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 December 1st, 2005 25
21 Appearances 2 Derry Millar ) Commission Counsel 3 Susan Vella ) 4 Donald Worme, Q. C ) 5 Katherine Hensel ) 6 Megan Ferrier ) (np) 7 Murray Klippenstein ) The Estate of Dudley 8 Vilko Zbogar ) (np) George and George 9 Andrew Orkin ) (np) Family Group 10 Basil Alexander ) 11 12 Peter Rosenthal ) Aazhoodena and George 13 Jackie Esmonde ) (np) Family Group 14 15 Anthony Ross ) (np) Residents of 16 Cameron Neil ) Aazhoodena (Army Camp) 17 Kevin Scullion ) 18 William Henderson ) Kettle Point & Stony 19 Jonathon George ) (np) Point First Nation 20 Colleen Johnson ) (np) 21 Kim Twohig ) Government of Ontario 22 Walter Myrka ) (np) 23 Susan Freeborn ) (np) 24 Michelle Pong ) (np) 25 Lynette D'Souza ) (np)
31 APPEARANCES (cont'd) 2 Janet Clermont ) Municipality of 3 David Nash ) (np) Lambton Shores 4 Nora Simpson ) (np) Student-at-law 5 6 Peter Downard ) The Honourable Michael 7 Bill Hourigan ) (np) Harris 8 Jennifer McAleer ) 9 10 Ian Smith ) (np) Robert Runciman 11 Alice Mrozek ) 12 13 Harvey T. Strosberg, Q.C.) (np) Charles Harnick 14 Jacqueline Horvat ) 15 16 Douglas Sulman, Q.C. ) Marcel Beaubien 17 Mary Jane Moynahan ) (np) 18 Dave Jacklin ) (np) 19 Trevor Hinnegan ) 20 21 Mark Sandler ) Ontario Provincial 22 Andrea Tuck-Jackson ) (np) Ontario Provincial Police 23 Leslie Kaufman ) (np) 24 25
41 APPEARANCES (cont'd) 2 Ian Roland ) Ontario Provincial 3 Karen Jones ) (np) Police Association & 4 Debra Newell ) (np) K. Deane 5 Ian McGilp ) (np) 6 Annie Leeks ) (np) 7 Jennifer Gleitman ) (np) 8 Robyn Trask ) (np) 9 10 Julian Falconer ) Aboriginal Legal 11 Brian Eyolfson ) Services of Toronto 12 Kimberly Murray ) (np) 13 Julian Roy ) (np) 14 Clem Nabigon ) (np) 15 Adriel Weaver ) (np) Student-at-Law 16 17 Al J.C. O'Marra ) (np) Office of the Chief 18 Robert Ash, Q.C. ) (np) Coroner 19 20 William Horton ) Chiefs of Ontario 21 Matthew Horner ) 22 Kathleen Lickers ) (np) 23 24 25
51 APPEARANCES (cont'd) 2 Mark Fredrick ) (np) Christopher Hodgson 3 Craig Mills ) (np) 4 Megan Mackey ) (np) 5 Erin Tully ) 6 Peter Lauwers ) (np) 7 8 David Roebuck ) (np) Debbie Hutton 9 Anna Perschy ) 10 Melissa Panjer ) 11 Adam Goodman ) (np) 12 13 14 15 16 17 18 19 20 21 22 23 24 25
61 TABLE OF CONTENTS 2 PAGE NO. 3 4 ELAINE MELLER TODRES, Resumed 5 Cross-Examination by Mr. Murray Klippenstein 7 6 Cross-Examination by Mr. Peter Rosenthal 30 7 Cross-Examination by Mr. Kevin Scullion 104 8 Cross-Examination by Mr. William Henderson 120 9 Cross-Examination by Mr. William Horton 140 10 Cross-Examination by Mr. Julian Falconer 151 11 Cross-Examination by Ms. Kim Twohig 351 12 13 14 Certificate of Transcript 355 15 16 17 18 19 20 21 22 23 24 25
71 --- Upon commencing at 9:00 a.m. 2 3 THE REGISTRAR: This Public Inquiry is 4 now in session. The Honourable Mr. Justice Linden 5 presiding. Please be seated. 6 MR. MURRAY KLIPPENSTEIN: Good morning, 7 Commissioner. 8 COMMISSIONER SIDNEY LINDEN: Good 9 morning, Mr. Klippenstein. 10 Just before we start I just want to say 11 what a good event we had last night, how enjoyable it was 12 and I want to thank Bill Henderson for all the work he 13 did in helping to make it happen. 14 It was good to see everybody in a 15 different environment and I'm so glad that so many of you 16 were able to come. Let's carry on. 17 MR. MURRAY KLIPPENSTEIN: Thank you, 18 Commissioner. Good morning. 19 20 ELAINE MELLER TODRES, Resumed 21 22 CROSS-EXAMINATION BY MR. MURRAY KLIPPENSTEIN: 23 Q: Good morning, Dr. Todres. 24 A: Good morning, Mr. Klippenstein. 25 Q: As -- as you may be aware, I'm one of
81 the legal counsel for the Estate of Dudley George and the 2 Family of Dudley George. I'd like to ask you a -- a 3 number of questions about the meeting in the Premier's 4 dining room or boardroom and in particular with respect 5 to Mr. Fox. 6 I understood from your testimony yesterday 7 that you were called to the meeting and I believe you 8 used the word 'summonsed' to the meeting. I -- I take it 9 you were -- the decision to go to the meeting was not 10 yours, you felt you were called, right? 11 A: Correct. 12 Q: And I believe, from your testimony, 13 you felt the same applied to Mr. Fox. It wasn't you that 14 made the decision to have him there, he was called or 15 summonsed if you will -- 16 A: Yes. 17 Q: -- to the best of your understanding; 18 is that fair? 19 And since this was a meeting in the 20 Premier's personal dining room or boardroom, is it fair 21 to say that the most reasonable assessment is that it was 22 probably the Premier's office that -- that called -- 23 called you there? 24 A: Highly probable. 25 Q: Yes. And we've talked about buffers
91 and filters between political -- senior political 2 individuals and civil servants such as some of your staff 3 or the police liaison person such as Mr. Fox; is that 4 right? 5 I mean, you -- you've spoken about buffers 6 and filters between those two (2)? 7 A: Yes. 8 Q: And you spoke about how you felt, I 9 believe, in -- in hindsight perhaps that some of those 10 protocols perhaps should have been implemented with 11 respect to Mr. Fox in the Premier's dining room meeting; 12 is that fair? 13 A: Yes, I indicated that at the very 14 least had there been a protocol after the fact and 20/20 15 hindsight, that if this would have been treated like a 16 Cabinet meeting or a subcommittee of Cabinet meeting 17 where from time to time technical experts are brought in 18 -- for a very short period of time brought in and 19 released that might have been appropriate. 20 Q: And would you agree with me that what 21 we had here in the result was Mr. Fox as a police liaison 22 person being in a meeting where he was exposed to strong 23 political opinions from the very highest level of Ontario 24 government and that Mr. Fox shouldn't have been put in 25 that position. Is that fair?
101 A: Well, there's two (2) ways of looking 2 at it. One (1) is that he may or may not -- he perhaps 3 ought to or ought not to have been placed in that meeting 4 and the second way of looking at it is that there are 5 time -- there are times when an Assistant Deputy Minister 6 or her staff will be in a room where a very difficult 7 issue is discussed and there are a variety of political 8 opinions that are expressed, those opinions are still 9 expected to be considered confidential. 10 Q: And however, isn't the point of the 11 buffers and filters you mentioned, that there is a matter 12 of degree in those situations. And taking those factors 13 into account, in this particular situation, we had Mr. 14 Fox as a police liaison person, not only being -- not 15 only reviewing difficult issues but, in fact, hearing 16 very strong opinions from the very top level of Ontario 17 government and that, all things considered, he shouldn't 18 have been put in that position. 19 Would you agree with that? 20 A: Well, I -- I guess when put that I 21 way I would say that prospectively if I were considering 22 policy arising from a very difficult and complex issue I 23 might have tighter rules around either presence or the 24 degree of detail to which senior members of government 25 require in order to make their political judgments.
111 Q: And those sorts of tighter rules 2 would -- would apply to a situation like this in the 3 future -- that -- that particular meeting; is that fair? 4 A: I think it's -- all I will say is 5 because having made rules I'm reluctant to make them on 6 the spot. I will simply say that if I were making a set 7 of rules I would consider them and I wouldn't generalize 8 from a particular case. 9 Q: All right. Let me ask you some 10 questions about the results of the Premier's boardroom or 11 -- or dining room meeting. 12 I think you've mentioned a number of times 13 that when you went into the meeting your assumption was 14 that the approach was -- with respect to Ipperwash -- was 15 slow and steady and negotiated; is that fair? 16 A: Correct. 17 Q: When you came out of the meeting you 18 had a different understanding and that was that the 19 approach now would be to move fast; is that fair? 20 A: The impression I was left with was 21 actually a complicated one. It was that there was 22 direction to Legal to pursue injunction. 23 Having spent a fair number of time with 24 lawyers that wouldn't necessarily have been a fast pace. 25 In other words there were still processes that had to be
121 put through, information that had to be gathered. 2 Again I'm speaking as a former Deputy 3 Solicitor General who was desperately trying to 4 understand the legal nuance that the Deputy Attorney 5 General was putting forward, but even I would have 6 understood that the pursuit of moving something quickly 7 was the direction to get lawyers to move quickly. It 8 didn't, in my mind, mean that the conclusion of the 9 lawyers' work would be speedy or that the laying of the 10 injunction, or whatever the appropriate verb, would be 11 necessarily. 12 I think there was an inclination to say 13 get on with the injunctions ASAP, for all that that 14 entailed. And we're now beyond what it is that a 15 political scientist would know about injunctions. 16 Q: Right. And given those 17 qualifications that you've said about the legal process 18 involved, it is -- it is -- and you mentioned the word, 19 "as quickly as possible" or something like that. 20 The end result when you left the meeting 21 was, instead of a general direction of slow, steady and 22 negotiate, the direction now was move fast? 23 A: Well, again just to try to put a 24 little nuance on this, if you can think about this, I 25 don't want to sound -- I don't want to trivialize this,
131 but to me this was a bit like a fugue. 2 So, theme 1 of the fugue was that nothing, 3 as far as I was concerned, was going to change as a 4 result of that meeting as to what it is that the police 5 officers were doing on the ground, and up to that moment 6 in time I believe that there were still in the mode of 7 chatting and negotiating. 8 I did not see from the second theme, the 9 moving toward injunction, ex parte or other, that that 10 would have necessarily precluded the first theme. 11 But, again I have to -- I have to really - 12 - I feel like I'm truly out of my depth in discussing the 13 second theme because I wouldn't know precisely what steps 14 would have been required to effect a negotiation. 15 So, I'm just placing nuance, because I 16 didn't come out of it with quite the same sense as you 17 are describing. 18 Q: All right. You did say yesterday, as 19 I recall, that one of your recollections was that the 20 lawyers were to move on the injunction, but they were to 21 do so with all possible vim and vigour, including ex 22 parte if -- 23 A: Yes. 24 Q: Correct? 25 A: Correct.
141 Q: So, in that sense, it was a move 2 fast? 3 A: Yes. 4 Q: Okay. And you also mention that when 5 you -- when you left the meeting, you recall someone, and 6 it may have been the Premier, making reference to some 7 twenty-four (24) timeline for something; is that fair? 8 A: Yes. 9 Q: Yes. And is it fair to say you don't 10 recall, or perhaps you do, precisely what the twenty-four 11 (24) hour timeline applied to? 12 A: Well, my memory was that it applied 13 to the injunction and -- and my recollection of my 14 response to that was, as it always is when one speaks to 15 government to -- to the highest level of government, 16 twenty-four (24) for getting the injunction set up, I 17 took that as the political objective, subject to the 18 normal expectation of, in this case, the Deputy Attorney 19 General who would then reflect on just precisely what 20 could be done on the ground. 21 There were judges to -- again, I'm really 22 outside my knowledge base, but I wasn't convinced at the 23 time that it was actually doable -- 24 Q: Hmm hmm. 25 A: -- within twenty-four (24) hours.
151 I'm not -- I can't speak to whether the Deputy Attorney 2 General felt that it was doable. But, we took from the 3 twenty-four (24) hours, not necessarily a literal 4 translation, but a go- as-quickly-as-possible, subject to 5 what one has to do legally and ethically to get things 6 done. 7 Q: But the twenty-four (24) hours was, 8 as you understood it, a political objective? 9 A: Yes. 10 Q: And going into the meeting, as you've 11 said, your understanding was a slow, steady and 12 negotiation approach, and then you mentioned yesterday 13 that, of the four (4) Ministers in the -- in the room, I 14 believe Minister Runciman said little, if anything; is 15 that right? 16 A: That's my recollection. 17 Q: And Mr. Harnick, as you recall, said 18 little; is that fair? 19 A: That's fair. 20 Q: And is it fair to say that it wasn't 21 Mr. Harnick who was expressing a political objective of 22 twenty-four (24) hours? 23 A: I don't believe it was Mr. Harnick, 24 no. 25 Q: So, the political objective of
161 twenty-four (24) hours was initiated, if you will, by 2 Minister Hodgson or Premier Harris or both; is that fair? 3 A: Yes. 4 Q: Okay. 5 6 (BRIEF PAUSE) 7 8 Q: Now, we've heard you say that you 9 heard Mr. -- Minister Hodgson talk about getting the 10 protesters out of the Park, fair? Yes? 11 A: Yes, I did. Sorry. 12 Q: And you also mentioned that Premier 13 Harris was speaking about this with a sense of urgency; 14 is that fair? 15 A: Yes. 16 Q: And can I take it that the message 17 from them with respect to urgency applied to, not 18 necessarily getting the court papers in hand, but 19 implementing that if you will, so that it's the vacant 20 Park which is the goal; is that fair? 21 A: Yes. I mean their -- their 22 preoccupation was this was Provincial Park land and 23 they'd like to see it restored as an operating park -- 24 Q: Right. 25 A: -- as quickly as possible.
171 Q: So, the message from, at least 2 Minister Hodgson and Premier Harris, was not so much the 3 -- the injunction order, it was also the package of 4 implementation of the order so that the Park was vacant; 5 is that fair? It was both? 6 A: Well let me try to respond this way. 7 What I recall and it's difficult to parse out which 8 particular section of a -- of a set of objectives would 9 have been directed, but -- but the way I read it was as 10 follows. 11 There was a park that was occupied and 12 through the course of the briefing where it was apparent 13 that some Ministers knew more than a Premier might have. 14 After all there were extensive briefings of Ministers 15 Runciman, Harnick and, who have I missed, all of the 16 three (3) Ministers, the AG, the SG and MNR. 17 The ultimate objective of the Government 18 was to see to it that the Park would be restored to its 19 former use. It became apparent throughout the meeting 20 that that would not be done quickly without a review of a 21 series of options. So, it's hard for me to separate. 22 And it became clear, I think, to the 23 Premier as well as to others that should they choose the 24 legal route beyond simply negotiation, if it were to be 25 the -- the injunction route that that may or may not take
181 time, some time; that too was a matter of frustration. 2 But ultimately what were we doing with -- 3 what were they doing with considering an injunction, it 4 was the best method by which to see to it that, as 5 quickly as possible, within reason, and with no harm to 6 anyone, that the Park would become vacated. 7 Q: Did either Minister Hodgson or 8 Premier Harris identify the idea to your recollection of 9 no harm to anyone? 10 A: Well I can't -- I can't speak to that 11 directly but that was in every single note that we had. 12 It would have been a view that would have been expressed 13 by the Deputy Attorney, it could very well have been 14 expressed by Mr. Harnick; that was the -- that was the 15 implicit base of everything it is that we were talking 16 about. This was meant -- this was meant to be peaceful. 17 Q: And -- all right. Let me turn to the 18 comment of Minister Hodgson that you testified to 19 yesterday, and that's the -- the comment and again, 20 forgive my use of the word 'expletive', "Get the fucking 21 Indians out of my park." 22 You testified that with respect to some or 23 all of the meeting, Minister Hodgson was extremely 24 agitated and clearly very very upset to use your words; 25 is that fair?
191 A: Yes. 2 Q: And would that have applied as well 3 to this particular phrase, "Get the fucking Indians out 4 of my park"? 5 A: Yes. I think it was an expression of 6 that frustration. 7 Q: Right. And I'm just wondering if you 8 would agree with me, with respect to some implications or 9 messages or signals which you would have understood with 10 respect to that comment, given the very forceful words 11 and manner that were used, and would you agree with me 12 that -- 13 COMMISSIONER SIDNEY LINDEN: Just a 14 minute, Mr. Klippenstein. 15 Yes, Mr. Downard...? 16 MR. PETER DOWNARD: This is very much a 17 point of detail, but I believe My Friend said the comment 18 attributed was beginning with the words, "get the," when 19 I think the comment the Witness spoke about started with, 20 "I want" instead. I simply wasn't the precise quote 21 made. 22 COMMISSIONER SIDNEY LINDEN: I think this 23 quote -- 24 MR. MURRAY KLIPPENSTEIN: I -- 25 COMMISSIONER SIDNEY LINDEN: -- is a
201 little different than other quotes. I'm sorry? 2 MR. MURRAY KLIPPENSTEIN: I -- my 3 recollection is that we have two (2) versions of a 4 similar but not identical comment. 5 COMMISSIONER SIDNEY LINDEN: Yes. 6 MR. MURRAY KLIPPENSTEIN: One (1) version 7 is, "I want the fucking Indians out of the Park." The 8 evidence attributes that to Premier Harris. I believe 9 the evidence of Dr. Todres was a similar but slightly 10 different statement which said, "Get the fucking Indians 11 out of my Park." So -- 12 COMMISSIONER SIDNEY LINDEN: You -- 13 MR. MURRAY KLIPPENSTEIN: -- I think it's 14 important that, as I believe I tried to do, keep those 15 two (2) distinct, although they're similar. 16 COMMISSIONER SIDNEY LINDEN: All right. 17 So your quote of the second of the similar quotes is 18 accurate? 19 MR. MURRAY KLIPPENSTEIN: That's correct. 20 COMMISSIONER SIDNEY LINDEN: Is accurate? 21 MR. MURRAY KLIPPENSTEIN: Yes. 22 MR. PETER ROSENTHAL: That is at page 57 23 of yesterday's transcript. 24 COMMISSIONER SIDNEY LINDEN: That's fine. 25 MR. PETER ROSENTHAL: He said, "Get the
211 fucking Indians out." 2 COMMISSIONER SIDNEY LINDEN: That's fine. 3 MR. MURRAY KLIPPENSTEIN: So there are 4 two (2) differences, one (1) is "get the" as opposed to 5 "I want," and one (1) is "the Park" as opposed to "my 6 Park". 7 COMMISSIONER SIDNEY LINDEN: As opposed 8 to "my Park." That's fine. 9 10 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 11 Q: So let me -- let me go back a step 12 and -- and repeat the -- the question. 13 Would you agree with me that one (1) of 14 the implications or signals which you would have 15 understood from Mr. Hodgson's words and manner of 16 speaking when he said that comment that he meant, And do 17 it quick? 18 Is that fair? 19 A: Well actually, I didn't take it as an 20 instruction at all. 21 Q: Fair enough. I'm just asking you -- 22 A: So -- 23 Q: -- about that comment and what it 24 meant, in your understanding, at that time. And I'm not 25 asking what was the conclusion of the meeting or what
221 other things he may have said before or after. You -- 2 you -- 3 A: I guess -- are you asking me then 4 what I believe his intention was -- 5 Q: No. 6 A: -- when he uttered that remark? 7 Q: No, and it's a little -- it's a bit 8 of a subtle difference. 9 A: Because I just want to be clear. 10 Q: Yeah. I -- I want to ask you what 11 you understood that comment to mean or imply. So I am 12 asking what -- what -- whether you would agree that one 13 (1) of the implications or signals of that phrase or 14 sentence and the way it was conveyed in a -- in a very 15 agitated manner, "Get the fucking Indians out of my 16 Park," also implied, And do it real quick. 17 Would you agree with that? 18 A: Well, let me -- I'm going to give you 19 the response to what it implied to me. 20 Q: Fair enough. 21 A: It implied nothing to me. 22 Q: All right. 23 A: It implied in the sense of what it is 24 you're pushing me to -- to answer. 25 Q: I'm not -- not pushing you to do
231 anything, I'm asking you. 2 A: Okay. Thank you for that. It 3 implied to me what I indicated yesterday, a man who was 4 frustrated and who wanted to express a sentiment, part of 5 which was inappropriate and insensitive. And the other 6 that it implied speedy action on a file that was one (1) 7 of the most complicated files we'd seen. 8 Would it have implied speed? The whole 9 meeting was about what can we do to effect a more speedy 10 implementation to the matter at hand. 11 Q: And so his comment did imply speedy 12 action? 13 A: To others, yes. 14 Q: Yes. 15 A: Not to me. 16 Q: And would you agree with me that that 17 particular comment, as you would have understood that 18 particular comment at the time, also implied, when he 19 said, "Get the fucking Indians out of my Park," I don't 20 care how you do it, just get it done? Was that a sense 21 of the -- of the -- 22 A: Not at all. 23 Q: No? And did the phrase imply or the 24 sentence imply to you any particular way to do it? 25 A: No.
241 Q: No. It's just, this is what I want? 2 Is that fair? 3 A: If, I mean, having had ten (10) years 4 to consider this particular sentence, at that moment only 5 perhaps having a moment or two (2), I would have said 6 that if a Minister, where we didn't have the same set of 7 urgent circumstances, had said to me, There are a group 8 of Aboriginal people in the Park and I'd like to see to 9 it that the Park is restored as quickly as possible into 10 the Provincial Park, that would have been the sentiment 11 that I believe Mr. Hodgson was actually trying to 12 express. 13 MR. JULIAN FALCONER: Well, sorry, Mr. 14 Commissioner -- 15 THE WITNESS: So -- 16 COMMISSIONER SIDNEY LINDEN: Yes? 17 MR. JULIAN FALCONER: It is important 18 that the witness is cautioned about intention, ascribing 19 intention -- 20 COMMISSIONER SIDNEY LINDEN: What was 21 it -- 22 MR. JULIAN FALCONER: If the question -- 23 the question can trigger it -- 24 COMMISSIONER SIDNEY LINDEN: That's the 25 question that was asked.
251 MR. JULIAN FALCONER: No, no, no, no. 2 Well the fact that -- the fact -- no, no, the fact that 3 Mr. Klippenstein either did or not did ask a question 4 that triggered that isn't raise -- does not in any way 5 change the importance of getting from the witness 6 evidence which is useful to the Court. 7 And I'm just simply pointing out -- 8 COMMISSIONER SIDNEY LINDEN: Well, 9 perhaps your caution should be to Mr. Klippenstein -- 10 MR. JULIAN FALCONER: No, I'm not -- 11 COMMISSIONER SIDNEY LINDEN: -- to ask 12 questions that are going to elicit that. 13 MR. JULIAN FALCONER: -- I don't think -- 14 this isn't -- this isn't a popularity contest. I am not 15 saying that Mr. Klippenstein asked a good question or a 16 bad question; I'm raising a concern. 17 And I'm not -- I'm only allowed to direct 18 my submissions to you, Mr. Commissioner, not to Mr. 19 Klippenstein. 20 So, all I'm saying is that one way or 21 another it -- we ought to ensure that we get from her, 22 her impressions and not her evidence -- 23 COMMISSIONER SIDNEY LINDEN: I understand 24 what you're saying -- 25 MR. JULIAN FALCONER: Yeah --
261 COMMISSIONER SIDNEY LINDEN: -- Mr. 2 Falconer, but when you ask a question in the manner that 3 it was asked -- 4 MR. JULIAN FALCONER: No, no, I 5 understand that, I understand that. 6 MR. MURRAY KLIPPENSTEIN: I believe I was 7 careful to ask what Ms. or Dr. Todres' understanding was 8 and I am content to have what her understanding was. 9 I believe her answer went farther and said 10 what she believed was in -- 11 COMMISSIONER SIDNEY LINDEN: Well -- 12 MR. MURRAY KLIPPENSTEIN: -- effectively 13 in Mr. Hodgson's mind, which is quite different. 14 COMMISSIONER SIDNEY LINDEN: Okay. 15 MR. MURRAY KLIPPENSTEIN: And -- 16 COMMISSIONER SIDNEY LINDEN: I'm sorry, I 17 think Ms. -- I think Dr. Todres knows that she can't get 18 into the minds of other people, and I think that we all 19 do and so let's move forward. 20 MR. MURRAY KLIPPENSTEIN: All right. 21 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 22 Twohig...? 23 MS. KIM TWOHIG: Yes, I'm just having a 24 little difficulty understanding what is permissible and 25 what isn't, because I thought Mr. Klippenstein's question
271 was to ask her what she thought was meant by that 2 comment, how she took it, which is what she thought the 3 Minister meant. 4 And that's the answer she gave and now 5 it's being met with objections, and I'm just having 6 trouble. 7 COMMISSIONER SIDNEY LINDEN: It's often a 8 fine line and I think we all understand that. Let's 9 carry on. 10 11 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 12 Q: Dr. Todres, now you've just used an 13 example of a different type of expression by a Minister 14 and you -- you used the example of a Minister saying, 15 There are some Aboriginal people in a Park and I would 16 like to have them removed as quickly as possible. 17 Is that roughly what you're -- the example 18 you -- you used? 19 A: I'm turning to the Court Reporter; I 20 imagine so. 21 Q: All right. And would you agree with 22 me that it makes some significance, it is of some 23 significance whether or not a Minister is extremely 24 agitated and clearly very upset when they make a 25 statement like that.
281 Is that fair? 2 A: I think I had discussed this in the 3 evidence in-chief or examination in-chief, so I'm going 4 to do this one more time. 5 A senior Deputy Minister will have spent a 6 great deal of time with many Ministers in different kinds 7 of settings and will have had close enough relationships 8 that all kinds of opinions, all kinds of language are 9 used. 10 The relationship is usually one of trust 11 and I want to be clear in what I'm saying, that Elaine 12 Todres is not condoning language of any kind that's been 13 used. 14 I'm simply saying that when opinions are 15 discussed, whatever the language that was used, a senior 16 Deputy Minister does not treat those as decisions, as 17 directions. 18 They're part of a conversation which, at 19 the end of the day, will or will not have necessary -- 20 necessarily a direct correlation with the direction that 21 has actually been selected. 22 So you might have to go back to your 23 question. 24 Q: So I take it -- are you saying that 25 if a Minister who is extremely agitated and clearly very,
291 very upset uses profanity and says clearly -- and says, 2 Get the fucking Indians out of the Park, you as an 3 experienced very senior Deputy Minister will filter or 4 understand that or treat that in a particular way; is 5 that fair? 6 A: That's correct. And I would have 7 listened and the movement went on and the rest of the 8 meeting and then I was waiting for what was the decision. 9 Q: Right. 10 A: If there was to be a decision. 11 Q: But that is how you, as an 12 experienced and very senior Deputy Minister, treats that 13 statement; is that fair? 14 And you can't speak for how other people 15 would treat it? 16 A: I cannot speak for others. 17 Q: All right. Thank you. I think those 18 are all my questions, sir. Thank you, Commissioner. 19 Thank you, Dr. Todres. 20 COMMISSIONER SIDNEY LINDEN: Thank you. 21 THE WITNESS: Thank you. 22 COMMISSIONER SIDNEY LINDEN: Mr. 23 Rosenthal...? 24 25 (BRIEF PAUSE)
301 MR. PETER ROSENTHAL: Good morning, Mr. 2 Commissioner. 3 COMMISSIONER SIDNEY LINDEN: Good 4 morning. 5 6 CROSS-EXAMINATION BY MR. PETER ROSENTHAL: 7 Q: And good morning, Dr. Todres. As you 8 know my name is Peter Rosenthal. I'm representing some 9 of the people from Stoney Point under the name Aazhoodena 10 and George Family Group. If you want the spelling you 11 can look at my name tag over there. 12 A: Thank you. Yeah, thank you. 13 14 (BRIEF PAUSE) 15 16 Q: Now I should like to ask you some 17 questions about the dining room meeting. Now you told us 18 you were sure that it took place before lunch; is that 19 fair? 20 A: Yes. It began before lunch. 21 Q: But I would suggest to you it might 22 not have been quite at eleven o'clock, maybe it's more 23 likely, putting together the evidence that we have about 24 when the Interministerial Committee met and where Mr. Fox 25 was and so on, that maybe you received a call at about
311 eleven o'clock perhaps, but it might have been say closer 2 to twelve o'clock by the time you actually attended at 3 the dining room meeting. 4 You wouldn't seriously quarrel with that, 5 would that -- is that -- 6 A: I don't recall being hungry at the 7 time but that might not be evidence of when the meeting 8 was held. Q: Now even though it was the dining 9 room meeting and it was lunchtime they didn't offer you 10 any lunch, I gather? 11 A: They did not offer us lunch. The 12 lunch was offered only to Cabinet Ministers. 13 Q: Now you told us that you accompanied 14 Inspector Fox to outside the meeting and then suggested 15 that he wait outside while you went inside? 16 A: Yes. 17 Q: And you told us that you wouldn't 18 have brought Inspector Fox along unless you'd been asked 19 to by some higher authority. 20 A: Yes. Yes. 21 Q: And the potential people who could 22 have asked you that would have included your Minister, 23 Runciman; is that correct? 24 A: Yes. 25 Q: And perhaps in -- a call from the
321 Premier's office would be a possibility? The original 2 call that suggested that you attend this meeting might 3 have requested that you bring along Inspector Fox? 4 A: Yes. 5 Q: And those would be the only two (2) 6 possibilities, realistically? 7 A: The Minister's office, our Minister's 8 office, perhaps the office of the Executive Assistant on 9 instruction from the Minister. Ministers usually don't 10 call staff directly. 11 Q: They don't personally call you. 12 A: No. 13 Q: They -- they direct a secretary to 14 call you. 15 A: Yes. 16 Q: But you don't recall, on behalf of 17 whom, a secretary might have called you? 18 A: No. 19 Q: Now as you take your mind back, and 20 of course we do know it was ten (10) years ago, to that 21 meeting. Do you recall anyone taking notes at the 22 meeting? 23 A: No. But I will tell you that, again, 24 I'm speaking of normal usage -- 25 Q: Yes.
331 A: -- it would have been unusual for 2 Deputies to take notes. There might have been junior 3 staff around the room, Kathryn Hunt, in my experience, 4 was a very conscientious note taker like many Executive 5 Assistants who would have wanted to know precisely what 6 the instructions were. 7 But I don't recall seeing anyone actually 8 at the table where I was concentrating on the 9 conversation. So I don't know. 10 Q: Would it -- would it be normal at a 11 meeting like that to have someone designated to keep a 12 record of the meeting by taking notes? 13 A: No. Well I think I indicated 14 yesterday that having only attended two (2) meetings of 15 such in my entire life as a Deputy, I wouldn't know. But 16 generally speaking I -- I guess what I would say again, 17 I'm always trying to inform in the context of what would 18 normally be done. 19 This was an unusual sidebar meeting. 20 Cabinet meetings have detailed rules with respect to note 21 takers. This wouldn't have been -- a -- a meeting like 22 this -- I won't speak to the -- the specific Ipperwash 23 meeting, but a meeting like that would normally be an 24 informal meeting for an exchange of views between -- 25 among ministers and -- and a -- and a First Minister and
341 it would be highly unlikely that notes would be taken. 2 Q: Yes. And, in fact, at this Inquiry, 3 to date at least, no -- no notes of that meeting have 4 emerged and the only contemporary account that has 5 emerged of that meeting is the well known phone call, 6 Inspector Fox is describing to Mr. Carson -- Inspector 7 Carson -- what he took from the meeting. 8 And I should like to look at some of the 9 exact words there and see if it might assist you in 10 recalling some of the matters. And so I'm going to be 11 turning then, Mr. Commissioner and Dr. Todres, to Exhibit 12 P-44A and Tab 37 thereof. 13 14 (BRIEF PAUSE) 15 16 Q: I don't know if it would be easy for 17 Mr. Millar to put that on the screen? Oh, I'm told it's 18 not easy to do so. Thank you. 19 I should like to turn to page 263 of that 20 phone call. You're aware that this phone call, according 21 to the information we have, was on September 6th, 1995, a 22 little bit after two o'clock in the afternoon as it says 23 at the first page. 24 And beginning at page 263 Inspector Fox 25 begins a description to Inspector Carson. Going to the
351 top it says: 2 "When I left the meeting I got a page 3 to go to the legislative building 4 immediately." 5 And then he continues a little bit further 6 down: 7 "Meet the Deputy." 8 Well, that's -- that's consistent with 9 your account that he met you before attending the 10 meeting; is that correct? 11 A: Hmm hmm. Yes. 12 Q: And finally: 13 "Went all through this media scrum. 14 And I meet with the Deputy all right." 15 And then he continues: 16 "Our Deputy, Sol Gen, the AG, the 17 Deputy AG, Chris Hodgson." 18 And Carson says: 19 "Oh yeah?" 20 Inspector Fox continues: 21 "He was there." 22 Inspector Carson: 23 "Yeah, from Natural Affairs?" 24 And then Inspector Fox says: 25 "Uh huh and -- and the Premier..."
361 And he describes him as a redneck in his 2 view. But then I'm -- I'm not interested in your view of 3 Inspector Fox's view of the Premier. What I am 4 interested in, though, is the factual content that he 5 appears to report. 6 So now beginning at the bottom of page 263 7 Inspector Fox evidently talking about -- the Premier 8 says: 9 "And he came right out and said -- I 10 just walked in on the tail end of this, 11 The OPP in my opinion made mistakes. 12 They should have done something right 13 at the time and he said, That will, I'm 14 sure, all come out in an Inquiry 15 sometime after the fact." 16 Now, this is evidently Inspector Fox's 17 account to his colleague shortly after the meeting on 18 that day. Does the -- do the precise words, Something -- 19 Should have done something right at the time, and, I'm 20 sure it will all come out in an Inquiry sometime after 21 the fact; does that somehow jar your memory in that 22 respect? 23 A: No. 24 Q: Okay. Further down on the -- that 25 page that we're looking at, 264, Fox reports in the
371 middle of the page: 2 "Well of course the Commissioner is 3 already brought into the loop on this." 4 Now, "the Commissioner" evidently means 5 Commissioner of the OPP, Commissioner O'Grady. Were you 6 aware of how the Commissioner was involved in the loop? 7 A: I don't know what he's referring to. 8 Q: I see. Okay. Thank you. And then 9 Inspector Fox describes the Premier leaving the room and 10 then states that: 11 "The Sol Gen [which presumably is your 12 Minister, the -- Minister Runciman -- 13 Runciman] asked me to brief them as to, 14 you know, what changes in the status of 15 the situation are and I said, well, 16 I've been talking to the incident 17 commander..." 18 And so on, and he then gives some details. 19 Now, you don't recall your Minister 20 requesting then-Inspector Fox brief the -- 21 A: No. In examination in-chief what I - 22 - what I recall is that there was someone speaking about 23 an update -- 24 Q: I see. 25 A: -- and I don't recall who it was.
381 Q: You don't recall whether or not it 2 was Inspector Fox? 3 A: Correct. 4 Q: And turning to the next page, then, 5 265. Inspector Fox says: 6 "So in any event, to make a long story 7 short, this guy went and I finally 8 said, Well, look, I said, With respect, 9 this a property dispute. 10 I said, What we're going to see at the 11 end of the day is that this disused 12 Provincial Park is closed for the 13 season, okay?" 14 Now can you you remember sentiments of 15 that type being expressed by someone; that the Park is 16 closed, it's just a property dispute? 17 A: Yes. I can't tell you of the timing, 18 but -- 19 Q: Yes, but that notion was certainly in 20 the dining room; is that fair to say? 21 A: Yes, yes. 22 Q: And that would be consistent with an 23 advocacy of a go-slow approach -- 24 A: Hmm hmm. 25 Q: -- one might say? Is that fair?
391 A: Correct. 2 Q: And then Inspector Fox continues: 3 "And what we're also then going to see 4 is people have been involved in 5 mischief. Yes, the police know what 6 mischief is, and certainly those folk 7 in the AG, we know about the criminal 8 offence mischief. 9 When it's read in the newspaper, it 10 sounds like stuff our kids get involved 11 in." 12 To which Inspector Carson responds: 13 "You got it." 14 Now, again, I would ask you, is -- was 15 that notion floating around the dining room as -- as you 16 recall, in support of the contention that this is not a 17 matter of urgency, it's just a mischief charge? 18 A: That I don't recall in particular. 19 Q: Okay, thank you. And then Inspector 20 Fox begins describing what he said was an interaction 21 with, as you see at the bottom of page 265, the Minister 22 of Natural Resources. 23 Inspector Carson assumed, for a couple of 24 sentences, that he was talking about the Sol Gen, but 25 then Inspector Fox states towards the bottom of the page:
401 "No, no, this the Minister of Natural 2 Resources." 3 And then he -- he states on the next page, 4 266, about a third of the way down the page: 5 "And I said my guess is, we're going to 6 get a bloody nose or somebody is, and I 7 said at the end of the day, if you're 8 prepared, that's up to you. 9 I'm not making a political statement. 10 I'm giving you a bite of reality." 11 Now, counsel for Minister Hodgson has 12 indicated that is -- at least common agreement there was 13 some interchange between Inspector Fox and Minister 14 Hodgson. 15 But I gather you didn't really hear that 16 or at least you don't recall that at this day; is that 17 correct? 18 A: Correct. 19 20 (BRIEF PAUSE) 21 22 COMMISSIONER SIDNEY LINDEN: Cancel that. 23 MR. PETER ROSENTHAL: I take it Mr. 24 Downard recalls it, would you like to -- 25 COMMISSIONER SIDNEY LINDEN: Cancel that
411 move. Carry on. 2 MR. PETER ROSENTHAL: I'm sorry, I 3 shouldn't have said it. 4 MR. PETER DOWNARD: Everything was going 5 to be fine. Yesterday there was a reference to the 6 matter being common ground, now we have, common 7 agreement. 8 I -- this isn't a case where people agree 9 on -- on those sorts of things. It just seems to be it's 10 not very helpful to be using that sort of language here. 11 MR. PETER ROSENTHAL: Well, his counsel 12 did say, Common ground, and I don't think there's a 13 difference between that and agreement, but in any event, 14 I'm prepared to move on. 15 16 (BRIEF PAUSE) 17 18 CONTINUED BY MR. PETER ROSENTHAL: 19 Q: But let me give a little bit more of 20 what Inspector Fox reported was the content of that 21 conversation, with the possibility that some word in 22 there might jar your memory. 23 So, towards the bottom of page 266, 24 continuing his description at the time of his interaction 25 with Minister Hodgson, Inspector Fox states:
421 "Well even if we get this adjoining 2 order, like how long will the police 3 sit on it; two (2) weeks? 4 He says, I was told that the police 5 knew about this before it happened. I 6 said, That's not correct. 7 Well he said, That's my information. I 8 said, With respect, it's wrong. I 9 said, The police certainly had a 10 supposition that a logical next step 11 for these protesters was to take over 12 the Park. 13 And I said, In fact I've had 14 discussions with the Incident Commander 15 about that but I said, Did we have 16 anything to base it on other than the 17 odd little threat and innuendo that 18 came up? No. 19 What we did we based it on our 20 knowledge of Native people." 21 Continuing on the next page he says: 22 "And this was the likelihood." 23 Now does that, in any way, assist you in 24 recalling anything? 25 A: The only thing that it triggers is I
431 -- in evidence in-chief, I did indicate that someone was 2 speaking about Native ways, of the way in which we've 3 traditionally worked on -- on matters -- 4 Q: I see. 5 A: -- with respect to -- and -- and so 6 that phrase, "our knowledge of Native people," would be 7 consistent with my memory of someone speaking about that. 8 Q: Yes. Now... 9 10 (BRIEF PAUSE) 11 12 Q: The evidence is that after Inspector 13 Fox said good bye to Inspector Carson on this occasion, 14 Chief Superintendent Coles of the OPP then got on the 15 line and we have that as continuing part of this 16 transcript beginning at 269, you need not look at that 17 page. Inspector Fox, as he then was says: 18 "Hi Chief." 19 And then Coles is on the line. And then 20 continuing then to page 272 a third of the way down, 21 Chief Superintendent Coles states: 22 "Well uh, stall them to the amount -- I 23 mean, right now I know that the 24 Commissioner is resurrecting the old -- 25 what has always been our approach
441 because he feels he's now going to 2 start getting some pressure." 3 And then the transcript indicates that 4 Inspector Fox laughed at that. And then Coles continues: 5 "People saying, why aren't you acting, 6 why aren't you acting on this stuff?" 7 To which Inspector Fox replies: 8 "He's already got it -- [sorry] he's 9 already, he's already got it Chris." 10 And Chief Superintendent Coles responds: 11 "Exact, sure he has. So he's trying to 12 resurrect the why we go for 13 injunctions. And the reason that we go 14 for injunctions is because otherwise we 15 go into Provincial offences and we give 16 them a ticket and they don't give a 17 shit about the stuff." 18 Now does that assist you in recalling that 19 some way Commissioner O'Grady was involved in indicating 20 that rather than just going in without the benefit of an 21 injunction, the OPP wanted to have an injunction before 22 they would go in? 23 A: That was not the -- first of all that 24 was not information that would rela -- have been relayed 25 -- it was not relayed to me and I would have understood
451 that to be the buffer between the Commissioner and 2 myself. 3 He would have been looking at options that 4 would have not been -- 5 Q: I see. 6 A: -- part of what I would have been 7 informed about. 8 Q: So if the Commissioner was involved 9 as it might be suggested by this, he would not have 10 explained it to you? 11 A: No. 12 Q: Now on page 274 approximately a third 13 of the way down the page, Inspector Fox states: 14 "Okay. The Premier is quite adamant 15 that this is not an issue of Native 16 rights." 17 And then there's words: 18 "Uh, I mean we've tried to pacify and 19 pander to these people for too long. 20 It's now time for swift, affirmative 21 action." 22 Now, does that help to jar your memory 23 perhaps, with respect to the exact words, "pacify and 24 pander" or with respect to the notion being raised by 25 someone, at least, at that meeting, that it's not an
461 issue of Native rights, and Natives have been given too 2 much in the past, or something to that effect? 3 A: Yes, because I don't -- I don't 4 recall any of these words, but from that notion, My Park, 5 it was clear throughout the -- one of the themes was that 6 this was a matter of occupancy of a Park, this is not a 7 Native issue. 8 Q: Yes. So you do recall that being 9 raised? 10 A: Yes, I do. 11 Q: That it's not a Native issue? 12 A: Per se. 13 Q: Per se. It shouldn't be regarded as 14 a Native issue; it was more a law and order issue; is 15 that what you understood or -- 16 A: It was more an occupancy in a -- in 17 other words, from the perspective of the MNR as being 18 Park owners, it was that issue. 19 Q: Yes. But that the idea that it might 20 involve Native rights should be downplayed, at least. Is 21 that fair? 22 A: Was not the pre-eminent framework 23 within which it was considered. 24 Q: Thank you. I'm done with that 25 transcript now, thank you.
471 (BRIEF PAUSE) 2 3 Q: Now with respect to your having heard 4 the assertion by Minister Hodgson, Get the fucking 5 Indians out of my Park, you -- you told us this morning 6 in response to some questions from Mr. Klippenstein, at 7 one point you said, It implied nothing to me. 8 But I think you explained further that 9 what you meant was nothing in an operational sense; is 10 that fair to say? 11 A: That is fair to say. 12 Q: It did have -- 13 A: Or in a policy sense. 14 Q: Yes, it had -- had many possible 15 implications, but your evidence was that, in your view, 16 it didn't imply any particular operational consequence; 17 is that fair to say? 18 A: Correct. 19 20 (BRIEF PAUSE) 21 22 Q: And I would put it to you that any 23 statement, The fucking, and then an ethnic group, 24 Indians, Jews, any group, would be a racial slur. 25 Wouldn't you take it that way?
481 A: I've thought long and hard about 2 that. 3 Q: I'm sorry? If -- yes. 4 A: If -- if it was the -- it was the 5 adjectival gerund -- 6 Q: I'm sorry, my hearing's very bad -- 7 A: It was the first word that created 8 that sense of it being offensive. The F-word, if I can 9 say that. 10 Q: Yes. As an adjective attached to an 11 ethnic group is what makes it so offensive, right? 12 A: Well, if it would have been women -- 13 Q: Yes. 14 A: -- and not an ethnic group in this 15 case -- 16 Q: Yes. 17 A: -- it -- it's the juxtaposition of 18 those two (2) words. 19 Q: Yes, it would have been -- 20 A: It was highly -- 21 Q: -- the same with -- 22 A: -- highly inappropriate. 23 Q: Yes. And it's inappropriate if it's 24 attached to what is called in legal terms when we talk 25 about equality rights in the Charter, an identifiable
491 group. In other words, women or a particular racial 2 group or a particular religious group. 3 That's what makes it offensive, 4 particularly, right? 5 A: Yes. 6 Q: I mean, if he said, Out of the 7 fucking Park, well, the Park's are not too discriminated 8 against in general, and we wouldn't have as much concern. 9 Isn't that fair? 10 A: Yes. We appear to have less trouble 11 with inanimate objects. 12 Q: And that would be just as terrible 13 and offensive if it was said in a bar room or anywhere in 14 the world; isn't that fair? 15 A: It was offensive. 16 Q: Now, moving from that remark, that 17 offensive remark, to the question and it is, obviously, a 18 somewhat difficult question as far as boundary lines, but 19 the question of government influence over police 20 operations. 21 Now in that respect, in this context, do 22 you see a problem with government officials telling the 23 OPP that they want people -- the people removed from the 24 Park. 25 Even if they say, How and when to do it is
501 up to you, but saying, We want them removed from the Park 2 before any injunction is granted, conveying that message. 3 Is that a -- a possible problem on the 4 boundary line then? 5 A: Well let me just unpack that sentence 6 of yours, because I don't want to be tied up in some 7 assumptions of yours that I mightn't disagree -- that I 8 mightn't agree with. 9 Q: Yes, please, yes. Thank you. 10 A: So a statement of that kind was made 11 in the presence of two (2) seconded officers -- 12 Q: Yes. 13 A: -- to my office who were not police 14 officers, who were not police -- 15 Q: Yes. 16 A: -- who were not acting in the -- in 17 the chain of command of the OPP. So they were civil 18 servants -- 19 Q: Yes. 20 A: -- in a room with a group of other 21 servants, civil servants. They may have had a particular 22 background and they may have had a particular set of 23 expertise, but they were civil servants like everybody 24 else. 25 Q: Yes.
511 A: And a group of us heard, in this 2 case, a great deal of discussion. I guess, ultimately, 3 the policy question arises: Is a decision to go forward 4 with an injunction a political one and if it is ought -- 5 how ought it to be conveyed? 6 Now, if we turn back to the memorandum 7 which describes the mandate and roles and 8 responsibilities of the Interministerial Committee, it is 9 made plain that the consideration of options for legal -- 10 legal options, including the use of injunction, is deemed 11 to be a matter for which political decision is required. 12 Q: Oh, yes, but excuse me, Dr. Todres. 13 You of course have not been privy to much of the evidence 14 at this Inquiry and there is evidence that there were 15 other times, not to Inspector Fox or Inspector Patrick, 16 other times that a message was conveyed to the OPP, prior 17 to the dining room meeting, that the Government wanted 18 the people out of the Park. Okay? 19 So I understand your -- your concerns with 20 respect to Inspector Fox and Inspector Patrick. So -- 21 A: I see. 22 Q: But -- but forgetting about the route 23 that it might have been conveyed and you don't have to -- 24 you don't have any knowledge as to whether or not it was 25 conveyed, but would it be --
521 COMMISSIONER SIDNEY LINDEN: Are you 2 interrupting -- 3 MR. PETER ROSENTHAL: May I just, to 4 phrase the question -- 5 MS. ANNA PERSCHY: That's right. 6 MR. PETER ROSENTHAL: -- and then we'll 7 hear the objections. 8 COMMISSIONER SIDNEY LINDEN: Yes, perhaps 9 you want to finish the question. 10 MR. PETER ROSENTHAL: Yes, thank you. 11 So my question is: Forgetting about 12 whether or not it was, in fact, conveyed and how it might 13 have been, but do you see that might be a problem in this 14 context with the OPP being requested to remove the people 15 from the Park before any injunction discussion, the 16 request being transmitted to them, Remove -- please 17 remove the people from the Park. 18 How and when you do it is up to you, but 19 please do it? 20 And that's my question and this is the 21 objection. 22 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 23 Perschy? 24 MS. ANNA PERSCHY: My concern -- my 25 concern with this is that the precise words would, of
531 course, be very important, the context would also be very 2 important, and this Witness doesn't have that context. 3 And earlier My Friend referred to the OPP 4 being told to do something and there's no evidence of 5 that. He's now rephrased it slightly differently, but I 6 -- I do think in fairness to this Witness, if he's going 7 -- if he's going to ask questions in this area, the 8 context should be made exceedingly clear because, I mean, 9 this Witness wasn't present for this. 10 I'm not sure what he's referring to, quite 11 frankly. 12 COMMISSIONER SIDNEY LINDEN: I wasn't -- 13 MR. PETER ROSENTHAL: Well, I'm happy to 14 -- again, Mr. Commissioner, I -- time is always a concern 15 but -- 16 COMMISSIONER SIDNEY LINDEN: No, I 17 understand, Mr. -- 18 MR. PETER ROSENTHAL: -- I am -- I am 19 happy to, in fact, read from the transcript of Ms. 20 Hutton's evidence about this and put it exactly in the 21 context of My Friend's client and -- 22 COMMISSIONER SIDNEY LINDEN: Okay. Well, 23 just before you do that -- 24 MR. PETER ROSENTHAL: -- I'd like to do 25 so, if I may.
541 COMMISSIONER SIDNEY LINDEN: Just before 2 you do that, Mr. Sulman, do you have some objection? 3 MR. DOUGLAS SULMAN: No. I think Mr. 4 Rosenthal may have cleared it up. All I was going to ask 5 is let's not play fast and loose with the evidence and 6 suggest that there is, in fact, evidence that someone 7 told the OPP that they wanted the occupiers out of the 8 Park. You can't just say that without then reading in 9 the evidence. 10 COMMISSIONER SIDNEY LINDEN: Yes. 11 MR. DOUGLAS SULMAN: It's unfair to this 12 Witness. I mean it's been implied by Mr. Rosenthal time 13 and time again, but there isn't evidence. 14 COMMISSIONER SIDNEY LINDEN: All right. 15 I understand that. 16 And yes, Mr. Downard...? 17 MR. PETER DOWNARD: The central issue in 18 the Inquiry is -- on -- on this phase of the Inquiry -- 19 is whether the Government exceeded the -- the scope of 20 what it could legitimately do in opposing the occupation 21 and directed the OPP to -- to take operational action. 22 Now, if My Friend is going to be touching 23 upon and making suggestions as to what the evidence is 24 that directly bears on that issue, then he should be 25 absolutely specific in his references. It's -- this is
551 an area where it's particularly important that we do 2 that, in my submission. 3 COMMISSIONER SIDNEY LINDEN: Yes. 4 MR. PETER ROSENTHAL: Mr. Commissioner, 5 I've indicated I'm happy to be as specific as possible. 6 COMMISSIONER SIDNEY LINDEN: I think -- 7 MR. PETER ROSENTHAL: Please, if I need a 8 little extra time because of this though -- 9 COMMISSIONER SIDNEY LINDEN: Well -- 10 MR. PETER ROSENTHAL: -- please take that 11 into account. 12 COMMISSIONER SIDNEY LINDEN: We always 13 do. 14 15 CONTINUED BY MR. PETER ROSENTHAL: 16 Q: But I'm going to be as expeditious as 17 I can and with your permission now, and may I ask that 18 you listen please, Dr. Todres. I will give the evidence 19 of Debbie Hutton in these proceedings on November 23rd 20 that pertains to this point. 21 And it's beginning at page 10 of November 22 23rd. According to the notes you appeared to respond or 23 indicate shortly afterward with a question: 24 "Has MNR asked OPP to remove them?" 25 And then to state:
561 "They could be formally requested to do 2 so but how and when they do it is up to 3 them. Could have that as a 4 communication message." 5 That was the end of the quote and then Ms. 6 Hutton was asked: 7 "Now is that in accordance with what 8 you would have said approximately at 9 that juncture?" 10 And she answered: 11 "It's certainly consistent with my 12 understanding of where we were at that 13 point in time, yes." 14 And then question: 15 "Now by a communication message you 16 meant something that would be put out 17 by Government people to the media? 18 A: Correct. Generally to the public 19 but usually through the media. 20 Q: I don't think to the public and 21 through the media. 22 A: Yes. I don't think we were 23 discussing the tactic but I think it's 24 safe to assume that media would at 25 least be one of those venues --
571 vehicles. 2 Q: Okay." 3 And then underneath that it says: 4 "MNR has formally asked that they 5 remove them. 6 I believe you told us yesterday that 7 that was your understanding that they 8 had made that request indeed; is that 9 correct? 10 A: I don't recall that we got an 11 answer back. I think someone was going 12 to check and there was a sense that 13 we'd make sure it had been done at 14 least. I don't recall having the 15 answer back at that stage. 16 Q: Yes. I believe that that may have 17 been added afterward to these notes. 18 A: Okay. 19 Q: Indicating, but do. 20 A: That would be consistent that in-- 21 Q: But I believe you told us 22 yesterday you got an understanding at 23 some point. 24 A: Right. 25 Q: That, in fact, what you wanted MNR
581 to do had been done. That they had 2 made that formal request of the OPP. 3 A: Yeah. 4 Q: Is that correct? 5 A: I believe that's correct, yes." 6 MR. PETER ROSENTHAL: Now I can read ad 7 nauseam, Mr. Commissioner but -- 8 COMMISSIONER SIDNEY LINDEN: All right. 9 MR. PETER ROSENTHAL: With respect I 10 believe that the record will show that I put the question 11 very fairly to begin with. Now may I then ask the 12 question? 13 COMMISSIONER SIDNEY LINDEN: You've now 14 read the evidence and now ask the question, yes. 15 MR. PETER ROSENTHAL: Yes. 16 17 CONTINUED BY MR. PETER ROSENTHAL: 18 Q: Now my question, Dr. Todres, sorry 19 for all this but. And you, of course, don't have any 20 knowledge as to what was actually done, whether they 21 really did communicate or not? And that's not my 22 question to you. I don't -- I want you to answer based 23 on your knowledge and experience only. 24 The question: Would -- well I'm going to 25 have two (2) questions related to this.
591 The first one is: In your view, is there 2 a danger that it's going over the line for, in these 3 circumstances, MNR officials to request that the OPP 4 remove people from the Park, prior to any injunction 5 application, to make that request although saying to 6 them, how and when you do it is up to you. 7 Is that a potential problem -- 8 COMMISSIONER SIDNEY LINDEN: Do you want 9 to stop there? That's the question? 10 Yes, Ms. Twohig...? 11 OBJ MS. KIM TWOHIG: I object on the basis 12 that this is not an appropriate question for Dr. Todres. 13 Tt did not involve her Ministry, she was not involved in 14 any of the discussions about that and really knows 15 nothing about it. And is asked, now, outside her area of 16 expertise, to -- to comment on that. 17 It's not fair to her and it's not an 18 appropriate question, in my submission. 19 MR. PETER ROSENTHAL: With great respect, 20 Mr. Commissioner, much of her testimony over the last day 21 or two has been on this boundary line. And she's been 22 asked by many other counsel questions about it. And 23 she's volunteered a lot of evidence about it and spoke in 24 great detail about it. 25 And I -- I'm now putting this concrete
601 aspect to her and it's entirely relevant and entirely 2 within her expertise. 3 MS. KIM TWOHIG: The boundary line we've 4 been talking about, as I understand it, has to do with 5 communications by seconded OPP officers acting as civil 6 servants. Not with respect to a Ministry making a 7 request as landowner to the local OPP. 8 I think those are two (2) completely 9 different issues. 10 MR. PETER ROSENTHAL: With respect, Mr. 11 Commissioner, they're not completely different. They're 12 obviously related and we've talked about both. 13 COMMISSIONER SIDNEY LINDEN: I'm not 14 sure. Ms. Perschy, do you have something you want so 15 say? I'm not sure where we are with this. 16 MS. ANNA PERSCHY: Well, one issue that I 17 had was that with respect to the references in the 18 transcript, My Friend didn't -- didn't complete this 19 portion. There are some additional sentences that are 20 quite important in terms of the testimony given by Ms. 21 Hutton with respect to what was her understanding. 22 That was my first point, so the full 23 context hasn't been put forward, 'cause the timing of -- 24 of this request is an issue and this witness obviously 25 doesn't know any of the facts.
611 The second concern that I have is that Mr. 2 Rosenthal previously was making some references to the 3 media and I'm not quite sure what his -- why he needed to 4 read this entire portion with respect to the references 5 to the media, and then talk about the MNR officials. 6 I'm not sure if he's leading with some 7 question with respect to the media, 'cause on that point 8 the evidence is certainly not clear and I just want to 9 make that observation as well. 10 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 11 Downard...? 12 MR. PETER DOWNARD: Maybe I can just help 13 a little bit. We're talking about a situation where Mr. 14 Hutchison, the government lawyer, is in the meeting. He 15 gives legal advice as to what are the appropriate steps 16 that may be taken. 17 And I take My Friend's question as being 18 one to this witness saying, Well, would that cause you 19 concern, does that cross a line? 20 And clearly this witness can't second 21 guess the legal advice; she doesn't have the legal 22 expertise. But it would be, in principle I think, 23 probably appropriate to say, well, would following Mr. 24 Hutchinson's advice violate, say, a protocol that you 25 have described.
621 But I think that's about as far as you can 2 go. 3 MR. PETER ROSENTHAL: Well -- 4 COMMISSIONER SIDNEY LINDEN: Do you have 5 anything you wish to say in this, Mr. Worme, before I -- 6 MR. DONALD WORME: Only I think that the 7 question is appropriate. I think Dr. Todres can answer 8 the question. 9 COMMISSIONER SIDNEY LINDEN: I'm sorry, 10 you think it's appropriate -- 11 MR. DONALD WORME: Yes, I do, sir. 12 COMMISSIONER SIDNEY LINDEN: And she can 13 answer it, right? 14 MR. DONALD WORME: Well, I mean, she -- 15 you know, this is not just any landowner, it's actually 16 the government that she's speaking about. This witness 17 is the buffer between the government and -- and so I 18 think it's an area that she can answer. 19 MS. KIM TWOHIG: I think there's a great 20 deal of confusion about buffers. We're talking about 21 buffers in terms of an -- a First Nations liaison officer 22 seconded to the Ministry of the Solicitor General. 23 That's completely different from what 24 communications may take place between government 25 officials and the police in the normal course of
631 business, such as in the capacity of landowner making a 2 request within the legal advice that's been given, and 3 that's not something that the First Nations liaison 4 officers would have been involved in, in any way. 5 That wasn't part of their role. 6 COMMISSIONER SIDNEY LINDEN: I think 7 we're making this much too complicated. I think -- 8 MR. PETER ROSENTHAL: Yeah, well I -- 9 it's been made complicated by My Friends' objections and 10 I would point out that -- 11 COMMISSIONER SIDNEY LINDEN: Well -- 12 MR. PETER ROSENTHAL: -- they first 13 objected that I didn't provide the evidence -- 14 COMMISSIONER SIDNEY LINDEN: Yes, I -- 15 MR. PETER ROSENTHAL: And then the 16 evidence is clear and they knew it, I would suggest -- 17 COMMISSIONER SIDNEY LINDEN: Well -- 18 MR. PETER ROSENTHAL: And it's clear and 19 I read it clearly. 20 COMMISSIONER SIDNEY LINDEN: Yes. 21 MR. PETER ROSENTHAL: And then they rise 22 with another round of objections. 23 COMMISSIONER SIDNEY LINDEN: Okay. 24 MR. PETER ROSENTHAL: And yesterday, Mr. 25 Beaubien's counsel asked this witness much about, for
641 example, would it be proper in certain vague general 2 circumstances for an MPP to communicate to police and so 3 on. 4 And there was no objection at that point. 5 COMMISSIONER SIDNEY LINDEN: Well, no. 6 MR. PETER ROSENTHAL: And so I really do 7 not think there's any basis whatsoever to any objection 8 and I would request that Dr. Todres be allowed to answer. 9 COMMISSIONER SIDNEY LINDEN: Would you 10 try to frame a question now, having heard what we've just 11 heard, and put the question -- 12 MR. PETER ROSENTHAL: Yes. 13 COMMISSIONER SIDNEY LINDEN: -- to the 14 witness in a manner that she might be able to answer it 15 because I think if you ask a question in a manner, I 16 think it 17 is a proper question, depending -- 18 MR. PETER ROSENTHAL: Okay. 19 COMMISSIONER SIDNEY LINDEN: -- on how 20 it's asked. So let's see -- 21 MR. PETER ROSENTHAL: Thank you, and I -- 22 COMMISSIONER SIDNEY LINDEN: -- and move 23 on. 24 MR. PETER ROSENTHAL: -- do believe that 25 my previous phrasing was proper, but I'll try to make it
651 more clear -- 2 COMMISSIONER SIDNEY LINDEN: Yes. 3 MR. PETER ROSENTHAL: More clearly 4 proper, one might say. 5 COMMISSIONER SIDNEY LINDEN: Well -- 6 MR. PETER ROSENTHAL: Now -- 7 COMMISSIONER SIDNEY LINDEN: -- the 8 danger is, if you don't refer to the transcript then it's 9 not accurate, and if you do, you don't refer to enough. 10 So I'm saying if you try to put the 11 question without reference to any more of the transcript 12 than is necessary, to make it clear. 13 MR. PETER ROSENTHAL: That's what I've 14 tried to do at the beginning, but I shall try again, sir. 15 COMMISSIONER SIDNEY LINDEN: But to give 16 her enough context so she can answer the question. 17 MR. PETER ROSENTHAL: Oh, certainly. 18 COMMISSIONER SIDNEY LINDEN: Let's see 19 how it goes. 20 21 CONTINUED BY MR. PETER ROSENTHAL: 22 Q: So, sorry, Dr. Todres, for all the 23 side discussion and I would respectfully request that you 24 not concern yourself with the legalities as to objections 25 to questions, but just think about the question itself
661 and what I'm asking you. 2 Given your rather deep understanding as 3 you've told us about the necessity to draw this line 4 between government and police and recognising that it can 5 be, sometimes, a difficult line to draw as many lines 6 are. 7 Do you see a problem if a representative 8 of the Ministry of Natural Resources were to inform the 9 police prior to the injunction application, that we want 10 the people out of the Park, although how and when you do 11 it is up to you. 12 COMMISSIONER SIDNEY LINDEN: Stop there. 13 Now, that's a question that I think -- 14 MR. PETER ROSENTHAL: Yes. 15 COMMISSIONER SIDNEY LINDEN: -- this 16 Witness can answer. 17 MR. PETER ROSENTHAL: Thank you. 18 19 CONTINUED BY MR. PETER ROSENTHAL: 20 Q: So can you, Dr. Todres, and if so 21 would you please do so? 22 A: What I would prefer to do is -- well, 23 I'm -- I'm going to try answer this as though this were a 24 policy question if you don't mind -- 25 Q: Yes.
671 A: -- in the abstract and not in this -- 2 Q: Yes. 3 A: -- particular case and if I were 4 concerned as the Commissioner might be in phase 2 about 5 what arises from issues in -- in phase 1. So if I -- if 6 I can try that -- 7 Q: Yes, thank you. 8 A: -- we'll see, Mr. Rosenthal, if that 9 satisfies you. 10 There are two (2) or three (3) questions 11 that arise with respect to the abutment of a variety of 12 ministries relative to the Solicitor General. Health is 13 not one (1). You can name -- you can imagine. There's a 14 number of ministries that in fact have very little 15 business to do with the Solicitor General. There are a 16 number who do and one (1) of which is the landowner of 17 the province, MNR. 18 Point number 2. If I were the Director of 19 Legal in MNR and I was dealing with a particular 20 occupation I -- of a park -- I would have -- and I don't 21 know what they are, but I would have a series of legal 22 constructs that would inform me about what it is that we 23 can do and what we can't do. 24 And I would be operating in that, still 25 understanding that at the end of the day instruction to
681 the OPP rests solely and squarely within the chain of 2 command within the OPP and that no one in government is - 3 - is -- has the mandate to direct the OPP to do anything. 4 Q: Yes. 5 A: Point number 3 however with respect 6 to what I might be looking at if I were -- if I were 7 extrapolating this into a policy issue, there is a I -- I 8 won't call it a problem, let's just say that it has been 9 identified for some time within some civil servant 10 circles that there's a function, an enforcement function, 11 across the province outside of the OPP and municipal 12 police like the officer -- the staff in MNR. 13 I've forgotten what their job tab, ranks 14 and titles are and I can't recall right now whether they 15 actually have the right to bear guns. I think some of 16 them do. 17 That general issue about how they abut, 18 what they do, what their relationship is, the 19 instructions, what happens on the ground has been one 20 that requires a great deal of thought. So I would just 21 table that and say that is something that needs to be 22 thought through; that was relevant in this particular 23 case. 24 And number 4 I would say that information 25 going back and forth is by of necessity required. It
691 would have been impossible for the Deputy Minister or the 2 Minister of Natural Resources to feel that they were 3 exercising their -- they were performing their roles in 4 not being under -- not being up-to-date on exactly what 5 was happening on the ground as to what the specific words 6 and so on. 7 It would have been very clear to all of us 8 that I wouldn't know any of that. 9 Q: Yes. 10 A: So within all of that I think we have 11 to be careful about -- I guess -- and my fifth point is 12 that from a seasoned incident commander's point of view a 13 lot of discussion from a lot of people who are interested 14 but irrelevant in the chain of command are interesting 15 bits of information but not directions. 16 Q: Yes. Now, thank you. You touched on 17 a number of surrounding issues and I won't recall them 18 all, but with respect to the last one in particular what 19 the Incident Commander might do with such information. 20 You would agree that whether or not a 21 person crosses the line in communicating with the police 22 is independent of what the Incident Commander would do. 23 Even if the Incident Commander is not going to act on it, 24 it might be improper to cross the line. 25 Would you agree with that?
701 A: Yes, I would. 2 Q: Yes. So as far as that issue let's 3 leave that off the table for this particular question. 4 A: Okay. 5 Q: Now, you also indicated that you 6 understood that MNR personnel might have some enforcement 7 possibilities of their own and -- and I gather some of -- 8 some of the MNR employees might be for example special 9 constables or have some special authority? 10 A: They're not special constables but I 11 -- I just remember from looking at this in -- in other 12 arenas and in labour relations where we had -- I'm just 13 flagging it. It's not relevant -- 14 Q: Yes. 15 A: -- to the particular management of 16 the issue at -- at Ipperwash per se, but there are groups 17 of -- of enforcement officials in a variety of ministries 18 and at one(1) -- for example, the enforcement officers in 19 the Ministry of Labour. 20 And there has been talk from time to time 21 about bringing them all altogether, under a -- I hesitate 22 to use the word, because it has Orwellian sounds to it, 23 but an enforcement Secretariat or something. 24 But the point of it is not to come up with 25 a crazy name. The point of it is that if there are like
711 functions where there are a like set of rules that have 2 to do not only with the management of difficult 3 situations, crowd control, whatever they may be, where 4 there is a potential for loss of life or danger to the 5 public, and that there are a set of circumscribed rules 6 around which they operate and what the relationship ought 7 to be with policing, formal policing -- 8 Q: Yes. 9 A: -- then mightn't it be a good idea to 10 think that one through and not relegate those particular 11 functions to the responsibility? 12 'Cause, you know, when you think about it 13 from MNR's perspective, they have staff who are experts 14 on fish hatchery -- fish hatcheries -- 15 Q: Yes. 16 A: -- as well as those kinds of folks, 17 and each of those areas have a very particular set of 18 expertise. 19 Q: Yes. And I do appreciate your 20 potential concerns, and especially you haven't been here 21 for the evidence and you don't know the fuller context. 22 But, so in spite of -- if there were no 23 such protocols involved, and it was not a question of a 24 joint operation of some kind according to some protocol 25 as you seem to be suggesting might exist in some
721 circumstances but if it was merely a request that the OPP 2 remove the people from the Park. 3 Do you agree that that might be 4 problematic in crossing the line between giving 5 operational as opposed to policy direction to the OPP? 6 A: Well, I'm not entirely certain. I 7 could actually take that two (2) ways. If I were the 8 owner of the Park, and again we're getting outside what 9 it is that I know I -- no one has ever appointed me in a 10 research -- in what we call the resource ministries, so I 11 know nothing about -- I know very little about them 12 except human resources issues and so on. 13 I could make the case that a land owner 14 has the right to indicate its policy preference, and its 15 policy preference is this is our Park, it has been our 16 Park, we wish it to be the Park, and that is our long 17 term objective. 18 So I could view that quite comfortably in 19 -- in not at all related to an operational matter in the 20 slightest, that it is the articulation of a ministerial 21 policy consideration quite removed from operation. 22 Q: Well, I -- 23 A: So I'm of two (2) minds. I'm not 24 absolutely certain, again, absent any knowledge of that 25 ministry, that that in fact would have constituted any
731 language resembling an operational instruction from the 2 perspective of a landowner and I -- and I fear saying any 3 more, really I'm ignorant about that Ministry. 4 Q: May I put the following to you, to 5 have you consider along with your most recent answer and 6 then put then, perhaps I'll move on if it doesn't assist 7 you. 8 But the Trespass to Property Act states 9 that one of the ways one can contravene that Act, is by 10 failing to leave the premises when directed by the 11 occupier or owner or occupier. 12 So in this case, in other words, if MNR 13 were to, as the owner or occupier, would direct people to 14 leave and they failed to do, that would contravene the 15 Trespass Act. 16 Just take it from me that that's a fact, 17 okay? 18 Now, given that, would you agree that if 19 that is indeed a fact, that it might be appropriate for 20 MNR to direct the occupiers to leave and then perhaps 21 inform the police that they have directed them to leave, 22 so the police would then have the basis from the property 23 owner's point of view of laying that charge, should they 24 wish to do. 25 But it would be perhaps crossing the line
741 to say, we're asking you to remove them. 2 Can I get your opinion about that possible 3 line drawing? 4 A: Well, I -- I understood your point 5 about trespass and I do not know whether they pursued 6 that route or not; that would have -- are you suggesting 7 then that the trespass route was the way in which the 8 Ministry of Natural Resources could have expressed its 9 desire as landowner to take action directly? 10 Q: That would certainly be one possible 11 route and that would be something that the Trespass Act 12 provides the owner or occupier the possibility of doing, 13 directing a person or persons to leave their land. 14 A: Well, I'm just going to leave on an 15 ambivalent note, because I can see how it -- 16 Q: Yes. 17 A: -- could be both interpreted as 18 operational and non-operational as I -- 19 Q: Okay. 20 A: -- as I indicated earlier. 21 Q: Thank you. And I -- I do appreciate 22 your consideration of this and perhaps this does 23 emphasize what I suggested before that the line may not 24 always be very easy to draw. 25 Is that fair?
751 A: Yes. 2 Q: Now, what about -- 3 COMMISSIONER SIDNEY LINDEN: I think I 4 want to take a break pretty soon -- 5 MR. PETER ROSENTHAL: Oh. 6 COMMISSIONER SIDNEY LINDEN: -- Mr. 7 Rosenthal, but how much longer do you think you'll be and 8 we can decide whether to take the break now or in a few 9 minutes? 10 MR. PETER ROSENTHAL: Certainly longer 11 than -- I'm sorry I have to consider the -- I have to 12 look at the rest, but certainly longer than you would 13 want to wait for a break if you're thinking of a break 14 now, sir. 15 COMMISSIONER SIDNEY LINDEN: Well... 16 MR. PETER ROSENTHAL: So I'm happy to 17 break now or -- or ten (10) minutes from now, whatever 18 would be your pleasure, sir. 19 COMMISSIONER SIDNEY LINDEN: If we were 20 to wait ten (10) minutes would there be a chance that 21 you'd be finished? 22 MR. PETER ROSENTHAL: I don't think so, 23 sir. 24 COMMISSIONER SIDNEY LINDEN: Well then 25 let's a break now.
761 MR. PETER ROSENTHAL: Thank you. 2 THE REGISTRAR: This Inquiry will recess 3 for fifteen (15) minutes. 4 5 --- Upon recessing at 10:18 a.m. 6 --- Upon resuming at 10:38 a.m. 7 8 THE REGISTRAR: This Inquiry is now 9 resumed, please be seated. 10 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 11 Rosenthal. 12 MR. PETER ROSENTHAL: Thank you. 13 14 CONTINUED BY MR. PETER ROSENTHAL: 15 Q: Dr. Todres, some of these may be 16 difficult questions and I -- I think we all understand 17 it. I'm not trying to either test you or in any way put 18 you on the spot it's just that you do have expertise that 19 might be very useful in deciding about whether what was 20 done was appropriate or not and in deciding what 21 guidelines if any should be enacted in future. So that - 22 - that's why I continue to put you in this difficult 23 position. 24 But maybe some of the questions are not so 25 hard to answer.
771 Now what about the following. What about 2 communicating in a public way through the media the 3 statement that the OPP have been asked to remove people 4 from the Park? 5 And again we're talking about pre the 6 injunction. Do you see a problem with that and I should 7 indicate that Ms. Hutton indicated that putting out that 8 communication message would have created an expectation 9 on the part of the public that the OPP would indeed 10 remove them. 11 She agreed to that. 12 Now do you see a problem with the 13 Government putting out a communication message that would 14 create an expectation on the part of the public that the 15 OPP would remove people from the Park? 16 COMMISSIONER SIDNEY LINDEN: I think Ms. 17 Todres is hesitating because Ms. Perschy's on her feet. 18 MS. ANNA PERSCHY: My only concern of 19 this is that I don't believer there's any -- there's been 20 any evidence that such a message actually was 21 communicated to the public and I'm concerned we're 22 dealing with something that's purely hypothetical at this 23 time. 24 So I'm sure how helpful it is. 25 COMMISSIONER SIDNEY LINDEN: I'm not --
781 yes, Mr. Downard? 2 I don't know. I assume you're quoting 3 from the evidence -- 4 MR. PETER ROSENTHAL: I quoted precisely 5 from the transcript as to whether -- I do believe we 6 don't yet have evidence of what communications there 7 were. I believe we can anticipate that. 8 COMMISSIONER SIDNEY LINDEN: What 9 communication? 10 MR. PETER ROSENTHAL: What actual 11 messages were communicated in the media. But that's a 12 different matter. 13 COMMISSIONER SIDNEY LINDEN: No. That's 14 right. No. 15 MR. PETER DOWNARD: We have the evidence 16 of the message to the public following the September 5th 17 meeting which is Minister Hodgson's media conference 18 where -- where he says we are considering various options 19 and so on. 20 MR. PETER ROSENTHAL: Okay. Well, thank 21 you, we do have it. But in any event I don't understand 22 there's any room for objections here, sir. And I would 23 like to be allowed to proceed. 24 COMMISSIONER SIDNEY LINDEN: Well I 25 wasn't sure there was either. But do you want to start
791 again then? 2 3 CONTINUED BY MR. PETER ROSENTHAL: 4 Q: So sorry, Dr. Todres. I would 5 suggest to you it's easier to answer this question. I 6 would suggest to you it's clearly improper for the 7 Government to put out a communication message that would 8 create the expectation that the OPP would remove people 9 from the Park. 10 That really improperly crosses the line in 11 my respectful submission. 12 What about your evidence, Dr. Todres? 13 A: Let me begin by saying that that 14 would be something that the Communications Department of 15 the Solicitor General would never do. 16 Q: Yes. I -- I -- 17 A: And which a Minister of the Solicitor 18 General would never endorse. 19 Q: Yes. 20 A: And would simply not countenance. 21 Q: And in particular, you were not 22 involved in anything like that at the time of Ipperwash? 23 You -- you the Ministry of the Solicitor General as far 24 as you know, right? 25 A: That's right.
801 Q: But would you agree that it's clearly 2 improper for Government to put out that message whether 3 it's through the Solicitor General or through any other 4 aspect of Government? 5 A: Yes. 6 Q: Thank you. Now if we could turn 7 please to Tab 16 of your -- of the Commission documents. 8 9 (BRIEF PAUSE) 10 11 Q: At Tab 16 as you've explained to us, 12 is a fax cover sheet -- sorry it's a routing memo. It's 13 Exhibit P-588 to these proceedings and Inquiry Document 14 2000425. 15 And it's a routing memo for the letter 16 from Marcel Beaubien addressed to the Attorney General 17 which we find at Tab 14 of your materials which is 18 Exhibit P-534 of these proceedings and Inquiry Document 19 1000918. 20 Is that correct? 21 A: Yes. 22 Q: So I have a couple of questions about 23 this. Now you -- you indicated that the additional 24 instructions remarks there were no response necessary at 25 this time and so you presumed that that's what happened.
811 There wasn't any response at that time? 2 A: Correct. 3 Q: And this is signed by a Linda Lane. 4 I'm not sure if you told us who she is or was. 5 A: I don't recall who she may be. She 6 may have been the Manager of the or a direct report to 7 Mike Zimmerman. I don't know -- I don't recall the name. 8 Q: I see. And you can't tell us then 9 who gave that instruction, who made that decision that 10 there was no response necessary? 11 A: Well the -- let me begin by saying it 12 is not the custom of any Minister's office to reply to a 13 c.c. -- 14 Q: Yes. 15 A: -- or to an FYI. So there's not a 16 great deal of deliberation that's required by the Issue 17 Management team but it required sign-off to -- to the 18 people indicated and Linda Lane may have had -- I -- I 19 don't want to speculate. 20 Q: No, no. 21 A: The point is it's a -- it's a cut and 22 dry matter. It's an FYI with no action to be taken. 23 Q: Thank you. No, we do appreciate your 24 refraining from speculating unless you have a -- a good 25 idea as to what might have happened.
821 A: Unless it's a good speculation? 2 Q: But -- but if -- if you don't, then 3 certainly please don't. 4 Now, and therefore you would not know who 5 decided to put in the column, Assignment Charge-Out to T. 6 O'Grady, right? 7 You don't know who made that decision? 8 A: No. 9 Q: And you also don't know who made the 10 decision reflected in the lower left portion of this 11 sheet 12 copy of Charge-Out to -- to send copies of the charge-out 13 to Ms. Taylor and Inspector Fox? 14 A: No, but the common usage would be 15 that if there is a c.c file that that unit is skilled 16 enough to know and it would have a list of the divisions 17 as I described the other day with my ministry of who 18 ought to have been informed of this. 19 Q: Yes. 20 A: And so as a matter of practice these 21 would have been the right people to -- to send them out 22 to. 23 Q: I see. 24 A: And there would have been some sort 25 of, if not written then understood protocol about how to
831 do that. 2 Q: So as a matter -- a matter of 3 practice we can see that the people who would have been 4 given copies of this document, rather the document at Tab 5 14, the -- the letter, were Commissioner -- included 6 Commissioner O'Grady, Ms. Barbara Taylor, and Inspector 7 Ron Fox. 8 Is that correct? 9 A: Actually I am confused by that. It's 10 not at all clear that I could reach that conclusion. The 11 way I read the -- this note was that as this person was 12 going through the paper it was assigned to Tom O'Grady 13 which would have implied that there was a response 14 required and I think that in the additional remarks it 15 became clear that no response was necessary. 16 So if I were reading this again after the 17 fact I think it was a mistaken tick-off of Tom O'Grady's 18 name and I'm not -- I'm not confident that he would have 19 received it given that it -- there was not a charge-out, 20 given that the name was not included at the bottom. 21 Q: Yes. Well, with respect -- 22 A: So that's all I can say. 23 Q: You -- you are speculating. Is that 24 correct? 25 A: Well, I'm only reading the -- the --
841 Q: Yes. 2 A: -- important paragraph for a 3 bureaucrat is not the above, it's the instructions and 4 remarks. 5 Q: Yes. 6 A: That's the relevant piece. 7 Q: No, I -- I appreciate that, but I 8 would suggest you might want to take into account the 9 last part of that additional information: 10 "No response necessary at this time. 11 If response should be necessary at a 12 later time you will be advised." 13 So it appears that this is advising 14 someone if there is to be a response you know file this 15 for now. If there is to be response you're the one to do 16 it and we'll tell you, right? 17 A: Yes. 18 Q: And that someone must have been 19 Commissioner O'Grady? 20 A: I don't want to speculate. 21 Q: Okay. Thank you. 22 But -- but you do agree that it was 23 directed to someone indicating -- implying file this for 24 now if you have to actually do anything, we'll advise 25 you?
851 A: Correct. 2 Q: And is there any indication on this 3 sheet of any other person that could have been other then 4 Commissioner O'Grady? 5 A: All I'm going to say is a routing 6 memo would not be a memo that I would normally be 7 familiar with. 8 Q: I see. 9 A: Nor would I parse a routing memo so I 10 have no more comment on that. 11 Q: Okay. Thank you. Now, at Tab 23 of 12 your document brief there is another letter from Marcel 13 Beaubien, this one dated August 14, 1995. And it's 14 Inquiry Document 1012239. 15 MR. PETER ROSENTHAL: I'm sorry, Mr. 16 Commissioner, I don't have a record of the exhibit 17 number. I don't know if one (1) of My Friends can assist 18 me. 19 THE REGISTRAR: P-418. 20 MR. PETER ROSENTHAL: I'm told it's 21 Exhibit 418 in these proceedings. Thank you. 22 23 CONTINUED BY MR. PETER ROSENTHAL: 24 Q: Now, I'm not going to ask you about 25 the detailed content of this, but Mr. Worme put to you
861 that Inspector Fox testified that he was assigned the 2 responsibility of responding to this and you indicated 3 that you were surprised at that. 4 Is that correct? 5 A: Well, it's not a direct -- we would 6 have followed the same established procedure. The 7 response would have come from Mr. Harnick's office. 8 Q: Yes. So the reason that you were 9 surprised, you're indicating, was because it was directed 10 to the Attorney General's Ministry, not to your 11 Ministry -- 12 A: That's right. 13 Q: And the general practice, as you 14 understood it, was that if you're just a carbon copy, you 15 don't respond -- 16 A: That's correct. 17 Q: -- the addressee responds, is that 18 correct? 19 A: That's correct. 20 Q: But also would you be concerned -- 21 perhaps I should give you a moment to review the content. 22 23 (BRIEF PAUSE) 24 25 A: Yes.
871 (BRIEF PAUSE) 2 3 Q: But would you be concerned, first 4 off, about the possibility that's alluded to that's 5 stated as a fact, that: 6 "The representatives from the OPP and 7 myself [Mr. Beaubien] have reached the 8 following consensus..." 9 That they reached any kind of agreement 10 about operational matters would concern you, would that 11 not? 12 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 13 Sulman...? 14 MR. DOUGLAS SULMAN: Mr. -- excuse me. 15 Mr. Commissioner, Mr. Worme asked questions with regard 16 to this letter two (2) days ago. I asked yesterday. 17 It's clear in both those questions and 18 responses that at the relevant times, Dr. Todres didn't 19 see these letters. 20 COMMISSIONER SIDNEY LINDEN: I thought 21 that was the case. 22 MR. DOUGLAS SULMAN: It's very abundantly 23 clear and anything that she says on these letters now is 24 mere speculation and ten (10) years after the fact. 25 And it's of no value and it's speculative,
881 sir. 2 COMMISSIONER SIDNEY LINDEN: Mr. 3 Rosenthal...? 4 MR. PETER ROSENTHAL: Yes, I'm not asking 5 her to speculate about the letter; I'm not asking her 6 what happened to it at the time. I'm asking her along 7 the lines of the other questions that have been asked 8 her, including by Mr. Sulman -- 9 COMMISSIONER SIDNEY LINDEN: Yes. 10 MR. PETER ROSENTHAL: -- to use her 11 expertise and assist us as to where this fits in the line 12 of crossing the line between police and government. 13 And Mr. Sulman asked some very general 14 questions which he put in a way that, in my respectful 15 submission, was not very helpful along these lines, but I 16 wish to ask some more particulars and be, in my 17 respectful submission, more useful. 18 COMMISSIONER SIDNEY LINDEN: She has -- 19 MR. PETER ROSENTHAL: But in any event, 20 there's nothing improper about the question. 21 COMMISSIONER SIDNEY LINDEN: She hadn't 22 seen the letter, we've -- 23 MR. PETER ROSENTHAL: No, I appreciate 24 that. 25 COMMISSIONER SIDNEY LINDEN: -- all
891 agreed to that and this is the first time in the context 2 of this Inquiry that's she's -- 3 MR. PETER ROSENTHAL: Yes. 4 COMMISSIONER SIDNEY LINDEN: -- reading 5 it and you're asking her about a specific sentence in it 6 to see if she -- 7 MR. PETER ROSENTHAL: Yes. 8 COMMISSIONER SIDNEY LINDEN: -- has any 9 comment on it. 10 MR. PETER ROSENTHAL: Yes. 11 COMMISSIONER SIDNEY LINDEN: On the 12 propriety of it. 13 MR. PETER ROSENTHAL: Yes. 14 COMMISSIONER SIDNEY LINDEN: All right, 15 go ahead. 16 17 CONTINUED BY MR. PETER ROSENTHAL: 18 Q: And again, Dr. Todres, I -- it's not 19 to put you on the spot in any way, it's to have the 20 benefit if we can, of your expertise in guiding -- 21 guiding us on these matters. 22 So I -- I take it you would be concerned 23 about a line being crossed if there was a consensus 24 reached between an MPP and OPP about how things should 25 proceed; would that give you concern?
901 COMMISSIONER SIDNEY LINDEN: She's 2 already, in effect, answered that question in a general 3 way. 4 MR. PETER ROSENTHAL: Yes, in a general 5 way. 6 COMMISSIONER SIDNEY LINDEN: On a prior 7 occasion. You're asking in a specific in the context of 8 the words in this letter. 9 MR. PETER ROSENTHAL: Well, I'm willing 10 to make it more hypothetical. 11 COMMISSIONER SIDNEY LINDEN: Well, then 12 you don't need the letter. 13 MR. PETER ROSENTHAL: In the situation -- 14 COMMISSIONER SIDNEY LINDEN: Then you 15 don't need the letter. 16 MR. PETER ROSENTHAL: And then we don't 17 need the letter. 18 COMMISSIONER SIDNEY LINDEN: Then ask the 19 question in a general way and perhaps -- 20 MR. PETER ROSENTHAL: Well -- 21 COMMISSIONER SIDNEY LINDEN: But the 22 question, in a general way, was asked and she did answer 23 it. 24 MR. PETER ROSENTHAL: Well -- 25 MR. DONALD WORME: If I may, just for a--
911 COMMISSIONER SIDNEY LINDEN: Yes. 2 MR. DONALD WORME: -- moment. In fact, 3 the evidence of Inspector Carson was that there was no 4 consensus, there -- 5 COMMISSIONER SIDNEY LINDEN: Yes, no -- 6 MR. DONALD WORME: -- was no agreement. 7 COMMISSIONER SIDNEY LINDEN: We're aware 8 of that, and I don't think that's what Mr. Rosenthal is 9 getting at. 10 MR. PETER ROSENTHAL: Exactly, sir. 11 COMMISSIONER SIDNEY LINDEN: Yes, so -- 12 13 CONTINUED BY MR. PETER ROSENTHAL: 14 Q: And with respect, any way of phrasing 15 the question that I have suggested is, in my respectful 16 submission, appropriate and I would like the benefit of 17 Dr. Todres' answer and either we can view it as a 18 hypothetical, if there's an incident going on, and there 19 is a purported consensus reached between an MPP and OPP 20 about dealing with it, would that cause you concern? 21 A: Yes, it would. 22 Q: Or you can say specifically in this 23 kind -- okay, sorry. Sorry, I was over talking your 24 answer. So in general, that would concern you, is what 25 you've --
921 A: Yes. 2 Q: -- told us, is that correct? 3 COMMISSIONER SIDNEY LINDEN: The answer 4 is yes. 5 MR. PETER ROSENTHAL: Thank you. 6 7 CONTINUED BY MR. PETER ROSENTHAL: 8 Q: And that certainly crosses the line, 9 wherever the line may be drawn, that would cross it, 10 right? 11 A: Yes. 12 Q: Yeah, sorry, you're shaking your 13 head -- 14 A: Correct. 15 Q: The transcript won't record that, but 16 you said yes, right? 17 Now... 18 19 (BRIEF PAUSE) 20 21 Q: Counsel for Mr. Beaubien asked you 22 some questions about this line in connection with what he 23 described as a lowly backbencher. 24 Now -- and you told us that as far as you 25 understood there was no statutory limitations on what an
931 MPP could say to the police. There wasn't any statute 2 that -- 3 A: Not that I'm aware of. 4 Q: -- that you're aware of. And I 5 gather from the tenure of your evidence that you would 6 think it might be useful if there was some regulation, 7 statute, something that specified some guidelines at 8 least approximate. Is that correct? 9 A: Well, knowing what it takes to amend 10 legislation and knowing what it takes to amend 11 regulations, at the very least I would be suggesting that 12 in the training of backbenchers, certainly in the early 13 months and years where these kinds of -- not just 14 policing issues in general, jailing issues, issues around 15 the enforcement arm of the state, are complex and can get 16 -- can lead to serious consequences on way or t'other -- 17 Q: Yes. 18 A: -- I think it would very useful for 19 the political arm of Government to consider particular 20 training sessions in material, short of -- it's for 21 others to decide whether these kinds of things need to be 22 codified in law but certainly as a prerequisite or a 23 preliminary condition. 24 Q: Yes. 25 A: I would think that would be a good
941 idea. 2 Q: So if such training would, in your 3 view, be very useful? 4 A: Yes. 5 Q: And but then even though it does take 6 time for statutes and regulations, hopefully Ontario will 7 exist for a while. And would it not be useful in -- in 8 future even if it does a take few years for there to be 9 some -- in the statute or regulation that would try to 10 give some specific guidance in this area? 11 A: Yes. I think that this may be 12 discussed in -- in other -- in other parts of the 13 Inquiry. 14 I would only say that having personally 15 watched mortal human beings trying to reduce extremely 16 difficult con -- concepts into words and watching 17 unintended consequences which get played out in courts as 18 individuals writing the legislation will attest that the 19 writing and the implementation did measure with original 20 intent that one would have to think very carefully about 21 how much had to be codified in law, how much had to be 22 put in reg, and how much one can actually place on the 23 lines. 24 But I understand there's a considerable 25 amount of literature in the academy and there might be
951 all kinds of consultants and assistants that can actually 2 help clarify that. 3 So in a word in not -- in more than a few 4 words, I think it's a good idea to pursue whether 5 codification, whether through the Police Services Act or 6 whatever other governing piece of legislation there is 7 for the Solicitor General to consider whether it may be 8 useful to clarify, recognizing fully that these things 9 don't always help. 10 Q: Yes. Even if one has regulations? 11 A: Even when present, yes. 12 Q: They may not do the job but they may 13 help. 14 A: So perhaps we might describe it as a 15 necessary but not sufficient condition. 16 Q: Thank you. So if it's a necessary 17 condition, we should do it. 18 A: It may -- it may be a necessary 19 condition. 20 Q: Yes, thank you. Now, we've had 21 evidence that at about 6:42 p.m. on the afternoon of 22 September 6th, 1995 -- 23 A: Hmm hmm. 24 Q: -- that was several hours before 25 Dudley George was killed, MPP Beaubien was meeting with
961 the Incident Commander and another high ranking officer 2 and a representative of MNR. Okay. I'm just telling you 3 that as a fact. 4 Now -- and I would like to ask you about 5 where you'd draw the line with respect to some evidence 6 that we have as to what transpired during that meeting. 7 Now, at one point during that meeting, the 8 evidence is that the other high ranking officer, 9 Inspector Linton, questioned if there was anything from 10 the Solicitor General to which Mr. Beaubien advised that 11 they were meeting today. 12 Now would there be any problem in your 13 view with Mr. Beaubien explaining to the officers that 14 the Solicitor General was meeting today presumably on 15 this issue in some form? 16 A: Well, I guess if I'm stepping back, 17 it's hard for me. I mean this is a new piece of evidence 18 for me and I haven't had the chance to -- to ruminate it 19 for the length of time that others who are expert -- 20 Q: Yes. 21 A: -- in this room have. 22 Q: I do appreciate that. 23 A: So my -- my general reaction to 24 something like that is rather than parse that -- that 25 particular piece I would wonder that when one is in a
971 difficult operational setting and once a backbencher has 2 identified an issue from his perspective that is 3 complicated, which has many parties to it, which has a 4 number of nations attached to it and all sorts of 5 intergovernmental implications, I might argue that that 6 backbencher, in the abstract again because I -- I don't 7 wish to speak about a particular person and his or her 8 actions so this -- I don't wish any of this to be 9 construed as ad homonym or ad personam, I should say. 10 I think the question arises: What is the 11 beginning and ending responsibility of a backbencher in 12 having flagged an issue? So I would have been surprised 13 to have learned from the abstract going to the particular 14 that a backbencher would have sought a meeting while a 15 series of matters were being discussed and operational -- 16 Q: Yes. 17 A: -- and I don't want to speculate. So 18 let me just say the policy questions have to do with the 19 -- the boundaries around which an issue is identified and 20 when we move forward and when the Solicitor General 21 begins to clamp down on the -- not clamp down, that might 22 not be right but where the buffer becomes very -- 23 MR. PETER ROSENTHAL: Yes. 24 COMMISSIONER SIDNEY LINDEN: Now, yes, 25 Mr. --
981 MR. PETER ROSENTHAL: Somebody's standing 2 behind me. 3 COMMISSIONER SIDNEY LINDEN: If -- 4 MR. DOUGLAS SULMAN: I'd like to keep the 5 evidence straight. 6 COMMISSIONER SIDNEY LINDEN: Yeah, if -- 7 MR. DOUGLAS SULMAN: And there isn't any 8 evidence at this point that a backbencher, any 9 backbencher and we know backbenchers -- the only 10 backbencher that's involved here sought a meeting. The 11 only evidence is that a meeting was held. 12 COMMISSIONER SIDNEY LINDEN: A meeting 13 was held. Okay. 14 MR. DOUGLAS SULMAN: And the backbencher 15 will be giving evidence in a couple of weeks. 16 COMMISSIONER SIDNEY LINDEN: Yes. 17 MR. PETER ROSENTHAL: I -- I must say I 18 don't recall -- 19 COMMISSIONER SIDNEY LINDEN: All right. 20 MR. PETER ROSENTHAL: -- what evidence we 21 do have from Inspector Carson about how that meeting 22 began, but in any event I -- I didn't -- 23 COMMISSIONER SIDNEY LINDEN: I -- 24 MR. PETER ROSENTHAL: -- postulate 25 anything like that in my --
991 COMMISSIONER SIDNEY LINDEN: I expect 2 that Mr. Sulman is correct in his recollection on that 3 point so let's move on. 4 MR. PETER ROSENTHAL: I -- I don't 5 believe that the evidence was that Inspector Carson asked 6 Mr. Beaubien to attend, but we'll have to look at that. 7 COMMISSIONER SIDNEY LINDEN: I -- 8 9 CONTINUED BY MR. PETER ROSENTHAL: 10 Q: In any event let me just put a couple 11 of other things from the evidence of Inspector Carson as 12 to what transpired at that meeting just to give it a 13 little more context and then -- 14 But I -- I gather that -- I didn't get a 15 chance to continue after your previous answer because of 16 Mr. Sulman's objection, but I gather that we can conclude 17 from what you said that if there were to be regulations, 18 legislation, guidelines, training, whatever, there might 19 be at least a caution about MPPs meeting with OPP 20 officers right in the middle of an incident. 21 A: Yeah. 22 Q: Isn't that fair? 23 A: Yeah. And I think -- again without 24 sounding like someone who always says on the one (1) hand 25 and on the other hand --
1001 Q: Right. 2 A: -- I'm about to say the other hand. 3 Q: Which hand are you on now? 4 A: I -- I am sensitive to the pressures 5 that are placed on a backbencher. A backbencher does not 6 have a Cabinet portfolio to be concerned with. He or she 7 does not have to be prepared for Question Period. He or 8 she is solely devoted to meeting the needs of the 9 constituency. 10 Q: Yes. 11 A: And so from that particular 12 perspective that may have been the most salient issue his 13 constituency, on all sides, was dealing with. 14 Q: Yes. 15 A: So the subtle issue we have is: 16 Where is that demarcation, if I can put it, from helpful 17 information transmission back and forth to a point in 18 time where we're now into operational decisions and it 19 really is as though we are in a much more contained 20 environment. 21 Q: Yes. 22 A: So I guess -- and I'm not perhaps 23 being particularly helpful on this point, but I think if 24 we were to be codifying, concerned as I am with -- with 25 always the unintended consequences of mere mortals trying
1011 to place concepts of justice on a piece of paper, I think 2 we would want to be mindful of time and the developmental 3 phase -- 4 Q: Yes. 5 A: -- from early points where it is 6 perfectly legitimate for a number of people to be. 7 After all in community policing the whole 8 philosophical bent is that we have positive relationships 9 with our police forces. 10 So I wouldn't want my remarks to -- to -- 11 or the evidence to include that I was so rigid in my 12 definitions and my suggestions to you that it was just 13 magical and the moment an issue becomes defined -- I 14 don't think that's workable either. 15 Q: Yes. And you suggested that an MPP 16 may have pressure from his or her constituents to do 17 something for example? There is that -- 18 A: Clearly, yes. 19 Q: But then I would suggest to you that 20 might be another reason to have some rules and 21 regulations -- 22 A: Yes. 23 Q: -- that bind them so that there's 24 pressure on the other side. Is that fair? 25 A: Yes, and I'm simply indicating that
1021 there are many issues that governments deal with only 2 because backbenchers have found their ways -- I'm not 3 talking about particular issues where there's occupation 4 or land or necessarily a police involvement, where 5 without the input from backbenchers, regional caucuses 6 would be unaware of particular issues, so I'll stop on 7 that point. 8 Q: Thank you. Now, there's evidence 9 from Inspector Carson that, at that same meeting, MPP 10 Beaubien gave him the understanding that it was his, in 11 other words, Beaubien's view that if the situation 12 couldn't be handled by the police, it might be necessary 13 to bring in the military. 14 Do you see a problem with that? 15 A: Well, here we have an issue 16 transmission issue. I mean, I think we've covered this 17 in some depth over the last day or two (2) but we -- I 18 think it is clear from a former Deputy Minister of the 19 Solicitor General's point of view that there's a chain of 20 command that is -- must be put into place or information 21 is passed -- 22 COMMISSIONER SIDNEY LINDEN: She's 23 already answered that question -- 24 THE WITNESS: -- down. So it's pretty -- 25 MR. PETER ROSENTHAL: Yes, in that
1031 general -- 2 THE WITNESS: -- clear to me that -- 3 MR. PETER ROSENTHAL: Yes, I -- 4 THE WITNESS: -- the way in which an 5 incident commander would be hearing about this would 6 certainly not be from someone outside that chain of 7 command. 8 MR. PETER ROSENTHAL: Okay, thank you 9 very much. I'm sorry for the difficult questions and I 10 think you've been of great assistance in answering them 11 and thank you very much. 12 Thank you, Mr. Commissioner. 13 COMMISSIONER SIDNEY LINDEN: Thank you, 14 Mr. Rosenthal. 15 THE WITNESS: Thank you, Mr. Rosenthal. 16 COMMISSIONER SIDNEY LINDEN: Mr. 17 Scullion...? 18 19 (BRIEF PAUSE) 20 21 22 MR. KEVIN SCULLION: Good morning, Mr. 23 Commissioner. 24 COMMISSIONER SIDNEY LINDEN: Good 25 morning.
1041 CROSS-EXAMINATION BY MR. KEVIN SCULLION: 2 Q: Good morning, Dr. Todres. 3 A: Good morning. 4 MR. KEVIN SCULLION: If I can advise at 5 the outset, Mr. Commissioner, I appreciate we're mindful 6 of time as well. I think my original estimate was in 7 about thirty (30) minutes. 8 COMMISSIONER SIDNEY LINDEN: About half 9 an hour was what you estimated. 10 MR. KEVIN SCULLION: That should be 11 accurate, if not a bit high. I've been able to reduce my 12 topics following Mr. Klippenstein and Mr. Rosenthal. 13 COMMISSIONER SIDNEY LINDEN: Thank you, 14 Mr. Scullion. 15 16 CONTINUED BY MR. KEVIN SCULLION: 17 Q: And as opposed to the policy, I'd 18 like to go back -- 19 A: I'm sorry, could I ask you who you 20 represent? 21 Q: My name's Kevin Scullion and I'm 22 counsel for the residents of Aazhoodena. 23 A: Thank you. 24 Q: You may know as the Stoney Point 25 group.
1051 A: Thank you, thank you. 2 Q: It may obvious from my first line of 3 questioning. If you can move back to your -- to Tab 10 4 of your book of documents, and I can advise this is the 5 only document that I'm actually going to go in this book. 6 7 (BRIEF PAUSE) 8 9 Q: For the record, is Exhibit P-561 and 10 it's Inquiry document 2000987. Do you have that before 11 you -- 12 A: Yes, I do. 13 Q: -- the issue note? 14 A: Thank you. Oh, I'm looking at the 15 wrong thing. 16 Q: It should be Tab 10 for you. 17 A: I'm sorry, yes. 18 Q: And I noted one of your answers to 19 Mr. Klippenstein was that you saw the Ipperwash matter as 20 one of the most complicated files you'd seen to that day. 21 And I wanted to flesh that out a little 22 bit in terms of what added to that complexity. 23 You'll see from the issue note that as 24 early as July 12th, 1995, you were receiving information, 25 it would appear from the second page, coming from the OPP
1061 that they're aware of the possible acquisition of Camp 2 Ipperwash lands by the local First Nation. 3 And in that briefing note, there's three 4 (3) issues identified that may be, as it's dealt with, 5 three (3) contentious issues that can be anticipated 6 given the dialogue now taking place. 7 And you'll see from the briefing note that 8 the first contentious issue is the concept of an 9 environmental assessment and clean up; the second is the 10 allocation of the Camp Ipperwash property and buildings 11 and the third is law enforcement on the Camp Ipperwash 12 property. 13 Do you see those three (3) -- 14 A: Yes, I do. 15 Q: -- sub-headings? Is it fair to say 16 that the Solicitor General's office is well aware as of 17 July 1995 that there's internal division as between the 18 Stoney Point people who are occupying the camp lands and 19 the Chief and Council of the local First Nation? 20 A: Yes. 21 Q: And I note that from the last two (2) 22 lines of this issue note, starting at the bottom of page 23 1 it says: 24 "The dissident people who are now 25 occupying the Ipperwash camp are few in
1071 number and do not have the support of 2 the Kettle Stony people." 3 And then it says: 4 "The cause of tension in this area will 5 begin to shift from Native versus non 6 Native rights to competing interests 7 among Natives themselves." 8 A: Yes, I see that. 9 Q: Do you recall that being an issue 10 that was of concern to the Solicitor General when viewing 11 the Ipperwash issue back in July, August? 12 A: Yes, I do. 13 Q: And is it fair to say that that was 14 part of the reason why the idea of bringing in what you 15 referred to as the Mennonites, may be a good idea to act 16 as negotiators? 17 A: Yes. I recall being very concerned 18 at the time about what I would have called the issue of 19 representation. Who will -- who does want to speak to -- 20 there are -- so simply put, I was very -- I was very 21 aware of this issue, we were very concerned. 22 Q: There's a lot of issues at work. 23 A: Exactly. 24 Q: Okay. And I suggest to you that the 25 fact that there was no support from Chief and Council
1081 when the Stoney Point group moved into the Ipperwash 2 Provincial Park didn't come as any great surprise to the 3 Solicitor General's department? 4 A: No, it did not. 5 Q: And in fact it would have been one of 6 the issues that the Solicitor General's department was 7 considering in determining how to proceed in terms of, 8 your terminology, the go slow and cautious approach. 9 A: Well let me rephrase that if I might. 10 I assumed when having briefed -- been briefed on this and 11 knowing not much but knowing enough on Aboriginal matters 12 and governance issues respecting First Nations people. 13 I was very aware in fact that the people 14 on the ground knew this and that this would work -- in 15 other words it still was -- you phrased it as though it 16 was something I had to make a decision about just that it 17 was contextual variable which I was aware of made the -- 18 made the issue all the more complex. 19 Q: Agreed. I didn't put it into your 20 court. I -- I just wanted to establish that it -- 21 A: Yes. 22 Q: -- was a factor that came into the 23 thinking of the Solicitor General's office. 24 A: Yes. No question about that. 25 Q: The next issue I wanted to address
1091 was when Ms. Perschy was asking you questions, she's 2 solicitor for Ms. Hutton -- 3 A: Yes. 4 Q: -- she was cross-examining you on the 5 idea of an EA in the IMC meeting expressing the views of 6 the Minister. And you, in the cross-examination, had put 7 a bit of a -- qualifiers on whether or not that might be 8 appropriate in the situation. 9 Can I take that a step further? Is it -- 10 would it be your evidence that the EA for the Premier 11 expressing such views or any views in the context of the 12 IMC meeting would have been taken by the meeting -- a 13 little awkward. 14 Do I take it that your cautions with 15 respect to EA's expressing the views of the Minister 16 would be equally applicable for the EA for the Premier 17 expressing the views of the Premier in such a meeting? 18 A: I -- when I -- when I answered in -- 19 in-chief I was I think perhaps referring to, in some 20 senses, what we've all learned in employment equity and 21 in another related matters. 22 It is problematic when you have -- and 23 again, I hate sounding like an elitist, but when you have 24 someone below the level of a director, even a director at 25 a meeting, when there's such a difference in rank whether
1101 it's a Premier or a Minister whose Executive Assistant is 2 speaking as though giving direction, it can be 3 misinterpreted. 4 Now having said all of that, it had been 5 usage and common practice in Interministerial Committees. 6 I don't recall in the past whether the Executive 7 Assistant of the Premier's office had been present when 8 the IMC had been established. 9 But it had established for many many years 10 the political liaise would be present and their presence 11 was there to make sure that there could be information 12 transfer back and forth. 13 So the tone of your question is: And what 14 happens when it moves beyond assertive listening to the 15 transposition or moving toward what appears to be 16 direction. And I guess I would stand on, it's irrelevant 17 to me who the EA is, there are other times and forums. 18 I don't -- I don't think it's 19 inappropriate for a political assistant to indicate that 20 you can look in our -- in our document and there's five 21 (5) or six (6) options that this particular government 22 looks at in a particular way. So I -- I guess I've 23 answered this question enough only to say that there are 24 other places where more direct political conversation 25 should be taking place.
1111 Q: Do I take it from your answer then 2 that you would agree with me that the EA expressing the 3 views of the Minister needs to be considered or -- or 4 there need to be cautions that go with that when it moves 5 from a listening phase to taking an active part in the 6 discussion phase? 7 A: I'm reluctant to sound definitive on 8 the subject so let me -- if I could just speak for a 9 moment or two (2) on this, I understand where you're 10 going and I just -- I -- I wouldn't like -- I don't want 11 to be led to a conclusion that I might not necessarily 12 agree with. 13 When the Conservative Government in the 14 '70s was in power and had been in power for forty-two 15 (42) years, and let's just say that I was in charge of 16 employment equity, the subject matter of employment 17 equity, and let's just say that I was a civil servant 18 there and I was talking about -- there were a number of 19 options that wouldn't have been on the table because the 20 government wasn't working in -- in terms of 21 implementation. 22 So when I say that there is an -- it is 23 appropriate for political staff to be there it is 24 appropriate for political staff to remind bureaucrats 25 that there is a policy backdrop within which a government
1121 is operating. They are duly elected, they came -- they 2 came to power on the basis of an agenda. The agenda has 3 been made plain. I don't find a difficulty with that. 4 On the matter of policing I take a 5 slightly different view that any kind of detailed 6 direction when these matters are subject to the buffers 7 and everything else that we've discussed is slightly 8 different. So I'd have to -- I'd have to be very careful 9 and contextualize what it is that an EA, whether it was 10 an EA to the Premier or an EA to the Minister of the 11 Solicitor General could say I would never say that they 12 couldn't come to meetings, nor would I say that there 13 were some sentences they couldn't utter. They have a 14 right to be able to express certain views. 15 So it's hard for me to land on saying no, 16 they must never speak. 17 Q: I appreciate that, but in your 18 evidence-in-chief you did indicate that you and Mr. Taman 19 made a decision at one (1) point to separate that issue? 20 A: Yes, we did. 21 Q: And I would suggest to you that 22 following the briefings you were receiving back from Mr. 23 Fox and Mr. Patrick that you were aware that the EA's 24 were expressing strong opinions in the course of the IMC 25 meetings and that that was causing you some concern as
1131 early as September 6th? 2 A: Yes. 3 Q: Okay. The next issue I want to move 4 to is the movement of yourself, Mr. Fox, and Mr. Patrick 5 over to the dining room meeting. 6 And part of what -- part of an answer that 7 you gave to Mr. Rosenthal that I took down was the 8 question of whether or not Mr. Fox and Mr. Patrick were 9 acting in the chain of command of the OPP. And you made 10 a distinction and -- and asserted that they were seconded 11 and they were part of the Solicitor General's department 12 And I appreciate that difference, but it 13 comes back to the question of them going to the meeting 14 in the first place. 15 Am I correct to understand that their task 16 and -- and part of their role was to brief you on what 17 was going on on the ground and what was happening at the 18 meetings in order that you had all the information that 19 you needed to speak with your minister? 20 A: Yes. 21 Q: So from the Solicitor General's 22 perspective the proper people, if this was following 23 proper protocol, to be at the dining room meeting would 24 have been the Minister and yourself? 25 A: And executive assistants which is
1141 standard practice when there's -- 2 Q: I'd forgotten -- 3 A: -- a Minister in attendance. 4 Q: -- about the executive assistants. 5 A: The executive assistants. 6 Q: So from the Solicitor General's 7 department, it was appropriate, and if the general or the 8 usual procedures were being followed, the appropriate 9 people to be at that meeting were the Deputy Minister, 10 yourself, the Minister and the executive assistant? 11 A: Save and except for the exception 12 that I mentioned this morning, there is established 13 practice when areas are extremely detailed, and highly 14 particularized, for a Cabinet or in a Cabinet meeting or 15 an informal meeting to refer to the expert, in which case 16 there's a specific set of time, it's noted, that expert 17 is brought in. 18 It happened to me many times even as a 19 Deputy where I would not be permitted to be invited to an 20 entire meeting, I would be sitting in the ante room to 21 Cabinet. I would be brought in for my specific file and 22 I may have brought a subordinate. 23 So it would have been permissible, 24 perhaps, to have had Ron Fox and Scott Patrick as I 25 recall standing out of the room as they did, because I
1151 don't recall them being in the room, to have been called 2 for a particular matter for a very detailed briefing and 3 then to have left. 4 In retrospect, we can argue about whether 5 they ought to have been invited in the first instance or 6 not, but I can imagine an exception. 7 Q: I appreciate that exception and the 8 way you've spelled it out for me, but my understanding 9 from the debate that's taken place over the last day and 10 a half is that Mr. Fox and Mr. Patrick were acting as 11 buffers, as opposed to an expert in the field, and that 12 they were liaisons for information between the government 13 and the OPP. 14 Is that not accurate? 15 A: They did have, from our perspective, 16 the latest, up to date information. 17 Q: Right, and they could have easily 18 given that information to you as part of the briefings 19 that were occurring -- 20 A: Yes. 21 Q: -- every day? 22 A: Now, having said that I didn't call 23 them in, someone who called them in -- 24 Q: We haven't gone there. 25 A: All right.
1161 Q: I'm simply saying, if proper 2 procedure had been followed, the proper people to be in 3 the meeting would be yourself, the Minister and the EA, 4 is that correct? 5 A: The EAs -- 6 Q: EAs. 7 A: And as I say, with the exception that 8 I noted. 9 10 (BRIEF PAUSE) 11 12 Q: I'm going to suggest to you that on 13 your way to this meeting in the background you were aware 14 that this was a complex issue, that the government had 15 indicated they were taking a different approach to Native 16 issues, that the Solicitor General was taking a slow and 17 measured approach and that you expected something 18 different to be coming out of this dining room meeting? 19 A: I had no expectations of what were 20 going to arise from the dining room meeting. 21 Q: And you didn't discuss with Mr. Fox 22 and Mr. Patrick on the way to this meeting your 23 expectations or their expectations as to what was going 24 to occur at this meeting? 25 A: I do not recall my conversations with
1171 them. 2 Q: And I suggest to you that you knew 3 there was going to be some sort of heated debate, because 4 you started the meeting off with an explanation that you 5 testified to in-chief about separating politics from the 6 OPP? 7 A: I did not know what to expect of the 8 meeting. It would have been my first private meeting 9 with a new Premier. I had no expectations of what they 10 would be. 11 I just -- I had determined in my own mind 12 that the role I had to fulfil was to prepare -- was to 13 suggest, perhaps would have been redundant for everyone 14 in the room, the level playing field upon which I 15 believed we had to begin. 16 Q: If I can skip to Mr. Hodgson's 17 comments that you overheard, all right? 18 19 (BRIEF PAUSE) 20 21 Q: At any point in time, did you hear 22 Mr. Hodgson speak to the meeting about his role in 23 dealing with the Serpent Mounds issue and occupation? 24 A: I do not recall Serpent Mounds being 25 discussed.
1181 Q: Do you recall Mr. Hodgson ever 2 referring to his visit to Cape Croker and dealing with 3 the Nawash fishing rights situation? 4 A: First time I've heard the term, no. 5 Q: That was something that you don't 6 recall ever being expressed by Minister Hodgson in the 7 dining room meeting? 8 A: No. 9 Q: Or a reason why it might be 10 appropriate to take a go-slow and measured approach? 11 A: No. 12 Q: The remark, and I'm not going to 13 repeat it, that you've referred to, you found it to be 14 inappropriate and offensive. Correct? 15 A: Yes. 16 Q: Did you say anything at the time that 17 it was said? 18 A: No. 19 Q: Do I take it that if that remark was 20 made in any other context, in any other meeting in the 21 Solicitor General's department, it wouldn't have gone 22 without comment? 23 A: Well, let me respond by saying this, 24 that it is not the role of a Deputy Minister to provide 25 censure to a Minister, particularly a Minister to whom
1191 she does not report. 2 Had this comment taken -- again, you're 3 asking me to speculate on what would have happened in 4 another setting. So do I -- 5 COMMISSIONER SIDNEY LINDEN: That's fine. 6 You should answer the question. 7 8 CONTINUED BY MR. KEVIN SCULLION: 9 Q: My last question is: Why did you 10 wait until this week to disclose this publicly? 11 A: I had no forum with which to disclose 12 this comment. 13 Q: Thank you, those are all my 14 questions, Mr. Commissioner. 15 COMMISSIONER SIDNEY LINDEN: Thank you 16 very much, Mr. Scullion. 17 COMMISSIONER SIDNEY LINDEN: Mr. 18 Henderson. 19 MR. WILLIAM HENDERSON: Thank you, 20 Commissioner. 21 22 (BRIEF PAUSE) 23 24 COMMISSIONER SIDNEY LINDEN: Good 25 morning.
1201 MR. WILLIAM HENDERSON: Good morning, 2 Commissioner. 3 4 CROSS-EXAMINATION BY MR. WILLIAM HENDERSON: 5 Q: Good morning, Dr. Todres. My name is 6 Bill Henderson and I'm counsel for the Chippewas of 7 Kettle and Stony Point First Nation. 8 A few minutes ago you indicated to My 9 Friend, Mr. Scullion, that you -- you were trying to 10 establish at the table a level playing field. And I'm 11 not sure I understood what you meant by that. 12 Is there a capsular way of expressing 13 that? 14 A: Well I would have been -- I would 15 have understood that the Attorney General and the -- and 16 my Minister, Mr. Runciman, would not have needed a 17 lecture on what the separation between the operations of 18 the OPP and the Government were to be. 19 But I wanted to make sure that others in 20 the room were very clear about what the established rules 21 and statutory requirements were. And it was my first 22 ever such meeting so that was the decision I chose to 23 take. 24 Q: I understand that. And your 25 recollection is that Mr. Taman also addressed that issue
1211 at some length? 2 A: Yes. 3 Q: When Mr. Bangs was testifying, he 4 indicated that the point was made several times about the 5 distinction between political interference and police 6 direction, operational direction of the police. 7 I asked him and -- and I'm asking you now, 8 did the point arise several times because it continued to 9 appear to be an issue? 10 A: That wasn't my sense of it at the 11 time. I -- I think that what -- again, I -- I'm 12 hesitating to speak now because I'm concerning myself 13 about whether these are fact or speculation. 14 But it was repeated in the sense that -- 15 that the political Ministers were trying to determine 16 precisely what area fell within their ability to act. 17 Q: And your sense was that your 18 Minister, Mr. Runciman, had no need of such instruction 19 or information? 20 A: No, he did not. 21 Q: And was it also your sense that Mr. 22 Harnick had no need of such? 23 A: That was my sense as well. 24 Q: And the other two (2) Ministers in 25 the room were the Premier and Mr. Hodgson.
1221 A: I couldn't be certain. I mean I -- I 2 won't speculate further. 3 Q: Well, you do have a distinct 4 recollection -- a distinct recollection of both of those 5 Ministers were there obviously? 6 A: Yes. 7 Q: Now a few minutes ago you also 8 indicated to -- to Mr. Scullion, as you have before, that 9 you have no recollection of -- of Ron Fox or Scott 10 Patrick being in the room. 11 I understood you yesterday to agree with 12 Mr. Sandler that they probably were in the room for some 13 part of the meeting. 14 A: Well I -- 15 Q: Well my -- my question is, which is 16 your evidence then? 17 A: My evidence is -- 18 Q: Do you agree that they were there? 19 A: -- that I do not recall them. 20 Q: Right. 21 A: I have been given evidence from many 22 of you about others who have said that he was there and 23 things that he heard and from that I can only deduce that 24 he was there. I do not have a recall of him being in the 25 room.
1231 Q: Okay. So you don't have any specific 2 recollection to the contrary and you have no reason to 3 disagree with their evidence that they were there? 4 A: That's right. 5 Q: Okay. Now, in terms of arriving at 6 the meeting, I take it as you told My Friends, that you 7 left Ron Fox and Scott Patrick in the hallway and you 8 entered the meeting room? 9 A: Yes. 10 Q: Do you recall if the Premier was 11 already present when you got there? 12 A: No, I don't. I don't recall that -- 13 the sequence. There's a fair number of people who had to 14 be gathered. 15 Q: Yes. 16 A: So there was a milling about as 17 people took chairs, but I cannot recall in detail the 18 chronology of people. 19 Q: Was Mr. Taman there when you arrived? 20 A: I believe so. 21 Q: Was Minister Harnick there when you 22 arrived? 23 A: I -- it's a blur. 24 Q: That's fine. The -- Scott Patrick 25 gave evidence to the Inquiry on October 17th and 18th of
1241 this year. In his transcript of October 17th, he 2 describes what he recalls about the meeting and his role 3 and Inspector Fox's role and your role in it. 4 Some of My Friends have referred you in a 5 general way to that evidence. I take it you've had an 6 opportunity to review it? 7 A: In brief. 8 Q: In brief? I'm going to go, 9 Commissioner, for the assistance of My Friends, I'll try 10 to -- to paraphrase this as we go, except where, of 11 course, it's necessary to get the direct quote. 12 But I'm referring to page 109 and 13 following of the -- the evidence of Scott Patrick for 14 October 17th. 15 The -- the indication was, by Scott 16 Patrick, that there was a point when the Premier left the 17 meeting and he is then asked what happened after the 18 Premier left the meeting. 19 And your evidence was that it sort of 20 broke up in a desultory fashion or something like that? 21 A: Yes. I'd just like to correct the 22 record. I did not read his transcript. What I recall is 23 something else about Scott Patrick, so you're refreshing 24 my memory or you're -- 25 Q: All right.
1251 A: -- creating a memory for me on -- 2 Q: Do you have the -- 3 A: -- what he said. 4 Q: -- transcript available to you? 5 A: I don't know that it's in the -- is 6 it in the binder? 7 Q: No. 8 9 (BRIEF PAUSE) 10 11 COMMISSIONER SIDNEY LINDEN: If you're 12 going to be referring to extensive parts of it, we should 13 have it. 14 MR. WILLIAM HENDERSON: That's my 15 thinking, Commissioner, and as I say, I had assumed 16 because of the previous references that -- that Dr. 17 Todres had access to it. 18 Obviously, if we can provide her with a 19 laptop, which I can't, we can call it up. 20 COMMISSIONER SIDNEY LINDEN: I don't 21 think that's a solution. Can we call it up on the 22 screen? Is it possible, we could do that. 23 MR. WILLIAM HENDERSON: That may be in 24 process. 25
1261 (BRIEF PAUSE) 2 3 MR. DERRY MILLAR: What page is it again? 4 MR. WILLIAM HENDERSON: 109. 5 6 (BRIEF PAUSE) 7 8 MR. WILLIAM HENDERSON: Yes, right there 9 please. Just bring the cursor down or sorry, you're 10 going to -- you want to expand it, of course. 11 And the cursor down to line 23, yeah just 12 -- you're past it. Just back up a little, please. 13 14 (BRIEF PAUSE) 15 16 COMMISSIONER SIDNEY LINDEN: Now, you're 17 looking at this for the first time, Dr. Todres, so just 18 take your time if you need to read it. 19 20 (BRIEF PAUSE) 21 22 MR. WILLIAM HENDERSON: If you're ready, 23 we can continue scrolling on, Dr. Todres. 24 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 25 Sandler...?
1271 MR. MARK SANDLER: I was just going to 2 say, I have a hard copy of what Scott Patrick said about 3 the dining room meeting if My Friend wants to utilize -- 4 COMMISSIONER SIDNEY LINDEN: I think 5 that's a good idea. 6 MR. MARK SANDLER: -- that with -- 7 COMMISSIONER SIDNEY LINDEN: I think 8 that's a good idea. It's unmarked? 9 MR. MARK SANDLER: -- with the Witness 10 because I know how difficult it is -- 11 COMMISSIONER SIDNEY LINDEN: It is 12 difficult. 13 MR. MARK SANDLER: -- for a Witness to 14 try to read -- 15 COMMISSIONER SIDNEY LINDEN: It's an 16 unmarked copy, Mr. Sandler, that you can... 17 MR. WILLIAM HENDERSON: It appears to be. 18 MR. MARK SANDLER: There may be some 19 highlighting -- 20 COMMISSIONER SIDNEY LINDEN: That's fine. 21 MR. MARK SANDLER: -- but no -- no 22 comments. 23 COMMISSIONER SIDNEY LINDEN: That's fine. 24 I think that would be useful to give her then if you're 25 going to be making --
1281 MR. WILLIAM HENDERSON: Thank you very 2 much, Mr. -- 3 COMMISSIONER SIDNEY LINDEN: -- 4 references to it. 5 MR. WILLIAM HENDERSON: -- Mr. Sandler. 6 I -- I think that is more convenient and... 7 THE WITNESS: Thank you. 8 MR. WILLIAM HENDERSON: At the same time 9 some of my other Friends might -- might appreciate having 10 -- having it on the screen. 11 COMMISSIONER SIDNEY LINDEN: Yes, that's 12 fine. Carry on, Mr. Henderson. 13 MR. WILLIAM HENDERSON: Okay. Thank you. 14 15 CONTINUED BY MR. WILLIAM HENDERSON: 16 Q: Now, what -- what Scott Patrick 17 indicates is that after the Premier left the room Minster 18 Hodgson began to address Deputy Taman and yourself who 19 were both seated at the table apparently across, in his 20 recollection, from -- from Minister Hodgson? 21 Does that evidence assist your 22 recollection of what happened? 23 A: What line are you on if I might ask? 24 Q: Starting at line -- at line 5. The 25 question is: What happened after the Premier left? And
1291 Inspector Patrick starts off by saying: 2 "Minister..." 3 And it appears that he's interrupted by 4 continuation of the question while you were there. And 5 he says: 6 "Yes, Minister Hodgson..." 7 Oh, I'm sorry, you're having trouble 8 finding it. 9 A: I am having trouble finding it. I'm 10 sorry. 11 MR. MARK SANDLER: The excerpt starts 12 three (3) pages before so that could be. 13 MR. WILLIAM HENDERSON: Sometimes when we 14 take of the -- the excerpts the pagination is -- is lost 15 so that may have been what's happened. 16 MR. DERRY MILLAR: Perhaps, Commissioner, 17 if you could give me two (2) minutes I'll get the actual 18 transcript. It's difficult to follow the... 19 COMMISSIONER SIDNEY LINDEN: It's 20 difficult to -- 21 MR. DERRY MILLAR: Just one (1) minute. 22 23 (BRIEF PAUSE) 24 25 MR. WILLIAM HENDERSON: I apologize,
1301 Commissioner. If I'd known we were going to have this 2 problem I would have -- I would have printed out extra 3 copies. 4 5 (BRIEF PAUSE) 6 7 COMMISSIONER SIDNEY LINDEN: I don't want 8 to take -- 9 MR. WILLIAM HENDERSON: I don't know if 10 you want to take a break, Commissioner -- 11 COMMISSIONER SIDNEY LINDEN: I don't want 12 to take a break. 13 MR. WILLIAM HENDERSON: -- but if we want 14 to stand down for a few minutes My Friend is just looking 15 at -- at my copy on the screen and if we can wait for Mr. 16 Millar to return. 17 COMMISSIONER SIDNEY LINDEN: Well, I 18 think Mr. Millar's here and he's got a copy of it. Let's 19 just see where we are. I don't want to take a break 20 unless we have to and then if we do we will, but... 21 MR. WILLIAM HENDERSON: I don't think 22 it's necessary, Commissioner. I'm -- I'm hoping to 23 finish and I think there's a good possibility Mr. Horton 24 might be able to finish before lunch. 25 COMMISSIONER SIDNEY LINDEN: Well then
1311 let's keep going then. Let's just get -- 2 MR. WILLIAM HENDERSON: Yes. 3 4 (BRIEF PAUSE) 5 6 THE WITNESS: Thank you. Okay. I've got 7 now. Thank you, sir. 8 MR. WILLIAM HENDERSON: Thank you for 9 your indulgence. 10 11 CONTINUED BY MR. WILLIAM HENDERSON: 12 Q: Now, I've -- I've indicated the part 13 there, perhaps you can correlate which was the question 14 at line 5 and I believe that's page 109 here, but it may 15 be 110 or... But it starts with a question: 16 "After you left, what happened after 17 the Premier left?" 18 And then there's -- 19 A: Yes, I've got it. Okay. 20 Q: You've got that? 21 A: I've got it now, okay. 22 23 (BRIEF PAUSE) 24 25 Q: And Mr. Patrick's interrupted, then
1321 he continues: 2 "Yes, Minister Hodgson began to speak 3 to Deputy Minister Taman. 4 Q: Yes. 5 A: And at a point, Deputy Todres 6 gestured to Superintendent Fox and I to 7 join her at the table. 8 Q: Yes. 9 A: And so we did, so we were seated 10 next to Deputy Todres and directly 11 across the table from Minister 12 Hodgson." 13 Have you -- you've got those passages 14 there? 15 A: Yes, I do, thank you. 16 Q: Okay. Now do you have any 17 recollection of -- 18 A: No, I don't. 19 Q: -- of gesturing those gentlemen up -- 20 A: No. 21 Q: -- to the table? 22 A: No, I don't. 23 Q: Now, I take it you would not disagree 24 that if they hadn't previously been introduced to the 25 meeting, if you had brought them to the table, you
1331 probably would have introduced them then? 2 A: Or the Minister would have. 3 Q: Or the Minister would have, fair 4 enough, thank you. 5 Now, as we go down, going to the end of 6 the page there's Minister Hodgson talking about -- 7 talking to Superintendent Fox and giving the appearance 8 he was quite angry? 9 A: Yes, I see that reference. 10 Q: And you do recall, at least, Minister 11 Hodgson at some point being angry during the meeting? 12 A: Yes. 13 Q: And he expressed frustration and I'm 14 paraphrasing here, that the OPP had -- had assured his 15 officials that the occupiers would not get into the Park 16 and they did? 17 A: I don't recall the details of his 18 frustration, but he wasn't pleased with where the 19 situation was at present. 20 Q: Okay. And if we move down to the 21 middle of page 110 as I have it here, and that would be 22 line 8 on page 110. It says: 23 "And did -- did Mr. Fox have a 24 discussion with Mr. Hodgson that 25 prompted this comment?"
1341 And Mr. Patrick indicated: 2 "Those are the comments I remember, but 3 it occurred over two (2) or three (3) 4 minutes. And there was a discussion 5 between Mr. Hodgson and Mr. Fox while 6 this was going on and these comments 7 were made by Mr. Hodgson during this 8 discussion. 9 A: That's correct. 10 Q: Do you recall what Mr. Fox said?" 11 And Inspector Patrick says: 12 "One comment I recall he said to the 13 Minister that in response to his 14 concern about the Park, or the Park's 15 occupation being prevented, that short 16 of putting OPP officers shoulder to 17 shoulder around the Park, it may not 18 even have prevented the -- the 19 occupation. 20 Okay, that was one comment I recall. 21 Any other comments? 22 Not specifically, no." 23 And then going down a little further, I'm 24 trying to get to the... 25
1351 (BRIEF PAUSE) 2 3 Q: The part, I thought I had it in -- in 4 this section, but in any event, while you have no 5 specific recollection of the gentlemen moving up to the 6 table and having an exchange, perhaps an angry exchange, 7 with Minister Hodgson, you have no reason to disagree 8 with their evidence? 9 A: I have no reason to disagree with 10 their evidence. 11 Q: Thank you. 12 13 (BRIEF PAUSE) 14 15 Q: And you also -- you also agreed 16 yesterday with -- with Mr. Sandler that Inspector Patrick 17 at one point in his evidence, and you, were both taken by 18 the use of the possessive, by Minister Hodgson when he 19 referred to "my Park"? 20 A: Yes, I don't recall that Scott 21 Patrick heard that, but I was taken by the -- by the 22 pronoun, yes. 23 Q: Yes, we have your evidence on that 24 and -- 25 A: Yes.
1361 Q: -- Inspector Patrick also testified 2 to the same effect and -- and Mr. Sandler took -- took 3 you to that yesterday. 4 Now, I'm going to pose a hypothetical and 5 given your state of recollection, I know that you cannot 6 say that this is possible or not possible. 7 If you have any recollection that makes 8 this scenario impossible in your -- in your -- to your 9 recollection or knowledge, could you tell me please? 10 And the possibility that I'm going to 11 suggest is that if you arrived at the meeting after the 12 Premier and Mr. Harnick and Mr. Taman, you may have 13 missed a comment made by the Premier to which Attorney 14 General, or then Attorney General Harnick testified. 15 In other -- in other words you -- you 16 don't remember what order you arrived in. 17 A: I can't shed light. 18 COMMISSIONER SIDNEY LINDEN: That 19 question is a fair one. What order -- but she can't 20 recall what order. 21 MR. WILLIAM HENDERSON: I know -- I know 22 it is, Commissioner. 23 COMMISSIONER SIDNEY LINDEN: But the rest 24 of it you can make -- 25 MR. WILLIAM HENDERSON: I'm not -- I'm
1371 certainly not being unfair and I -- I recognize what the 2 answer is likely -- 3 COMMISSIONER SIDNEY LINDEN: That's fine, 4 okay. 5 MR. WILLIAM HENDERSON: -- to be given 6 the state of recollection. 7 8 CONTINUED BY MR. WILLIAM HENDERSON: 9 Q: And if there was an angry exchange in 10 which Superintendent Fox was a prominent player later in 11 the meeting or after the Premier left, it's also possible 12 that Minister Hodgson made his remark at that point and 13 that that is when -- that is the timing when it was made. 14 You indicated it was towards the middle of 15 the meeting or after, is that possible as well? 16 COMMISSIONER SIDNEY LINDEN: Yes -- just 17 a minute. Yes, Mr. Downard...? 18 MR. PETER DOWNARD: Well it's just an 19 argument on the facts. It doesn't -- it's not rooted in 20 the witness' recollection. 21 COMMISSIONER SIDNEY LINDEN: No it's not 22 rooted in the witness' recollection at all. I don't find 23 this being helpful at all at the moment, Mr. Henderson. 24 I don't think that this witness can be helpful. 25 MR. WILLIAM HENDERSON: Well it doesn't
1381 appear that way, Commissioner. Obviously if she can be 2 helpful I -- I've -- 3 COMMISSIONER SIDNEY LINDEN: Yes. 4 MR. WILLIAM HENDERSON: -- attempted to 5 give her the opportunity. I certainly don't intend to 6 pursue in great depth. In fact I think that was the last 7 question I was going to ask about that. 8 COMMISSIONER SIDNEY LINDEN: Thank you. 9 10 CONTINUED BY MR. WILLIAM HENDERSON: 11 Q: Dr. Todres, when you -- when you 12 testified yesterday, you were talking about Minister 13 Hodgson's use of the possessive. And I -- I'm referring 14 now to page 62 and 63 of the transcript. 15 And you indicated that to you, his use of 16 the possessive and his approach to the problem if you 17 want and I'm quoting now: 18 "Was revelatory of an unseasoned person 19 who would have liked to have seen a 20 quick reaction but was presented with a 21 complex set of factors." 22 And do you recall giving that evidence 23 with respect to -- 24 A: Yes, I do. 25 Q: -- Minister Hodgson?
1391 A: Yes. 2 Q: I wonder to the best of your 3 knowledge or recollection or in your judgment, would the 4 same comment apply to Premier Harris on that occasion? 5 A: My recollection of -- of Premier 6 Harris was that he'd heard the legal to-ing and fro-ing 7 and had understood that the necessary deliberations would 8 take place. 9 He may have been frustrated at the 10 beginning of the meeting that -- that we were where we 11 were as of that morning but my recollection as he left 12 was that he heard from all of the parties and he 13 understood that appropriate action would take, whatever 14 that took. Whatever length of time it took. 15 Q: So although he may have started at 16 the same point as Minister Hodgson, he finished at a more 17 understanding and sophisticated understanding at the end 18 of the meeting as you appreciated it. 19 A: Yes. 20 Q: Thank you, Dr. Todres, those are my 21 questions. 22 COMMISSIONER SIDNEY LINDEN: Thank you, 23 Mr. Henderson. Mr. Horton...? 24 25 (BRIEF PAUSE)
1401 MR. WILLIAM HORTON: Thank you, 2 Commissioner. 3 4 CROSS-EXAMINATION BY MR. WILLIAM HORTON: 5 Q: Dr. Todres, I'm Bill Horton. I 6 represent Chiefs of Ontario and actually you'll be happy 7 to know virtually all of my questions have been covered 8 by other counsel. 9 There was just one exchange that you had 10 with Mr. Lauwers that intrigued me and I wanted to just 11 make sure that I did understand what you were saying. 12 It's just a short passage so I'll read it -- read it to 13 you but Mr. Miller is alerted, we can put it on the 14 screen. 15 The question was asked by Mr. Lauwers: 16 "And would you agree with me that in 17 general terms, Executive Assistants and 18 Ministers as a team take a consistent 19 approach to these issues?" 20 A: Which issues? 21 Q: Well, you answered in a more general 22 way. So I don't think it matters for this -- for the 23 purpose of this question. But he was asking you about, 24 if want to go back you said: 25 "Okay. And in fact it was useful to
1411 meet with them from time to time 2 because you might get a sense of how a 3 Minister might view a particular 4 issue." 5 It was just a general question as I 6 understand it -- 7 A: Yes. 8 Q: -- on the way through the policy 9 development process and you said yes and then he said: 10 "And would you agree with me that in 11 general terms Executive Assistants and 12 Ministers as a team take a consistent 13 approach to these issues." 14 And I don't think he had any specific 15 issues in mind. 16 And then you said: 17 "I think that it depends on the 18 circumstances." 19 And then he said: 20 "But if an EA is offside the Minister - 21 - doesn't an EA who is offside the 22 Minister doesn't last very long, does 23 he?" 24 And you said: 25 "And conversely, a Minister who is
1421 offside doesn't last very long." 2 And then the question was: 3 "Offside his EA? 4 And you said: 5 "Yes." 6 And I took from that that you were talking 7 about the fact that a minister who was -- who -- was 8 disagreeing with his EA might not last very long? 9 A: No, and I wasn't careful in my 10 remarks and perhaps this is the opportunity -- 11 Q: Hmm hmm. 12 A: -- to clarify. It's rare that an EA 13 gets a minister fired and that wasn't the intention -- 14 Q: Hmm hmm. 15 A: -- that I wanted to leave everyone 16 with. There are times when a minister's EA just as a 17 deputy -- and you'll remember when I was talking about my 18 -- my relationship with both the Cabinet office and the - 19 - and the Principle Secretary's office. 20 There are rare occasions where a minister 21 will wish to prevail on an issue despite advice from an 22 executive assistant where that executive assistant is 23 representing the corporate political view from the 24 Premier's office. And in instants like that, that 25 executive assistant, like a deputy minister, would be
1431 obliged to inform the Premier's office and there have 2 been rare occasions. It's not because the -- the deputy 3 -- the executive assistant fired or, you know, I -- I was 4 too casual in my language and thank you for the 5 opportunity to clarify. 6 But there are times when the Minister may 7 appear to be offside what it is the corporate centre 8 wishes to do and believes that he or she may simply be -- 9 in -- in at issue with the executive assistant. In that 10 case there is another channel at which those things are 11 being sorted out. 12 And if the issue prevails then the Cabinet 13 and the Premier has to decide what it is that he wishes 14 to do with that particular minister. 15 These are usually rare occurrences and the 16 political offices go to enormous length to see to it that 17 they -- that they match executive assistants well with 18 their ministers. 19 Q: Well, this is actually similar I 20 think to what you did say in answer to Mr. Lauwers so let 21 me continue on with your answer because I'm -- I'm not 22 myself hearing an inconsistency with what you said 23 before. 24 So the question was: 25 "And conversely a minister who is
1441 offside doesn't last very long -- 2 offside his EA." 3 And you said: 4 "Yes." 5 And then you went on to say: 6 "Sometimes the EA is given instruction 7 and the Minister has difficulty." 8 So I'm assuming when you said that you 9 mean an EA is given instruction other than by the 10 Minister? 11 A: Correct. 12 Q: So the Minister's EA is getting 13 instruction from someone other than the Minister and the 14 Minister has difficulty with that instruction. Is that 15 what you're referring to? 16 A: Yes. Yes. 17 Q: Right. And when that happens the 18 views of the EA may be very relevant because they're 19 reflecting what you've described as the corporate centre. 20 Is that right? 21 A: Yes, in these highly rare occasions. 22 Q: Right. And another word for 23 "corporate centre" is party line in the vernacular? 24 A: Well, I'm reluctant to use that 25 because it has so many meanings --
1451 Q: Yeah. 2 A: -- in -- in a governmental setting, 3 but yes. 4 Q: Yeah. But I mean "corporate centre" 5 is a bit devoid of meaning as well. So I'm trying to get 6 something maybe that's in between meaning that if there's 7 a core value for the government as articulated let's say 8 by the Premier, then -- and that is communicated through 9 the EA then the Minister may have a problem if the 10 Minister is not in -- aligned with that, correct? 11 A: Yes. 12 Q: Okay. And -- and you went on to say 13 in your answer: 14 "Sometimes the EA is given instruction 15 and the Minister has difficulty and 16 then we have to work through the 17 Premier's office." 18 Right? So that's again consistent with 19 what you were explaining earlier today that if a minister 20 is offside the core -- one (1) of the core values of the 21 party in power as communicated to him through the EA's or 22 through his EA, then that problem, well, it may have to 23 be dealt with with the Premier? Isn't that right? 24 A: Yes, and they -- they have a variety 25 of ways. I -- they have a variety of ways --
1461 Q: Hmm hmm. 2 A: -- of dealing with it; through the 3 Premier, through the Premier's office, through the party. 4 We have -- there are a variety of ways in which they deal 5 with these issues. 6 Q: Right. But if we're dealing with a 7 core issue that is communicated to a Minister through his 8 EA that he has difficulty with and ultimately what I 9 understood your answer to be was -- it's the Premier or 10 the Premier's office that's going to have to get 11 involved. 12 A: Or -- and sometimes it's Cabinet that 13 -- where those issues are actually expressed. 14 Q: Or -- or Cabinet, right. So what I'm 15 trying to understand and what I think you were trying to 16 communicate, is that EA's, especially when they're 17 speaking on what may be viewed as core party issues, may 18 not necessarily in those -- on those issues be viewed as 19 subordinate to the -- to the Minister. 20 A: Well, that's not the conclusion I 21 would reach. I -- I think what's -- it's always 22 difficult to convey the fact that -- that Government is a 23 series of multiple accountabilities. 24 They're not either/or, they're multiple 25 accountabilities. And so when an Executive Assistant is
1471 hired she is expected to understand what the political 2 prerogatives are, it's a very delicate situation when 3 you're with a Minister to make sure that all of the 4 Minister's needs are made. 5 There are times when flags go up where a 6 Minister's inclination, a strong stakeholder would've 7 come in with a very powerful message, it's very difficult 8 to, on the one hand be reporting to the Minister, but 9 that other flag is always maintaining alignment with the 10 political. 11 So I don't look at it in terms of -- so 12 that I can sound Tagalian (phonetic). It's not a master 13 slave thing about who takes precedence over -- over whom. 14 It's a matter of multiple accountabilities. 15 Q: Right. No and that's -- that's what 16 I was taking from your answer. Because I think without 17 having had that information from you I might have assumed 18 that an Executive Assistant was only answerable to the 19 Minister. 20 And what you're helping us understand is 21 that the Executive Assistant has a -- has a loyalty also 22 to the corporate centre of the party and -- i.e., the 23 Premier. 24 A: Yeah. I just want to caution that -- 25 that a bureaucrat would not refer to the party. The
1481 party is outside the Government -- the Government 2 structure. So in this parti -- I hate to sound quibbly 3 again, but in this particular case which is why I don't 4 use the term party -- party line. 5 For example to -- to animate this -- this 6 point of view. An Executive Assistant would have met 7 with Guy Giorno who was the policy centre, is the man 8 responsible for policy co-ordination in the Premier's 9 office. 10 And he would have had meetings with all of 11 the political staff on a fairly regular basis to make 12 sure that the issues were going forward and what was the 13 chronology and what was happening. 14 And if there were contentious issues, what 15 were they? And were there issues that he needed to be 16 aware of, where they needed to straighten them out 17 between and among Ministers. So I'm hoping I've conveyed 18 this -- 19 Q: Yeah. 20 A: -- the environment for you. 21 Q: Right. And I'm not meaning to 22 quibble with you but the Executive Assistants are not 23 functioning on the civil service side; they're 24 functioning on the political side, are they not? 25 A: Yes. All I want to make plain is
1491 that in Government they're working on Government matters, 2 not party matters. They are not permitted to work on 3 party matters. 4 Q: Right. But from a political 5 perspective. 6 A: Thank you. Yes. 7 Q: Right? And -- and political 8 perspective involves what -- what the party's position is 9 on -- on matter -- on issues of the day. 10 A: Well, political issues are what the - 11 - an elected government has determined on what its party 12 had indicated -- 13 Q: Right. 14 A: -- prior but it is now operating 15 within what the Government priorities are as -- 16 Q: Right and seeking to implement in 17 many cases what it -- the platform that it ran on. 18 A: Correct. 19 Q: Right. And so I'm understanding from 20 your answer that while the Executive Assistants are there 21 to assist their Ministers, they're also there to a degree 22 to monitor the Ministers with respect to their compliance 23 and adherence to the -- the program that the Government 24 wants to implement. 25 A: I think that would be saying it too
1501 strongly. Their first allegiance would be to the 2 Minister. If things were going awry they would be 3 raising red flags that would be taken to another place to 4 be -- they're -- they're not oversight ombudsman on the 5 behaviour of their Ministers. 6 Q: No. But raising red flags with the 7 corporate centre of Government about the positions of 8 their Ministers. Am I understanding that correctly? 9 A: Yes. Or indeed what -- what they're 10 saying between and amongst Ministers. 11 Q: Right. Thank you very much, Dr. 12 Todres. 13 COMMISSIONER SIDNEY LINDEN: Thank you 14 very much, Mr. Horton. We're up to Mr. Falconer now and 15 I think we'll take lunch now. We'll take a lunch break 16 now. 17 THE REGISTRAR: This Inquiry stands 18 adjourned until 1:15. 19 20 --- Upon recessing at 11:59 a.m. 21 --- Upon resuming at 1:15 p.m. 22 23 THE REGISTRAR: This Inquiry is now 24 resumed, please be seated. 25
1511 (BRIEF PAUSE) 2 3 COMMISSIONER SIDNEY LINDEN: Is your time 4 estimate of two (2) hours still reasonably accurate, Mr. 5 Falconer? 6 MR. JULIAN FALCONER: Yes. I believe so. 7 COMMISSIONER SIDNEY LINDEN: Oh. 8 MR. JULIAN FALCONER: I -- I'd indicated 9 an estimate of two (2) to two and a half (2-1/2) hours 10 and I'm going to do my best to keep it to two (2). 11 COMMISSIONER SIDNEY LINDEN: That's fine. 12 Thank you very much. 13 14 (BRIEF PAUSE) 15 16 MR. JULIAN FALCONER: Brief indulgence, 17 Mr. Commissioner, I just organized these notes. 18 19 (BRIEF PAUSE) 20 21 CROSS-EXAMINATION BY MR. JULIAN FALCONER: 22 Q: Good afternoon, Dr. Todres. 23 A: Afternoon, Mr. Falconer. 24 Q: Dr. Todres, you've been very patient 25 with all counsel and I -- I hope I get the benefit of
1521 that patience. I know you're near the end of your 2 testimony and that makes it all the harder. 3 A: I can assure you you will. 4 Q: Dr. Todres, there's been substantial 5 discussion on the issue of the role of the Deputy 6 Solicitor General as the buffer. 7 And I don't want to repeat it all but do I 8 frame it correctly when I say that in the case of the 9 Ontario Provincial Police there exists no civilian 10 oversight body independent of the Ministry of the 11 Solicitor General, correct? 12 A: That's correct. 13 Q: And that as a -- and that stands in 14 contrast to, for example, municipal police services that 15 have a police services board who stands independent to 16 for example city council. Is that right? 17 A: That's correct. 18 Q: And that in circumstances when or 19 where there exists no separate independent civilian 20 oversight, the idea is that the Deputy Solicitor General 21 stands in a role as a buffer between the Solicitor 22 General on the one hand and the Ontario Provincial Police 23 on the other. 24 A: Yes. The only thing I wanted to 25 clarify and it would be others to actually seek to
1531 clarify, I must say that in the context of being a 2 Solicitor -- Deputy Solicitor General when I used the 3 term civilian oversight, I thought of it in terms of 4 OCOPS and the organization that actually oversaw 5 complaints arising from citizenry and their ability to 6 trigger a complaint mechanism independent of the police 7 force. 8 So I take it what you mean in this 9 instance, is not civilian oversight as I've described it 10 but rather what is the political body that is directly 11 respon -- elected or appointed that provides strategic 12 policy direction to a force. 13 Am I correct in -- in assuming that when 14 you use the term civilian oversight? 15 Q: I hear you and I promised myself that 16 -- and you called yourself a policy wonk so I only repeat 17 this out of appreciation for you and not in any way out 18 of disrespect. 19 A: Yeah. 20 Q: I think that we've been treated to 21 some very important information from you. But I promised 22 myself I wouldn't allow myself to be embroiled in a 23 debate with the policy wonk I couldn't win. 24 So I -- I -- but I understand the 25 distinction you're drawing and I take it, I do not in any
1541 way critically analyse that. I only ask you this. Then 2 your definition of civilian oversight as you discussed 3 before, the implication of that would be that the Ontario 4 Provincial Police doesn't have civilian oversight. 5 Is that fair? 6 A: Right. But I -- I took your answer - 7 - your question to also mean it does not have a structure 8 statutorily as the one that municipal forces have and I 9 agree -- 10 Q: That's correct. That's correct. 11 A: -- 100 percent. Yes. 12 Q: But the theory is that the civilian 13 oversight function is discharged by the Ministry of the 14 Solicitor General and in particularly through you as a 15 buffer as the Deputy Solicitor General. 16 A: Well, what I would say is that the 17 oversight function that is provided by the municipal 18 police services boards as proxies for citizens overseeing 19 police forces would be exercised through the office of 20 the Minister of the Solicitor General with me as the 21 buffer between the OPP, the Minister, and eventually 22 Parliament, in this case Legislature. 23 Q: Thank you. In that role it's fair to 24 say and you can pull it up. It's Commission counsel 25 document Tab 2, the McChesney paper.
1551 A: Hmm hmm. Yes, I see that, thank you. 2 Q: In that role the McChesney paper has 3 a number of propositions that I want to run by you and 4 make sure that I -- I understand or you and I are agreed 5 on your role as that buffer. 6 First of all at page 8 of the McChesney 7 paper. And I'm going to strive, Mr. Commissioner, not to 8 repeat areas covered by your counsel but I must admit 9 that there'll be a little bit of overlap but most of the 10 page numbers I have noted down, he didn't raise and then 11 I end up a page number he did raise. But I -- I'll do my 12 best. 13 At page 8 -- 14 A: Yes. 15 Q: -- of the McChesney paper. And -- 16 and I believe you said that you found that the McChesney 17 paper very accurately reflected what you believed was the 18 policy rationale behind your functions. Is that true? 19 A: Yes. Along with the caveat that I 20 have actually not seen it when I was the Deputy. 21 Q: But then you've read it since? 22 A: I have. 23 Q: And with all of your experience as a 24 Senior Deputy Solicitor General, in your opinion the 25 McChesney paper accurately reflects both how your
1561 function ought to be carried and indeed how it was 2 carried out at the time. 3 A: It describes what the legal 4 understanding is of the parameters and how I ought to 5 operate at the time, yes. 6 Q: And it accurately does so. 7 A: I believe so. 8 Q: At page 8 under Policy 9 Considerations. Ms. McChesney states as follows and -- 10 and I do -- I do -- am alive to the fact not everyone has 11 this document in front of them when I'm reading and I'm 12 not referring to counsel of course, I'm referring to the 13 general public who listen to this. 14 So I'm reading from a paper called 15 "Ministerial Control and the Ontario Provincial Police", 16 a 1991 discussion paper which is Exhibit P-578 in these 17 proceedings, and I simply say that because this is a 18 paper on the notion of how the rules should govern the -- 19 the relationship between police and the Solicitor 20 General, correct? 21 A: Yes. 22 Q: Now, Ms. McChesney states at page 8: 23 "Unfortunately, none of these reports 24 point to a clear resolution of the 25 problem. The difficulty is that the
1571 extent to which the Ministers should 2 intervene in the actions of the police 3 has been determined by personalities, 4 convention and necessity rather than by 5 a clear statement of law or policy." 6 Now just stopping there, would you agree 7 with that? 8 A: I would agree that we don't have a 9 great deal of codification in the Statute, and I think 10 that's what she meant to convey in that paragraph. 11 Q: I'm at page 8 -- 12 COMMISSIONER SIDNEY LINDEN: No, I'm with 13 you -- 14 MR. JULIAN FALCONER: -- of the paper. 15 COMMISSIONER SIDNEY LINDEN: I'm looking-- 16 MR. JULIAN FALCONER: Last paragraph. 17 COMMISSIONER SIDNEY LINDEN: I'm with you 18 on -- 19 MR. JULIAN FALCONER: I simply wanted to 20 make sure -- 21 COMMISSIONER SIDNEY LINDEN: -- now. 22 MR. JULIAN FALCONER: -- if you needed a 23 copy. 24 COMMISSIONER SIDNEY LINDEN: No, I have 25 it. I'm looking for something else.
1581 MR. JULIAN FALCONER: Thank you. I'm 2 sorry, Mr. Commissioner. 3 4 CONTINUED BY MR. JULIAN FALCONER: 5 Q: In terms of the statement, you'd 6 agree with me that in addition to the absence of 7 codification, the author makes reference to the fact 8 that, quote, "personalities", close quotes plays a role 9 in this issue, correct? 10 A: Yes, she does. 11 Q: And if you look at page 14, the top 12 of page 14, the first paragraph: 13 "It is difficult to codify in detail 14 the ministerial-deputy relationship, as 15 much depends on the temperament and 16 method of work of these two (2) 17 executives. 18 The Deputy is expected to be a highly 19 competent policy advisor and effective 20 crisis manager and a sound overall 21 executive. 22 A 1985 Price Waterhouse report 23 pertaining to management and 24 accountability in the Ontario 25 Government has noted while Deputies
1591 have a primary responsibility to serve 2 their Ministers, they must also serve 3 government-wide responsibilities." 4 Would you agree with that statement? 5 A: Yes, I would. 6 7 (BRIEF PAUSE) 8 9 Q: Now, would you agree with me that in 10 both cases, the reference to personality or the reference 11 to temperament and method of work are all about how the 12 people interact is as much determines the level of 13 accountability and -- and appropriateness of the lines as 14 anything else? 15 Is that fair? 16 A: Well, I just want to caution on this, 17 having read a lot of material on Deputy 18 Minister/Ministerial relationships. 19 That wouldn't have been a subject that Ms. 20 McChesney was actually an expert on. I think she's try - 21 - she was probably attempting to gather the literature. 22 I would say that operationally, while on 23 paper the responsibilities as between Ministers and 24 Deputies are plain, the way in which matters are 25 discussed or committees are established or the way in
1601 which a Minister wishes to be briefed and so on, that 2 kind of thing will vary from Minister to Deputy, from 3 Minister to Minister and Deputy to Deputy. 4 The responsibilities don't. 5 Q: At page 20, could you direct your 6 attention to page 20 please, under "How can Ministerial 7 Authority be more clearly defined"? 8 She repeats again at page 20, last line of 9 the first paragraph, quote: 10 "As noted on page 8, much depends on 11 the personality and method of work of 12 these senior executives." 13 True? 14 A: Yes. 15 Q: And it's fair to say that the more -- 16 that the personality and temperament plays more of a role 17 where there are less rules; is that true? 18 A: I'm reluctant to go down that path. 19 Let me just say that -- that since this material has been 20 written, there's a centre for leadership at -- in the 21 government. 22 The Secretary of Cabinet, over time, has 23 tried to clarify what the roles of the Deputy Minister 24 are and what their accountabilities are. 25 Those would have been written well after
1611 this kind of paper. So I -- I would be reluctant, under 2 Oath, to suggest that my duties and behaviours would be 3 subject to temperament and -- and personality. 4 It would leave the impression that, should 5 I not wish or could not get along with somebody, that 6 would in some way inform the way in which I made 7 decisions. 8 I am willing to say that people have 9 different kinds of relationships. 10 Q: And you made mention of a 11 centralization pursuant to the Cabinet office 12 initiatives? 13 A: Yes. 14 Q: And the cent -- the essence of 15 centralization is that whereas in the past and the past 16 is put very generally, prior to the initiatives you're 17 talking about, Ministers and Ministries may have run more 18 independently. 19 In current times there tends to be more of 20 an accountability structure towards the centre which is 21 the Premier's office, correct? 22 A: Let me rephrase that. I -- I think 23 this is an important point. 24 My -- my take on this particular issue 25 which is at the heart of: And where does ministerial
1621 accountability begin and end? And what is the role 2 between a minister and central agencies only one (1) of 3 which is the Premier's office and only one (1) of which 4 player is the Premier I would say that post -- what I -- 5 what I would have begun to see -- 6 First of all there was a time when the 7 clerk -- so the Premier was both in charge of the Civil 8 Service and the Premier's office. 9 Q: Yes. And the clerk in the context of 10 1995, who is it we're talking about? 11 A: The clerk would have been David 12 Lindsay -- 13 Q: Yes. 14 A: -- and the Secretary of Cabinet would 15 have been Rita Burak. When that -- 16 Q: And those are the two (2) people 17 you're really talking about? 18 A: Exactly. 19 Q: All right. 20 A: So that -- that fell out of fashion 21 and it became clear that you needed to separate and there 22 were a variety of governmental reviews and Glasgow 23 Commission. There were two (2) or three (3), the names 24 escape me, that led to a major reorganization of the 25 government in the '70s or so during the Conservative
1631 regime of Mr. Davis, but when we -- at -- where you still 2 began to see clear delineation between ministers -- 3 between the political arm and the bureaucratic arm, but 4 the ministers were given a large ambit for decision 5 making. 6 When the New Democratic Party formed the 7 government in 1990, we began to see from the perspective 8 of the senior civil service an unprecedented degree of 9 centralization of power within the central agencies such 10 that we would see first of all it was the first time when 11 we began to see words like -- and I can't recall whether 12 it was specifically within the NDP government, it may 13 have occurred before or after, but we began to hear terms 14 like, "Chief of Staff" versus "Executive Assistant". 15 In that -- in that era large numbers of 16 staff were added to the Cabinet office which hitherto had 17 been small, effective, important, significant, powerful, 18 but very large groups that not only would have 19 substantive responsibility in justice and so on and so 20 forth, but would also have a large communications squad. 21 And the same was true in the Premier's office. 22 Now, what would all of that have meant? 23 It would have meant that, for example, if an assistant 24 deputy minister would have wanted to make a speech... 25 Just imagine that you were in the Ministry
1641 of Health or even the Ministry of Community and Social 2 Services and a geriatric facility had called up and said 3 we're having a meeting or we're having a conference and 4 we'd love to speak and have somebody, you know, an expert 5 from your area and we'd love to have them come over, 6 whereas before that was considered to be a routine 7 matter, that matter would now be sent to the centre for a 8 decision because the centre was trying to control what 9 the messages were. 10 The Minister's offices were somewhat 11 curtailed in terms of what we would call traditional 12 ministerial accountability in the sense that many issues 13 that might have been decided upon by a minister would 14 have to be reviewed by these large numbers of staff. 15 And when I call the centre as I've 16 discussed in other times it's not just the Premier's 17 office and the Cabinet office, it was Management Board 18 Secretariat and now it's Treasury Board Secretariat and 19 these are all headed up by a variety of ministers. 20 So that trend which we began to see in the 21 early '90s was strengthened throughout this last decade 22 and a half through three (3) now governments and it is I 23 think a commonplace observation between those. I'm no 24 longer inside the government to say that there are -- 25 that there is a centralization.
1651 I guess the second point I'd want to make 2 on this trend, which is equally important and I think we 3 need to think about in terms of ministerial 4 accountability, et cetera, is the following, that there 5 was at time in the 1960's and '70s when I would have 6 understood that there were a number of commonly agreed 7 terms about what constituted a public good. 8 So I understood that a variety of things 9 were public good. 10 The point is that now we have a variety of 11 agencies that have proliferated over the years which 12 Ministers are accountable and where many direct services 13 are being directed. 14 The point of it is that we're in a 15 different world today than they were -- than we were ten 16 (10) or fifteen (15) years ago. 17 Q: Thank you. 18 COMMISSIONER SIDNEY LINDEN: Mr. 19 Falconer...? 20 MR. JULIAN FALCONER: Yes? 21 COMMISSIONER SIDNEY LINDEN: I want to 22 remind you that we have a Part II to this Inquiry -- 23 MR. JULIAN FALCONER: I understand. 24 COMMISSIONER SIDNEY LINDEN: -- and some 25 of this discussion is extremely interesting and helpful
1661 and I understand that Dr. Todres has a great deal of 2 knowledge and experience and, to some extent, some 3 discussion of Part II issues in Part I are useful, but I 4 don't want to have a purely Part II policy discussion in 5 the context of this part with this witness. 6 So, I know that there's a fine line and I 7 understand that your assistance in useful in larger 8 systemic issues, but somewhere between a purely policy 9 discussion which would better in Part II and asking a 10 witness questions that might be helpful in this factual 11 part. 12 MR. JULIAN FALCONER: And I -- 13 COMMISSIONER SIDNEY LINDEN: That's fine. 14 MR. JULIAN FALCONER: -- completely 15 understand and I intend to straddle that line -- 16 COMMISSIONER SIDNEY LINDEN: That's fine. 17 MR. JULIAN FALCONER: And I will think of 18 it as a stove pipe, Mr. Commissioner. I am starting 19 broad and I -- 20 COMMISSIONER SIDNEY LINDEN: And then you 21 can get into -- 22 MR. JULIAN FALCONER: -- will narrow it 23 to this -- 24 COMMISSIONER SIDNEY LINDEN: -- where 25 we're going.
1671 MR. JULIAN FALCONER: -- case. Yes. 2 COMMISSIONER SIDNEY LINDEN: I assume 3 that's what you're going to do, and that's fine. 4 MR. JULIAN FALCONER: Thank you. 5 COMMISSIONER SIDNEY LINDEN: Let's carry 6 on. 7 8 CONTINUED BY MR. JULIAN FALCONER: 9 Q: If you look at an extract I've placed 10 before you and for which you received notice, is a book 11 by John Ibbitson entitled "Promised Land"; do you have it 12 in front of you? 13 A: Yes, I do. 14 Q: And at page 101 of the extract, if 15 you could turn to 101. 16 A: Yes. 17 Q: There's a paragraph that starts, and 18 this refers to one of the first acts former Premier 19 Harris took in respect of Deputy Ministers, so I want to 20 run it by you, the facts, first. 21 You've already explained the current 22 political reality that Mr. Ibbitson refers to after, but 23 I want to take you to some facts and ask you if this was 24 your experience. 25 "One of Mike Harris' first acts as
1681 Premier had been to address all the 2 Deputy Ministers, the top executives in 3 the huge provincial bureaucracy at a 4 closed door session. On that occasion 5 he had delivered two (2) messages. 6 First, although the new government 7 welcomed advice on how to implement its 8 agenda, that agenda was not subject to 9 debate. [quote], 'I do require your 10 absolute commitment to the final 11 political determination of the 12 government' [close quotes] Harris told 13 them. 14 Second, he reminded the Deputy 15 Ministers that they owed their first 16 allegiance not to their Minister but to 17 Harris himself. This was a timely 18 reiteration of a political reality in 19 parliamentary democracies. Deputy 20 Ministers are not appointed by 21 Ministers, but by the Cabinet Secretary 22 who is in turn appointed by the 23 Premier. 24 As such, the senior bureaucracy owes it 25 first loyalty to the chief executive.
1691 One reason that Ministers are sometimes 2 the last to know what's going on in 3 their department. 4 Harris wanted to remind the manderinite 5 (phonetic) that he and his political 6 staff intended to keep firm, central 7 control of the government's agenda. 8 Ministers should be under no illusion 9 that they were sovereign within their 10 own departments. 11 [quote] 'Rita is well known to you' 12 [close quotes] he told them, 'and 13 through her you will communicate with 14 me on a routine basis. Your reports to 15 her will be for me only and will be 16 dealt with in confidence'. [close 17 quotes]. 18 Not even Harris' most powerful 19 Ministers would know what their 20 Deputies were telling the Premier." 21 Now, if you can sift out the 22 editorializing, I want to first ask you, factually 23 speaking, the reference to a meeting in which the Premier 24 set out, (a) I require your absolute commitment to the 25 final political determination of the government, did that
1701 happen? 2 A: Yes, the meeting occurred. 3 Q: All right. Secondly at that meeting 4 or at a subsequent meeting shortly thereafter, were the 5 Deputy Ministers reminded that the Deputy Ministers owed 6 their first allegiance not to their Minister but to 7 Harris himself? 8 A: I don't recall that specific wording, 9 I don't. 10 Q: Okay. 11 A: There -- 12 Q: Do you recall the gist of that idea? 13 A: Well, it was not new to us that we 14 were hired on the behest of the Crown, reported through 15 Rita to the Premier. So that not -- that would not have 16 been news. 17 Q: All right, so that the gist of this 18 idea, regardless of whether you recall the words, the 19 gist of this idea would have been something you were 20 aware of? 21 A: Yes. 22 Q: All right. And then the reference to 23 political reality, in fact, is exactly what you were 24 explaining to us before, correct? 25 A: The balancing the -- yes.
1711 Q: All right, and so it's fair to say 2 that as a Deputy Minister you carry almost dual 3 allegiances to both your Minister, the Solicitor General, 4 but what appears to be a very dominating allegiance to 5 the Chief Executive Officer, the Premier; correct? 6 A: Well, I think as I indicated on my 7 slide, a day and a half ago, I made it plain that any 8 Deputy under any regime would have reported to both 9 streams. 10 I wouldn't have -- have characterized it 11 as reporting directly to the CEO, because that wouldn't 12 have been a construct that I would have used, but it was 13 very clear that that particular Government wished to have 14 a great deal of discipline on both content and message. 15 Q: Thank you. And when you say that 16 particular Government, you're referring to the Harris 17 Government? 18 A: Yes, I am. 19 Q: And that message was transmitted to 20 you early on after your appointment? 21 A: Yes. 22 Q: Thank you. Now I wanted to 23 understand that in the context of the role you played and 24 I want to go back now to the McChesney paper if -- if you 25 would so indulge me. And in particular if you could turn
1721 to page 11 of the McChesney paper. 2 You'll see on the previous page, page 10, 3 there's a -- a subtitle 'Application to the Ministry of 4 the Solicitor General'. In other words, the application 5 of the principles she's been talking about to the 6 Ministry of the Solicitor General. 7 And she frames issues. And you'll see at 8 the bottom of page 10: 9 "While the lines may often become 10 blurred, nevertheless it is possible to 11 apply the distinction to the four (4) 12 key areas of ministerial 13 responsibility. These areas are --" 14 And she defines four (4) areas of 15 ministerial responsibility. The right to know, the right 16 to direct policy matters, the right to direct operational 17 matters. 18 Do -- do you see that? 19 A: Yes, I do. 20 Q: And how can ministerial authority be 21 more clearly defined. You'd agree that those are the 22 major areas of concern on this issue? 23 A: Yes. 24 Q: All right. And you'd agree with me 25 that as you analyse the right to know, the right to know
1731 is about a Minister has a need to know if that same 2 Minister is going to be accountable for his Ministry. Is 3 that right? 4 A: Yes. Subject to the caveats of not 5 creating danger et cetera, et cetera. 6 Q: And in fact, McChesney talks about 7 that and I don't want to bog us down, but the bottom line 8 is there's this fine balancing between the informational 9 flow from for example, the OPP to the Solicitor General, 10 so the Solicitor General can account for his Ministry. 11 There's the -- informational flow that 12 makes that happen but that has to be tempered by a filter 13 that ensures that politics don't interfere with 14 operations; isn't that right? 15 A: Yes. That's correct. 16 Q: And the buffer -- that the buffer 17 that's key in the period of June to September 1995, the 18 buffer responsible for making sure that that 19 informational flow was proper, was you? 20 A: Yes. 21 Q: And as Deputy Solicitor General, it's 22 obvious then that you were expected by policy to come 23 into possession of information that would not go to the 24 Minister because you're a buffer. 25 A: Yes.
1741 Q: And the idea was there was supposed 2 to be some free flow of discussion if you will, or 3 information between the Commissioner on the one hand and 4 you as Deputy Solicitor General on the other. 5 A: Yes. 6 Q: The two (2) of you, that is the 7 Commissioner and we've heard from Commissioner O'Grady, 8 the two (2) of you end up as guardians of what you called 9 the line of demarcation. 10 A: Yes. 11 Q: And in order to be a guardian I take 12 it you have to know what's going on. 13 A: Yes. Appreciating that some buffers 14 were applied before all information would have been 15 presented to me as well. 16 Q: Fair enough. But generally speaking 17 the principles -- 18 A: Yes. 19 Q: -- I'm setting out for you make 20 sense. 21 A: Yes. 22 Q: And so there was no issue in your 23 mind -- there was no issue in your mind that you and 24 Commissioner O'Grady could have discourse. 25 A: There was no issue in my mind. And
1751 we were -- 2 Q: And that's important. 3 A: Yes. And we were very careful. 4 Q: Yes. But the idea of you two (2) 5 having discourse is that he's got to feel free that you 6 won't pass this on to other politicians because you're 7 job as buffer would defeat that, wouldn't it? 8 A: Yes. 9 Q: Right. So a free flow of information 10 means for example, that you may have a concern about 11 Ipperwash and you may actually consult with the 12 Commissioner and say what's going on on the ground, I -- 13 I need to know. 14 And then you look at your notes of your 15 conversation and you go well none of this can go past me, 16 I'm a buffer I got to stop information A, B, C, but the 17 rest I can talk about. And the buffer worked, right? 18 That's how it's suppose to work. 19 A: Yeah. The only thing I would mention 20 in respect to the way which you've characterized it, I 21 don't recall having any conversations, if we're getting 22 down to reality, between the Commissioner and myself from 23 the time of my appointment 'til the phone call in the 24 middle of the night about Ipperwash. So we had many 25 conversations.
1761 Q: Well when you said we had many 2 conversations, you're saying there were no conversations 3 between you and Commissioner O'Grady before the middle of 4 the night on September 7th? 5 A: I don't recall having so -- but 6 you're -- you're -- 7 Q: About Ipperwash. 8 A: About Ipperwash. But we would have 9 had many conversations. 10 Q: But not about Ipperwash? 11 A: Not that I recall. 12 Q: Thank you. Now the other aspect to 13 that is that and -- and it's referred to again in the 14 McChesney paper and it -- and it's page 18. If you could 15 turn to page 18? 16 "This is not to say that the police 17 have no accountability with respect to 18 specific operational decisions. As 19 noted above, the Minister's 20 accountability for operational matters 21 may be to require information on what 22 has or will be done rather than as in 23 the policy area to control or direct 24 the actions of the police. 25 Reporting relationships should also be
1771 respected in order to avoid any 2 perception of political interference 3 (as opposed to the Minister's right to 4 be fully informed on all matters under 5 his or her jurisdiction.) Accordingly 6 it would be advisable for the Minister 7 to direct his or her requests for 8 information to the Commissioner." 9 Do you agree with that? 10 A: Yeah. 11 Q: And the idea that's being stated at 12 page 18 in the first main paragraph is the Commissioner 13 is just as important for the buffer function as you are. 14 Isn't that right? 15 A: Yes. 16 Q: In essence, you're co-guardians of 17 the line of demarcation, you and the Commissioner? 18 19 (BRIEF PAUSE) 20 21 A: I may not have used that language, 22 but I would -- I would say that he would exercise 23 discretion in -- in determining what degree of detail I 24 too would require. 25 Q: If you could turn to page 22?
1781 (BRIEF PAUSE) 2 3 Q: Under, Normal Channels of 4 Communication? 5 "The desired chain of communication is 6 from the Minister to the Deputy 7 Minister to the Commissioner, and from 8 the Commissioner to the Deputy Minister 9 to the Minister." 10 And so we're clear because I'm sure I 11 jumbled it, it's -- the idea is top down, down up; right? 12 Is that right? 13 A: Yeah. Yes. 14 Q: "The Minister may meet with both the 15 Deputy Minister and the Commissioner 16 together or with either individually. 17 Where the Minister wishes to discuss 18 and issue with the Commissioner alone 19 he or she should advise the Deputy 20 Minister of the intention. 21 Communication will always be enhanced 22 through official social contact." 23 Do you agree with that? 24 A: Yes. 25 Q: All right. And then could you turn
1791 to page 25 please? 2 3 (BRIEF PAUSE) 4 5 Q: The top of page 25? 6 "The Minister may be asked to be 7 informed on the general activities of 8 the OPP as they pertain to any 9 investigation or activity. The 10 Minister should make such request 11 through normal channels, that is 12 through the Deputy Minister to the 13 Commissioner to the investigating 14 officer. To do otherwise might be seen 15 as political interference in the 16 operations of the police. The 17 Commissioner may refuse to make a full 18 report if he believes it would contain 19 information, disclosure of which would 20 be contrary to the public interest." 21 And that's precisely your point about the 22 Commissioner withholding information, yes? 23 A: Yes. 24 Q: So he becomes a guardian of the line 25 of demarcation?
1801 A: Yes. 2 Q: And you're a guardian? 3 A: Hmm hmm. 4 Q: And that's why I called you co- 5 guardians. You agree with that? 6 A: Yes. 7 Q: And what's important here, is it not, 8 that there is a line of command, yes? 9 A: Yes. 10 Q: A chain of command? 11 A: Yes. 12 Q: And you are an integral part of it? 13 A: Yes. 14 Q: And the Commissioner's an integral 15 part of it? 16 A: Yes. 17 Q: When it comes to Ipperwash you never 18 spoke to the Commissioner until Dudley George was shot; 19 true? 20 A: That is my -- that is my 21 recollection, yes. 22 Q: And when you spoke to the 23 Commissioner and called him in the middle of the night; 24 yes? 25 A: Yes.
1811 Q: Because you were concerned; yes? 2 A: Yes. 3 Q: A tragedy had happened? 4 A: Yes. 5 Q: You must have felt sick about it? 6 A: I was sick to my stomach about it. 7 Q: And it's the kind of thing that your 8 human emotions are the first thing to come out because 9 somebody's died; correct? 10 A: Correct. 11 Q: And -- and all of us struggle with 12 that here, but -- but the bottom line is you have a clear 13 recollection of calling the Commissioner don't you? 14 A: Yes. 15 Q: And you have a recollection that when 16 you called the Commissioner he didn't know about the 17 shooting? 18 A: That's correct. 19 Q: So that somehow the channel that got 20 to you in the Ministry informed you of the shooting 21 before someone informed the Commissioner? 22 A: That's correct. 23 Q: Now, you'd agree with me and I'm -- 24 and I'm not being glib about this, the shooting of Dudley 25 George is an operational matter from the point of view of
1821 the discharge of lethal force by the Ontario Provincial 2 Police; yes? 3 A: Yes. 4 Q: And that operational piece of 5 information made it to you through an executive 6 assistant; correct? 7 A: It was communicated to me by the 8 Secretary of Cabinet. 9 Q: I'm sorry. It was communicated to 10 you through the Secretary of Cabinet, Ms. Burak? 11 A: That's correct. 12 Q: And on -- based on your experience 13 and your knowledge of the words spoken to you by 14 Commissioner O'Grady, no one on the ground had told him? 15 A: He said to me, I was not aware of 16 that or words to that effect. 17 Q: Thank you. Now, from that moment on 18 I take it you were in a very serious situation. You 19 already were, but now it was far more serious, yes? 20 A: Yes. 21 Q: Police operations on the ground had 22 become more complex because obviously the usage of lethal 23 force in this context meant things might escalate; 24 correct? 25 A: Correct.
1831 Q: And so police operations became more 2 complex? 3 A: Correct. 4 Q: As did the operations of the 5 Ministry? 6 A: Yes. 7 Q: But you knew it was important to stay 8 in touch with Commissioner O'Grady? 9 A: Yes. 10 Q: And you did? 11 A: Yes. 12 Q: And so while police operations 13 unfolded, post the shooting of Dudley George that night 14 of September 6th, you made a point of staying in touch 15 with the Commissioner and getting briefed by him; yes? 16 A: Yes. 17 Q: So there were complex police 18 operations going on after Dudley George was shot, but 19 because of your role as buffer, you knew you were free to 20 talk to that Commissioner; right? 21 A: Yes. I can't speak to how frequent 22 the meetings were, but there were certainly a number of 23 meetings and -- 24 Q: And that was your job -- 25 A: I remember at least one (1) in
1841 particular, there may have been more. 2 Q: And that was your job; correct? 3 A: I believe that that was my job. 4 Q: You made a reference before, Dr. 5 Todres, to the reality that there are seasoned officials 6 and there are unseasoned officials; correct? 7 A: Yes. 8 Q: You referred to Cabinet Minister 9 Hodgson as an unseasoned Minister; correct? 10 A: A new Minister, yes. 11 Q: Yeah, no, ma'am, with great respect, 12 you used the word unseasoned. 13 A: Yes, I did. 14 Q: All right, and you referred to Fox, 15 he's a seasoned officer. 16 A: Correct. 17 Q: And he was always a police officer 18 throughout this, correct? He -- he's also seconded to 19 your Ministry, but he never ceased being a police 20 officer; that's correct, isn't it? 21 A: I believe he didn't cease to be a 22 peace officer. These were new facts that were brought to 23 my attention a few days ago. 24 I am not an expert on that subject. 25 Q: No, but you were the Deputy Solicitor
1851 General in charge of the line of demarcation, yes? 2 A: Yes. He operated, as I've mentioned 3 many, many times, as a seconded staff person in the 4 context of being a civil servant to me. 5 Q: Okay, fair enough. But in any event, 6 he was a seasoned -- 7 A: Yes, he was. 8 Q: -- officer? And you had candidly 9 said that a good part of August, and I got a bit 10 confused, a part of August you were on holiday. 11 I try to disappear for all of August so I 12 am in no way being critical. 13 A: I have no idea. 14 Q: But a part of August -- 15 A: But I was away for some of it, yes. 16 Q: Yes. It could have been a good part 17 of August? 18 A: Could have been a good part, could 19 have been two (2) weeks, I don't recall. 20 Q: All right. In any event, you would 21 have been appointed in late June? 22 A: I was appointed in late June. 23 Q: And as important and as complex as 24 your functions were as Deputy Minister in respect of 25 Tourism, they did not involve oversight of the Ontario
1861 Provincial Police, did they? 2 A: No, they didn't. 3 Q: They did not involve the complex 4 running of the law enforcement arm of the state? 5 A: No, they did not. 6 Q: And so you took your job in late 7 June, you had July to be briefed; yes? 8 A: Yes. 9 Q: And then like every other ordinary 10 human being, you're entitled to some holiday time, so you 11 took it? 12 A: Yes. 13 Q: Otherwise you can't do your job; 14 right? 15 A: I decided to take my vacation then, I 16 think, yes. 17 Q: Yes. I tell my clients that all the 18 time. And then you returned after Labour Day; yes? 19 A: I'm not -- I can't recall whether 20 that was the first day upon my holiday, but I was at work 21 on September the 5th. 22 Q: Right. And that's when Ipperwash, in 23 essence, became the crisis incident; correct? 24 A: That's when it -- that's when the 25 issue began to become more serious.
1871 Q: Well, to be fair, the words you used 2 to describe the Cabinet Minister's management of it was, 3 quote: 4 "One (1) of the most complicated files 5 we'd seen." 6 Close quotes. 7 A: Yes. 8 Q: All right, so when you returned after 9 Labour Day, you were faced with, quote, "One (1) of the 10 most complicated files you'd seen", close quotes; yes? 11 A: Yes. 12 Q: And you would have had the benefit of 13 briefings in July; yes? 14 A: Yes. 15 Q: And then with absolutely no 16 experience in police oversight, with great respect, 17 ma'am, prior to late June 1995; correct? 18 A: Correct. 19 Q: And you became the guardian of the 20 line of demarcation in early September of 1995 on this 21 matter; correct? 22 A: Yes. 23 Q: And so with the greatest of respect 24 and deference to you, the -- the way you presented how 25 the Solicitor General Ministry is set up and the lines of
1881 accountability, the way you were able to chart all of 2 that out, comes as a result of many years of experience 3 you had as Deputy Solicitor General; correct? 4 That comes from that, doesn't it? 5 The way you were able to set out for us 6 all the different Ministries and I'll rephrase it, 7 because the question is a bit awkward. 8 You pointed -- you created in your own 9 handwriting a full chart of all the different 10 accountability mechanisms, how it worked. You went into 11 length about the policy ramifications of each one. That 12 comes from knowledge as a Deputy Solicitor General over a 13 course of years, doesn't it? 14 A: Well, I would just like to beg to 15 differ for just a moment. I did spend many, many years 16 being responsible for the civil service in general -- 17 Q: All right. 18 A: -- as the SVP, I spent many, many 19 years writing org. charts and overseeing structural 20 reorganization. So I could write today, probably, the 21 org. chart and the organizational responsibilities of 22 most Ministries. 23 Q: Fair enough, thank you. 24 A: So I -- I can't agree with the 25 conclusions that you've reached.
1891 Q: No. No. And fair enough. And I -- 2 and I understand your point and I meant no disrespect but 3 backing up a second, what I had asked you about is you 4 had thirty (30) days to be briefed on the police 5 oversight function you were serving, correct? 6 A: Correct. 7 Q: You came back after Labour Day and 8 you were presented with one (1) of the most complicated 9 files you'd seen, correct? 10 A: Yes. 11 Q: And you'd agree with me over the 12 course of your ministry it remains one (1) of the more 13 complicated files you had to manage, correct? 14 A: Yes. 15 Q: Now, then -- 16 COMMISSIONER SIDNEY LINDEN: If you need 17 time to say more than that you -- 18 THE WITNESS: I would just like to make 19 one (1) comment -- 20 COMMISSIONER SIDNEY LINDEN: Yes. 21 THE WITNESS: -- because I think it's 22 exceedingly important to say this. 23 The turnover in legal services in the 24 Ministry of the Solicitor General is probably close to 25 zero. The turnover of the senior assistant deputy
1901 ministers who were in my -- who were reporting to me, 2 they were fairly constant players and extremely familiar 3 with police oversight. Dr. Jim Young didn't need a 4 lecture on what police oversight and what the demarcation 5 lines were. 6 There were very, very seasoned players who 7 were my advisors so I -- I don't want us to be left with 8 the impression that a new deputy minister who in any 9 portfolio is faced with difficult issues is bereft of 10 exceedingly talented, dedicated staff who never leave and 11 who are expert and whose advice is sought on a day-by-day 12 basis if not a minute-by-minute basis. 13 14 CONTINUED BY MR. JULIAN FALCONER: 15 Q: I appreciate that. Dr. Jim Young, 16 did -- did he speak to Commissioner O'Grady between 17 September 4th and -- 18 A: I wouldn't know. 19 Q: I must be able to finish my question 20 for the record, that's all, because we talk over each 21 other otherwise. 22 Dr. Jim Young, did he speak to 23 Commissioner O'Grady between September 4th and the middle 24 of the night of -- of the early morning hours of 25 September 7th?
1911 A: I don't know. 2 Q: Did any of your assistant deputy 3 ministers speak to Commissioner O'Grady between September 4 4th in the middle of the night to September 7th, 1995? 5 A: Do you wish me to speculate? 6 Q: I just want to know if you have 7 knowledge? 8 A: I have no knowledge of those phone 9 calls. 10 Q: Thanks. And in reference though to 11 the process, when you called Cabinet Minister Hodgson 12 unseasoned I'm just asking you in -- in sort of -- in a 13 fairness way, it -- it is fair to say given your new 14 arrival at the portfolio you -- you were also an 15 unseasoned deputy solicitor general. Y 16 ou were a seasoned deputy minister, but an 17 unseasoned deputy solicitor general; isn't -- isn't that 18 fair? 19 A: I would say that I was a new 20 appointment. 21 Q: You don't like the word "unseasoned"? 22 A: Not as it applies to me I don't. 23 Q: Okay. Now, I asked you the questions 24 I asked you about Commissioner O'Grady and the 25 communications between the two (2) of you because
1921 Commissioner O'Grady had an opportunity to testify before 2 this Hearing and he advised that he had no idea about the 3 dining room meeting. Did you know that? 4 A: Now I know that. 5 Q: But when did you learn that? 6 A: I -- I would not have known what his 7 testimony was. I didn't read his testimony. 8 Q: All right. 9 A: And in my testimony I didn't indicate 10 that I spoke with him. 11 Q: Fair enough. If you could turn to 12 Tab 10 of the binder that I still have to give you. 13 14 (BRIEF PAUSE) 15 16 Q: I'm reading to you from a transcript 17 dated August 23rd, 2005, for the sake of Counsel. I'm 18 reading from page 248. Yes. 19 20 (BRIEF PAUSE) 21 22 A: I'm afraid I don't know where to 23 look. 24 Q: All right. Could you just give me 25 a brief indulgence?
1931 (BRIEF PAUSE) 2 3 Q: I apologize. If you could turn -- 4 it's in that same tab, Dr. Todres. We seem to have two 5 (2) tabs combined together and I apologize to counsel. 6 The passage I'm look at is August 25th, 7 2005 and I apologize to counsel. It seems I have two (2) 8 combined passages. So August 25th, 2005, this is the 9 evidence of Commissioner O'Grady. 10 A: Could you tell me what tab that is? 11 Q: Sure, it's Tab 10. But for some 12 reason we combined pages so if you flip four (4) pages 13 in, if you go to the fourth page at Tab 10 you'll see 14 August 25th, 2005 and my apologies, Dr. Todres. 15 And I -- for -- for your knowledge, Dr. 16 Todres, if you simply flip to that fourth page, you'll 17 see it's August 25th, 2005, do you see that? Do you have 18 that? You should see something that is a transcript with 19 a cover. Fourth page from the tab at the start. If you 20 turn four (4) pages in. 21 A: Okay. It says the Ipperwash Inquiry 22 before and now the table of contents. 23 Q: That's right. No flip to the page 24 before. 25 A: Yes.
1941 Q: Okay. You see August 25th, 2005? Do 2 you see that date? Dr. Todres? 3 A: I don't. 4 Q: All right. That's fine. 5 A: Could you refer the heading to me? 6 What -- what -- 7 Q: No problem. For counsel I'm at page 8 95 of the transcript of August 25th, 2005. And I 9 appreciate Mr. Millar's assistance. I thank you, sir. 10 A: Okay. Thank you. So where would you 11 like me to look? 12 Q: So for the benefit of counsel the 13 transcript excerpt starts three (3) pages in. So if you 14 flip three (3) pages from that date now. Simply turn 15 three (3) pages. 16 A: Forward? 17 MR. DERRY MILLAR: No, no. She's at the 18 right spot. 19 MR. JULIAN FALCONER: Oh, she is? 20 21 CONTINUED BY MR. JULIAN FALCONER: 22 Q: Are you at page 95 right now? 23 A: Yes. 24 Q: Thank you. Now you'll see that -- 25 starting at page 95 I take Commissioner O'Grady through
1951 the very passages I took you. And you'll see 96. 2 "Q: And during your entire ten (10) 3 years, did you come to any consensus 4 between your political masters on the 5 one hand and you on a difference? 6 A: Just generally but I understood 7 that in broad policy matters, the 8 Minister could have influence on what 9 the OPP, what policies the OPP worked 10 under. These are broad policies and 11 that operational matters he did not or 12 she did not." 13 All right now I just want to take you to 14 one other area in this paper. I want to move on and then 15 the author opines on operational matters. Right? Do you 16 see that? 17 A: Yes, I do. 18 Q: And then -- and I'm quoting from the 19 McChesney paper notwithstanding what the transcript says. 20 It says: 21 "This is not to say that the police 22 have no accountability with respect to 23 operational decisions." 24 Do you see that? A: Yes, I do. 25 Q: The very passage I just read to you.
1961 A: Yes. 2 Q: And flipping over; "Yes, I do." And 3 it makes reference at the top of page 97: 4 "Reporting relationships should also be 5 respected in order to avoid any 6 perception of political interference." 7 Do you see that? 8 A: Yes, I do. 9 Q: And -- and like you, Commissioner 10 O'Grady said he did. 11 A: Yes. 12 Q: And then I went on to question him. 13 "Q: Now that notion of respecting the 14 -- does -- do you get from that what I 15 get from that which is it's important 16 to 17 respect the chain of communication? 18 A: I do. 19 Q: And the notion that if you buck 20 that chain of communication or override 21 it especially in the operational area, 22 it could well give rise to a perception 23 of political interference. 24 A: Yes. 25 Q: All right."
1971 Now what you see is at page 22 and so you 2 have some context, we move quickly through that, 21's an 3 appendix and then I read him 22 on the desired chain of 4 communication just as I read it to you now? 5 A: Yes. 6 Q: All right. Could you flip to the 7 next page which is 99 please? 8 A: Yes. 9 Q: "Q: Now you see there's a 10 repetition of this notion that bucking 11 the chain of command and communications 12 could result in a perception of 13 political interference? 14 A: Yes. 15 Q: All right. And would you agree 16 with me not only could it result in a 17 perception, it could actually represent 18 actual political interference? 19 A: It could." 20 And then I put a series of questions to 21 him based on the facts now. 22 "Q: Would you agree with me that what 23 the author is proposing at page 25 that 24 I've just read to you is a notion -- 25 and 22 is a notion that the
1981 Commissioner is the person to work 2 through? 3 A: Yes. 4 Q: And the idea is if you work 5 through the Commissioner, then the 6 Commissioner can make that judgment 7 call about whether this is operational 8 information. 9 A: Exactly. 10 Q: And the idea is that you get to 11 assess based on your experience and 12 accountability as a leader whether this 13 is information these Cabinet Ministers 14 should have. 15 A: I agree. 16 Q: Now you can't make that call if 17 you don't know the Cabinet Ministers 18 are meeting with your people, correct? 19 A: That's true. 20 Q: And that's in essence what 21 happened with Inspector Fox, isn't it? 22 A: From what I know now, it seems 23 that is exactly what happened. 24 Q: And it's fair to say that it is 25 essential to that chain of
1991 communication be respected so you can 2 be there with your hand on the lever to 3 ensure there isn't an improper overlap 4 between political agendas and police 5 operations. 6 A: I agree. 7 Q: And having shown you all of the 8 information you now know of, would you 9 agree with me that unfortunately you 10 were bypassed? 11 A: It would seem that way. 12 Q: And, sir, in being bypassed would 13 you agree with me that the very danger 14 the author refers to -- in being 15 bypassed the very danger the author 16 refers to, a perception of political 17 interference has happened? 18 A: Yes." 19 Now, I gave you that evidence because 20 first of all you had indicated you didn't know what 21 Commissioner O'Grady said. 22 A: Correct. 23 Q: I've now given you that. Would you 24 agree with me that the chain of communication, the chain 25 of command in an ideal setting would have had
2001 Commissioner O'Grady being advised that Inspector Fox was 2 being brought into that meeting? 3 A: I'd have to reflect on that, I'm not 4 absolutely certain. I wasn't aware of what the meeting 5 was. I didn't know what we were going to be discussing. 6 In retrospect it might look as though (a) first of all 7 one had a great deal of time to inform somebody about 8 what was happening. I'm not certain about that. It was 9 a -- a highly -- clearly a highly unusual meeting. So I 10 -- I am still not certain that I would have been 11 obligated to inform him of that meeting taking place. 12 Q: You'd agree with me though that when 13 you say it was "highly unusual" you're saying that you 14 were called into very few meetings of that nature during 15 your entire career, correct? 16 A: That's correct. 17 Q: You were called into very few 18 meetings where the Premier and major Cabinet Ministers 19 sat with political staff and -- and ultimately seconded 20 police officers; that hasn't happened to you before? 21 A: However, I did not know who was 22 invited to the meeting when I was called to the meeting. 23 I was called to a meeting -- 24 Q: Right. 25 A: -- with the Premier.
2011 Q: And when you got in that meeting you 2 looked around the room and you were of the view it was 3 best to caution everybody about the separation between 4 state and the police? 5 A: That's correct. 6 Q: And did you repeat the caution at 7 some point in the meeting? 8 A: I stated it at the beginning of the 9 meeting. 10 Q: And did you repeat the caution at 11 some point? 12 A: I don't recall repeating it. 13 Q: All right. And at some point in the 14 meeting you've heard evidence and you're saying you do 15 not dispute that Officer Fox was called upon to brief 16 people in the meeting? You -- you... 17 A: Yes. 18 Q: And you don't dispute that happening? 19 A: I don't dispute that. I don't recall 20 it, but I don't dispute it. 21 Q: And I take it you also don't dispute 22 Sergeant Patrick's evidence who -- I can take you to this 23 on this -- but he testifies that Ron Fox was introduced 24 at the meeting by his rank and it surprised Sergeant 25 Patrick at the time. You don't dispute that do you?
2021 A: I don't recall it. 2 Q: Do you dispute it? 3 A: On what basis can I dispute it? 4 Q: I understand, ma'am but it's my job-- 5 A: I have so much -- 6 Q: It's -- it's my job. You look 7 exasperated and I'm saying -- 8 A: I -- I do. 9 COMMISSIONER SIDNEY LINDEN: Perhaps -- 10 she can't recall it. 11 MR. JULIAN FALCONER: Fair enough. 12 THE WITNESS: I've mentioned it many, 13 many times that I don't recall. 14 MR. JULIAN FALCONER: It is. It is, but 15 Mr. Commissioner, you know that I have an obligation. 16 Sometimes people say, I don't recall that and that never 17 -- that did not happen. Other times they say, I don't 18 recall it and I can't dispute it. So I have to -- 19 COMMISSIONER SIDNEY LINDEN: You asked if 20 she could and she just said she can't recall. 21 22 CONTINUED BY MR. JULIAN FALCONER: 23 Q: Fair enough. And -- and the -- the - 24 - what I take from that evidence about Mr. Fox being 25 introduced by his rank is that there was -- to the people
2031 who do -- who were the recipients of the introduction, to 2 some of them that wouldn't be news. You knew Ron Fox's 3 rank, correct? 4 A: Correct. 5 Q: Ron Fox tells us that the Solicitor 6 General, Mr. Runciman, certainly knew who he was and his 7 rank. 8 A: Yes. 9 Q: All right. So there were some people 10 in the room who knew he -- he was a peace officer, 11 correct? 12 A: People who would have had contact 13 with him like the Attorney General's staff, Minister of 14 the Attorney General, the Attorney General, et cetera. 15 Q: Yes, they would all in your mind, 16 based on your knowledge at the time, would have known 17 that he was a peace officer? 18 A: Yes. They would have known that he 19 was a seconded staff. 20 Q: Well, you see when you say that then 21 I get confused as to whether you're adding to my -- to -- 22 to my question and your answer or actually substituting. 23 Seconded staff is not the same as knowing 24 he's a peace officer as well as being a seconded staff. 25 A: They would not have been aware that
2041 he was a peace officer I don't believe. I think they 2 would have been aware that he was a seconded -- that he 3 was a seconded staff to me. Those people who were 4 familiar with the function of the Aboriginal Policing 5 Unit knew what his role was; I can't comment beyond that. 6 Q: All right. But I have a few 7 questions beyond that and you'll bear with me if you 8 don't mind. 9 In terms of the process though, we heard 10 from Ron Fox that in his mind, based on his interactions 11 with the Solicitor General Mr. Runciman and his 12 interactions with you, Dr. Todres, that in his mind there 13 was no doubt that both of you knew he was a peace officer 14 based on the notion that he was an Inspector in the OPP. 15 Is that fair? 16 A: That he held the rank of Inspector? 17 Yes, we were both aware of that. 18 Q: All right. And did your questions 19 that you answered me before, so I don't have to go 20 through them all again, still apply which is the other 21 people that would have had dealings with him would also 22 have known? 23 A: Yes. People who had -- I -- I 24 believe I answered that question. 25 COMMISSIONER SIDNEY LINDEN: Well, I'm
2051 not sure if you know how they know what his rank was -- 2 THE WITNESS: What I knew and I don't 3 know if they would have known what his rank was, but the 4 -- the folks who had contact with him in the nature of 5 the disposition of his work, those who worked in -- at 6 the staff level at MNR, I suspect, I -- I can't imagine. 7 I'm placed in a situation where I don't 8 know what other people think. 9 COMMISSIONER SIDNEY LINDEN: And just -- 10 that's your answer. 11 THE WITNESS: That's my answer. 12 COMMISSIONER SIDNEY LINDEN: That's fine. 13 MR. JULIAN FALCONER: Fair enough. 14 15 CONTINUED BY MR. JULIAN FALCONER: 16 Q: If I could have Exhibit P-973 placed 17 before the witness, please. 18 19 (BRIEF PAUSE) 20 21 Q: P-973 is the book of Hansards. 22 23 (BRIEF PAUSE) 24 25 A: I have a copy before me.
2061 (BRIEF PAUSE) 2 3 COMMISSIONER SIDNEY LINDEN: Yes, I do 4 have one. 5 6 CONTINUED BY MR. JULIAN FALCONER: 7 Q: I excerpted a passage from a text 8 book entitled "Public Administration and Policy; 9 Governing and Challenging Times", edited by Westmacott 10 and Melon. (phonetic) 11 Do you have that copy there in front -- 12 A: Yes, I do. In front of me, thank 13 you. 14 Q: Have you heard of this publication 15 before? 16 A: No, I haven't. 17 Q: All right. You pointed out in answer 18 to questions outside of your field that these questions 19 are being directed to a political scientist. 20 Do you remember saying that to one of my-- 21 A: Yes. 22 Q: Okay. So as a political scientist 23 and a person who has long experience as a Deputy Minister 24 I just wanted to run a few questions by you on the notion 25 of Ministerial accountability, all right?
2071 A: Fair enough. 2 Q: The chapter that's in front of you is 3 a chapter entitled, "Parliamentarians and Government 4 Accountability", do you see that? 5 A: Yes, I do, thank you. 6 Q: All right, and if you flip to page 7 40, you see page 40? 8 A: Yes, I do, thank you. 9 Q: "Perhaps the most obvious vehicle for 10 accountability in the House of Commons 11 has been Question Period. 12 For a number of good reasons, this is 13 the favourite method of accountability 14 for members of opposition parties. 15 First, the relative openness of the 16 process provides opposition members 17 with the opportunity to ask Cabinet 18 Ministers questions about their 19 Ministries or their own behaviour on 20 the record. 21 Questions are not restricted to bills 22 or resolutions presently in front of 23 the Chamber, but can be on any issue 24 regarding any activity in which the 25 government is, or is not engaged."
2081 Now, is that a fair, accurate statement in 2 respect Question Period? 3 A: Could I ask you, first before I 4 answer that, to tell me what the date of this publication 5 is? 6 Q: Well, I don't have it in front of me, 7 but if you need the date to answer to my last question, I 8 can get it. 9 I just want to know -- 10 A: No, I'm curious about whether it's 11 relatively recent, Mr. Falconer. 12 Q: I understand that and I'm happy to 13 help you but if -- 14 A: Okay, but I'll tell you where I'm 15 coming from, perhaps -- 16 Q: Yes. 17 A: -- on the response. What -- what I 18 have observed in the last number of years is that 19 Question Period is one method for Ministerial 20 accountability, but recent governments, in particular 21 over the last five (5) to seven (7) years, that would 22 include both the Conservative government and the -- the 23 Liberal Government today would argue that they've 24 developed new methods of accountability whereby they have 25 performance agreements and detailed standards and
2091 benchmarks and reports to the public on what it is that's 2 being done, so that there are now a growing number of 3 methods by which governments express their commitments to 4 their constituency and to the public and to citizenry. 5 So but -- so in other words, it is an 6 obvious vehicle, but it is not the sole vehicle. 7 Q: Does the author say it's the sole 8 vehicle? 9 A: No, but I -- I would say that if it 10 was written in 2005, a new author might phrase that 11 slightly differently; that's my only point. 12 Q: The author says, 13 "perhaps the most obvious vehicle for 14 accountability in the House of Commons 15 has been Question Period". 16 Do you agree with that? 17 A: And he's referring to the Federal 18 House of Commons, yes. 19 Q: All right. Now would you also agree 20 that in terms of Ministerial accountability, Question 21 Period and debates in the Provincial Legislature, also 22 represents a very important vehicle for accountability? 23 A: Yes, I would. 24 Q: And could you explain that a little 25 bit, as a policy wonk for us, why it is that the floor of
2101 the Legislature represents an important vehicle for 2 accountability? 3 A: In a British Parliamentary system -- 4 COMMISSIONER SIDNEY LINDEN: I'm not sure 5 if that -- just a minute. Yes... 6 MS. KIM TWOHIG: I would just like to 7 object to that in that I don't think this witness can add 8 to the body of knowledge that you have and that most 9 people in this room have. 10 COMMISSIONER SIDNEY LINDEN: I'm not sure 11 why you're asking this witness that question at this 12 time. 13 MR. JULIAN FALCONER: That -- that's 14 fine. I can -- I can move on but I must say that 15 obviously -- if it's not helpful to you, Mr. 16 Commissioner, and -- and I can move on. 17 COMMISSIONER SIDNEY LINDEN: Yes. 18 MR. JULIAN FALCONER: It's somewhat 19 axiomatic but I also have to get evidence on the record. 20 So there's different ways, I suppose, to do it. But I 21 can keep moving. 22 23 CONTINUED BY MR. JULIAN FALCONER: 24 Q: Are we -- you and I agreed that a 25 fundamental aspect of our democracy is that Ministers are
2111 held accountable on the floor of the Legislature? 2 A: Yes, I do. I agree with you on that. 3 Q: And I don't know if you want me to 4 take you to it, but there's examples in Hansard where 5 your Minister, the Solicitor General at the time, Mr. 6 Runciman, is actually asked questions and then he's asked 7 to ask questions of the -- of you, the Deputy Sol Gen. 8 And I'll give you a simple example, and -- because it 9 leads up to a question I have for you. 10 If you turn to the May 30th, 1996 Hansard. 11 It's at Tab 4 of your binder. 12 A: Yes. 13 Q: You'll see at page 2 of the Hansard. 14 A: I'm at -- page 2? 15 Q: Yes. 16 COMMISSIONER SIDNEY LINDEN: The pages 17 aren't numbered. Do you mean the second page in? 18 MR. JULIAN FALCONER: I apologize. 19 That's right. 20 COMMISSIONER SIDNEY LINDEN: Just flip 21 one (1) page? 22 MR. JULIAN FALCONER: If you could turn 23 into the second page. 24 COMMISSIONER SIDNEY LINDEN: I'm sorry. 25
2121 CONTINUED BY MR. JULIAN FALCONER: 2 Q: I'm sorry, the fourth page. If you 3 could turn to the fourth page, under Mr. Wildman. 4 Mr. Wildman the member for Algoma has a 5 question that he asks the -- Mr. Runciman, your Minister. 6 Do you have that? 7 "The Minister appears to want this 8 assembly to believe that he did not 9 become aware of the OPP buildup and the 10 request for personnel carriers 11 assistance from the Military until 12 September 7, the day after the 13 incident. And yet the military 14 officers indicated that they were 15 contacted on September 5th the day 16 before the incident. 17 The Solicitor General wants us to 18 believe that if the decisions were 19 being taken on September 5th, the OPP 20 did not inform him or his Deputy 21 Minister. 22 When did the OPP inform the Deputy 23 Solicitor General of this buildup and 24 the contact with the Military? 25 Was it before the meeting and if it
2131 was, why weren't you aware of it? And 2 if it was after the meeting, what 3 prompted the decision? 4 Honourable Mr. Runciman: I'm not 5 aware of any prior notification of the 6 Deputy Minister but I will pursue that 7 and provide the Honourable Member with 8 an answer." 9 And then if you flip -- did -- did you see 10 the passage I just read to you? 11 A: Yes, I did. 12 Q: And Dr. Todres, if you flip to page 13 7, halfway down page 7. So if you just flip over three 14 (3) pages. I'm sorry, they're not numbered. 15 So halfway down the page under -- right 16 under it says "The Speaker the Members for Cochrane South 17 come to order." Do you see that? 18 A: Would you repeat that again, Mr. 19 Falconer? 20 Q: If you flip to page 7, so three (3) 21 pages past page 4. 22 A: What's the top line if I might ask. 23 Q: Very responsible manner to ensure 24 they had the necessary resources. 25 A: Yes, thank you.
2141 Q: Thank you. And halfway down the page 2 under "Speaker, the Member for Cochrane South come to 3 order." Do you see that? It says the Speaker -- 4 A: Yes, yes, I do, thank you. 5 Q: Thank you. 6 "Honourable Mr. Runciman: I just 7 received a note that the Deputy 8 Minister was aware of the OPP request 9 for the armoured personnel carriers the 10 same day I was, September 7th, the day 11 I signed the letter." 12 Do you see that? 13 A: Yes. 14 Q: And that's not unusual, that kind of 15 interplay is it? 16 "Minister, could you tell me what you 17 knew as a Minister and what your Deputy 18 Minister knew about X or Y?" 19 A: Yes. 20 Q: And the Minister quite properly 21 avails of the question and enquires of his Deputy; 22 correct? 23 A: Correct. 24 Q: Which was you at the time? 25 A: Yes.
2151 Q: And I take it, it's -- in essence, 2 this is not unlike that discussion about staff but you're 3 not staff or Minister. But it's the notion that when the 4 Minister speaks, he speaks for himself but it speaks for 5 his Deputy Minister, doesn't he? 6 A: Well, he speaks for the Ministry. 7 Q: But the relationship between the 8 Minister and the Deputy Minister is such that it's so 9 proximate in responsible sharing that when the Minister 10 speaks about his state of knowledge, he speaks for the 11 Deputy Minister too, doesn't he? 12 A: I don't believe so. 13 Q: All right. Could I ask you this 14 though? Is it fair to say that part of your functions is 15 to understand the issues being canvassed in Question 16 Period and to assist the Minister to answer them if they 17 pertain to your brief? 18 A: Well, again, I -- my -- it -- in 19 general that's true and I would have staff who would be - 20 - I would not be revealing Hansard but I would have 21 people who would be revealing Hansard in Question Period 22 and assuring themselves that if there were questions of 23 the Han -- that were -- that were required to be answered 24 they would be so -- that would be done. 25 Q: And that was part of your function as
2161 Deputy Solicitor General to support the Minister in 2 providing whatever information you had -- 3 A: Correct. 4 Q: -- in answer to the questions. 5 Correct? 6 A: Correct. 7 Q: So part of your function was to keep 8 yourself reasonably informed on what was being raised in 9 the House; correct? 10 A: Well, I -- I think it's -- 11 Q: I said reasonably, I didn't -- 12 A: Yes. 13 Q: -- mean to know everything. 14 A: Yes. It was -- it was my 15 responsibility to see to it that a function was keeping a 16 very close handle on what was going on in Question 17 Period. 18 Q: And the function that kept the close 19 handle on what was going on in Question Period had, in 20 turn, the responsibility to report, through channels, to 21 you? 22 A: Yes. 23 Q: And so something could be raised on 24 an isolated basis and never raised again, you might hear 25 it was raised but frankly you may not deal with it.
2171 But something could be raised repeatedly 2 and then it would be something that comes to your 3 attention and you assist on; correct? 4 A: Yes, in some way. 5 Q: Now, the Ipperwash matter was a 6 matter you were directly involved in? 7 A: Yes. 8 Q: And you knew, and in fact you pointed 9 out you had over fifty (50) meetings that related to 10 Ipperwash; true? 11 A: It was a guess, yes. 12 Q: So you had intense involvement and 13 you pointed that out through your guess; correct? 14 A: Yes. 15 Q: And so one (1) of your functionaries, 16 as you put it, would have been monitoring the house on 17 the issues that were raised about Ipperwash when they 18 started percolating? 19 A: Yes. 20 Q: And I say percolating because you can 21 tell from the Hansard, Mr. Commissioner has already had 22 this education, but you can tell from the Hansard, that 23 really if you look at the index, just to assist you, 24 Dr. -- 25 A: Tell me --
2181 Q: -- Todres -- 2 A: -- where that would be. 3 Q: Yeah, I'm just trying to -- if you go 4 to the front of the binder there was an index prepared. 5 6 (BRIEF PAUSE) 7 8 Q: You see the index? You may be in the 9 wrong binder, I don't know. 10 A: But I take your word for it there's-- 11 Q: All right, you don't have an index 12 there? 13 A: I -- I -- oh, I have -- 14 Q: There it is. 15 A: -- an Inquiry, I have list of dates. 16 Q: Yes, that's it. 17 A: I see. 18 Q: All right. Do you see that in fact 19 it became an issue in the House starting in March of 1996 20 and then Ipperwash got discussed on all these dates 21 through Tab 30 on -- 22 A: Yes. 23 Q: -- May 30th -- on May 13th, 1997, all 24 right. 25 A: Yes.
2191 Q: I'm simply pointing that out. And as 2 you look at the dates, just if you could canvass the 3 dates for a moment with me in the index, you'll see March 4 18th, it -- it's raised briefly, April 1st and then May 5 29th and you see how it becomes intense May 29th, May 6 30th, June 4th, June 5th, June 6th, June 11th. 7 Do you see that? 8 A: Yes. 9 Q: That's consistent with your 10 experience, wasn't it, at the time, that it percolated 11 and then started becoming the subject of very intense 12 questioning; is that right? 13 A: Yes. 14 Q: And during that time, during that 15 very intense questioning, part of your job was to know 16 what issues were being raised, because after all, you had 17 an integral involvement in Ipperwash; yes? 18 A: Yes. And it was subject to the 19 comment that I made some time ago that I might have had 20 six hundred (600) other issues that I was following, some 21 of them more closely than others. 22 Q: But this was one (1) of the most 23 complicated files you had to handle; correct? 24 A: Yes. 25 Q: And in fact it was one (1) of the
2201 most complicated files you had to handle for the course 2 of your entire administration as a Deputy Solicitor 3 General; correct? That was your evidence, yes? 4 A: From an issue management point of 5 view, yes. 6 Q: All right, so when it's coming up on 7 an intense level in the House this many times, you have 8 somebody reporting to you on what's being discussed; yes? 9 A: Yes. 10 Q: And you knew, for example, that a 11 major issue and I am going somewhere, Mr. Commissioner. 12 I see you're shaking your head -- 13 COMMISSIONER SIDNEY LINDEN: I hope so, 14 because you've been going for over an hour and I'm still 15 having some difficulty -- 16 MR. JULIAN FALCONER: That's fine. 17 COMMISSIONER SIDNEY LINDEN: -- waiting 18 for you to start narrowing -- 19 MR. JULIAN FALCONER: I understand. 20 COMMISSIONER SIDNEY LINDEN: -- the 21 stovepipe. 22 MR. JULIAN FALCONER: I understand. 23 COMMISSIONER SIDNEY LINDEN: Thank you. 24 25 CONTINUED BY MR. JULIAN FALCONER:
2211 Q: You understood then, as you 2 understand now, that a major issue of concern at the time 3 in relation to the Ipperwash matter, was the question of 4 political interference; yes? 5 6 (BRIEF PAUSE) 7 8 A: Could you rephrase that question? 9 Q: You understood then, as you under -- 10 A: When was "then"? 11 Q: Then, in April and May 1996 when it's 12 percolating as I showed you in the House, you understood 13 then as you understand now, that a major question that 14 was being raised as it related to Ipperwash in the House, 15 was the question of political interference; correct? 16 A: My recollection of where I was at in 17 April and May was that this was an issue that was being 18 handled by the OPP and that it was -- it was going in the 19 right direction. 20 I would not have characterized, my 21 knowledge at the time and my recollection is not that I 22 was being concerned about whether or not there was any 23 degree of political interference. 24 Q: Fair enough. 25 A: In September, as the issue was
2221 clearly not being resolved, as I was being briefed by my 2 staff I think I've indicated this a number of times in 3 testimony, it became apparent to those who were advising 4 me that there were -- there were concerns about whether 5 or not there were too many folks with complicated 6 messages going back and forth. 7 And it was only around September -- 8 September 5th or 6th that I might have concerned myself 9 about whether or not we needed to change structures or 10 whatever. 11 Q: Okay. And that's in 1996? 12 A: In -- 13 Q: Or -- 14 A: -- 1990 -- in the September 5th and 15 6th of 1995. 16 Q: Right, but I'm talking -- when I said 17 "then" I was talking about 1996. I was simply asking 18 you, as the issue -- 19 A: Oh, I see. You were talking about 20 1996. 21 Q: Yes. 22 A: I'm in the wrong year. 23 COMMISSIONER SIDNEY LINDEN: I thought we 24 were -- 25 THE WITNESS: I'm sorry, I was in the
2231 wrong year. 2 MR. JULIAN FALCONER: I was -- 3 COMMISSIONER SIDNEY LINDEN: She was in 4 the wrong year. 5 MR. JULIAN FALCONER: Sorry. 6 THE WITNESS: Yes. 7 8 CONTINUED BY MR. JULIAN FALCONER: 9 Q: As the issues -- 10 A: Yes. 11 Q: -- percolated you knew then in 1996 12 as it was raised on the floor of the legislature along 13 all those dates that I show you: March, April, May, 14 June, all those dates -- 15 A: Yes? 16 Q: -- you knew then as you know now that 17 a major issue that the House was confronted with was the 18 question of political interference? 19 A: Yes. 20 Q: And the question was an allegation of 21 political interference in the police operation, yes? 22 A: Yes. 23 Q: And you knew then, as you do now, 24 that allegations, and they were allegations, I'm not 25 saying they're true at this day I'm just -- for the
2241 purposes of my questions was allegations and the 2 allegations were that important politicians, powerful 3 politicians, had been involved in directing the police, 4 correct? That was the allegation? 5 A: Yes. 6 Q: And it was part of your brief to pay 7 attention to that and assist the Minister where you could 8 on a file that you had direct involvement in? 9 A: Yes. I think we need to just take a 10 pause for a moment and talk about what actually happens 11 as between a minister or deputy -- a minister and then 12 Question Period. And I feel obliged to speak to this for 13 a moment. 14 I would have had many opportunities to 15 chat with the Minister through our normal weekly 16 briefings and whatever time was set aside, the Minister 17 would have set a fair amount of time with his Chief of 18 Staff. We would have prepared the issue notes and the 19 Minister would have decided how it is that he wished to 20 cover an issue. 21 Our responsibility and my responsibility 22 began and ended with the information that we delivered to 23 the Minister. 24 Q: Okay. Thank you. Now, if you could 25 turn to Tab 4, the May 30th, 1996, reference at Tab 4 in
2251 the Hansards? 2 A: Yes. 3 Q: Do you see how your minister, Mr. 4 Runciman, from pages 1 through 4 is fielding questions 5 from the Opposition about allegations of political 6 interference? 7 And -- and simply to assist you, if you 8 look at the first page of the May 30th, 1996, Hansard, 9 Ms. McLeod, Ms. Lyn McLeod leader of the Opposition: 10 "My question is for the Solicitor 11 General and it concerns the issues 12 surrounding the meeting of September 13 5th of senior government officials to 14 discuss the situation at Ipperwash. 15 Yesterday the Premier told this House 16 that the government was not informed of 17 the OPP build-up at Ipperwash. In fact 18 I quote directly from the Hansard the 19 Premier saying, We knew nothing of any 20 build-up. I ask you today, why did 21 the OPP choose not to inform the 22 government at that meeting the police 23 build-up at Ipperwash?" 24 Do you see that? 25 A: Yes, I do.
2261 Q: And do you see how the Solicitor 2 General at the time, Mr. Runciman, deals with that and 3 indicates that the Premier's office and former 4 governments did not in any way, shape, or form involve 5 themselves in the day-to-day police operations? Do you 6 see that? 7 A: Yes, I do. 8 Q: And do you see again he deals with it 9 throughout the next four (4) pages and describes the -- 10 the nature of the IMC meetings at the second page and the 11 third page? 12 There's a dealing with the issues. And if 13 you go to the third page Mr. Runciman, he attended the 14 meeting, the IMC meeting. 15 "Following the occupation the Minister 16 of Natural Resources and others 17 involved were informing the various 18 ministries and officials from these 19 ministries what had transpired." 20 So he's in essence reporting on the IMC 21 meetings. That is your minister, correct? 22 A: Yes. 23 Q: All right. Now, that's raised on May 24 29th -- I'm sorry May 30th, 1996. 25 In addition what is also raised with Mr.
2271 Runciman and ultimately raised with Mr. Harnick is at 2 page 5, the next page. Could you flip to page 5? 3 A: Yes. 4 Q: You see where it starts: 5 "Honourable Charles Harnick, Attorney 6 General?" 7 Do you see that at the top? 8 A: Yes. 9 Q: All right. And if you could go down 10 to Ms. Lankin for Beaches-Woodbine? 11 A: Yes. 12 Q: Do you see Ms. Lankin? 13 A: Yes, I do. 14 Q: Now -- now, the fact that a 15 discussion is had by one (1) Cabinet minister with the 16 House in front of another Cabinet minister does not in 17 any way absolve one (1) Cabinet minister from being full 18 and frank with the House does it, Dr. Todres? Dr. 19 Todres? 20 COMMISSIONER SIDNEY LINDEN: I'm sorry, 21 what's the question? 22 MR. JULIAN FALCONER: The fact that a 23 discussion -- 24 COMMISSIONER SIDNEY LINDEN: Yes. 25 MR. JULIAN FALCONER: -- is happening in
2281 the House, the Minister is giving -- a Cabinet Minister 2 is giving an answer to a question in the House in front 3 of another Cabinet Minister; the fact that that's 4 happening where -- that does not absolve the Cabinet 5 Minister that is sitting to be fully frank with the House 6 does it? 7 COMMISSIONER SIDNEY LINDEN: I'm sorry, 8 the Cabinet Minister that's sitting? 9 MR. DERRY MILLAR: Well, I don't 10 understand. 11 MR. JULIAN FALCONER: That's fine. I'm 12 withdrawing the question -- 13 COMMISSIONER SIDNEY LINDEN: I don't know 14 how -- 15 MR. JULIAN FALCONER: -- and moving on. 16 It's not worth the complicated answer. 17 COMMISSIONER SIDNEY LINDEN: Yes, yes. 18 MR. JULIAN FALCONER: Fine. 19 20 CONTINUED BY MR. JULIAN FALCONER: 21 Q: Ms. Lankin asks Mr. Harnick a 22 question and I'm going to read it to you: 23 "I put to the Minister again that the 24 minutes of that very committee say that 25 if an illegal occupation occurred the
2291 committee would be advised for them to 2 provide further direction. 3 It is ludicrous to use your words that 4 you would ask this House and the public 5 of Ontario to believe that in the 6 course of a major intense standoff with 7 an illegal occupation of a Provincial 8 Park, a group of bureaucrats and 9 political staffers would come together, 10 because I remind you this Committee 11 included your executive assistant, 12 David Moran; Deb Hutton from the 13 Premier's office; Philip Gordon from 14 Chris Hodgson's office, and a history 15 lesson as to who owned the Park and 16 what the rules are around these things 17 and not ask the question about what was 18 going to solve the standoff. 19 We've talked about options. Surely one 20 of the options was what steps the 21 police were going to take? Chief 22 Bressette received a phone call after 23 that meeting. Confidentially, he was 24 informed that in the course of 25 discussions with government officials,
2301 either at that meeting or at a 2 subsequent meeting involving Ministers, 3 someone gave the direction to, [quote] 4 'get those [expletive] Indians out of 5 the Park.' Yesterday, my leader asked 6 your Premier to investigate that. I 7 want to know what steps you've taken, I 8 want to know who you've spoken to, I 9 want to know if you've asked every 10 member of this Committee. 11 I want to know if you've ascertained 12 whether any other meetings, subsequent 13 to the blockade committee happened on 14 the 5th or the 6th prior to the 15 shooting and whether anyone reports 16 that those words were spoken and who 17 spoke those words." 18 Now, stopping there for a minute. You can 19 see from these pages that this all happened in the 20 presence of Mr. Harnick and what -- 21 COMMISSIONER SIDNEY LINDEN: I think this 22 was a question of Mr. Harnick -- 23 MR. JULIAN FALCONER: I'm -- I'm -- 24 that's right. 25 COMMISSIONER SIDNEY LINDEN: This was a
2311 question of Mr. Harnick. 2 3 CONTINUED BY MR. JULIAN FALCONER: 4 Q: That's right. And if you could flip 5 to the next page please, ma'am, the next question, the 6 new question is posed to Mr. Runciman. 7 COMMISSIONER SIDNEY LINDEN: Where's -- 8 MR. JULIAN FALCONER: The next page. 9 COMMISSIONER SIDNEY LINDEN: This is Mr. 10 Macleod, yes. 11 12 CONTINUED BY MR. JULIAN FALCONER: 13 Q: You see Mr. Runciman there? 14 A: Yes, I do. 15 Q: All right, now you'd agree with me 16 it's very common that in Question Period a question gets 17 directed to one (1) Minister then it gets directed to the 18 other Minister and back and forth. 19 Is that right? That's common? 20 A: Well, I don't know how common it is. 21 I don't know how common it is, I guess -- 22 Q: Fair enough. 23 A: -- it depends on whether their fields 24 abut one another. 25 Q: In this case, Mr. Runciman and Mr.
2321 Harnick's fields did abut one another, didn't they, as 2 they pertained to Ipperwash? 3 A: Yes. 4 COMMISSIONER SIDNEY LINDEN: Just a 5 minute, yes -- 6 MR. JULIAN FALCONER: She just said yes. 7 COMMISSIONER SIDNEY LINDEN: -- Ms. 8 Twohig, I'm trying to know what Ms. Twohig's objection 9 is. 10 MS. KIM TWOHIG: It's not very long, Mr. 11 Commissioner. I'm just -- I can't help but think that 12 since we're going to have other Ministers and the Premier 13 testify about what happens in the Legislature and what's 14 appropriate in the Legislature, they're the ones who 15 should be answering these questions -- 16 COMMISSIONER SIDNEY LINDEN: That would 17 be much -- 18 MS. KIM TWOHIG: Not Dr. Todres. 19 COMMISSIONER SIDNEY LINDEN: -- better 20 evidence. 21 MR. JULIAN FALCONER: Fine, I understand. 22 I'll keep moving. 23 24 CONTINUED BY MR. JULIAN FALCONER: 25 Q: If you could --
2331 COMMISSIONER SIDNEY LINDEN: I'm going to 2 want to take a break pretty soon now. 3 4 CONTINUED BY MR. JULIAN FALCONER: 5 Q: That's fine. If you could assist me, 6 though, the question that was raised by Ms. Lankin, it's 7 not only raised, ma'am, on May 30th 1996 -- 8 COMMISSIONER SIDNEY LINDEN: Excuse me, 9 I'd like to take a break. 10 MR. JULIAN FALCONER: Oh, okay. 11 COMMISSIONER SIDNEY LINDEN: Are you 12 about at a point where we could take a break? I mean, 13 it's now 2:30; we've been going for an hour and a 14 quarter, is this a reasonable time? 15 MR. JULIAN FALCONER: No, this is fine. 16 COMMISSIONER SIDNEY LINDEN: That's fine, 17 we'll take a break now. 18 THE REGISTRAR: This Inquiry will recess 19 for fifteen (15) minutes. 20 21 --- Upon recessing at 2:30 p.m. 22 --- Upon resuming at 3:42 p.m. 23 24 THE REGISTRAR: This Inquiry is now 25 resumed, please be seated.
2341 (BRIEF PAUSE) 2 3 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 4 Falconer...? 5 MR. JULIAN FALCONER: Thank you. 6 7 (BRIEF PAUSE) 8 9 CONTINUED BY MR. JULIAN FALCONER: 10 Q: On May 30th, 1996, one (1) of the 11 things that was raised in the House that I've already 12 taken you to, ma'am, in the presence of Mr. Runciman, 13 your Minister, was (a) a concern over political 14 interference and I'm referring to May 30th, 1996, 15 Hansard's Tab 4. 16 (a) a concern over political interference; 17 (b) a concern of lack of knowledge about 18 OPP build ups; and 19 (c) a concern over a statement, "Get the 20 fucking Indians out of the Park". 21 You remember... 22 MR. PETER DOWNARD: The concern that was 23 raised in the House is over a direction, not a statement, 24 just to be clear. 25 COMMISSIONER SIDNEY LINDEN: Thank you,
2351 Mr. Downard. 2 MR. JULIAN FALCONER: Only a lawyer could 3 do that and as another -- 4 COMMISSIONER SIDNEY LINDEN: Okay. 5 That's fine. 6 MR. JULIAN FALCONER: -- lawyer I admire 7 it. 8 COMMISSIONER SIDNEY LINDEN: Okay. Let's 9 carry on. It's a statement. I'm sorry, a direction not 10 a statement or a statement not a direction? 11 MR. PETER DOWNARD: Direction. 12 MR. JULIAN FALCONER: There's a 13 terminology that's developed -- 14 COMMISSIONER SIDNEY LINDEN: All right. 15 MR. JULIAN FALCONER: -- Mr. 16 Commissioner, call the Clintonian (phonetic) -- 17 COMMISSIONER SIDNEY LINDEN: Yes. 18 MR. JULIAN FALCONER: -- and -- and that 19 sounded Clintonian. 20 COMMISSIONER SIDNEY LINDEN: What's the 21 definition of -- 22 MR. PETER DOWNARD: No, it's not -- it's 23 not -- 24 MR. JULIAN FALCONER: What's the 25 definition --
2361 MR. PETER DOWNARD: No. 2 MR. JULIAN FALCONER: -- what's the 3 definition? 4 MR. PETER DOWNARD: No. There's -- the 5 sexual issue in this Inquiry is whether there was -- 6 MR. JULIAN FALCONER: Well, I don't want 7 My Friend to make argument. I raise -- 8 COMMISSIONER SIDNEY LINDEN: Please stop. 9 We have it. 10 MR. JULIAN FALCONER: All right. 11 COMMISSIONER SIDNEY LINDEN: You've made 12 your point. 13 MR. JULIAN FALCONER: Thank you. 14 COMMISSIONER SIDNEY LINDEN: The language 15 is to be used correctly. 16 MR. JULIAN FALCONER: Thank you. 17 COMMISSIONER SIDNEY LINDEN: Let's keep 18 going. 19 20 CONTINUED BY MR. JULIAN FALCONER: 21 Q: I took you to page 5 of the May 30th, 22 1996, Hansard and I can do it again but Mr. Harnick was 23 asked to investigate, Mr. Harris agreed to investigate 24 quote: 25 "Whether anyone reports that those
2371 words were spoken and who spoke those 2 words." 3 Do you see that, page 5 bottom of Ms. 4 Lankin's question, member for Beaches-Woodbine: 5 "Whether anyone reports that those 6 words were spoken and who spoke those 7 words." 8 Do you see it? 9 A: Yes. 10 Q: Okay. Thank you. Now, the words 11 that she's referring to were, "Get the fucking Indians 12 out of the Park." 13 On June 4th, 1996 -- on June 4th, 1996, 14 the same issue was raised in the House; you'll see that 15 at Tab 5. Do you see that? And I'm going to undertake 16 to you for a minute because, Dr. Todres, just -- if you 17 could look up for one (1) second, so you know this. 18 We have gone through these Hansards in 19 detail as a -- as a Commission so if -- if I take the 20 liberty of saying I undertake to you that it was raised 21 in the House, Mr. Commissioner will know what I'm trying 22 to do which is to -- 23 COMMISSIONER SIDNEY LINDEN: I can assure 24 you if he's not stating it correctly somebody will raise 25 it and raise it quickly. So --
2381 MR. JULIAN FALCONER: But -- but I do 2 want you to note something, that on June 4th, 1996, 3 there's no indication that Mr. Runciman was in the House 4 at the time it was raised; that is, there's only a 5 reference in this passage to Mr. Harnick, the Attorney 6 General. I simply point that out, but it was raised in 7 the House on June 4th, 1996. 8 It was raised again in the House on June 9 5th, 1996. So it was raised May 30th, June 4th, June 10 5th; three (3) days the same expression, Get the fucking 11 Indians out of the Park, was raised as an issue that 12 Opposition members were concerned with. They wanted to 13 know whether the words were spoken and who spoke the 14 words. 15 Now, before I go further and show you the 16 other days it was raised, just stopping there for a 17 minute, it's fair to say that we were talking about a 18 brief that you had a personal involvement in; yes? 19 A: Yes. 20 Q: We are talking about a situation, as 21 you put it, where one (1) of your responsibilities as the 22 Deputy Solicitor General was to be in receipt of 23 information as to what was going on in the House; right? 24 A: Yes. 25 Q: And so it's fair to say, and I can
2391 take you to the other days it was raised, it's fair to 2 say for example it was raised on June 6th, 1996, if you 3 take a look at Tab 7. Now we're into four (4) times that 4 the members of the Opposition raise it. 5 And it's fair to say that it was your job 6 when something's being raise two (2), three (3), four 7 (4), and five (5) times on a matter that you were 8 personally involved in it's at least your job to know 9 that they're asking about it; correct? 10 A: Yes. 11 Q: All right. And as you think back, 12 I'm going to suggest to you that that issue of whether 13 somebody uttered those words, Get the fucking Indians out 14 the Park, was an issue you recall arising in terms of a 15 matter that was percolating in the House; correct? 16 A: I don't have a recall now, but you've 17 shown me that it was in the House. 18 Q: And therefore, in terms of your 19 recollection of your responsibilities, it would have come 20 as something to your attention? 21 A: Likely, yes. 22 Q: All right. And so in coming to your 23 attention, you knew that among other things it was your 24 obligation to cooperate and advise as to what you knew 25 about those words. Isn't that fair?
2401 A: I was not asked about those words. 2 Perhaps you could... 3 COMMISSIONER SIDNEY LINDEN: Yes? 4 MS. KIM TWOHIG: I'm wondering if My 5 Friend could specify what he means by cooperate? 6 MR. JULIAN FALCONER: That's fine. 7 MS. KIM TWOHIG: With whom and in what 8 way? 9 MR. JULIAN FALCONER: That's fine. I 10 don't have a problem with that. 11 12 CONTINUED BY MR. JULIAN FALCONER: 13 Q: You knew that one (1) of the 14 functions of a legislature is to ensure accountability 15 through the ministers; right? 16 A: Yes. 17 Q: And you also knew that as Deputy 18 Solicitor General with a personal involvement in the 19 brief, that if you had knowledge of the words, Get the 20 fucking Indians out of the Park or words similar to that, 21 that that was relevant knowledge to what the Opposition 22 members were asking about? Isn't that true? 23 A: I was not asked directly by anyone, 24 until this Commission, whether I had heard those words. 25 I had not understood -- let's put it this way, my
2411 responsibility I believe was discharged, I did not 2 believe that I had any further responsibility. 3 Q: So can I -- can we now revisit what 4 you told Mr. Scullion? Mr. Scullion said, Why didn't you 5 bring it up before and -- and you had said to Mr. 6 Scullion words to the effect, there was no forum for me 7 to raise that. 8 Do -- do you recall testifying to that? 9 A: Yes, I do. 10 Q: Would you agree with me that just as 11 the example I raised with you on the Hansard's of May 12 30th, 1996 where quite simply the Solicitor General 13 checked with the Deputy Solicitor General, you could have 14 easily advised your Minister, as part of your functions, 15 that these words were spoken. 16 You could have done that. That was an 17 option open to you. 18 A: I suppose so. 19 Q: And would you agree with me that a 20 Cabinet Minister expressing the words, Get the fucking 21 Indians out of my Park, is so close to the words, Get the 22 fucking Indians out of the Park, that you're not going to 23 rely on the difference between 'my' and 'the' to explain 24 why you didn't disclose it to Mr. Runciman, are you? 25 A: Minister Runciman and I were in the
2421 same room. I was not aware of who heard the expression 2 or not. I will again respond by saying I believe that I 3 discharged my duties at the time and did not believe I 4 had a forum within which to take the matter further. 5 Q: I -- I have your answer but I did ask 6 the question, Mr. Commissioner, and I'm not trying to be 7 unduly pressing of the witness but I asked if there was a 8 difference between 'my' and 'the' to cause her not to 9 answer. 10 And I'm just asking for an answer to that 11 one single question. The existence of the difference 12 between 'my Park' or 'the Park' wouldn't be a basis for 13 you not to provide the information, would it? 14 A: No. 15 Q: All right. And I appreciate that 16 candour. And -- and then to go from there, whether or 17 not you felt it did comply with your duties or didn't 18 comply with your duties to tell your Minister what you 19 heard, would you agree with me that it was open to you to 20 do that? 21 COMMISSIONER SIDNEY LINDEN: She already 22 did. 23 MR. JULIAN FALCONER: She said yes? 24 COMMISSIONER SIDNEY LINDEN: Yes, I 25 believe that was the question you asked one --
2431 MR. JULIAN FALCONER: All right. Thank 2 you, ma'am and I apologize. 3 COMMISSIONER SIDNEY LINDEN: That's fine. 4 5 CONTINUED BY MR. JULIAN FALCONER: 6 Q: I apologize. Now I want to go from 7 there to talk to you about the House. Minister Runciman, 8 was he someone who generally was very candid in how he 9 answered questions in the House in your experience. That 10 is, you would experience issues together. 11 And I want to know what your experience 12 was with Minister Runciman's candour in answering 13 questions in the House. 14 COMMISSIONER SIDNEY LINDEN: I thought 15 you were going to move on to another point. 16 MR. JULIAN FALCONER: Well no, I have a - 17 - I have another question. I'm moving beyond the 18 question I asked and I have another question. 19 COMMISSIONER SIDNEY LINDEN: Ms. Twohig 20 do you an objection? 21 MS. KIM TWOHIG: Well it seems to me that 22 what My Friend is trying to do is to get at the 23 credibility of Mr. Runciman through his former Deputy 24 Minister. 25 COMMISSIONER SIDNEY LINDEN: I don't
2441 think that's appropriate at all. 2 MS. KIM TWOHIG: No. 3 MR. JULIAN FALCONER: Well I can rephrase 4 the question, but let's be fair. How many lawyers for 5 Cabinet Ministers have stood up and asked questions of 6 witnesses such as this about the great judgment of these 7 Cabinet Ministers, about how these Cabinet Ministers are 8 good people. 9 COMMISSIONER SIDNEY LINDEN: Well -- 10 MR. JULIAN FALCONER: But no, but we 11 can't have it only one way. 12 COMMISSIONER SIDNEY LINDEN: Please, Mr. 13 Downard. Ask relevant questions, move on. 14 MR. JULIAN FALCONER: All right. I'll -- 15 I'll move on. 16 COMMISSIONER SIDNEY LINDEN: I think 17 you've made a point. 18 19 CONTINUED BY MR. JULIAN FALCONER: 20 Q: I'm asking that a newspaper article 21 dated today's date, December 1st, 2005 be placed in front 22 of the witness please. 23 In the National Post, Mr. Runciman is 24 quoted as follows: 25 "When former Ontario Attorney General,
2451 Charles Harnick lied in the Legislature 2 to help his friend and then Premier 3 Mike Harris, it was not only the wrong 4 thing to do but also an odd decision 5 considering that Legislators dodge and 6 sidestep tricky questions everyday 7 experts and politicians say. 8 [quote] 'There are ways to avoid 9 answering questions which we see on a 10 daily basis,' [closed quotes] said Tory 11 Opposition House Leader Bob Runciman 12 who is due to testify next year at the 13 Ipperwash Inquiry where Harnick made 14 his admission Monday. 15 [quote] 'Rather than telling an 16 untruth, you don't respond in a direct 17 fashion. There's no obligation in the 18 Legislature standing orders to respond 19 to a question,' [closed quotes] 20 Runciman said." 21 Was that your knowledge of Mr. Runciman's 22 approach to answering questions in the House? You may 23 have no knowledge, but I want to know what your knowledge 24 is. 25 COMMISSIONER SIDNEY LINDEN: Well I'm
2461 afraid that we're going off into areas that are 2 irrelevant and not helpful to this Commission. Let's 3 move on. 4 MR. JULIAN FALCONER: Fair enough. I'll 5 move on to my next question. 6 7 CONTINUED BY MR. JULIAN FALCONER: 8 Q: My next question is: Was it your 9 impression that Mr. Runciman, in addressing this matter, 10 was, in essence, quote, "Not responding in a direct 11 fashion," closed quotes, or alternatively seeing this as 12 a matter that he, quote: 13 "Had no obligation to answer in the 14 House." 15 MR. DERRY MILLAR: You can ask that 16 question of Mr. Runciman. 17 COMMISSIONER SIDNEY LINDEN: Yes. 18 MR. JULIAN FALCONER: Fair enough. 19 COMMISSIONER SIDNEY LINDEN: I think 20 that's right. 21 MR. JULIAN FALCONER: I'll move on. 22 COMMISSIONER SIDNEY LINDEN: I think you 23 should move to another area, Mr. Falconer. 24 MR. JULIAN FALCONER: All right. 25
2471 (BRIEF PAUSE) 2 3 MR. JULIAN FALCONER: I'm in no way 4 seeking to argue with you, Mr. Commissioner, I'm simply - 5 - I do -- 6 COMMISSIONER SIDNEY LINDEN: Yes -- 7 MR. JULIAN FALCONER: -- have a last 8 question in this area, so I'm going to ask it and then 9 I'm not trying to make you mad at me. I will wait for 10 you -- if Mr. Commissioner, if it's something that runs 11 afoul of any ruling you've made, you'll tell me. 12 13 CONTINUED BY MR. JULIAN FALCONER: 14 Q: I simply want to know, Dr. Todres, in 15 terms of the issue, that is the statement made in the 16 House, the request by the opposition members to provide 17 any information about the, Get the fucking Indians out of 18 the Park, did you tell anyone else what you knew about 19 what Mr. Hodgson said? 20 A: No. 21 Q: Did Mr. Harnick ever ask you, Did you 22 hear the comment? 23 A: No. 24 Q: Did Mr. Runciman ever ask you whether 25 you heard the comment?
2481 A: No. 2 Q: You kept referring previously to 3 confidentiality and principles of confidentiality as they 4 attached to meetings such as the dining room meeting, 5 correct? 6 A: Yes, I did. 7 Q: Would you agree with me that the 8 dining room meeting was a formal meeting? 9 A: Was a formal meeting? 10 Q: Formal meeting, formal. F-O-R-M-A-L, 11 formal. 12 A: No, I would not. 13 Q: All right. And whether it was a 14 formal or informal meeting, is it because of your -- 15 somehow a view of confidentiality that you were not 16 forthcoming to anyone about this before today? 17 A: Yes. 18 COMMISSIONER SIDNEY LINDEN: I think -- 19 MR. JULIAN FALCONER: Well, the answer's 20 yes. 21 COMMISSIONER SIDNEY LINDEN: I had 22 understanding that you're moving on to another area. 23 MR. JULIAN FALCONER: Well, Mr. 24 Commissioner, with respect -- 25 COMMISSIONER SIDNEY LINDEN: I would --
2491 MR. JULIAN FALCONER: I understand that 2 you want me to move on but these are new questions. 3 COMMISSIONER SIDNEY LINDEN: No -- 4 MR. JULIAN FALCONER: No one's asked 5 them. She's now said that -- 6 COMMISSIONER SIDNEY LINDEN: Well -- 7 MR. JULIAN FALCONER: -- confidentiality 8 precluded her from being candid. Now, I -- 9 MR. DERRY MILLAR: Well, she -- I don't 10 think -- My Friend does not need to make speeches, as 11 he's told me once, about the witness. 12 That's up to you to decide. 13 MR. JULIAN FALCONER: Fair enough. 14 MR. DERRY MILLAR: And so I'd ask My 15 Friend not to make speeches like that. 16 COMMISSIONER SIDNEY LINDEN: Yes, that's 17 fine. 18 MR. DERRY MILLAR: But My Friend, with 19 respect, I think My Friend's question was -- the last 20 question, if I've got it right, which the witness 21 answered, was not an inappropriate question. 22 COMMISSIONER SIDNEY LINDEN: Which 23 question was that? 24 MR. JULIAN FALCONER: Was it your feeling 25 about confidentiality that caused you not to be
2501 forthcoming about the statement made in that meeting? 2 COMMISSIONER SIDNEY LINDEN: All right. 3 You've asked the question -- 4 MR. JULIAN FALCONER: And she's -- 5 COMMISSIONER SIDNEY LINDEN: -- and 6 before you answer, Ms. Twohig doesn't -- I'm not sure if 7 you -- 8 MR. DERRY MILLAR: The witness answered 9 the question. 10 COMMISSIONER SIDNEY LINDEN: She's 11 already answered it? 12 MR. DERRY MILLAR: She said yes. 13 COMMISSIONER SIDNEY LINDEN: Okay, then 14 let's move on. 15 MR. JULIAN FALCONER: She said, yes. 16 Well -- 17 COMMISSIONER SIDNEY LINDEN: Then I don't 18 want to have it ruled as an inappropriate question. 19 She's asked it -- 20 MR. JULIAN FALCONER: Right. 21 COMMISSIONER SIDNEY LINDEN: -- answered 22 it, let's move on. 23 MR. JULIAN FALCONER: That's fair enough. 24 Now, I -- but I do get to, with respect, ask something 25 flowing from --
2511 COMMISSIONER SIDNEY LINDEN: If it's 2 relevant. 3 MR. JULIAN FALCONER: Thank you. 4 COMMISSIONER SIDNEY LINDEN: Go ahead. 5 6 CONTINUED BY MR. JULIAN FALCONER: 7 Q: Now, you've said that confidentiality 8 precluded you from coming forward earlier. Would you 9 agree with me that that answer, confidentiality, is a 10 different answer than there existed no forum for you to 11 give this information, the answer you gave Mr. Scullion? 12 Would you agree with me that those are two 13 (2) different considerations? 14 15 (BRIEF PAUSE) 16 17 COMMISSIONER SIDNEY LINDEN: That's a 18 fair question, I think -- 19 MS. KIM TWOHIG: I'm not trying to -- 20 COMMISSIONER SIDNEY LINDEN: -- she can 21 answer that question. 22 MS. KIM TWOHIG: Is My Friend suggesting 23 that there was a forum in which she should have come 24 forward -- 25 COMMISSIONER SIDNEY LINDEN: Well, he's
2521 just saying, that's a different -- 2 MS. KIM TWOHIG: -- perhaps we're not 3 clear. 4 COMMISSIONER SIDNEY LINDEN: -- that's a 5 different answer. 6 MR. JULIAN FALCONER: Well, I asked the 7 question; it was a fair question. 8 COMMISSIONER SIDNEY LINDEN: I think it 9 was a fair question. Go ahead and answer that. 10 THE WITNESS: Yes. 11 12 CONTINUED BY MR. JULIAN FALCONER: 13 Q: And stopping there, what -- what are 14 we to take from what you've said and I ask you it for 15 this reason: Aboriginal Legal Services of Toronto's 16 interest in these proceedings, among other things, is the 17 question of systemic racism and the issues of race, as 18 they pertain to First Nations people, in the context of 19 Ipperwash. 20 Are we to take from your answer that a 21 potentially, and I do not say this was or was not a 22 racist statement, that a potentially racist statement 23 could be made by a Cabinet Minister in a meeting, formal 24 or informal, and that confidentiality would preclude you 25 from telling anyone about it.
2531 Am I to take that? 2 A: When I walked out of that meeting, I 3 believed that there was a great deal of conversation that 4 took place and that there was one direction that was 5 given, and that that was the direction that was been 6 assigned, as I've discussed this earlier, and that I 7 would have been held to confidentiality as I would have 8 had that meeting been taking place in another setting. 9 Q: Regardless of whether a racist 10 statement was made or not, is that your point? 11 12 (BRIEF PAUSE) 13 14 A: Regardless of any statements that 15 would have been made in that -- 16 Q: Thank you. 17 A: -- context. 18 Q: Now I am moving on. 19 COMMISSIONER SIDNEY LINDEN: Thank you. 20 21 CONTINUED BY MR. JULIAN FALCONER: 22 Q: In terms of your evidence to-date, as 23 that person that's the guardian of the line of 24 demarcation, you have testified that you did not think 25 there was political interference in the police operations
2541 at Ipperwash; is that correct? 2 A: Yes. 3 Q: As the buffer, would you also agree 4 with this suggestion to you, that it is not only the fact 5 of political interference, it is a question of appearance 6 of political interference that is equally important? 7 A: Yes. 8 Q: And that's, of course because, 9 fostering confidence in policing and in government 10 involves understanding what reasonable perceptions can be 11 created as much as the fact; is that fair? 12 A: Yes, much like conflict of interest. 13 Q: Fair enough. And then, finally, 14 would you agree with this, that there will be or could be 15 situations where someone may attempt to politically 16 interfere and it may be rebuffed or it may be 17 unsuccessful, but that the attempt at political 18 interference could be equally problematic; would you 19 agree with that? 20 A: Yes. 21 Q: And so whether we're talking the fact 22 of political interference or the appearance of political 23 interference or an attempt at political interference, is 24 it your evidence that, as the buffer, and as you sit here 25 today, you are confident that none of those three (3)
2551 things happened? 2 A: You'll recall from my evidence that 3 on the 7th the Deputy Attorney General and I felt that it 4 was important to change the manner in which information 5 was being gathered and the manner in which the 6 Interministerial Committee was operating because we had 7 been concerned on the 5th and the 6th about whether or 8 not there could be an appearance, not the reality, but 9 the appearance, and so when we began to reflect on that, 10 that was when we began to take action. 11 Q: So you had some concerns? 12 A: Yes, as I made clear. 13 Q: All right. I -- I want to ask you 14 though, in 1996, when you look back, did you feel that 15 there was an appearance of interference in police 16 operations? 17 A: In general? 18 Q: Yes. 19 A: Or with respect to Ipperwash? 20 Q: With respect to Ipperwash. 21 A: You're asking whether I thought there 22 might have been a perception of political interference? 23 Q: A reasonable perception. 24 A: I don't know if it was reasonable... 25 OBJ MS. KIM TWOHIG: I'm just objecting to a
2561 question about what a Witness may have thought in the 2 following year. I thought we were here to deal with the 3 events surrounding the death of Mr. George. 4 MR. JULIAN FALCONER: I can -- I can 5 rephrase. 6 COMMISSIONER SIDNEY LINDEN: I'm not sure 7 where it's going, but -- 8 MR. JULIAN FALCONER: I can rephrase it. 9 I can rephrase it to -- to be of assistance. I can 10 rephrase it. 11 12 CONTINUED BY MR. JULIAN FALCONER: 13 Q: I'm going to ask you -- 14 MR. MURRAY KLIPPENSTEIN: Commissioner, I 15 -- I don't know if the basis for this was that the -- the 16 question pertained to something a few months afterwards 17 and I'm concerned if that's the -- 18 COMMISSIONER SIDNEY LINDEN: I would like 19 Mr. Falconer to carry on with his examination -- 20 MR. MURRAY KLIPPENSTEIN: Yes. 21 MR. JULIAN FALCONER: -- and he seems to 22 be able to, so let's continue. 23 24 CONTINUED BY MR. JULIAN FALCONER: 25 Q: I want to ask you about your
2571 information base; that is what you knew at the time. 2 And, in particular, the -- the issue I'm 3 interested in is: Would you agree that in the months 4 between September 1995 and June 1996 you had an 5 opportunity to somewhat take a step back in terms of the 6 facts that led up to the shooting and whether you were 7 satisfied on how your ministry dealt with it? 8 A: When the Deputy Attorney General and 9 I had a moment to reflect, and we would have had a number 10 of informal conversations with the Secretary of Cabinet, 11 we actually sought a formal meeting with her where we 12 wanted to clarify what the composition might be of a 13 variety of meetings and how we would, prospectively -- 14 because we were convinced there was no direct political 15 involvement, but how we might deal with perceived 16 political involvement. And I believe we wrote a paper 17 and we indicated that there would be some issues around 18 mandate and roles and responsibilities. 19 And I can't cite them at the moment but we 20 felt that there were definite improvements that could be 21 made, prospectively. 22 Q: Thank you. Just a brief indulgence, 23 Mr. Commissioner. 24 25 (BRIEF PAUSE)
2581 Q: Would you agree with me, in looking 2 at the situation that you were confronted with in terms 3 of the actions of both politicians, staff, and the people 4 on the ground, it would be important in any assessment of 5 the situation to know all of the relevant facts, not only 6 about what was occurring at the top levels, politicians, 7 bureaucracy, but also what occurred on the ground? It 8 would be useful to know that information. 9 A: Yes. I think in order to properly 10 assess options and how might one -- one might, if I were 11 in -- looking at the Interministerial Committee and 12 others, it would be useful to know as much as one could 13 in order to -- we're always seeking to strive and to -- 14 to make improvements. 15 Q: And would you agree with me that one 16 of the limitations you had in that time period is that, 17 while you were very familiar with what was going on at 18 the top level, that is you were involved in a meeting 19 with the Premier, with Cabinet Ministers and with people 20 reporting to you. 21 You didn't necessarily have that kind of 22 window, that lens, into, for example, Incident Command, 23 correct? 24 A: I wouldn't have had insight into 25 Incident Command and I wouldn't have had a lot of detail
2591 with respect to mechanisms like the Interministerial 2 Committee, which are extremely important in consideration 3 of matters like this. 4 Q: All right. I'm going to take you to 5 a series of facts, very quickly, that I want to acquaint 6 you with, as I -- much as I did with Commissioner 7 O'Grady, the other guardian, to find -- to get your 8 response to them and to get some understanding as to 9 whether you knew about them before, all right? Thank 10 you. 11 If first you could turn to Commission 12 document Tab 28. So the big binder that you got from 13 Commissioner counsel, Tab 28. 14 Now Tab 28 reflects the notes of Julie 15 Jai, yes? 16 A: So I can see. 17 Q: All right. And Julie Jai was that 18 individual that you referred to before, a very 19 professional, capable -- 20 A: Yes. 21 Q: -- individual, yes? 22 A: Yes. 23 Q: She was Chair of IMC. If you flip in 24 about eight (8) pages, you will hit the notes of 25 September 5th. They're in backwards order. So if you
2601 simply flip through, you will reach a page that has as 2 it's top Ipperwash September 5th, 1995. 3 Could you do that for me? 4 A: Yes, I have it. 5 Q: All right. Now if you could flip 6 four (4) pages in, so page 4 of the September 5th, 1995 7 notes. And it's my effort, ma'am, to actually give this 8 to you chronologically, all right? 9 So what I'm showing you is a piece of 10 information that has come out in evidence here as to one 11 of the early pieces of information, all right? September 12 5th, 1995 the morning IMC meeting. 13 There is an exchange that Julie Jai notes 14 at the IMC meeting and it goes like this. You'll see 15 there's, on the fourth line: 16 "What is the level of tolerance level 17 of the Government? Also link with 18 Serpent Mounds issue in terms of 19 perception." 20 Quote, and this is what I want to draw 21 your attention to. 22 "Premier asked why this Committee 23 didn't meet to discuss Serpent Mounds. 24 How was the decision made? Premier is 25 hawkish on this issue. Feels we're
2611 bing tested on this issue." 2 Did you know, at the time, that the IMC 3 Committee, bureaucrats in particular, had been advised -- 4 and this statement has been ascribed to Deb Hutton, had 5 been advised at the time that the Premier was hawkish on 6 this issue? 7 Did you know that the bureaucrats, at the 8 time, had been told that? 9 A: I wouldn't have been aware of this 10 kind of language. I would have been aware that there 11 political staff at IMC and that there was a keen interest 12 on moving quickly. 13 Q: Thank you. Now I want to turn you to 14 the next tab before. Tab 27 and it's improper language 15 to say turn you. Direct you. 16 COMMISSIONER SIDNEY LINDEN: Oh, I'm 17 sorry, I didn't see you back there, Ms. Perschy. Yes...? 18 MS. ANNA PERSCHY: Sorry, Commissioner. 19 COMMISSIONER SIDNEY LINDEN: Is he not 20 putting -- 21 MS. ANNA PERSCHY: Yes. My concern with 22 this line of questioning, of course, is these are notes, 23 they're not complete, they're not a transcript -- 24 COMMISSIONER SIDNEY LINDEN: Yes, we're 25 aware --
2621 MS. ANNA PERSCHY: -- of exactly what was 2 said. And I have some concerns. This witness wasn't 3 present and so for My Friend to start referring to these 4 notes as if they formed some sort of a transcript without 5 the full context, I find quite troubling because this 6 witness -- 7 COMMISSIONER SIDNEY LINDEN: That is not 8 what he's done. 9 MS. ANNA PERSCHY: -- wasn't there. 10 COMMISSIONER SIDNEY LINDEN: That's not 11 what he's done. So I think he can carry on. 12 MR. JULIAN FALCONER: Thank you. 13 MR. DERRY MILLAR: Well I -- forget it. 14 15 CONTINUED BY MR. JULIAN FALCONER: 16 Q: If you could turn to the previous tab 17 -- Tab 27 -- 18 COMMISSIONER SIDNEY LINDEN: Do you have 19 an observation? 20 MR. JULIAN FALCONER: It's -- it's 21 important the witness know these are notes of an 22 impression Julie Jai had and who confirmed her impression 23 in evidence. 24 COMMISSIONER SIDNEY LINDEN: Yes. 25
2631 CONTINUED BY MR. JULIAN FALCONER: 2 Q: But having said that, they're notes, 3 and I want you to know that's what these are. I'm now 4 taking you to Tab 27, Dr. Todres. These are the notes -- 5 COMMISSIONER SIDNEY LINDEN: You're not 6 suggesting that this is a transcript and so on and -- 7 MR. JULIAN FALCONER: That's right. 8 That's right. 9 COMMISSIONER SIDNEY LINDEN: If you have 10 any difficulty understanding them or want to know more 11 detail, Ms. Todres, you'll ask for it. Yes, carry on. 12 MR. JULIAN FALCONER: Thank you. 13 14 CONTINUED BY MR. JULIAN FALCONER? 15 Q: If you turn to Tab 27, these are -- 16 and you'll notice at the front of the tab it says 17 September 9th, 199 -- I'm sorry September 5th, 1995, 18 05/09/95. These are the notes of Eileen Hipfner, a 19 lawyer with ONAS and if you flip to page 4 of the notes. 20 And it's her notes of the same meeting and 21 -- and I'm not trying to, sort of, pile on, there's an 22 additional piece of information that Ms. Hipfner quotes 23 Ms. Hutton as saying. 24 You'll see where it says halfway down the 25 page, same sort of idea, quote:
2641 "The Premier is hawkish on this issue." 2 Do you see that? 3 A: Yes, I do. 4 Q: I want you to go -- and it goes on to 5 say: 6 "Will set tone how we deal with these 7 issues over the next four (4) years." 8 Do you see that? 9 A: Yes. 10 Q: These are words ascribed to Ms. 11 Hutton. And then past Mr. Bangs, right? Mr. Bangs says: 12 "SPR is the bigger umbrella issue." 13 Then again quoting Deb on Ms. Hipfner's 14 notes. Quote: 15 "Clear-cut issue, Ontario's ownership 16 property." 17 And then Ms. Hipfner simply states, in 18 square brackets, something about how this may be the time 19 or place to move decisively. Do you see that? 20 A: Yes, I do. 21 Q: Again, did you know at the time that 22 these statements were being made to the bureaucrats at 23 IMC? 24 A: I wouldn't have been given this 25 degree of detail, but in order for the Deputy Attorney
2651 General and I to have reached the conclusion that we 2 needed to re-jig the composition and remove, if we could, 3 political staff. We had both been made aware that there 4 were certain kinds of statements; I wouldn't have known 5 the exact detail of them. 6 Q: Right. 7 A: And that we needed to take steps. 8 Q: Thank you. Now, could you turn to 9 Tab 1 of the binder, the blue binder you received, which 10 you got from me? That's right. Tab 1 please? 11 Now, so far we've dealt with what was 12 going on in the morning at the IMC meeting, snippets of 13 what was going on. I'm now going to take you to a scribe 14 note, and again, we're talking about the ground. Do you 15 know what I mean? You -- you have knowledge of what 16 happened up high, I'm now taking you to the ground and 17 trying to give you a bit of a window. 18 Could you -- this is an extract from the 19 typed scribe notes which is Exhibit P-427 of the scribe 20 notes of the OPP in relation to incident command. 21 And I'm taking you to page 390. I'm 22 sorry, I apologize. It's not the typed scribe notes, 23 it's the handwritten scribe notes and it's Exhibit P-427, 24 so I apologize. 25 So, ma'am -- Dr. Todres, so you know,
2661 there were -- there's first the handwritten scribe notes 2 and then they're typed after. So I'm now on the 3 handwritten version; that's what we have to manage. 4 COMMISSIONER SIDNEY LINDEN: What tab is 5 this at? 6 MR. JULIAN FALCONER: Tab 1 of that blue 7 binder that was handed up, right to your right, Mr. 8 Commissioner? 9 COMMISSIONER SIDNEY LINDEN: I see. Yes. 10 11 CONTINUED BY MR. JULIAN FALCONER: 12 Q: Now, at Tab 1, if you turn it up, 13 these are the handwritten scribe notes dated September 14 5th, 1995. You should know, Dr. Todres -- and they're 15 document 1000152. But you should know, Dr. Todres, we've 16 gone through all of these notes with Incident Commander 17 Carson so when I give you a snippet it's in the context 18 of us having looked at it all. 19 Now, at page 390 of that handwritten note, 20 which is the first page in the tab, I'm taking you to a 21 statement that was made at Incident Command by Incident 22 Commander Carson and he states -- and you see the 23 reference to 934? Do you see that? 24 See if you look up this is a -- you'll 25 take my word for it -- this is a scribe note of September
2671 5th, 1995, but if you go down the left side you see times 2 8:34 then 9:34. Do you see that? 3 A: Yes, I do. 4 Q: All right. It was corrected on the 5 record that this is actually, in fact, 8:34 a.m., 6 apparently there was an error. 7 But be that as it may, Incident Commander 8 Carson states the following, just underneath that. 9 Quote: 10 "Marcel Beaubien calling Premier. 11 That's fine. Sit tight. Get 12 intelligence information. Preference 13 get ERT guys working in Park." 14 Did you know that the Incident Commander 15 was receiving information from the local MPP according to 16 the Incident commander that Marcel Beaubien was calling 17 the Premier? 18 A: I was not aware of that. 19 Q: All right. And you'd agree with me 20 that that's the form of information you don't necessarily 21 need the Incident Commander to know? 22 A: I would agree with that. 23 Q: All right. And it wasn't something 24 you knew before I showed it to you, correct? 25 A: That's correct.
2681 Q: All right. I now want to direct your 2 attention, if I may, to again Tab 1 and it's again part 3 of the handwritten notes. And at page 438 which -- 4 you're still in the same tab so if you just flip to the 5 next page? 6 This is again -- I'll -- I can -- you can 7 take my word for it -- this is again a note, a 8 handwritten note from September 5th, 1995, and it's a 9 conversation that Carson is having with his other -- 10 another member of the command team and Carson says the 11 following. Quote: 12 "Premier's, no different treatment from 13 anybody else. We're okay, on the right 14 track." 15 Now, I'm about to take you to a 16 development of what that meant, and we heard evidence on 17 it already. But for a moment, in your view does the fact 18 that the Premier feels the occupiers should be treated no 19 differently from anybody else, is that something that the 20 incident commander should know about? 21 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 22 Perschy...? 23 MS. ANNA PERSCHY: Excuse me, 24 Commissioner. I do have an objection -- 25 COMMISSIONER SIDNEY LINDEN: I'm sorry,
2691 could you speak in the other microphone, I can't -- 2 MR. JULIAN FALCONER: Sorry. 3 COMMISSIONER SIDNEY LINDEN: -- seem to-- 4 MS. ANNA PERSCHY: Sorry. 5 COMMISSIONER SIDNEY LINDEN: It doesn't 6 seem to be picking you up as well. 7 MS. ANNA PERSCHY: I'll move over this 8 way. 9 10 (BRIEF PAUSE) 11 12 OBJ MS. ANNA PERSCHY: I do have an objection 13 to this line of questioning, Commissioner. 14 Yesterday, I was trying to explore with 15 this witness, the issue of her understanding of her 16 protocol with the specific reference to a particular 17 transcript between two (2) individuals. 18 COMMISSIONER SIDNEY LINDEN: Yes, I 19 remember. 20 MS. ANNA PERSCHY: I was not allowed to 21 do that. 22 COMMISSIONER SIDNEY LINDEN: Yes. 23 MS. ANNA PERSCHY: Now, Mr. Falconer -- 24 COMMISSIONER SIDNEY LINDEN: It was the 25 manner in which the question was asked.
2701 MS. ANNA PERSCHY: Well, I appreciate 2 that and I asked it a number of different ways. 3 COMMISSIONER SIDNEY LINDEN: Yes, go 4 ahead. 5 MS. ANNA PERSCHY: And I wasn't -- I 6 wasn't allowed to proceed with any of those. Now, we 7 have Mr. Falconer referring to excerpts from the meeting 8 that this witness didn't attend. 9 COMMISSIONER SIDNEY LINDEN: Oh -- 10 MS. ANNA PERSCHY: And now referring her 11 to another meeting to which she was not a party -- 12 COMMISSIONER SIDNEY LINDEN: Hmm hmm. 13 MS. ANNA PERSCHY: And trying to make 14 some links. And there's an unfairness here -- 15 COMMISSIONER SIDNEY LINDEN: Well, I -- 16 MS. ANNA PERSCHY: -- that I think needs 17 to be addressed. 18 COMMISSIONER SIDNEY LINDEN: Would you 19 like to speak to this, for a -- 20 MR. DERRY MILLAR: Well, but I think 21 there is a difference. 22 COMMISSIONER SIDNEY LINDEN: Yes, there 23 is a difference. 24 MR. DERRY MILLAR: Yesterday, the concern 25 was that counsel was putting to the Witness, Ms. Todres -
2711 - Dr. Todres issues with respect to Ron Fox that had -- 2 had not been put to -- 3 COMMISSIONER SIDNEY LINDEN: Yes. 4 MR. DERRY MILLAR: -- Ron Fox. And it -- 5 if they had been -- if they were put to anyone, they 6 should have been put to Ron Fox. 7 COMMISSIONER SIDNEY LINDEN: Yes. 8 MR. DERRY MILLAR: I understand what My 9 Friend Mr. Falconer is doing here, it's the same thing he 10 did with Commissioner O'Grady -- 11 COMMISSIONER SIDNEY LINDEN: Commissioner 12 O'Grady. 13 MR. DERRY MILLAR: Asked the questions, 14 this fact where you -- when you made the statement that 15 you made earlier, were you aware of this fact, yes or no? 16 And -- and with respect -- 17 COMMISSIONER SIDNEY LINDEN: Perhaps fact 18 is too high a -- 19 MR. DERRY MILLAR: Or this -- 20 COMMISSIONER SIDNEY LINDEN: Information. 21 MR. DERRY MILLAR: -- information. 22 COMMISSIONER SIDNEY LINDEN: This 23 information. 24 MR. DERRY MILLAR: This information, and 25 I think, with respect that that's an appropriate
2721 question. 2 COMMISSIONER SIDNEY LINDEN: Yes, that's 3 what I thought was happening. This went -- this exact 4 same exercise was conducted with Commissioner O'Grady. 5 MS. ANNA PERSCHY: Yes, I understand 6 that. 7 COMMISSIONER SIDNEY LINDEN: And that's 8 what we're doing. 9 MS. ANNA PERSCHY: And the questions that 10 I asked yesterday, and I mentioned it yesterday and I 11 mention it again today, were not, with respect, to Ron 12 Fox. 13 COMMISSIONER SIDNEY LINDEN: Well, that 14 was -- 15 MS. ANNA PERSCHY: The questions were 16 related to this witness' expectations, her understanding 17 of how the protocol would be followed, how it would be 18 applied in practice -- 19 COMMISSIONER SIDNEY LINDEN: Yes, I -- 20 MS. ANNA PERSCHY: And -- and it was in 21 that vein, but I was attempting to explore her 22 understanding of the protocol and how it might apply to 23 this specific situation with reference to the transcript. 24 I wasn't allowed to go there and ask a 25 number of questions and it wasn't in regards -- it wasn't
2731 in regard to -- to Ron Fox, (a), and (b), with respect to 2 Ron Fox, the issue of the appropriateness of what he had 3 communicated was raised in cross-examination with him. 4 COMMISSIONER SIDNEY LINDEN: Well, it was 5 a different issue and I don't wish to revisit it and I 6 wish to move on. 7 It was a different issue completely, and I 8 believe that what is occurring now is perfectly proper. 9 Yes...? 10 MR. PETER DOWNARD: Sir, it is perfectly 11 proper to ask the Witness if she knew this information -- 12 COMMISSIONER SIDNEY LINDEN: Information, 13 that's it. 14 MR. PETER DOWNARD: -- at the time. But 15 -- all right. But she's also said that on the basis of - 16 - of her experience, she did not know there was any -- 17 that a reasonable person would -- would see any 18 appearance of political interference. 19 I'm concerned that where My Friend is 20 going is to usurp your function on that ultimate issue -- 21 COMMISSIONER SIDNEY LINDEN: I -- 22 MR. PETER DOWNARD: -- and he's just 23 doing this to put the ultimate issue to the Witness, get 24 an opinion from her and, essentially, usurp your 25 function.
2741 COMMISSIONER SIDNEY LINDEN: Well, if 2 that happens, then you'll object, but I think so far, and 3 he's asking her about information, whether or not she 4 knew it. 5 Yes...? 6 MR. MARK SANDLER: I was going to say 7 that -- 8 COMMISSIONER SIDNEY LINDEN: Or if she 9 didn't know it. 10 MR. MARK SANDLER: It most affects my 11 client, in a sense, and I think it's perfectly proper 12 questioning, I might add. 13 COMMISSIONER SIDNEY LINDEN: Thank you, 14 Mr. Sandler, I appreciate that. Let's carry on. 15 MR. DERRY MILLAR: But I do think, and I 16 -- and I apologize to Ms. Perschy if I misspoke, with 17 respect, but it was a different, as I apprehend it, it 18 was a different issue yesterday with Ms. Perschy -- 19 COMMISSIONER SIDNEY LINDEN: I'm not 20 going to revisit that -- 21 MR. DERRY MILLAR: That was on the 22 record. 23 COMMISSIONER SIDNEY LINDEN: That was 24 then, this is now and I think that the questions that are 25 being asked now are appropriate.
2751 Do you want to carry on? 2 3 CONTINUED BY MR. JULIAN FALCONER: 4 Q: If I could have Exhibit 444a -- P- 5 444a, which is the logger transcript placed before the 6 Witness. 7 MR. DERRY MILLAR: It's -- 8 MR. JULIAN FALCONER: P-444a. 9 MR. DERRY MILLAR: She -- the Witness 10 does have, I believe, Exhibit P-444a. It's over on the-- 11 MR. JULIAN FALCONER: It looks like -- 12 MR. DERRY MILLAR: -- left-hand, under 13 that black binder, Dr. Todres. And I believe Mr. 14 Falconer will want the Witness to have 444B which is the 15 second copy as well. 16 MR. JULIAN FALCONER: That's right. 17 18 CONTINUED BY MR. JULIAN FALCONER: 19 Q: So if you could first, though, turn up 20 444A and it's specifically, if you could please turn up - 21 - Sorry. Is this microphone not working anymore? Okay. 22 I apologize Madam Reporter, I'm sorry to make your life 23 difficult. 24 COMMISSIONER SIDNEY LINDEN: The problem 25 with this, Mr. Falconer, among the legal issues is the
2761 timing issue. Because remember there's a number of these 2 matters, and in order to be fair, you have to give the 3 Witness -- 4 MR. JULIAN FALCONER: That's right. 5 COMMISSIONER SIDNEY LINDEN: -- some 6 amount of detail -- 7 MR. JULIAN FALCONER: That's right. 8 COMMISSIONER SIDNEY LINDEN: -- so she'll 9 know what you're asking. 10 MR. JULIAN FALCONER: And I have a way to 11 shortcut it and the only two (2) extra documents I'm 12 using -- 13 COMMISSIONER SIDNEY LINDEN: All right. 14 Let's carry on. 15 MR. JULIAN FALCONER: -- are 44A and 44B. 16 Other than that it all relates to my binder. So I will 17 not be going all over the map. 18 COMMISSIONER SIDNEY LINDEN: Well, it's 19 quite a difficult exercise. It's going to take some time 20 but it's appropriate for you to do it. Let's just move 21 through it. 22 MR. JULIAN FALCONER: Thank you. 23 24 CONTINUED BY MR. JULIAN FALCONER: 25 Q: If you could please turn to Tab 16,
2771 at Tab 16, this is a telephone conversation between John 2 Carson and Ron Fox at Incident Command. That is Fox is 3 calling into Incident Command dated September 5th, 1995 4 at 2:47. You see that on the first page at the top? 5 A: Yes. 6 Q: And again as I was telling you, I'm 7 trying to work chronologically through. So we were at 8 the IMC meetings in the morning and some comments made, 9 alleged to have been made. 10 And then I took you to a note. Now the 11 timing of the note coincidence with this at page 116. So 12 if you flip to the next page, Fox says the following to 13 Carson. Do you see where it says "And very much 14 empowered", do you see that? 15 A: Yes. 16 Q: "Fox: And very much empowered and 17 basically uh the Premier's made it 18 clear to her [and her is Deb Hutton], 19 his position is that there be no 20 treatment of uh the people in this 21 situation, in other words Natives as 22 opposed to non-Natives." 23 Do you see that? 24 A: Yes. 25 Q: And you recall the last note where
2781 Mr. Carson is stating in -- in his -- in the handwritten 2 scribe notes "Premier no different treatment from anybody 3 else", do you see that? 4 A: Yes I recall that. 5 Q: And -- and I'm trying to assist you 6 ma'am in terms of the coincidence of timing. That first 7 note I took you to was 2:35 p.m. according to the 8 handwritten note and this is 2:41. 9 Now, did you know that that discussion was 10 happening between Fox and Carson that the Premier was 11 concerned that the Natives at the Park, not receive 12 different treatment than any -- than non-Natives? 13 A: No. 14 Q: All right. And again, would that 15 cause you concern, looking at it now, that that kind of 16 information was being told to Incident Commander? 17 A: Yes. 18 Q: All right. Now if I could ask you 19 please -- 20 COMMISSIONER SIDNEY LINDEN: Just one (1) 21 minute. One (1) minute, Mr. Falconer. 22 MR. MARK SANDLER: Well, having defended 23 with my life, has right passed this line of questioning. 24 The problem is that he can ask questions, is that causing 25 you concern? Later in that same passage, it's made quite
2791 clear that John Fox and Ron -- John Carson and Ron Fox 2 are not buying into that attitude, but that's the 3 attitude that governs it. 4 MR. JULIAN FALCONER: My Friend's right. 5 My Friend's 100 percent right. 6 MR. MARK SANDLER: I think in fairness -- 7 MR. JULIAN FALCONER: No, no, no. My 8 Friend's right. 9 COMMISSIONER SIDNEY LINDEN: That's the 10 problem with this that in order to be fair -- 11 MR. JULIAN FALCONER: Well, no I'll give 12 the context. 13 COMMISSIONER SIDNEY LINDEN: -- there's a 14 fair amount of information that has to be conveyed. 15 MR. JULIAN FALCONER: That's right. 16 MS. ANNA PERSCHY: And now I have a 17 concern. Because the problem here is what is intended to 18 be conveyed, what is understood in one (1) context and 19 what may be understood in another context. 20 Because this witness wasn't in any of 21 these settings, she's not in a position to understand 22 what was intended to be communicated, what was understood 23 for example at one (1) meeting versus what was understood 24 at another meeting. 25 And that's the difficulty that I have with
2801 this. And so when -- when he's asking the question, are 2 you concerned, it's a concern that's borne out of the 3 fact that there's no context with this. 4 MR. JULIAN FALCONER: Well, I'll withdraw 5 the question and keep moving. Because as far as I'm 6 concerned, I can give the appropriate context and all the 7 passages I have. 8 COMMISSIONER SIDNEY LINDEN: Well, I know 9 that you can and I know that try -- assume that you can 10 and I think that what you're trying to do is move through 11 it quickly. 12 MR. JULIAN FALCONER: That's right. 13 COMMISSIONER SIDNEY LINDEN: That's the 14 difficulty. 15 MR. JULIAN FALCONER: Well, that's fine. 16 I -- but I'm happy to -- 17 COMMISSIONER SIDNEY LINDEN: That is the 18 difficulty. 19 MR. JULIAN FALCONER: -- I'm happy to 20 manage the difficulty. 21 COMMISSIONER SIDNEY LINDEN: No. But we 22 can't manage it. I mean you indicated that you might be 23 two (2) hours for example in your examination, you're 24 going to be four (4) hours before we're even close to the 25 end of this.
2811 MR. JULIAN FALCONER: But that's not 2 true, Mr. Commissioner. 3 COMMISSIONER SIDNEY LINDEN: I mean this 4 is putting the whole, almost all of -- 5 MR. JULIAN FALCONER: I won't -- be. I -- 6 I won't be four (4) hours. 7 COMMISSIONER SIDNEY LINDEN: I mean in 8 order to put the proper context, in order to be fair to 9 this witness and in order to give this witness an 10 opportunity to understand the context of which these 11 statements are made, it takes some time. 12 MR. JULIAN FALCONER: And I'm moving fast 13 through it. 14 COMMISSIONER SIDNEY LINDEN: And I 15 understand why counsel are objecting because when we try 16 to cut it too short we're being unfair. 17 MR. JULIAN FALCONER: Fair enough. 18 19 CONTINUED BY MR. JULIAN FALCONER: 20 Q: If you could turn to Tab 22 please of 21 P-444A, the same document that you had up, Tab 22. 22 A: I have it. 23 Q: Now I want to ask you, as the buffer, 24 as the person who was responsible for the informations 25 flow between government and police, in part, did you know
2821 that Staff Sergeant Wade Lacroix was in charge of, among 2 other things, receiving and corresponding with -- 3 informationally, with Marcel Beaubien, the MPP. 4 Did you know that? 5 A: No. 6 Q: All right. Did you also know that 7 Wade Lacroix's -- 8 COMMISSIONER SIDNEY LINDEN: See what I 9 mean, now every statement you make is going to be 10 challenged in terms of -- 11 MR. JULIAN FALCONER: Well, no, but Mr. 12 Commissioner -- 13 COMMISSIONER SIDNEY LINDEN: -- its 14 context and it's accuracy. 15 MR. JULIAN FALCONER: Well, no, but Mr. 16 Commissioner, the one thing I want to emphasize is the 17 fact that counsel are wise enough to rise and object, 18 doesn't automatically mean counsel's just entitled to -- 19 my concern here is -- 20 COMMISSIONER SIDNEY LINDEN: Well -- 21 MR. JULIAN FALCONER: -- I just made a 22 very fair statement, but I'll withdraw the question and 23 restate it in a way -- 24 COMMISSIONER SIDNEY LINDEN: I'm not 25 asking you to withdraw it. I want to hear what Mr.
2831 Downard's objection is. 2 MR. PETER DOWNARD: The question was 3 framed as "as the buffer," to this witness, as the 4 relevant buffer. She didn't have any role as a buffer 5 between anything that Wade Lacroix, an operational police 6 officer on the ground would -- would say to Marcel 7 Beaubien. 8 Wade Lacroix is entirely beyond any 9 responsibility that she has. So there's no -- it's -- 10 it's not a proper basis for the question. 11 MR. JULIAN FALCONER: Well, that's not 12 true and I can show you why, MR. Commissioner. 13 MR. DERRY MILLAR: Well, why doesn't My 14 Friend -- the -- we've had evidence -- we've had evidence 15 that -- that from Carson, I think Commissioner O'Grady 16 and others, that it was a -- there was nothing 17 inappropriate between Wade Lacroix who was the head of 18 the Petrolia Detachment, talking to the -- to the local 19 MPP. 20 Perhaps My Friend could drop the editorial 21 comment, "as the buffer," and simply ask the question 22 that he wants to ask -- 23 MR. JULIAN FALCONER: Fair enough. 24 MR. DERRY MILLAR: -- did you know or 25 whatever. But without --
2841 COMMISSIONER SIDNEY LINDEN: I suspect 2 that if he did that, Mr. Millar, there would be 3 objections that he wasn't putting sufficient context to 4 the witness but -- 5 MR. JULIAN FALCONER: No, but that's 6 fine, I'll do that. 7 COMMISSIONER SIDNEY LINDEN: Let's try -- 8 9 CONTINUED BY MR. JULIAN FALCONER: 10 Q: If you could turn to Tab 22, you've 11 got it in front of you. At page 182, now this is a 12 conversation, it -- the evidence -- you see the reference 13 at page 182, to Carson and a male? 14 The evidence is that the male is Staff 15 Sergeant Wade Lacroix, all right? That's the state of 16 the evidence, Dr. Todres. 17 I just want you to know what I'm showing 18 you. 19 Now, the conversation occurs at -- on 20 September 5th, 1995 at 4:25 so we're now in the afternoon 21 of September 5th. The male states, quote: 22 "Harris has involved himself and, ah, 23 quite uptight about it. 24 CARSON: Okay. 25 THE MALE: [this is Staff Sergeant
2851 Lacroix] And the Ministry, I guess, the 2 Solicitor General, I imagine, is to do 3 a press release momentarily or soon 4 saying law will be upheld no matter who 5 is involved. 6 CARSON: Okay. 7 MALE: So I would say the signal is 8 that we're going to end up --" 9 And it says the victim, but the evidence 10 is that the tape is improperly transcribed and it should 11 be evicting, all right, so we're going to end up 12 evicting, is the evidence, all right, in the telephone 13 call. 14 Answer by Carson: 15 "I would suspect." 16 Now, I go back to it: 17 "Harris is involved himself and are 18 quite uptight about it [and then 19 repeated further] so I would say the 20 signal is that we're going to end up 21 evicting." 22 Now, did you know that that conversation 23 was going on either at the time or subsequently, have you 24 learned, that that conversation was going on between 25 Staff Sergeant Lacroix and incident commander Carson?
2861 A: No. 2 Q: And does that conversation about 3 Premier Harris -- well, no I withdraw the question. Let 4 me keep moving. 5 In terms of your knowledge base, it did 6 not include this, correct? 7 A: These were staff well below anyone 8 that I would have ever known about in the OPP. 9 Q: But you and I agreed that it's 10 helpful to know what's going on on the ground, when you 11 look back at it, correct? 12 A: Yes. 13 Q: All right. Now if you could turn 14 please to Tab 1 again, of your blue binder, so you can 15 place the transcripts aside for a moment. 16 If you could turn to Tab 1 of your blue 17 binder. 18 19 (BRIEF PAUSE) 20 21 Q: And if you flip through to page 443, 22 you see it in the top right hand corner, these are the 23 handwritten scribe notes again, and it's the third page 24 in, all right? 25 And again, we're doing this
2871 chronologically. Do you see, half way down the page, it 2 says: 3 "16:31..." 4 Half way down the page: 5 "...called Wade Lacroix, briefed." 6 Did you see that? 7 A: Yes. 8 Q: "Carson re: discussion with Marcel 9 Beaubien." 10 All right. Did you know that Wade Lacroix 11 was briefing Incident Commander Carson about his 12 conversations with the MPP? 13 A: No. 14 Q: All right. And -- 15 COMMISSIONER SIDNEY LINDEN: Just leave 16 it at that. 17 MR. JULIAN FALCONER: Fine. I do have an 18 additional -- 19 COMMISSIONER SIDNEY LINDEN: I 20 respectfully say that there'll be no difficulty -- 21 MR. JULIAN FALCONER: That's fine. 22 COMMISSIONER SIDNEY LINDEN: If you ask 23 her that she knew it. 24 MR. JULIAN FALCONER: Exactly. 25 COMMISSIONER SIDNEY LINDEN: She did or
2881 she didn't and then move on. 2 MR. JULIAN FALCONER: But I do have a 3 question -- 4 COMMISSIONER SIDNEY LINDEN: You can do 5 the rest of it in argument. 6 MR. JULIAN FALCONER: That's right. I 7 have a question related factually to Lacroix. 8 9 CONTINUED BY MR. JULIAN FALCONER: 10 Q: Did you know Staff Sergeant Wade 11 Lacroix ultimately led the Crowd Management Unit in the 12 clash with the occupiers? 13 A: This is the first time I've heard the 14 name Wade Lacroix. 15 Q: All right. So I am telling you that 16 the evidence that we've heard is that Wade Lacroix was 17 the one in charge of the Crowd Management Unit team that 18 moved against the occupiers. 19 Did you know that? 20 A: No, I did not. 21 Q: All right. Now, if you could turn 22 please to -- in that same tab to page 450 which is simply 23 the next page in front of you. If you could turn to the 24 next page? 25 A: I have it.
2891 Q: Now, this is a note that's -- the 2 timing of the note is the evening of September 5th, 1995, 3 at 6:05 p.m., all right? You -- you can take that from 4 me that at page 450 that's a note, September 5th, 1995, 5 and now we're into the evening of September 5th, all 6 right, which is the Tuesday evening. Okay? 7 I'm going to read the note to you and in 8 particular there's a discussion -- the evidence is this 9 is a discussion amongst the command team at Incident 10 Command and: 11 "Advised dinner was good. Advised 12 Skinner of paperwork. Skinner, have 13 ten (10) guys staying at Pinery with 14 ERT." 15 Do you see that? Did you -- do you see 16 the discussion? 17 A: Yes. 18 Q: Okay. 19 "Skinner have ten (10) guys staying at 20 Pinery with ERT. JC [that's John 21 Carson] Video printer. Skinner to get 22 it. 23 JC: If someone can get it, do it 24 tonight. Bring here to office. 25 Skinner be part of command team."
2901 Do you see that? 2 A: Yes, I do. 3 Q: Now, the -- it's the next passage I 4 want to read to you. Quote: 5 "Heat from political side. Made strong 6 comments in the House. Court 7 injunction moving along. Keep tonight 8 quite. Keep on checkpoints wherever 9 you are. Let Logistics know." 10 Now, did you know that one (1) of the 11 things that Incident Commander Carson was discussing with 12 his command teams was, quote: 13 "Heat from the political side. Made 14 strong comments in the House." Close 15 quotes? 16 A: No. 17 Q: And we've heard evidence that Carson 18 meant by "House," the Legislature. Did you know that? 19 A: No. 20 Q: Now, if you could please turn to Tab 21 14. Could you turn to Tab 14? 22 MR. DERRY MILLAR: Not that it matters, I 23 believe that -- that what Mr. Carson -- Inspector Carson 24 -- then Inspector Carson said was that it should have 25 read "in House" because the Legislature wasn't sitting
2911 then back in -- on September 5th and 6th, 1995. 2 3 CONTINUED BY MR. JULIAN FALCONER: 4 Q: Now, if you turn to Tab 15 of that 5 same binder that's in front of you, the blue binder? Mr. 6 Millar asks Incident Commander Carson -- 7 A: Tab 15? 8 Q: Yes, Tab -- I'm sorry, Tab 14. Mr. 9 Millar is doing an examination-in-chief of Incident 10 Commander Carson, all right? He's asking him questions 11 much as Mr. Worme asked you questions for the Commission. 12 And so the transcript you'll find at Tab 13 14 is dated May 18th, 2005, and I'm at -- for Counsel's 14 purposes I'm at page 30 of that transcript. So May 18th, 15 2005, page 30, all right? Do you have that page? 16 A: Yes, I do. 17 Q: All right. And Mr. Millar's asking 18 him about that very note and that's why I'm drawing it to 19 your attention. 20 "Q: And then it's attributed to you, 21 Heat from political side. Made strong 22 comments in the House. [And then] 23 Court injunction moving along." 24 And Mr. Millar keeps reading: 25 "Heat from political side. And do you
2921 recall today what you're referring to 2 when you made those? I take it that 3 this accurately reports this these 4 comments as having come from you on the 5 evening of September 5th? 6 Incident Commander Carson answers: 7 "Yes, they're attributed to myself. 8 Q: And do you recall today what you 9 were referring to, heat from political 10 side. Made strong comments in the 11 House? 12 A: I don't recall the -- that 13 political terminology, however I -- I 14 suspect I'm reflecting on the 15 discussion Inspector Fox and I had in 16 regards to the Blockade Committee and 17 the issues around whether the different 18 types of injunctions and all those 19 discussions and his general comments 20 generally. 21 Q: And what about your discussion 22 with Mr. Beaubien -- I mean Mr. Lacroix 23 about Mr. Beaubien? 24 A: Well, there would be those 25 comments obviously, the information
2931 that's being passed along through Staff 2 Sergeant Lacroix. 3 There's also the comments from Mayor 4 Thomas, Ken Williams. I mean there's a 5 number of people at the various areas 6 of responsibility who are voicing 7 concerns and issues, so it's quite 8 frankly coming from all angles." 9 Now, did you know that Incident Commander 10 Carson viewed the concerns being voiced as political heat 11 coming from all angles. 12 A: Not -- not that I recall, no. 13 Q: if you could please turn to Tab 2 of 14 that blue binder that's in front of you. Now Tab 2 is, 15 again, I'm doing this chronologically, Dr. Todres, we're 16 now at the morning of September 6th, all right. 17 We've worked over September 5th in terms 18 of evidence excerpts, and I'm now at the morning of 19 September 6th, and I'm at the scribed notes that are the 20 typed scribed notes. 21 And do you have a typed scribed note in 22 front of you? 23 A: That begins eight fifteen (8:15) Mark 24 Wright...? 25 Q: Yes.
2941 A: Yes. 2 Q: It's Exhibit P-426 and they're the 3 September 6th, 1995 scribed notes at page 52. 4 Now if you look at the bottom, you may or 5 may not have known this, Fred Thomas was the -- the Mayor 6 of Bosanquet, all right; have you heard that name before? 7 A: No. 8 Q: All right. This is a discussion with 9 the Mayor. You see eight seventeen (8:17) up higher, 10 right near the top of the page, Mayor of Bosanquet, Fred 11 Thomas, attends Command Post. Eight seventeen (8:17) if 12 you go right to the top of the page. 13 A: Yes. 14 Q: Mayor of Bosanquet, Fred Thomas, 15 attending Command Post. 16 A: Yes. 17 Q: So he's in incident command. The 18 last paragraph of that page 52: 19 "Fred Thomas inquired about injunction. 20 John Carson advised that if we went in 21 and physically removed them, they are 22 just trespassing, we can only fine 23 them. Get a Court Order and fine them 24 with the criminal offence we charge 25 them and if they do it again, then we
2951 can arrest them and have a bail 2 hearing. 3 Part of conditions usually are they 4 can't go back to the location. John 5 Carson advises once we get a Court 6 Order, then we have the force of the 7 Court that says yes, the Province owns 8 the Park, we agree they shouldn't be 9 there." 10 Then the top of page 53: 11 "Mayor Fred Thomas states we have full 12 support of community. They are 13 terrorized. John Carson states: 14 'Premier and Solicitor General want to 15 deal with this.'" 16 And did you know that Incident Commander 17 Carson advised the Mayor of Bosanquet that the Premier 18 and the Solicitor General want to deal with this? 19 A: I was not aware of that. 20 21 (BRIEF PAUSE) 22 23 Q: Now if I could ask you please, to 24 turn to Commission Counsel documents Tab 28, so that's 25 the big black binder. If you simply flip to Tab 28.
2961 Now we're at September 6th and what I'm 2 showing you chronologically is a note from the IMC 3 Meeting by Julie Jai. Do you have Tab 28? 4 A: Yes I do. 5 Q: All right. You're now at the front, 6 September 6th, 1995 notes start at the second page. If 7 you simply flip the page, three (3) of those notes, and 8 it shows a three (3) on the top of the page. 9 If you simply turn to page 3 of the 10 September 6th, 1995 notes, and you see a three (3) at the 11 top of the page? 12 A: Yes. 13 Q: Thank you. These are the notes of 14 Julie Jai at the September 6th, 1995 IMC Meeting. 15 Halfway down the page, you see the other variable...? Do 16 you see that...? The other variable, -- 17 A: Yes. 18 Q: -- getting our material ready. This 19 is, according to Julie Jai and her notes, quoting Tim 20 McCabe, you see it up there, you see Tim? If you go -- 21 A: Yes. 22 Q: Okay. It's quoting Tim McCabe on the 23 timing for an injunction and -- and the best case 24 scenario being able to get in Court by Friday with 25 notice; all right?
2971 Now right after that, and you see, best 2 case Friday in Court; do you see that? 3 A: Yes. 4 Q: Ms. Jai, in her notes, it's not a 5 transcript, Ms. Jai scribes to Deb Hutton, quote: 6 "Premier feels that the longer they 7 occupy it, the more support they'll 8 get. He wants them out in a day or 9 two." 10 Did you know that Deb Hutton, according to 11 Julie Jai, had told the civil bureaucrats, civil service 12 bureaucrats, the Premier wants them out in a day or two? 13 A: I was aware, through the 5th and the 14 6th, that there was a concern to deal with the issue as 15 expeditiously as possible, and that that kind of 16 sentiment was expressed by some political staff. 17 Q: If you could turn to Tab 31. 18 19 (BRIEF PAUSE) 20 21 Q: Tab 31 simply reflects a note by Ms. 22 Hipfner, the same -- the lawyer that I told you about 23 before, as to the same meeting, all right? And it's the 24 -- if you look at Tab 31, the front of it, it's Ms. 25 Hipfner's notes dated September 6th, 1995.
2981 Do you see that? 2 A: Yes. 3 Q: And if you could please turn in 4 respect of those notes, at page 5, so you see the page 5 numbers on the top of the pages. If you simply flip to 6 page 5. 7 8 (BRIEF PAUSE) 9 10 Q: You see at -- at the top, Ms. -- 11 third line down, Ms. Hipfner records the following, 12 according to Ms. Hutton: 13 "Premier's view that the longer 14 occupiers are there, the greater the 15 opportunity they have to garner 16 support, arm themselves." 17 It actually, "arm selves". Do you see 18 that? 19 A: Yes. 20 Q: Did you know that Ms. -- according to 21 Ms. Hipfner that Ms. Hutton had said that to the 22 bureaucrats? 23 A: No. 24 Q: If you could please turn to Tab 33 of 25 the Commission Counsel binder, Tab 33.
2991 A: Yes, I have it. 2 Q: Now, Tab 33 represents the note of 3 Julie Jai as to her conversation with Ron Fox. 4 And quite simply, would you agree with 5 the way Mr. Fox described the occurrence in the dining 6 room meeting and the area in particular I want to draw 7 your attention to is the third paragraph, quote, and this 8 Mr. Fox describing the meeting to Julie Jai, all right? 9 Quote: 10 "He was called into Cabinet. Larry 11 Taman was also there and was eloquent. 12 He cautioned about rushing in with an 13 ex parte injunction and can't interfere 14 with police discretion. [quote] But 15 Premier and Hodgson came out strong." 16 Did you know that Mr. Fox viewed that 17 meeting and the conduct of Premier Harris and Cabinet 18 Minister Hodgson as, quote, "coming out strong", close 19 quotes? 20 Did you know that? 21 A: I can't recall precisely what his 22 perception of the meeting was, no. 23 Q: All right. If you could please 24 direct yourself to 444A again, very quickly. 25 It's this long document, this one here.
3001 It's the logger tapes, so there's two (2) piles there. 2 If you look for A versus B. 3 A: I have "A", thank you. 4 Q: We'll get there faster. All right, 5 if you flip to Tab 34. 6 7 (BRIEF PAUSE) 8 9 Q: There's a recorded conversation at 10 Tab 34 between Ron Fox and Sergeant Mark Wright. 11 Do you know how Mark Wright is? 12 A: No, I do not. 13 Q: He was basically the second in 14 command to Incident Commander Carson, that Incident 15 Commander Carson relied upon at the scene, all right? 16 And Ron Fox is in a telephone conversation 17 with him on September 6th, 1995 at approximately 12:05. 18 Do you see that at the top of the page? 19 A: Yes. 20 Q: All right. Could you please turn to 21 page 34 -- I'm sorry, I apologize. Could you turn to 22 page 252, in the bottom right hand corner you'll see page 23 252. 24 Do you see that? 25 A: Yes.
3011 Q: At the bottom four (4) lines up, you 2 see where it says "Fox, and that's..." 3 Do you see that? 4 A: Yes. 5 Q: Fox, quote: 6 "And that's as I said to John, that's 7 my big job is to keep the political 8 folks out of the hair of the 9 operational people, so." 10 Did you know that Mr. Fox saw one of his 11 tasks as keeping the political people out of the hair of 12 the operational people? 13 A: I did not know that that's how he 14 described it, no. 15 Q: If you could please turn to... I 16 apologize, brief indulgence. 17 18 (BRIEF PAUSE) 19 20 Q: Tab 37, of P-444A, so it's the same 21 document, just simply flip three (3) tabs over to 37. 22 And if you look at page 260, I'm only 23 going to take you to some brief passages very quickly. 24 At the bottom of page 260, Mr. Fox says, quote: 25 "Because he has the knowledge of it."
3021 Now just so you know, this is a 2 conversation between Carson and Fox and then Fox and 3 Coles, all right? If you flip to the previous page, you 4 see the top? Just so you know what you're looking at, 5 all right? Dr. Todres do you follow me? 6 A: Yes, I'm with you. 7 Q: Okay. Thank you. And I appreciate 8 your patience. It's about 2:00 p.m. on September 6th, 9 1995. At page 260 on the bottom: 10 "Now what the course -- the political 11 people are really pushing and that's 12 another story and I'll just fill you in 13 so you know about that. 14 Did you know that Inspector Fox saw, 15 quote: "The political people [as] 16 really pushing." 17 COMMISSIONER SIDNEY LINDEN: Just a 18 minute, Mr. Falconer. 19 MR. PETER DOWNARD: This is the third 20 time that this phrase has been taken in isolation without 21 reading the following lines, making clear that he's 22 talking about lining up a judge and proceeding with the 23 injunction, just as Mr. Fox said here in evidence. 24 MR. JULIAN FALCONER: Well I don't have a 25 problem moving on. If My Friend --
3031 COMMISSIONER SIDNEY LINDEN: Well if you 2 don't put that then you're putting it on the context 3 and -- 4 MR. JULIAN FALCONER: Well no, no. But I 5 don't agree with My Friend. But I feel that I should 6 just withdraw the question and move on rather than fight 7 with him about a single line. 8 COMMISSIONER SIDNEY LINDEN: All right. 9 10 CONTINUED BY MR. JULIAN FALCONER: 11 Q: All right. If you could please turn 12 to page 262. At page 262 halfway down the page, do you 13 have that, Dr. Todres? 14 A: Yes, I do. 15 Q: Again, it's Fox and Carson, all 16 right, and they're talking. Halfway down the page it 17 says, "Carson absolutely," do you see that? Halfway down 18 the page? 19 A: Yes, I do. Yes, I do. 20 Q: And it says: 21 "Fox: Okay well let me just give you 22 the -- I went through this meeting. 23 John, we're dealing with a redneck 24 Government. 25 Carson: Okay."
3041 Now I just want to know, did Inspector 2 Carson tell you that he viewed -- 3 MR. DERRY MILLAR: Fox. 4 5 CONTINUED BY MR. JULIAN FALCONER: 6 Q: I'm sorry. Did Inspector Fox tell 7 you that he viewed the Government that he was dealing 8 with as a redneck Government? 9 A: I don't recall him ever discussing 10 that with me. 11 Q: All right. If you could please turn 12 to page 263 at the bottom. It says: 13 "Fox: Well John, I'm here to tell 14 you..." 15 Do you see that? 16 A: Yes. 17 Q: "Well John, I'm here to tell you this 18 guy is a redneck from way back. 19 Carson laughs. 20 Fox: And he came right out and said, 21 I just walked in on the tail end of 22 this, The OPP in my opinion made 23 mistakes, they should have done 24 something right at the time and he said 25 that, Well I'm sure it'll all come out
3051 in an inquiry some time after the fact. 2 Carson: Yeah, yeah. 3 Fox: He believes that he has 4 authority to direct the OPP." 5 Did Inspector Fox, at the time, tell you 6 that that's what he took from the meeting? 7 A: I don't recall having that discussion 8 with Mr. Fox. 9 Q: Thank you. Now if you could turn to 10 page 274. And this is a discussion -- what happens is 11 first Fox talks to Carson and then they switch phones. 12 And they switch phones at 2:68 to Coles, in other words, 13 then he talks to Coles, all right? 14 And if you turn to page 274, this is the 15 Coles conversation. 16 A: Yes. 17 Q: If you could look halfway down the 18 page, please. 19 A: Yes. 20 Q: Halfway down the page, and this is 21 the last passage I'm reading from this transcript. 22 23 (BRIEF PAUSE) 24 25 MR. PETER DOWNARD: Again Commissioner--
3061 COMMISSIONER SIDNEY LINDEN: I'm sorry I 2 didn't see you, Mr. Downard. 3 MR. PETER DOWNARD: No difficulty. Just 4 a question of context. We've had this point before, when 5 Mr. Fox was here he testified that his understanding 6 after this meeting was, in fact, that any action by the 7 police would be solely within the purview of the police. 8 So if -- if it's going to -- if My Friend 9 is going to say this is what Inspector Fox took from the 10 meeting, he has to look at the evidence as a whole and 11 Inspector Fox's own evidence and fairly put it to the 12 witness. 13 MR. JULIAN FALCONER: My Friend's made 14 that submission and the witness has heard it but the 15 bottom line is we have a tape of what Fox said and he was 16 very specific. Now Superintendent Fox testified that if 17 you remove the profanity, everything he said is -- 18 remains true today; that's what he said. 19 But I -- you know what, frankly, Mr. 20 Commissioner, My Friend's made his submission. The 21 witness has heard it. 22 COMMISSIONER SIDNEY LINDEN: Yes. 23 MR. JULIAN FALCONER: I just propose to 24 keep moving and finish this. 25 COMMISSIONER SIDNEY LINDEN: Well, then
3071 keep moving. 2 MR. JULIAN FALCONER: Thank you. 3 4 CONTINUED BY MR. JULIAN FALCONER: 5 Q: If you look at page 274, do you have 6 that in front of you? 7 A: Yes, I do. 8 Q: Under Fox, and it's -- it's just 9 under halfway down the page. Do you see Coles, yep? 10 A: Yes. 11 Q: Okay. Fox states, Okay -- quote: 12 "Okay, the Premier is quite adamant 13 that this is not an issue of Native 14 rights." 15 And then his words: 16 "I mean, we've tried to pacify and 17 pander to these people for too long. 18 It's now time for swift affirmative 19 action. I walked in the tail end 20 Chris, with them saying things like, 21 Well I think the OPP have made mistakes 22 in this one, they should have just gone 23 in. He views it as a simple trespass 24 to property. That's in his thinking." 25 Now, did you know, did Inspector Fox let
3081 you know that that was his perception of the views of the 2 Premier? 3 A: No. 4 Q: And did you know that Inspector Fox 5 passed this perception on to Incident Command? 6 A: No, I did not. 7 Q: All right. And now if you could -- 8 MR. DERRY MILLAR: Actually in this case 9 it's Chris Coles who's not the Incident Commander. 10 MR. JULIAN FALCONER: Oh, I'm sorry, 11 that's right. That's fair, that's fair. He passed it on 12 to Chris Coles, who's in charge. 13 THE WITNESS: I was not aware of that. 14 15 CONTINUED BY MR. JULIAN FALCONER: 16 Q: All right. If you could now turn to 17 P-44B? 18 A: I may require a break soon, 19 Commissioner. 20 MR. DERRY MILLAR: He's actually the -- 21 the -- Inspector Carson, until relieved, is in charge of 22 the incident. The -- Chief Superintendent Coles was the 23 superior to Inspector Carson who reported to Parkin -- 24 COMMISSIONER SIDNEY LINDEN: Yes. 25 MR. DERRY MILLAR: -- Superintendent
3091 Parkin who reported to Chief Superintendent Coles. 2 COMMISSIONER SIDNEY LINDEN: Yes. 3 4 CONTINUED BY MR. JULIAN FALCONER: 5 Q: At P-44B -- 6 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 7 Millar? 8 MR. DERRY MILLAR: I think the Witness 9 would like a break, sir. 10 MR. JULIAN FALCONER: I have about -- 11 COMMISSIONER SIDNEY LINDEN: Would you 12 like a break? 13 MR. JULIAN FALCONER: Yeah, that's fine. 14 That's fine. I have about fifteen (15) minutes left with 15 this and I'm done. 16 COMMISSIONER SIDNEY LINDEN: Well, let's 17 take a short break. 18 MR. JULIAN FALCONER: That's fine. 19 THE WITNESS: Okay. Would you -- I can 20 make it a five (5) minute break. 21 MR. JULIAN FALCONER: No, no, no. I 22 completely understand it. 23 COMMISSIONER SIDNEY LINDEN: By all 24 means. 25 THE WITNESS: Thank you very much.
3101 THE REGISTRAR: This Inquiry will recess. 2 3 --- Upon recessing at 3:50 p.m. 4 --- Upon resuming at 3:56 p.m. 5 6 THE REGISTRAR: This Inquiry is now 7 resumed, please be seated. 8 COMMISSIONER SIDNEY LINDEN: I'm sorry, 9 Mr. Falconer, how much longer did you say you thought you 10 might be? 11 MR. JULIAN FALCONER: This section of my 12 examination is no more than fifteen (15) minutes. 13 COMMISSIONER SIDNEY LINDEN: That doesn't 14 answer the question. 15 MR. JULIAN FALCONER: In total? 16 COMMISSIONER SIDNEY LINDEN: Is this the 17 end? 18 MR. JULIAN FALCONER: Total -- I would 19 expect twenty (20) to twenty-five (25) minutes total. 20 COMMISSIONER SIDNEY LINDEN: Until you're 21 finished? 22 MR. JULIAN FALCONER: Yes. Twenty (20) 23 to twenty-five (25) minutes. 24 25 CONTINUED BY MR. JULIAN FALCONER:
3111 Q: Dr. Todres, there was a piece of the 2 transcript at Tab 37. Do you still have Tab 37 open in 3 front of you? 4 A: Of the black binder? 5 Q: It's this P-444B? 6 A: Oh, no, no. Okay. 37 did you say? 7 Q: Yes. It should be Tab 37; that was 8 where we were last. 9 A: Okay. It's this one, it's 444A isn't 10 it? 11 Q: That's -- that's correct. Thank you. 12 A: Okay. I was looking at B, I'm sorry. 13 Okay. Tab 37. Yes? 14 Q: There's one (1) page that I thought, 15 in fairness, I should draw to your attention. 16 At page 262 at the bottom, 262? I had 17 drawn your attention to: 18 "Fox: John, we're dealing with a real 19 redneck government." 20 Do you see that? Halfway down the page: 21 "John, we're dealing with a real 22 redneck government." 23 A: Yes, I see it. Thank you. 24 Q: Yes. Now, further down the page Fox 25 says:
3121 "They couldn't give a shit less about 2 Indians." 3 Do you see that? 4 A: Yes, I do. 5 Q: "Carson: All right. They just want 6 us to go kick ass. 7 Fox: That's right. 8 Carson: Yeah." 9 And then at the top of the next page: 10 "Fox: Carson, we're not prepared to 11 do that yet." 12 Do you see that? I just wanted to draw 13 that to your attention. 14 Now, the next tab I wanted to raise to 15 your attention is in 444B and it's very brief; it's at 16 Tab 39, page 271? 17 A: I have the page. 18 Q: And in respect of that tab, if you 19 turn to page 271 you'll see from the front this is a 20 conversation that starts between an officer McLean, but 21 ultimately it's a conversation between Incident Commander 22 Carson and Tim McCabe of the Attorney General's office; 23 all right? 24 Tim McCabe is the Crown involved in the 25 injunction proceedings and Incident Command.
3131 A: Thank you. 2 Q: And at page 271 he states in the last 3 four (4) lines: 4 "McCabe: We were there. I think the 5 thing that has gotten people 6 particularly concerned here is the 7 reports of gunfire last night." 8 Did you know that -- that counsel was 9 advising of what the concerns back at -- in Toronto were 10 about the gunfire at Incident Command? Did you know 11 that? 12 A: No. 13 Q: Now, if you could please turn to -- 14 of that same document, Tab 42? Halfway down the page, 15 Carson -- 16 MR. DERRY MILLAR: Excuse me for a 17 moment. I don't want to interrupt this flow, but in 18 fairness, when we're dealing with that transcript, John 19 Carson was advised about the concern about the gunfire, 20 but it's very important to be putting in this context 21 that then John Carson spends three (3) or four (4) pages 22 explaining why the gunfire should not figure prominently 23 in the -- 24 COMMISSIONER SIDNEY LINDEN: Yes. 25 MR. DERRY MILLAR: -- evaluation of the
3141 situation. 2 MR. JULIAN FALCONER: Fair. 3 COMMISSIONER SIDNEY LINDEN: You're 4 absolutely right. 5 MR. JULIAN FALCONER: That's fair. It's 6 fair. 7 8 CONTINUED BY MR. JULIAN FALCONER: 9 Q: If you could turn to Tab 42, please? 10 A: Yes, I have it. 11 Q: Right. Incident Commander Carson 12 also ends up speaking to an officer Hutchison of the OPP 13 who's in British Columbia keeping tabs on what's going on 14 in British Columbia at the same time. 15 And you recall there was some concern on 16 the national level, yes? 17 A: Yes, I recall that concern. 18 Q: All right. September 6th, 1995, 19 that's the -- the -- Tab 42 shows a conversation at 3:40. 20 And Officer Hutchison and Carson are 21 talking Incident Command. Halfway down the page do you 22 see where it says: 23 "Hutchison: Oh, that's fine. I 24 understand you being behind closed 25 doors."
3151 There, do you see that? 2 A: Yes. 3 Q: Carson: 4 "Well, we've had some alligators. 5 Hutchison: Oh, is that right? 6 Carson: Laughs. 7 Hutchison: Friendly ones or ones on 8 the outside? 9 Carson: Oh, well, we just -- some 10 political pressures, if you would." 11 Did you know that Incident Commander 12 Carson felt that they were experiencing political 13 pressures? 14 A: No. 15 Q: Could you please turn to... 16 17 (BRIEF PAUSE) 18 19 Q: ...Tab 2 of the blue binder? Could 20 you turn to Tab 2 of the blue binder and we're back to 21 the scribe notes. 22 And you'll understand that the idea is 23 were moving in chronological order through the events of 24 September 6th, all right? 25 So Tab 2 of the -- that binder is the
3161 typed scribe notes and I'm asking you to look at pages 69 2 to 70. 3 4 (BRIEF PAUSE) 5 6 Q: Do you have the extract that shows 7 the typed scribe notes at 69 to 70? 8 A: Well, I have pages 69 to 70 in front 9 of me. 10 Q: Okay. 11 A: Would there be another set that I 12 need to look at? 13 Q: Yeah. We know -- I -- I left a page 14 out so Mr. Millar was kind enough to create -- 15 A: Okay. Thank you. 16 Q: -- a further extract. Now, if you 17 could simply pay attention, if you could -- if you could 18 simply pay attention, if you could, to the entry -- 19 that's an entry of September 6th, 1995, of 6:42 p.m. at 20 Command Post. Quote: 21 "Inspector Linton, Inspector Carson, 22 Les Kobayashi, and Member of Parliament 23 Marcel Beaubien meeting in Command." 24 Now, for your knowledge Inspector Linton, 25 Dale Linton, was John Carson's alternate Incident
3171 Commander and, in fact, took over when John Carson wasn't 2 at Command Post. Okay, so you know that, Dr. Todres? 3 A: Now I know that. Thank you. 4 Q: Okay. And Les Kobayashi is from the 5 Minister -- Ministry of Natural Resources, all right? 6 A: Okay. 7 Q: All right. So they're meeting in 8 Command Post trailer: 9 "Marcel Beaubien advised that he had 10 sent a fax to the Premier advising of 11 his intentions and that he wanted a 12 return phone call regarding his 13 intentions." 14 Did you know that that had been recorded 15 in the typed scribe notes for the OPP, in relation to 16 what occurred at 6:42 on September 6th, 1995? 17 A: No. 18 Q: Going on: 19 "Inspector Carson advised that there is 20 a court hearing for an injunction at 21 9:00 a.m. 7 September/95. Marcel 22 Beaubien aware of situation." 23 Then what follows for the next four (4) 24 paragraphs is an explanation and I'm just going to read 25 it to you.
3181 "Marcel Beaubien wondered if there was 2 anything else that he could do. 3 Inspector Carson advised that things 4 are towards the court order so that 5 Criminal Code charges can be laid. 6 Marcel Beaubien advised that property 7 owners are very concerned. They are 8 frustrated and feel that they are not 9 being treated equally. John Carson 10 states that there is not a land claim, 11 there's been no legal claim to the 12 land. 13 Les Kobayashi had the land researched; 14 there's no burial ground on the land. 15 Inspector Linton questioned if there's 16 anything from the Solicitor General. 17 Marcel Beaubien advised they were 18 meeting today." 19 Did you know the OPP notes reflected a 20 discussion between Inspector Linton and Marcel Beaubien, 21 to the effect of what was in from the Solicitor General? 22 A: No. 23 Q: Moving on: 24 "John Carson advised that before the 25 Park was taken over, that he originally
3191 had Members there but had to leave for 2 safety reasons and we were outnumbered. 3 Les Kobayashi was present when the 4 Natives took over. He confirmed that 5 the officers were swarmed, there was 6 approximately twenty (20) to forty (40) 7 Natives agreed with the decision for 8 the officers to leave." 9 The next paragraph John Carson describes 10 what's going on in the Park, but I -- I want to go to the 11 next paragraph after that. 12 "Marcel Beaubien states that he doesn't 13 mind taking controversy. If situation 14 can't be handled by police services, 15 something has to be done to handle the 16 situation. John Carson states that we 17 want it resolved but we don't want 18 anyone to get hurt, wants everything 19 that can be done, to stress the point 20 of no one getting hurt. John Carson 21 also stated that we have a lot of good 22 people, two (2) teams on ground at a 23 time, officers doing a great job. 24 Dale Linton advises Marcel Beaubien 25 that we appreciate everything that he's
3201 done. Marcel Beaubien talked to Chief 2 Chris Coles and suggested MNR contact 3 Chief Coles so that they are aware of 4 the situation. 5 John Carson brought up issue that if 6 the Park is cleared, what happens after 7 that. Marcel Beaubien is concerned 8 about the residents, stated that they 9 had a meeting and a hundred (100) or 10 more residents turned out, they are 11 very frustrated." 12 Now, again, did you know that the OPP 13 scribed notes reflected these interchanges between Marcel 14 Beaubien and Incident Commander Carson? 15 A: No. 16 Q: If I could ask you please, to direct 17 your attention to Exhibit P-427, which is at the previous 18 tab, in the blue binder, Tab 1; do you see that, Tab 1, 19 the handwritten notes? 20 A: Yes. 21 Q: And if you could flip to page 472. 22 So you look in the top right-hand corner and you see that 23 there's page numbers on the top -- 24 A: I'm coming to it. 25 Q: -- of each one.
3211 A: I've got it now. 2 Q: All right. Now this is a note dated 3 September 6th, so you know, at 6:42 p.m.; all right? 4 Again, we're trying to follow in terms of chronology and 5 it jives with, so you know, the typed notes. 6 And it states: 7 "MB: Premier is in constant touch, 8 good communications." 9 In the evidence of Mr. Carson before 10 this Court his MB refers to Marcel Beaubien; all right? 11 So you know. 12 A: Thank you. 13 Q: Did you know that Marcel Beaubien, 14 according to John Carson's notes, indicated that, quote: 15 "The Premier is in constant touch, good 16 communications." 17 A: No, -- 18 Q: Did you know that? 19 A: -- I was not aware of that. 20 Q: If you could please turn to... 21 22 (BRIEF PAUSE) 23 24 MR. JULIAN FALCONER: I may have 25 misstated the time, the time may not have been 6:42 on
3221 September 6th, 1995, it may be 11:42 on September 6th, 2 1995. Mr. Miller just assisted me on that and I thank 3 him for that. 4 5 CONTINUED BY MR. JULIAN FALCONER: 6 Q: If you could please turn to Tab 17 of 7 your blue binder, and if it's any comfort to anyone, this 8 is the second to last passage, there's only one (1) more. 9 A: Could you repeat the -- the -- 10 Q: Certainly. 11 A: -- what Tab it is. 12 Q: Tab 17. 13 A: Thank you. 14 Q: It's the blue binder. 15 A: Oh, the blue binder...? 16 Q: Yeah. You're doing very well, Dr. 17 Todres, -- 18 A: Gee. 19 Q: -- you're following me much better 20 than -- than most could. 21 A: Here you go. 22 Q: I appreciate your patience. 23 A: Okay. 24 Q: Tab 17 of the blue binder is a 25 transcript dated July 14th, 2005. And it's an
3231 examination by myself of then Superintendent Fox, July 2 14th, 2005, and I'm at page 205. Could you flip in, it's 3 really the third page in. 4 A: Would you mind reading just the top 5 line for me, of that page? 6 Q: I'm sorry, there seems to be a -- I'm 7 going to back up. Could you give me a second, please? I 8 said 205; for counsel you should know I meant -- I should 9 have said page 97. So if you -- if you flip in three (3) 10 pages, the top line says 11 "Q. And the notion is there was -- 12 A: Yes, I have it, thank you. 13 Q: Okay. Thank you. So I'm at page 97, 14 it's my Examination by Julian Falconer of Officer Fox. 15 And the line I'd ask you to turn to is the bottom at page 16 -- right at the bottom of the page, it's line 2, it says 17 question, yes, and it shows up at page 98. So the bottom 18 of the page that's in front of you, Dr. Todres -- 19 A: Yes. 20 Q: -- the second to last question starts 21 with "yes". Do you see that? 22 A: So when the Premier said in, that -- 23 Q: That's right. 24 A: -- that paragraph? Yes. 25 Q: Yes:
3241 "So when the Premier said in the House 2 on May 29th, 1996, 'We would not have 3 offered an opinion.' That is not 4 consistent with your memory of exactly 5 what he did with you; correct? 6 A: Correct." 7 And then if you could turn to line 23, 8 which is at the next page, line 23 of page 98? 9 A: Yes, I'm with you. 10 Q: "Q: And it's fair to say that that 11 same Premier who claimed in the speech 12 that he had no expertise, stated to you 13 that as far as he was concerned, the 14 way the OPP --" 15 MR. PETER DOWNARD: Objection. 16 MR. JULIAN FALCONER: I'm going to finish 17 my question please. 18 19 CONTINUED BY MR. JULIAN FALCONER: 20 Q: "The way the OPP dropped the ball was 21 relinquishing control of the Ipperwash 22 Provincial Park; correct? 23 A: Yes." 24 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 25 Downard...?
3251 MR. PETER DOWNARD: I'm sorry, I was 2 given notice of an additional portion that he hasn't come 3 to, that's fine. 4 COMMISSIONER SIDNEY LINDEN: That's fine. 5 That's fine. 6 And the question is...? 7 8 CONTINUED BY MR. JULIAN FALCONER: 9 Q: Did you know that as far as 10 Superintendent Fox was concerned -- as far as 11 Superintendent Fox was concerned, that in fact Premier 12 Harris had offered an opinion on police operations at 13 that dining room meeting? 14 A: Not until I read this. 15 Q: Right. And when did you read this? 16 A: Well it became -- I can't -- I've not 17 seen this until now -- 18 Q: Right. 19 A: -- but I believe it was referenced in 20 an examination over the last two (2) days. 21 Q: Thank you. Could you please turn to 22 Tab 18 of your blue binder? 23 Now prior to my reading this question to 24 you, would you agree with me, Dr. Todres, that what I 25 called your co-guardian or the other person that is
3261 guardian of the line of demarcation, Commissioner 2 O'Grady, represents someone whose opinion you would value 3 in terms of understanding what was going on on the 4 ground; correct? 5 A: Yes. 6 Q: And would you agree with me that part 7 of your job is to look to him. You don't have to agree 8 with him, but to look to him for his views on where the 9 line is and whether it's been crossed? 10 MR. JULIAN FALCONER: I'll -- I'll 11 withdraw the question -- 12 COMMISSIONER SIDNEY LINDEN: Withdraw the 13 question and ask the question -- 14 MR. JULIAN FALCONER: That's fine. 15 That's fine. 16 COMMISSIONER SIDNEY LINDEN: -- that you 17 want to ask. 18 MR. JULIAN FALCONER: No, that's fine. 19 COMMISSIONER SIDNEY LINDEN: Carry on. 20 MR. JULIAN FALCONER: I withdraw the 21 question. 22 23 CONTINUED BY MR. JULIAN FALCONER: 24 Q: Could I please have you look at Tab 25 18 please. And for the record, this is a transcript of
3271 Commissioner O'Grady dated August 24th, 2005. 2 A: I have it in front of me. 3 Q: All right. And I'm at page 289. 4 A: Yes. 5 Q: If you flip over there's a document 6 or transcript page after 289 that starts at the top: 7 "A: A person looking in." 8 A: Yes, I have it, thank you. 9 Q: Right. And my question to 10 Commissioner O'Grady and I should say to you, Dr. Todres, 11 I wasn't as organized as I am today, but it was the same 12 idea. I put to Commissioner O'Grady, a whole series of 13 facts to ask him what his knowledge was. 14 And my question to him was: 15 "Q: And if you had known this 16 information I shared with you this 17 afternoon in such a painful way. If 18 you had known about this information 19 would it create some doubt in your mind 20 as to the existence, would you be so 21 confident that there was no political 22 pressure?" 23 Commissioner O'Grady answered: 24 "I would have some concern." 25 Did you know that Commissioner O'Grady
3281 after being shown certain information in these 2 Proceedings, expressed a concern about the existence of 3 political pressure? 4 COMMISSIONER SIDNEY LINDEN: Well I'm not 5 sure about that question. 6 Yes, Mr. Downard? 7 I think you can ask Ms. Todres what the 8 effect of receiving some of this information is, but I 9 don't think it's important to know. 10 MR. JULIAN FALCONER: Well that's fine, I 11 -- I -- than I can remove the controversy around it. 12 COMMISSIONER SIDNEY LINDEN: Yes. Yes, 13 Mr. Downard...? 14 MR. PETER DOWNARD: Well, I -- I do have 15 an objection to -- to this manner of proceeding. It's -- 16 it's one (1) thing to ask this witness whether at the 17 time, on the basis of the facts she knew, she thought 18 there was a reasonable appearance of political 19 interference. 20 It's another thing to select carefully, a 21 large number of specific facts that my -- that My Friend 22 -- obviously are the facts he likes best. 23 COMMISSIONER SIDNEY LINDEN: Yes. 24 MR. PETER DOWNARD: And puts them to the 25 witness and says --
3291 COMMISSIONER SIDNEY LINDEN: Yes? 2 MR. PETER DOWNARD: And puts them to the 3 -- the Witness -- 4 COMMISSIONER SIDNEY LINDEN: Yes. 5 MR. PETER DOWNARD: -- and says, Well now 6 would you please act as the trial judge and tell me 7 whether this -- tell me what your judgment is as -- 8 COMMISSIONER SIDNEY LINDEN: Well -- 9 MR. PETER DOWNARD: -- to whether these 10 facts give rise or cause you concern about whether it was 11 -- there was an appearance of political interference. 12 That is a direct usurpation, if you will. It's very 13 skilful and it's very soft, but it is a direct usurpation 14 of your role and, in my view, it is objectionable on that 15 basis and also -- and also in this forum -- in this 16 forum. 17 Although the lawyers know and you know, 18 sir, that the limit that's -- limited weight that such an 19 answer can have, it can be very misleading because 20 notwithstanding cautions that are sometimes given to the 21 media about -- about how they report things, those 22 cautions sometimes do not appear to be followed and so 23 what we -- we can get a report saying well, the former 24 Deputy Solicitor General says there's an appearance of 25 political interference, which is not a proper report.
3301 And so we have to be careful in this area, 2 in my respectful submission. 3 COMMISSIONER SIDNEY LINDEN: Yes, you're 4 right about that, but we can't judge how the media are 5 going to write about it. And I think if he asks a proper 6 question in a proper way he's entitled to ask it. 7 What question do you want to ask Dr. 8 Todres? Let's see if we have any objections. 9 MR. JULIAN FALCONER: Thank you. 10 COMMISSIONER SIDNEY LINDEN: What 11 question do you want to ask her now that you've brought 12 to her attention -- 13 MR. JULIAN FALCONER: That's right. 14 COMMISSIONER SIDNEY LINDEN: -- some 15 information that she wasn't previously aware of? 16 MR. JULIAN FALCONER: I -- I circulated 17 an evidentiary excerpt chronology of each excerpt that 18 I've put in front of this Witness. 19 COMMISSIONER SIDNEY LINDEN: Yes. 20 MR. JULIAN FALCONER: And I want to be 21 fair to the Witness. And I would like now that I've 22 taken her through it -- 23 COMMISSIONER SIDNEY LINDEN: Yes? 24 MR. JULIAN FALCONER: -- carefully and 25 painfully, I accept that, I'd like it put in front of the
3311 Witness because I'd like to ask her to look at it and 2 then answer -- 3 COMMISSIONER SIDNEY LINDEN: You've asked 4 the Witness the question. 5 MR. JULIAN FALCONER: That's fine. 6 MR. DERRY MILLAR: He's asked the 7 questions -- 8 COMMISSIONER SIDNEY LINDEN: Ask the 9 question. 10 MR. DERRY MILLAR: -- he doesn't need to 11 put -- and he only gave it to me and I -- I made a few 12 copies. He didn't ask me to circulate it to everybody 13 else. 14 COMMISSIONER SIDNEY LINDEN: Well, ask 15 the question, Mr. Falconer. 16 MR. JULIAN FALCONER: Fair enough. 17 COMMISSIONER SIDNEY LINDEN: Ask the 18 question. 19 20 CONTINUED BY MR. JULIAN FALCONER: 21 Q: Dr. Todres, you have indicated that 22 the information I have brought to your attention is not 23 necessarily information you knew at the time, correct? 24 A: Correct. 25 Q: And it's fair to say that the
3321 information in -- in large part directs itself to goings 2 on at Incident Command, correct? 3 A: Yes. 4 Q: And it's also fair to say that, when 5 I asked you before, one (1) of the limitations you had at 6 the time was that you were dealing in higher senior 7 officials. 8 COMMISSIONER SIDNEY LINDEN: Ask the 9 question -- 10 MR. JULIAN FALCONER: I'm going to get to 11 the question. But no -- to be fair, Mr. Commissioner -- 12 COMMISSIONER SIDNEY LINDEN: -- I mean I 13 don't know where you're going. Ask the question. 14 MR. JULIAN FALCONER: -- we all have a 15 job to do. 16 COMMISSIONER SIDNEY LINDEN: Yes, I know. 17 MR. JULIAN FALCONER: And -- and 18 shortcuts sometimes -- 19 COMMISSIONER SIDNEY LINDEN: Ask the 20 question. 21 MR. JULIAN FALCONER: I am asking my 22 question. 23 COMMISSIONER SIDNEY LINDEN: Okay. 24 25 CONTINUED BY MR. JULIAN FALCONER:
3331 Q: As -- as someone who was at the top, 2 your access to what's going on -- 3 COMMISSIONER SIDNEY LINDEN: You're not 4 asking the question, you're winding up again. You're 5 putting all kinds of -- 6 MR. JULIAN FALCONER: Okay. I'll ask the 7 question. 8 MR. DERRY MILLAR: Just ask the question. 9 MR. JULIAN FALCONER: Okay. I'll ask the 10 question. 11 COMMISSIONER SIDNEY LINDEN: Ask the 12 question. 13 14 CONTINUED BY MR. JULIAN FALCONER: 15 Q: Dr. Todres, based on the information 16 that I've brought to your attention today does this, in 17 any way, impact on your opinion that there was no 18 appearance of political interference in respect to 19 matters at Ipperwash? 20 COMMISSIONER SIDNEY LINDEN: Yes, now 21 that's the question. Now, stop there. yes? 22 OBJ MR. PETER DOWNARD: I've stated my 23 objection -- 24 COMMISSIONER SIDNEY LINDEN: You've 25 stated your objections.
3341 MR. PETER DOWNARD: -- and the reasons 2 for it. 3 COMMISSIONER SIDNEY LINDEN: Thank you 4 very much, Mr. Downard. 5 Does anybody else have anything to say? 6 MR. DOUGLAS SULMAN: I do and I'll -- 7 I'll make it brief, as I usually do. 8 It was over, well, now almost an hour ago 9 that you -- 10 COMMISSIONER SIDNEY LINDEN: That's fine. 11 MR. DOUGLAS SULMAN: -- that the issue 12 was first came up. And the issue is that it's not that 13 she couldn't answer some of the questions, she, each 14 time, said that she had no knowledge, and yet at the end 15 My Friend has put forth, and he's told you the evidence 16 that he's put forth, but he's only put forth snippets of 17 the evidence. 18 COMMISSIONER SIDNEY LINDEN: Yes. 19 MR. DOUGLAS SULMAN: A very careful 20 choosing of the evidence. 21 COMMISSIONER SIDNEY LINDEN: Yes. 22 MR. DOUGLAS SULMAN: He hasn't put 23 forward any of the cross-examination of Carson when he 24 said he wasn't affected by this. He hasn't put forward 25 Mr. King's evidence indicating -- and I -- I don't need
3351 to repeat it, Your Honour, you heard it, but it's unfair 2 to the Witness who hasn't heard any of this to hear 3 selected passages of the evidence and then be asked to 4 give an opinion which usurps your position. 5 COMMISSIONER SIDNEY LINDEN: Yes. 6 MR. DOUGLAS SULMAN: When a person 7 doesn't have all that information that's why it's 8 improper for her to draw conclusions. 9 COMMISSIONER SIDNEY LINDEN: I'm not sure 10 that her opinion on this is going to be helpful one (1) 11 way or the other -- 12 MR. DOUGLAS SULMAN: Well -- 13 COMMISSIONER SIDNEY LINDEN: -- so I'm 14 not sure -- 15 MR. DOUGLAS SULMAN: -- it shouldn't even 16 be on the record, Your Honour, is our position. 17 COMMISSIONER SIDNEY LINDEN: Yes. And, 18 Ms. Perschy...? We've got a lineup. It's almost 4:30 19 and the last day of a long session. 20 MS. ANNA PERSCHY: Yes, it is -- 21 COMMISSIONER SIDNEY LINDEN: Yes. 22 OBJ MS. ANNA PERSCHY: -- Commissioner. And 23 I have the same objection, essentially, as Mr. Downard 24 and Mr. Sulman. 25 The problem here, of course, is that these
3361 are snippets that have been provided to this Witness 2 without the context. Frankly, in my submission, she 3 would have need -- needed to have heard all of the 4 evidence that you've been hearing for the last few 5 months -- 6 COMMISSIONER SIDNEY LINDEN: Yes. 7 MS. ANNA PERSCHY: -- in order to be able 8 to address this question. That's -- that's problem 9 number 1. 10 Problem number 2 is the additional 11 unfairness that I wasn't allowed to explore with this 12 Witness the -- the, you know, the application of a 13 protocol to which she was speaking to yesterday and 14 that's the second issue that I wanted to raise -- 15 COMMISSIONER SIDNEY LINDEN: Thank you, 16 Ms. -- 17 MS. ANNA PERSCHY: -- by way of 18 objection. 19 COMMISSIONER SIDNEY LINDEN: It's a 20 completely different issue, I repeat again, Ms. Perschy. 21 Yes...? 22 MR. MURRAY KLIPPENSTEIN: With -- with 23 respect, Commissioner, a lot of these objections are 24 completely ill-founded and they're based on the concept 25 that the Witness is somehow going to be -- somehow
3371 requires the context of all these statements and that 2 having so-called snippets is a problem. 3 But with -- with respect, if the issue is 4 political direction and to some extent that is, it may be 5 that political direction can be given and received in 6 different ways. And it may be that the fact that these 7 are snippets that were transmitted in some way, shape, or 8 form, may be precisely part of the issue that you 9 yourself, Commissioner, need to assess. 10 And it may be yes, people will get 11 different -- have different interpretations and meanings 12 of these snippets, but the mere fact that the snippets 13 were transmitted down the pipeline raises issues of 14 itself that are fundamental to this Inquiry and with 15 respect to you exercising your judgment. 16 And so the question of, these are only 17 snippets, these are out of context, is somewhat beside 18 the point. It's the fact that these went down there that 19 needs to be evaluated by yourself and that this -- this 20 Witness, who -- this was her field of responsibility and 21 her field of policy expertise, may have something to 22 comment on, in -- in my respectful submission. 23 COMMISSIONER SIDNEY LINDEN: Thank you, 24 Mr. Klippenstein. 25 We're going to call on you, Mr. Millar.
3381 Yes, you want another crack at it? 2 MS. ANNA PERSCHY: Sorry, I just wanted - 3 - just in response to Mr. Klippenstein's point, that was 4 precisely why I raised my second objection. 5 COMMISSIONER SIDNEY LINDEN: Well -- 6 MS. ANNA PERSCHY: It has to do -- it has 7 to do with the ability to explore with this -- with this 8 Witness her understanding, the application of the 9 protocol, communications from government to the OPP. 10 COMMISSIONER SIDNEY LINDEN: Ms. Perschy, 11 I don't know how many times I need to say to you, I don't 12 want to hear that again. We've dealt with it. 13 MS. ANNA PERSCHY: I -- 14 COMMISSIONER SIDNEY LINDEN: We're not 15 going to make any progress if you keep bringing up the 16 same issue. Thank you. 17 MS. ANNA PERSCHY: I appreciate that. 18 COMMISSIONER SIDNEY LINDEN: Let's move 19 on. Yes, Ms. Twohig...? 20 MS. KIM TWOHIG: If the question is 21 permitted, my concern is that we be very clear about what 22 is meant by perception of -- of political pressure 23 because it's one (1) thing for those at the top, i.e. the 24 politicians, to intend or to appear to have given 25 political pressure. It's quite another thing for those
3391 who received certain information after a certain chain of 2 communications to think that maybe there was political 3 pressure when, in fact, there was none from the top. 4 And I think we have to be very careful 5 about what is meant. 6 COMMISSIONER SIDNEY LINDEN: Yes, that's 7 fine. Yes, Mr. Millar? 8 MR. DERRY MILLAR: Well -- 9 COMMISSIONER SIDNEY LINDEN: You've heard 10 the question, is it a proper question? 11 MR. DERRY MILLAR: It seems to me that, 12 given the evidence that's gone before, that -- that it's 13 -- it's not an -- it's not an inappropriate question. It 14 goes to weight, it doesn't usurp, with respect to My 15 Friend Mr. Downard , it doesn't usurp your role in 16 deciding the facts, in deciding the issues in this 17 proceeding. 18 So that it's -- based on these facts, 19 you'll ask a question, then it's up to you to decide. 20 COMMISSIONER SIDNEY LINDEN: I don't know 21 how she's going to answer the question, but I think it's 22 an appropriate question and I hope the media understand 23 that I haven't usurped my responsibility. I have the 24 ultimate responsibility to make these decisions and I'll 25 make them. It's her view, given the information that she
3401 now has that she didn't have before. 2 Would you like to ask the question in a 3 way that she can answer it? 4 MR. JULIAN FALCONER: Yes. 5 6 CONTINUED BY MR. JULIAN FALCONER: 7 Q: Yes. Based on the knowledge I have 8 now imparted to you in terms of the information I've 9 provided to you, that you indicated you didn't know, does 10 this change your view, that you've expressed, that there 11 is no reasonable perception of political interference in 12 respect of the matters at Ipperwash? 13 COMMISSIONER SIDNEY LINDEN: Just leave 14 it there. Yes, have you got have an answer to the 15 question? 16 THE WITNESS: The only response I have is 17 that the Deputy Attorney General and I were concerned 18 about how things might be perceived. We were not aware 19 of these kinds of operational details precisely because 20 we ought not to have been aware of these kinds of details 21 that were below the level that we would have been 22 receiving. 23 We had taken action because we were 24 concerned about what appearances might look like after 25 the fact, and I have no other comments beyond that.
3411 COMMISSIONER SIDNEY LINDEN: Are you 2 finished, Mr. Falconer? 3 MR. JULIAN FALCONER: I've a few minutes 4 left -- 5 COMMISSIONER SIDNEY LINDEN: Well, not 6 really, you're way over your time. 7 MR. JULIAN FALCONER: No, I appreciate 8 it. 9 COMMISSIONER SIDNEY LINDEN: Unless 10 you've got something that's really critical, I'm asking 11 you to please conclude your examination -- 12 MR. JULIAN FALCONER: Fair enough. I -- 13 COMMISSIONER SIDNEY LINDEN: -- unless 14 there's something really important that you need to do. 15 MR. JULIAN FALCONER: The -- the first 16 point is though, based on the -- what I've covered with 17 this Witness, I respectfully request a file as an 18 exhibit. What I've done is I've put together -- 19 COMMISSIONER SIDNEY LINDEN: That -- 20 MR. JULIAN FALCONER: -- a series of 21 evidentiary excerpts -- 22 COMMISSIONER SIDNEY LINDEN: That's not 23 an exhibit. 24 MR. JULIAN FALCONER: -- by way of 25 chronology.
3421 COMMISSIONER SIDNEY LINDEN: I don't 2 think that's an exhibit, Mr. Falconer. 3 MR. DERRY MILLAR: I don't think that's 4 appropriate given the -- 5 COMMISSIONER SIDNEY LINDEN: And is that 6 it? 7 MR. JULIAN FALCONER: No. I just -- 8 COMMISSIONER SIDNEY LINDEN: Well, then I 9 don't think that's an exhibit. It doesn't -- 10 MR. JULIAN FALCONER: That's fine. 11 COMMISSIONER SIDNEY LINDEN: -- lead to-- 12 MR. JULIAN FALCONER: I sought to, and 13 been told no. 14 COMMISSIONER SIDNEY LINDEN: Okay. It's 15 4:30, Mr. Falconer, all of our patience is wearing thin. 16 MR. JULIAN FALCONER: I -- I -- 17 COMMISSIONER SIDNEY LINDEN: I'm just -- 18 MR. JULIAN FALCONER: I respect that and 19 I'm going as quickly as I can to finish what I'm doing 20 and -- 21 COMMISSIONER SIDNEY LINDEN: Carry on. 22 MR. JULIAN FALCONER: Secondly, I had 23 referred to the Ibbitson book passage and the witness had 24 adopted much of the portion of the passage I referred to, 25 both concerning facts and political reality, and I'd ask
3431 to file, simply the portion, not all of it -- 2 COMMISSIONER SIDNEY LINDEN: I think 3 that's already an exhibit. 4 MR. JULIAN FALCONER: No, it's not. 5 COMMISSIONER SIDNEY LINDEN: Have we not 6 put that in -- 7 MR. JULIAN FALCONER: It is not. 8 COMMISSIONER SIDNEY LINDEN: -- through 9 anyone yet, no? 10 MR. JULIAN FALCONER: No, it wasn't an 11 exhibit and -- 12 MR. DERRY MILLAR: I don't think it needs 13 to be an exhibit. 14 COMMISSIONER SIDNEY LINDEN: It isn't, 15 it's a -- 16 MR. DERRY MILLAR: He put to her -- 17 COMMISSIONER SIDNEY LINDEN: Certain 18 passages. 19 MR. DERRY MILLAR: It's part of the 20 record, the passage, and it doesn't -- 21 COMMISSIONER SIDNEY LINDEN: Yes, I -- 22 MR. DERRY MILLAR: The book doesn't 23 need -- 24 COMMISSIONER SIDNEY LINDEN: -- don't 25 think it needs --
3441 MR. DERRY MILLAR: -- to be an exhibit. 2 MR. JULIAN FALCONER: Well, I'm not 3 trying to make the book the exhibit. I'm entitled to 4 file that which was adopted -- 5 COMMISSIONER SIDNEY LINDEN: You've read 6 it into the record. 7 MR. JULIAN FALCONER: That's right. 8 COMMISSIONER SIDNEY LINDEN: So it's on 9 the record. 10 MR. DERRY MILLAR: It's in the record, it 11 doesn't need to be filed as an exhibit and I object. 12 COMMISSIONER SIDNEY LINDEN: Let's move 13 on. 14 MR. JULIAN FALCONER: Well, I didn't know 15 necessity was an -- the test for exhibits. But because 16 it's late, I'm -- 17 COMMISSIONER SIDNEY LINDEN: Mr. 18 Falconer, are you finished yet? 19 I'm sorry to be cutting you short -- 20 MR. JULIAN FALCONER: No, no, no, no, no, 21 it's fair, it's fair Mr. Commissioner. 22 COMMISSIONER SIDNEY LINDEN: It's the end 23 of a long session -- 24 MR. JULIAN FALCONER: You've been very 25 patient --
3451 COMMISSIONER SIDNEY LINDEN: -- and 2 unless there's something new and important -- 3 MR. JULIAN FALCONER: That's right, 4 you've been -- 5 COMMISSIONER SIDNEY LINDEN: I'd like to 6 end -- 7 MR. JULIAN FALCONER: -- very, very 8 patient. 9 COMMISSIONER SIDNEY LINDEN: Thank you. 10 MR. JULIAN FALCONER: I'm just simply 11 looking at my notes to make sure I'm finished. 12 COMMISSIONER SIDNEY LINDEN: Thank you. 13 MR. JULIAN FALCONER: Thank you. 14 15 CONTINUED BY MR. JULIAN FALCONER: 16 Q: You've indicated that now 17 Superintendent Fox, but for the lapse in judgment that 18 you -- that you saw from the taped conversation, was a 19 person who exhibited extraordinary judgment in your 20 experience with him, correct? 21 A: That's correct. 22 Q: All right. You have now hear the 23 concerns he expressed in the transcript of the tape. 24 Would you agree with me that with that 25 sense of offence that he took from what went on at that
3461 meeting, that something went wrong at the dining room 2 meeting; would you agree with that? 3 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 4 Millar...? 5 MR. DERRY MILLAR: Well, she -- he can 6 ask her what she thought about the dining room meeting -- 7 MR. JULIAN FALCONER: That's right. 8 MR. DERRY MILLAR: -- and Mr. Fox, and 9 not -- Mr. Fox has his own views and Mr. Fox was cross- 10 examined about those views. 11 COMMISSIONER SIDNEY LINDEN: It's not a 12 helpful question, Mr. Falconer. 13 MR. JULIAN FALCONER: Thank you. 14 15 (BRIEF PAUSE) 16 17 MR. JULIAN FALCONER: I have what amounts 18 to two (2) or three (3) more questions on a specific area 19 that I didn't canvass and has not been canvassed. 20 21 CONTINUED BY MR. JULIAN FALCONER: 22 Q: You indicated that you have extensive 23 experience in human rights issues and continue to work in 24 the area of human rights, correct? 25 A: I don't work in human rights now, but
3471 there was a time when I was very familiar with areas 2 pertaining to labour law and employment equity. 3 Q: I'm going to refer to, 4 hypothetically, a statement as an offensive statement, 5 just generally. 6 Would you agree with me that based on your 7 experience, both in life and your work, that someone can 8 make an offensive statement, not intend for it to be 9 offensive, but the person hearing it who's affected, the 10 identifiable group, may well find it offensive? 11 Would you agree with that? 12 A: Yes. 13 Q: All right and that there is a real 14 difference between the intention behind the statement and 15 how that statement is reasonably received by identifiable 16 groups? 17 A: There can always be something called 18 cognitive dissonance, yes. 19 Q: All right. Would you agree with me, 20 based on your experience with Aboriginal communities, 21 including your most recent experience that you described 22 in the Sioux. 23 That it would be reasonable for members of 24 the Aboriginal community to see the statement, "Get the 25 fucking Indians out of my Park" as a statement that is
3481 racist in its wording, and it would be reasonable for 2 them to take it that way? 3 A: I can see that how it would be 4 hurtful and insensitive. 5 Q: And you find the word "racist" a word 6 that you're not prepared to speak to directly, correct? 7 COMMISSIONER SIDNEY LINDEN: She's 8 answered the question, just -- 9 MR. JULIAN FALCONER: Well, I'm -- 10 COMMISSIONER SIDNEY LINDEN: -- take the 11 answer that she's given you and -- 12 MR. JULIAN FALCONER: No, but the -- 13 COMMISSIONER SIDNEY LINDEN: -- move on. 14 MR. JULIAN FALCONER: -- problem is, Mr. 15 Commissioner, to be fair, the problem becomes this. It's 16 not so much the witness, she's worked very hard and 17 long -- 18 COMMISSIONER SIDNEY LINDEN: She's given 19 us her answer. 20 MR. JULIAN FALCONER: She's worked very 21 hard and long and I understand that. 22 But here's the problem from the point of 23 view of Aboriginal Legal Services of Toronto, if we 24 don't -- 25 COMMISSIONER SIDNEY LINDEN: I --
3491 MR. JULIAN FALCONER: -- ask the 2 question, if we don't -- 3 COMMISSIONER SIDNEY LINDEN: Mr. 4 Falconer, I'm going to ask you politely -- 5 MR. JULIAN FALCONER: I'm going to shut 6 it down. 7 COMMISSIONER SIDNEY LINDEN: I'm going to 8 ask you politely, Mr. Falconer -- 9 MR. JULIAN FALCONER: No, no, that's very 10 fair. 11 COMMISSIONER SIDNEY LINDEN: Please bring 12 it to a -- 13 MR. JULIAN FALCONER: I have -- 14 COMMISSIONER SIDNEY LINDEN: -- 15 conclusion. 16 MR. JULIAN FALCONER: I have no further 17 questions. 18 COMMISSIONER SIDNEY LINDEN: Thank you 19 very much. 20 MR. JULIAN FALCONER: All right. 21 THE WITNESS: Mr. Commissioner, if I 22 could just be permitted one -- one statement. I feel 23 badly that I didn't extend my condolences to the Dudley - 24 - to the family -- 25 COMMISSIONER SIDNEY LINDEN: Would you
3501 like to do that now. 2 THE WITNESS: But if I could for just a 3 moment. 4 COMMISSIONER SIDNEY LINDEN: Go ahead. 5 THE WITNESS: I'm sorry -- 6 COMMISSIONER SIDNEY LINDEN: Thank you, 7 Mr. Falconer. 8 THE WITNESS: Thank you, Commissioner, 9 for permission -- 10 MR. JULIAN FALCONER: Thank you, thank 11 you, Dr. Todres. 12 THE WITNESS: You're welcome, thank you. 13 I regret that I didn't have a chance to 14 say this when I began my evidence, but I wanted to 15 express -- I'm going to get emotional now, but I do want 16 to express our -- my deepest condolences for the tragedy 17 that occurred and I wish you -- I hope that you go from 18 strength to strength and I hope that all of us will learn 19 a great deal from this Inquiry. 20 Thank you for -- 21 COMMISSIONER SIDNEY LINDEN: It's been 22 difficult -- 23 THE WITNESS: -- having me here, I'm 24 sorry. 25 COMMISSIONER SIDNEY LINDEN: I know it's
3511 been difficult for you, Dr. Todres. Thank you very much 2 for coming and giving us your evidence. 3 MR. DERRY MILLAR: I don't think that Ms. 4 Twohig has any questions. 5 MS. KIM TWOHIG: I do. 6 MR. DERRY MILLAR: Oh, you do? 7 THE WITNESS: All right. Let me wipe my 8 eyes. 9 MS. KIM TWOHIG: I'm sorry, Mr. 10 Commissioner. I'm very reluctant to ask the question at 11 this time of day, but it's a policy question which was 12 asked of several other witnesses and if you don't find it 13 helpful at this point I will not ask -- 14 COMMISSIONER SIDNEY LINDEN: You are -- 15 MS. KIM TWOHIG: But I feel I should. 16 COMMISSIONER SIDNEY LINDEN: -- entitled 17 to an opportunity to examine, so I hadn't thought of it. 18 Carry on. 19 MS. KIM TWOHIG: Oh, thank you. 20 THE WITNESS: I'm composed now. 21 22 CROSS-EXAMINATION BY MS. KIM TWOHIG: 23 Q: Dr. Todres, this has to do with the 24 structure and accountability of ONAS. 25 A: Yes.
3521 Q: Based on your experience as a Deputy 2 Minister and as a leader of the Secretariat similar to 3 ONAS, as I believed you had testified -- 4 A: Yes. 5 Q: And as someone with an interest in 6 justice for Aboriginal people, I'm wondering if you have 7 any views as to whether or not it would be preferable for 8 ONAS to report to its own Minister or to have its own 9 Deputy, in order to avoid either a conflict of interest, 10 or a stronger voice within government? 11 A: I've thought long and hard about this 12 question, in general, with respect to all Secretariats, 13 and I guess the first point about Secretariats is that 14 they're established essentially because the issues are 15 marginalised in nature. 16 Because they're marginalised and its 17 regrettable that they're marginalised and we don't wish 18 them to be marginalized, but they are marginalised. 19 And so it's always important to have a 20 separate focus. I think it's impossible to turn around 21 and say, well, we're going to incorporate all of that 22 into the Ministry of the Attorney General, for example, 23 and assume that there will be a fair degree of attention 24 put to it. 25 But on the second order of question, my
3531 greatest fear about having ONAS as a separate unit with - 2 - with a separate Minister is, the likelihood of ONAS 3 receiving a strong Cabinet Minister is very low. 4 And when I was giving evidence earlier, 5 pardon me, about the success of the Secretariat when I 6 was working in Women's Issues, it was successful because 7 we had a very powerful Minister, we had a great deal of 8 money related to a particular function, and we had a 9 strong resource. 10 I am -- I find the argument that there can 11 be a potential conflict of interest to be 12 inconsequential; that there is no -- there is no -- 13 virtually no area that can be worked on. 14 So for me, the -- the most important 15 message that could be given to an ONAS would perhaps be 16 to strengthen its mandate beyond what it is that it's 17 currently doing, to assure itself that there would -- in 18 other words, beyond the boundary maintenance issues and 19 the land claims and so on. 20 As important as all of this is, I wouldn't 21 want to trivialize it at all, but to say that for where 22 we need to be going, it's not for me to say, but if I 23 were looking at a policy agenda for Aboriginal peoples, 24 there would be a whole series of things I would like -- 25 one would like to see accomplished for First Nations
3541 people. 2 And I think that's the kind of thing that 3 could be, in fact, given to an ONAS with a powerful 4 Minister, without a separate function. The separate 5 function eats up a lot of time and energy and at the end 6 of the day, takes away from the very precious resources 7 that are actually required to make a difference for an 8 individual family, on and off reserve. 9 So I don't support the notion of separate. 10 I think it's facile and will lead to a series of very 11 unfortunate, unintended consequences. 12 In other words, it will be worse off, not 13 better off. 14 Q: Thank you, Dr. Todres, thank you, Mr. 15 Commissioner. 16 COMMISSIONER SIDNEY LINDEN: Thank you, 17 Ms. Twohig. 18 Mr. Millar, are there any questions -- 19 MR. DERRY MILLAR: Commissioner, I have 20 no questions. I would like to thank Dr. Todres for 21 coming and giving her evidence. 22 It's been difficult and as it's been for 23 all of our witnesses. It's not an easy task to be here, 24 but I wish to thank you very much. 25 THE WITNESS: Thank you.
3551 COMMISSIONER SIDNEY LINDEN: Thank you. 2 3 (WITNESS STANDS DOWN) 4 5 COMMISSIONER SIDNEY LINDEN: This brings 6 to a conclusion our session. We now have a break. I 7 know everybody needs it and I'll look forward to having a 8 break myself and also look forward to seeing everybody 9 again in early January. Thank you all very much. 10 MR. DERRY MILLAR: And we'll deal with 11 the Gerry King affidavit next year. 12 COMMISSIONER SIDNEY LINDEN: Thank you 13 very much, thank you. 14 THE REGISTRAR: This Public Inquiry is 15 adjourned until Monday, January the 9th, 2006 at 10:30 16 a.m. 17 18 --- Upon adjourning at 4:33 p.m. 19 20 Certified Correct 21 22 23 _______________________ 24 Carol Geehan 25