there's reference here to 6 the creation of something called the nerve centre and an 7 effort by minister -- Deputy Taman to try and provide 8 some more structure and focus to the way information 9 flowed back and forth and the way instruction flowed 10 down. 11 Q: Okay. You've -- you've referred to 12 Deputy Taman. Is that Deputy Minister Larry Taman? 13 A: That's right. 14 Q: -- or Deputy Attorney General? 15 A: Deputy Attorney General Larry Taman. 16 Q: And Deputy Minister responsible for 17 Aboriginal affairs? 18 A: That's correct. 19 Q: Okay, were there any other deputy 20 ministers present that you can recall? 21 A: I don't -- it's possible that Elaine 22 Todres was there but I don't -- 23 Q: Hmm hmm. 24 A: -- know. I don't remember that. I 25 don't have a --
3181 Q: Hmm hmm. 2 A: I don't think I have a note of her 3 being in attendance. I'm not -- 4 Q: Hmm hmm. 5 A: -- she wasn't, I'm just saying I 6 don't have any recollection of that. 7 Q: Okay. 8 A: I do have some vague recollection of 9 her being there but I can't -- I certainly -- I wouldn't 10 want to swear to that. 11 Q: Okay. All right, and what 12 significance did you attach to Deputy Attorney General 13 Taman's attendance at that committee meeting on that day? 14 A: My sense was that it was more just to 15 prevent any kind of broken telephone; that he had -- he 16 wanted to make people aware of what the role of the 17 committee was going to be given the sense of what the -- 18 the structure was that there was being imposed and make 19 sure that everybody knew -- 20 Q: Hmm hmm. 21 A: -- exactly what the -- the reporting 22 relationships were going to be in terms of how that 23 committee was to work and who was to be involved, who 24 wasn't to be involved and how that process was going to 25 go forward.
3191 Q: Okay, and were there any political 2 staff present that you can recall? 3 A: I don't remember. 4 Q: All right. 5 A: There might have been. I don't have 6 a note, I don't think, of anybody on the political side 7 speaking. I know that part of what was happening was to 8 try to focus the political side to -- back on to directly 9 communicating up to the Ministers and -- and if you like, 10 this nerve centre. 11 Q: Hmm hmm. 12 A: And to keep the emergencies committee 13 as more of a sort of an officials forum. 14 Q: Right, and by officials you mean -- 15 A: Civil servants. 16 Q: -- civil servants, yeah. And, okay, 17 can you recall having any other involvement with matters 18 relating to Ipperwash in the -- after attending this 19 committee meeting on September 7th? 20 A: In terms of the immediate time frame, 21 no. I had some involvement later with respect to 22 providing some advice around some of the legal issues 23 that arose in the later prosecutions but beyond that, no. 24 Q: Okay. All right, just one moment, 25 sir.
3201 (BRIEF PAUSE) 2 3 Q: Mr. Hutchison, normally we afford 4 witnesses the opportunity, if they so choose to speak 5 through this forum about any recommendations that they 6 might suggest to the Commissioner arising out of the 7 events of September 1995. 8 Do you wish to make any comments in that 9 regard? 10 A: I don't. 11 Q: Okay. And do you have anything else 12 you'd like to add? 13 A: No. 14 Q: All right. Thank you, Mr. Hutchison 15 very much for travelling up and assisting us today. 16 Those were all my questions for you. I'm sure My Friends 17 will have some questions for you. 18 And this might be a good time to canvass 19 the parties about the time frame. 20 COMMISSIONER SIDNEY LINDEN: Thank you. 21 This would give you a good idea as well as what to look 22 forward to, what to expect. 23 Does anybody have any questions for Mr. 24 Hutchison? If you would please stand, then I can get an 25 idea.
3211 I think the order was Mr. Downard, how 2 long do you anticipate? 3 MR. PETER DOWNARD: Not long, about 4 fifteen (15) and perhaps -- maybe a bit less. 5 COMMISSIONER SIDNEY LINDEN: Mr. Millar, 6 are you making a note of this? 7 MR. DERRY MILLAR: Yes. 8 COMMISSIONER SIDNEY LINDEN: Yes, on 9 behalf of Mr. Runciman? 10 MR. IAN SMITH: Ten (10) minutes or less. 11 COMMISSIONER SIDNEY LINDEN: Ten (10) 12 minutes or less. 13 Counsel on behalf of Mr. Hodgson? 14 MS. MEGAN MACKEY: I'm not certain, I'd 15 like to reserve ten (10) minutes. 16 COMMISSIONER SIDNEY LINDEN: Mr. Sulman, 17 do you have any questions? No -- 18 MR. DOUGLAS SULMAN: No. Thank you, sir. 19 COMMISSIONER SIDNEY LINDEN: -- because 20 you're not on your feet. 21 Ms. Perschy...? 22 MS. ANNA PERSCHY: I think I'll be 23 probably about an hour, an hour and a half, I'm really 24 going to tighten it up -- 25 COMMISSIONER SIDNEY LINDEN: On behalf of
3221 Deb Hutton...? 2 OPP, OPPA...? 3 MS. KATHERINE HENSEL: The OPP is -- 4 COMMISSIONER SIDNEY LINDEN: Oh, I'm 5 sorry, I didn't see you Ms. Jackson. Sorry. 6 MS. ANDREA TUCK-JACKSON: I was hiding, 7 Mr. Commissioner. Ten (10) minutes approximately. 8 COMMISSIONER SIDNEY LINDEN: We're all 9 tired. Okay. And Mr. O'Marra is he here, he's not on 10 his feet. 11 Okay. Mr. Klippenstein...? 12 MR. MURRAY KLIPPENSTEIN: Maybe two (2) 13 to three (3) hours. 14 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 15 Ross...? 16 MR. ANTHONY ROSS: Ninety (90) minutes 17 and dropping. 18 COMMISSIONER SIDNEY LINDEN: I flipped, I 19 should have asked you first, Ms. Esmonde. 20 MS. JACKIE ESMONDE: One (1) to two (2) 21 hours, possibly less. 22 COMMISSIONER SIDNEY LINDEN: Yes, on 23 behalf of the First Nation Chippewas of Kettle and Stony 24 Point? 25 MS. COLLEEN JOHNSON: Ms. Johnson, to
3231 refresh your memory. Possibly none but out of an 2 abundance of caution I'd reserve ten (10) minutes. 3 COMMISSIONER SIDNEY LINDEN: And Mr. 4 Horner on behalf of the Chiefs? 5 MR. MATTHEW HORNER: Mr. Horton will be 6 doing the cross-examination and we anticipate about 7 thirty (30) minutes. 8 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 9 Twohig...? 10 MS. KIM TWOHIG: I don't have any now but 11 I'd like to wait until I've heard from My Friends. So 12 I'm going to reserve some time, perhaps half an hour. 13 14 (BRIEF PAUSE) 15 16 COMMISSIONER SIDNEY LINDEN: There's 17 nobody here on behalf of Aboriginal -- 18 MR. DERRY MILLAR: Well, yeah -- 19 COMMISSIONER SIDNEY LINDEN: -- Legal 20 Services of Toronto. 21 MR. DERRY MILLAR: Mr. Falconer has 22 indicated that an e-mail had been sent to Ms. Hensel as 23 to -- with respect to their time estimate and so -- but 24 Ms. Hensel's been busy. And if he had sent a copy to me, 25 I would have been able to help, but we know that they
3241 have some cross-examination. It's just until the end of 2 the day, when Ms. Hensel can look at her e-mails, we 3 don't know. 4 COMMISSIONER SIDNEY LINDEN: Okay. How 5 does it add up? 6 MR. DERRY MILLAR: I regret to say -- 7 COMMISSIONER SIDNEY LINDEN: Can we do it 8 in one (1) day? 9 MR. DERRY MILLAR: Well, depending on 10 what ALST has to -- their time estimate, it looks like we 11 can do it in one (1) day. It's about five (5) plus hours 12 but some of the examiners, Mr. Ross for example said 13 ninety (90) minutes and falling, depending on what 14 happens, Ms. Esmonde did as well. So I think, hopefully, 15 we will get it done in -- in -- on Monday. 16 We start at 10:30 on Monday and then -- 17 COMMISSIONER SIDNEY LINDEN: Should we 18 start earlier than 10:30? 19 MR. DERRY MILLAR: I think that we should 20 give more notice than this if we're going to start 21 earlier than 10:30. I think that's something we can 22 discuss with the parties but, in fairness to those who 23 aren't here -- 24 COMMISSIONER SIDNEY LINDEN: I 25 understand. Perhaps we could stay later though if --
3251 MR. DERRY MILLAR: Perhaps we could stay 2 later. 3 COMMISSIONER SIDNEY LINDEN: -- if we're 4 close to finishing, because we would try to finish it in 5 one (1) day. 6 MR. DERRY MILLAR: And Mr. Hutchison has 7 given up his vacation, which we appreciate, to be here. 8 And we don't want to keep him any longer than we have to. 9 COMMISSIONER SIDNEY LINDEN: I understand 10 he's going to be in some difficulty with his spouse. 11 THE WITNESS: There's been talk of the 12 witness protection program for me. 13 COMMISSIONER SIDNEY LINDEN: Well, it's 14 twenty-five (25) after 4:00, should we try to get in one 15 (1) cross-examination now or break and start on Monday? 16 MR. DERRY MILLAR: I think that given the 17 fact we started at 8:30 and it's been a long day, that we 18 should probably -- we'd only have five (5) minutes and 19 it's -- hopefully it will tighten up. 20 I might say from -- given the time 21 estimates, it may be -- it probably -- we will not start 22 Ms. Jai on Monday, but I'll talk to Ms. Twohig about 23 that. 24 But we'll start again on -- 10:30 on 25 Monday and --
3261 THE WITNESS: All right. 2 MR. DERRY MILLAR: -- I'm sorry you have 3 to come back, Mr. Hutchison. 4 5 (WITNESS RETIRES) 6 7 COMMISSIONER SIDNEY LINDEN: We will -- 8 thank you very much coming today and unfortunately we'll 9 see you Monday morning. 10 We will adjourn now until 10:30 on Monday 11 morning. Thank you all very much. 12 THE REGISTRAR: This Public Inquiry is 13 adjourned until Monday August 29th, at 10:30 a.m. 14 15 --- Upon adjourning at 4:23 p.m. 16 17 Certified Correct 18 19 20 ________________________ 21 Dustin Warnock 22 23 24 25