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 29th, 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 ) (Pp) 11 12 Peter Rosenthal ) Aazhoodena and George 13 Jackie Esmonde ) Family Group 14 15 Anthony Ross ) (np) Residents of 16 Cameron Neil ) Aazhoodena (Army Camp) 17 Kevin Scullion ) 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 ) 13 Douglas Sulman, Q.C. ) Marcel Beaubien 14 Dave Jacklin ) (np) 15 Trevor Hinnegan ) (np) 16 17 Mark Sandler ) (np) 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 ) (np) Aboriginal Legal 3 Brian Eyolfson ) (np) Services of Toronto 4 Kimberly Murray ) 5 Julian Roy ) 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 ) Chiefs of Ontario 13 Matthew Horner ) 14 Kathleen Lickers ) (np) 15 16 Mark Fredrick ) (np) Christopher Hodgson 17 Craig Mills ) (np) 18 Megan Mackey ) 19 Erin Tully ) (np) 20 21 David Roebuck ) (np) Debbie Hutton 22 Anna Perschy ) 23 Melissa Panjer ) 24 Danya Cohen-Nehemia ) (np) 25
51 TABLE OF CONTENTS 2 PAGE NO. 3 List of Exhibits 6 4 5 Discussion 7 6 7 SCOTT COLIN HUTCHISON, Resumed 8 9 Continued Cross-Examination by Ms. Katherine Hensel 9 10 Cross-Examination by Mr. Peter Downard 13 11 Cross-Examination by Mr. Ian Smith 21 12 Cross-Examination by Ms. Anna Perschy 28 13 Cross-Examination by Ms. Andrea Tuck-Jackson 102 14 Cross-Examination by Mr. Murray Klippenstein 105 15 Cross-Examination by Ms. Jackie Esmonde 190 16 Cross-Examination by Mr. Kevin Scullion 226 17 Cross-Examination by Mr. William Horton 239 18 19 20 Certificate of Transcript 271 21 22 23 24 25
61 EXHIBITS 2 No. Description Page 3 P-636 Document Number 1011784. Ms. 4 Hipfner's handwritten notes 5 September 06 and 07/'95. 85 6 P-637 Document Number 1011797. Ms. 7 Elizabeth Christie's handwritten 8 notes from IMC meeting Sept 06/'95. 124 9 P-638 Document Number 1011763. A. Prodanou's 10 handwritten notes from IMC meeting Sept 11 06/'95 130 12 P-639 Document Number 1004318. Minister's 13 briefing note Sept. 05/'95. 160 14 15 16 17 18 19 20 21 22 23 24 25
71 --- Upon commencing at 10:31 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: Good 7 morning. 8 MR. DERRY MILLAR: Good morning, 9 Commissioner. Before we begin I would like to just deal 10 with a couple of administrative issues. The first issue 11 is it appears, unfortunately, that due to a variety of 12 circumstances that we are not going to have a witness on 13 Thursday. 14 Ms. Jai cannot be here on Thursday and for 15 a long standing matter that she must be at and which I 16 understand. So we've been attempting to -- had been 17 attempting with -- through Ms. Twohig to get another 18 witness for Thursday. Ms. Twohig's moved here because 19 Mr. Hutchison's her witness. 20 COMMISSIONER SIDNEY LINDEN: Right, 21 right. 22 MR. DERRY MILLAR: And one of the people 23 we had hoped to have come on Thursday regrettably had a 24 death in the family and can't come because of that. So 25 we won't have a witness on Thursday.
81 What we're going to do when we're finished 2 with Mr. Hutchison -- Hutchison is move directly into 3 Julie Jai. And so we'll do Julie Jai -- hopefully we'll 4 start her this afternoon or tomorrow morning and 5 Wednesday and then we wouldn't sit on Thursday. 6 There had been a proposal that on the 7 September 12th and 13th we would have a present -- really 8 a part -- combined Part 1 and Part 2 matter with respect 9 to the OPP, that has been postponed. So, we will be 10 having regular hearing days on September 12th and 13th. 11 And that will be when Ms. Jai's back. 12 COMMISSIONER SIDNEY LINDEN: Thank you 13 very much, Mr. Millar. 14 MR. DERRY MILLAR: Thank you. 15 COMMISSIONER SIDNEY LINDEN: It's 16 difficult for me to see how examination-in-chief in this 17 matter was just about an hour and a half, and if you add 18 up all the cross-examinations it exceeds ten (10) hours. 19 So, I don't know if that's going to hold 20 or not. We'll see how it goes when we actually go 21 through the cross-examination. We'll see. 22 MS. KATHERINE HENSEL: Good morning, Mr. 23 Commissioner. Good morning, Mr. Hutchison. 24 25 SCOTT COLIN HUTCHISON, Resumed;
91 2 CONTINUED EXAMINATION-IN-CHIEF BY MR. KATHERINE HENSEL: 3 Q: I just have one -- one further 4 question, a point of clarification actually with Mr. 5 Hutchison before Mr. Downard begins his cross- 6 examination. 7 Mr. Hutchison, if I could take you to Tab 8 2 of the materials in front of you; it's a document 9 that's been entered in these proceedings as Exhibit P- 10 635. You identified them last day on August 25th as your 11 handwritten notes. 12 A: That's correct. 13 Q: You testified that they -- you 14 believe they were your notes made as a result of your 15 attendance at the meeting on September 6th that -- 16 A: That's right. 17 Q: -- what we discussed? And do you 18 have anything further to add concerning these notes? 19 A: Only that as I look at them, I note 20 that at the top and the upper right hand corner of what's 21 marked as page 1, there is a box reference, and on the 22 copy I have, the -- you can only read the second word in 23 that, and it's "brief". 24 I believe as I look at them now that, in 25 fact, the first page and so that -- over to the top of
101 page 2 is, in fact, notes from some kind of briefing of 2 the Deputy or some other person before the emergencies 3 group and then you'll see that, about a third of the way 4 down page 2, the word "emergency group" appears and 5 that's where the notes of the actual meeting begin. 6 I think that what -- the notes from before 7 that, including the passage that you took me to are, in 8 fact, from some other meet -- meeting or briefing that 9 took place prior to that meeting starting. 10 Q: All right. And -- 11 A: They're all relevant to the 12 proceedings, it's just that the -- the sequencing. 13 Q: Okay. And can you now recall the 14 meeting that gave rise -- that would have given rise to - 15 - to the first page and a half of your notes? 16 A: I have no actual independent 17 recollection of that pre-briefing. But as I look at the 18 note, it seems fairly clear to me that given the practice 19 of note taking that I had at the time and the contents of 20 the notes, that that's where that -- well, that's that 21 first page and that theory would have come from. 22 Q: Okay. And based on your note taking 23 practices, was that a briefing that you provided to 24 someone else or -- 25 A: It was probably a briefing that
111 involved a number of people. As -- as I look at the 2 contents of the notes, I'm going to assume that there's 3 somebody at that pre-briefing providing a factual 4 background. 5 There's probably somebody from the civil 6 side, I would guess, Mr. McCabe, providing some kind of 7 background with respect to civil law issues. And 8 somewhere in the course of that briefing I would have 9 provided what was the standard criminal advice which is 10 noted at the top of the page. 11 Q: Which is what you're referring to as 12 Number 1 Police Decision -- 13 A: That's exactly -- 14 Q: -- that passage there? 15 A: The emphasis on the notion that -- 16 that the police are in charge of a situation like this, 17 not the Crown, not the Attorney General. The notion that 18 our role in these matters on the criminal side is to 19 provide advice, not to direct anything, and finally the 20 notation that in situations like this, the OPP is 21 normally happier to have an injunction. 22 It puts them in a better legal position 23 and it limits the opportunity for any sort of recurrence 24 of the incident given rise to the involvement of the OPP. 25 Q: Okay. And if I could just take you
121 to one (1) passage there. You say -- it appears to me to 2 be -- to read, "not ex parte" an arrow and then 3 "criminal." 4 Based on your understanding that -- 5 A: Hmm hmm. 6 Q: -- this -- this meeting took place 7 before the September 6th mini -- committee meeting, do 8 you have any -- any recollection about what -- what that 9 passage meant -- means there? 10 A: I can't. And in fairness, again, 11 these are notes that as often as not are simply little 12 things that I'm jotting down during the course of the 13 meeting that frankly, on later reflection, I can't tell 14 you exactly what they mean and you would be wrong to try 15 and tease out of them a connection even between those two 16 (2) ideas. 17 Q: Yes. 18 A: There might be one but I don't have 19 that mind when at the time. 20 Q: Okay. Well thank you, and we do 21 appreciate it when -- when people cut short their 22 speculations. 23 A: Yes. 24 Q: So thank you very much, Mr. 25 Hutchison, that's all my -- these are all my questions.
131 COMMISSIONER SIDNEY LINDEN: Thank you. 2 I think Mr. Downard is the first cross-examiner. 3 MR. PETER DOWNARD: Good morning, 4 Commissioner. 5 COMMISSIONER SIDNEY LINDEN: Good 6 morning. 7 8 CROSS-EXAMINATION BY MR. PETER DOWNARD: 9 Q: Good morning, Mr. Hutchison. 10 A: Good morning. 11 Q: My name's Peter Downard and I appear 12 for the former Ontario Premier, Mike Harris. 13 Sir, we have heard some reference in the 14 course of examinations past that in September of 1991 the 15 Ontario Government moved for an ex parte injunction in a 16 case involving a blockade led by First Nations people 17 near Beardmore Ontario, regarding something called the 18 High Falls Power Project. 19 Is that something that you would have had 20 any involvement in, in 1991? 21 A: If you can find a record of me going 22 to a meeting, I'll defer to that, but I have no 23 independent recollection at this time of having any 24 involvement. And indeed, my recollection is that any 25 meaningful involvement I had with respect to the
141 emergencies committee would have started in '95. 2 That's the only actual recollection of 3 specific involvement that I have. 4 Q: Thank you. Now, you said in your 5 evidence on Friday that at the September 6th 6 Interministerial Committee Meeting you gave legal advice 7 that the Government cannot direct police or demand that 8 police take action, correct? 9 A: Correct. 10 Q: And it's fair to say that when you 11 gave that advice you stated it very clearly and plainly, 12 right? 13 A: Absolutely. It's a fairly straight- 14 forward proposition. 15 Q: Right. And -- 16 A: And I should say that's put in 17 conjunction with the proposition that, essentially that 18 the province is in no higher or lower position than any 19 other landholder or claimant and that you -- you can ask 20 the police in the same way that anybody can phone the 21 police and make a complaint, but it's a fairly straight- 22 forward proposition in that respect. 23 Q: Right. The Government, just like 24 anyone else, can't tell the police what to do? 25 A: Exactly.
151 Q: Right. And you referred to that 2 general principle in your evidence on -- on Friday and I 3 take it, though, that you -- and I think you may have 4 answered this already, but you made this advice, you 5 stated this advice very clearly and plainly at the 6 meeting, right? 7 A: Yeah. 8 Q: And I -- I take it that when you gave 9 this advice you were speaking to the room? 10 A: True. 11 Q: And Ron Fox, was he present in the 12 room? 13 A: He was. He may even have been 14 sitting right beside me. 15 Q: He was sitting right beside you? 16 A: I -- I can't say. I -- I recall that 17 at one (1) of the two (2) meetings we sat together. 18 Q: Well, one (1) of the two (2)? Well, 19 you were only at the one (1) Interministerial Committee 20 Meeting? 21 A: No, I -- I was at the second one. 22 Q: Right. You were at the second one? 23 Right. 24 A: No, I was at -- oh, sorry, my 25 recollection is of -- I -- I have a recollection of two
161 (2) meetings; one on the 6th and one on the 7th. 2 Q: Oh, I -- oh, I see. I'm sorry, I'm 3 sorry. 4 A: Yes. 5 Q: That's -- that's quite right, I'd 6 forgotten your reference to the 7th. 7 So -- but, was -- was Ron Fox in the room 8 when you gave this clear and plain advice in the 9 September 6th meeting? 10 A: I -- I couldn't tell you to a -- to a 11 certainty that he was. 12 Q: Okay. 13 A: I -- I expect he was. I don't recall 14 him coming or going, but I wouldn't want to say to a 15 certainty that he was there. 16 Q: All right. But, we've heard other 17 evidence in that respect. Your -- your evidence is that 18 you just don't recall one or the other at the moment? 19 A: Exactly. And -- and it's one (1) of 20 those; I don't recalls, it doesn't mean it didn't happen, 21 it just means I don't recall. 22 Q: All right. But when you gave this 23 advice you were speaking to the room as a whole? 24 A: Yes. 25 Q: All right. Okay. And in your
171 evidence on Friday you said that it was made clear that 2 the Government can ask but can't direct. And you said 3 that at that time there was a discussion of, well then, 4 let's ask and you couldn't recall further specifics but 5 you thought your advice had been taken. 6 Do you recall giving that evidence? 7 A: I certainly recall my advice had been 8 understood and that the course of the conversation 9 proceeded on that basis. I don't know what people took 10 away from the meeting after that, but for the balance of 11 the meeting I don't the notion of telling the OPP that 12 they had to anything in particular was on the table. 13 Q: Right. Okay. Well, can I refer you 14 to Julie Jai's notes of the September 6th meeting; it 15 should be at Tab 4 of your brief. 16 And you'll see -- 17 A: I have it. 18 Q: Right. And her -- her notes of 19 September 6th have numbers at the top center of the 20 pages. 21 A: I see that. 22 Q: And I'm looking at the page with the 23 number "6" in the center at the top? 24 A: I see that. 25 Q: All right. And do you see where
181 there appears a note of an exchange between Deb, Scott, 2 and then Deb again? 3 A: Yes. 4 Q: All right. Well, I just want to 5 refer you to those -- those notes. They read, quote: 6 "Deb feels MNR, as property owner, can 7 ask OPP to remove people. 8 Scott: You can ask them to remove 9 them; you can't insist or demand that 10 they be removed. 11 Deb: Has MNR asked OPP to remove them? 12 They could be formally requested to do 13 so, but how and when they do it is up 14 to them." 15 And I'll stop the quote there. Sorry, 16 does that say, "up to them" or "up to Ron?" 17 A: To -- to them. 18 Q: Okay. Now, does that refresh your 19 memory as to the substance? 20 A: That -- that's certainly consistent 21 with the recollection I have. I can't say that those are 22 the exact words that people spoke, but it's consistent 23 with how I recall the conversation proceeding. 24 Q: Well, assume that there's evidence 25 given that -- that those were the words spoken by Ms.
191 Hutton in her response to the -- the comment attributed 2 to you, okay? 3 Now, if that was said by her to you at the 4 time, I take it that you would not have understood that 5 comment as indicating any intention on the part of Deb 6 Hutton to inappropriately direct police operations? 7 A: I certainly don't take that comment 8 that way, no. And as I said, I made that comment and it 9 appeared that the balance of the conversation proceeded 10 with that parameter if you like, established in terms of 11 drawing boxes around what could and couldn't happen. 12 Q: And assuming that this responding 13 comment attributed to Ms. Hutton was made, I take it you 14 would agree that that response was consistent with 15 respect for police independence? 16 A: Sure. 17 Q: Thank you. Now I'm going to spare 18 you the -- the bad language this early in the morning 19 but -- 20 A: I was a Crown for sixteen (16) years. 21 I've heard bad language in earlier hours. 22 Q: Okay then. Ms. Hensel asked you 23 whether the December 6th Interministerial Committee 24 meeting, Ms. Hutton said the Premier wanted to quote: 25 "Get the fucking Indians out of the
201 Park and use guns if you have to." 2 Unquote. 3 And you said you certainly never heard 4 that. I take it you never heard from anyone at the 5 meeting, right? 6 A: Oh, no. 7 Q: And you said that if -- if that had 8 been said you would have perceived that as being 9 inappropriate, right? 10 A: Sure. When we talked earlier about 11 what -- what's appropriate and not appropriate for 12 political staff to do at a meeting like this, that -- 13 that would have been offside and I -- I would have 14 reported that back up. 15 Q: Right. And you didn't report 16 anything back up? 17 A: Well, I did report back up, but I 18 didn't report of anything -- anything offside. 19 Q: Not anything like that. 20 A: Yeah. 21 Q: Not anything -- you didn't report 22 back about anything being offside? 23 A: Right. 24 Q: Right. And if that had been said at 25 the meeting, that would have just been flying in the face
211 of your advice, wouldn't it? 2 A: Sure. 3 Q: Right. And so that if those words 4 had been spoke at the meeting, it's likely that you would 5 remember them, right? 6 A: Yeah. As I said before, I not only 7 would I remember them, if I had heard those words, I 8 would have made a note. I might not have captured it 9 verbatim but I would have noted the fact that that kind 10 of comment being made. 11 Q: And you certainly didn't do that, 12 right? 13 A: No. 14 Q: Thank you very much, sir, those are 15 my questions. 16 COMMISSIONER SIDNEY LINDEN: Thank you, 17 Mr. Downard. 18 I think Mr. Smith's on behalf of Mr. 19 Runciman. 20 MR. IAN SMITH: Thank you, Commissioner. 21 COMMISSIONER SIDNEY LINDEN: Good 22 morning. Just a few questions. 23 24 CROSS-EXAMINATION BY MR. IAN SMITH: 25 Q: Good morning, Mr. Hutchison.
221 A: Mr. Smith. 2 Q: I just wanted to clarify a few things 3 from your evidence last day. 4 One of the things you said in your 5 evidence was that the Government of the day in September 6 1995 was more pro-active, that's the word you used, than 7 the previous government that had been in dealing with the 8 problem of this occupation. 9 Do you remember that? 10 A: I -- I don't know if I meant to be 11 specific to this occupation. I know that the Government 12 appeared to be more concerned about staying in front of 13 issues. 14 Q: Okay. Well, I have it in my notes 15 that and I've take a quick look at the transcript that 16 you described two (2) options, that the first option was 17 to -- to hang back and kind of let the matter burn itself 18 out and the other -- another option was a more proactive 19 one and that was to get an injunction. 20 A: Sorry, I had in mind the 21 communications and, yeah, you're quite right. 22 Q: And then you also said in your 23 evidence that on the basis of what you heard at the 24 September 6th meeting, that the first option, that is to 25 hang back and let it burn itself out option was the
231 option preferred by the OPP. 2 A: Yeah, and I think it's safe to say 3 that that was their, if you like, standing position; that 4 they preferred to deal with these issues in that way. 5 Q: Okay. And I just -- I'm -- I'm -- I 6 want to clarify what the source of your understanding for 7 that view was. I'm going to suggest to you it must have 8 been Ron Fox from -- 9 A: That -- that's true. 10 Q: And were you aware at -- as of the 11 date of September 6th that the OPP had a policy of 12 getting injunctions in order to deal with blockades and 13 occupations and things like that. 14 A: I know that the OPP preferred to have 15 an injunction in place eventually, but they preferred to 16 have the injunction because it provided them with a 17 better legal footing. 18 The notion of, if you like, the letting it 19 burn itself out, was simply not to rush on matters, to 20 allow them to proceed, if you like, in a kind of natural 21 way. 22 Q: Well, just let me ask you a little 23 bit about that. First of all, are you aware that the 24 policy of -- the OPP policy of seeking an injunction in 25 matters like this was a policy that predated the election
241 of the Harris Government? 2 A: No. As -- as I say, I don't know 3 that -- I don't know it as a form of policy. I know it 4 as a, sort of, an operational preference. 5 Q: But -- 6 MR. WILLIAM HORTON: Excuse me, 7 Commissioner, just a small point. It wasn't the OPP's 8 policy to seek an injunction. I think we need to be 9 clear about that. The OPP would not apply for an 10 injunction. So, I think it's important on this line of 11 questioning to be reminded of that. 12 COMMISSIONER SIDNEY LINDEN: That we be 13 precise. Yes. 14 MR. IAN SMITH: This -- that's -- I'm -- 15 I'm grateful for that clarification. 16 17 CONTINUED BY MR. IAN SMITH: 18 Q: Clearly the OPP wasn't going to be 19 the applicant for an injunction but that they would ask 20 whoever purported to be the landowner to be the 21 applicant. Is that your understanding? 22 A: I -- I don't know the policy so I 23 don't have an understanding of how the policy worked. 24 Q: Okay. Fair enough. And were you 25 aware as of September 6th that in advance of the
251 occupation of the Park that the police had developed an 2 action plan in the event that the Park was occupied? 3 A: I -- I don't recall being made aware 4 of that. 5 Q: Okay. And in any event, an 6 injunction was what the committee agreed to recommend? 7 A: That's my recollection. 8 Q: And then it would be up to the police 9 to use their discretion as to how to enforce that 10 injunction if it were granted? 11 A: I -- I suppose it depends on the 12 wording of the injunction. But, yeah. 13 Q: I'm going to suggest to you, Mr. 14 Hutchison, one of the things you said was that there was 15 a difference in tone with this -- the new government that 16 was made plain in the meeting by political staffers. 17 A: Yes. 18 Q: And I'm going to suggest to you that 19 nothing said by Kathryn Hunt, Mr. Runciman's 20 representative at that meeting, led you to that view. 21 A: No. I -- I didn't know her by sight 22 or even by name at the time. I -- I can't attribute a 23 comment to her that would have caused me to think that. 24 Q: And can you go to Tab 7 in the book 25 you have which I think is -- should be a set of minutes
261 of that meeting -- meeting notes. 2 A: Yes, I have it. 3 Q: And could you go to page 2 of those 4 notes, you'll see a rubric, Minister's Directives. 5 A: Yes. 6 Q: And then -- 7 COMMISSIONER SIDNEY LINDEN: It should 8 have been -- 9 MR. IAN SMITH: I don't think it has an 10 exhibit number yet. It's Tab 7. 11 COMMISSIONER SIDNEY LINDEN: P-509 I 12 think. I think so. 13 MR. IAN SMITH: 509. I'm terribly sorry. 14 COMMISSIONER SIDNEY LINDEN: Is that 15 right, Mr. -- 16 THE REGISTRAR: Yes. 17 COMMISSIONER SIDNEY LINDEN: 509. 18 MR. IAN SMITH: Okay. 19 COMMISSIONER SIDNEY LINDEN: And you're 20 on page 2? 21 22 CONTINUED BY MR. IAN SMITH: 23 Q: Page 2 under the heading, Minister's 24 Directives, and then you'll see the short form SGC which 25 is short for Solicitor General I'll suggest. And it
271 indicates: 2 "As a matter of protocol, the Solicitor 3 General does not involve itself in the 4 day- to-day operations of the OPP." 5 And then it continues to say: 6 "The OPP will use its discretion." 7 And do you remember Kathryn Hunt putting 8 that position to the meeting? 9 A: I -- I don't. I'm not saying she 10 didn't. I just -- I don't recollect that. 11 Q: And certainly that position wasn't 12 inconsistent with any of the advice you gave to the -- to 13 the group? 14 A: No. 15 Q: Thank you. Those are all my 16 questions. 17 COMMISSIONER SIDNEY LINDEN: Thank you. 18 Is there anybody here on behalf of Mr. Hodgson? Yes? 19 MS. MEGAN MACKEY: We don't have any 20 questions. 21 COMMISSIONER SIDNEY LINDEN: No questions, 22 that's fine. 23 Ms. Perschy, I think you've next up on 24 behalf of Ms. Deb Hutton. 25 MS. ANNA PERSCHY: Good morning,
281 Commissioner. 2 3 CROSS-EXAMINATION BY MS. ANNA PERSCHY: 4 Q: Good morning, Mr. Hutchison. As 5 Commissioner Linden indicated, my name is Anna Perschy 6 and I appear on behalf of Deb Hutton who was the 7 Executive Assistant to the Premier at the time. 8 You were Crown Counsel with the Ministry 9 of the Attorney General for over fifteen (15) years, 10 right? 11 A: That's right. 12 Q: You've provided some testimony 13 regarding the roles and responsibilities of civil 14 servants and political staff and I just wanted to ask a 15 few additional questions regarding how government 16 functions in some of the roles and responsibilities of 17 those within government. 18 Now, our system of government in Ontario 19 is based on the concept of ministerial responsibilities; 20 is that right? 21 A: Sure. 22 Q: And ministers are responsible or 23 accountable to the legislature and ultimately to the 24 voters, to the people of the Province? 25 A: Yes.
291 Q: And all members of Cabinet are 2 ministers including the Premier? 3 A: Correct. 4 Q: And ministerial responsibility is 5 both an individual responsibility and a collective one on 6 the part of the Cabinet as a whole? 7 A: From Poly-Sci 101 I'd agree with 8 that, yes. 9 Q: Cabinet has a collective 10 responsibility for the Government's performance? 11 A: Again, from Poly-Sci 101, yes. 12 Q: Cabinet and the ministers 13 individually, as well as the collective, Cabinet is 14 expected to explain what would justify the direction and 15 management of government in the face of questions and, 16 perhaps, criticisms from the opposition in the media and, 17 ultimately, the people? 18 A: Sure. Sure. The only issue I take 19 with any of these sort of broad propositions about how a 20 parliamentary system of government works is that the 21 Attorney General and the Solicitor General have unique 22 roles as ministers. And we can get into a long 23 conversation, but I'd refer to Professor Edwards' book, 24 first. 25 Q: Well, I thank you for that and -- and
301 we'll actually come to the role of the Minister of the 2 Attorney General in just a moment. But I take it that -- 3 that you appreciate that whether any issues which may 4 have significance to the Province, the opposition, the 5 media, the general public, they're going to look to the 6 Premier for a response? 7 A: That's the reality of politics, sure. 8 Q: Now, as you indicated you were a 9 civil servant within the Ministry of the Attorney General 10 for many years so you've -- you've had a fair amount of 11 experience in providing advice to various people within 12 government. 13 A: Sure. 14 Q: And I take it that the providing of 15 advice is not necessarily or even typically just a single 16 instance of communication flowing one (1) way? There may 17 be questions, comments, requests for clarification which 18 result in further research and review and further advice 19 being given -- 20 A: Sure there is. 21 Q: -- sort of, communication back and 22 forth? 23 A: It depends on the nature of the 24 issue, but a complex matter that has an existence within 25 government for a period of time, sure.
311 Q: And I take it that that kind of back 2 and forth communication may improve the quality of the 3 advice being given and make it more responsive, more 4 fully thought out? 5 A: Again, if it's -- let's talk only in 6 terms of policy issues for now and -- and put an asterisk 7 beside the role of the AG for any of the answers I've 8 given you. 9 Q: Fair enough. 10 A: But in terms of government generally, 11 I'd agree with the proposition. 12 Q: Now, you described on Friday, the 13 fairly formal reporting structure for civil servants 14 within MAG and the criminal branch in particular and I 15 take it that's primarily the structure that -- that 16 you're familiar with? 17 A: Yeah. I know that the structure in 18 other ministries essentially follows the same line; the 19 Director, Assistant Deputy, Deputy, to the Minister. 20 Q: But, as you mentioned a few minutes 21 ago there are some distinctions with respect to the 22 Ministry of the Attorney General and -- and I just wanted 23 to ask you a few questions in regards to that. 24 A: I should say, as well, just to 25 clarify, that's if you like the -- the default reporting
321 structure and it's not -- 2 Q: Yes. 3 A: -- unheard of for people to jump one 4 (1) level or two (2) in terms of that on -- on the civil 5 servants' side and for -- with appropriate notices being 6 given or people being aware of it for different sort of 7 one (1) off or ad hoc relationships to exist. 8 But that's the -- the presumed default 9 role, or rather process, that will be used for advice to 10 up and direction to come down. 11 Q: And I take it, that as a practical 12 matter this formal reporting structure isn't followed in 13 the way that you've just described because it's somewhat 14 cumbersome and time-consuming and in some situations that 15 maybe counterproductive? 16 A: Sure. And there are times as well 17 when it -- it doesn't necessarily add value or you've got 18 people who are, you know, reasonably sophisticated in a 19 position who, for example, a Deputy or an Assistant 20 Deputy trusts to provide good, quality advice without 21 necessarily every bit of information passing through that 22 layer. 23 Q: And I think you mentioned that where 24 this reporting structure isn't followed, it's important 25 that that be done with the knowledge of the Deputy
331 Minister? 2 A: Yes. 3 Q: And you knew that the 4 Interministerial Committee on Aboriginal Emergencies was 5 a committee where political staff may be present along 6 with civil servants? 7 A: I might not have known that before I 8 walked in, but I certainly know now that it was one where 9 they attended and participated. 10 Q: And you mentioned, for instance, that 11 you had some sort of briefing with -- with the Deputy 12 prior to your attendance at the Interministerial 13 Committee? 14 A: That's my recollection today based on 15 the note. And -- and again, if you'd asked me before I 16 looked at the note had there been such a briefing I would 17 have probably had to defer to the note, but having looked 18 at and when I think about it now I think that's what 19 happened. 20 Q: Fair enough. It was ten (10) years 21 but you'd expect, generally, that Deputy Ministers would 22 be generally aware of a purpose and structure of such an 23 Interministerial Committee -- 24 A: Sure. 25 Q: -- and that political staff might be
341 in attendance. And you's also expect that deputy 2 ministers would be aware that political staff had been 3 invited to attend a particular meeting. 4 Would you expect that they have some 5 knowledge? 6 A: I don't know that they -- I don't 7 know that they'd know exactly who'd been invited to 8 attend a particular meeting. I know that given the 9 nature of the committee, it -- a deputy couldn't express 10 any surprise of the fact that political staff attend. 11 Q: But you'd expect that civil servants 12 would advise as to who attended a meeting to the extent 13 that it's relevant when they report back to the deputy 14 ministers? 15 A: Sure. 16 Q: And I just wanted to come back just 17 briefly to the -- to the role of the Ministry of the 18 Attorney General. And my understanding is it has 19 something of a dual role. 20 For example, Crown attorneys prosecute 21 cases in the name of the Crown where the victim or -- or 22 the complainant is -- is some other individual. However, 23 there are also instances where Crown attorneys may 24 prosecute cases where the offense in question is actually 25 one done to the Crown.
351 I mean -- as -- as a general matter my -- 2 me sense at least is that one way to describe the 3 Ministry of the Attorney General is that sometimes it may 4 act as a lawyer but it's also -- it's also the client. 5 Is that a way to describe the role? 6 A: We're -- we're talking at a level of 7 generalization that will inevitably lead to inaccuracy. 8 The attorney general occupies a number of distinct roles 9 within government; some of them defined by statute, some 10 of them defined constitutionally. 11 The attorney general is responsible for 12 all prosecutions undertaken in the name of the Crown. He 13 or she, is responsible for overseeing how those 14 prosecutions are conducted. The attorney general has a 15 number of very specific powers that are provided by 16 statute under the Criminal Code that are to be exercised 17 in a quasi-judicial fashion. 18 The attorney is also the chief law officer 19 of the Crown and responsible for providing legal advice 20 to Cabinet. That's why for example all lawyers within 21 government don't actually work for the ministries they 22 work for but in fact are seconded from the Ministry of 23 the Attorney General and simply provide legal advice to 24 line ministries, essentially on behalf of the attorney 25 who serves as the chief law officer of the Crown; the
361 person responsible for providing legal advice. 2 The attorney is also constitutionally 3 responsible for the administration of justice, generally 4 in the Province the overseeing of the operation of the 5 courts, the appointment of judges. So, there's this 6 whole range of quasi-judicial functions, constitutional 7 functions that the attorney performs. 8 She also has any number of 9 responsibilities that are the same as the 10 responsibilities of other members of cabinet. So, for 11 example, the attorney can be responsible for preparing 12 important legislation, governing what will happen to very 13 bad dogs. 14 Q: Thank you for that. Now, you 15 testified that both civil servants and political staff 16 provide advice but that political staff provide some 17 analysis to political considerations. 18 Do you -- do you recall referring to 19 that -- 20 A: Sure. 21 Q: -- on Friday? 22 Now, I take it you've never been an 23 elected member of government or part of the minister's 24 political staff? 25 A: No.
371 Q: So, you would have limited personal 2 experience regarding the formulation of that sort of 3 political analysis within government? 4 A: Sure. The only place I would have 5 seen it is in efforts to develop communications around 6 things that I was working on. 7 Q: And in a general way you certainly 8 understand that there is such analysis and that it 9 properly forms part of the advice that ministers receive? 10 A: Sure. But I -- I -- again, with a 11 little asterisk beside the attorney general. 12 Q: Fair enough. You testified that the 13 political service side of a ministry is smaller than -- 14 than the civil service side. And that its structure will 15 be up to the individual minister. 16 A: Hmm hmm. 17 Q: And I take it that would also include 18 the Premier. It would be up to the Premier how he 19 organizes his staff. 20 A: I don't know how the Premier runs his 21 shop. 22 Q: Fair enough. 23 A: I know that it changes from 24 government to government and premier to premier. 25 Q: And from individual to individual I'm
381 assuming. Well, you don't -- 2 A: From premier to premier, yeah. 3 Q: So, how a minister or a premier has 4 his staff organized will vary as you've indicated so the 5 number of people, their roles, their titles, their 6 reports, all of that may vary? 7 A: Sure. Again, I don't know how the 8 premier runs his shops but -- 9 Q: Fair enough. 10 A: -- that's how it works in other 11 places. 12 Q: I take it that, as a result of the 13 formal reporting structure, many civil servants may have 14 limited or no contact with political staff -- 15 A: True. 16 Q: -- would that be fair? 17 A: True. 18 Q: Had you met Deb Hutton before 19 September 1995? 20 A: I don't think so. In fact, I'm 21 pretty sure I hadn't. If I had, it would have been in 22 the context of a much larger group. I certainly hadn't 23 met her one-on-one. I don't think I've ever met her one- 24 on-one. 25 Q: And do civil servants take some sort
391 of oath of confidentiality? 2 A: Yes. 3 Q: And what does that oath involve; do 4 you recall? 5 A: Well, I -- I took mine more than 6 sixteen (16) years ago, so I can't remember. I know that 7 it -- it calls upon you to not disclose confidences, et 8 cetera, in the course -- that you learn in the course of 9 your employment, duly serve Her Majesty the Queen, heirs 10 and successors. 11 But, if you wanted to refer me to the 12 oath, I'd be happy to -- 13 Q: So -- 14 A: -- look at it, but -- but it's the 15 same oath that everybody swears. 16 Q: All right. So, I take it that part 17 of this oath or this oath would also entail that without 18 seeking -- 19 A: Part -- part of this? 20 Q: Part of the oath. 21 A: Oh, the oath. 22 Q: Or what it would involve, an 23 acknowledgement that without seeking appropriate 24 authorization, civil servants shouldn't disclose 25 information regarding any matters that are the subject of
401 litigation or criminal charges that involve the 2 Government? 3 A: I -- I don't know that I'd want to 4 sign on for that broader proposition. I know that -- I - 5 - I'd want to look at the oath again before I told you 6 exactly what you were or weren't allowed to do. 7 I know that the -- and, again, I sort of 8 overlay onto that the fact the fact that I'm in a 9 solicitor/client relationship with -- 10 Q: Yes. 11 A: -- many of the people I'm dealing 12 with, and I've got that responsibility laid onto it as 13 well. Essentially, the -- the rule, as I understand it, 14 is unless you learned it -- or if you learned it in the 15 course of your employment, you should only talk to people 16 about it in the course of your employment. 17 Q: Fair enough. Now, I understand that 18 prior to September 1995 you had appeared before the 19 Supreme Court of Canada and other courts, in at least one 20 (1) case dealing with colour of right; I think you made 21 reference to it in your examination-in-chief? 22 A: It -- Yes. It was an unusual colour 23 of right argument but it's a case called Regina versus 24 Jones and Pamajewam. 25 Q: And we've heard a number of
411 references to the concept of colour of right at this 2 Inquiry, and I wanted to ask you a few questions about 3 your understanding of that concept as of 1995. 4 Now, colour of right is relevant only to a 5 criminal charge, it's not an answer to a civil action; is 6 that your understanding? 7 A: I have no idea. 8 Q: It means an honest belief in a state 9 of affairs that, if it existed, would be a legal 10 justification or excuse to a particular charge? 11 A: I'd agree with that proposition. 12 Q: And as it pertains to criminal 13 matter, I take it there -- there were some limitations to 14 the applicability of this defence as of 1995. And, for 15 example, there is the long-standing principle now in the 16 Criminal Code, but a mistake about law is no defence. 17 So, the colour of right belief doesn't 18 apply if it's in regards to Penal Law, as of '95? 19 A: Well, mistake of law can -- it's a 20 very interesting debate as to what constitutes a mistake 21 of law and what constitutes a mistake of fact, or 22 particularly where the underlying offence includes a 23 particular legal status as an element of the offence. 24 So, for example, the offence of theft, a 25 mistake of law is a defence to theft if it's a mistake
421 with respect to the legal status of ownership. 2 Q: Right. That would be more -- that 3 would be a mixed question of fact and law? 4 A: Sure. 5 Q: And a belief in a moral claim 6 certainly isn't sufficient, it has to be a belief in the 7 state of affairs which, if it existed, would constitute a 8 legal justification or excuse? 9 A: Sure. It's got to -- I mean, the -- 10 the person who seeks to rely on the defence has to be 11 able to honestly say, I actually thought I had a legal 12 right to do this. Not -- it's not enough for people to 13 say, I honestly thought that I should have a legal right 14 to do this, or that, In a more properly ordered legal 15 system I would have a right to do this. 16 Q: And as of '95 the defence of colour 17 of right had only been applied to a criminal charge which 18 expressly embraced the concept within its definition, or 19 do you recall? 20 A: Well, I'd want to grab a Martin's '95 21 before I signed on for it. I'm -- and I'm a little bit 22 uncomfortable with the notion of expressly embraced in 23 it's definition. 24 My understanding is that the defence is 25 available, where some element of the -- it's not actually
431 a defence so much as it is a failure with respect to 2 proving an element of the offense. It's essentially -- 3 Q: It's a mens rea element? 4 A: Yeah. One (1) element of the offence 5 requires the accused have a particular mental state with 6 respect to a legal set of affairs. 7 So, for example, my recollection is that 8 it's a defence to bigamy if you think you were lawfully 9 divorced. If, in fact, it turns out you weren't lawfully 10 divorced -- I see people taking notes. 11 COMMISSIONER SIDNEY LINDEN: It's an in- 12 joke. Yes? 13 THE WITNESS: So, it's not so much a case 14 that the notion that a section Will Say, you know, a 15 colour of right is a defence here, but rather in order to 16 succeed the Crown has to prove that a particular legal 17 state of affairs existed and that the accused was aware 18 of that legal state of affairs. 19 20 CONTINUED BY MS. ANNA PERSCHY: 21 Q: Okay. And I take it, typically 22 colour of right refers to an honest but mistaken belief 23 because if we knew for a fact that the belief was, in 24 fact correct, we wouldn't refer simply to a person that's 25 having colour of right, we would simply refer to them as
441 having the right? 2 A: It's -- it's an honest but mistaken 3 belief. 4 Q: Fair enough. 5 A: It doesn't have to be a reasonable 6 belief but it has to be honest and necessarily it's 7 mistaken because if it wasn't mistaken it would be a 8 right, not a colour of right. 9 Q: Now, while there are general 10 principles regarding how to approach a situation 11 involving an Aboriginal emergency, I take it that in each 12 case you would expect that the Interministerial Committee 13 that was -- that was formed to deal with such things 14 would be responding to a particular situation; context 15 would be important? 16 A: Sure. 17 Q: And you testified that the first 18 Interministerial Committee Meeting that you attended was 19 the one on September 6th, 1995? 20 A: That -- that's my recollection 21 sitting here today. Again, if there's a note that says I 22 went to an earlier one I'd defer to that. 23 Q: And I take it that you -- with 24 respect to any meetings that you hadn't personally 25 attended, you wouldn't have been advised of the full
451 particulars of any prior situations? 2 A: No, again, it's -- it's -- the -- the 3 role that I sometimes occupied was to simply provide 4 basic criminal advice to people who had these sorts of 5 issues arising. 6 So, it's entirely possible that, for 7 example, there's reference to the August 2nd meeting, I 8 wouldn't die of shock if somebody was to produce a note 9 that said Julie Jai phoned me on August 1st, said, We're 10 going to have a meeting tomorrow, can you come? I said, 11 No. She said, Well, they were thinking about this issue 12 coming up, can you think if anything from the criminal 13 side that we should have in mind, and she would then 14 relay my views to that committee. 15 I'm not saying that happened in this case, 16 but that scenario wouldn't be beyond the pale. 17 Q: Fair enough. And I take it that you 18 did know that on previous occasions under -- under prior 19 governments other representatives of MAG criminal law had 20 attended IMC meetings or provided advice at prior 21 meetings? You would expect that? 22 A: I don't know. 23 Q: No. Fair enough. And you indicated 24 that you hadn't attended the Interministerial Committee 25 Meeting on September 5th?
461 A: I did not. 2 Q: So, you don't have any direct 3 knowledge with respect to that meeting? 4 A: No. 5 Q: It's just the one on the 6th? 6 A: Right. 7 Q: Okay. If you could turn to your 8 notes, sir, of that meeting... 9 A: For the 6th? 10 Q: Yes. I believe it's at Tab 2? 11 A: Yes? 12 Q: I've been advised it's P-6 -- 13 A: P-635. 14 Q: -- 635. Thank you. 15 16 (BRIEF PAUSE) 17 18 Q: Now, you mentioned this morning that 19 the notes, with respect to the meeting, actually start in 20 -- on the middle of the second page? 21 A: That's right. 22 Q: Where -- under the heading, 23 Emergencies Group? 24 A: That's right. That -- that's 25 certainly my present recollection. And -- and as I look
471 at the notes that would certainly be consistent with my 2 notes taking -- note taking style at the time. 3 Q: Fair enough. Your notes referred to 4 press issues re. -- and the second bullet is use of 5 negotiations. 6 A: Right. 7 Q: Do you recall a discussion or a 8 distinction rather being made at the Interministerial 9 Committee on September 6th between attempts by police to 10 open the lines of communication with the occupiers on the 11 one hand and substantive negotiations? 12 A: I -- I don't have any recollection of 13 that. I'm not saying it didn't happen. I'm just saying 14 I don't have a recollection of it. 15 Q: Okay. 16 17 (BRIEF PAUSE) 18 19 Q: Could you turn to Ms. Hipfner's 20 notes. They've got -- 21 A: I'll ask you for a tab? 22 Q: Okay. There in -- I've been advised 23 that they're in the blue folder in front of you. 24 A: Blue folder. Can you give me a 25 Inquiry Number? Number ending 74?
481 Q: I'm working from a different set. 2 3 (BRIEF PAUSE) 4 5 A: I think I have the document now. 6 Q: Do you have the document? 7 A: I think I do, yes. 8 Q: Okay. It's the document -- at the 9 top of the page, it's got, "06/09/95, Ab -- Emergency 10 Committee." 11 A: That's right. I have it. 12 Q: If you could turn to the second -- 13 COMMISSIONER SIDNEY LINDEN: Is this 14 Inquiry Document 1011784? 15 THE WITNESS: That's the one I have. 16 COMMISSIONER SIDNEY LINDEN: That's the 17 one. Okay. 18 MS. ANNA PERSCHY: Thank you, 19 Commissioner, for the clarification. 20 21 CONTINUED BY MS. ANNA PERSCHY: 22 Q: On the second -- 23 A: I don't know if this has been 24 exhibited. I think I was referred to it though. 25 COMMISSIONER SIDNEY LINDEN: I'm not
491 sure. Well we don't need the exhibit number to start 2 your examination of it. That's fine. 3 MS. ANNA PERSCHY: I'll go ahead. 4 5 CONTINUED BY MS. ANNA PERSCHY: 6 Q: If you could turn to page 2 just 7 below the -- the comment: 8 "Inspector Carson says use of alcohol 9 quite high." 10 A: Yes. 11 Q: Below that there's a comment: 12 "Hutton: Premier's firm that at no 13 time should anybody but OPP, MNR be 14 involved in discussions despite any 15 offers that might be made by third 16 parties, because get into negotiations 17 and we don't want that." 18 A: Yes, I see that. 19 Q: Now the Government wanted the OPP and 20 possibly MNR to speak to the occupiers to any occupation 21 but didn't want to enter into substantive negotiations 22 while the occupation was ongoing. 23 Do you recall that sort of distinction 24 being drawn at the meeting? 25 A: I know that that was a standard
501 approach. You don't -- you don't negotiate the 2 underlying complaint or grievance. You do negotiate ways 3 to get out of a particular confrontation and you, for 4 example, offer another forum where a particular grievance 5 could be presented. 6 You provide a -- somebody who can act as a 7 sort of go-between to work on those issues, but, 8 generally you don't negotiate the underlying grievance in 9 the context of an outstanding dispute like this. 10 Q: Fair enough. We've heard evidence 11 that there were reports at this meeting that someone had 12 heard automatic gunfire. 13 Do you recall such reports during the 14 meeting? 15 A: I do. I don't recall who exactly 16 presented the report, whether it was somebody from MNR or 17 somebody from OPP, but I recall that comment. 18 Q: And do you recall that Ms. Hutton 19 asked if that information could be confirmed? 20 A: I don't recall that. I'm not saying 21 she didn't, I'm just saying I don't recall it. 22 Q: Fair enough. And there were also 23 some updates from the ministries at this meeting, and if 24 I can actually turn you to your notes, on page 3 -- 25 A: Yes. Okay.
511 Q: -- there's a reference to ministerial 2 updates and the comment: 3 "Now that charges laid, how much longer 4 should ministries be speaking." 5 A: Right. 6 Q: Do you recall what was discussed in 7 that regard? 8 A: I -- I know that one of the themes 9 that was developed in the course of the meeting was to 10 try and determine what could happen in terms of 11 legitimate communications going out of, sort of, 12 government generally. 13 I can't recall who put that issue on the 14 table in terms of the fact that there were -- now that 15 charges have been laid, what should be done. I know that 16 if I spoke to it, my advice would have been the same as 17 the advice I referred to on the last day, which is to say 18 that if there's charges -- there should be no reference 19 to charges; the fact of charges, underlying circumstances 20 of them. 21 And, again, that's fairly standard advice. 22 I'm sure you've all seen a fair number of briefing notes 23 in terms of suggested response or appropriate response 24 wherever charges are involved, that always says, No 25 comments, Matter remains before the courts. And that's
521 fairly standard advice for ministers to receive. 2 Q: And do you recall that during that 3 discussion as to the sorts of issues you've been raising, 4 that Ms. Hunt indicated that the Minister of Sol Gen's 5 reservation about who could speak on behalf of 6 Government, her reservation in that regard came from the 7 fact that Sol Gen had this very protocol that you've just 8 been referencing and this -- this whole concept of -- of 9 not being involved in the day-to-day operations of 10 police? 11 A: I -- I don't recall that. Again, I 12 don't -- don't say it didn't happen, just, I have no 13 recollection of that. 14 Q: Well, if you could just turn back to 15 Ms. Hipfner's notes. 16 17 (BRIEF PAUSE) 18 19 Q: On page -- sorry -- on page 3. 20 A: I don't have a page 3. I have one 21 (1), two (2), and then it jumps to -- oh, sorry, it's 22 just out of order. It's here. Top line, "Fox will 23 make?" 24 Q: Yes. Top line, "Fox will make 25 inquiry."
531 I'll just read it out so that it's -- it's 2 clear. There's some comments by Mr. Bangs, and then Mr. 3 Sturdy says: 4 "Also a question of what M. (phonetic) 5 can say if OPP are handling this, and 6 especially now that charges have been 7 laid" -- 8 A: Okay. I'm not sure that that's 9 necessarily referable to Sturdy only because she's got 10 the name scored out. So, I don't know whether that's 11 simply a -- she's -- she's corrected that -- 12 Q: It's actually -- it's -- it's the 13 line just above that. Just below that there's "Hunt" 14 slashed out and then "Morin" (phonetic) -- 15 A: Right. 16 Q: -- and: 17 "Can't have OPP speak on behalf of 18 government, Honnick (phonetic), if AG 19 is being asked to seek injunction, will 20 do so ASAP. With regard to public 21 carriage of the issues, we're open to 22 direction from the centre." 23 And then below that: 24 "Hunt - Runciman's reservation comes 25 from the fact that Sol Gen's protocol
541 is not to be involved in the day-to-day 2 operation of police. Political arms 3 should be divorced." 4 Does -- does that assist you in terms of 5 refreshing your recollection as to this comment with 6 respect to this protocol being raised in this context? 7 A: I certainly wouldn't take issue with 8 anything in the notes. I have no independent 9 recollection of this particular conversation. It's -- 10 it's certainly consistent with the way things went at the 11 meeting, but I have -- I'd -- I'd be lying if I said I 12 remembered this happening. 13 Q: Fair enough. And I take it that you 14 don't recall anyone expressing any disagreement with the 15 statement regarding Sol Gen's protocol? 16 A: I don't recall that, no. 17 Q: Okay. Do you recall a discussion as 18 to whether there should be a local spokesperson or 19 whether the Premier's office should be speaking to this 20 issue? 21 A: I recall some debate about -- or 22 debate's probably the wrong word -- discussion about how 23 to deal with communications issues, generally. There 24 were issues of trying to find who the -- the correct 25 spokesperson would be. I think at one (1) point there
551 was a suggestion, the local MPP and that was discounted 2 as inappropriate. 3 Q: I'm -- I'm sorry, I missed that first 4 part. 5 A: Some reference to the possibility of 6 the local MPP being an appropriate person; that was 7 discounted. I -- I know that communications issues were 8 a significant part of the meeting. 9 Q: Fair enough. And if you turn back to 10 Ms. Hipfner's notes at page 4, it starts with a comment 11 from, or there's a reference at least, to a comment 12 attributed to Allen (phonetic). 13 "One of the things this committee has 14 done successfully in the past is to 15 keep issues local. NB (phonetic), but 16 spokesperson is local. Before news 17 release go out this committee has 18 vetted them to ensure consistency 19 across the piece. JJ (phonetic), 20 comment subcommittee. 21 [And then] Hutton: Premier's office 22 wants to be seen as having control. 23 Moving expeditiously. As a matter of 24 principle, generally agree, but in this 25 situation not adverse to having this be
561 seen as a political issue." 2 I take it these comments are consistent 3 with your recollection of this discussion that you've 4 just been describing? 5 A: I -- I would agree with that. I 6 don't recall the specifics of this, but this is 7 consistent with how the conversation went. 8 Q: Fair enough. So, there was a 9 discussion along these lines about political optics, 10 communication, who was going to be seen as dealing with 11 this; that -- that's your recollection? 12 A: Yeah. My interest in it would only 13 have been to make sure that they say no more than they're 14 allowed to say on the -- in terms of the communications 15 going out. How they actually decide to spin within those 16 parameters isn't my issue. 17 Q: Fair enough. And primarily, this is 18 an issue that the political staffers have -- have 19 responsibility for; how the Government wants to be seen, 20 who's to communicate the Government's position, how, 21 within -- within the parameters of you just described? 22 A: Within the parameters and again, 23 always with a little asterisk beside the role of the AG. 24 Q: Fair enough. Then there's a 25 discussion about proceeding with the injunction. Do you
571 recall Tim McCabe speaking about that? 2 A: I do. Well, I -- I again, not 3 verbatim, but I certainly recall Tim, sort of, setting 4 out the different options that were available, the pros, 5 the con's and then the challenges that would be presented 6 by any particular course of action. 7 Q: And do you recall him indicating that 8 they would need time to prepare the injunction materials 9 and that the best case scenario was Friday? 10 A: I -- I recall that kind of 11 discussion, yes. 12 Q: Okay. 13 A: I've seen -- I've seen a note to that 14 affect somewhere as well and I'm trying to -- I can't 15 differentiate between an independent recollection and 16 having seen the note. 17 Q: Do you recall someone expressing a 18 concern about delay and making a comment about the need 19 to resolve the occupation in a timely fashion? 20 A: I certainly recall there being a -- a 21 view expressed to move expeditiously to -- to wind it up 22 and that the desire was not to simply allow the thing to, 23 sort of, follow its natural course as had been the case 24 in other blockades. The particular language you've just 25 used, I don't recall specifically.
581 (BRIEF PAUSE) 2 3 Q: Well, I think, since you've got Ms. 4 Hipfner's notes, if you could turn to page 5. 5 A: Yes. 6 Q: Under the line, "Best case scenario 7 Friday" -- 8 A: Hmm hmm. 9 Q: -- there's a comment -- 10 A: Sorry. Sorry. Let me catch up to 11 you. On page 5. Sorry. Yes. "Best case scenario." 12 Yes. And then a comment attributed to Ms. Hutton. 13 Q: Yes. 14 "Premier's view that the longer 15 occupiers are there, the greater the 16 opportunity they have to garner support 17 on (sic) themselves." 18 A: Hmm hmm. 19 Q: Or "harm selves." 20 A: I see that. 21 Q: And that -- and that's consistent 22 with -- with your recollection, something along those 23 lines? 24 A: Sure. 25 Q: You were aware of the fact that the
591 police couldn't secure and prevent access to the Park at 2 the time? 3 A: No, I wasn't. 4 Q: Okay. 5 A: I notice -- I might have been aware 6 at the time. Sitting here today, I don't have any 7 recollection of that. Sorry, and your -- was that they 8 couldn't; is -- is that the proposition you put? 9 Q: That they could not secure, they -- 10 they had it cordoned off but -- but they couldn't prevent 11 some access coming through -- through the Camp. 12 Were you aware of that at the time? 13 A: I might have been. Sitting here, I 14 don't have a recollection of that though. 15 Q: Okay. But you did know that there 16 had been some reports of gunfire at this point in the 17 meeting? 18 You -- you'd heard there had been some 19 reports? 20 A: Yeah. And the note that I have is 21 that there was a suggestion that there was heavy 22 machinery being used somewhere in the Park and gunfire. 23 And my recollection and my note is to the effect that 24 that report came not from the OPP but from somebody from 25 MNR.
601 Q: Right. And you know -- you knew from 2 the briefing on September 6th that the situation had 3 escalated from the previous day? 4 A: On -- on the 6th? 5 Q: Did you have that understanding? 6 MR. MURRAY KLIPPENSTEIN: I don't object 7 to My Friend asking those sorts of questions but that's a 8 very large conclusion that's of great significance. And 9 I just suggest it's not a proper question, it has many 10 conclusions built into it. And if My Friend wants to 11 cite the evidence of other witnesses, I'd just ask she do 12 so precisely. 13 THE WITNESS: I'm also happy to say I 14 don't have that recollection. I'm sorry. 15 16 CONTINUED BY MS. ANNA PERSCHY: 17 Q: That's fair enough. Inspector Fox 18 had testified when he was cross-examined on July 14th, 19 and it's at page 18 for the assistance of My Friend, that 20 that was, in fact, obvious from his report, but you don't 21 have a recollection -- 22 A: Not -- not having been intimately 23 involved on the 5th, I -- I can't compare the 5th to the 24 6th. 25 Q: Fair enough. But you realized that
611 occupations like this were not entirely predictable? 2 A: Were not which? 3 Q: Entirely predictable. 4 A: No. 5 Q: And I take it that you appreciate 6 that there's a distinction between the following; 7 speaking of authority, with conviction, perhaps even 8 forcefully, about the need to end the occupation quickly, 9 on the one hand, and 2, advocating that the removal of 10 occupiers should be effected through the use of physical 11 force. 12 The first is a comment about an overall 13 objective and timing while the second is a comment about 14 means, right? 15 You can see there's a distinction between 16 the two (2)? 17 A: Sure. The proposition you state is 18 self-evident. 19 Q: I'm going to suggest that the comment 20 at the meeting, which I've referred to from Julie Jai's 21 notes, spoke to a concern with respect to delay? 22 A: Sorry. Which comment are you 23 referring to now? 24 Q: This is -- sorry -- 25 A: This is the one on page 5?
621 Q: -- Ms. Hipfner's notes, the reference 2 -- the -- the comment that's attributed to Ms. Hutton. 3 A: On page 5? 4 Q: On page 5. And, actually, in 5 fairness to you, there's another reference to the comment 6 in Ms. Jai's notes, which is at Tab 4 of your materials. 7 8 (BRIEF PAUSE) 9 10 Q: It's at page 3, middle of the page, 11 just -- just below the line: 12 "Best case, Friday in court. 13 Deb: Premier feels the longer they 14 occupy it, the more support they'll 15 get. He wants them out in a day or 16 two." 17 So, comments along those lines simply 18 speak to a concern with respect to delay and a preference 19 regarding an early end to the occupation? 20 A: I'd be reluctant to comment on what 21 the motivation is behind those things. 22 Q: Oh, no, I'm not asking you to comment 23 as to motivation, I'm simply asking you if you have a 24 recollection with respect to the communications that you 25 heard at that meeting.
631 A: Neither of these comments is 2 inconsistent with my recollection of the meeting. What 3 the speakers meant to convey or whether it fell into 4 category 1 or category 2 of your comments is something 5 other people may speak about. 6 Q: That's fine. I'm certainly not 7 asking you to speculate and actually, I'd ask you not to 8 do so. But I take it that the comment doesn't express a 9 view as to what means should be employed to end the 10 occupation? 11 MR. MURRAY KLIPPENSTEIN: If My Friend 12 could clarify the question as to whether he understood 13 one (1) thing or the other? He says he doesn't recall it 14 so -- 15 COMMISSIONER SIDNEY LINDEN: No. 16 MR. MURRAY KLIPPENSTEIN: -- I'm not sure 17 how the question can be of any relevance for these -- 18 19 CONTINUED BY MS. ANNA PERSCHY: 20 Q: I'm -- I'm simply asking if you 21 recall a statement expressing a view as to what means 22 should be used? 23 A: No, no. And in fairness, as I said 24 on -- on Friday, one (1) of the things that a group like 25 this does is option out the different means that are
641 available. 2 I mean, government only has its hands on 3 certain levers of power. What you'll get at this meeting 4 is, here's sort of the general direction we want to go 5 in, we'd like to move them out and in as expeditious a 6 way as possible. Tell us what levers we can pull to make 7 that happen. 8 Q: And do you recall Tim McCabe, then, 9 considering the option of proceeding pursuant to the 10 Criminal Code? 11 A: Do I recall Tim...? 12 Q: Do you recall anybody? 13 A: No. I know that at one point I gave, 14 again, through general advice as to how the criminal law 15 would speak to these issues, but I don't recall anybody 16 specifically talking about the Code. Certainly ,I don't 17 recall anybody besides me and, perhaps, Mr. Fox speaking 18 to the Code. 19 Q: And I understand that the day before 20 you were asked by Julie Jai for a legal opinion regarding 21 whether or not any criminal offences may have been 22 committed? 23 A: Hmm hmm. 24 Q: Was that, "yes?" 25 A: Sorry, yes. That's true and that's
651 reflected in one of the documents that was put to me in- 2 chief. 3 Q: I think it's the memorandum which is 4 at Tab 3 of your materials? 5 A: That's right. I have it marked as P- 6 634 and I believe my evidence was that on the first page 7 I'm the author of everything up to the end of that page 8 and I have no recollection as to whether I wrote the top 9 part of page 2. 10 Q: And -- and you drafted this -- this 11 text NB in response to Julie Jai's request for advice? 12 A: That's my recollection. And again, 13 I'd -- I'd defer to somebody with a better recollection 14 or a note but as I remember it, sometime on the 5th, 15 perhaps very late in the day on the 6th, I was asked, 16 Here's a quick set of facts, What sort of criminal law 17 issues arise, What are the -- the procedural paths that 18 you would anticipate being followed if those were to be 19 engaged, Can you give us a one (1) pager on that? 20 And -- and I don't recall whether -- who 21 this document was being prepared for, whether it was for 22 -- to be distributed at the committee or to be given to 23 the Deputy as part of a briefing of the Deputy. 24 Q: You -- you mentioned that you didn't 25 think that you drafted the paragraphs on the page -- on
661 the second page -- regarding the violations pursuant to 2 the Provincial Parks Act. 3 Do you think that you could have provided 4 that opinion verbally regarding that statute? 5 A: I don't know. My recollection is 6 that it was -- my recollection is that it was Andrew -- 7 Andrew MacDonald, but again that's -- it's quite possible 8 that I was actually responsible for physically typing it 9 up based on something Andrew had told me. I -- I 10 wouldn't want to offer a firm opinion as to who wrote 11 that. 12 Q: Well, is this an opinion that you 13 could have given? 14 Were you -- were you familiar with the 15 Provincial Parks Act? 16 A: Provincial Parks Act? No, I would 17 have been provincial with -- pardon me, familiar with the 18 Provincial Offences Acts, generally. Trespass to 19 Property Act I would have had some familiarity with. But 20 -- and this is why I say I don't think I wrote this. 21 Q: Okay. 22 A: It's quite possible at some point 23 there was a conversation where somebody said, you know, 24 There's an offence under Section 12 that might apply, Can 25 you roll that up?
671 And that's why it's such a brief 2 discussion. Again, I don't think I wrote it but if 3 someone says I did, I would, perhaps, defer to that. 4 Q: Fair enough. And has any -- as 5 you've explained, the purpose of your briefing the 6 Interministerial Committee was to provide an 7 understanding. 8 It's sort of the legal framework within 9 which the OPP would make their decisions in order to 10 allow the various ministries to fill their own roles and 11 responsibilities, sort of understand what the other hand 12 is doing. 13 A: Sure. Exactly. 14 Q: And we've seen this memo, but do you 15 recall what advice you gave in regards to the possible 16 applicability of the Criminal Code provisions at the IMC 17 meeting? 18 A: I don't think I did in terms of what 19 would apply. I would have said that, you know, the facts 20 you have potentially constitute the offense of mischief. 21 Here's what the OPP can do if they believe the offense of 22 mischief has been committed. 23 It's a bit like a law school quiz. I 24 think it's hybrid offense until there's a Crown election 25 that makes it an indictable offense. If it's an
681 indictable offense the police have certain powers. The 2 exercise of those powers reached a certain procedural 3 consequences, here's what, based on my experience, I 4 would expect to happen. 5 It would be very much along the same terms 6 as what you see on page 1. 7 Q: Fair enough. And I take it that just 8 because there's the possibility that a person may raise a 9 possible defence, that's no reason to assume that there 10 may not be reasonable grounds to lay charges. 11 A: Again it's one of those questions 12 that's -- that with such generality that it's impossible 13 to answer accurately. If the presence or absence of a 14 possible defence is always a relevant consideration to 15 determine whether or not reasonable grounds exist. 16 The notion of reasonable grounds has an 17 element of subjectivity to it. 18 Q: Fair enough. 19 A: And I -- I'd be reluctant to sign on 20 for the blanket statement you put forward. 21 Q: Fair enough. And do you recall that 22 during this discussion Peter Sturdy confirmed the reports 23 of gunfire? 24 A: I don't recall -- I don't recall 25 that.
691 Q: Okay. Do you recall anybody -- 2 A: I don't recall. I frankly don't 3 recall who Peter Sturdy is, so. 4 Q: Fair enough. Do you recall anybody 5 confirming the reports of gunfire? 6 A: No. I recall there being a report of 7 gunfire, a report of machines being used and part of the 8 problem that this was, you didn't know if you had the 9 same person providing you -- or you get two (2) people 10 providing you the same root information. 11 So you could have Person 'A' from the 12 Ministry of Natural Resources saying there's a report of 13 gunfire. And Person 'B' at the meeting saying, Yeah, I 14 heard there's a report of gunfire too. But they're both 15 talking to the same person on the ground, back and forth. 16 So there was a -- you know, they appear to 17 corroborate each other but, in fact, they're both just 18 relaying the same source information. So -- and I don't 19 recall that. 20 Q: Okay. 21 A: I know though that that was the sort 22 of thing that -- when you look to the meeting on the 7th 23 and there's this desire to improve the movement of 24 information into and out of the scene that that was the 25 sort of thing that people were alive to.
701 Q: Okay. Could you turn to page 6 of 2 Ms. Hipner's notes? 3 COMMISSIONER SIDNEY LINDEN: Ms. Perschy, 4 I'd like to take a break about a quarter to 12:00. If 5 you still have a bit to go, perhaps we could delay -- 6 MS. ANNA PERSCHY: I'll just ask this one 7 question. 8 COMMISSIONER SIDNEY LINDEN: And then 9 should we have a break or -- 10 MS. ANNA PERSCHY: And then by all means 11 I'm in your hands, Commissioner. I'm -- I'm happy to 12 have a break. 13 COMMISSIONER SIDNEY LINDEN: That's fine. 14 15 CONTINUED BY MS. ANNA PERSCHY: 16 Q: Just with respect to the -- the issue 17 of the gunfire. Middle of the page, Peter Sturdy, 18 rumours of gunfire and then just below that, confirmed. 19 A: Sure. 20 Q: Does that assist? 21 A: No. 22 Q: That it came out -- 23 A: No. 24 Q: Okay. Fair enough. 25 A: I'm not saying he didn't say it. But
711 I -- I can't tell you that that was said. 2 MS. ANNA PERSCHY: Okay. Commissioner, 3 I'm happy to take the break now if that would suit you. 4 COMMISSIONER SIDNEY LINDEN: Yes. We'll 5 take a morning break now. 6 THE REGISTRAR: This Inquiry will recess 7 for fifteen (15) minutes. 8 9 --- Upon recessing at 11:34 a.m. 10 --- Upon resuming at 12:02 a.m. 11 12 THE REGISTRAR: This Inquiry is now 13 resumed. Please be seated. 14 COMMISSIONER SIDNEY LINDEN: Yes? 15 MS. ANNA PERSCHY: Commissioner. 16 17 CONTINUED BY MS. ANNA PERSCHY: 18 Q: Just before the break, Mr. Hutchison, 19 we were -- I referred you to the reference in the notes 20 in regards to the confirmation of gunfire. 21 A: The -- the statement attributed to 22 Mr. Sturdy. 23 Q: Correct. I just wanted to go on from 24 that. And I take it that the -- the IMC then agreed to 25 proceed to make application to the court for an
721 injunction ASAP and the issue of criminal charges was to 2 be left to police discretion; do you recall that? 3 A: I -- I don't have a -- a specific 4 recollection of the -- agreeing to apply. My 5 recollection would have been that the advice would go up 6 that that was an option that was available, that if the 7 objective was to remove in as expeditious way as 8 possible, that that would be the way to do it, but -- 9 Q: It was a recommendation? 10 A: It's a recommendation, sure. 11 Q: Fair enough. 12 A: Again, it's not -- it's not a body 13 that makes decisions. 14 Q: No. I -- I appreciate that. And the 15 -- the Interministerial Committee also considered what 16 would happen if the Government obtained a court order for 17 an injunction but the occupiers refused to move. 18 And do you recall that the stated plan was 19 to then go back to court for an order that the occupiers 20 were in contempt of the previous court order? 21 A: I don't recall that as being a stated 22 plan. I know that that would be the standard approach 23 that you would take though if you were seeking an 24 injunction, that that would be the course you would 25 normally follow.
731 Q: If I could just turn you to page 6. 2 A: Sure. 3 Q: We previously looked at the comment 4 from Peter Sturdy regarding the rumours of gunfire. And 5 then just below that: 6 "Next steps, JJ: 1) injunction ASAP; 7 2) goal is to get occupiers out of the 8 Park; 3) police to exercise discretion 9 with regard to laying charges and apply 10 for injunction Friday." 11 And then there's a reference to Tim and 12 then, the last -- the last but second reference to Tim: 13 "If refusal to move, these people are 14 in contempt - go back to court." 15 Do you recall that sort of advice being 16 given? 17 A: Specifically, no. But I certainly 18 would say that that's consistent with the advice I would 19 have expected to have been given. 20 Q: Fair enough. The IMC then heard from 21 Dave Carson as to what would be the Province's 22 obligations if there was in fact a burial site; do you 23 recall that? 24 A: I recall a discussion around that and 25 a reference to the Cemeteries Act, I don't recall the
741 specifics. 2 Q: And -- and Dave Carson was the legal 3 counsel with the legal branch at ONAS? 4 A: That's my recollection. 5 Q: That's your recollection. And Mr. 6 Carson's advice at the meeting was that even if human 7 remains were discovered at the Park, that would not, in 8 any way, detract from the Province's title to the land; 9 do you -- do you recall that advice being given? 10 A: Specifically, no. But, again, I 11 don't -- it's not a case of I don't recall it because it 12 didn't happen, I just don't have a recollection of that 13 legal advice being given. 14 Q: Okay. Let me just see if I can 15 refresh your recollection. Just below the reference we 16 were just looking at: 17 "Dave - provincial obligations re: 18 alleged burial site - discovery of 19 human remains does not detract in any 20 way from Ontario title to land." 21 Does -- does that assist in terms of 22 refreshing your recollection? 23 A: It's certainly consistent with how I 24 recall the discussion going. My recollection, in terms 25 of my perspective, the discussion was there was an issue
751 with respect to a burial site, the issue with respect to 2 the burial site, from my perspective, as I understood the 3 conclusion of that discussion, was that it didn't 4 interfere or create a colour of right defence. 5 That's how I would have processed that 6 discussion. The underlying details wouldn't necessarily 7 have been something I would -- I would remember. 8 Q: Fair enough. 9 A: Again, I -- the fact that I don't 10 remember it ten (10) years later doesn't mean it didn't 11 get said, it just means I didn't remember it. 12 Q: And Tim McCabe then advised that the 13 possibility of a -- 14 MS. KATHERINE HENSEL: I'm very sorry to 15 interrupt My Friend. If I could just ask though that in 16 her references to the notes she could reflect the fact 17 that they are someone else's, not the Witness' notes, and 18 that -- that her references are actually to the notes 19 rather than events that -- that we -- that occurred, just 20 in her language and her reference? 21 COMMISSIONER SIDNEY LINDEN: Thank you. 22 MS. ANNA PERSCHY: I'm -- I'm happy to do 23 that and I will -- I will do that. 24 25 CONTINUED BY MS. ANNA PERSCHY:
761 Q: If you could turn to Julie Jai's 2 notes just for a moment? 3 A: Could you give me a reference in my 4 book or are they loose? 5 Q: I will, it's Tab 4. 6 A: Tab 4? I have it. 7 Q: P-536. There's a comment that -- 8 that -- on page 5 there are some notations with respect 9 to re: possible burial ground and it doesn't affect 10 ownership, some references to the Cemeteries Act and then 11 just below that there's a notation: 12 "Tim -- unlikely to affect injunction." 13 A: Yes, I see that. 14 Q: Do -- do you recall Mr. McCabe or 15 anyone giving advice along those lines? 16 A: No. 17 Q: Fair enough. 18 A: I do recall the discussion with 19 respect to the -- the issue of a possible burial ground 20 and -- and the -- the discussion, if you like, sort of 21 netted out that it didn't impact significantly on the 22 legal options that were available. 23 Q: Fair enough. There was a discussion 24 at this meeting about trying to diffuse local tensions 25 and who could be a spokesperson. I think you've --
771 you've made some reference to that, do you -- do you 2 recall that? 3 A: I'm sorry. I apologize, I missed the 4 question. 5 Q: Sorry. There was -- do you recall 6 there being a discussion at this meeting about trying to 7 diffuse local tensions, some of the local concerns with 8 respect to what was going on? 9 A: I -- I don't recall that. I'm sure 10 there was such a discussion but I don't recall it. 11 Q: You testified that you advised the 12 committee that the Government, like any landowner or 13 claimant, could advise the police that it was Crown land 14 and that it wanted the occupiers out of the Park, that 15 the police, obviously, had to defer to the police -- 16 sorry, the Government had to defer to the police with 17 respect to decisions regarding police actions. 18 So, the Government is in no better or 19 worse position than any other landowner or claimant? I 20 think the way you phrased it was that you can ask the 21 police, but ultimately it's their decision? 22 A: Sure. The province's position here, 23 as I understood it, was as the holder or the claimant 24 with respect to the title in this land and they 25 essentially had trespassers and possible -- possibly
781 people who were committing an act of mischief. 2 In that situation anybody with that 3 perspective can phone the police who have jurisdiction 4 over the area and say, Here's my complaint. Please act 5 on it the way you would act on any other complaint. 6 Whenever government phones the police about anything it's 7 always important that the communication take place in a 8 way that doesn't suggest anything other than a desire to 9 have the police assist them the way they'd assist anybody 10 else. 11 Q: And -- and you testified this morning 12 that after you gave your advice with respect to, sort of, 13 the parameters I think is the way you described it, 14 regarding police discretion, that the -- the discussion 15 at the meeting continued -- sort of proceeded within 16 those parameters? 17 A: Sure. And -- and the note you took 18 me to had Deb Hutton then asking, Well, have we -- has -- 19 has that formal communication happened? And that's where 20 the conversation went from there. 21 Q: And if I could turn you, actually, to 22 Julie Jai's notes again, page 6, and Mr. Downard took you 23 to -- sorry, page 6 of Julie Jai's notes. 24 A: Right. 25 Q: Mr. Downard took you to the question
791 from -- from -- that's attributed to Ms. Hutton and the 2 comments attributed to you and then the further question 3 from her and right after the line in the notes it states: 4 "They could be formally requested to do 5 so - but how and when they do it is up 6 to them." 7 There's an additional notation: 8 "Could have that as a communication 9 message - MNR has formally asked that 10 they remove them." 11 Do you recall the Interministerial 12 Committee then considering how to formulate a 13 communication message and issues in that regard? 14 A: I'm sure there was some discussion 15 about it. I -- I do have a recollection of the desire to 16 have a message to get out, like, a message of some kind, 17 something that could legitimately be communicated to the 18 public. 19 My view would have been that it's 20 legitimate to tell the public, We've asked the police to 21 step in, It's up to them to decide what to do, We're 22 doing what any responsible landowner would do; that would 23 be a legitimate message to -- to put out. 24 Q: And I anticipate that there will be 25 evidence that a comment was made about wanting to
801 formulate a communication message so as to avoid giving 2 any appearance of wanting to give any direction to the 3 police, i.e., trying to formulate a communication message 4 within these parameters that -- that you've indicated in 5 terms of your advice. 6 Do -- do you recall any comment along 7 those lines? 8 A: Specifically, no. But, more because 9 these kinds of issues always had those sorts of comments 10 coming up at some point during the course of the 11 discussion. 12 Q: Fair enough. 13 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 14 Henson...? 15 MS. KATHERINE HENSEL: I'm sorry to 16 interrupt again, Ms. Perschy. 17 MS. ANNA PERSCHY: Go ahead. 18 MS. KATHERINE HENSEL: It's just for all 19 Counsel. It's very important for the purposes of our 20 records or in the transcript if, particularly with 21 respect to Ms. Jai's notes, if you could refer to the 22 date that you're referring to, because there's more than 23 one (1) day and also to the exhibit number in reference 24 to any -- any documents that you're referring to that 25 have been entered as exhibits. Thank you.
811 COMMISSIONER SIDNEY LINDEN: Thank you. 2 3 CONTINUED BY MS. ANNA PERSCHY: 4 Q: Fair enough. And with respect to 5 Ms. Jai's notes, of course all my references today have 6 been with respect to the meeting of September 6th, 7 because that's the only meeting that you had attended as 8 of -- between the 5th and the 6th, you only -- 9 A: Correct. 10 Q: -- attended on -- the meeting on the 11 6th. 12 What's the exhibit number for Julie Jai's 13 notes? 14 COMMISSIONER SIDNEY LINDEN: 536. 15 MS. KATHERINE HENSEL: 536. 16 THE WITNESS: 536. 17 18 CONTINUED BY MS. ANNA PERSCHY: 19 Q: 536. And that -- that's the 20 references that I've made througout, in regards to Ms. 21 Jai's notes. 22 Do you recall if there was any 23 consideration as to who within Queen's Park could speak 24 to deliver this communication message? 25 A: When you say "within Queen's Park" --
821 Q: Amongst the various ministries or 2 Premier et cetera, do you recall discussions as to who 3 could speak to this? 4 A: No. I do recall -- and it may have 5 been Ms. Hutton, although I'm happy to defer. I do 6 recall there being comments to the effect that -- that 7 the Premier was happy, if you like, to use a bit of 8 government take ownership of the communications end of 9 this. 10 Q: Fair enough. And then, do you recall 11 the meeting then wrapping up with a review of how people 12 would be kept informed regarding any further 13 developments? 14 A: It -- it may well have, I don't 15 remember that though. 16 Q: All right. We've reviewed your 17 recollection of what was actually said at the meeting in 18 some detail, and I just -- I had a few more questions. 19 Did you know that Ron Fox was a First 20 Nations advisor to the Ministry of Solicitor General at 21 the time? 22 A: I knew that he provided some kind of 23 liaison role, I couldn't have told you precisely what. 24 And -- and, frankly, if -- if you tell me now that his 25 role was just with respect to First Nations issues, I'm
831 actually surprised, I thought he served in -- in a 2 broader function. 3 Q: Well, had you never spoken to him 4 before? 5 A: I'd probably spoken to him before but 6 I'm not sure that I would have met him before. We -- we 7 would have quite likely crossed paths but -- 8 Q: Okay. And did you know that he was 9 on secondment from the OPP to the Ministry of the 10 Solicitor General at the time? 11 A: Again, I didn't know the exact nature 12 of what his exact placement was. 13 Q: Okay. 14 A: And it was some sort of liaison role 15 as between OPP and -- and the Ministry, I couldn't tell 16 you the exact nature of that. 17 Q: Now, you testified that Ron Fox gave 18 an update regarding the situation at the Park, but I 19 think you also mentioned that there were people from MNR 20 who gave some information in that regard and that it was 21 -- it was, in fact, some of the MNR people who were 22 passing on the police reports about gunfire? 23 A: Well, I don't know if I said the very 24 last thing you just said, I know I said that there was -- 25 there was information coming apparently from onsite --
841 Q: From both? 2 A: -- through both MNR and OPP. 3 Q: Yeah. 4 A: I couldn't tell you where their 5 ultimate source was and if they were both simply 6 reporting the same information. 7 Q: And you spoke -- you gave some advice 8 with respect to the whole issue of police discretion, as 9 -- as you've mentioned previously? 10 A: Hmm hmm. 11 Q: And it appears at least that you and 12 Kathryn Hunt spoke about the practical effect of laying 13 charges, the issues in terms of enforcing bail conditions 14 and what that meant in terms of the goal of keeping 15 people from re-entering the Park. 16 Do -- do you recall that? 17 A: I -- again I don't have a specific 18 recollection of describing the process of arrest, various 19 release options, conditions being imposed. I know that 20 that was included in the advice I'd given in the document 21 that had been prepared on the 5th. 22 Q: Hmm hmm. 23 A: But, I certainly don't have a 24 specific recollection of Ms. Hunt speaking to those 25 issues. And again, I wouldn't known her or recognized
851 her, so I -- she may well have done that and I just 2 didn't know that she was speaking to that issue. 3 I wouldn't even have known at the time 4 necessarily that she was political as opposed to being an 5 official. 6 Q: Fair enough. If you could turn to 7 page 6 of Ms. Hipfner's notes which is -- 8 A: I have it. 9 Q: I've just -- it's Inquiry Document 10 Number 1011784. And if we could have it marked as the 11 next exhibit please. 12 THE REGISTRAR: P-636, Your Honour. 13 COMMISSIONER SIDNEY LINDEN: 636. 14 15 --- EXHIBIT NO. P-636: Document Number 1011784. Ms. 16 Hipfner's handwritten notes 17 September 06 and 07/'95. 18 19 CONTINUED BY MS. ANNA PERSCHY: 20 Q: And if you could turn to page 6. 21 A: I have it. 22 Q: there's a reference to Mr. Fox: 23 "Ongoing efforts to get people to leave 24 Park but would ultimately like to have 25 enjoining order."
861 There's a reference to Hunt. 2 "If remove them, no guarantee they 3 won't move right back in." 4 And there's a reference to Scott: 5 "Imposed conditions but enforcement 6 issues remain." 7 So, do you recall several people speaking 8 about those sorts of issues at this meeting? 9 A: Sure. And that would certainly be 10 the kind of advice I would have given that you can impose 11 conditions either on a -- a police release or on a 12 judicial interim release. 13 The fact that it appears on a piece of 14 paper isn't a magic bullet and people are determined to 15 return. The legal impediment doesn't prevent them from 16 doing so if they're minded to do so. 17 Q: So, Ron Fox is certainly not the only 18 person referring to these issues. You're referring to 19 these issues Kathryn Hunt is making some reference. 20 A: She -- she's made the reference. It 21 may have been in the form of a question and then I 22 referred to the legal significance of a -- of a 23 condition. 24 Q: Fair enough. And at this meeting do 25 you recall if Ron Fox expressed any thoughts, sort of,
871 regarding the First Nations perspective when you advised 2 in that regard? 3 A: I -- I don't recall that. It doesn't 4 mean it didn't happen, I just don't have a recollection 5 of that. 6 Q: And you were told or did you know 7 that this was going to be a meeting of civil servants and 8 political staff? 9 A: Specifically before -- you mean 10 before I went? 11 Q: Yes. 12 A: No. I knew that it was a kind of 13 meeting that political staff sometimes attended. 14 Q: And civil servants would -- 15 A: Yeah and civil servants, yeah. 16 Q: So, you're expecting to see civil 17 servants there? 18 A: You can't show up at a building 19 without seeing civil servants. 20 Q: I know. Quite a lot of people at the 21 meeting, right? 22 A: Yes. It was -- it was a big meeting. 23 Bigger than your average meeting to deal with issues like 24 this. 25 Q: And I take it you don't recall Ron
881 Fox getting into the details of his secondment at the 2 meeting? 3 A: I -- I don't recall that, no. 4 Q: You testified that some of the people 5 at the meeting were more proactive than others. And -- 6 at least in terms of their -- their views. And that the 7 OPP wanted to just wait this out. 8 Do you recall that representatives of MNR 9 who were on the ground in the local area were among those 10 who -- who wanted an injunction? 11 A: I -- I don't recall that 12 specifically. I do have a general recollection that MNR 13 had a preference to -- to move to remove as opposed to 14 waiting. And, you know, perhaps naturally enough because 15 as, sort of, within the -- the people who represent 16 government they probably have the most close association 17 to the Park. 18 Q: And do you recall that coming from 19 some of the people who were calling in, who were actually 20 at the scene? 21 A: I -- I don't recall where it came 22 from. I recall it -- I attributed it to MNR. I can't 23 attribute it to a specific individual. 24 Q: Fair enough. And were you aware that 25 John Carson who was the OPP incident commander in charge
891 of operations at the scene, John Carson wanted the 2 Government to bring an injunction quickly. 3 Were -- were you aware of that? 4 A: I -- I might have been. I -- sitting 5 here today, I can't tell you one way or the other. 6 Q: Okay. In any event by the end of the 7 meeting there was a consensus that the recommendation 8 would be -- would be to -- to apply for an injunction? 9 A: That's right. 10 Q: You were an experienced civil servant 11 at this time and you were keenly aware of what political 12 staff can or cannot appropriately say, right, at these 13 sorts of meetings? 14 A: Well I -- I'd been a civil servant 15 for six (6) years, so -- but I was -- I was certainly 16 alive to these issues. I'd had a number of dealings with 17 cases where respect for boundaries was important. 18 Q: And you are the lawyer -- you were 19 the only lawyer there with criminal law expertise. You 20 were there on behalf of the Criminal Law Branch of 21 Ministry of Attorney General? 22 There weren't other representatives there 23 from that branch? 24 A: No. The only other person there with 25 back -- with a background like that would have probably
901 been Andrew MacDonald who would have had a quasi- 2 criminal background from his MNR experience. 3 Q: So, of all of the civil servants 4 present, you were particularly qualified in terms of 5 fully understanding this whole issue of OPP discretion 6 and -- and the protocol of no government direction? 7 A: I -- I don't know if I'd put it that 8 high, but I was certainly as qualified as anybody else in 9 the room. 10 Q: You were -- you were certainly keenly 11 aware of it? 12 A: Sure. 13 Q: Now, the IMC was meeting to consider 14 the possible legal options available to the Government 15 regarding the occupation of the Park and to make 16 recommendation regarding the Government's position; that 17 was -- that was the point of the meeting? 18 A: I -- I don't know if that was the 19 only point of the meeting. I know it was one of -- 20 Q: One of the points. 21 A: -- the things that were going to be 22 discussed. 23 Q: And I take it that you regarded it as 24 entirely appropriate therefore for this committee to 25 consider -- at least consider all of the options
911 discussed at this meeting? 2 A: Sure. 3 Q: And to have various participants ask 4 questions, articulate their perspectives and insights? 5 A: Well, that's what these meetings are 6 for. And -- and it's the kind of meeting where you've 7 got so many different, stakeholders isn't the right -- so 8 many different participants from government that it's 9 useful at a meeting like this where everybody airs their 10 views and everybody works from a collective source of 11 information. 12 Q: Fair enough. And no one at this 13 meeting ever said that any of these options shouldn't be 14 discussed in this forum or with these participants? 15 Nobody made that sort of comment? 16 A: I -- I don't recall that, no. 17 Q: You -- you probably would have 18 remembered such -- such a comment. 19 A: If somebody said whatever you do, 20 Don't -- don't even think about negotiating of any kind, 21 I would have noted that. 22 Q: Okay. And you testified that the 23 briefing regarding criminal charges and bail issues was 24 to provide an understanding of -- of the legal framework 25 as the Government reviewed its -- its options or
921 considered its options. 2 But, I take it no one at this meeting got 3 into the details for instance of the number of police 4 officers at the Park? You wouldn't have that kind of 5 discussion? 6 A: Well it might have been part of the 7 reports that came out, but it wasn't part of the 8 discussion or on this issue. 9 Q: And no one at this meeting got into 10 what sorts of equipment the police had? 11 A: No. 12 Q: And other than -- you made a 13 reference to the update. So, other than, sort of, the -- 14 the update regarding general information at the scene and 15 -- and perhaps some references to police cordoning off 16 the Park or -- or that some arrest warrants may have been 17 issued, there was no discussion about police's -- the 18 actual operations of the police at this meeting? 19 A: I don't recall any. That doesn't 20 mean it didn't happen. It's just because I don't recall 21 it sitting here today. 22 Q: But, you would have recalled anything 23 that was out of the ordinary from your perspective? 24 A: Sure, but it's -- I mean it wouldn't 25 be out of the ordinary for someone to say, you know, I'm
931 here on the ground and here's how many police officers 2 are here and here's a sense of where the situation has 3 escalated to at this point; that -- that wouldn't be 4 inappropriate as part of the -- the reportage of 5 background. 6 Q: Fair enough. But it wouldn't be part 7 of a discussion? 8 A: No. It's not like somebody who was 9 sitting there and saying, well you should get more guys 10 down there or something like that. No, that kind of 11 discussion never happened. 12 Q: Fair enough. Now, you've testified 13 that no one ever said -- I hate to use this language 14 again but I have to -- get the f-ing Natives out of the 15 Park even if you have to draw guns, or words to that 16 affect. 17 A: I -- I have no recollection of that 18 being said. 19 Q: And -- and you would have remembered 20 it. 21 A: I would remember that. I mean, in 22 fairness, there certainly was a movement that -- there 23 was discussion around the desire that the goal of the 24 exercise was to remove the Natives. That -- that to the 25 extent that sentiment was reflected in part of the
941 statement, that was certainly a tone or a theme in the 2 discussion. 3 The latter part of the comment, and the 4 inappropriate reference, in terms of the language that we 5 used, I would have noted those and I don't recall those. 6 Q: Right. So -- 7 A: And again, I'm not saying that 8 somebody else didn't hear that and I'm not trying that if 9 somebody's reported that that they're necessarily wrong, 10 I'm simply saying I didn't hear it. 11 Q: But, no one at this meeting said that 12 weapons or other physical force should be used to remove 13 the -- 14 A: Yeah. I -- I don't -- 15 Q: -- occupiers. 16 A: -- recall that at any point. And I 17 would have recalled that if that kind of specific 18 direction was being suggested. It would have been 19 inconsistent with the ultimate recommendation. 20 Q: And no one at this meeting said that 21 they thought that the Premier or the Minister or the 22 Government could direct the OPP with respect to the 23 operational decisions of the police? Nobody made that 24 kind of statement? 25 A: I don't recall that claim ever being
951 made. 2 Q: And again, I'm suggesting to you you 3 would have remembered it? 4 A: And I would have -- I would have 5 recollected it if somebody suggested that that kind of a 6 direction could be made. 7 Q: No one swore at this meeting, right? 8 A: I don't want to say that. 9 Q: All right. 10 A: I don't recall the -- the specific 11 reference you have but it's quite possible somebody 12 swore. I don't want to vouch for them. That wouldn't 13 have been unusual enough for me to make note of it. 14 Q: Oh, I see. All right. But, on one 15 said that they didn't care about First Nations people at 16 this meeting? 17 You don't recall that statement being 18 made? 19 A: The last forum in the world where 20 you'd say something like that. 21 Q: And no one said that natives had been 22 pandered to for far too long or -- or words to that 23 effect? 24 A: I don't recall that specifically. I 25 do know there was a sense that came out that the new
961 government thought the previous government had taken too 2 conciliatory a role -- or too conciliatory a stance with 3 respect to First Nations issues and a different approach 4 or a different tone, if you like, would be reflected in 5 their approach to these issues. 6 Q: But the -- 7 A: Now, the -- the magic word, "pander," 8 I don't recall that word specifically, but the -- the 9 idea that's reflected in the statement I think was alive. 10 Q: But this committee was looking at 11 this particular situation -- 12 A: Sure. 13 Q: -- right? No one said they loved 14 guns? 15 A: I don't recall anybody saying that. 16 Sorry when -- no one said they loved guns which -- which 17 -- I don't recall anybody saying anything about guns, 18 frankly, but I'm just curious as which "they" we're 19 referring to? 20 There was a bunch of people who could be, 21 "they." The police could be, "they," the natives could 22 be, "they." I don't know which "they" we're talking 23 about. 24 Q: No, sorry. I meant -- I meant any 25 of the speakers at the meeting didn't convey that the
971 speakers had had any love for gun? 2 A: I don't recall that at all. 3 Q: If I could take you to P-44(a)? 4 A: If you give me a hint what it is I'd 5 be happy to look. 6 Q: It's a transcript of a conversation 7 which is at Tab -- I think it's Tab 37. 8 A: Thank you. Tab which? 9 Q: Tab 37, it's the last tab. 10 A: Okay. Thank you. 11 Q: And we've heard some evidence at this 12 Inquiry that this is a transcript of a telephone call 13 initially between Ron Fox and John Carson and later 14 between Ron Fox and Superintendent Coles. And I -- and I 15 just wanted to refer you to the first part of the 16 conversation. 17 If you could turn to page 262. The -- the 18 language -- 19 A: I have it. 20 Q: -- is as follows, and I'm going to 21 have some questions after I read it out to you. 22 A: Give me a sense of where we are on 23 the page? 24 Q: Yes. Starting, more or less, in the 25 middle of the page.
981 A: Okay. 2 Q: 3 "Ron Fox: Okay. Well, let me just 4 give the -- I went through this 5 meeting. John, we're dealing with a 6 real redneck government. 7 Carson: Okay. 8 They are [excuse my language] fucking 9 barrel suckers. They just are in love 10 with guns. 11 Carson: Okay. 12 Fox: There's no question. 13 Carson: So? 14 Fox: They couldn't give a shit less 15 about Indians. 16 Carson: All right. They just want us 17 to go kick ass. 18 Fox: That's right." 19 Now, you weren't a party to this 20 conversation but we've heard some evidence that these 21 comments were made in regards to the Interministerial 22 Committee meeting that you attended on September 6th. 23 And the question I have for you is, did 24 you assume or expect that following this meeting of the 25 Interministerial Committee on September 6th, Ron Fox or
991 anyone at that meeting would make these particular 2 comments to the Incident Commander at the scene in 3 regards to this meeting? 4 COMMISSIONER SIDNEY LINDEN: Come up. 5 OBJ MS. ANDREA TUCK-JACKSON: Objection. 6 Just a moment, please. 7 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 8 Jackson. 9 MS. ANDREA TUCK-JACKSON: Mr. 10 Commissioner, with great respect, this witness is not in 11 a position -- 12 COMMISSIONER SIDNEY LINDEN: No. 13 MS. ANDREA TUCK-JACKSON: -- to answer 14 that question. 15 COMMISSIONER SIDNEY LINDEN: I don't 16 think he is either. 17 THE WITNESS: Neither do I. 18 MS. ANNA PERSCHY: Well, it comes up -- 19 it's a follow-up to a question that I had put to the 20 witness and the response that I had got that Ron Fox at 21 the time, in regards to expectations as to what would be 22 communicated back, and that's -- that's the basis for -- 23 COMMISSIONER SIDNEY LINDEN: No. I don't 24 think it's a proper question, not the way it's worded. 25
1001 (BRIEF PAUSE) 2 3 CONTINUED BY MS. ANNA PERSCHY: 4 Q: This committee, at this meeting on 5 September 6th, dealt with recommendations regarding the 6 Government's position to the Ipperwash Park occupation 7 and communication messages about that, and I take it 8 those were all issues that this committee was mandated to 9 deal with? 10 A: The -- sorry -- communications issues 11 and? 12 Q: Reviewing the various legal options 13 available to the Government and making some 14 recommendations in that regard -- 15 A: Hmm hmm. 16 Q: -- and -- and also reviewing some of 17 the possible communication messages; that -- that was the 18 role of this committee, that's what it was mandated to 19 deal with? 20 A: Sure. I'd like, you know, maybe like 21 to look at the exact mandate again before I signed up on 22 the part about developing communication strategies around 23 it. 24 But it wasn't at all unusual for a group 25 like this to have some input with respect to
1011 communications, certainly with respect to drawing 2 parameters around what could or couldn't be said 3 appropriately. 4 Q: Well, I do want to give you the 5 opportunity. If you turn to -- I believe it's Tab 5, P- 6 498, the briefing note for the Honourable Charles 7 Harnick. 8 A: Sure. I have it and I'm -- 9 Q: This refers -- 10 A: -- skip to page 2 of the Appendix, 11 and it says -- it talks about the objectives and the 12 discretionary powers. 13 Q: Yeah. The -- the third page has the 14 appendix and before that, on the first page, the -- the 15 topic is listed as being the procedures for dealing with 16 aboriginal emergencies. And then there's a discussion 17 below that, at the second, under "Current Status." 18 A: Hmm hmm. 19 Q: It states: 20 "If there's in emergency situation, the 21 Committee develops recommendations, may 22 appoint a negotiator, may recommend 23 that legal action be taken, and ensures 24 that adequate communication occurs with 25 all affected groups, including the
1021 general public." 2 A: Hmm hmm. 3 Q: So does that assist you just in terms 4 of this communication aspect, that the rules envisaged 5 that there would be some reference to communication 6 issues? 7 A: Yeah. And that -- that's not at all 8 uncommon for groups like this. 9 Q: Thank you very much. Those are all 10 my questions. 11 COMMISSIONER SIDNEY LINDEN: Thank you 12 very much, Ms. Perschy. 13 14 (BRIEF PAUSE) 15 16 COMMISSIONER SIDNEY LINDEN: If I'm not 17 mistaken, Mr. Klippenstein is next. Oh no, I'm sorry. 18 My order is out of line. 19 Ms. Tuck-Jackson...? 20 MS. ANDREA TUCK-JACKSON: That's all 21 right, Mr. Commissioner. Good afternoon. 22 23 CROSS-EXAMINATION BY MS. ANDREA TUCK-JACKSON: 24 Q: And good afternoon, Mr. Hutchison. 25 A: Good afternoon.
1031 Q: As you may already know, I'm going to 2 be asking you some questions on behalf of the OPP. 3 A: Okay. 4 Q: You had testified to Ron Fox's 5 participation at the IMC meeting of September the 6th, 6 and if I can, very briefly, summarize in three (3) points 7 what Ron Fox was advocating. 8 First of all, he was advocating, I'm going 9 to suggest, a slow and considered approach to the issue? 10 A: Yes. 11 Q: And secondly I'm going to suggest to 12 you that he was advocating an approach that focussed 13 primarily on negotiation in order to diffuse the tension 14 at the site of the occupation? 15 A: Yes. 16 Q: Okay. And thirdly, I'm going to 17 suggest that he made it clear to the members of the 18 committee that apart from specific incidents that would 19 merit intervention under the Criminal Code, the police 20 were reluctant to move on the Park occupiers in the 21 absence of a court injunction? 22 A: Yes. And the first two (2) 23 propositions really feed into the third, that the 24 preferred course was to apply for an injunction in the 25 normal course; that process allows everybody to
1041 essentially just -- everybody just stands on either side 2 of their barricade and lets the process take its course. 3 Q: Exactly. All right. And I'm also 4 interested in establishing through you what Ron Fox did 5 not do at that meeting and I'm going to suggest to you 6 that it was apparent, from his words and his actions that 7 day, that he was not seeking direction, from the members 8 of that committee, regarding police operational matters? 9 A: I certainly don't remember him doing 10 anything to that effect. 11 Q: And further, sir, I'm going to 12 suggest to you that it was equally apparent from his 13 words and his actions during the course of that meeting 14 that he was not taking direction from the committee 15 members? 16 A: Again, I certainly saw nothing that 17 would suggest that. 18 Q: Thank you, Mr. Hutchison, those are 19 my questions. 20 COMMISSIONER SIDNEY LINDEN: Thank you. 21 If I'm not mistaken we're up to Mr. Klippenstein now. I 22 don't think there's any other OPPA, I don't believe 23 indicated any -- no. And I think we're up to Mr. 24 Klippenstein. 25
1051 (BRIEF PAUSE) 2 3 CROSS-EXAMINATION BY MR. MURRAY KLIPPENSTEIN: 4 Q: Good morning or afternoon, Mr. 5 Hutchison. 6 A: Good afternoon. 7 Q: As you may know, excuse me, as you 8 may know I'm the -- one (1) of the legal counsel for the 9 Estate of Dudley George and the Family of Dudley George 10 and I'll be asking you questions on a number of areas. 11 And I'd like to start with some questions 12 about the meeting you attended on September 6th/'95. And 13 at first I'd like to ask you a number of questions about 14 the injunction that has been discussed a great deal in 15 these proceedings, the civil injunction, and I ask those 16 not because of your expertise on civil injunctions 17 because you seem to suggest that wasn't your area. Am I 18 right so far? 19 A: At the time, no. 20 Q: You say, "at the time," you've -- 21 you've learned more over the subsequent ten (10) years or 22 is -- 23 A: I've learned more over the subsequent 24 six (6) months or the most recent six (6) months. 25 Q: Anyway well, I --
1061 A: I sit right next to David Stockwood 2 so I can't help it. 3 Q: Okay. I don't mean to go beyond your 4 expertise in that, but whatever your expertise is I'm -- 5 I welcome it. I do want to ask then, mainly as an eye 6 witness, if you will, and as a participant in the -- in 7 the meeting. 8 And I'd like to start by referring to your 9 notes which are now -- these are your notes of the 10 meeting of September 6th and I gather the briefing before 11 that meeting and they're now Exhibit P-635? 12 A: I have them. 13 Q: And if you could turn to what's 14 numbered in handwriting as page 4? 15 A: I have it. 16 Q: And near the bottom under one (1) of 17 the lines there's some small writing that says in capital 18 letters, "GOAL," then arrow, then in lower case, "get 19 them out." Do you see that? 20 A: Right. I do. 21 Q: Now, could you comment on -- on that, 22 why you wrote it? 23 A: I -- I can't recall who said it. I 24 do know that by that point in the meeting the consensus 25 was that the direction of some kind was to move -- to
1071 remove the natives and to move expeditiously. It 2 wouldn't necessarily have been put in precisely those 3 terms, these are just bullet points for myself. 4 Q: Okay. I want to ask you some 5 questions about those -- about that goal and how it came 6 out. 7 First I want to ask about the previous 8 meeting that happened. You were in a meeting on 9 September 6th which was a followup to a meeting the 10 previous day on September 5th; is that your 11 understanding? 12 A: Today it's my understanding, yes. 13 Q: Right. And the meeting on September 14 5th had also been a meeting of the Interministerial 15 Committee on -- 16 A: Hmm hmm. 17 Q: -- Aboriginal emergencies; is that 18 right? 19 A: Again, that's my understanding today. 20 Q: And we've seen evidence that the 21 meeting took place on September 5th, about -- in the 22 morning, for -- for a couple of hours, give or take. 23 And you didn't attend that meeting; 24 correct? 25 A: That's right.
1081 Q: Now, I just want to ask about some 2 things -- or point out some things to you from the 3 evidence from that September 5th meeting and ask you how 4 they relate to the September 6th meeting. 5 A: Okay. 6 Q: But is it fair to say that -- that 7 the meeting and the discussion that happened on September 8 6th took place in the context of what had happened on 9 September 5th in that meeting; is that fair? 10 A: To the extent that many of the other 11 members of the Committee were there on the 5th, sure. My 12 participation was without any detailed knowledge of what 13 had happened on the 5th. 14 Q: Right. But were you aware at the 15 time -- I think the evidence will show -- that most of 16 the people on the September -- in the September 6th 17 meeting had spent several hours in the September 5th 18 meeting? 19 A: Sure. I -- I fully expected that. 20 My recollection is I had a conflict in terms of a 21 previous court obligation or something like that, that 22 made it impossible for me to attend on the 5th. I was 23 probably asked and in lieu of attending I provided the 24 document that -- or the -- the passage that got inserted 25 in that document later in terms of criminal law, elements
1091 of it. 2 I was available when the meeting continued 3 on the 6th and went to that one. 4 Q: Okay. We -- we've heard some 5 evidence about what happened on the -- in the September 6 5th meeting, and some of that evidence relates back to 7 the goal that you've noted in your -- in your notes. 8 A: Hmm hmm. 9 Q: And I just want to ask about the goal 10 aspect of -- of all the discussions. We've heard 11 evidence that Ron Fox attended the September 5th meeting 12 and we've spent quite a bit of time going through a tape 13 that was recording his phone call after that meeting to 14 John Carson, in which he makes some comments about that 15 meeting. 16 And -- the September 5th meeting. And he 17 makes some comments that appear to be about the goal of 18 the meeting and the proceedings. And I just want to 19 mention to you some of the comments from that September 20 5th phone call of -- of Inspector Fox, and see whether 21 that is consistent with what you saw the next day in the 22 meeting. 23 He said -- this is Inspector Fox -- after 24 the September 5th meeting, that: 25 "Basically, the Premier has made it
1101 clear to her [being Ms. Hutton] his 2 position is there will be no different 3 treatment of people in this situation, 4 in order words, Native as opposed to 5 non-Natives. And the bottom line is, 6 wants them out." 7 Now, Fox testified that he understood that 8 it was the Premier whose bottom line was apparently being 9 communicated by Ms. Hutton. Now, you weren't in that 10 September 5th meeting which Inspector Fox was reporting 11 on, but other people were. 12 Is it consistent with what you saw and 13 heard that those other people had it communicated to them 14 the day before that the Premier's bottom line was, wants 15 the Natives out? 16 A: I don't know that I would 17 specifically attribute it to the Premier. I know that it 18 was fairly clear that the -- the desire was to remove 19 rather than sort of hold back and let it burn itself out. 20 I -- I can speak to that issue. 21 In terms of attributing, sort of a -- an 22 intention as specific as the one you're referring to, I 23 don't know that I saw anything that was specifically -- 24 would speak to that. 25 Q: Well, just taking the comments of
1111 Inspector Fox in part, would you say what you saw and 2 heard at the September 6th meeting was consistent with 3 the goal of the Government of the day, being -- having a 4 bottom line of, want them out? 5 A: Yes. With respect to the specific 6 comments about Natives are no different than non-Natives, 7 those sorts of things, I wouldn't necessarily -- it 8 wasn't inconsistent, let's put it that way. 9 Q: Right. But it -- it is consistent 10 with what you saw and heard, that the Government of the 11 day's bottom line was, wants the Natives out? 12 A: Yes. 13 Q: And we've heard evidence that in the 14 September 5th meeting, just before the September 6th 15 meeting, Ms. Hutton said that, The Premier is hawkish on 16 this issue, and she did use the word, "hawkish," in 17 specific reference to the Premier. 18 Had anybody brought -- and indeed that Ms. 19 Jai had put that in a memo and circulated it after the 20 meeting on the afternoon of September 5th. 21 Had anybody mentioned that -- that to you 22 before the September 6th meeting? 23 A: Is the quote referable to her? No. 24 Q: Okay. Had anybody said anything to 25 you before the September 6th meeting that apparently the
1121 Premier was hawkish on this issue? 2 A: Specifically? No. I mean I -- I 3 certainly went into the meeting and I'd had some 4 discussion that had led me to the conclusion that the 5 conciliatory approach that had typified the previous 6 government's approach to these issues, that there be a 7 change from that. 8 Q: Hmm hmm. 9 A: That it would be a -- a tone that was 10 more proactive. 11 Q: Hmm hmm. 12 A: But -- but specifically, the word, 13 "hawkish," I -- I don't recall that being used. 14 Q: Okay. Had anybody told you that, 15 according to the evidence we've heard today, that the 16 main plan for the occupation called, "Project Maple," by 17 the OPP, had as its main goal to contain and negotiate a 18 peaceful resolution? 19 A: No. I don't recall reference to 20 something called Project Maple. Again, this is in that 21 category of there might have been a reference. I don't 22 recall it today. 23 Q: Hmm hmm. All right. If you could 24 turn to Ms. Jai's notes of September 6th, '95 which is 25 part of Exhibit P-536?
1131 A: And you want me to look at the 5th or 2 the 6th? 3 Q: The 6th. 4 A: Okay. I have it. 5 Q: And I again want to just look at the 6 idea of the goal being to remove the natives and at page 7 2 of those notes, the handwritten -- page 2 at the top? 8 A: I have it. 9 Q: You see a reference to Deb which 10 would be, I guess, Deb Hutton making some comments; is 11 that right? 12 A: At the top of that page? 13 Q: I'm sorry, I misspoke myself, the 14 bottom. 15 A: Sorry, yes, I see them. 16 Q: And then going over to the next page, 17 there's some further comments and I'll read them to you 18 and I'll ask some questions about them. They say, quote: 19 "We are seeking the injunction. Other 20 matters within police discretion. OPP 21 know goal is to get people out asap." 22 Do you remember those comments? 23 A: In -- in -- in that specific language 24 no, but the -- the general comment to that affect, yes. 25 Q: So these -- these handwritten notes
1141 which are apparently the handwritten notes of Ms. Jai 2 from the meeting which -- which she'll, I guess, address 3 when she testifies, but these notes are consistent with 4 your recollection of your notes? 5 A: In -- in broad strokes, yes. 6 Q: Yeah. And do you happen to know 7 whether or not the comments I've just read to you were or 8 were not made by Deb Hutton? 9 A: I don't know that, no. 10 Q: Okay. So that's not clear? Anyway, 11 somebody is saying -- appears to be saying that the OPP 12 know the goal is to get people out asap, right? 13 A: Yeah. And -- and in fairness, I 14 don't know whether that's -- that the OPP know that 15 that's their goal or that that's the broader goal that -- 16 that government has. 17 Q: I understand but this would appear to 18 be consistent with the idea that the Government's goal is 19 to get the people out and to do so asap, right? 20 A: True. 21 Q: Okay. And then turn to the -- the 22 next page of those same Julie Jai notes of September 6th 23 which are -- 24 A: Okay. 25 Q: -- identified as page 4 --
1151 A: Thank you. 2 Q: -- and turn to the bottom if you 3 will? 4 A: I see it. Agreed? 5 Q: Yeah. There's a few sentences 6 beginning with the word, "agreed." I'll just read those 7 out. 8 "Agreed we will seek injunction ASAP - 9 Friday [Criminal Code] charges within 10 police discretion - they are trying to 11 remove people - all agree goal is to 12 remove people ASAP." 13 Now, I can't tell from these notes whose 14 conclusion this is that there's an agreement. Can -- can 15 you enlighten us at all about that? 16 A: I -- I know Ms. Jai as the Chair of 17 the meeting was fairly good at putting propositions to 18 people before she would record them like this. I suspect 19 that at some point she said, Well, you know, here's what 20 I've got noted. 21 Q: All right. And the last line in that 22 paragraph which says: 23 "All agreed. Goal is to remove people 24 ASAP." 25 A: Hmm hmm.
1161 Q: Again, this is a somewhat a -- just a 2 re-statement of something that keeps coming up and -- 3 again and again. It appears that -- well, let me ask 4 you: This appears to be suggesting, and you were there 5 at the meeting, that the goal of the meeting is to remove 6 the people ASAP? 7 A: I think it's clear that the -- 8 everybody understands that that's the goal. Whether 9 everybody agrees that that should be the goal is a 10 different question. But that -- 11 Q: Okay. 12 A: -- I think to the extent of what it 13 records is what the objective has been, sort of, set out 14 as. People understand that. 15 Q: Okay. So I would just like to 16 explore that a little bit because then I'm not going to 17 ask you what -- what your views were in that meeting or 18 whatever. 19 But, this appears to be saying that the 20 goal of the meeting is now to find ways of removing 21 people ASAP. 22 Is that a fair way of saying it? 23 A: Well I don't know that that's the 24 goal of the meeting. My understanding is that's the -- 25 well -- the goal of the meeting is to develop options --
1171 Q: Okay. 2 A: -- to -- to address that objective. 3 Q: Okay. And that objective is that of 4 the Government of the day? 5 A: That's what I understood it to be. 6 Q: Yeah. And this is consistent with 7 the quote I read to you from Inspector Fox's statement of 8 what he heard Ms. Hutton say about, The Premier wants 9 them out, that's the bottom line; is that fair? 10 A: It -- it's certainly -- the two (2) 11 statements aren't antagonistic towards each other. 12 Q: Right. But they appear to be frankly 13 quite consistent; is that fair? 14 A: Sure. One's perhaps the more 15 vehement statement than -- than this one but... 16 Q: Right. And is it consistent with 17 what you saw and heard that the people in the meeting who 18 were dealing with this goal, understood that to be the 19 Premier's specific goal. 20 Is that consistent with what you saw and 21 heard? 22 A: I wouldn't want to say specific to 23 the Premier. I know that it was clear that that was the 24 -- the -- to the extent there was direction, that's where 25 the direction was. And that I -- my only reluctance is I
1181 don't have a specific recollection of, independent of the 2 notes that other people took -- 3 Q: Okay. 4 A: -- that -- that puts words into the 5 mouths of particular individuals. 6 Q: Okay. 7 A: To the extent you're putting a 8 proposition generally to me, I can't quarrel with it 9 based on anything that I recall today. 10 Q: All right. Well, could you then turn 11 to the September 6th notes, I can't remember where -- 12 which one we were on, but the September 6th notes of 13 Julie Jai and page 3, about two-thirds (2/3's) of the way 14 down after apparently a discussion or comments from Tim 15 McCabe, and it says Deb. 16 Do you see that? 17 A: Right. 18 Q: Now, it says -- it appears to say: 19 "Deb Hutton says Premier feels the 20 longer they occupy it, the more support 21 they'll get. He wants them out in a 22 day or two." 23 A: I have that. 24 Q: Now do you recall from your own 25 independent recollection that comment or something close
1191 to it being made by Ms. Hutton? 2 A: I -- I don't recall the reference to 3 "a day or two", but I recall -- can I attribute it 4 specifically to Ms. Hutton, no, but do I recall that 5 being the tenor of the direction, sure. 6 Q: Okay. 7 A: The reference to a day or two is one 8 that I -- I don't have a specific recall about. 9 Q: Do you have any reason to doubt the 10 accuracy of that? 11 A: No, none at all. 12 Q: No. 13 A: And again, if -- if I say I don't 14 recall something, it's generally because I don't recall 15 it, not because I'm saying it didn't happen. 16 Q: Right. And so it's quite possible 17 from everything you saw and heard that Ms. Hutton did, in 18 fact, say in that meeting that the Premier wants them out 19 in a day or two. 20 A: It's quite possible. I can't say it 21 didn't happen. 22 Q: Okay. And -- and if Ms. Hutton said 23 that, would you agree with me that you understood that it 24 was the Premier's wishes to have the protesters removed 25 within that time period?
1201 A: Again I think the only part of the 2 reference that I -- I didn't sign up for was the 3 reference to, "a day or two". 4 Q: Okay. 5 A: I can't say she didn't say that. I 6 don't have a recollection of that though. 7 Q: Okay. And you've -- you've seen a 8 number of references in these notes to the goal being 9 removal ASAP. 10 A: Hmm hmm. 11 Q: Now ASAP can mean a lot of things. 12 A: Sure. 13 Q: It can mean immediately and it can 14 mean when you get around to it at your earliest 15 convenience and those sorts of things, right? 16 A: Yeah. 17 Q: Now -- 18 A: I don't know about at your earliest 19 convenience, but it would mean as soon as the tools 20 legitimately available to you allow you to do it. 21 Q: Okay. But, when you see these 22 references to the goal being removal ASAP, is that -- is 23 a day or two (2) for them being out of the Park 24 consistent with that reference? 25 A: In terms of what they wanted?
1211 Q: Yes. 2 A: Maybe. In terms of what the tools, 3 sort of, readily available to them, no, because it wasn't 4 realistic, for example, to think that you'd be able to 5 bring and begin enforcing even an ex parte injunction 6 within a day or two (2). 7 Q: Okay. 8 Commissioner, I don't know what time you 9 intended to break for -- it's unlikely I'm going to 10 finish by lunch, so... 11 COMMISSIONER SIDNEY LINDEN: No, I didn't 12 think you would finish by lunch but I wanted to give you 13 an opportunity to -- 14 MR. MURRAY KLIPPENSTEIN: Yeah. 15 COMMISSIONER SIDNEY LINDEN: Is this a 16 good time for you? 17 MR. MURRAY KLIPPENSTEIN: This would be a 18 good time, yes. 19 COMMISSIONER SIDNEY LINDEN: Well, we'll 20 break for lunch now. 21 THE REGISTRAR: This Inquiry stands 22 adjourned until 2:15. 23 24 --- Upon recessing at 12:59 p.m. 25 --- Upon resuming at 2:16 p.m.
1221 2 THE REGISTRAR: This Inquiry is now 3 resumed. Please be seated. 4 COMMISSIONER SIDNEY LINDEN: Thank you. 5 MR. MURRAY KLIPPENSTEIN: Thank you, 6 Commissioner. 7 COMMISSIONER SIDNEY LINDEN: Yes? 8 9 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 10 Q: Mr. Hutchison, before the break I was 11 asking you some questions about the September 6th meeting 12 and the various references to the goal of removing the 13 protestors from the Park and the various references to 14 the timeframes including ASAP and, perhaps, one (1) or 15 two (2) days, that sort of thing. 16 I'd now like to ask you a few questions 17 about that time -- that goal in that time -- those 18 timeframes in connection to something else which is the 19 role of negotiation. 20 You mentioned if -- if I recall correctly 21 that in a situation like this you would consider it 22 standard to refuse or decline to negotiate those alleged 23 substantive issues? 24 A: That's correct. That's my 25 understanding of the -- the approach that had been taken
1231 in -- in similar situations in the past and that was, 2 like, the -- the standing mandate for the committee. 3 Q: Right. But, that didn't prevent and 4 -- indeed, there would be other types of -- you can call 5 them negotiations including a process setting up some 6 other forum or some kind of go-between; is that right? 7 A: Yeah. That -- that's how I would 8 understand it. And again, in fairness I wasn't directly 9 involved in setting up those negotiations or leading to 10 how they would play out, but my understanding was that 11 was the sort of thing that was within the -- the purview 12 of any negotiator that might be appointed. 13 Q: All right. I'd like to ask you about 14 another part of some of the notes, and this occurs -- 15 this is part of the September 6th meeting, this occurs in 16 the notes of, I believe, Elizabeth Christie, and I've 17 provided copies to the Commissioner and yourself and the 18 Registrar and My -- My Friends. 19 And in the package I've provided to you 20 this begins at page 64. And it's apparently the 21 handwritten notes of the September 6th, 1995, IMC meeting 22 by Elizabeth Christie Document Number 1011797; that's 23 1011797, which I believe have not yet been made an 24 exhibit to my recollection. 25 I wonder, Commissioner, if it would be
1241 appropriate to give them an exhibit number now for 2 reference? 3 THE REGISTRAR: P-637. 4 MR. MURRAY KLIPPENSTEIN: Thank you. 5 6 --- EXHIBIT NO. P-637: Document Number 1011797. Ms. 7 Elizabeth Christie's 8 handwritten notes from IMC 9 meeting sept 06/'95. 10 11 COMMISSIONER SIDNEY LINDEN: Is that the 12 note in the package of material you gave us? 13 MR. MURRAY KLIPPENSTEIN: Yes. 14 COMMISSIONER SIDNEY LINDEN: That's 15 sixty-four (64) on the numbers you've -- 16 MR. MURRAY KLIPPENSTEIN: That's correct. 17 COMMISSIONER SIDNEY LINDEN: -- marked on 18 them? 19 MR. MURRAY KLIPPENSTEIN: Yeah. 20 COMMISSIONER SIDNEY LINDEN: That's fine. 21 22 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 23 Q: So, in the package that I've 24 provided, it's page 64 and if you flip in a page -- a few 25 pages to handwritten, page 69, which also have the
1251 handwritten circled number 15. 2 Do you have that? 3 A: I have that one, yes. 4 Q: And if you go about three-quarters 5 (3/4's) of the way down there's two (2) lines which 6 appear to say: 7 "Deb, Premier's office doesn't want to 8 be seen to be working with Indians at 9 all." 10 I've two (2) -- two (2) questions about 11 that. Do you recall any discussion in the September 6th 12 meeting, either by recollection or through your notes, of 13 the idea of working with Indians or negotiating with 14 Indians? 15 A: I know that there was a reluctance to 16 be seen to be negotiating anything substantive; I -- I 17 certainly remember that. In terms of this comment I 18 don't recall anything like that. 19 Q: Okay. 20 A: That's in the category, though, of it 21 doesn't mean it didn't happen, it just means I don't 22 remember it sitting here today. 23 Q: Right. Going a little bit further 24 then, that doesn't meant it doesn't happen, would this be 25 consistent with your recollection of what happened in the
1261 meeting even though you don't specifically recall it? 2 Or in other words, you would have no -- 3 would you have any reason to doubt the accuracy of this - 4 - of this? 5 A: I wouldn't necessarily quarrel with 6 it. If somebody said they remembered this, I wouldn't 7 take issue with it. 8 Q: All right. All right. And generally 9 you said, I believe, just a minute ago that you did 10 understand a sense in the meeting that there wouldn't be 11 negotiations on substantive issues, but do you recall any 12 discussion about whether there'd be negotiation -- 13 negotiations on anything other than substantive issues in 14 other words? 15 A: I -- I don't recall any discussion 16 around that. I know that, for example, no negotiator 17 seemed to be appointed, there wasn't a discussion about 18 what the parameters of the mandate for a negotiator would 19 be. 20 I don't recall negotiations being one of 21 the -- the topics that was being canvassed or being, if 22 you like, developed in terms of what it would look like. 23 Q: All right. Okay. Thank you. 24 A: That doesn't mean it wasn't 25 happening. It just didn't happen when I was there at
1271 that meeting. 2 Q: Okay. 3 COMMISSIONER SIDNEY LINDEN: I'm having a 4 little difficulty with your answers. When you say, It 5 doesn't mean it didn't happen, I mean that doesn't mean 6 it did happen but if you don't recall, but it's 7 consistent with your recollection, that would be helpful 8 to know. 9 Where as it's not consistent with your 10 recollection and it didn't -- you don't really -- 11 THE WITNESS: I don't want to -- my -- my 12 concern is that if I simply answer I don't remember that 13 happening, that's an ambiguous answer. 14 COMMISSIONER SIDNEY LINDEN: Yes. 15 THE WITNESS: And it invites the 16 possibility if I -- 17 COMMISSIONER SIDNEY LINDEN: Well try and 18 be helpful. 19 THE WITNESS: It's either a failure of 20 memory and most of the time that's what it is. 21 Sometimes, for example, the reference to Indians and 22 using guns. I don't recall that being said and I'm 23 fairly certain that -- that absence of a recollection 24 because I -- I didn't hear somebody say that. 25 COMMISSIONER SIDNEY LINDEN: No, but I
1281 think -- well, I'll let you try it. Sometimes it's hard 2 for me to know exactly what you're saying. That if 3 you're saying -- does it mean it didn't happen, but 4 you're not saying it did happen, but you are saying that 5 it's consistent with your recollection. Otherwise why 6 are you telling us about it? 7 THE WITNESS: I -- I -- 8 MR. MURRAY KLIPPENSTEIN: Perhaps, 9 Commissioner, it's my fault for asking the question that 10 way. And I apologize to -- to the witness. And so let 11 me try and be more clear about it. 12 13 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 14 Q: When -- when I've asked you this, and 15 let me just rephrase the question a bit, or to reuse a 16 phrase that I've just used, do you have any reason to 17 doubt that this -- 18 A: No. 19 Q: -- occurred? 20 A: No. I would not take issue with this 21 based on anything I present recall. 22 Q: Okay. So that would include for 23 instance if from what you do recall about the meeting, 24 this doesn't sound like it could have happened then you'd 25 have reason to doubt it. But no such doubt exists for
1291 this statement? 2 A: Right. So for example the comment 3 about removing them even if you have to use guns. I -- 4 Q: Right. 5 A: -- don't remember that and I think I 6 would if I had heard someone say that. 7 Q: Okay. Thank you. I apologize for 8 the confusion. Then moving on to a slightly different 9 topic but still on the question of the court order that 10 was discussed here in terms of a civil injunction. 11 If you could turn in the package I gave 12 you, to page 50 of that package which are or appear to be 13 the September 6th '95 meeting notes of Ms. Prodanou and 14 they're Document Number 1011763. That's 1011763. 15 Thank you, Ms. Hensel, for that wonderful 16 assistance on the screen there. 17 And do you have that? 18 A: I do. Can I ask who she was. I 19 don't recall. 20 Q: She is listed on the meeting minutes, 21 but let me just refresh my memory as well on what her 22 alleged role was. She's from ONAS. Anna Prodanou 23 appears to be from ONAS, okay. 24 I take it you don't remember who she was? 25 A: I don't know.
1301 Q: Okay. Now I anticipate we will have 2 her testify as to these notes. But for now, 3 Commissioner, if it's possible to have these given an 4 exhibit number that would be appreciated. 5 THE REGISTRAR: P-638, Your Honour. 6 COMMISSIONER SIDNEY LINDEN: P-638. This 7 is page 50 of the notes you've given us. 8 MR. MURRAY KLIPPENSTEIN: Yes. 9 MR. COMMISSIONER SIDNEY LINDEN: Page 50 10 of the notes you've provided. 11 12 --- EXHIBIT NO. P-638: Document Number 1011763. A. 13 Prodanou's handwritten notes 14 from IMC meeting Sept 06/'95. 15 16 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 17 Q: And then moving on through that to 18 page 54 of the package which has handwritten circled page 19 number 5 at the top. Do you see that? 20 A: Yes. Yes, I have it. 21 Q: Now just for context, I'll go back 22 two (2) pages on circled page number 3 there's a 23 discussion of what appears to be Tim McCabe's injunction 24 report where he says, "Best case Friday." Do you 25 remember that reference, "Best case Friday?" I think
1311 that appears in your notes as well. 2 A: I'm sorry, I've lost you now. You're 3 -- top of 5 still? 4 Q: No. Page 3. 5 A: Oh, sorry. 6 Q: Near the bottom. 7 A: Yes. 8 Q: There's a line that says, "Best case 9 Friday." Can you make that out? 10 A: Yes. 11 Q: Yes. That's not a great photocopy, 12 sorry. 13 Q: No. But just to orient you in the 14 meeting, then there's, on the next page, page 4, appears 15 to be a discussion of Ron Fox and several others. 16 Do you see that? 17 A: Yes. 18 Q: And then at the top of page 5 there's 19 a reference to Tim, which would be Tim McCabe I suppose, 20 and he appears to be talking about the order that might 21 result from a -- an injunction application, and the words 22 seem to say: 23 "Order granted Friday - police can [it 24 appears to say can] enforce order. 25 Good cops/bad cops, OPP says they have
1321 to go. If they refuse to go, they're 2 in breach of court order." 3 Does that seem like a reasonable reading 4 of that handwriting? 5 A: Yes. 6 COMMISSIONER SIDNEY LINDEN: Yes. Yes. 7 I see Ms. Twohig. 8 Yes, Ms. Twohig...? 9 MS. KIM TWOHIG: Thank you, Mr. 10 Commissioner. I don't have an objection but I just 11 thought it might be helpful to Mr. Klippenstein and to 12 Mr. Hutchison to clarify that Anna Prodanou was the 13 Senior Communications Officer at ONAS and she was the 14 Acting Manager of Communications at the time, she was not 15 a lawyer. So, I thought that might assist. 16 17 (BRIEF PAUSE) 18 19 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 20 Q: Thank you. Thank you, Ms. Twohig. 21 And My Friend Mr. Horton has also pointed 22 out that there may be a -- a possible error in the way 23 I've read these notes, and I don't know exactly what they 24 say but I just put them to you as another possible 25 reading. The parts in the quotation marks could also
1331 say: "Good cops/bad court." 2 Is that a possible reading as well? 3 A: I'm not a handwriting expert but 4 that's a possible reading, yes. 5 Q: But in -- in any case, for me looking 6 at these, they appear -- 7 MR. WILLIAM HORTON: Sorry. I don't mean 8 to interrupt, Commissioner, but it's just: 9 "Good cops\bad court, OPP says they 10 have to go. If they refuse to go, 11 they're in breach of the court order." 12 That's -- 13 THE WITNESS: Yeah. 14 MR. WILLIAM HORTON: -- that's what I'm 15 suggesting. 16 17 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 18 Q: Thank you, Mr. Horton. 19 A: And that -- that sort of sentiment is 20 at least part of why, I think, the police like to have an 21 injunction in place because it, if you like, allows them 22 to offload responsibility for whatever is being done back 23 to the court order. So it's -- it's not simply sort of 24 what the word looks like, it almost -- be -- be 25 contextually out there too.
1341 Q: Right. And so the OPP would be, in 2 this scenario, it would appear, be presented with a court 3 order and say, We have to enforce it and so we will, 4 something like that? 5 A: Yeah. 6 Q: Do you recall either this comment or 7 something like it? 8 A: I don't, but it would be consistent 9 with the kind of conversation that was going on. 10 Q: Right. And to use the -- alternative 11 terminology, you have no reason to doubt that -- 12 A: No. 13 Q: -- something close to this was said? 14 A: No. 15 Q: Okay. And presumably we'll listen -- 16 we'll hear the author of the notes in due course. 17 Now this is -- appears to be Tim McCabe 18 speaking, and I believe, in your examination-in-chief, 19 you referred to Mr. McCabe and you said something like he 20 was a lawyer par excellence? 21 A: Yeah. He's a very good lawyer. 22 Q: He's a very good lawyer? 23 A: Yes. 24 Q: And he was in -- at that time, in 25 1995, a very senior lawyer; is that right?
1351 A: Oh, I thought he was. Now, I -- I 2 don't know his history but my understanding was that he 3 had been around for some time and that he was one of the 4 more senior people -- 5 Q: Sorry. I -- 6 A: -- sorts of issues. 7 Q: I guess I wasn't speaking clearly. I 8 -- my question was that he was in fact a senior lawyer? 9 A: Oh, yes. 10 Q: Yes. 11 A: Yeah. Sorry. 12 Q: What -- what colour was his hair; 13 gray, white, pretty much? It's okay, I withdraw the 14 question. 15 A: I don't know. You all get so much 16 older and I stay young, so I have trouble following these 17 things. 18 Q: Anyway he -- your -- your impression 19 of him was that he was -- he did very professional and 20 astute work; would that be fair? 21 A: Yes. 22 Q: Okay. And what he appears to be 23 saying, or that you would reasonably have understood 24 here, is that if there was an application for an 25 injunction and the order was obtained on that Friday, it
1361 might well be turned over to the OPP by the Government 2 and say, Can you please enforce this, and they would be 3 obliged to do it? 4 A: Yeah. I don't know if I would say 5 that they were obliged to do it, but then the OPP can say 6 that they're obliged to do it. 7 Q: Right. 8 A: And it -- it has the advantage of 9 allowing the police to say -- to sort of preserve their - 10 - their front line credibility with the -- the people 11 that are on the other side of the blockade and say, in 12 effect, We're simply here enforcing a court order, a 13 process -- 14 Q: Right. 15 A: -- that's beyond our control. 16 Q: But it also -- that seems reasonable 17 to me, but it also goes further because Tim McCabe seems 18 to be saying, OPP says they have to go, so there appears 19 to be a sense of there's an obligation on the OPP to now 20 enforce the court order once they've received it; is that 21 fair? 22 A: No. I think it means OPP say they, 23 the protesters, have to go. 24 Q: Okay. 25 A: If they refuse to go, they're in
1371 breach of the order. So the "they" I take it to be the 2 protesters. 3 Q: Okay. But the police then, depending 4 on what the order says, would be in a position to enforce 5 the court order and might even have a problem in 6 appearances if they weren't enforcing the court order; is 7 that fair? 8 A: I wouldn't want to get into offering 9 an opinion about the legal obligations of a peace officer 10 with a court order in hand and all -- so many different 11 conflicting exigencies in a circumstance like this. 12 Q: Okay. But from the Government's 13 point of view, and Tim may just be pointing out that 14 although Mr. Hutchison has just said you can't order the 15 police to do something. 16 You can, in a different sense of the word, 17 give them an order about removing the protesters; is that 18 fair? 19 A: I don't know that the order requires 20 them necessarily to remove them so much as it requires 21 the protesters to leave. The -- the police then, either 22 with or without the sheriff, serve the order and the 23 supporting materials and anyone who's not in compliance 24 with the order but has notice of it is in contempt. 25 Where you go with the contempt is another
1381 issue. 2 Q: Okay. So but then we get into the 3 issue of the question of whether the police have an 4 obligation to enforce the order, the timing of that, 5 those sorts of issues; is that right? 6 A: Right. And my understand would be 7 that all of that remains in the discretion of the 8 officers. 9 Q: Okay. 10 A: You can't order them to go in if you 11 think, for example, that it presents a danger to public 12 safety. 13 Q: Right. Okay. 14 A: The OPP, for example, weren't a party 15 to the order. 16 Q: Right. Did -- let me ask about the - 17 - well, are you aware of when the -- the court 18 application was actually made in the end result? 19 It was made the next morning on September 20 7th. Did you become aware of that at the time? 21 A: I wouldn't quarrel with that. I 22 don't -- I probably knew at the time. I don't have a 23 distinct recollection right now. 24 Q: And there's evidence that, in fact, 25 an attempt was made to obtain that court order that very
1391 evening on September 6th that -- Mr. McCabe and Ms. 2 Christie or some combination of them contacted the court 3 in Sarnia to seek an appointment for that evening. 4 Did you become aware of that effort on the 5 6th? 6 A: I -- I know that once the decision 7 was made to move an ex parte, you're obliged to move as 8 expeditiously as you can if you're going to bring in ex 9 parte application. And I'm sure that they were trying. 10 Q: Yeah. Okay. And so in that scenario 11 if there was, in fact, that there had been a hearing that 12 evening then what we've just seen Tim -- Mr. McCabe 13 discussing here about the order to be potentially 14 enforced by the police could have happened as early as 15 the next morning September 7th; is that right? 16 A: If in theory they can -- they can get 17 in front of a judge, the evening of the 6th? 18 Q: Hmm hmm. 19 A: In theory you could leave with an 20 order that night. 21 Q: Hmm hmm. All right. 22 A: That's assuming you -- you can get 23 your materials together -- 24 Q: Right. 25 A: -- get in front of a judge, have a
1401 judge adjudicate on the matter, all in that very, very 2 short period of time. 3 Q: Right. Now I -- I'd like to ask 4 again on the timing issue both in terms of how it relates 5 to the -- to the idea of the court order that the police 6 might enforce and how it relates to the -- the goal of 7 getting the protesters out ASAP. 8 If you turn to your own notes of the 9 September 6th meeting which are Exhibit P-635, on 10 handwritten page 3 of those notes, the last few lines 11 appear to be a discussion of the injunction possibility. 12 And I see that there's a reference to a 13 notice; do you see that? 14 A: I'm sorry, where are you again? 15 Q: I am now I believe on the third from 16 the bottom line of handwritten page 3 of your notes. 17 A: Okay, I'm with you, yes. 18 Q: Yeah. "Motion," there's a reference 19 to "notice;" is that right? 20 A: Yes. I've got, "motion notice, 21 abridge notice." 22 Q: "Abridge notice." Okay. And then 23 the next line or two (2) lines down it says, "best case 24 Friday." 25 A: Yes.
1411 Q: Okay. That is a line that appears to 2 -- in an awful lot of the notes of the note-takers of 3 that meeting and I want -- I use that as a reference 4 point to cross-reference to Julie Jai's notes which are 5 in your materials and are Exhibit... 6 A: P-536? 7 Q: Thank you. And these being the 8 handwritten notes of Julie Jai for September 6th and 5th, 9 but going to the September 6th notes and her handwritten 10 number 3, page 3? 11 A: Yes? 12 Q: Thank you, Ms. Hensel. And beginning 13 with the Tim reference there I'd like to just go through 14 those lines because they end up in the Best case Friday 15 and then I want to follow through that because I want to 16 question you about what appears to be happening in the 17 meeting at that particular point in time. 18 Tim appears to be saying "ministers can 19 say" -- I'm sorry, do you have that? 20 A: Yeah. 21 Q: Okay. 22 "Ministers can say, instructions have 23 been given to AG to seek an injunction 24 ASAP. Not a case for ex parte 25 injunction. Should give notice but we
1421 could go into court to seek an 2 abridgement of the three (3) days' 3 notice. We are checking with Sarnia 4 Court to find out when a judge is 5 available. The other variable, getting 6 our material ready. Need to establish 7 this is provincial land?" 8 A: Yeah, and I'm going to guess that's a 9 symbol he uses to write, "Crown." 10 Q: Crown land? I see the crown there 11 now, yes. 12 "Title history. Incidents in park, et 13 cetera. Best case Friday in Court." 14 That appears to me to be the same comment 15 that you took note of. Was that a reasonable inference? 16 A: Yes. 17 Q: And then it appears there are 18 comments arise which we looked at earlier. Deb Hutton 19 appears to say: 20 "Premier feels the longer they occupy 21 court the more support they'll get. He 22 wants them out in a day or two (2)." 23 And then Mr. McCabe's next comment seems 24 to be: 25 "That suggests we should proceed under
1431 the Code." 2 Which I take it means Criminal Code. Is 3 that a fair inference? 4 A: I would read it that way, too. I 5 don't remember the comment but I'd interpret the note the 6 way you have. 7 Q: Okay. Now, do you have any 8 recollection of that small part of the meeting because 9 I'm going to ask you because it appears to be fairly 10 important? 11 A: That -- that specific exchange I 12 don't. 13 Q: Okay. 14 A: But I agree with your interpretation 15 of the note. 16 Q: Okay. And it appears that Mr. McCabe 17 has described getting an injunction. He recommends -- 18 let me take back that word just for clarity. He -- he 19 uses the words, "should give notice" and "it's not a case 20 for ex parte" and describes how he foresees this 21 happening on Friday. 22 And then Ms. Hutton comes out and says, 23 Premier wants them out in a day or two (2) and the Mr. 24 McCabe suddenly seems to change course and say, Well then 25 you're talking Criminal Code, not civil injunction?
1441 A: Hmm hmm. 2 Q: Is that a fair interpretation of 3 what's going on there from your recollection of your 4 notes? 5 A: That's a fair interpretation of the 6 note, yeah. 7 Q: Yeah. 8 A: But it's not my note. 9 COMMISSIONER SIDNEY LINDEN: This is a 10 part of the meeting that the Witness has said he can't 11 recall. 12 MR. MURRAY KLIPPENSTEIN: All right. 13 COMMISSIONER SIDNEY LINDEN: And that's 14 why I'm having some difficulty with this. If he can 15 recall it, if it's consistent with his recollection or 16 something he can help us, but if he doesn't recall it and 17 you're just interpreting the notes, this Witness isn't 18 helping us at all. 19 MR. MURRAY KLIPPENSTEIN: I don't mean to 20 -- to do that from -- from this Witness but he is an eye 21 witness and I want to -- if -- if there's any reason that 22 this is in error then we're all benefiting from him 23 saying that. 24 COMMISSIONER SIDNEY LINDEN: Yes, if it's 25 in error we're benefiting from him saying it. If he
1451 recalls it we're benefiting, but if he can't recall it we 2 get no benefit from anything he says. 3 MR. MURRAY KLIPPENSTEIN: Yeah. 4 COMMISSIONER SIDNEY LINDEN: I don't 5 think. 6 MR. MURRAY KLIPPENSTEIN: And I think 7 that's why I'm trying to phrase my questions the way I do 8 but I take your point, Commissioner. 9 10 (BRIEF PAUSE) 11 12 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 13 Q: On that same -- the same question for 14 the same location of the meeting, if you could turn in 15 the package I've provided to you, Commissioner and Mr. 16 Hutchison, to handwritten page 41 of the package, which 17 is handwritten notes from the September 6th, '95 IMC 18 meeting or appear to be, and they're document number 19 1006190. That's 1006190. 20 And I don't know the author right now but 21 is -- it appears to be somebody who attended that 22 meeting, from the copious detailed notes that were taken, 23 and I assume we will find out who they are. And unless 24 there's an objection, I do just want to see whether these 25 spark a recollection.
1461 If you turn to handwritten page 4 of those 2 notes -- 3 COMMISSIONER SIDNEY LINDEN: Do we know 4 who the author of these notes is, Ms. Hensel? 5 MS. KATHERINE HENSEL: I'm just going to 6 double-check to see if we have it on our -- 7 8 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 9 Q: While My Friend is checking that out, 10 just to orient ourselves, do you have handwritten page 4, 11 Mr. Hutchison? 12 A: I do. 13 Q: Okay. And you -- you see near the 14 top the reference to, "Best case Friday?" 15 A: Yes. 16 Q: Actually, it's handwritten page 3 17 that I'm after. 18 A: Sorry. You -- you're back to 3? 19 Q: Yes. Sorry. 20 A: Okay. I'm back there now. 21 Q: Commissioner, the information appears 22 not to be immediately available but we can fill that in-- 23 COMMISSIONER SIDNEY LINDEN: Find out. 24 Well I'm finding that reference to, "Best case Friday" on 25 handwritten page 4.
1471 MR. MURRAY KLIPPENSTEIN: That's correct. 2 And I -- 3 COMMISSIONER SIDNEY LINDEN: Oh, I 4 thought you said three (3). 5 6 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 7 Q: And -- and I was just orienting, but 8 going back a step from that, to page 3. I see, about two 9 thirds (2/3's) of the way down a... 10 11 (BRIEF PAUSE) 12 13 Q: There's a line that appears to say: 14 "Not good case for ex parte unless 15 [something] fact." 16 Do you see that? 17 A: Could you give me the line reference 18 because the -- I have numbered lines here, so. 19 Q: It appears to be line 16. 20 A: "Not good case -- 21 Q: It appears -- 22 A: -- "Not" -- yeah, "Not good case 23 for -- 24 Q: It appears to say: 25 "Not good case for ex parte unless
1481 [something] fact." 2 Does that make sense? 3 A: Yes. "Unless [something] fact of 4 threat to public." 5 Q: Right. 6 A: "Must show fact threat to public." 7 Q: That -- that seems fair. Then, also, 8 dropping several lines down, there's a reference that 9 says: 10 "On its face not a without notice 11 injunction." 12 Do you see that? 13 A: Yes. 14 Q: Now those appear to be references to 15 what we just looked at and my question on -- on Mr. 16 McCabe's presentation on the ex parte injunction; does 17 this assist your memory with respect to what Mr. McCabe 18 said on the question of ex parte? 19 A: I certainly recall Mr. McCabe being 20 concerned as to whether or not he had the facts he needed 21 to make out a case for an ex parte injunction. And I 22 think he was reasonably comfortable that he had the facts 23 he needed to get an injunction and maybe even to get a -- 24 an abridgement of notice. 25 But he was a little bit less enthusiastic
1491 in terms of -- to the extent that lawyers get 2 enthusiastic about the cases they have -- less 3 enthusiastic about the possibility of succeeding on an ex 4 parte basis. 5 Q: All right. 6 A: And I think that's what you see sort 7 of reflected in here, is -- 8 Q: Okay. 9 A: -- the -- the caution that he's 10 addressing in that regard. 11 Q: Okay. And was there anybody in the 12 meeting, to your recollection, who openly and 13 specifically supported an ex parte injunction without -- 14 an injunction without notice, to your recollection? 15 A: Only to the extent that people 16 expressed the view that they wanted to move more quickly. 17 Q: Was there any lawyer, to your 18 recollection, who actually supported the injunction going 19 ex parte? 20 A: To my recollection, no, in the sense 21 of, again, I don't have a recollection of that but I 22 equally don't have a recollection of nobody saying that 23 either. I just -- I -- and I don't mean to be unhelpful 24 or -- or to dodge you but it's -- 25 Q: Yes.
1501 A: -- ten (10) years ago. 2 Q: Yes. No, I understand. 3 My Friend Ms. Hensel advises that it 4 appears those notes were those of Carolyn Pinto, so. 5 Thank you very much, Ms. Hensel. 6 7 (BRIEF PAUSE) 8 9 Q: If I then ask you to turn to -- just 10 one (1) moment, please. 11 12 (BRIEF PAUSE) 13 14 Q: The memo which you had some role in 15 preparing the contents of entitled, "Criminal and Civil 16 Proceedings to Terminate the Occupation of Ipperwash 17 Provincial Park by the Stoney Pointers," which is Exhibit 18 P-634. 19 A: Yes, I have it. 20 Q: And I understand you say you prepared 21 the text or content of the first page, possibly something 22 on the top of the second page; am I right so far? 23 A: That's correct. 24 Q: And then the material entitled, 25 "Civil Proceedings," was not your field of expertise back
1511 then and so that wasn't your work; is that fair? 2 A: That's right. 3 Q: Okay. Now however, in this I now -- 4 again, looking at the question of the ex parte issue and 5 what's in there for purposes of figuring out the sequence 6 of events and under the civil proceeding heading I go 7 down four (4) paragraphs to the last full paragraph on 8 the page. 9 A: Right. 10 Q: And the first sentence says: 11 "In the absence of facts that would 12 suggest such urgency that the delay 13 necessary to give notice would entail 14 serious and irreparable injury, this 15 does not appear to be case for an ex 16 parte injunction." 17 And the sentence continues. 18 A: Correct. 19 Q: Now, do you know who prepared this 20 material? 21 A: I do not. 22 Q: Okay. In terms of timing, however, I 23 just want to track a little bit to see when this comment 24 on ex parte was written and first of all -- well, I won't 25 make suggestions until I provide you a few more documents
1521 which may help your memory. 2 I'd like to refer you to a minister's 3 briefing note which is at -- one (1) moment please -- at 4 page 13 of the package I handed out. 5 A: I have it. 6 Q: And that appears to be a ministers 7 briefing note dated at the bottom September 5th, 1999 8 whose subject is, "Occupation of Ipperwash Provincial 9 Park by the Stoney Pointers and approved by Jan Lazor 10 (phonetic) Assistant Secretary." 11 Now, do you recognize that document? 12 Did you see it previously? 13 A: I -- I don't believe I have. I 14 recognize this kind of document. I'm not sure that I've 15 ever seen this particular one, but I've seen briefing 16 notes like this before. 17 Q: Okay. And then I'd like you to -- 18 draw your attention to the section summary of advice and 19 the last sentence there -- 20 A: Hmm hmm. 21 Q: -- says: 22 "A mischief to property charge under 23 the Criminal Code could also be laid 24 and new information not available to 25 the Committee indicates that it could
1531 be an effective means of removing the 2 occupiers." 3 Now this sentence appears to me to be a 4 reference to the materials you prepared on mischief in 5 this criminal and civil proceedings memo because the 6 material you prepared seems to fit the description of 7 mischief information that was somewhat new and not 8 available to the Committee on the 5th. 9 Does this make sense to you? 10 A: Sorry, you're talking about the last 11 paragraph, a mischief charge -- a mischief to property 12 charge? 13 Q: Yes. 14 A: That last -- 15 Q: Yes. That and that alone for now. 16 A: It's possible. I couldn't say where 17 that's come from. I don't know that I would have ever 18 said that the availability of the charge is an effective 19 way to get people out of the Park. It's simply the -- 20 the criminal backdrop if you like. 21 Q: That's -- that's a very important 22 point and I want to ask you about that but before I get 23 to that, you didn't draft these words -- 24 A: No. 25 Q: -- is what you're saying but from the
1541 -- your recollection of the timing of the events then and 2 from -- you said in examination-in-chief, is it possible 3 that after the September 5th IMC meeting in the morning, 4 Ms. Jai or someone else, possibly Ms. Jai, contacted you, 5 got you working on -- with several other lawyers -- this 6 -- this memo, and that memo was then fed into this 7 minister's briefing note that went to the Attorney 8 General, Mr. Harnick. 9 A: That's a sequence that's possible. 10 Equally possible, in fairness, is that in the course of 11 asking me to prepare that passage, Ms. Jai asked me for 12 to -- for a verbal briefing and -- and that that somehow 13 got rolled up into this as well. 14 So I wouldn't want to say for sure that 15 the person who prepared this last sentence here had 16 necessarily read the page that I provided. 17 Q: Fair enough. 18 A: But they -- they would have heard 19 perhaps from somebody that the facts appear to make out 20 the offensive mischief which provided for certain legal 21 options to the police under the code. 22 Q: Okay. Do you know if anyone else who 23 was working on this for the committee related people at 24 that time who could have been the source for this 25 information other than your detailed work here?
1551 A: In terms of the -- somebody giving 2 criminal advice, no. But it -- my only comment is that 3 it may have passed through people before it got to the 4 actual author. 5 Q: Right. 6 A: I'm happy to be tagged as the root 7 source of this advice. 8 Q: Okay. And is it fair to say a major 9 part of your analysis in this memo about the charge of 10 mischief, is that if a person is arrested for mischief, a 11 term can be put into their judicial interim release, 12 which prevents them from going back? 13 A: Yes. 14 Q: Now that is a significant part of 15 your description because that was of interest to the 16 people on the committee who wanted to remove the 17 protesters; is that fair? 18 A: Well I think it was of interest to 19 everybody, frankly, in terms of understanding. And the 20 question usually is, is there an offense on these facts? 21 The answer is, yes. What can the police do if that 22 offense has taken place? Here's -- and you know, you do 23 the breakdown. Summary conviction, hybrid indictable 24 offense. 25 What authority do the police have to
1561 arrest in each of those circumstances? What happens if 2 they arrest? Do they have to take the person into 3 custody, do they have to take them back to the station? 4 Do they have to go through a bail hearing? 5 Q: Right. 6 A: And you simply provide, sort of, what 7 the legal options are to the police if they -- if they 8 choose to carry out an arrest. 9 Q: Right. But -- and we've heard 10 evidence, for example, of Deputy Superintendent Chris 11 Coles in a tape talking about, We can arrest them but 12 they'll be back there the next morning. 13 And that was a concern that lots of people 14 had, an awareness reality that people had; is that right? 15 A: Sure. 16 Q: But, what this -- excuse me for a 17 moment. But the feature of this charge that you can 18 actually -- I shouldn't say use it -- I'll avoid that, 19 but that one result of this is that people can be 20 judicially ordered not to go back, is different from some 21 of the other charges such as trespass; is that fair? 22 A: Yes. 23 Q: Yeah. 24 A: They can be judicially ordered. My 25 recollection is that the officer in charge can release
1571 them on an officer's release. 2 Q: Right. 3 A: In -- In theory you could detain 4 them. 5 Q: Right. 6 A: It would be very, very unusual to 7 detain them but it would be legally available. 8 Q: But what -- then this briefing to the 9 Minister says is that new information indicates that it, 10 being a mischief to property charge, could be an 11 effective means of removing the occupiers, right? 12 Is it fair to say that it appears that 13 some -- somebody else, not you, has summarized your work 14 to say that an -- a charge of mischief can be employed to 15 remove the occupiers from the Park? 16 A: I think that the sentence you've 17 referred me to can be read that way. I don't necessarily 18 want to impute an intention to the author, whether it's 19 something they tried to do or that it's just broken 20 telephone. But -- 21 Q: Sure. 22 A: -- the sentence you read is open to 23 that interpretation. 24 Q: Okay. And would you agree with me 25 that there is a possible danger here if a criminal charge
1581 is being employed and -- or would be employed or deployed 2 for the political purpose, a politically driven goal of 3 removing protesters from the Park? 4 A: Sure. I mean the question answers 5 itself. 6 Q: All right. So what we would then 7 have in that situation would be a politically motivated 8 criminal charge; is that right? 9 A: Sure. And -- and that's why I'm 10 reluctant to say that that's what the author meant 11 because, first of all, you know, seriously people don't 12 think that way within the Ministry and secondly, I -- I'd 13 be shocked to see somebody who did think that way reduce 14 it to writing in this way. 15 Q: Okay. Thank you. 16 COMMISSIONER SIDNEY LINDEN: Why don't we 17 put a document number on the briefing note. I'm not sure 18 for the record that we have that. I think it's 1004318. 19 I don't know if this is already an exhibit or not but, if 20 it is, I don't know the number. 21 MR. MURRAY KLIPPENSTEIN: Yes. That's -- 22 that was the question in my mind, and I haven't been able 23 to find the answer, as to whether or not that is an 24 exhibit, but it -- it may be there's no harm done in 25 giving it an exhibit number now, for this purpose.
1591 MR. DERRY MILLAR: It's already a similar 2 copy -- is the handwritten notes identical to this part, 3 it's Exhibit -- I had it here. 4 5 (BRIEF PAUSE) 6 7 MR. DERRY MILLAR: I had the number of 8 the -- just give me a second. 9 MR. MURRAY KLIPPENSTEIN: All right. 10 Perhaps, once you've found that, it may 11 still make sense to give this a separate exhibit number 12 because this one doesn't have the handwriting that you 13 referred to, and both are significant in their own right, 14 I think. 15 COMMISSIONER SIDNEY LINDEN: Okay. We'll 16 make this one an exhibit then. That's fine. 17 18 (BRIEF PAUSE) 19 20 COMMISSIONER SIDNEY LINDEN: Do you 21 already have it as an exhibit? If it's already an 22 exhibit, let's not make -- 23 MR. DERRY MILLAR: We'll mark it as an 24 exhibit, I just want to make sure we -- that -- 25 COMMISSIONER SIDNEY LINDEN: We don't get
1601 confused. 2 MR. DERRY MILLAR: -- we know which one 3 we're talking about in situations -- if this is different 4 than the other one, then that's fine, we'll mark it, give 5 it an exhibit number. 6 But in the book of -- that we've got 7 there, we've got to make sure that we understand what's 8 being marked by the Registrar as the exhibit. And I take 9 it this is a one (1) page document. 10 MR. MURRAY KLIPPENSTEIN: Then, I -- if 11 this works, Commissioner, and I apologize for the 12 confusion, I would ask that this one (1) page document 13 entitled, "Minister's Briefing Form," dated September 14 5th, on the subject of The Occupation of Ipperwash 15 Provincial Park by the Stoney Pointers, be marked as a 16 separated exhibit. 17 THE REGISTRAR: P-639, Your Honour. 18 MR. MURRAY KLIPPENSTEIN: Thank you. 19 COMMISSIONER SIDNEY LINDEN: P-639. 20 21 --- EXHIBIT NO. P-639: Document Number 1004318. 22 Minister's briefing note 23 Sept. 05/'95. 24 25 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
1611 Q: Then following up -- 2 COMMISSIONER SIDNEY LINDEN: I'm sorry. 3 Before you continue, have you got the exhibit number of 4 the other document? 5 I'm sorry. What is the other exhibit 6 number, the one that's similar to it? 7 8 (BRIEF PAUSE) 9 10 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 11 Q: Then, Mr. Hutchison, can I follow the 12 ideas that you put into this memo further and -- 13 A: I'm sorry. Which memo are we talking 14 about now? 15 Q: This is now the memo entitled, 16 "Criminal and civil proceedings -- 17 A: Okay. 18 Q: -- to terminate the occupation of 19 Ipperwash Provincial Park by the Stoney Pointers." And, 20 by the way, you didn't put that title on the memo? 21 A: No. 22 Q: Now that title also says that -- or 23 refers to the criminal proceedings as being something, 24 quote, "to terminate the occupation", closer quote, and 25 that appears to suggest that the mischief charge that you
1621 describe is being considered as a means for the goal of 2 terminating the occupation; is that fair? 3 A: I -- I don't know that I'd impute 4 that intention to the person who threw that title on the 5 document. 6 Q: Okay. Well, let me turn to -- to 7 other people in the meeting that you intended. Is it 8 fair to say that other people in the meeting were 9 interested in criminal charges as a means -- you talked 10 earlier about the meeting being a way for the experts in 11 the civil service to provide the levers for political 12 people who want to pull it to obtain a given result? 13 Is that fair; something like that? 14 A: Yeah. 15 Q: And your job was to provide 16 information to the meeting and -- and others -- 17 A: So that -- so that people would 18 understand the -- the legal backdrop against which the 19 police exercise their office. 20 Q: Right. And there was quite a bit of 21 discussion about -- and you, in fact, had to say you 22 can't give orders to the police; is that right? 23 A: True. 24 Q: But isn't it fair to say that Ms. 25 Hutton was interested in -- at least initially -- in
1631 doing exactly that, in -- in directing the police to 2 remove the occupiers? 3 COMMISSIONER SIDNEY LINDEN: Just before 4 you answer the question, Ms. Perschy has an objection. 5 OBJ MS. ANNA PERSCHY: Yes. My objection, 6 Commissioner, is simply this Witness can't speak as to 7 what was in the mind of Ms. Hutton. He can speak to what 8 he heard but -- but he can't read her mind. 9 COMMISSIONER SIDNEY LINDEN: Yes. I'm 10 not sure how you phrased the question so I -- 11 12 13 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 14 Q: I think I didn't exactly ask that but 15 my question and -- from your recollection of the meeting, 16 did it appear that either Ms. Hutton or others were 17 interested in the possibility, at least initially, of 18 directing the police to remove the occupiers? 19 A: My recollection of the discussion 20 was, can we get the police to get them out? I say, 21 here's what you can do. You can phone the police the way 22 any other claimant would do. You can't order them and 23 then the discussion moves to, well have we asked. 24 Q: Right. So -- 25 A: And that's the sequence that -- that
1641 I recall. So I don't, you know, again, as the objection 2 suggests, I can't put into her mind what -- 3 Q: Right. 4 A: -- she came in there thinking. 5 Q: And I believe Ms. Hutton or the notes 6 say then, Well let's ask them; is that right? 7 A: Something to that affect, yes. 8 Q: Right. And do you know if they were 9 ever asked? Do you know who called the police and said, 10 Can you remove them? 11 A: I don't. I do remember somebody -- 12 it's a recollection based on a note that I've been 13 referred to at some point but somebody saying that, in 14 fact, the appropriate official within MNR had, in fact, 15 contacted the police and made the appropriate complaint. 16 Q: Okay. Did -- did the material on the 17 mischief charge, which you analysed here, in relation to 18 the charge resulting in people being removed, did you 19 telephone anybody in the OPP and pass that information 20 on? 21 A: No. I -- I have no recollection of 22 providing traditional Crown Attorney to police officer 23 advice. 24 Q: And I think probably you mean you're 25 pretty sure you didn't, is that --
1651 A: I'm pretty sure I didn't. 2 Q: Yeah. 3 A: In fact, I normally would have 4 redirected that kind of an inquiry to the -- to the 5 Crown -- 6 Q: Okay. 7 A: -- on the ground in Sarnia. 8 Q: Okay. And do you recall whether 9 anybody from the OPP phoned you or otherwise communicated 10 with you, requesting information on this charge? 11 A: The -- the only conversation with a 12 police officer I would have had is possibly a side 13 conversation with Mr. Fox. It would have been in the 14 same terms as this and he would have been well aware of 15 this background, this -- this legal framework anyways. 16 So, that's the only discussion I recall 17 with a police officer related to -- 18 Q: Okay. 19 A: -- these events. 20 Q: But there were people at the meeting 21 -- first of all, was this memo of yours circulated to 22 people at the meeting either before or after? 23 A: I -- I don't know. 24 Q: Okay. But you feel you may have been 25 advised at some point that somebody from MNR may have
1661 asked the police to -- to -- to remove the protestors? 2 A: Well, made that phone call, the phone 3 call where the -- the -- the landholder or claimant 4 specifically asked the police and says, you know, there's 5 somebody on my property who shouldn't be there, would you 6 please do whatever you can do to get them out. 7 Q: Okay. 8 A: The same way anybody else would make 9 the same phone call. 10 Q: Do you know whether your analysis 11 about the mischief charge, which seems to have brought 12 out the fact that it can be used, I'll use that 13 colloquially, used to remove people, was communicated to 14 the police; in other words, the specific information 15 about a mischief charge? 16 A: I -- I don't know whether it was 17 communicated to the police. 18 Q: Okay. 19 A: Whether it was communicated as -- as 20 being sourced to me or in any other way. 21 Q: Okay. 22 A: But in fairness it's -- it's -- it's 23 not an obscure charge. 24 Q: Right. 25 A: I'm sure that the police themselves
1671 would have come up with this. 2 Q: Right. But what's, perhaps, maybe 3 this is a compliment, unusual about this is that what 4 you've identified here is a feature of the charge that 5 works its way out through the end result when there's a - 6 - either a recognizance or a police-imposed condition in 7 which -- with a result that a person can be charged and 8 then court ordered not to go back; is that right? 9 A: Right. 10 Q: Okay. Now we've heard evidence, from 11 a number of recorded phone calls, about the events in the 12 few hours before the actual shooting occurred on the 13 evening of September 6th. 14 And we heard a couple of phone calls in 15 which Acting Detective Sergeant Wright talks to Incident 16 Commander Carson, and there's a couple of parts of those 17 conversations which struck me as very odd when I heard 18 them because at two (2) points Acting Detective Sergeant 19 Wright talks about, in one (1) case, some occupiers 20 apparently being involved in mischief to the road and on 21 the other occasion he talks about a car being pelted with 22 mischief. 23 And these struck me as very odd usages of 24 the term, 'mischief', in the charge. And I'm just 25 wondering if you had seen anything which suggests that
1681 any of the information, that you compiled here about the 2 charge of mischief and its uses, got through to Detective 3 Sergeant Wright? 4 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 5 Jackson? 6 MS. ANDREA TUCK-JACKSON: Mr. 7 Commissioner, I just want the record to be clear that 8 from -- from what I glean from the evidence, particularly 9 from Mr. Hutchison's evidence, that any opinion he 10 rendered was in relation to not activities outside of the 11 Park, but was in relation to what was going on inside the 12 Park. 13 And as we've already heard, the context of 14 Mark Wright's conversations with John Carson was 15 specifically about activity outside of the Park, separate 16 and apart from the occupation. 17 MR. MURRAY KLIPPENSTEIN: Thank you, Ms. 18 Tuck-Jackson. 19 20 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 21 Q: So just let me clarify that I -- I 22 don't know whether you have information about whether 23 your charge analysis was -- was communicated in any way 24 to Detective Sergeant Wright, either with respect to 25 inside the Park or outside the Park?
1691 A: I have no knowledge of whether he 2 even knew who I was. 3 Q: Okay. 4 5 (BRIEF PAUSE) 6 7 Q: While on the subject of Detective 8 Sergeant Wright, if I could turn your attention please to 9 your own notes of September 6th and 7th, and in this -- 10 on this particular occasion, your notes of September 7th, 11 which are part of Exhibit P-635. 12 And thank you again, Ms. Hensel. 13 And I believe you testified, if I 14 understand you correctly, that the first number of points 15 on that page where you're recording of a voice mail 16 message you received on the morning of September 7th that 17 appeared to have been a broadcast voice mail to various 18 parties, although I don't know -- that's inference. 19 A: That's my recollection. It -- at the 20 time the Ministry had a technology that allowed you to 21 record one voice mail and send it out to a dozen people 22 quite quickly and it was a fairly effective way to get 23 information out. 24 Q: Okay. And your recollection was, 25 although you weren't sure, that this voice mail may have
1701 come from Julie Jai? 2 A: That's my recollection. 3 Q: Okay. And do you recall whether this 4 came fairly early in the morning? I believe the note 5 showed that Ms. Jai was up very early that morning. 6 A: Well, I bet she was. Yeah, I'm 7 fairly sure this was an early morning -- my recollection 8 is getting up -- my habit was to be into work fairly 9 early anyways. I got up around 6:00, heard this on the 10 radio. Figured that there would be some work to do so I 11 tried to get into work as early as I could. 12 Q: Okay. Then going to the first few 13 points there, the very first part of the very first point 14 seems to say A. D. Sergeant blank. 15 A: Yes. 16 Q: Now we've heard -- 17 A: That just means that I either I 18 didn't recognize the name or was writing quickly and 19 didn't write it down. 20 Q: Okay. What follows there is 21 generally compatible with evidence we've heard about 22 facts in relation to Acting Detective Sergeant Wright. 23 And my question to you is: That first 24 name, is it possible that that stands for Acting 25 Detective Sergeant Wright?
1711 A: That would -- I don't know. But -- 2 it's possible, sure. And I can tell you, with some 3 comfort, that A.D. Sergeant is Acting Detective Sergeant. 4 Q: Okay. 5 A: So that's certainly a reference to 6 the rank. 7 Q: Okay. And then what follows is -- it 8 appears to be the number 12 with clubs -- 9 A: Right. 10 Q: -- which I infer refers to twelve 11 (12) occupiers with clubs, is that a fair inference of 12 what that means? 13 A: That -- that's how I'd read it, yes. 14 Q: Okay. Roadway threats, clubs, houses 15 and cottages, plan to move back to Park. Now this was 16 information received from you quite early on the morning 17 of the 7th? 18 A: Yes. 19 Q: And did you understand that to be a 20 summary description of the circumstances leading to the 21 police moving on the Park? 22 A: My recollection is that the voice- 23 mail proceeded by way of a -- a narrative that was 24 sourced somewhere back at the Park, in the sense of Ms. 25 Jai says, Here's what seems to have happened, and, Here's
1721 the -- the report that I've received, that I'm now 2 passing on to you, Members of the Committee, and she's 3 just repeating what -- what she's heard. 4 Q: Okay. And it appears to me -- tell 5 me if you understood it this way -- that somehow Acting 6 Detective Sergeant Wright was connected with twelve (12) 7 occupiers with clubs on the roadway, there were threats 8 and, therefore, the police planned to move them back into 9 the Park; is that your understanding? 10 A: I -- I don't know whether it's the -- 11 the twelve (12) who had the clubs who wanted to go back 12 into the Park or whether it's the police who wanted to go 13 into the Park. I -- I'm sorry, just sitting here today-- 14 Q: Okay. 15 A: -- if I had a better sense of the -- 16 the facts that actually happened -- 17 Q: Okay. 18 A: -- there, I might be able to help you 19 more. But in terms of trying to interpret the note 20 today, I -- 21 Q: I understand. Okay. Let me go 22 through the next few points: 23 "Plan to move back to Park." 24 A: Hmm hmm. 25 Q: "Twenty (20)," or twenty-six (26),
1731 "officers to move back to Park." 2 A: Tacti -- maybe it would be easier if 3 I tried to read -- 4 Q: Yes, please. 5 A: -- the notes for you, okay? 6 "I have twenty (20) [possibly twenty- 7 six (26)] officers..." 8 And the possibly is just the way the 9 number is 10 written: 11 "...to move back to Park [I'm going to 12 say] tactical retreat to fence. Crowd 13 control retreat. Officers go back to 14 effect arrest" -- 15 Q: Now, let me just pause -- 16 A: Sure. 17 Q: -- there. That appears to suggest to 18 me that the message could be interpreted as, and you 19 interpret it as, the officers then attempting to effect 20 an arrest? 21 A: Yes. 22 Q: Okay. 23 A: "One (1) arrest on retreat. School 24 bus rammed garbage. Run officer..." 25 Sorry. I think that says, "run officer
1741 run down." I think it should be: 2 "One (1) officer run down. On being 3 run down, open fire from vehicles. 4 Head count to confirm injuries. Two 5 (2) ambulances, three (3) injured." 6 Q: Okay. Thank you. I have no more 7 questions about that. 8 9 (BRIEF PAUSE) 10 11 Q: In the -- we're turning now to the 12 memo entitled, Criminal and Civil Proceedings to 13 Terminate the Occupation of Ipperwash Provincial Park by 14 the Stoney Pointers -- 15 A: I have it. 16 Q: -- which is -- thank you -- which is 17 Exhibit P-634. 18 And going again to the section of civil 19 proceedings, which I realize was not your area of 20 expertise at -- back at that time, in the last paragraph 21 on page 2, moving to sentence 2, it says: 22 "Apart from the difficulty of 23 persuading the judge that there is 24 urgency, there is an ex parte 25 motion..."
1751 And I believe that's a typo. 2 "...there is on an ex parte motion an 3 obligation on counsel to see that full 4 and frank disclosure is made of all 5 material facts. And failure to do so 6 will almost always result in the 7 injunction being set aside as a 8 punitive measure on the motion to 9 continue once the defendants have been 10 served." 11 Now, I want to ask you about the concept 12 of full and frank disclosure. 13 I take it you didn't, at that time, know 14 much about that idea for civil proceedings other than 15 your general knowledge as a lawyer; is that right? 16 A: I -- I may have had a bit better 17 knowledge of the notion of full, frank and fair, only 18 because I did a significant amount of work in search 19 warrants and the standard is the same. 20 Q: Okay. So, the standards are the same 21 on search warrants. 22 Can you -- and does it relate to the 23 criminal concept of disclosure as well? Is there some -- 24 A: No. No. But it does relate to the - 25 - the onus on an applicant for search warrant is the same
1761 as the onus on an applicant for any ex parte order. 2 Q: Okay. 3 A: It is the duty to make full, frank 4 and fair disclosure of all material facts bearing on the 5 decision. 6 Q: Okay. Because a search warrant 7 application is an ex parte -- 8 A: Exactly. 9 Q: Yeah. And -- 10 A: And the -- the two (2) lines of 11 authority argue by analogy to each other. 12 Q: Okay. So, can you very briefly tell 13 us what that obligation entails? 14 A: It's a -- a duty to disclose to the 15 judicial officer considering the application any fact 16 material to the decision to be made, whether it helps or 17 hurts the case brought forward on behalf of the 18 applicant. 19 The -- the reference to punitive measures 20 on the motion to continue simply refers to the fact that 21 even though the initial application is made ex parte, the 22 relator being inter partes or two (2) sided application 23 and the responding party can bring to the judge's 24 attention any deficits in the initial material and those 25 deficits, if they're material, will be the basis for the
1771 order being set aside. 2 Q: Okay. And when you said material 3 facts, whether they help or hurt; that means that a 4 person or party applying for an ex parte motion is 5 obliged partly out of assistance to the Court and to 6 protect the Court's own integrity, to -- to put forward 7 facts that it knows which may be against its own case -- 8 A: Yes. 9 Q: -- is that fair? 10 A: Yeah, assuming they're material. 11 Q: Yeah. Then -- and I'll -- I'll come 12 back to that in -- in the next context which is a 13 question of colour of right. A moment's indulgence, 14 please. 15 16 (BRIEF PAUSE) 17 18 Q: In your notes of the September 6th 19 meeting which is Exhibit 635. 20 A: Yes? 21 Q: And going to page 3 where we went 22 before to the reference to the Best Case Friday -- 23 A: Right. 24 Q: -- and we saw how, according to 25 someone else's notes, at that point Ms. Hutton apparently
1781 intervened and said, May want -- The Premier may want 2 them out in a day or two (2) and then Mr. McCabe said, 3 Then you need to go with Criminal Code. Your notes then 4 have a reference at the top of page 4 to possible colour 5 of right. 6 A: Correct. 7 Q: Several references to colour of 8 right. 9 Do you see that? 10 A: I do. 11 Q: Now you've had some discussion of 12 colour of right in your other testimony and cross- 13 examination. The references to colour of right -- if Mr. 14 Millar could go just a little higher on the projection. 15 Oh, I'm sorry, Ms. Hensel is operating that machine. 16 There are several references to colour of 17 right and a reference to mis -- mischief. 18 Do you see that? 19 A: Right. 20 Q: Now, I'm just wondering if you can 21 enlighten us as to why you would have been referring to 22 colour of right? 23 To be honest, I don't see that in anyone 24 else's notes. I don't see anybody recording anybody else 25 as discussing the colour of right but it appears to have
1791 occurred to you as an issue. Is that fair? 2 A: It is and -- and -- I've also got the 3 reference there to the police power of relief in 502.1 4 which doesn't fit with the balance of the discussion. I 5 can only think that it's a note to myself and something 6 that I'm supposed to cover off at some point. 7 Q: So, it appears that the colour of 8 right struck you as relevant at that point? 9 A: Yeah, and I can't recall -- 10 Q: Okay. 11 A: -- it might be I was having a side 12 discussion with somebody I was sitting beside or 13 something like that. I -- I can't help you with where 14 that notation comes from or why it's there. 15 Q: Okay. 16 A: I don't recall reference to 17 psychology either but I've got that written down there as 18 well. 19 Q: All right. Well, is it fair to say 20 that the colour of right in the situation being discussed 21 in this meeting would include the possibility that the -- 22 well, let me -- let me pause and go back a step. In your 23 own notes, if I ask that question to page 2 -- 24 handwritten page 2 -- about two-thirds (2/3's) -- 25 A: Right.
1801 Q: -- of the way down, there's a 2 reference to Burt Manning, Stoney Pointer's Burt Manning. 3 A: Is this -- sorry, is this my number 2 4 or... 5 Q: Your page number 2. 6 A: Okay. 7 Q: There's a reference -- 8 A: Sorry, I'm with you, I'm with you. 9 Q: There's a reference to Burt Manning-- 10 A: Yeah. 11 Q: -- and a reference to: 12 "They say Park is their land, burial 13 ground." 14 Right? 15 A: Yes. 16 Q: Okay. Now there's lots of notes from 17 various parties who include both those references to what 18 the protestors are saying. They say it's their land and 19 they say there's a burial ground. 20 Do you recall those two (2) sort of 21 related points being conveyed at the meeting? 22 A: Yes. 23 Q: Yeah. And now going back to the 24 colour of right issue that you've talked about would you 25 agree that that has the -- the flavour or sense of colour
1811 of right? 2 A: Oh, no. Yeah. That's -- that's, I 3 think, what everybody meant when they talked about colour 4 of right was the -- 5 Q: Okay. 6 A: -- the claim that was being advanced. 7 Q: Okay. And can you give us any sense 8 of how a colour of right defence, or if it's not a 9 defence, how it would fit into, very briefly, the legal 10 analysis of a mischief or similar charge when people 11 apparently are saying, It's our land, they're our burial 12 grounds in there? 13 A: I'm -- I'm not in a position to help 14 you with the burial grounds. That's only because I don't 15 understand frankly the significance of the presence of 16 burial grounds on land that's otherwise been properly 17 conveyed to -- the Crown. So, I'll defer it to somebody 18 who knows the Cemeteries Act better. 19 With respect to the question of colour of 20 right and the underlying conveyance of the land to the 21 Crown, if they had an honest but mistaken belief that 22 they, that is to say the occupiers, had an as yet 23 unrecognized Aboriginal title on that land, that would be 24 an honest but mistaken belief and the set of facts which, 25 if true, would render their activities legal.
1821 Q: All right. Let me ask you in 2 followup to that about two (2) facts of this case. And I 3 won't dwell on them but we've heard quite a bit of 4 evidence here in this proceeding that in fact the lands 5 that became the Park and the adjacent roadway were lands 6 guaranteed to the First Nations people by a treaty way 7 back in 1827. 8 Now, does that sound like the sort of 9 thing which might possibly found a colour of right type 10 of analysis? 11 A: If the question is put as the sort of 12 thing that might possibly found a colour of right 13 analysis. If you stretch it out that far, sure. It 14 would be -- my recollection was that there was some 15 reference to previous unsuccessful litigation -- 16 Q: Hmm hmm. 17 A: -- with respect to the same property. 18 And I know that the people responsible for having such 19 opinions or presenting such opinions, took the view that 20 to the extent there was any claim, it was either a weak 21 one or not one that was enforceable in the hands of the 22 particular occupiers. 23 And I do recall and I've seen it in the 24 notes, Mr. Carson having a comment with respect to the 25 Cemeteries Act and whether or not the presence or absence
1831 of a burial ground would influence the Province's 2 authority or title with respect to the lands. 3 Q: All right. I don't mean to get into 4 what can be a complicated area but let me ask you this, 5 from my review of the notes, I see little or no 6 discussion of the possible colour of right topic that 7 your notes refer to. 8 A: Sure. And -- and my recollection is 9 that the -- the people who would be responsible for 10 knowing whether there was a claim that was assertable in 11 the hands of the occupiers were fairly quick and 12 confident that -- that there wasn't such a right. 13 And -- and I have in mind the... 14 15 (BRIEF PAUSE) 16 17 Q: I think -- did you make a reference 18 to Carson? I wonder if you could clarify whether if it 19 was Dave or John? 20 A: Sorry, Dave Carson. 21 Q: Thank you. 22 A: Dave Carson was counsel at ONAS at 23 the time and who, in some of the notes that I've been 24 taken to, refers to the question of the Cemeteries Act. 25 Q: Okay.
1841 A: And it's my recollection was that it 2 might even have been as high as the -- this claim had 3 already been adjudicated upon. 4 And I know that there were some question 5 as to whether or not this particular group that was 6 responsible for the occupation was constituted in such a 7 way that it could assert a right even if some Aboriginal 8 group had a valid claim in relation to that land. 9 Q: Okay. Now, when -- I won't get into 10 that for now. 11 A: Sure. 12 Q: It's potentially complicated and 13 potentially very important but I won't get into that 14 detail right now. 15 But, going back a step, you talked about 16 the significance of burial grounds and I believe you 17 suggested you weren't aware of what significance the 18 existence of a burial ground might have on land that is 19 owned by somebody else in relation to a colour of right 20 issue. 21 Is that, sort of, what you said? 22 A: Yes. 23 Q: Is it fair to say that given the 24 nature of burial grounds that it would, on a purely 25 common sense level, raise a question about whether
1851 somebody whose ancestors are buried, or allegedly buried 2 on a ground may have some kind of rights of access? 3 Is that a fair general proposition? 4 A: As a legal proposition? 5 Q: From the point of your colour of 6 right. If somebody -- somebody came to you and said -- 7 somebody -- Person 'X' owns this land, Person 'Y' says 8 their ancestors are buried there, does that suggest to 9 you there's some colour of right work that needs to be 10 done? 11 A: I could really be reluctant to -- 12 Q: Okay. 13 A: -- I mean you're -- you're pretty far 14 down the road in terms of my knowledge. So -- 15 Q: Okay. 16 A: -- you might -- you could almost pick 17 somebody at random and they could fill out a square and 18 get as good an answer. 19 Q: Okay. 20 21 (BRIEF PAUSE) 22 23 Q: Now, you -- your notes, I believe, at 24 some point or a couple of points, refer to the approach 25 of the Government of the day on this issue as being one
1861 of law and order, not one of Native rights; is that fair? 2 A: I know that that was very much the 3 messaging that people were worried about that -- and that 4 this -- this issue is to be portrayed, and that was sort 5 of what the -- you recall, I sort of said that -- what -- 6 what staff do or what -- what civil servants do is 7 provide the parameters around which you say this is a 8 legitimate sphere of comment. 9 And part of that would be -- and then, 10 sort of, leave it to political staff to determine what 11 exactly the ministers are going to say in terms of 12 political comment. And to the extent that they want to 13 say it's -- they consider it a law and order issue rather 14 than an Native rights issue, that's fair game for the -- 15 for the political staff. 16 Q: Okay. 17 A: And then that's what I understood the 18 messaging was going to be. 19 Q: Okay. And would you agree with me 20 that it almost follows by definition that if you're 21 talking about law and order, part of the law is Native 22 rights, right? 23 A: I would have thought so. 24 Q: Yeah. I don't think -- in fairness, 25 I don't think that's what most people mean when they use
1871 the expression law -- saying something's a law and order 2 issue, but I would agree with the comment. 3 COMMISSIONER SIDNEY LINDEN: I want to 4 take a break around 3:30. 5 MR. MURRAY KLIPPENSTEIN: I'm just 6 checking, I may be almost -- 7 COMMISSIONER SIDNEY LINDEN: I was just 8 going to ask if you -- 9 MR. MURRAY KLIPPENSTEIN: -- finished or 10 finished, yes. 11 COMMISSIONER SIDNEY LINDEN: If you're 12 almost finished, then let's finish. 13 14 (BRIEF PAUSE) 15 16 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 17 Q: Two (2) -- two (2) very quick 18 questions. There is a reference in the notes at one 19 point, I can refer you to them but it may not be 20 necessary, and I believe it's in Ms. Jai's notes, about, 21 Don't mention burial grounds. 22 Do you remember anything like that being 23 said? 24 A: Don't mention, in what context? 25 I mean, don't -- don't mention publically,
1881 or don't mention in the court application, or -- or don't 2 mention when you brief the Minister? 3 Q: I don't know the answer, that's why I 4 was asking you. 5 A: I suspect at the end we're going to 6 have neither of us knowing, but let's find out. 7 Q: Page -- Julie Jai's notes, Exhibit P- 8 536, the notes of September 5th, which is the meeting you 9 were not at, so I don't imagine you can comment on that. 10 Well, September 5th, page -- page 8, at the top. 11 Do you have that? 12 Top line: 13 "We will not mention burial grounds." 14 A: Right. 15 OBJ MS. KIM TWOHIG: Excuse me. If I may 16 just object to this in that My Friend Mr. Klippenstein 17 just said that Mr. Hutchison was not at that meeting and, 18 as I understand it, he's being asked to comment on what 19 the writer of a note might have meant -- 20 COMMISSIONER SIDNEY LINDEN: At a meeting 21 that he was not -- 22 MS. KIM TWOHIG: -- at a meeting that he 23 was not present at, so -- 24 COMMISSIONER SIDNEY LINDEN: That's a bit 25 of a stretch.
1891 2 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 3 Q: Yes. I -- it's an obvious problem 4 and I don't mean to ask you about it -- something you 5 weren't -- something occurring at a meeting at which you 6 were not present, but you were present at the meeting the 7 next day when these issues were raised. 8 Was there any similar comment or reference 9 or anything that would illuminate what appears on those 10 notes? 11 A: Not that I can think of, no. 12 Q: All right. I think that completes 13 all my questions, Mr. Hutchison. Thank you very much for 14 your assistance and thank you, Commissioner. 15 COMMISSIONER SIDNEY LINDEN: Thank you 16 very much, Mr. Klippenstein. We'll take a break and I'm 17 not sure if it's Mr. Rosenthal or Ms. Esmonde who's up 18 today. Okay, we'll take a break now. 19 THE REGISTRAR: This Inquiry will recess 20 for fifteen (15) minutes. 21 22 --- Upon recessing at 3:31 p.m. 23 --- Upon resuming at 3:48 p.m. 24 25 THE REGISTRAR: This Inquiry is now
1901 resumed. Please be seated. 2 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 3 Esmonde? 4 5 CROSS-EXAMINATION MS. JACKIE ESMONDE: 6 Q: Good afternoon. My name is Jackie 7 Esmonde, I'm going to be asking you some questions on 8 behalf of the Aazhoodena and George Family Group. 9 Now, I'd like to begin by asking you some 10 questions about Mr. Fox. 11 A: Okay. 12 Q: Now it's -- it's clear from your 13 evidence that you're -- you are aware that he is a police 14 officer with the OPP? 15 A: Yes. 16 Q: And I take it you were aware of that 17 on September 6th, 1995? 18 A: I was. 19 Q: And you became aware of that in the 20 course of the meeting you attended or you were aware of 21 that beforehand? 22 A: I might have known him beforehand. I 23 certainly would have known by the time people went around 24 and did their introductions who he was and why he was 25 there.
1911 Q: Oh, I see. So as you recall when he 2 introduced himself he made it clear that he was a member 3 of the OPP? 4 A: I -- I don't know if he would have 5 specifically that. I certainly would have taken from the 6 introduction that's -- I think he just simply described 7 himself as the OPP liaison which I took to be that he was 8 an OPP officer. I don't think there's any mystery about 9 it and I certainly took it to be that. 10 Q: Okay. And he was a frequent 11 contributor to the meeting as you recall? 12 A: In the course of that particular 13 meeting? Yeah, he participated. 14 Q: Yeah. And he shared his thoughts and 15 his recommendations as -- that he had gained through his 16 experience as a police officer? 17 A: I'm -- I'm sort of reluctant to say 18 exactly where he was -- what he was drawing upon or -- or 19 -- I know that he participated actively during the 20 meeting and the kinds of comments that he made suggested 21 that's what he was drawing upon. 22 Q: Okay. And you had mentioned the 23 other day when you testified that -- that he was the only 24 person in that room who had experience in policing and 25 that if he told you that something should be done in a
1921 particular way you would defer to that? 2 A: Absolutely. 3 Q: You -- 4 A: Yeah. 5 Q: And in the course of the meeting he 6 provided an update on what was happening at Ipperwash? 7 A: As I recall, yes. 8 Q: And did he advise that one (1) source 9 of his information was the incident commander, John 10 Carson? 11 A: I -- I don't recall him specifically 12 saying what the source of information was. I certainly 13 recall thinking that the source was someone very close to 14 the scene. 15 Q: And we heard from him when he 16 testified that he did leave the room at one (1) point to 17 attempt to get confirmation regarding a report of 18 automatic gunfire. 19 Does that refresh your memory on any way 20 as to whether he left the meeting or not? 21 A: I -- I don't have a recollection of 22 that happening but I -- I certainly wouldn't quarrel with 23 it if he said that. 24 Q: Okay. 25 A: I do remember the issue coming up as
1931 to someone confirm whether or not that had happened. 2 Q: Okay. 3 A: I mean I think we've seen that in 4 some of the notes I've been taken to. 5 Q: Okay. And do you recall that it was 6 Ron Fox who had sought that confirmation? 7 A: I -- I -- again, as I said, I don't 8 remember that. I remember that being a live issue and if 9 he says he went out and tried to make a phone call to 10 that effect it would certainly be consistent with the way 11 the meeting was happening. 12 Q: Okay. And it was clear I take it 13 from the role that he played in the meeting that he was 14 playing a -- a liaison role with the OPP? 15 A: Sure. My -- my understanding and -- 16 and this to, a certain extent, is surmised from the way 17 the -- the meeting happened and the role that he played 18 was that he, if you like, was the -- the link between the 19 OPP and the Ministry and that he was to take Ministry 20 talk and translate it for the OPP and take OPP issues and 21 concerns and translate them back to the Ministry. 22 Q: Okay. That's very helpful. Was it 23 also clear that he was -- he was a senior officer, a 24 commissioned officer? 25 A: I certainly wouldn't -- I -- I don't
1941 remember if I knew his rank at the time but I certainly 2 thought that he was fellow who'd been around for a while 3 and knew what he was talking about. 4 Q: Okay. Now you -- you've been asked 5 some questions regarding a document that was prepared 6 regarding possible criminal charges arising from the 7 occupation, and I don't want to go over that evidence 8 again. I do have some -- some new questions, though. 9 A: Okay. 10 Q: Now you had told us that you were 11 contacted on the 5th and asked to provide some advice? 12 A: That's -- that's my best 13 recollection. There's an element of surmise in terms of 14 looking at the note and how it comes out and -- but I'm 15 reasonably comfortable that that's how that happened. 16 Q: And you said -- you told us last day 17 that you had been presented with the scenario. 18 A: That's right. 19 Q: Some of the facts regarding what was 20 happening in the Park? 21 A: Correct. 22 Q: Now, were you told that there was a 23 claim that the burial ground was native land? 24 A: I -- I probably would have known that 25 there was -- that the underlying complaint had something
1951 to do with a claim. I don't recall knowing, at that 2 point, anything about a burial ground. 3 And my understanding was that, as I say, 4 as it was presented was that either the particular 5 subgroup, if you like, that was involved in the 6 occupation either -- I can't recall whether it was put 7 that they weren't in a position to exercise any claim or 8 that this claim had already been dealt with in previous 9 litigation. 10 I know that the question of colour of 11 right was, sort of, floating out there but that it wasn't 12 necessarily perceived as being that realistic for one of 13 those two (2) reasons, and I don't recall exactly where 14 that issue had been landed as of this time. 15 Q: Okay. And you provided some of that 16 information in response to questions from Mr. 17 Klippenstein, though there is a distinction, of course, 18 between a right and a colour of right -- 19 A: Sure. 20 Q: -- as you went -- you already said 21 earlier today. 22 A: True. 23 Q: And a person's belief in their right 24 to land may not be reasonable in order for that, let's 25 call it a defence, to be available.
1961 A: Absolutely. 2 Q: So on the facts, if you were aware 3 that there was a claim that -- of aboriginal title to 4 that land then certainly, as you said, the colour of 5 right issue would be floating out there; that would be 6 something to consider if charges were going -- 7 A: Sure. 8 Q: -- to be laid. 9 A: Sure. That's something that would 10 have to be in the minds of any police officer who 11 considered laying a charge. 12 Q: And I take it you're aware that, in 13 fact, the criminal code expressly states that there is 14 such a defence of colour of right to a mischief charge, 15 in particular? 16 There's -- Section 429(c) of the Criminal 17 Code. 18 A: Sure. My recollection, as well, is 19 that 429 -- I feel like I'm doing the Bar again. 20 Q: Sorry, 429(2), I've got the wrong -- 21 429(2). 22 A: 429(2), and it does it in the context 23 of limiting that defence, if I'm remembering it 24 correctly. 25
1971 (BRIEF PAUSE) 2 3 Q: The wording that I have is: 4 "No person shall be convicted of an 5 offence under Sections 430 to 446." 6 Which includes the mischief -- 7 A: Right. 8 Q: "Where he acted with legal 9 justification or excuse and with colour 10 of right." 11 A: Sure, my -- my recollection of 429 is 12 that it generally limits those defences. No, I'm not 13 saying it wouldn't apply here, but I'm -- 14 Q: Right. 15 A: -- just trying to say what I remember 16 429 to be. But again, I'm -- if you want to put the 17 section in front of me and we can parse it, I'm happy to 18 do it, but -- 19 Q: No, I -- 20 A: -- don't know that it's helpful. 21 Q: I'm not interested in parsing the 22 particular meaning -- 23 A: Okay. 24 Q: -- of the Code but there is, 25 certainly, a direct reference to the colour of right
1981 issue -- 2 A: Sure. 3 Q: -- as it relates to mischief in the 4 Code. 5 A: Yeah. And even if it wasn't there, 6 it would be available on the terms of the Section, I 7 think. 8 Q: Yes, okay. Now, when you were 9 contacted and asked to provide some advice, I take it you 10 were being asked to provide advice about what possible 11 charges would be available if the Criminal Code was going 12 to be used to evict the occupiers from the Park? 13 A: No, the question wouldn't have been 14 put that way. The question would have been, here's 15 what's happening, sort of what -- how does the criminal 16 law speak to this scenario? 17 So, that the scenario is put, a group of 18 natives have occupied a Provincial Park, they appear to 19 be -- I think the concern was that they were cutting down 20 trees and they may have been -- there was some suggestion 21 that they had denied access to park officials. 22 You know, first of all, is -- is there a 23 Criminal Code offence made out there and on those facts 24 there would appear to be. 25 And what happens -- sort of what's the
1991 process that would come out of -- out of that in terms of 2 what legal rights or -- or authority is created on behalf 3 of the police and what happens if they exercise that 4 right? 5 And that's -- that's what the note's 6 about. 7 Q: Did you not have the understanding, 8 though, that the reason that information was sought was 9 because the committee was looking at options for getting 10 the occupiers out of the Park? 11 A: Not at -- not at that point, I 12 wouldn't have had that understanding on the 5th. 13 Q: Okay. On the 6th, during the meeting 14 that became clear to you, that the Criminal Code was 15 being looked at as one possible route for evicting the 16 people -- 17 A: No, I -- 18 Q: -- in the Park? 19 A: No, I -- no, it was never put as 20 being an option for an eviction because even -- keep in 21 mind that the availability of this doesn't necessarily 22 mean that you're going to go in and do it. The -- the 23 reality of trying to enter the Park is -- is an issue 24 that would have been completely in the hands of the OPP. 25 And the fact that they're theoretically
2001 avail -- that they have this power of arrest available to 2 them, either because of their warrantless authority under 3 the Code or a warrant that may have been sought, is 4 completely divorced from the reality of whether they're 5 going to do it, which is a completely different issue. 6 Q: I'm not sure if I'm being clear in my 7 questions then, judging by your answer. I'm not 8 suggesting that this was being looked at as the option or 9 that there's was direction given that this -- 10 A: Yeah. 11 Q: -- option be followed, but it was one 12 (1) option that was discussed? 13 A: It wasn't -- it's not an option, in 14 the sense that it's not a lever that you can pull. The 15 options are -- the options are, What can the Minister do, 16 when you talk about optioning out a problem for the 17 Minister, the Minister says, What are my options, What 18 can I do. 19 And you tell the Minister that, you know, 20 You can do this, You can do this, You can do this, You 21 can't do this. And part of the backdrop to all of that 22 is the fact that there appears to be an offence here, 23 here's the authority that the police enjoy when that 24 offence -- 25 Q: Hmm hmm.
2011 A: -- appears to have been committed. 2 And, keep in mind, the police get to decide when and how 3 they invoke that authority. 4 Q: Okay. Why don't we look at the -- 5 the memo that was generated -- 6 A: Sure. 7 Q: -- as a result of the information you 8 provided, which is at Tab 3 of the book. 9 A: Okay. 10 Q: It's Document 1011745, it's Exhibit 11 P-634. And Mr. Klippenstein already drew your attention 12 to the title, Criminal and Civil Proceedings to Terminate 13 the Occupation of Ipperwash Provincial Park by the Stoney 14 Pointers. 15 A: Right. 16 Q: And you've said you didn't write that 17 title? 18 A: That's true. 19 Q: Who wrote that title? 20 A: I don't know. 21 Q: Okay. And is it not the case the 22 only -- the only meaning -- it's a very clear title, it's 23 referring to -- specifically looking at the issue of 24 criminal -- criminal offences, possible use of the 25 Criminal Law to terminate the occupation?
2021 A: That's certainly what the title says, 2 yeah, and I'm not going to quarrel with you. 3 Q: There's no other meaning that can be 4 given to that title; right? 5 A: Sure. I'd probably ask the person 6 who wrote it and ask them what they meant by it. 7 Q: Okay. Did you see -- did you see 8 this document in advance of the September 6th meeting? 9 A: I did not. I think the only place 10 I've seen this is in the course of preparing for today. 11 Q: Oh, I see. So you -- it's been ten 12 (10) years since it was generated apparently and this is 13 the first time that you've seen it? 14 A: True. 15 Q: Okay. 16 A: I -- I can't even say what it is, 17 frankly, whether it's a document that was used for some 18 kind of briefing. Normally, a document like this would 19 have a style at the top, either Deputy's Briefing, or the 20 -- the kind of style that you've seen on Mr. Lazore's 21 memo. 22 So, I don't know what this document was 23 used for and I don't recall having seen it during the 24 course of, sort of, things happening on the ground at the 25 time.
2031 Q: Okay. So turning to the September 2 6th meeting then, there was discussion about whether the 3 Government had the authority to direct the OPP, you've 4 already talked about that. 5 And your interventions in the meeting, 6 most of which were directed to that very issue; is that 7 right? 8 A: Sure. That was the -- one (1) of the 9 -- that's one (1) of the things I remember speaking 10 about, and the notes that I've been referred to so far 11 are consistent with the advice I recall giving. 12 Q: Right. And -- and that happened more 13 than once during the meeting that you provided 14 information -- 15 A: I think the issue came up a couple 16 times. 17 Q: Yes. And one (1) of the problems 18 that had been identified in the course of the meeting was 19 that the injunction approach wouldn't achieve an end to 20 the occupation as quickly as the Government would have 21 liked? 22 A: I don't know. I don't -- part of it 23 is I -- I don't recall the -- the reference to, "within a 24 day or two (2)." I do recall that there was a desire to 25 move as soon as possible. My sense was if there was a --
2041 an available option, it would move more quickly than 2 another, that that option was to be looked at very 3 carefully. 4 I don't have the -- the recollection of 5 the reference to "a day or two (2)." 6 Q: Right. 7 A: But I do recall the balance of that 8 sentiment and that quote from Ms. Hutton being expressed. 9 Q: Okay. Now, you've been turned to the 10 notes of Ms. Jai with respect to some comments that are 11 attributed to Ms. Hutton. If I could ask you -- I'm just 12 going to go to those again. They're on -- at Tab 4 of 13 your materials. The document is 1012579 and it is P-536. 14 A: I have it. 15 Q: If I could ask you to turn to page 6? 16 A: I have it. 17 Q: Okay. Now this passage was read to 18 you earlier. Just to orient you: 19 "Deb feels MNR as property owner can 20 ask OPP to remove people. Scott..." 21 And I take it this is a reference to you, 22 Scott? 23 A: Yes. That's why I -- I'm the only 24 Scott there. 25 Q: Okay.
2051 "You can ask them to remove them, you 2 can't insist or demand that they be 3 removed." 4 And then the comment: 5 "Deb, has MNR asked OPP to remove them? 6 They could be formally requested to do 7 so but how and when they do it is up to 8 them." 9 A: And -- and that's essentially the -- 10 the nature of the exchange that I recall. 11 Q: Right. 12 A: And then it sort of segues into this 13 discussion about how that can become part of that 14 communication strategy. 15 Q: So as -- as the notes appear to 16 suggest what Ms. Hutton understood was that how and when 17 the OPP act to remove them is up to them, but not if? 18 A: Sure. But I suppose the problem is 19 that, when, could be never, so I would count it as if. 20 Q: Was it not clear, from the meeting 21 and from this exchange in particular, that Ms. Hutton's 22 words gave the impression that her understanding of the 23 line between what the Government could ask the OPP to do 24 and the operational line was they could ask them to 25 remove them.
2061 The 'if' question of whether they would 2 remove them or not was not something that was in the 3 discretion of the OPP? 4 A: I'm -- I'm reluctant to comment on 5 what was in Ms. Hutton's mind based on someone's note of 6 what she said, particularly in the context of it coming 7 immediately after what I thought was fairly clear 8 direction that you couldn't tell them that you had to 9 remove them. 10 You could ask, but you can't tell them to 11 do it. So I don't know how you could say that 12 immediately after that she then says, Well, it's up to 13 them when they do it, but somehow she thinks that they 14 have to. 15 Q: Well, it -- it's certainly possible 16 that she didn't have the same understanding that you did, 17 correct? 18 COMMISSIONER SIDNEY LINDEN: I think 19 we'll -- 20 MS. JACKIE ESMONDE: And we will -- we 21 will have an opportunity to ask her. 22 COMMISSIONER SIDNEY LINDEN: Unless -- 23 THE WITNESS: That's where I'd send you. 24 COMMISSIONER SIDNEY LINDEN: Sorry. 25 Unless she's --
2071 MS. JACKIE ESMONDE: I'm just making the 2 point that just because -- 3 COMMISSIONER SIDNEY LINDEN: Excuse me. 4 The last few questions have all been in -- 5 MS. JACKIE ESMONDE: Yes. 6 COMMISSIONER SIDNEY LINDEN: -- Ms. Deb 7 Hutton's head. 8 MS. JACKIE ESMONDE: Well, I'm just -- 9 well, I'm not asking him to say what was in her head. 10 11 CONTINUED BY MS. JACKIE ESMONDE: 12 Q: I'm -- I'm saying he -- I'm 13 suggesting that just because you had a particular 14 understanding of what you had said does not mean that 15 that same understanding was shared by others in the room. 16 A: It wouldn't be the first time I 17 failed to explain myself properly. 18 Q: Okay. Now, could I ask you to turn 19 to Tab 5 of your book? 20 A: Sure. 21 Q: This is Inquiry Document 1012287. 22 It's been marked as P-498 and I'm looking at the 23 appendix. 24 A: I have it. 25 Q: Guidelines to responding to
2081 aboriginal emergencies? 2 Ms. Hensel did take you to this document. 3 If you could turn to page 2, now you were at -- number 10 4 refers to the objectives of the committee. 5 And 10(d) refers to one (1) of the 6 objectives being to negotiate removal of any blockade? 7 A: That's true. 8 Q: And I take it it was your 9 understanding as a member of that committee that that was 10 one (1) of the objectives of the committee? 11 A: Sure. 12 Q: And there are other provisions that 13 follow from that with respect to particular powers that 14 the committee had to initiate those negotiations and take 15 part in them, correct? 16 A: Hmm hmm. Yes. 17 Q: So, 11(b) gives the committee the 18 discretionary power to agree to a negotiating agenda with 19 all parties, correct? 20 A: Sure. That's what it says. 21 Q: And (d), the discretionary power to 22 appoint a facilitator and negotiator? 23 A: True. 24 Q: And you were aware that these were 25 discretionary powers of the committee when you were a
2091 member of it? 2 A: I'm not sure that I'd ever seen this 3 document at the time that I was on the committee. My 4 understanding of how the committee worked was certainly 5 entirely consistent with -- with this. 6 I don't recall that I had ever seen this 7 document, if you like, as a charter for the committee. 8 Q: Okay. Now you stated as well that 9 the previous government, that being the NDP Government, 10 had taken a fairly conciliatory tone in its approach to 11 dealing with issues around First Nations? 12 A: Yes. 13 Q: And I believe you mentioned, in your 14 testimony on Thursday, the -- an interim enforcement 15 policy -- 16 A: Yes. 17 Q: -- as an example of an approach that 18 was used by the prior government? 19 A: Yes. 20 Q: And what was that interim enforcement 21 policy? 22 A: I was afraid somebody would ask that. 23 My understanding, or at least my best 24 recollection of the interim enforcement policy was a 25 policy in place to deal with the enforcement of certain
2101 conservation laws in the face of, as yet, unadjudicated 2 aboriginal claims. 3 And I can't recall whether there were 4 specific bands or territories that were covered by it, 5 but that the notion was that charges would only be laid 6 by MNR staff or MNR officers if they had approval at a 7 certain level and the idea was to, if you like, moderate 8 the degree to which aboriginal claims got litigated 9 through, essentially, charges with respect to Fisheries 10 Act violations or other Game and Fish Act type 11 violations. 12 Q: Okay. 13 A: And I'm happy to be referred to an 14 actual document that outlines the interim enforcement 15 policy to talk about it more specifically, but it was, in 16 effect, a policy that was intended to diffuse some of the 17 confrontations that happened in the context of litigation 18 around these issues and to try and move that discussion 19 into a different forum. 20 Q: And this was a policy that was 21 developed under the NDP government? 22 A: Yes. 23 Q: Okay. 24 A: My recollection is that it was 25 precipitated by a particular case, but I can't think
2111 right now what the case was. 2 Q: Okay. And this interim enforcement 3 policy is not something that was discussed at the 4 September 6th 1995 meeting? 5 A: No, no, no, no, no. No, it's 6 completely unrelated to this particular -- 7 Q: Right. 8 A: -- incident. 9 Q: Now in contrast to what you described 10 as a more conciliatory approach, the -- the new 11 Conservative Government had a law and order approach to 12 First Nations issues, as you perceived it? 13 A: I don't know about law and order 14 issues, generally. 15 Q: All right. 16 A: I know that it was clear that the -- 17 the messaging that was going to come out of this meeting 18 was that this was to be seen as a law and order issue in 19 terms of how the Government was going to -- the stance 20 the Government was going to take, publicly. 21 Q: And in terms of the approach that the 22 new government was going to take with respect to First 23 Nations issues, an early sign that it was taking a 24 different approach from the prior government was the fact 25 that the ministry responsible for native affairs changed.
2121 Do you recall that? 2 A: To be honest I don't, no. 3 Q: Okay. 4 A: I thought ONAS was always AG but I -- 5 Q: Well we had -- we have heard evidence 6 that, under prior governments, the ministry in charge of 7 native affairs was the natural -- Ministry of Natural 8 Resources? 9 A: Okay. 10 Q: And you're not aware of a change to 11 the ministry of the Attorney General? 12 A: To be honest, I don't remember that 13 change. My recollection was that ONAS was always AG, but 14 I could be wrong. 15 Q: Okay. 16 A: Certainly my recollection was that 17 ONAS was -- was AG under the -- the NDP but I'm happy to 18 be -- that's how I remember it, but I might be wrong. 19 Q: Okay. Would you agree with me, 20 though, that if there was such a shift from the Ministry 21 of Natural Resources to the ministry of the Attorney 22 General, that signifies a policy shift, with respect to 23 how First Nations issues would be addressed? 24 MS. KIM TWOHIG: Excuse me, Mr. 25 Commissioner. I'm not sure that this witness can address
2131 these questions that are being put to him; they're 2 political questions. 3 MS. JACKIE ESMONDE: I'm not sure whether 4 that means he can't answer the question. 5 COMMISSIONER SIDNEY LINDEN: Well, I'm 6 not sure either whether -- shifting from one ministry to 7 another could mean a lot of things to a lot of people. 8 You're asking what it signifies -- 9 MS. JACKIE ESMONDE: I'm asking how he 10 might have perceived that -- 11 COMMISSIONER SIDNEY LINDEN: Yes, I -- 12 MS. JACKIE ESMONDE: -- as somebody who 13 worked in the Government. 14 COMMISSIONER SIDNEY LINDEN: -- think 15 that's a fair question. I think that's a fair question. 16 MS. KATHERINE HENSEL: As long as we keep 17 in mind that the witness is -- 18 COMMISSIONER SIDNEY LINDEN: Has no 19 political -- 20 MS. KATHERINE HENSEL: And he has limited 21 knowledge and recollection which he's indicated -- 22 COMMISSIONER SIDNEY LINDEN: Same as any 23 of us -- 24 MS. KATHERINE HENSEL: -- quite clearly. 25 COMMISSIONER SIDNEY LINDEN: Same as any
2141 of us, I presume so. 2 MS. JACKIE ESMONDE: Well, as somebody 3 who worked under different governments, it may have had 4 some particular significance for him as a civil servant 5 and he can -- 6 COMMISSIONER SIDNEY LINDEN: He didn't -- 7 MS. JACKIE ESMONDE: -- answer or not, 8 depending on what he knows. 9 COMMISSIONER SIDNEY LINDEN: He didn't 10 even know about it. 11 MS. JACKIE ESMONDE: Right. 12 COMMISSIONER SIDNEY LINDEN: So -- 13 MS. JACKIE ESMONDE: But he -- he may 14 have seen different ministries being responsible for 15 different portfolios as being -- having some 16 significance. 17 COMMISSIONER SIDNEY LINDEN: Yeah, I 18 think it's a fair question. 19 THE WITNESS: I -- I don't want to attach 20 any particular significance to it. I mean, I know that - 21 - you know, that's funny I -- I would have sworn that 22 that onus was always AG, but what do I know. I -- I 23 wouldn't have necessarily attached any particular 24 significance to that. 25 I know that -- that there was always a
2151 live issue about how easily the ONAS portfolio sat with 2 another minister, in the sense that a minister is then 3 obliged to, in some occasions, sort of advocate with two 4 (2) hats. 5 So that, for example, wherever you put 6 ONAS, if you put it in another ministry, you necessarily 7 present the possibility that the minister, in terms of 8 their line responsibilities, will have some -- will be 9 receiving two (2) lines of advice on the same issue, one 10 (1) line coming up through whatever the line ministry is 11 and one (1) line coming up through the ONAS line. And I 12 know that that's always been a bit of an issue. 13 You know, I'd be reluctant to assign any 14 particular ideological significance to the move from MNR 15 to AG. 16 17 CONTINUED BY MS. JACKIE ESMONDE: 18 Q: Thank you. That's helpful, to me 19 anyway. 20 Okay. Now, you've testified, as well, 21 that it was -- it was clear that the position from the 22 political staff who attended the -- the meeting on 23 September 6th was that the options to be canvassed were 24 what options were available to remove the occupiers from 25 the Park?
2161 A: Yes. 2 Q: You've -- 3 A: Yes. 4 Q: -- been quite clear about that. Now, 5 you also said something earlier that interested me. You 6 said, Not everyone would have agreed necessarily that 7 that was the goal, but that was the goal that everyone -- 8 A: Well, what I -- 9 Q: -- was working towards in the 10 meeting? 11 A: -- I think what I meant was wouldn't 12 necessarily have agreed with it at the level of urgency 13 that that was -- the way it was put, sort of, as the -- 14 getting them out as quickly as possible. I think 15 everybody agreed that, they're going to have to leave 16 eventually. 17 At some point, the issue has to be 18 addressed and the blockade can't stay up forever. At 19 some point, something has to happen to diffuse the 20 situation. 21 That's why people occupy a Park like that, 22 is to draw attention to a situation so that some action 23 will be taken. 24 Q: So, not everyone would have agreed 25 that the situation was as urgent as -- as some thought,
2171 but that -- 2 A: Sure. 3 Q: -- everyone in the meeting was 4 working together towards the goal of removing them as 5 quickly as possible? 6 A: Yeah. Again, it's -- but all -- 7 there are a number of sort of soft words in there that 8 people can -- can -- 9 Q: Okay. 10 A: -- massage to their own benefit but, 11 sure, I'd agree with that. 12 Q: Now, you were asked by Mr. 13 Klippenstein regarding a discussion about negotiations 14 during the meeting. 15 A: Hmm hmm. 16 Q: I'd like to take you to one (1) other 17 reference that he didn't raise with you just to see if 18 that assists in refreshing your memory. 19 A: Sure. 20 Q: I'm looking at Ms. Jai's notes, which 21 are at Tab 4. 22 A: I have them. 23 Q: Document number 1012579 and Exhibit 24 number P-536. And I'm looking at the page which is 25 marked with a 1, a circled 1.
2181 A: I have it. 2 Q: Okay. Now, just in the second half 3 of that page there's an entry that begins: "Premier 4 doesn't want." 5 Do you see where I am? 6 A: I see it. 7 Q: Okay. 8 "Premier doesn't want anyone involved 9 in discussions other than OPP and 10 possibly MNR; doesn't want Chief or 11 others involved; doesn't want to get 12 into negotiations." 13 A: I see that. 14 Q: Yeah. Now, does that -- does that 15 assist in refreshing your memory that somebody speaking, 16 ostensibly on behalf of the Premier, made a comment that 17 the Premier doesn't want to get into negotiations and -- 18 and the other comments that are attributed there? 19 A: The only specific recollection I have 20 in this regard was that there wasn't a desire to get 21 involved with negotiations involving third-parties, in 22 other words, bringing in other distinguished Aboriginal 23 leaders to participate in a negotiation. I -- I recall 24 that. 25 This specific language or its attribution
2191 to the Premier specifically, I don't recall but, as I've 2 said before, it's certainly a comment that would be 3 consistent with, if you like, the tone of direction that 4 was coming. 5 And if somebody has, for example the 6 author of the note, has a recollection of these very 7 words being spoken, I wouldn't quarrel with that. 8 Q: Okay. It's certainly the case that 9 negotiations of any kind, whether procedural, substantive 10 were not discussed. That was not discussed as an -- 11 A: It certainly wasn't -- 12 Q: -- option in the meeting. 13 A: -- wasn't discussed at any length in 14 the course of the meeting. 15 Q: Or at all? 16 A: Well to the extent though that it was 17 -- I mean, there was -- there was some discussion and I 18 believe the discussion, sort of, ended when this kind of 19 comment was made. 20 Q: I see. 21 A: I know, for example, Ron refers to it 22 again when -- when -- when he makes a comment, that he -- 23 he -- I think he points out that his view is that, you 24 know, you want to proceed in a certain way and that this 25 is how we've done it in the past.
2201 But, in fairness, it doesn't get developed 2 as a discussion amongst the group, if that's what you 3 mean. 4 Q: Okay. And to the extent that there 5 was a message that negotiations -- that the Premier 6 doesn't want to get into negotiations, you would agree 7 with me that that -- that is, in fact, some direction 8 coming from -- 9 A: Sure. 10 Q: -- political staff. It's taking one 11 option off the table? 12 A: Sure, I don't know that if -- that 13 you would necessarily never refer to negotiations again 14 and it wouldn't necessarily ever be part of the options, 15 but it's fairly clear that there's some direction that's 16 come down that that's not an option that, at least, at 17 the beginning of the advice giving process, is one that 18 they're particularly interested in hearing about. 19 But, that's -- again, that happens in 20 government that you get some sense of direction, you 21 provide the options. 22 And, for example, you'll see that, you 23 know, if -- as you look at different documents that have 24 options spelled out, even an option that may previously 25 have been discounted gets included, just so people
2211 remember that it's there. 2 Q: Okay. 3 4 (BRIEF PAUSE) 5 6 A: But you're quite right that it's not 7 an option that gets developed at any length in the course 8 of -- 9 Q: Right. It doesn't -- 10 A: -- this meeting. 11 Q: -- come up again after that. 12 A: Yeah. 13 Q: And would you agree with me that that 14 was a -- we reviewed the document that set out the 15 objective -- one of the objectives of the committee was 16 to negotiate an end to blockades, correct? 17 A: Sure. 18 Q: And that this direction seems -- that 19 takes that option off the table? 20 And that's a significant -- 21 A: I don't know that I'd go as far to 22 say it takes it off -- off the table, but I would agree 23 with you that it certainly signals a desire that other 24 options be given higher priority. 25 It -- it's not unheard of for a politician
2221 to start off with a particular view and ultimately get 2 persuaded by the civil service that a different -- that, 3 in fact, they're wrong -- 4 Q: Hmm hmm. 5 A: Or that it's in their own interest or 6 in the interest of good government to proceed down the 7 path that they initially discounted. 8 Q: I see. But, that kind of discussion 9 didn't take place at the September 6th, correct? 10 A: Not in the context of this meeting, 11 no. 12 Q: And the effect was that it was taken 13 off the table for that meeting? 14 A: Sure and then events, kind of, 15 overtake -- 16 Q: Yes. 17 A: -- the whole issue. 18 19 (BRIEF PAUSE) 20 21 Q: Now, you've also spoken of the fact 22 that the Province is just like any other land owner in 23 the Province when it comes to issues of trespass and 24 occupation? 25 A: Perhaps -- yes.
2231 Q: As -- like any other landowner they 2 will contact the police and ask for assistance with that 3 issue? 4 A: Right. 5 Q: But, you'd agree with me that it's 6 not -- it's not precisely the same. 7 A: Sure, that's why it's important that 8 everybody involved know that you can't do more than ask. 9 And that, you know, when -- when you do ask, you make it 10 clear that you're asking and not telling. 11 Q: Right, because having a member of the 12 Government tell the police that they want the occupiers 13 out of the park, if not properly could have the 14 unfortunate appearance of being a direction to the 15 police, correct? 16 A: Sure. 17 Q: Especially if it's coming from the 18 Premier? 19 A: Sure, if the Premier had phoned the 20 detachment commander in Forest and said, would you 21 please, you know, get me my Park back, that would be 22 inappropriate. 23 If the Park warden phoned and said, we 24 have this problem, you know, how can you help us, that 25 would be entirely appropriate.
2241 Q: Even if the views of the Premier were 2 communicated to police in a -- indirectly, though a 3 middle person, for example. If not done properly, that 4 can have the appearance of trying to direct the OPP, 5 correct? 6 A: Well it depends who -- too many 7 contingencies that are potentially behind your question 8 for me to answer. 9 Q: I see. If -- if Ms. Hutton, for 10 example, communicate -- in communicating the views of the 11 Premier, as she understood them, she would have to be 12 careful in terms of how she communicated those views? 13 A: Sure. 14 Q: Now, you've told us that there was a 15 decision made to -- to seek an injunction or to recommend 16 that an injunction be sought; that's the more correct, 17 correct? 18 A: Sure. 19 Q: Right. Okay. The committee also 20 decided to ask the OPP to remove the occupiers from the 21 Park? 22 A: Cor -- I -- I can't recall whether or 23 not the -- the advice was given that you're -- you're 24 allowed to ask, you can't direct and then the comment was 25 made that that request had, in fact, already happened.
2251 Q: And you'd agree with me that those 2 two (2) options, the injunction approach and asking the 3 OPP to remove the occupiers, they're not mutually 4 exclusive? 5 A: No. 6 Q: Right. They could both -- in fact, 7 both were done in this case, correct? 8 A: Sure. 9 Q: Thank you. Those are all my 10 questions. 11 COMMISSIONER SIDNEY LINDEN: Thank you 12 very much, Ms. Esmonde. 13 Mr. Scullion...? 14 15 (BRIEF PAUSE) 16 17 MR. KEVIN SCULLION: Good afternoon, Mr. 18 Commissioner. I think the time estimate that Mr. Ross 19 gave you last Thursday was ninety (90) minutes and 20 quickly dropping. Well, it's continued to quickly drop. 21 COMMISSIONER SIDNEY LINDEN: Okay. 22 MR. KEVIN SCULLION: I'll expect I'll be 23 fairly quick. 24 COMMISSIONER SIDNEY LINDEN: Thank you. 25
2261 CROSS-EXAMINATION BY MR. KEVIN SCULLION: 2 Q: But, I wanted to follow up Ms. 3 Esmonde's -- let me introduce myself first. Kevin 4 Scullion, Counsel on behalf of the Residents of 5 Aazhoodena also known as the Stoney Point Group. 6 Ms. Esmonde had asked you about the 7 concept of negotiations at this September 6th meeting. 8 And I appreciate the fact that you were sort of airlifted 9 into the middle of a conversation that started on the 5th 10 and was continuing on the 6th, but if I look at your Tab 11 7, the document at Tab 7 which we've made Exhibit P-509, 12 which are the meeting notes from the September 6th 13 meeting the very first point seems to be that next steps 14 have been followed up on as appropriate. 15 And it was noted that there will be no 16 negotiations with Stoney Pointers regarding the claimed 17 ownership of the land and that the goal of any 18 discussions would be removal of the occupiers from the 19 Park. 20 A: That's what the notes says. 21 Q: Okay. My understanding of the 22 meeting that was taking place on the 6th was not to deal 23 with the issue in a broad scope looking for any kind of 24 option, it was more specific. It was looking for options 25 for moving the occupiers out of the Park as quickly as
2271 possible. 2 A: That's -- that's certainly how the 3 discussion went. I don't know whether that was what was 4 formerly the agenda for the meeting. I don't -- I don't 5 recall seeing an agenda for the meeting and you're quite 6 right I do sort of join the conversation halfway through. 7 Q: Right. And I'm -- I'm going from a 8 more general perspective. I don't -- I don't want to 9 get into the details or quiz you on your Criminal Code 10 knowledge but my impression from the options that were 11 being looked at during this meeting was the concept of 12 the Criminal Code charges, the concept of provincial 13 offences charges and the concept of a civil remedy which 14 included this injunction. 15 Is that fairly accurate? 16 A: It is and the -- the discussion 17 around the -- the Code and the powers that the police 18 have is -- is, if you like, part of the background 19 against which you're going to make a decision in terms of 20 your injunction. 21 If what you know is that the police have 22 no power to do anything in terms of the Criminal Code, 23 that's important to know, as you decide what you're going 24 to do in terms of the injunction. 25 Q: Okay. And the discussions regarding
2281 the Criminal Code matters, were that they were minor 2 matters that the police weren't necessarily going to act 3 upon at that point in time. 4 A: And I don't know if I'd go as far as 5 to say that the police weren't going to act upon it but 6 that it's quite true that these are relatively minor 7 offences, that it would be very unusual for a person to 8 be kept in custody upon being arrested whether they were 9 released by the officer in charge or released at the 10 first bail hearing. 11 Q: Sure. 12 A: But, they'd be very quickly out the 13 door. 14 Q: Just on that note, one (1) of the 15 difficulties with this particular situation was, one (1) 16 of the conditions might have been not to go back to the 17 Park or within a certain distance of the Park. 18 A: I would have expected that to be in 19 either form of release. 20 Q: And for these occupiers who, many of 21 which lived in the Army Camp lands, that would be a 22 particularly onerous condition I -- 23 A: I -- I would have expected that you - 24 - you would write the term in such a way that you would 25 allow them to return to their -- whatever legitimate
2291 residence they had, but keep them out of the Park. 2 That's what I would have anticipated would 3 be the -- I can't -- I can't frankly recall off the top 4 of my head what the state of the Army Camp occupation was 5 as of the 5th and whether or not that had been sorted out 6 with the -- with the Federal Government. 7 Q: I can safely say it hadn't. 8 A: Okay. 9 Q: What I'm looking at -- 10 A: Or rather, let me put it this way -- 11 I can't -- I can't recall what position the Federal 12 Government would have taken with respect to a term that 13 allowed them to return to the Army Camp but not return to 14 the Park. 15 Q: Okay. We won't get into that. 16 A: Fair enough. 17 Q: What I was looking as well is in Tab 18 2, your handwritten notes. 19 A: Sure. 20 Q: And I noted this morning, when I was 21 looking at these notes, trying to interpret them and I 22 heard Ms. Hensel ask you some questions about putting 23 them in context in -- in terms of meetings, you had 24 indicated that the page 1 and part of page 2 related to 25 something other than the September 6th meeting.
2301 And my impression was that the little box 2 at the top that has the word 'Brief' but something else. 3 A: I think the word above that is 4 "Deputy" but that's -- we'll need a better copy. 5 Q: That was my guess as well. So that 6 was a briefing that you had with the Deputy before going 7 into the meeting on the 6th. And I mention that because 8 a lot of the notes relate to concepts that were discussed 9 the day before. 10 A: Yeah. And I -- I can't recall 11 whether this was a pre-meeting that was feeding 12 information into a briefing somebody else was going to 13 do, or was part of a briefing that I did. 14 And if there's a note or a document that 15 speaks to some kind of briefing of Deputy Taman on the 16 5th -- or I would expect actually that it's on the 6th, 17 only because I don't see a date written in between that 18 note and the Emergency Group, and my practice was to 19 write it at the start of each day, to write in the date. 20 Q: That note -- 21 A: So if in fact there's a date break -- 22 if this deputy briefing took place on the 5th, I would 23 have expected to see the 6th written in somewhere before 24 we get to the Emergency Group. 25 So my best evidence at this point is that
2311 that deputy briefing took place sometime on the 6th but 2 before the Emergency Group meeting. 3 Q: Okay. The one (1) point that I'm 4 looking at in your notes, on page 1 -- 5 A: Right. 6 Q: -- near the bottom, we have the name 7 John Carson with an arrow, Ron Fox with an arrow, and 8 then it says: 9 "We want to do what is necessary to 10 help the OPP." 11 A: Sure. 12 Q: I take it the OPP isn't moving for 13 the injunction? 14 A: No. I -- I can't say who said that, 15 why those two (2) names are referenced there, except 16 perhaps somebody was talking about them being the -- the 17 OPP contacts. And you're quite right, it's not the OPP 18 that's applying for the injunction. 19 Q: Well, the OPP, we've had members of 20 the OPP testify here that they were in a neutral 21 position, in terms of they were watching over what was 22 going on and if there were breaches of the Criminal Code, 23 they would address those. 24 But they weren't taking part in 25 negotiations and they weren't taking sides, so to speak.
2321 So they weren't looking for assistance in terms of moving 2 for an injunction because that wasn't what they were 3 going to do. 4 A: Sure. And, again, I -- to the extent 5 that you want me to -- I won't say speculate, but -- give 6 you my best -- sort of best evidence about what that note 7 might mean, it might be as simple as me saying, Look 8 we'll make sure that the Crown in Sarnia is available and 9 can provide whatever advice the OPP need on the ground. 10 You know, to the extent that -- that the 11 AG is both the law officer responsible for the civil 12 issues, the AG also is, if you like, the Chief Crown 13 Attorney of the Province and provides legal advice to the 14 OPP on an as-requested basis in terms of criminal law 15 issues that might arise on the ground. 16 And it's -- it's possible that that's what 17 that note is a reference to. 18 Q: Okay. Well, all questions do lead in 19 a direction. I'm looking back at your three (3) options, 20 one (1) of which is the Criminal Code offences. And 21 you've agreed with me and I think you testi -- 22 A: My -- my three (3) options? 23 Q: No, no. The three (3) options that I 24 put to you of -- 25 A: Okay.
2331 Q: -- moving them out quickly, and one 2 (1) of which was Criminal Code offences. And it was your 3 testimony that the preference, the general preference of 4 the OPP, and it's been confirmed by the witnesses from 5 the OPP, that their preference was to have an injunction 6 to give them better legal footing. 7 A: Sure. 8 Q: Okay. The second was provincial 9 charges, which you addressed a little bit with Ms. 10 Esmonde -- Esmonde. 11 A: You know, I'm just going back up, 12 these aren't -- aren't necessarily my options to get 13 people out of the Park. This is my description of what I 14 understood the legal backdrop to be -- 15 Q: I understand. 16 A: -- that -- that informed the OPP. 17 Q: I -- I'm not -- 18 A: Okay. 19 Q: -- putting them in your options and 20 I'm not that you were -- 21 A: Okay. 22 Q: -- a proponent of one of those three 23 (3). I'm just saying that those were three (3) that were 24 -- seemed to be discussed at this meeting. 25 A: Sorry, which meeting are we at now?
2341 Q: September 6th. 2 A: Okay. 3 Q: One of which is the provincial 4 offences. 5 A: Right. 6 Q: And if I understood your evidence, in 7 responding to Ms. Edmond, that the general practice 8 before the change in government was that provincial 9 offences that could have a defence or could be used to 10 delineate rights or to argue rights in a courtroom, any 11 decision to lay charges of that nature were usually made 12 by a little bit higher level. 13 A: Sure, these wouldn't -- the rights 14 are from -- you're talking now about the interim 15 enforcement policy -- 16 Q: Right. 17 A: -- and the Government's approach to - 18 - that -- as I understood that policy, it was limited to 19 the use of the -- of POA charges in respect of hunting 20 and gathering rights, not necessarily with respect to 21 trespass issues. 22 Q: But you -- 23 A: I wouldn't have understood that -- 24 that interim enforcement policy informed a trespass to 25 property act charge.
2351 Q: Okay. Would it be your impression -- 2 well, perhaps today's impressions would be different from 3 ten (10) years ago. 4 What I'm also looking at is a third option 5 which is the civil remedy. 6 A: Sure. 7 Q: And when I asked you whether or not 8 assistance was being offered to the OPP in that regard 9 and whether the OPP was seeking the injunction, what I 10 was looking for is who was the driving force behind 11 getting this injunction to move the occupiers out of the 12 Park, at least from your understanding or result of the 13 September 6th meeting? 14 A: I'm not sure I understand the word 15 "driving force" or the expression "driving force" as a 16 term of ours. 17 Q: MNR is the owner -- 18 A: Right. 19 Q: -- or perceived to be the owner -- 20 A: Technically, my understanding of the 21 law is that the Attorney General is the Applicant, that 22 the Attorney applies be -- as sort of the person 23 responsible for ensuring that the law is adhered to 24 around the province. 25 Q: So the Attorney General would be
2361 applying for the injunction and not the MNR specifically? 2 A: That's my understanding, but I'd 3 defer to Mr. McCabe or Ms. Christie? 4 Q: Sure. He'll be here to, and she'll 5 be here to testify in that regard. But what I'm also 6 looking at as I went through the notes and listened to 7 your testimony were the handwritten notes, I think you're 8 in a blue folder. 9 I think they're from Ms. Hipfner -- give 10 me two (2) seconds, that we've made Exhibit P-636. 11 A: Yes, I have them. 12 13 (BRIEF PAUSE) 14 15 A: Sorry, I have them. 16 Q: I am advised that it's Inquiry number 17 1011784, Mr. Commissioner. You have them before you. 18 I'm looking at page 2. 19 You've been referred a number of times to 20 the comment attributed to Ms. Hutton regarding the 21 Premier having certain views. 22 Below that, I have a note from Mr. Allen 23 (phonetic) who we understand from the minutes is with 24 MNR. 25 A: Okay.
2371 Q: And the view -- the note says that 2 the MNR views this as a police issue. MNR would prefer 3 to take a back seat at this point. 4 Do you see that note? 5 A: I do. 6 Q: Do you recall that comment in the 7 course of this meeting that the owner of the land would 8 prefer to take a back seat at this point? 9 A: I don't, and I'm not sure whether 10 it's a reference to operations or communications. 11 Q: You don't know what it refers to? 12 A: I don't -- yeah, I'm not -- I -- I -- 13 I'm sure if we sat down and compared all the notes that 14 everybody else has, we might be able to suss it out, but 15 I don't remember the reference and couldn't help you with 16 what it's referring to do. 17 I don't -- I didn't know Mr. Allen at the 18 time or since. 19 Q: I'm not asking to say what's in his 20 mind, I'm just -- 21 A: Sure. 22 Q: -- asking whether or not you heard 23 that? I also look at Ms. Jai's notes which are 24 Tab 4 of your book. 25 A: Right.
2381 (BRIEF PAUSE) 2 3 Q: Which is P-536. 4 A: Right, I have them. 5 Q: Okay. And a page that has a number 1 6 at the top, and again, I have that referenced almost at 7 the bottom of the page where it says -- below the 8 Premier's opinions, it says: 9 "MNR [if we keep scrolling] now view 10 this as a police issue." 11 Right? That doesn't jog your memory at 12 all? 13 A: No, and -- and again, it might help 14 if I knew who Mr. Allen was in terms of what his respons 15 -- but, you know, I'd be -- I'd be interpreting the notes 16 rather than giving you a recollection. 17 Q: No, I -- 18 A: I suspect if you find out who Mr. 19 Allen is it'll help you understand whether it's an issue 20 about communications or operations. 21 Q: I think we'll be looking to Mr. Allen 22 to explain that comment. 23 A: That's probably a good idea. 24 Q: I could explain who he is and how he 25 fits in but I don't think that's going to help you --
2391 A: Okay. 2 Q: -- understand that part. Those are 3 all my questions, Mr. Commissioner. 4 A: Thank you. 5 COMMISSIONER SIDNEY LINDEN: Thank you 6 very much, Mr. Scullion. 7 I don't think that Mr. Henderson or 8 anybody indicated on behalf of the Kettle and Stoney 9 Point First Nations that there were any questions. Is 10 that correct? I just want to make sure that's correct. 11 MS. COLLEEN JOHNSON: I believe Mr. 12 Henderson has no questions. 13 COMMISSIONER SIDNEY LINDEN: Thank you 14 very much. That's fine. 15 MS. COLLEEN JOHNSON: Yes, I believe that 16 we have no questions at this time. 17 COMMISSIONER SIDNEY LINDEN: Thank you 18 very much. 19 And Mr. Horton...? 20 21 (BRIEF PAUSE) 22 23 CROSS-EXAMINATION BY MR. WILLIAM HORTON: 24 Q: Good afternoon, Mr. Hutchison, I 25 represent the Chiefs of Ontario in these proceedings and
2401 I do have a few questions for you. 2 COMMISSIONER SIDNEY LINDEN: Mr. Horton, 3 before you begin could I ask you what your reasonable 4 estimate is in terms of time just so we can plan the rest 5 of the day? 6 MR. WILLIAM HORTON: I said half an hour, 7 I think it probably still is about half an hour and I'm 8 prepared to -- 9 COMMISSIONER SIDNEY LINDEN: I think we 10 should try to -- 11 MR. WILLIAM HORTON: -- continue. 12 COMMISSIONER SIDNEY LINDEN: -- finish. 13 Once we start your cross-examination I'd like to finish 14 it. If it's a half hour I think we can handle it. There 15 will only be one (1) cross-examiner left for tomorrow 16 except for Ms. Twohig if she had any questions. So, I 17 think we'll try to start and finish your examination. 18 MR. WILLIAM HORTON: It's always subject 19 to exigencies, obviously, but one (1) point I do want to 20 make, Commissioner, and it may -- it may change your mind 21 about the order and that is that I will be making quite 22 numerous references to Mr. Hutchison's evidence-in-chief 23 and I -- and I will be referring to the transcript. 24 Now, I don't know whether other parties 25 would find it more useful to have a copy in front of
2411 them, but that's the only thing. Since we're coming back 2 -- if we're coming back tomorrow anyway it may make it 3 easier for other parties to follow the evidence to have 4 that in front of them -- 5 COMMISSIONER SIDNEY LINDEN: We weren't 6 depending on it. 7 MR. WILLIAM HORTON: -- but I don't -- I 8 don't have a problem with continuing. 9 COMMISSIONER SIDNEY LINDEN: I think 10 we'll continue right now and see just how far we get. If 11 it turns out to be a problem then we'll adjourn and 12 continue tomorrow. 13 MR. WILLIAM HORTON: All right. Okay. 14 Thank you. 15 16 CONTINUED BY MR. WILLIAM HORTON: 17 Q: Mr. Hutchison, as you will have 18 gathered from what I just said most of the inspiration 19 for my questions comes from your own evidence-in-chief 20 and -- 21 A: Well I'm glad I've inspired you. 22 Q: And not just on this occasion. 23 And what I mostly want to do is I just do 24 want to make sure that we have all the evidence that you 25 can give on certain key points and if you can add
2421 something, fine, and if you can't then we'll move on. 2 I do recognize the constraints of time in 3 terms of the time that has passed and so on and the 4 affects on one's memory. 5 So let me just go back to Ms. Hensel's 6 examination of you and I'm going to start by reading a 7 question and an answer and it's at page 290 of the 8 transcript for those who want to follow online. And the 9 question -- 10 A: Am I permitted to have a copy in this 11 process? 12 Q: Well, that's what I was getting into 13 is just -- 14 COMMISSIONER SIDNEY LINDEN: Yeah, you 15 would be if we could -- 16 MR. WILLIAM HORTON: Yeah. Quite, quite 17 often in examinations the Witness doesn't necessarily 18 have a copy of a transcript but I -- it doesn't hamper me 19 if the Witness does have access to a copy. I think I 20 can -- 21 COMMISSIONER SIDNEY LINDEN: If you feel 22 uncomfortable -- 23 THE WITNESS: No, I -- 24 COMMISSIONER SIDNEY LINDEN: Let's see 25 how the question --
2431 THE WITNESS: Sure. 2 COMMISSIONER SIDNEY LINDEN: -- and 3 answer goes and if it's a long extract and you want to 4 read it -- 5 THE WITNESS: Sure. 6 COMMISSIONER SIDNEY LINDEN: -- we'll 7 stop and see if we can -- 8 THE WITNESS: Thank you. 9 MR. WILLIAM HORTON: Okay. And if you 10 have any trouble following it that's fine, too. I'll see 11 what we can do. 12 13 CONTINUED BY MR. WILLIAM HORTON: 14 Q: The question was: 15 "Okay. In keeping that -- what you've 16 described in mind, did you witness at 17 any time during the meeting anything 18 that struck you as inappropriate?" 19 And then you said: 20 "I don't recall anything inappropriate. 21 I've looked at my notes." 22 And then you continued: 23 "I didn't see anything that, from my 24 notes, that made me think there was 25 anything particularly inappropriate."
2441 Then we come to the part that I'm 2 interested in. 3 "It is fair to say that it was made 4 clear to people that the Government had 5 a view and that some ministers had 6 expressed a view in the sense of having 7 a particular -- a tone with respect to 8 how they wanted to be advised. 9 But I certainly wouldn't go so far as 10 to say that any said, you know, This is 11 then an -- this is what the answer has 12 to be." 13 Just, so just stopping there. 14 A: Sure. 15 Q: I think it's clear from the question 16 we're talking about the meeting of September 6th, what 17 was said at the meeting of September 6th and you said 18 that some ministers expressed a view in the sense of 19 having a particular tone in -- with respect to how they 20 wanted to be advised. 21 A: Right. And my recollection is this 22 is the context of being asked about the appropriate 23 relationship between political staff and civil officials. 24 Q: I think you were asked about the 25 meeting.
2451 A: Sure. 2 Q: And, of course, we know you weren't - 3 - there weren't ministers at that meeting, so it's the 4 representatives of the ministers? 5 A: Right. 6 Q: Is that what you're referring to? 7 A: Right. 8 Q: And so when you said, in effect, that 9 some ministers' representatives expressed a tone with 10 respect to how they wanted to be advised; what was that 11 tone? 12 A: Again, that there was a move that was 13 less conciliatory than the approach than had guided the - 14 - the previous government and I've since been taken to 15 some references. 16 This notion, for example, that it was to 17 be portrayed as a law and order issue as opposed to a 18 native rights issue. That's the -- the sort of thing I 19 had in mind with that answer. 20 Q: And what -- what -- what specific 21 comment reflected that tone with which you felt the 22 ministers wanted to be advised? 23 A: I don't have a specific comment in 24 mind. I know that some of the -- the comments that are 25 attributed to Ms. Hutton in the course of the notes are
2461 consistent with that. 2 That's the sort of thing that I had in 3 mind in talking about the notion that it was to be a less 4 conciliatory approach and that that was -- this less 5 conciliatory approach was the tone that was being set. 6 Q: So you were receiving the impression 7 that the Government wanted to be advised in a tone that 8 was less conciliatory to First Nations interests; is that 9 right? 10 A: Certainly less conciliatory to this 11 sort of scenario. 12 Q: And then you went on to say -- 13 A: But I wouldn't want to paint it as 14 broad as, sort of, all relate -- all elements of the 15 relationship with First Nations. 16 Q: Well, we're talking about this -- 17 A: Sure. 18 Q: -- type of scenario. You then went 19 on to say: 20 "It was more in terms of that the 21 ministers or at least some ministers, 22 had expressed a view that they wanted 23 certain things thought about and a 24 particular approach is not to be 25 discounted."
2471 What were the certain things that you felt 2 the ministers wanted to have thought about? 3 A: For example, the notion of moving as 4 quickly as possible and then making that the priority and 5 moving as quickly as possible to remove protesters and 6 making that a priority as opposed to -- to diffusing the 7 situation, however long it took. 8 That's the sort of thing I had in mind. 9 Q: And then -- 10 A: And again, we've seen comments in the 11 different passages from other people's notes that I've 12 been referred to. 13 Q: And then you said: 14 "A particular approach is not to be 15 discounted." 16 What types of approaches were not to be 17 discounted? 18 A: The notion of applying for an 19 injunction in the ex parte way or in a, you know, with 20 abridged service or unabridged service. 21 Q: Unabridged service; who specifically 22 mentioned that? 23 A: To be honest, I don't recall. I know 24 that -- that it would have come out, I guess, in the 25 context of Mr. McCabe saying, Here are the options, you
2481 know, ex parte, abridged service, normal service and the 2 comment would have been, well let's, you know, whatever 3 one's going to get us there fastest sort of thing. 4 Q: So to be clear about your evidence on 5 that point, when the issue about injunctions came up, and 6 the various scenarios for options were described, then it 7 was in that context that you got the -- the minister's 8 representative expressed the view that the ex parte 9 injunction should not be discounted? 10 A: Sure. If it -- if it's legally 11 available, that's when we should be looking at. 12 Q: All right. And so that would have 13 been at the time that Mr. McCabe was presenting options 14 about the injunction and essentially was more or less 15 recommending against the ex parte for the reasons that he 16 laid out? 17 A: I think it's fair to say that -- that 18 Mr. McCabe was less than convinced that he had a good 19 case for an ex parte injunction, probably thought he had 20 a pretty good case to get an injunction of some kind -- 21 A: Yeah. 22 Q: -- but not necessarily convinced that 23 he had the -- the basis for an ex parte application. 24 Q: Well, that's a roundabout way but the 25 bottomline is if the lawyer says, I'm less than convinced
2491 that I have a good case -- 2 A: Yeah. I was actually trying to agree 3 with you. 4 Q: -- it's a recommendation against 5 going that route? 6 A: Yeah. 7 Q: And so what the Minister's 8 representatives were saying is, Don't discount it? 9 A: Right. 10 Q: Okay. 11 A: Make sure when you go talk the AG -- 12 Q: Yes. 13 A: -- that that's included in the 14 options. 15 Q: Right. Okay. And, in fact, that's 16 an option that ended up being selected. 17 And then you went on to say: 18 "And you have to remember that if I was 19 to put it this way, that things might - 20 - things that might not have been 21 considered under the previous 22 government were live options under this 23 government." 24 And what were you referring to there in 25 terms of, "things that would not have been considered by
2501 the previous government that were live options under this 2 government?" 3 A: I think the -- really just the press 4 to move it as fast as possible and to deal with the issue 5 in a sort of -- with this sort of law and order tone that 6 was being suggested. That -- that's not the -- the tone 7 that informs the way the previous government had dealt 8 with First Nations, either generally or on this 9 particular issue. 10 Q: And -- and, again, this was -- these 11 were views that were expressed by ministers' 12 representatives at that meeting? 13 A: Sure. 14 Q: Now, I then do want to come to this 15 issue about law and order versus First Nations being 16 viewed as a First Nations issue. And you went on to say, 17 in your evidence in-chief, that -- I should start a 18 little earlier: 19 "I think it's fair to say that this 20 government, certainly in terms of 21 direction or not, direction is probably 22 the wrong word, but in terms of the 23 Government's -- well, the Government, I 24 suppose, is wrong to the extent that 25 the political staff made a point, it
2511 was that this was to be viewed more as 2 a law and order issue and that a First 3 Nations issue, and to the extent that 4 that was the perspective they took, it 5 put certain options on the table." 6 Do you -- 7 A: Hmm hmm. 8 Q: -- do you recall saying that? 9 MS. KATHERINE HENSEL: Just to clarify -- 10 MR. WILLIAM HORTON: Yeah. 11 MS. KATHERINE HENSEL: -- for the record. 12 What we have is that: 13 "This was to be viewed more as a law 14 and order issue than a First Nations -- 15 than a First Nations issue." 16 Rather than, "and that a First Nations" 17 which is what you were looking at. 18 19 CONTINUED BY MR. WILLIAM HORTON: 20 Q: Okay. I may -- I may have misread 21 it. Let me just read it again. 22 A: This is one where I might ask you to 23 put it in front of me. 24 Q: Yeah. All right. 25 "It was that this was -- It was that
2521 this was to be viewed more as a law and 2 order issue than as a First Nations 3 issue, and to the extent that that was 4 the perspective they took, it put 5 certain options on the table." 6 Do you see where you say that? 7 A: Right. 8 Q: Okay. Now, what are the options 9 that -- 10 A: Again, it's -- 11 Q: -- were put on the table? 12 A: -- it's the idea of -- of pressing 13 for an injunction, taking a particular stance in your 14 communications strategy, not having a negotiator. Those 15 are the sorts of things that probably wouldn't have been 16 considered under the previous government. 17 Q: But, it does go beyond the messaging 18 strategy, does it not? 19 A: Sure. 20 Q: It is substantive, is it not? 21 A: In -- in terms of the notion of a law 22 and order issue? 23 Q: Yes. 24 A: It's kind of a loaded expression. 25 But, in terms of not dealing with this incident as a
2531 question of a -- seeing it as sort of a legitimate 2 expression of Aboriginal aspirations and rather seeing it 3 as an issue of -- of some kind of civil disturbance, that 4 is what I understood this to be. 5 Q: Right. 6 A: And that you -- it's to be addressed 7 as some kind of civil disturbance as opposed to a 8 legitimate expression of aboriginal aspirations. 9 Q: Right. But the point I'm trying to 10 make, because you have also said, at different times this 11 afternoon when this issue's come up, that it's a 12 messaging issue. 13 A: Hmm hmm. 14 Q: If you look at this type of issue as 15 an issue that relates to law and order as opposed to an 16 issue that relates to the aspirations of First Nations, 17 that is a fundamentally different way of looking at the 18 issue, is it not? 19 A: Sure. 20 Q: And you understood that to be the 21 case at the time, did you not? 22 A: Sure. I think -- I think I said 23 that -- 24 Q: Yeah. 25 A: -- people expected a different
2541 approach from this government. 2 Q: And the term, "law and order," you 3 were talking to one (1) of My Colleagues about that term 4 before, but the term, "law and order" does have some 5 connotations in connection with government policy, does 6 it not, in terms of a style of government and an approach 7 to issues of law enforcement? 8 A: Sure. 9 Q: And those connotations were 10 applicable in your mind here to this government, that 11 this was a government that wanted to be seen as dealing 12 with these issues as more of a law and order issue than a 13 First Nations' issue, correct? 14 A: Yeah. I -- I don't think that 15 there's -- there's any mystery there. 16 Q: Right. And enforcement of law 17 implies the -- the Criminal Code and it implies the -- 18 all of the issues regarding use of force as defined under 19 the Criminal Code and limited under the Criminal Code, 20 correct? 21 A: Sure. It also includes the 22 injunction approach as well. 23 Q: Well the injunction is actually a 24 civil remedy is it not? 25 A: Sure. But it's a -- it's a -- I mean
2551 the reason that the Attorney has the authority to apply 2 for a civil injunction in this context is his -- his 3 obligation to ensure that the law is obeyed. 4 Q: Yeah. Right. In fact one (1) of the 5 issues was that Mr. McCabe addressed, and it's in the 6 notes, is that it's more complicated to try to use a 7 civil injunction in a criminal context. 8 A: Sure. 9 Q: Isn't that right? 10 A: Yeah. And -- and that's why I say 11 you've got to -- you've got to somehow bring it under the 12 rubric of the AG's broader duty to ensure that the law's 13 obeyed. 14 Q: Right. But when one thinks about law 15 and order in the normal connotations of that term one (1) 16 is thinking about enforcement of criminal laws; isn't 17 that right? 18 A: I'd certainly say that that's where 19 most people take their thinking, sure. 20 Q: Yeah. And in terms of the options 21 that are put on the table, the options that are put on 22 the table when you think of it that way, are enforcement 23 options, enforcing the law with respect to people who are 24 breaking the law? 25 A: Sure. And -- and again, one (1)
2561 thing that government gets told is, you have limited 2 options in that regard. You can phone the police and 3 make your complaint in the ordinary course. 4 Q: Yeah. 5 A: You can apply for an injunction. You 6 can, you know, take steps to enforce the injunction the 7 way any other litigant can. 8 Q: And -- and I want to come to that 9 issue about what advice you gave in relation to your 10 perception of where the Government was coming from, but 11 that's not where I am right now. 12 A: Okay. 13 Q: I'm just trying to get a feel for 14 what the basis of your perceptions were. 15 And these impressions that we've talked 16 about are impressions that you gained from what was said 17 by the Minister's representatives at that -- at that 18 meeting, correct? 19 A: Correct. 20 Q: And I won't take you to all the 21 references. I've circled a number of them but there are 22 a number of places in your testimony-in-chief where you 23 said, for example, I'll take you to one that's just 24 further down the page on page 293, Ms. Hensel asked you: 25 "So you refer to a number of options
2571 being on the table and that being 2 communicated by members of the 3 political staff present. Can you tell 4 us what options you're referring to?" 5 And you then said: 6 "I'm -- I suppose the only thing I 7 would say is that it -- it was clear 8 that the Government -- and I keep 9 saying, "government," and that's 10 suggesting that it's some sort of a 11 body that's made a decision. It's 12 clear that -- that some direction's 13 coming down that there was a desire for 14 the occupiers..." 15 And -- and you -- and you carry on. And 16 there's a number of places in your evidence-in-chief 17 where you have -- and -- and in cross-examination -- 18 where you've characterized the views expressed by these 19 ministers as the views expressed by the Government. 20 And, Mr. Hutchison, I appreciate the 21 technical distinctions you're making and I appreciate 22 your desire to be correct in terms of describing the 23 people there as political staffers but the fact of the 24 matter is that you actually think of them as representing 25 the Government when they were there, did you not?
2581 A: I -- I don't know that I -- I'd go 2 that far. I mean, it -- it's not unheard of to have 3 political staff come and -- and represent a particular 4 view and you turn around and when you finally option it 5 out and it makes its way in the ordinary course, the 6 minister takes a different position. 7 Q: I'm not suggesting it's unusual, but 8 I am suggesting to you, in this particular case, you 9 actually find it quite difficult to stick to using the 10 term, "political staffer," because, in fact, with Deb 11 Hutton there speaking quite categorically on behalf of 12 the Premier and the other views that are being expressed 13 as to the options, very pro-actively, there was a kind of 14 a natural tendency to think of this as something the 15 Government at large wanted to do, right? 16 A: Sure, if you use the word small g 17 government and, you know, sort of put a little asterisk 18 beside it that I don't mean to refer to, you know, the 19 executive council as represented by the Premier, et 20 cetera. 21 I -- it's -- let's put it this way, I 22 don't think there was any mystery that the Premier and 23 the key ministers who were represented, I suppose I would 24 say, MNR, sort of were in that space. 25 I don't know what the AG's view was and
2591 whether the AG even had a settled view at that point, and 2 I couldn't speak to Sol Gen. But I think it's fair to 3 say that the direction that was coming from the Premier's 4 office and from MNR was in that line. 5 Q: Right. And again, at the risk of 6 being technically incorrect, it was -- it would be a 7 natural expression for anybody at that meeting to say 8 this is what -- this is where the Government's coming 9 from, just as you've done on many occasions here; isn't 10 that right? 11 A: Sure. It's a sloppiness of language 12 that most people would be excused. 13 Q: Yeah. Well, I don't know whether 14 it's a sloppiness of language, Mr. Hutchison, or just 15 taking what is -- what would be apparent to anyone at the 16 meeting and trying to make it more technically correct as 17 to what was -- what was taking place. 18 A: Sure. 19 Q: You had no doubt that Deb Hutton was 20 there, having spoken to the Premier, and expressing the 21 views of the Premier on this very issue, correct? 22 A: I certainly had no doubt -- I don't 23 think that she was sort of misrepresenting or consciously 24 trying to misrepresent what she'd been told by the 25 Premier, no.
2601 Q: Well, why would the subject of 2 misrepresentation even come up? 3 Why would you even mention 4 misrepresentation? 5 A: No, no, because you said -- you -- 6 because she asked me was she -- 7 Q: Yeah. 8 A: -- representing the Premier and I 9 said, Sure. 10 Q: Yeah, well, so it was -- 11 A: Well the only way that she wouldn't 12 be representing the Premier is if she was on a lark of 13 her own. 14 Q: Yeah, there's no one saying -- no 15 one's ever suggested that to your knowledge, have they? 16 A: No. 17 Q: So, therefore you clearly had the 18 understanding she was there -- 19 A: Sure. 20 Q: Having spoke to the Premier about 21 this very issue and reflecting his views to the meeting, 22 correct? 23 A: Sure. 24 Q: All right. Okay. Then, for those 25 who are following along in the programme, at page 298 you
2611 were asked -- actually, it starts at 297. 2 "Okay, did you verbally or disagree -- 3 did anyone verbally or disagree with 4 you or appear to disagree with you at 5 the meeting?" 6 And this is about your advice about you 7 can ask but you can't tell. 8 A: Right. 9 Q: And then your answer is: 10 "No, my recollection is that when it 11 was made clear that you can ask but you 12 can't direct, there was a discussion 13 of, Well then, let's ask." 14 Then -- now that you have it, you can 15 see -- 16 A: Yes. 17 Q: -- those words? Now, Mr. Downard 18 took you to a passage in Julie Jai's notes and I want to 19 take you back there. 20 This is Tab 4 of your binder, Exhibit P- 21 536. We've been here many times, but I do want to put it 22 in a different context. 23 Page 6? 24 A: I have it. 25 Q: Okay. And he read you this passage:
2621 "Deb: Feels MNR as property owner can 2 ask OPP to remove people." 3 And then we have your comment: 4 "Scott: You can ask them to remove 5 them, you can't insist or demand that 6 they be removed." 7 And then it: 8 "Deb: Has MNR asked OPP to remove 9 them?" 10 By the way, there's a dash after that and 11 you don't know whether the -- the next comment is a 12 comment by Deb Hutton or by someone else, do you? 13 A: No, I don't know. I know that the 14 note taking style suggests that, but I don't know that. 15 Q: Well, it -- you know, it's kind of 16 inconsistent that way, but that's -- 17 A: Sure. 18 Q: You don't know from your own 19 knowledge -- 20 A: No. 21 Q: -- whether it is or not? Okay. Now, 22 when Mr. Downard read this to you, one might have had the 23 impression that, Well here's Deb Hutton saying MNR can 24 ask, and then you are kind of gratuitously offering the 25 advice, Well you can ask but you can't insist or demand.
2631 Now I'm going to start by suggesting that 2 when you told Deb Hutton, You can ask but you can't 3 insist or demand, there was a reason why you said that? 4 A: Sure. I -- I mean, I wanted to make 5 sure that people in the room understood to what extent 6 you could pull the lever and to make it clear that all 7 you can do is you can phone and -- and ask. You have no 8 greater position, you have no more authority than any 9 other landowner. 10 Q: Right. And you felt that that was 11 something that was necessary and appropriate -- 12 A: Sure. 13 Q: -- to draw to her attention at that 14 time; right? 15 A: Sure. 16 Q: Right. 17 A: To the room's attention. 18 Q: Yeah. Yeah. Well, and in 19 particular, that was because when the meeting started out 20 you had the impression that they didn't understand that, 21 that Deb Hutton in particular didn't understand that; 22 isn't that why you needed to advise her of that? 23 A: I don't know that I would say that I 24 -- I thought she didn't understand it. It was more a 25 case of I wanted to make sure that she and everybody else
2641 did understand it. I didn't know what she knew or didn't 2 know. 3 Q: Let me take you to page 2, at an 4 earlier point in these notes, down at the bottom of the 5 page where -- 6 A: Right. 7 Q: -- Peter Allen says: 8 "Field spokesperson should be local. 9 Keep matters local. This Committee 10 should also vet release." 11 And then Deb Hutton is noted as saying: 12 "But we want to be seen as having 13 control over this so the ministers 14 can't duck if scrummed and Premier not 15 averse to this being a Provincial 16 Government action." 17 You see that? 18 A: Yes. 19 Q: Okay. And that is consistent with 20 your recollection as to the type of thing that Deb Hutton 21 was saying -- 22 A: Sure. My -- 23 Q: -- at the -- 24 A: Yeah. My recollection is that the 25 Premier, to use government language, wasn't afraid to
2651 take ownership of the issue. 2 Q: And taking ownership of the issue and 3 -- and being seen as controlling the events? 4 A: Sure, I'd accept that. 5 Q: Yeah. Well, it's -- that's -- 6 A: Yeah. 7 Q: -- exactly what she says, We want to 8 be seen as having control over this and the Premier is 9 not averse to this being a Provincial Government action. 10 So the impression that she is leaving with people in the 11 meeting is that the Government wants to be seen to be 12 directing this activity. 13 Isn't that the impression that you had 14 from her comments? 15 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 16 Downard...? 17 MR. PETER DOWNARD: This witness can 18 speak to the impression that Ms. Hutton left with him -- 19 COMMISSIONER SIDNEY LINDEN: Yes. 20 MR. PETER DOWNARD: -- but not with -- 21 COMMISSIONER SIDNEY LINDEN: No. That's 22 fair. 23 MR. PETER DOWNARD: -- other people. 24 COMMISSIONER SIDNEY LINDEN: That's a 25 fair comment.
2661 2 CONTINUED BY MR. WILLIAM HORTON: 3 Q: That's fine. I thought I corrected 4 course there in the course of my questions, but... 5 You -- let's go back. 6 A: Sure. 7 Q: You recall this type of comment being 8 made by Deb Hutton, right? 9 A: Yes. 10 Q: Okay. This type of comment clearly 11 indicated that the Government wanted to be seen as 12 directing the response to the occupation, correct? 13 A: I don't know about directing the 14 response but they wanted to be seen as not being afraid 15 to comment on it, not being afraid to be associated with 16 it, and to -- to have a position on it. 17 Q: Mr. Hutchison: 18 "But we want to be seen as having 19 control over this." 20 "Control over this." 21 You understood that the Government wanted 22 to be seen as having control and that's why you gave the 23 advice you gave that, You can ask but you can't tell; 24 isn't that the explanation as to why you gave that 25 advice?
2671 A: I don't know that I'd connect the two 2 (2) that way. 3 Q: So you are sensitive to the fact that 4 the Government can ask but can't tell? 5 A: Right. 6 Q: But when Deb Hutton says something 7 like, "We want to be seen as having control over this," 8 that just goes right -- goes right over your head; does 9 it? 10 A: The -- the point, I suppose, is that 11 the very next comment is that -- if you look over to the 12 next page, is: 13 "We're seeking the injunction. Other 14 matters within police discretion, OPP. 15 OPP, no goals to get people out ASAP." 16 So there -- there's an acknowledgement of 17 -- of, sort of, police discretion involvement as well. 18 Q: You don't know who said those words, 19 do you? 20 A: No. 21 Q: And then, on the next page, we get to 22 Tim McCabe's presentation on the injunction, and he says 23 -- he says: 24 "Not a case for an ex parte 25 injunction".
2681 And you've already confirmed that that was 2 his -- the view he expressed? 3 A: Right. 4 Q: And then they -- then Deb Hutton: 5 "Premier feels the longer they occupy, 6 the more support they'll get. He wants 7 them out in a day or two." 8 Right? 9 A: Hmm hmm. 10 Q: So it's the Premier that's driving 11 the consideration that we need to do it faster, right? 12 A: Yes. 13 Q: It's not Tim McCabe's recommendation 14 that we try to go for an ex parte injunction, right? 15 A: Right and largely -- 16 Q: Right. 17 A: -- because he's not sure he has the 18 case -- he can't make -- he can't make the case. 19 Q: And legally, he -- 20 A: Yeah. 21 Q: -- doesn't think he's got the basis 22 for it, right? 23 A: Yeah. 24 Q: Turned out more or less to be right? 25 We'll argue that --
2691 A: Yeah. 2 Q: -- another day, that's not your 3 field. And so he wants them out in a day or two because 4 he's afraid that the longer they occupy, they'll get 5 support, right? 6 A: Yeah, I don't recall the reference to 7 a specific time frame. I do recall the balance of the 8 reference. 9 Q: And you recall that the reason being 10 that the longer they occupy, the more support they'll 11 get? 12 A: Right. 13 Q: Right. It was not anything to do -- 14 certainly, it wasn't anything to do with the legal 15 requirements for getting an injunction to move in a day 16 or two? 17 A: Not -- not as articulated there, no. 18 Q: And certainly, in terms of the police 19 advice that was being given by Ron Fox, he wasn't 20 advocating a day or two? 21 A: No, you're quite right and that's 22 certainly not the position that -- 23 Q: Right. 24 A: -- that the police -- 25 Q: Right.
2701 A: -- took, either, in this case or 2 traditionally. 3 Q: So the reason that you went in a day 4 or two (2) with an ex parte injunction, the genesis of it 5 is the Premier wants them out in a day or two? 6 A: Again, I -- I'm happy to sign on for 7 everything but the reference to a day or two, because I 8 don't remember that comment and, you know, the discussion 9 about moving expeditiously was certainly there and -- 10 and, you know, that's -- that's what I understood to be 11 the direction. 12 Q: You certainly recall that Deb Hutton 13 and the Premier were pushing to get this done quickly -- 14 A: Sure -- 15 Q: -- and -- 16 A: As soon as you can do it, get it 17 done. 18 Q: Right. And they didn't want that 19 option taken off the table, even though the legal advice 20 was that you don't have a case for it, right? 21 A: Correct. 22 23 (BRIEF PAUSE) 24 25 Q: Thank you, Mr. Hutchison. Those are
2711 all my questions. 2 COMMISSIONER SIDNEY LINDEN: Thank you 3 very much, Mr. Horton. I think this is an appropriate 4 time to adjourn for the day. 5 We will return tomorrow morning at 9:00 6 a.m., thank you. 7 8 (WITNESS RETIRES) 9 10 THE REGISTRAR: This Public Inquiry is 11 adjourned until tomorrow, Tuesday August 30th, at 9:00 12 a.m. 13 14 --- Upon adjourning at 5:12 p.m. 15 16 17 Certified Correct 18 19 20 21 ________________________ 22 Dustin Warnock 23 24 25