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 February 13th, 2006 25
21 Appearances 2 Derry Millar ) Commission Counsel 3 Susan Vella ) (np) 4 Donald Worme, Q. C ) 5 Katherine Hensel ) (np) 6 Megan Ferrier ) (np) 7 Murray Klippenstein ) The Estate of Dudley 8 Vilko Zbogar ) (np) George and George 9 Andrew Orkin ) (np) Family Group 10 Basil Alexander ) 11 12 Peter Rosenthal ) (np) Aazhoodena and George 13 Jackie Esmonde ) Family Group 14 15 Anthony Ross ) (np) Residents of 16 Cameron Neil ) (np) Aazhoodena (Army Camp) 17 Kevin Scullion ) 18 William Henderson ) Kettle Point & Stony 19 Jonathon George ) 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 ) (np) The Honourable Michael 7 Bill Hourigan ) (np) Harris 8 Jennifer McAleer ) 9 10 Ian Smith ) (np) Robert Runciman 11 Alice Mrozek ) (np) 12 13 Harvey T. Strosberg, Q.C.) (np) Charles Harnick 14 Jacqueline Horvat ) (np) 15 16 Douglas Sulman, Q.C. ) Marcel Beaubien 17 Mary Jane Moynahan ) (np) 18 Dave Jacklin ) (np) 19 Trevor Hinnegan ) (np) 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 ) (np) 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 ) 8 Robyn Trask ) 9 Caroline Swerdlyk ) (np) 10 11 Julian Falconer ) Aboriginal Legal 12 Brian Eyolfson ) (np) Services of Toronto 13 Kimberly Murray ) (np) 14 Julian Roy ) 15 Clem Nabigon ) (np) 16 Linda Chen ) (np) 17 Chris Darnay ) (np) 18 Adriel Weaver ) (np) Student-at-Law 19 20 Al J.C. O'Marra ) (np) Office of the Chief 21 Robert Ash, Q.C. ) (np) Coroner 22 23 William Horton ) Chiefs of Ontario 24 Matthew Horner ) 25 Kathleen Lickers ) (np)
51 2 APPEARANCES (cont'd) 3 Mark Fredrick ) (np) Christopher Hodgson 4 Craig Mills ) (np) 5 Megan Mackey ) (np) 6 Peter Lauwers ) (np) 7 Erin Tully ) (np) 8 Michelle Fernando ) 9 Maanit Zemel ) (np) 10 11 David Roebuck ) (np) Debbie Hutton 12 Anna Perschy ) (np) 13 Melissa Panjer ) 14 Adam Goodman ) (np) 15 16 17 18 19 20 21 22 23 24 25
61 TABLE OF CONTENTS 2 PAGE NO. 3 List of Exhibits 7 4 Opening Comments 8 5 6 Anthony Gilbert Parkin, Resumed 7 Cross-Examination by Ms. Jennifer McAleer 25 8 Re-Cross-Examination by Mr. Julian Falconer 30 9 Cross-Examination by Mr. Mark Sandler 59 10 11 TIMOTHY ST. CLAIR MCCABE, Recalled 12 Examination-In-Chief by Mr. Donald Worme 135 13 Cross-Examination by Ms. Jackie Esmonde 156 14 Cross-Examination by Mr. William Horton 181 15 16 Certificate of Transcript 206 17 18 19 20 21 22 23 24 25
71 EXHIBITS 2 No. Description Page 3 P-1071 Handwritten notes of Deputy Commissioner 4 Pilon, 14:00 hours, 14:17 hours, 5 July 28/'03. 28 6 P-1072 Transcript of logger tape number 1, 7 track 1, disc 1 of 3, Mark Wright 8 and Ed. Robertson, 10:42 hours, 9 Sept. 05/'95. 58 10 P-1073 Handwritten notes of Mr. Tim McCabe. 136 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
81 --- Upon commencing at 10:33 a.m. 2 3 THE REGISTRAR: This Public Inquiry is 4 now in session, the Honourable Mr. Justice Linden 5 presiding. Please be seated. 6 COMMISSIONER SIDNEY LINDEN: Good 7 morning, sir. Good morning. 8 MR. DERRY MILLAR: Good morning, 9 Commissioner. 10 COMMISSIONER SIDNEY LINDEN: Good 11 morning. Good morning, everybody. 12 MR. DERRY MILLAR: Now, before we begin 13 there's two (2) matters that -- or three (3) matters that 14 I'm going to deal with and then one (1) matter that Mr. 15 Worme will deal with. 16 The two (2) matters that -- or three (3) 17 matters that I with deal with is first firstly, on the 18 issue of the Fridays, we've had a request from Mr. 19 Scullion to deal with this later in the week so we will 20 deal with it some time later in the week. Mr. Scullion 21 was unavoidably -- been delayed. He's on his way this 22 morning. 23 Secondly, Mr. Sandler has obtained over 24 the weekend and we distributed this morning, a one (1) 25 page -- page of notes from July 28, 2003 and it's a
91 meeting between Deputy Commissioner Pilon and Chief 2 Superintendent Parkin as he then was and Superintendent 3 Ron Fox. And so there may be some questions that the 4 parties may have with respect to this note. 5 And then I just wanted to let everyone 6 know that we've distributed a volume of notes of -- to 7 Mark Wright, he was then Detective Sergeant Mark Wright, 8 he's now Detective Inspector Mark Wright, that will be 9 used during the examination of Mr. -- Detective Inspector 10 Wright when he's called. 11 The last issue that Mr. Worme will deal 12 with with Mr. Falconer is a request that Mr. Falconer 13 made on Friday afternoon with respect to reopening -- the 14 -- his cross-examination. 15 COMMISSIONER SIDNEY LINDEN: Do you want 16 to speak to that, Mr. Worme or Mr. Falconer does or -- 17 MR. DONALD WORME: Well, it is Mr. 18 Falconer's application and I -- I wonder if perhaps he 19 might speak to that firstly and certainly I have some 20 comments on that. 21 COMMISSIONER SIDNEY LINDEN: That's fine. 22 23 (BRIEF PAUSE) 24 25 MR. JULIAN FALCONER: Good morning, Mr.
101 Commissioner. 2 COMMISSIONER SIDNEY LINDEN: Good 3 morning, Mr. Falconer. 4 MR. JULIAN FALCONER: Mr. Commissioner, 5 on Friday in and around noon -- 12:05 p.m. is the e-mail 6 time, a number of attachments were provided to counsel by 7 your counsel in respect of the anticipated evidence of 8 Mark Wright -- and I'm -- I'm kind of doing this slowly 9 just for the record. I know that you know this, Mr. 10 Commissioner -- 11 COMMISSIONER SIDNEY LINDEN: I know some 12 of it. 13 MR. JULIAN FALCONER: -- you know the 14 background and I -- and I don't want to -- I don't want 15 to be overly slow but I want to be proper for the record 16 in terms of this motion. 17 COMMISSIONER SIDNEY LINDEN: Well, I 18 don't it to be too long because I -- 19 MR. JULIAN FALCONER: I'll do the -- I 20 can do the shortcut. 21 COMMISSIONER SIDNEY LINDEN: Do the 22 shortcut. 23 MR. JULIAN FALCONER: All right, to be 24 fair. 25 COMMISSIONER SIDNEY LINDEN: I know the
111 essence of it -- 2 MR. JULIAN FALCONER: Well, I'm seeking 3 to -- 4 COMMISSIONER SIDNEY LINDEN: -- and I 5 think the essence of it is important for the record. 6 MR. JULIAN FALCONER: Yes. I am seeking 7 to reopen my cross-examination of Mr. Parkin on a 8 discreet matter that relates to a tape of a conversation 9 between Mark Wright and Inspector Ed Robertson, of course 10 then Detective Sergeant Mark Wright and Inspector Ed 11 Robinson -- Robertson, dated September 5th, 1995 at 10:42 12 a.m. 13 The -- the portion that was of particular 14 relevance and concern to this motion, I sent to all 15 counsel -- 16 COMMISSIONER SIDNEY LINDEN: Yes. 17 MR. JULIAN FALCONER: -- on Saturday 18 morning; that is the excerpt. And in the motion that I 19 brought, I simply indicated to counsel the following, and 20 I indicate it to you, Mr. Commissioner, in the tape Mr.-- 21 COMMISSIONER SIDNEY LINDEN: Is this the 22 shortcut? 23 MR. JULIAN FALCONER: Yes. 24 COMMISSIONER SIDNEY LINDEN: This is the 25 short version?
121 Okay, go on. I understand that this is 2 the essence of the argument? 3 MR. JULIAN FALCONER: Yes. 4 COMMISSIONER SIDNEY LINDEN: Okay. 5 MR. JULIAN FALCONER: In the tape Mr. 6 Wright indicates among other things that: 7 8 (BRIEF PAUSE) 9 10 "Our intention is to back in and take 11 that Park." 12 COMMISSIONER SIDNEY LINDEN: Yes. 13 MR. JULIAN FALCONER: Is at page 2. 14 "They're going to get us an injunction 15 because that's what we want. We want a 16 piece of paper. And our intention is 17 to go back in and take that Park." 18 Now, that's September 5th, 1995 at 10:42 19 a.m. and that's a quote from Detective Sergeant Mark 20 Wright. The evidence you've heard is absolutely 21 uncontroversial that Detective Sergeant Wright was 22 somewhat of a second in command. Whether it was to 23 Carson when he was on duty or Linton -- 24 COMMISSIONER SIDNEY LINDEN: Yes. 25 MR. JULIAN FALCONER: -- and that's how
131 he was perceived and Mr. Parkin helped us out in that 2 regard. The real issue is, was that the OPP intention? 3 Was that the OPP plan, to go in and take that part 4 because obviously that is at variance with evidence we've 5 heard to-date. 6 Now, I want to, very quickly address the 7 reality of when this transcript came to my attention. 8 The transcript came to my attention in and around the 9 afternoon of -- Friday afternoon -- and one (1) could 10 argue that if I had gone or my people had gone and 11 listened to the thousands of hours of tapes at your 12 office, Mr. Commissioner -- 13 COMMISSIONER SIDNEY LINDEN: As my people 14 did. 15 MR. JULIAN FALCONER: Well, no, your 16 people did when they found this and provided it to 17 Counsel. I'm guessing -- 18 COMMISSIONER SIDNEY LINDEN: Well -- 19 MR. JULIAN FALCONER: -- that your people 20 didn't probably hear it any other -- 21 COMMISSIONER SIDNEY LINDEN: No, I think 22 we did. 23 MR. JULIAN FALCONER: Okay. 24 COMMISSIONER SIDNEY LINDEN: I think we 25 had to hear it and I think we made it available to
141 everybody to come to our office -- 2 MR. JULIAN FALCONER: Yes, that's very 3 true. 4 COMMISSIONER SIDNEY LINDEN: -- and 5 listen to it and some did avail themselves of it. 6 MR. JULIAN FALCONER: Yes, but the 7 issue -- 8 COMMISSIONER SIDNEY LINDEN: But in any 9 event you've just saw it for the first time -- 10 MR. JULIAN FALCONER: That's right. And 11 the thousands of hours of tapes don't translate to a 12 transcript. 13 COMMISSIONER SIDNEY LINDEN: Well -- 14 MR. JULIAN FALCONER: And -- and the 15 bottom line obviously no one -- it's not cat and mouse 16 and I'm not being critical, it's we get what we get when 17 we can. 18 COMMISSIONER SIDNEY LINDEN: Yeah, I 19 understand. 20 MR. JULIAN FALCONER: We received this 21 transcript because that was the first time we knew of a 22 transcript in this regard. 23 COMMISSIONER SIDNEY LINDEN: Yes. 24 MR. JULIAN FALCONER: Now, having said 25 that I'm not seeking a long cross-examination. Secondly,
151 Mr. Parkin hasn't been re-examined yet. There's 2 virtually no prejudice in my respectful submission. 3 COMMISSIONER SIDNEY LINDEN: That's fine. 4 MR. JULIAN FALCONER: To cut to the 5 quick, even if it's not forty-five (45) minutes, even if 6 it's twenty (20) minutes which I believe twenty (20) 7 minutes could do it, I can't do it in less than that 8 properly, but in less than twenty (20) minutes I can 9 examine this Witness on this issue and address the 10 potential unfairness if he were to leave the stand, 11 that.s all. 12 COMMISSIONER SIDNEY LINDEN: I think 13 that's probably a reasonable estimate; twenty (20) 14 minutes. The question that I have is, would anybody else 15 wish to examine on this point? 16 If you're the only one who's going to 17 examine then I think we can certainly manage twenty (20) 18 minutes. I do want to make sure that we deal with the 19 other issue that has come up this morning, namely -- 20 MR. JULIAN FALCONER: There's a second 21 issue? 22 COMMISSIONER SIDNEY LINDEN: Yes. I 23 mean -- 24 MR. JULIAN FALCONER: And I saw that note 25 page when I came in this morning, and to be fair to Mr.
161 Millar he actually asked me to read it before I got up in 2 front of you -- 3 COMMISSIONER SIDNEY LINDEN: Well -- 4 MR. JULIAN FALCONER: -- only so that I 5 wouldn't be bothering everybody halfway through the re- 6 examine I imagine and -- 7 COMMISSIONER SIDNEY LINDEN: Well, we're 8 going to have to deal with this -- 9 MR. JULIAN FALCONER: That's right. 10 COMMISSIONER SIDNEY LINDEN: -- and I 11 think it's real important that we try to complete the -- 12 MR. JULIAN FALCONER: Exactly. 13 COMMISSIONER SIDNEY LINDEN: -- recall of 14 Mr. McCabe. 15 MR. JULIAN FALCONER: I looked at that 16 note -- 17 COMMISSIONER SIDNEY LINDEN: That's fine. 18 MR. JULIAN FALCONER: -- and the note of, 19 as I understand it Deputy Commissioner Pilon, and I have 20 about between five (5) and ten (10) minutes of questions 21 of Mr. Parkin in addition to the twenty (20) minutes. 22 COMMISSIONER SIDNEY LINDEN: That's fine. 23 MR. JULIAN FALCONER: But that's the 24 most, ten (10) minutes on -- on that note. 25 COMMISSIONER SIDNEY LINDEN: Well, let's
171 deal with the first issue first. Mr. Worme, do you want 2 to be heard on this or Mr. Sandler -- 3 MR. DONALD WORME: Perhaps Mr. Sandler -- 4 COMMISSIONER SIDNEY LINDEN: -- or Mr. 5 Sandler do you want to be heard on the issue of re- 6 examining Mr. Parkin now on the question of that 7 transcript, that tape? 8 MR. MARK SANDLER: Yes. Yes, to state 9 the obvious first of all, dealing with the easiest issue 10 first, as a result of a request made by Mr. Downard we 11 did seek out and obtain Deputy Commissioner Pilon's notes 12 so I -- I could have no objection to -- to any further 13 cross-examination solely based upon the production of 14 those notes. 15 As for the cross-examination I -- I have 16 to say with -- with great respect that I'm a little 17 concerned about the -- the implications of this and I'll 18 -- and I'll tell you why. 19 It's true that there's something 20 deceptively simple about saying well, here's another 21 twenty (20) minutes and you can cross-examine on -- on 22 the tape and -- and I don't fall back solely upon the 23 fact that the tapes were available for those who wanted 24 to listen to them because I appreciate the logistics 25 associated with -- with the volume at this Inquiry.
181 My concern is -- is this, that this is not 2 a trial, it is an inquiry, it ain't perfect I say with 3 great respect. 4 COMMISSIONER SIDNEY LINDEN: It's pretty 5 close, Mr. Sander, you have to admit. 6 MR. MARK SANDLER: I have to admit it's 7 pretty close. 8 COMMISSIONER SIDNEY LINDEN: I'm kidding. 9 MR. MARK SANDLER: I have to say there 10 have been a number of occasions and -- and I don't -- and 11 I don't minimize this over the past months where matters 12 come to light when one is examining a witness and one 13 would have liked in -- in a perfect world to have the 14 opportunity to bring people back to ask some questions 15 arising out of it, but -- but it -- it isn't perfect and 16 it -- and it isn't a trial and -- and I have to say that 17 -- that in theory one could then get into whether or not 18 John Carson would be responding to -- to questions 19 arising out of this tape or other tapes that have been 20 dealt with post John Carson or -- 21 COMMISSIONER SIDNEY LINDEN: Please -- 22 MR. MARK SANDLER: -- Tom O'Grady or 23 Chris Coles. 24 COMMISSIONER SIDNEY LINDEN: Please don't 25 make those suggestions.
191 MR. MARK SANDLER: Well, my point is -- 2 is simply this, that this is a classic floodgate 3 situation and -- and for My Friend to say that it's 4 necessary to cross-examine, I'd -- I'd ask Your Honour to 5 look at that very carefully. 6 Mr. Parkin was cross-examined at length 7 about what John Carson said to him and what he took from 8 it. He was cross-examined at length about what Dale 9 Linton said to him and what he took from it. Hr was 10 cross-examined about what Mark Wright said directly to 11 him and what he took from it. 12 This is a tape between two (2) parties. 13 He doesn't know the tape, he has no knowledge of or 14 familiarity with the tape. 15 He has exhausted his state of knowledge as 16 to what he could glean from what he was being told by the 17 various people involved. And I have to say, if one looks 18 at the tape, with great respect, and it's not the subject 19 of argument here, but My Friend left out in the latter 20 part of his submissions that -- that Mark Wright's 21 conversation is in the context. It says it right on the 22 tape that after the injunction -- 23 COMMISSIONER SIDNEY LINDEN: Yes. 24 MR. MARK SANDLER: -- certain things will 25 take place. There's nothing new in this, with great
201 respect. 2 COMMISSIONER SIDNEY LINDEN: Yes. 3 MR. MARK SANDLER: And he can cross- 4 examine Mark Wright, subject to your discretion, at his 5 heart's content about what that means, what should be 6 taken from it and whether that's consistent or 7 inconsistent with what's been said about the OPP 8 position. 9 And I say with great respect, that the 10 relevance of this Witness to that issue is marginal; it 11 opens up floodgates. And I also have to say that there's 12 a reason why your counsel goes last, because it's 13 recognized and -- and you acknowledged this earlier in 14 the piece that, on some occasions, not every question is 15 asked and Commission Counsel are entitled in closing the 16 re-examination, to ask something if they think there 17 hasn't been an opportunity to address a point as well. 18 So that's a residual power that exists. 19 So my submission is that -- that this is 20 not a circumstance where further cross-examination should 21 be permitted by Mr. Falconer. 22 Those are my respectful submissions. 23 COMMISSIONER SIDNEY LINDEN: Thank you, 24 Mr. Sandler. Mr. Worme....? 25 I don't need to hear everybody on this,
211 Mr. Alexander. You think he should be -- have an 2 opportunity to ask these questions? 3 MR. BASIL ALEXANDER: Well, just briefly 4 for the record, it's the view -- we do support the 5 motion. 6 COMMISSIONER SIDNEY LINDEN: Yes. 7 MR. BASIL ALEXANDER: But to be clear, 8 from our perspective, the family and the Estate view this 9 material as extremely significant, that goes to the 10 core -- 11 COMMISSIONER SIDNEY LINDEN: Yes. 12 MR. BASIL ALEXANDER: -- materials at the 13 heart of the Inquiry. 14 COMMISSIONER SIDNEY LINDEN: Yes, 15 that's -- 16 MR. BASIL ALEXANDER: So that's -- that's 17 the main reason why we are supporting this. And we think 18 out of fairness, it should be put to Mr. Parkin as a 19 result. 20 COMMISSIONER SIDNEY LINDEN: Thank you, 21 Mr. Alexander. 22 Yes, Mr. Worme...? 23 MR. DONALD WORME: Thank you, thank you 24 Mr. Commissioner. I -- I don't really need to make a lot 25 of points that haven't already been -- been made. These
221 tapes certainly have been available and they have -- they 2 have been reviewed by certain of the parties and it's 3 unfortunate that the ALST had not had that opportunity, 4 for whatever reason. 5 But in any event, the other point is that 6 this is a conversation that this Witness was not a party 7 to. What he can say beyond that, well, you know, I mean 8 I just have some concern about the relevance of that, but 9 I also understand the argument that Mr. Falconer makes. 10 I have had a chance to review the -- the 11 e-mails that he had circulated as a result of bringing 12 this application. 13 Attached to that, and Mr. Sandler spoke to 14 this eloquently, that is the floodgates argument. 15 Certainly we do run the potential of -- of calling other 16 witnesses and that -- and certainly that's something that 17 we need to bear in mind. 18 On the other hand, I think as has also 19 been pointed out, that this is not a trial and we 20 wouldn't necessarily be bound by the strict rules of 21 Courtroom procedure. And it is an Inquiry, so there is 22 some need to inquire. 23 One of the -- one of the potentials might 24 be is that if Mr. Wright were cross-examined on this and 25 something of relevance did come up, then would we be
231 faced in the position of having to recall Mr. Parkin and 2 I -- I would think that allowing and permitting a brief 3 and narrow cross-examination, as Mr. Falconer has 4 indicated, would certainly do away with that potential. 5 So it'd be my recommendation, sir, that it 6 be permitted on that very narrow scope. 7 COMMISSIONER SIDNEY LINDEN: Thank you. 8 I'm prepared to let Mr. Falconer examine on this tape for 9 up to twenty (20) minutes. I don't want this to be 10 assumed as a precedent that we've opened up the 11 floodgates, because obviously each situation will have to 12 be assessed, if and when it arises. 13 But in the circumstances, I do sympathise 14 somewhat with the ability of counsel to have audited 15 thousands of hours of tapes, even though they had the 16 opportunity to do so. 17 And this appears to be something that 18 maybe important. It may be of no importance whatsoever. 19 The cross-examination may be much less than twenty (20) 20 minutes if -- depending on the answers. 21 But I think up to twenty (20) minutes 22 would not be unreasonable in these circumstances and I'm 23 prepared to let Mr. Falconer only, seeing as how he's 24 raised it, examine Mr. Parkin on this narrow ground for 25 up to twenty (20) minutes.
241 Probably Mr. Parkin has no idea what this 2 tape is, right? He's never seen it or I doubt if he has. 3 MR. DONALD WORME: He's never seen it. 4 COMMISSIONER SIDNEY LINDEN: I think he 5 should be given a copy of it if he's going to be examined 6 on it. No, I'm not talking about that. Oh, are you 7 going to examine him on both matters? 8 MR. JULIAN FALCONER: The -- the 9 intention was to simply, as a matter of efficiency, 10 that's why I made the submission about the -- 11 COMMISSIONER SIDNEY LINDEN: Well, then I 12 better make sure there's nobody else who wants to examine 13 on this either. If there are, then we'll have to figure 14 out how to deal with this. 15 You have questions on this, Ms. McAleer? 16 There's two (2) separate matters. You don't have any 17 questions on this -- on the tape? 18 MS. JENNIFER MCALEER: No, Mr. 19 Commissioner. I don't have any questions on the tape, 20 but I expect that I'll have two (2) or three (3) short 21 questions on this note that we received this morning. 22 COMMISSIONER SIDNEY LINDEN: All right 23 then. That may just affect the order and the sequencing 24 and how it goes. Does anybody else have any questions on 25 this matter that was received this morning or is Mr.
251 Falconer the only one who's going to be examining it? 2 Okay, just Mr. Falconer. So I guess we 3 can hear from you now. 4 MR. DERRY MILLAR: And Ms. McAleer. 5 COMMISSIONER SIDNEY LINDEN: Who do you 6 want to hear from? 7 MR. JULIAN FALCONER: When we, in terms 8 of order should we deal with the counsel who would have 9 gone earlier? 10 COMMISSIONER SIDNEY LINDEN: On this and 11 then you do the whole thing? 12 MR. JULIAN FALCONER: Yes. Yes. Because 13 I would have heard the cross on Parkin -- 14 COMMISSIONER SIDNEY LINDEN: Okay. All 15 right. To keep the sequencing right and if that's all 16 there is, let's do it that way. Ms. McAleer, why don't 17 you ask your couple of questions and then we'll hear from 18 Mr. Falconer. 19 MS. JENNIFER MCALEER: Thank you, Mr. 20 Commissioner. 21 22 ANTHONY GILBERT PARKIN, Resumed 23 24 CROSS-EXAMINATION BY MS. JENNIFER MCALEER. 25 Q: Good morning, Mr. Parkin. You will
261 recall that last week you were examined by my colleague, 2 Peter Downard. I'm also counsel for the former Premier 3 Mike Harris and I just have a couple of short questions 4 about this document we received this morning. 5 A: Good morning. 6 Q: Now I appreciate these are not your 7 notes, these are Deputy Commissioner Pilon's notes. 8 A: Correct. 9 Q: Have you had the chance to review 10 them this morning? 11 A: Yes, I have. 12 Q: Great. What I want to do is just 13 confirm that I am reading them the same way you are with 14 respect to three-quarters (3/4's) down the page. The 15 paragraph that starts with "I cancelled Superintendent 16 Fox"; do you see that? 17 A: Yes, I do. 18 Q: "I cancelled Superintendent Fox 19 indicating we'd naturally looked at 20 these from a discipline point of view 21 and while they fell short of 22 misconduct, the language of criticism 23 of Government officials was not 24 consistent with our expectations for 25 officers and particularly senior
271 officers." 2 Have I read that correctly? 3 A: I would agree. 4 Q: Okay. Now does that help refresh 5 your memory? Do you recall a discussion with Deputy 6 Commissioner Pilon and yourself and Inspector Fox with 7 regard to the impropriety of criticizing Government 8 officials? 9 A: Yes, I do. It wasn't so much a 10 discussion. I think the Deputy Commissioner has captured 11 his comments; specifically it was his meeting. 12 Q: It was Commissioner Pilon's meeting? 13 A: That's correct. He called it. 14 Q: But -- but you do recall Commissioner 15 Pilon advising Inspector Fox that it was not appropriate 16 to criticize Government officials? 17 A: Yes, I do. 18 Q: Okay. And apart from that, do you 19 recall if in particular any discussion or comment was 20 made with the fact that these comments had been made to 21 the Incident Commander, Inspector Carson? 22 A: I can't recall if it was put quite in 23 that context but clearly he was concerned about the call 24 that was made by then Inspector Fox to Inspector Carson 25 and the content of what he said.
281 Q: Do you recall any other discussion 2 about this issue? 3 A: Within the confines of this meeting? 4 Q: Yes, that's correct. Do you remember 5 anything else that Commissioner Pilon may have said to 6 Mr. Fox about this phone call? 7 A: I think he's captured the context of 8 what it was, the reason for the meeting, the contents of 9 the tape, his and the OPP's displeasure with the comments 10 and the fact that he was being counselled for it. 11 Q: Thank you. 12 A: Thank you. 13 COMMISSIONER SIDNEY LINDEN: Thank you, 14 Ms. McAleer. 15 MR. DONALD WORME: I wonder before Ms. 16 McAleer sits down, whether she wants to have this made an 17 exhibit? 18 COMMISSIONER SIDNEY LINDEN: Yes. Do you 19 want to make this an exhibit I presume. 20 MS. JENNIFER MCALEER: Thank you, Mr. -- 21 I would like to make that the next exhibit. 22 THE REGISTRAR: P-1071, Your Honour. 23 COMMISSIONER SIDNEY LINDEN: Thank you. 24 25 --- EXHIBIT NO. P-1071: Handwritten notes of Deputy
291 Commissioner Pilon, 14:00 2 hours, 14:17 hours, July 3 28/'03. 4 5 MS. JENNIFER MCALEER: Thank you, Mr. 6 Commissioner. 7 COMMISSIONER SIDNEY LINDEN: Thank you. 8 Yes, Mr. Falconer? 9 MR. DERRY MILLAR: Commissioner, for a -- 10 I've provided a copy of the transcript to Mr. Parkin. So 11 he hasn't seen it before, so. 12 COMMISSIONER SIDNEY LINDEN: This would 13 be the first time he's looking at it. Do you want to 14 take a couple of minutes and read it? 15 I think it's important that you do, 16 because you may have -- why don't we just sit in place 17 and give you a couple of minutes to read it? 18 THE WITNESS: Yes, sir. 19 20 (BRIEF PAUSE) 21 22 COMMISSIONER SIDNEY LINDEN: While this 23 is being going on, Mr. Sandler, do you have any estimate 24 as to how long your re-examination or your examination of 25 Mr. Parkin will be?
301 You weren't sure on Thursday if it would 2 be three-quarters (3/4's) of an hour or something in that 3 range. 4 MR. MARK SANDLER: Probably an hour. 5 COMMISSIONER SIDNEY LINDEN: Possibly an 6 hour? 7 8 (BRIEF PAUSE) 9 10 THE WITNESS: Thank you, Your Honour. 11 COMMISSIONER SIDNEY LINDEN: Thank you. 12 I think the Witness has now looked at the transcript, Mr. 13 Falconer. 14 MR. JULIAN FALCONER: Thank you, Mr. 15 Commissioner. 16 Mr. Commissioner, what I propose to do is 17 to first, since the issue of the note with the Pilon was 18 dealt with first, could I just finish my questioning on 19 that first, and then we'll go to the -- the next area, 20 just to keep things for the record in some kind of -- 21 COMMISSIONER SIDNEY LINDEN: That.s fine. 22 That's fine. 23 MR. JULIAN FALCONER: -- compact state. 24 25 RE-CROSS-EXAMINATION BY MR. JULIAN FALCONER:
311 Q: Mr. Parkin, this note, does it, in 2 terms of your memory, refresh it to the point that you 3 now recall conversations beyond this note? 4 In other words, first of all, the note 5 that I'm referring to of 14:00 hours, July 28th, 2003, 6 have you had a chance to read it in its entirety, the 7 single page? 8 A: Yes. Yes, I have, sir. 9 Q: And I'm sorry, it's Exhibit -- 10 COMMISSIONER SIDNEY LINDEN: 1071, P- 11 1071. 12 MR. JULIAN FALCONER: Thank you. 13 14 CONTINUED BY MR. JULIAN FALCONER: 15 Q: And having read P-1071 in its 16 entirety, does it refresh your memory in terms of the 17 conversation that took place? 18 A: Well, this is the gist of the 19 conversation that I recall, yes, sir. 20 Q: And so it assists you to remember 21 what happened? 22 A: Yes, sir. 23 Q: All right. Am I right about this, 24 that the concern expressed with -- with respect to Ron 25 Fox's conduct was with respect to the language that he
321 used in the tape? 2 A: Yes, the Deputy was certainly 3 displeased with the fact that a senior OPP officer would 4 be referring to government officials with that type of 5 language, yes, sir. 6 Q: At any time during the conversation, 7 now that you've had a chance to refresh your memory as to 8 the conversation, did Deputy Commissioner Pilon take 9 issue with Ron Fox's actual concerns as expressed in the 10 tape versus the style of language? 11 12 (BRIEF PAUSE) 13 14 A: My recollection of the discussion was 15 certainly more around the language that was used and the 16 tone of the call. 17 Q: And backing up a step, at any time 18 during the conversation of July 28th, 2003, did Ron Fox 19 say, I was mistaken about what I said with reference to 20 the contents of my concerns as enunciated in that tape; I 21 was mistaken? 22 A: I don't recall then Inspector Fox 23 using those terms. I recall him apologizing for his 24 comments. 25 Q: In terms of their language?
331 A: In terms of the language, yes, sir. 2 Q: But now moving from the colourful 3 language used, examples, redneck, barrel-sucking gun 4 lovers, that kind of thing, that colourful language 5 that's obviously quite rude, did you at any time hear Ron 6 Fox apologizing for expressing concern about the posture 7 or position that government officials wanted to take? 8 A: No, sir. 9 Q: Did you hear Ron Fox retract his 10 memory of what he heard that day? 11 A: No, sir. 12 Q: You know and have known Ron Fox for a 13 very long time? 14 A: Yes, sir. 15 Q: In your conversations with Ron Fox 16 outside of the 2:00 p.m. meeting of July 28th, 2003, did 17 Ron Fox ever tell you, Geez I was mistaken in my 18 interpretations of what government officials wanted or 19 didn't want as reflected in those tapes? Did he ever 20 tell you that? 21 A: Any discussions that we had with 22 respect to that tape after this were brief, but he didn't 23 make any acknowledgement as you're indicating. 24 Q: All right. Now, there's two (2) 25 elements two-thirds (2/3's) of the way down the page that
341 I want to ask you about. One (1) is, it says: 2 "And I -- and I counselled 3 Superintendent Fox indicating we'd 4 naturally looked at these from a 5 discipline point of view and while they 6 fell short of misconduct the language 7 and criticism of government officials 8 was not consistent with our 9 expectations for officers and 10 particularly senior officers." 11 Is that correct? That -- that's what the 12 note says? 13 A: That's correct, sir. 14 Q: What I want to understand is this, 15 language is used conjunctively with criticism; do you see 16 that? 17 A: Yes, sir. 18 Q: So it's not only his language that 19 they had concerns about it was the fact that Ron Fox was 20 critical; is that true? 21 A: The way the Deputy has written his 22 notes that -- that's the way I would read that, yes, sir. 23 Q: And that's consistent with your 24 memory of the meeting? 25 A: In general, yes, sir.
351 Q: And that's because generally it was 2 not seen as in keeping with the form or conduct of senior 3 officers to be critical of government officials in the 4 fashion, leaving out language, in the direct, blunt 5 fashion Ron Fox was; that's not something that generally 6 is in keeping of what's expected of senior officers, 7 correct? 8 A: Correct. 9 Q: And I'm leaving out the language. 10 You understand what I'm asking? 11 A: I do, sir. 12 Q: Okay. 13 COMMISSIONER SIDNEY LINDEN: Okay. 14 MR. JULIAN FALCONER: Thank you. 15 COMMISSIONER SIDNEY LINDEN: Thank you. 16 MR. JULIAN FALCONER: Those are my 17 questions on the issue of the notes. I think I stuck to 18 my five (5) minutes, Mr. Commissioner. 19 COMMISSIONER SIDNEY LINDEN: I think you 20 did. 21 MR. JULIAN FALCONER: All right. 22 23 CONTINUED BY MR. JULIAN FALCONER: 24 Q: Now, I want to ask you something 25 about Mark Wright. There are certain matters that I
361 didn't ask you about before, but I want to ask you about 2 now and it's purely this, in the heat of confrontation, 3 you'd agree with me that offers -- officers may be given 4 to say something or do something that may be more 5 testosterone driven than anything else, correct? 6 A: I would agree that in -- in the heat 7 of any situation, people may say things that they 8 normally wouldn't. I don't know about the testosterone 9 part of it. 10 Q: Okay. I actually stole the word from 11 Fox, but that's okay. 12 Having said that, I hear you, but what I'm 13 getting it, and let me be try to be more specific, I'm 14 going to read you a passage and it's a quick one, and I 15 won't take much time with it, but it's quoting Mark 16 Wright. 17 It's from Exhibit P-444B, the logger tape 18 transcripts, and it's Tab 48, and I've had it put in 19 front of you. 20 If you just flip open to Tab 48 -- no, the 21 bound volume right in front of you. And, Mr. 22 Commissioner, I'm not going to turn it up for you, 23 because I'm -- three (3) lines and you won't need to me 24 to. 25 Now, at page 309 -- well, so you know, Tab
371 48. We'll be very quick, but Tab 48 is -- is a 2 reflection of the transcribed conversation between John 3 Carson and Mark Wright dated September 6th, 1995 at 4 19:58, in and around 8:00 p.m. 5 Do you see that, right at the start of the 6 front you'll see it. 7 A: Yes, sir. 8 Q: All right. I just want to get you 9 grounded on where we are. And it's Carson and Wright, 10 they're talking, all right. 11 And the evidence we.ve heard from Carson-- 12 COMMISSIONER SIDNEY LINDEN: This doesn't 13 arise out of this new -- 14 MR. JULIAN FALCONER: Yes, it does. It 15 does, it arises -- 16 COMMISSIONER SIDNEY LINDEN: I don't see 17 how it does. 18 MR. JULIAN FALCONER: It arises directly 19 and I'm about to show you how. 20 COMMISSIONER SIDNEY LINDEN: Okay, let's 21 see. And I don't see it at the moment. 22 23 CONTINUED BY MR. JULIAN FALCONER: 24 Q: Carson -- Carson and Wright are 25 talking; Wright has called Carson while he's off duty,
381 all right? And he says the following, at page 310, just 2 flip -- do you see the page numbers, bottom right hand 3 corner? 4 A: Yes, sir. 5 Q: He's asking a number of questions of 6 Carson and on the previous page, 309, he says: 7 " Oh fuck, I don't know, waffle, I'll 8 be here until fucking daylight figuring 9 it out and daylight's a waste then." 10 And then the next page, bottom of 310, and 11 this is what I want to ask you about: 12 "Well, it's not my -- 13 WRIGHT: Don't you say we go get those 14 fucking guys?" 15 Now, Wright is referring to the issue of 16 effecting arrests and he's talking to Carson about it and 17 that's Carson -- the gist of Carson's evidence. 18 Now, do you see that reference, "Don't you 19 say we go get those fucking guys?" 20 I was with you with the -- 21 Q: First -- 22 A: "I'll be here until daylight figuring 23 it out, and daylight's a waste then." 24 Q: And then he's referring to dealing 25 with Dale Linton, all right? And then at the bottom of
391 310, "Don't you say we go get those fucking guys?" 2 A: I see that. 3 Q: All right. Do you agree with me 4 that's not language consistent with what you'd expect 5 from a second in command in terms of getting instructions 6 on effecting arrests? 7 A: I agree it's not the most 8 professional language. 9 Q: And the notion of effecting arrests 10 as, "Don't you say we go get those fucking guys?", isn't 11 what you'd expect, either, is it? 12 A: Not generally, sir. 13 Q: No. Now, if you could direct your 14 attention briefly to a transcript I'm putting in front of 15 you, it's reflecting a conversation again between Mark 16 Wright and now Tim McCabe that same night, and again two 17 (2) very brief passages. 18 MR. DERRY MILLAR: What.s the exhibit 19 number? 20 MR. JULIAN FALCONER: And it's -- I 21 apologize. I'm reading from a transcript of the -- of 22 the Tim McCabe evidence dated September 28th, 2005 and 23 I'm at page 132. 24 25 CONTINUED BY MR. JULIAN FALCONER:
401 Q: And again there are two (2) very 2 quick passages I want to put in front of you. Page 132 3 of the McCabe evidence. And, in essence, what I'm doing 4 is, the logger tape is referred to in this evidence, it's 5 dated September 28th, 2005 and it's Mr. Worme's 6 examination in-chief of McCabe. 7 Do you see 132, sir? 8 A: Yes, sir. 9 Q: All right. I'm pointing you to 10 there, so you see that this is a conversation that's 6th 11 of September, '95 between 18:48 and 11:20. 12 So, again, that evening. Do you see that? 13 A: Yes, sir. 14 Q: Okay. Now I'm going to flip you very 15 quickly over to page 134, Wright is describing to McCabe, 16 the Crown lawyer, all right, what's going on; do you 17 understand? 18 A: Yes, sir. 19 Q: All right. If you go to line 3 at 20 134, "What's going on there?", do you see that? 21 A: Yes, sir. 22 Q: Wright answers: 23 "Well, we got major trouble right now. 24 MCCABE: Really? 25 WRIGHT: Yeah.
411 MCCABE: What's the problem? 2 WRIGHT: We'll, they're moving. Ah, 3 they're coming out for a fight down the 4 road, so we're taking -- we're taking 5 all the marines down now." 6 Do you see that? 7 A: Yes, sir. 8 Q: "We're taking all the marines down 9 now." 10 A: Yes, sir. 11 Q: All right. Now if you could flip to 12 page 154, it's in the same package you have. Just flip 13 to 154. 14 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 15 Sandler? 16 MR. MARK SANDLER: I -- I don't want to 17 sound obstreperous here -- 18 COMMISSIONER SIDNEY LINDEN: No. 19 MR. MARK SANDLER: -- but with great 20 respect, this very cross-examination took place in 21 relation to John Carson in relation to Chris Coles, My 22 Friend could have done all of this with -- 23 MR. JULIAN FALCONER: No, I could not. 24 MR. MARK SANDLER: -- with -- please if I 25 could make my submissions. My Friend wants to build on
421 it and deal with the current transcript. This is just a 2 colorable attempt to go to an area that he chose not to 3 do in cross-examination, and which he did. 4 I -- I could show, Your Honour, what he 5 did previously in relation to the prior witnesses. I 6 mean, really that -- that is just a colorable attempt to 7 go where he chose not to go with this witness the other 8 day. 9 COMMISSIONER SIDNEY LINDEN: We've opened 10 up this re-examination for a very narrow purpose. 11 MR. JULIAN FALCONER: And that's where 12 I'm going and I've got one (1) more line to show him 13 before I go to this transcript. And to be fair to -- 14 COMMISSIONER SIDNEY LINDEN: One line, 15 one line and then you're going to this transcript? 16 MR. JULIAN FALCONER: That's right. 17 That's right. 18 19 CONTINUED BY MR. JULIAN FALCONER: 20 Q: So at page 154, if you flip to 154, 21 line 5, "Ah well," do you see that line 5, "Ah well? 22 A: Yes, sir. 23 Q: "WRIGHT: We're going to -- we're 24 going to war now. We're not going to 25 be sending anybody. Okay, well all
431 right." 2 Now stopping there. You saw the reference 3 to the marines. Yes, sir? 4 A: Yes. 5 Q: You saw the reference to 'fucking 6 war,' yes, sir? I showed you a transcript -- 7 A: Yes, sir. 8 Q: All right. Would you agree with me 9 that those sentiments are not sentiments you gave 10 instructions on as Supervisor, correct? 11 A: Correct. 12 Q: Okay. Now I want to turn to the 13 tape. You've got a copy of that transcript, yes? 14 A: Yes, sir. 15 Q: All right. The transcript now 16 reflects a conversation of September 5th, 1995 in the 17 morning. The same gentleman who spoke the night bef -- 18 that we just showed, the night later. All right? 19 Now I'm going to ask you about an exchange 20 between Mark Wright and Ed Robertson. But first I want 21 to know something. 22 Ed Robertson, he was, in essence, the duty 23 officer, correct? EDO, is that not duty officer? 24 A: Executive Duty Office. He also had 25 another role in General Headquarters so I'm not sure
441 exactly what position he would have been in at the time 2 of this call. 3 But he could have been the Executive Duty 4 Officer. 5 Q: All right. I'll take you to page 1 6 of the transcript because you've just seen for the first 7 time, fair enough. 8 Page 1, it says: 9 "ER: Yeah, Mark, can you just tell me 10 exactly what happened last night? 11 I was EDO" 12 Do you see? 13 A: That would be Executive Duty Officer. 14 Q: Fair enough. And then later on in 15 the tape I can show you again where Robertson makes 16 reference to the facts that he's EDO for the next twenty- 17 four (24) hours. 18 And the bottom line is, he's the contact 19 person at General Headquarters, correct? 20 A: Correct. 21 Q: And he's also, by all appearances 22 from this tape, the person who they funnel requests 23 through for ammunition, weapons and the like; helicopters 24 et cetera, correct? 25 A: That was hit other role, yes, sir.
451 Q: All right. He did both things? 2 A: Independently, yes, sir. 3 Q: But was doing them concurrently 4 during this time period? 5 A: Probably, yes, sir. 6 Q: All right. And he would have also 7 been the superior officer to Detective Staff Sergeant 8 Mark Wright, correct? 9 A: Yes, sir. 10 Q: All right. Now what I want to 11 understand, in terms of the role of the injunction it was 12 the policy of the OPP that, in circumstances like this, 13 the priority was peaceful resolution, correct? 14 A: Correct. 15 Q: And the idea was that if a party 16 claiming a land interest obtained an injunction, then the 17 OPP would do its job in terms of whatever court orders 18 that needed to be enforced, correct? 19 A: Correct. 20 Q: You'd agree with me that's a far cry 21 from backing a certain party or acting on behalf of a 22 certain party in the land dispute, agree? 23 A: Our position is -- is neutral. 24 Q: That's right. And it's neutral 25 because it's of the utmost importance that in a dispute
461 of this nature, that for the OPP to have credibility, it 2 has to be impartial as between the various participants 3 in the land dispute, correct? 4 A: Correct. 5 Q: And you'd agree with me that this was 6 not a situation where you were simply waiting for the 7 injunction so you could go takeover the Park. Was that 8 the situation? 9 A: No, sir. 10 Q: No. Because if that was the 11 situation, that would involve an excessive use of force, 12 wouldn't it? 13 A: It could, yes, sir. 14 Q: Yes. And the reason it would involve 15 an excessive use of force is you would essentially be 16 backing one of the parties to the land dispute and you'd 17 be going to 'fucking war,' correct? 18 A: I don't know if I'd use those words, 19 sir, but -- 20 Q: Am I close? 21 A: I -- I'm not going to agree with 22 those words, sir. 23 Q: Okay. The reason that you don't do 24 it is because in the use of force it's absolutely 25 essential that your mind, and the -- your officers' minds
471 who use the force, is completely independent of any 2 outside interests such as the landowners fighting over 3 the land, correct? 4 A: Correct. 5 Q: All right. Now, did you instruct 6 anybody at Incident Command on September 5th, 1995 to go 7 in and take over the Park? 8 A: No, sir. 9 Q: Did you instruct anybody on September 10 5th, 1995 that as soon as you get that piece of paper 11 you're to go in and take that Park? 12 A: No, sir. 13 Q: Did you instruct anybody on September 14 6th, 1995 that, in essence, what you were doing as 15 officers was going to war? 16 A: No, sir. 17 Q: Would you agree with me that all of 18 those concepts are completely inconsistent with the 19 instructions you and Coles gave? 20 A: Yes, sir. 21 Q: Would you agree with me that those 22 concepts of taking over the Park and concepts of going to 23 war are completely inconsistent with the policy the OPP 24 intended to implement on September 5th and 6th, 1995? 25 A: Yes, sir.
481 Q: Would you agree with me that to the 2 extent an officer had a different view, to the extent an 3 officer wanted to take over the Park or wanted to go to 4 war, that would not be the kind of officer you would put 5 your quote unquote "blind trust" in, correct? 6 A: Correct. 7 Q: And the reason you wouldn't put your 8 blind trust in that kind of officer is that's the kind of 9 officer that may well be influenced by outside political 10 pressures, right? 11 A: I don't know that, sir. 12 Q: No, but it would be a concern? 13 A: It would be a concern. 14 Q: Yeah. Now, I want to take you to the 15 tape page -- in particular page 2. 16 At page 2 halfway down the page, Mark 17 Wright: 18 "Okay. Absolutely no doubt whatsoever 19 about the -- 20 So eleven o'clock this morning the MNR 21 and their Ministry levels are meeting 22 and they're going to get us an 23 injunction because that's what we want. 24 We want a piece of paper. 25 Hmm hmm. And our intention is to go
491 back and take that Park." 2 Stopping there, did you know that that was 3 the intention of your officer Detective Sergeant Mark 4 Wight, second in command? 5 A: I didn't know that those were his 6 comments, sir. 7 Q: Did you know that was his intention? 8 He uses the word 'intention' doesn't he? 9 A: He uses the word 'intention' but his 10 thoughts -- there was a senior officer in charge over 11 him, so his thoughts are his thoughts. What -- what he 12 was thinking at that time when he was making these 13 comments are his. As I said, there was a senior officer 14 that he was reporting to that would have made decisions. 15 Q: Fair enough. And am I right by 16 taking from your answer -- I've got to get rid of the 17 word 'right' am I correct in taking from your answer that 18 whatever his intentions were, those were not. When he 19 says, Our intention is to go back in and take that Park, 20 that was not your intention? 21 A: Correct. 22 Q: It was not his supervising officer's 23 intention, Carson? 24 A: Correct. 25 Q: It was not Linton's intention?
501 A: Correct. 2 Q: Well, let's back up. If that's the 3 case, if, in fact, he speaks accurately when Mark Wright 4 says, Our intention is to go back in and take that Park, 5 I take it you're at a complete loss as to where he got 6 that intention? 7 A: Yes, sir. 8 Q: He shouldn't have that intention, 9 should he? 10 A: I can't understand why he would be 11 expressing it. 12 Q: Well, when you say, "expressing it" 13 you're not trying to tell me he should have that 14 intention but he shouldn't have said it? 15 A: No, that wasn't our intention. 16 Q: That's right. So -- okay, fair 17 enough. Now, I want to move onto the next page. I want 18 to ask you this. I apologize. It's actually on the same 19 page, page 2. It's at the top of the page. At the top 20 of the page: 21 "MNR, of course we're acting on behalf 22 of MNR. They're the landlords." 23 Do you see that? 24 A: Yes, sir. 25 Q: Do you recall your answers you gave
511 me a few minutes ago about the role of the OPP? 2 A: Yes, sir. 3 Q: You'd agree with me that when Mark 4 Wright says, quote, "We're acting on behalf MNR," close 5 quotes, that was not your understanding? 6 A: That's correct. 7 Q: And it's fair to say that whatever 8 Mark Wright thought he and they, that is the OPP officers 9 underneath him, that was certainly nothing you instructed 10 him to do and nothing Carson instructed him to do, to 11 your knowledge? 12 A: Not to my knowledge. 13 Q: All right. Mark Wright's role as -- 14 Detective Sergeant Mark Wright's role as second in 15 command had a number of features to it; in -- in a very 16 few minutes I just want to ask you about them, okay? 17 A: Okay. 18 Q: I just want to ask you about his 19 role. 20 A: Yes. 21 Q: I haven't asked yet. I just want you 22 to know where I'm going, all right? 23 A: Yes, sir. 24 Q: Mark Wright ended up being selected 25 as the witness to testify in the injunction proceedings
521 the next morning, September 7th, 1995; is that correct? 2 A: That's correct. 3 Q: And the reason he was selected as the 4 potential -- as the witness to testify on behalf of the 5 OPP at the injunction proceedings, it is -- is his level 6 of competence and knowledge over the situation, correct? 7 A: Well frankly, sir, that -- that was a 8 decision that I didn't have input into. 9 Q: Okay. Well -- and that's fair. But 10 can I ask you this: Given -- you knew at the time, did 11 you not, that the injunction proceedings were important? 12 A: Yes. 13 Q: And you would have expected as part 14 of your expectations of your Incident Command that they 15 would pick someone to testify that had a good knowledge 16 of the situation? 17 A: Correct, sir. 18 Q: And that would present the OPP's 19 position properly? 20 A: Correct, sir. 21 Q: And they would pick someone who had 22 authority in the OPP, correct, for Inc -- at Incident 23 Command? 24 A: Correct, sir. 25 Q: Isn't it fair to say that Mark Wright
531 had sufficient authority, for example, to instruct 2 officers below him on various tactics at Ipperwash? 3 A: Not while there was an Incident 4 Commander there, sir. 5 Q: All right. The evidence Mr. 6 Commissioner has heard is that one of the roles of Mark 7 Wright was to hold back the ERT shift; that is, on 8 September 6th, 1995 in the evening hours, it was Mark 9 Wright who made the call and gave the instruction that 10 the ERT officers were to stay back and not go down from 11 their shift. 12 Remember you and I discussed that; that 13 would result in double the number of officers? 14 A: Yes, sir. 15 Q: All right. Now, I just want to ask 16 you this because I want to go back to this tape. 17 COMMISSIONER SIDNEY LINDEN: But are 18 these not matters that you could have cross-examined on 19 without this -- 20 MR. JULIAN FALCONER: I'm doing it in the 21 context of the tape. Now, I want to -- I did ask and now 22 I'm asking about Mark Wright significance given what 23 we've seen here. 24 25 CONTINUED BY MR. JULIAN FALCONER:
541 Q: Would you agree with me that in terms 2 of the role of Mark Wright, you would have had some 3 misgivings about his role as second in command as a 4 person capable of testifying on the injunction and as a 5 person with the authority to hold back ERT? 6 You would have had some misgivings about 7 his role given the various comments I brought to your 8 attention? 9 A: Sir, I -- I don't want to be 10 argumentative but you keep using the term 'second in 11 command' and Detective Sergeant Mark Wright would have 12 been one (1) of many non-commissioned officers who would 13 have been working in the command post under the direct 14 supervision of the Incident Commander be it Inspector 15 Carson or Inspector Linton. 16 And while he may have instructed that ERT 17 teams be held back, that would have been in the context 18 of a -- of a command decision and he would have been 19 acting on behalf of the Incident Commander, I believe. 20 Q: All right. I appreciate that. I'm 21 going to read to you three (3) lines and -- and ask for 22 your comment on this. 23 As part of the anticipated evidence of 24 Detective Sergeant Mark Wright his role is described as 25 follows --
551 MR. DERRY MILLAR: Well, I have to -- no. 2 MR. JULIAN FALCONER: Why? 3 MR. DERRY MILLAR: Well -- 4 COMMISSIONER SIDNEY LINDEN: I don't know 5 where you're going, I have no idea what your -- 6 MR. JULIAN FALCONER: His role is 7 described as second in command. 8 COMMISSIONER SIDNEY LINDEN: Well, I 9 think Carson described him that way if I'm not mistaken. 10 MR. DERRY MILLAR: Mr. Carson. 11 MR. JULIAN FALCONER: And -- and -- 12 that's right. And -- and in addition Mark Wright is 13 going to testify, he was second in command in any 14 incidents involving Ipperwash. So I want to put that to 15 a witness who tells me he's not. 16 COMMISSIONER SIDNEY LINDEN: Well he said 17 there were others. 18 MR. JULIAN FALCONER: Oh, oh, okay. 19 COMMISSIONER SIDNEY LINDEN: There were 20 other non-commissioned officers. He didn't say -- 21 22 CONTINUED BY MR. JULIAN FALCONER: 23 Q: So you don't doubt that he was second 24 in command as matters relate to Ipperwash? 25 A: I don't argue that he had a command
561 position within the overall command. But he was under 2 the direct supervision of the Incident Commander. 3 COMMISSIONER SIDNEY LINDEN: He's not the 4 Witness to ask that, Mr. Falconer. 5 MR. JULIAN FALCONER: Fair enough. Fair 6 enough. 7 COMMISSIONER SIDNEY LINDEN: That's why I 8 think you've exhausted your -- 9 MR. JULIAN FALCONER: That -- that's 10 fair. 11 COMMISSIONER SIDNEY LINDEN: -- twenty 12 (20) minutes. 13 MR. JULIAN FALCONER: Thank you, sir, 14 those are my questions. 15 COMMISSIONER SIDNEY LINDEN: Thank you 16 very much, Mr. Falconer. 17 MR. JULIAN FALCONER: And I thank you, 18 Mr. Commissioner for the indulgence. 19 COMMISSIONER SIDNEY LINDEN: Thank you. 20 Now we're up to you, Mr. Sandler. 21 MR. JULIAN FALCONER: Oh, Mr. 22 Commissioner, the tape transcript I'd like to tender it 23 as the next exhibit of these proceedings. 24 COMMISSIONER SIDNEY LINDEN: Yes, I 25 think --
571 MR. DONALD WORME: Perhaps, I'd might 2 simply indicate as well the exhibit that Mr. Falconer 3 referred to as P-463 just -- 4 COMMISSIONER SIDNEY LINDEN: Right. 5 MR. DONALD WORME: -- for -- for our 6 record. I have -- 7 COMMISSIONER SIDNEY LINDEN: What's going 8 to become an exhibit now, the excerpt? 9 MR. JULIAN FALCONER: Yes, I have a six 10 (6) page excerpt. I don't know if My Friend wants me to 11 use that one? 12 COMMISSIONER SIDNEY LINDEN: What should 13 be the exhibit, Mr. Worme, the six (6) page excerpt or 14 the whole -- 15 MR. DONALD WORME: The -- the transcript 16 that Mr. Falconer -- 17 COMMISSIONER SIDNEY LINDEN: Is going to 18 be introduced through Detective Sergeant Wright when he 19 testifies I presume? 20 MR. DONALD WORME: We could certainly 21 make it an exhibit now -- 22 COMMISSIONER SIDNEY LINDEN: Okay. 23 MR. DONALD WORME: -- and then he could - 24 - Detective Sergeant could confirm that I expect. 25 COMMISSIONER SIDNEY LINDEN: Okay.
581 MR. JULIAN FALCONER: So what I propose 2 is to make the six (6) page excerpt because it assists us 3 in focussing -- 4 COMMISSIONER SIDNEY LINDEN: That's fine. 5 MR. JULIAN FALCONER: -- as -- as the 6 next exhibit and I've given a clean copy to Mr. Clerk. 7 COMMISSIONER SIDNEY LINDEN: This would 8 be 1072? 9 THE REGISTRAR: Yes, sir, P-1072. 10 COMMISSIONER SIDNEY LINDEN: Thank you. 11 12 --- EXHIBIT P-1072: Transcript of logger tape 13 number 1, track 1, disc 1 of 14 3, Mark Wright and Ed. 15 Robertson, 10:42 hours, Sept. 16 05/'95. 17 18 COMMISSIONER SIDNEY LINDEN: You say you 19 have approximately an hour. We'll break it up into two 20 (2) half hours, is that all right and -- 21 MR. MARK SANDLER: Sure. 22 COMMISSIONER SIDNEY LINDEN: -- have a 23 break in the middle? 24 MR. MARK SANDLER: That's fine, thank 25 you. If I might just have a moment?
591 COMMISSIONER SIDNEY LINDEN: Yes. 2 3 (BRIEF PAUSE) 4 5 MR. JULIAN FALCONER: I thought that was 6 for -- 7 COMMISSIONER SIDNEY LINDEN: I'm sorry, I 8 can't hear you when you're back there, Mr. Falconer. 9 MR. MARK SANDLER: The way Mr. Falconer 10 limited my cross-examination is to take my notes. 11 COMMISSIONER SIDNEY LINDEN: Oh, okay. 12 13 CROSS-EXAMINATION BY MR. MARK SANDLER: 14 Q: Mr. Parkin, in case you've forgotten 15 I'm your counsel. 16 A: Good morning, sir. 17 Q: And I'm the last counsel other than 18 Commission Counsel that -- that gets to ask you 19 questions. 20 First, if I may, go back to Exhibit 1017 21 which are the notes of Deputy Commissioner Pilon on your 22 conversation with Ron Fox and I simply want to highlight 23 certain passages of these notes and ask you a few 24 questions arising out of them if I may. 25 First of all --
601 COMMISSIONER SIDNEY LINDEN: It's not 2 1017 it's 1071. 3 MR. MARK SANDLER: 71. Thank you. 4 COMMISSIONER SIDNEY LINDEN: Yes. 5 6 CONTINUED BY MR. MARK SANDLER: 7 Q: Ron Fox, when he was here on July 8 18th of 2005 at page 145, described this session as 9 involving meaningful non-disciplinary discussion that the 10 Deputy had with him in your presence. 11 And with the benefit of these notes to 12 assist in refreshing your memory would you agree with him 13 that this was a non-disciplinary discussion as opposed to 14 discipline? 15 A: Yes, sir. 16 Q: And we actually see that reflected in 17 Deputy Commissioner Pilon's comment that this was looked 18 at from a discipline point of view and it fell short of 19 misconduct; am I right? 20 A: Yes, sir. 21 Q: And again that accords with your 22 recollection? 23 A: Yes, sir. 24 Q: Now, I want to say it once that 25 you've acknowledged to Commissioner Linden that you're
611 not the best person to ask about informal versus formal 2 discipline and I don't intend to ask questions arising 3 out of that, but -- but you are aware as a former senior 4 officer with the OPP that there is a distinction between 5 non-disciplinary discussions and disciplinary action of 6 some sort on the part of the OPP am I right? 7 A: Yes, sir. 8 Q: And one (1) of the implications of -- 9 of the distinction is that where discipline is imposed 10 and -- and we won't characterize it as formal or informal 11 but simply discipline, that that involves an actual 12 finding of misconduct and a notation on a personnel file 13 am I right? 14 A: Yes, sir. 15 Q: Okay. Now, so when Mr. Downard 16 pointed out in the course of submissions the other day 17 that you had used the language, "discipline," to refer to 18 Mr. Fox with the benefit of this note I take it you'd 19 agree with me that this is definitely not discipline that 20 was being imposed on Ron Fox; am I right? 21 A: I'd agree not discipline from the -- 22 the strict definition. 23 Q: Right. And the reason -- you've 24 anticipated my next question. And the reason that you -- 25 that you put that caveat on it that for an officer who's
621 being counselled, even in a non-disciplinary context it 2 can feel like discipline can't it? 3 A: Yes, sir. 4 Q: And -- and that's the intention at 5 some point, a pointed discussion and I'm not talking 6 about Ron Fox now but a pointed discussion directed to 7 the officer by way of counselling am I right? 8 A: Yes, sir. 9 Q: Now, I also want to note here that as 10 you recollected when you testified the other day that 11 both of the conversations as Ron Fox and John Carson, 12 were actually played for Ron Fox in your presence; am I 13 right? 14 A: Yes, sir. 15 Q: And that was the first time you'd 16 heard them, right? 17 A: Correct, sir. 18 Q: And if one looks at one of the 19 notations here, what you see here is that there is a 20 reflection of something that you said, and it's about 21 half way down the page. It says: 22 "Discussed context of the 23 conversations. Chief Superintendent 24 Parkin of the view that these confirmed 25 the OPP did not take any directions."
631 And does that refresh your memory as to a 2 sentiment that you expressed after having heard these 3 tapes for the first time? 4 A: Yes, sir. 5 Q: And I take it what was being 6 communicated by you, in the context of this non- 7 disciplinary discussion, is that, having heard the tapes, 8 you were satisfied that the OPP had not taken direction 9 from the Government in connection with Ipperwash; am I 10 right? 11 A: That's correct, sir. 12 Q: Because what you hear on the tapes is 13 -- what you heard on the tapes, I'm going to suggest, was 14 independence on the part of Ron Fox and John Carson, 15 right, as to what views were being articulated by the 16 Government, right? 17 A: That's correct, sir. 18 Q: And -- and some resistance, I'm going 19 to suggest, as heard on the tapes to what the 20 Government's views were as opposed to what the OPP would 21 do; am I right? 22 A: Yes, sir. 23 Q: Okay. 24 OBJ MR. JULIAN FALCONER: Mr. Commissioner, 25 I'm objecting to the question and I think he's asked two
641 (2) questions where he inaccurately summarized the tapes 2 to the witness. 3 He's not going to the tapes because this 4 is a short cut, fair enough. But when he suggests to the 5 witness that it shows what the OPP was not going to do in 6 divergence from the Government, that is not what the tape 7 shows. 8 It shows what John Carson and Fox were not 9 going to do. Other members of the OPP, such as Mark 10 Wright, had a very different view of what they were going 11 to do. So My Friend -- 12 COMMISSIONER SIDNEY LINDEN: You -- 13 MR. JULIAN FALCONER: -- ought to be 14 accurate or take the witness to the transcript. 15 COMMISSIONER SIDNEY LINDEN: Could that 16 be as -- 17 JULIAN FALCONER: It's not the OPP. 18 COMMISSIONER SIDNEY LINDEN: -- as 19 evidenced by Inspector Carson and deputy Sergeant Wright, 20 would that be sufficient, to make it clear? 21 22 CONTINUED BY MR. MARK SANDLER: 23 Q: Well, I'm fine. What was being 24 expressed, one can only do one (1) piece at a time, that 25 what gave you confidence when you listened to the tape
651 was that your incident commander was not taking direction 2 from the Government; am I right? 3 A: Correct, sir. 4 Q: And as far as you were concerned, 5 that was the most important consideration in determining 6 political interference, because the incident commander is 7 the person on the field who makes the decisions as to the 8 conduct of the OPP; am I right? 9 A: Yes, sir. 10 Q: And you've seen nothing -- you saw 11 nothing back then and you've seen nothing since then to 12 change the view that it was, indeed, the incident 13 commander that made the decisions, rightly or wrongly, as 14 to what the OPP would do that night; am I right? 15 A: Yes, sir. 16 Q: I mean there's been a lot of talk 17 here, in cross-examination, about Detective Sergeant -- 18 now Detective Inspector Mark Wright. 19 Did you know Mark Wright back then, as an 20 officer? 21 A: Not as well as I know him now, sir. 22 Q: All right. And -- and I take it Mark 23 Wright is a strong officer? 24 A: Yes, sir. 25 Q: Am I right? Competent officer?
661 A: Yes, sir. 2 Q: And you were pointed up certain 3 passages where -- where he used the language or -- or 4 expressions that it's obvious, from your answers, you 5 would have preferred not be used, right? 6 A: That's correct, sir. 7 Q: And one of the points, though, that - 8 - that you made to Mr. Falconer, I want to ask you about 9 it, is that, ultimately, the buck stops with the incident 10 commander, whatever the expressed views of those under 11 his command; am I right? 12 A: Yes, sir. 13 Q: And you continue to hold that view in 14 connection with Ipperwash; do you not? 15 A: I do, sir. 16 Q: And the other aspect is that, and Mr. 17 Falconer makes a good point, I mean when one parses the 18 transcripts of -- of Mark Wright's conversations, it's 19 quite clear that the OPP doesn't act on behalf of MNR, 20 and you acknowledge that, right? 21 A: Yes, sir. 22 Q: And it's quite clear that, as a 23 strategy to be employed or a tactic or as a policy to be 24 employed by the OPP, the OPP would not simply take back 25 the Park once an objection was obtained.
671 It was a more nuanced policy as to what 2 would follow the injunction; am I right? 3 A: That's correct, sir. 4 Q: But -- but looking at the 5 practicalities for a moment, one of the things that could 6 very well have happened as a result of obtaining an 7 injunction was, in fact, that the OPP would be mandated 8 by the Court to take back the Park and re-assert the 9 ownership that -- by the MNR; am I right? 10 A: That would be a possibility, sir. 11 Q: Okay. Now, I want to switch, if I 12 may, to the -- to the memorabilia and related issues and 13 -- and Commissioner Linden's already reviewed these -- 14 these records, but there are some matters that were 15 raised in cross-examination that -- that I want to clear 16 up with you, if I may, as briefly as we can. 17 And if you have Exhibits P-1051 and P- 18 1052, I'm going to briefly take you to a few of the 19 documents in there so that we can get a more fulsome 20 sense of what really happened here and how the OPP 21 reacted to it, okay? 22 A: Yes, sir. 23 Q: Now, you've already told Commissioner 24 Linden that despite the reluctance of Mr. Cloud to make a 25 public, formal complaint, that you felt it incumbent upon
681 you and upon the OPP that the matter proceed by way of an 2 internal complaint, right? 3 A: Yes, sir. 4 Q: And you initiated that? 5 A: I did, sir. 6 Q: And you appointed Staff Sergeant 7 Atkins, right? 8 A: Yes, sir. 9 Q: And he was known to you back then as 10 an experienced and balanced officer; am I right? 11 A: Yes, sir. 12 Q: Under your command? 13 A: Yes, sir. 14 COMMISSIONER SIDNEY LINDEN: Please, Mr. 15 Falconer. Unless you have an objection, please. Do you 16 have an objection? 17 MR. JULIAN FALCONER: Yes. Mr. 18 Commissioner, I sit up here cross-examining witnesses 19 and, with great respect, Counsel line up to object -- 20 COMMISSIONER SIDNEY LINDEN: No they 21 don't. They don't, Mr. Falconer. 22 MR. JULIAN FALCONER: Well, with great 23 respect, that was my experience -- 24 COMMISSIONER SIDNEY LINDEN: Okay, what 25 is your objection?
691 MR. JULIAN FALCONER: -- on Thursday 2 afternoon and Thursday morning -- 3 COMMISSIONER SIDNEY LINDEN: I heard the 4 question. What is your objection? 5 OBJ MR. JULIAN FALCONER: Well, thank you. 6 My objection is, that unless we are hearing from Staff 7 Sergeant Dennis Atkin in terms of references such as 8 building his character through this witness, when there 9 is no opportunity to examine that witness of any kind, I 10 have serious concerns. 11 If My Friend knows that that witness is 12 being called as a witness, fair enough, but to engage in 13 -- in this kind of evidence when we -- there's a very 14 reasonable possibility he may not be called as a witness, 15 is troubling, because how else can one deal with it? 16 COMMISSIONER SIDNEY LINDEN: Well, you 17 did ask Superintendent Parkin about Atkin's experience 18 and so forth. 19 MR. JULIAN FALCONER: No. No, I didn't. 20 COMMISSIONER SIDNEY LINDEN: Well, I 21 thought -- 22 MR. JULIAN FALCONER: Mr. Rosenthal asked 23 questions -- 24 COMMISSIONER SIDNEY LINDEN: Who did? 25 I'm sorry --
701 MR. JULIAN FALCONER: -- about his 2 experience when it came to issues -- 3 COMMISSIONER SIDNEY LINDEN: About his 4 role? 5 MR. JULIAN FALCONER: -- of race. That 6 is his credentials. 7 COMMISSIONER SIDNEY LINDEN: Yes. 8 MR. JULIAN FALCONER: My concern is, 9 we're not going into credentials, we're now going into 10 his competence as a police officer. And my problem is, 11 if he's not coming as a witness, that should be flagged 12 because I have a concern that we, basically, do this 13 through the side door. 14 COMMISSIONER SIDNEY LINDEN: I'm not sure 15 if he's going to be a witness, probably would not be. So 16 do want to -- 17 MR. JULIAN FALCONER: He may well -- 18 MR. MARK SANDLER: How does this arise 19 out of my cross-examination? There's nothing improper -- 20 OBJ MR. JULIAN FALCONER: Because I just 21 object -- I just objected to the question being asked in 22 circumstances where the witness is not being called. 23 COMMISSIONER SIDNEY LINDEN: It looks 24 like he might be putting his character in issue. 25 MR. JULIAN FALCONER: That's right.
711 MR. MARK SANDLER: But with great 2 respect, Mr. Rosenthal cross-examined on -- on -- 3 MR. JULIAN FALCONER: Not on character. 4 MR. MARK SANDLER: Well, I'm not cross- 5 examining on character, with great respect. 6 COMMISSIONER SIDNEY LINDEN: No. So 7 that's the question. If you're not cross-examining on 8 character, you have no objection? 9 MR. JULIAN FALCONER: Yeah, although I do 10 want to be clear, from the ALST's point of view Staff 11 Sergeant Atkin should be a witness, but my worry is that 12 he's not on a witness list and unless he is, I can't go 13 on that -- 14 COMMISSIONER SIDNEY LINDEN: This isn't 15 an indirect way -- 16 MR. JULIAN FALCONER: -- with that 17 confidence. 18 COMMISSIONER SIDNEY LINDEN: -- for you 19 to suggest that he should be. At the moment, we don't 20 think he is on the witness list -- 21 MR. JULIAN FALCONER: That's right. 22 That's fair. 23 COMMISSIONER SIDNEY LINDEN: -- and let's 24 see where it goes. 25 MR. JULIAN FALCONER: That's fair.
721 COMMISSIONER SIDNEY LINDEN: Now, I would 2 be grateful if you did not put Sergeant Atkin's character 3 in issue through this witness. 4 I don't think that was your intention and 5 I would ask you not to do that -- 6 MR. MARK SANDLER: And I didn't. 7 COMMISSIONER SIDNEY LINDEN: -- because 8 he may not be a witness. 9 That's fine, carry on. 10 11 CONTINUED BY MR. MARK SANDLER: 12 Q: Now, if I can take you to Tab 97 of 13 Exhibit P-1052, and again, just to provide some 14 familiarity with what these documents are, and what they 15 show. 16 This is a document, a memorandum from 17 Professional Standards dated April 18th, 1996 and it 18 relates to two (2) officers whose names have been 19 redacted in connection with your complaint. 20 And it reflects that, after reviewing the 21 investigation report in connection with the complaint, 22 there are reasonable grounds to believe that the two (2) 23 officers acted improperly, and it's in connection with 24 this -- with this bull's eye target that's been described 25 in the evidence, am I right?
731 A: Correct, sir. 2 Q: And it reflects in the last line: 3 "Regardless of the officers' 4 intentions, their actions were 5 insensitive, unprofessional and 6 offensive and have brought discredit 7 upon the reputation of the OPP. 8 Therefore, further to our discussion, 9 it is requested that, as corrective 10 action, you offer them an admonishment. 11 Should they not accept that, a charge 12 may be initiated." 13 So I take it that what has been decided is 14 that, notwithstanding the recommendation that was made, 15 that non-disciplinary discussions be held with the 16 officers, the -- the powers to be determine that the 17 matter should proceed by way of discipline; am I right? 18 A: Yes, sir, you're referring to my 19 recommendation? 20 Q: Your recommendation and that of Staff 21 Sergeant Atkins. 22 A: Yes, because they would have more 23 fulsome information, within Professional Standards, with 24 respect to any other issues that those officers may have 25 been involved in.
741 Q: Or simply would make the evaluation 2 as to where this conduct fits in with other conduct in -- 3 in terms of how it should be dealt with; am I right? 4 A: That's correct. 5 Q: Okay. So -- and these two (2) 6 officers were not from Western Region and were not 7 involved in the confrontation with First Nations on 8 September 4th, to 5th -- 4th to 6th; am I right? 9 A: Correct, sir, not to my knowledge. 10 Q: Now, similarly, we see at Tab 113 a 11 similar memorandum to the Commander of the Region from 12 Professional Standards, again reflecting that in relation 13 to two (2) officers, because we have two (2) pages that 14 deal with two (2) separate officers, that this beer can 15 icon that was created is going to be the subject of 16 discipline, notwithstanding a recommendation for non- 17 disciplinary action; am I right? 18 A: Correct, sir. 19 Q: And again, it reflects that, 20 regardless of the intent, perception is reality. And to 21 some First Nations people who saw the icon it was 22 offensive, threatening, and to one (1), represented 23 drunken Indians being overpowered by OPP personnel; 24 right? 25 A: Correct, sir?
751 Q: So again, Professional Standards have 2 determined that the matter will proceed by way of 3 discipline in relation to those two (2) officers as well, 4 right? 5 A: Correct, sir. 6 Q: Okay. Now, I'd like to go back to 7 Staff Sergeant Atkins' findings for a moment and -- in 8 connection with two incidents. And I'll take you in that 9 regard to Tab 17 of Exhibit 1051. 10 And if you look at page 6 of his findings, 11 and this is in connection with the arrow on the cruiser 12 door. Do you have that? 13 A: Yes, sir. 14 Q: And if you look at the last paragraph 15 he reflects that he attended at the Niagara Falls 16 Detachment, he obtained duty reports from officers. And 17 at the top of page 7: 18 "In their words, Forest Detachment was 19 a fortress, the situation was extremely 20 stressful with potential of 21 escalation." 22 And then they described what -- what their 23 assignments were. And then in the second paragraph: 24 "On one (1) particular tour of duty the 25 articles of bow, arrows, and bull's eye
761 were purchased at a variety store and 2 in the privacy of Forest Detachment was 3 put on the cruiser for personnel 4 working there as a joke and to relieve 5 stress." 6 And then -- and then it goes on to 7 describe their state of mind. The next paragraph: 8 "Both officers indicate the articles 9 were not openly displayed to the 10 public. There was never an intention 11 to project a negative or derogatory 12 attitude towards First Nations persons 13 but as a relief of stress through 14 humour. They indicate there was no 15 intention to slander or slur First 16 Nations persons. 17 Mr. Cloud, during an interview, 18 indicated he was aware of the arrow on 19 the door, was not offended by the 20 incident. He stated he knew the 21 officer and said he was okay. It was 22 later, after thinking about it, he felt 23 that it shouldn't have occurred. 24 There's no doubt that the use of the 25 arrow stuck to the cruiser door was
771 offensive to Mr. Cloud. 2 Although it didn't appear to upset him 3 at first, thinking about it and 4 combining with other events resulted in 5 the fact that it became offensive. 6 Regardless of the design or intent of 7 their actions, and I found no evidence 8 in the investigation to doubt their 9 intentions, the result was that Mr. 10 Cloud was felt to -- made to feel 11 uncomfortable by what had occurred. 12 Although their intentions may have been 13 harmless in their eyes and their 14 purpose was to relieve stress and raise 15 awareness, the result was Mr. Cloud was 16 offended and in hindsight the actions 17 were inappropriate. The officers may 18 have generated the opposite affect 19 insomuch as officer safety could have 20 been jeopardized and it could have 21 caused retaliation by someone offended 22 by their actions." 23 So the bottom line is that, 24 notwithstanding the intent that was found by Staff 25 Sergeant Atkins, which was not racist, he found the
781 actions to be inappropriate, and ultimately it did result 2 in discipline, right? 3 A: Correct, sir. 4 Q: Now, I want to turn, then, to see 5 what Staff Sergeant Atkins had to say about the -- the 6 beer can icon, and we see that, if I can take you to page 7 11 of his report. 8 And you see in the middle of the page it 9 reflects: 10 "Most people interviewed had no 11 knowledge of seeing the can, I did 12 receive duty reports from two (2) OPP 13 officers stationed at..." 14 And the Detachment is redacted. 15 "The two (2) officers both acknowledge 16 being responsible for the beer can. It 17 was assembled during a presentation to 18 the female workers at the Park for 19 their hospitality. The can represented 20 the incident, the sand inside 21 represented Ipperwash, the feathers 22 symbolic of the First Nations, yellow 23 tape represented the OPP involvement, 24 the beer can comradery. 25 The constable indicated the hole in the
791 can represented the shots that were 2 fired. They indicate the entire can 3 symbolized the Ipperwash incident, was 4 not intended to show disrespect for 5 Native people. 6 And then it reflects at the bottom of the 7 page: 8 "A statement was obtained from another 9 Provincial constable, in his statement 10 he was in attendance at Pinery Park and 11 observed the beer can, he's Aboriginal 12 and not offended by the item in any 13 way. 14 The beer can falls into the same 15 category as the arrow on the cruiser 16 door. Mr. Cloud interpreted the can to 17 be offensive to the First Nations 18 people. 19 The can he felt represented drunken 20 Indians being overpowered, and so on. 21 In this instance there's no reason to 22 disbelieve the officers, but even 23 though their intentions were valid, 24 from their perspective, their actions 25 were inappropriate."
801 And again, the findings that were made by 2 Staff Sergeant Atkins was that there -- that there was 3 not a racist intention, but, nonetheless, the actions 4 were inappropriate, and that it was no defence even that 5 -- that an officer of Aboriginal descent had indicated 6 that he, personally, found the items inoffensive, right? 7 A: That's correct. 8 Q: And discipline, again, was imposed, 9 notwithstanding those mitigating circumstances; am I 10 right? 11 A: Yes, sir. 12 Q: Now in relation to those four (4) 13 officers who we've just described -- because much has 14 been said about these incident -- incidents publicly in 15 the past, I just want to be clear. 16 Based upon the findings of fact that are 17 contained here, would you, as a senior officer, be 18 prepared to characterize those four (4) officers as 19 racist and boot them off the Force? 20 A: No, sir. 21 Q: Would you regard that as an 22 appropriate reaction, having regard to the findings of 23 fact that were made? 24 A: Yes, sir. 25 Q: When you say an appropriate action,
811 the action that was actually imposed in this case? 2 A: The discipline, yes, sir. 3 Q: Okay. Now I want to turn to the t- 4 shirts and mugs and, if we may, look at what Staff 5 Sergeant Atkins found in connection with the coffee mugs 6 and in connection with the t-shirts. 7 We see at page 12: 8 "The coffee mugs that had been produced 9 were of two (2) varieties. The first 10 of which only twelve (12) were made 11 showed an OPP shoulder flash with an 12 arrow placed behind hit and the words 13 'Ipperwash '95.' The second version 14 removed the arrow. 15 Mr. Cloud feels that the mugs are 16 offensive towards First Nations persons 17 and he explains why that's the case." 18 And -- and there's other similar 19 sentiments that are expressed there. 20 And if you turn to page 13, third 21 paragraph. "Both officers expressed 22 their personal condolences to him." 23 And that's the proprietor who prepared the 24 mugs. 25 "The proprietor stated she was very
821 clear that the mugs were only a 2 commemorative souvenir of the Ipperwash 3 incident and only when it was pointed 4 out, why would someone want a souvenir 5 of someone dying, did she see it from a 6 different perspective. 7 Investigation revealed the involved 8 officers to be --" 9 And the officers names are redacted. 10 "I interviewed both officers. They 11 indicate that the mugs were made up as 12 a memento for the Ipperwash incident. 13 They attempted to come up with a design 14 and had trouble drawing a feather, with 15 no success, settled on an arrow, and so 16 on. 17 When produced and because it had the 18 OPP flash on it they showed it to an 19 OPP inspector who acknowledged the 20 efforts but felt the stick arrow should 21 be dropped. They had the arrow 22 removed, purchased the mugs and 23 distributed them to MNR staff as a 24 gesture and thanking them for their 25 help and assistance.
831 They indicate there was no intent to 2 insult anyone nor was it meant as a 3 political or racial statement. One 4 officer indicated he was very sensitive 5 to First Nations' issues having been 6 transferred from Northern Ontario. In 7 the case of another officer, he's an 8 ethnic minority himself, understands 9 the sensitivity. 10 There was no intent of causing anyone 11 unnecessary grief." 12 And then at page 14, and I apologize for 13 reading this much of it which hasn't been read on the 14 public record. 15 The second paragraph: 16 "Statements from Cloud and another 17 member of the George Family show how 18 they feel about the coffee mugs. 19 They're offended and for that reason 20 alone they have to be considered 21 offensive to them. It's necessary to 22 look at the intent. The two (2) 23 officers and [and another name is 24 redacted] were professional in their 25 actions in producing and distributing
841 the coffee mugs. 2 Historically, in the OPP as well as 3 many other police services it has been 4 a tradition to produce a memento of the 5 event." 6 And he describes the various circumstances 7 under which mementos have been created. 8 "When joint operations are organized or 9 a massing of personnel occurs, a 10 memento is invariably produced. The 11 article produced is something police 12 officers keeps as a reminder of that 13 portion of their career. It deals with 14 the camaraderie and esprit de corps of 15 the people involved, not the incident 16 itself. 17 The officers were careful to be 18 professional in dealing with the 19 community while producing the mugs and 20 took the initiative to discuss the logo 21 with a senior officer involved in 22 Project Maple. 23 On his suggestion, they removed the 24 arrow. The owner of [which was 25 redacted] was also an acquaintance of
851 another individual who had lived and 2 worked in the Forest community and 3 never saw the offensiveness in the mugs 4 until pointed out to her. 5 I find the officers acted properly in 6 their actions." 7 Now, having said that, Staff Sergeant 8 Atkins goes on, if I can skip ahead to page 18, to 9 reflect that at item 2: 10 "The Ontario Provincial Police should 11 consider the merits of the practice of 12 the manufacturing of mementos as 13 keepsakes in major events. 14 Possibly the time has come that 15 guidance needs to be established." 16 And then at page 19, it reflects: 17 "Comments. During this investigation 18 it became apparent that perception 19 played a major role in the issues. 20 Some First Nations persons were 21 offended by all or some of the actions. 22 Some saw nothing wrong. 23 Also, the reverse was true. Other 24 people saw the actions as approaching 25 the limits of what can be considered
861 improper. 2 There was also a lack of understanding 3 of symbols and the beliefs both by 4 First Nations persons and by the 5 community as a whole, including OPP 6 personnel. 7 The difficulty is perception is 8 reality. No matter what the intent, 9 actions that are meaningless to some 10 are offensive to others and these times 11 it is extremely important to educate 12 ourselves on issues that have a direct 13 bearing on how we do policing. 14 To this end, I believe that whatever 15 avenues that can be pursued to educate 16 our personnel can have a positive 17 outcome on future dealings with First 18 Nations issues." 19 Right, now I'd like you to keep that 20 recommendation or those recommendations in mind, because 21 we're going to come back to them in a moment. 22 If we can just deal very briefly with what 23 was said about the t-shirts at page 15. 24 And you'll see this at the bottom -- the 25 bottom of the page.
871 "On October the 28th I interviewed one 2 of the constables with respect to the 3 production of the t-shirts. In his 4 statement he indicated that he, in 5 fact, was responsible for their 6 existence. 7 He indicated that he had very carefully 8 attempted a design that would not 9 offend anyone. 10 He wanted to make a memento, as is 11 customary in major events, so that 12 officers would have a keepsake. 13 After deciding on a couple of tasteful 14 logos, he decided to check with certain 15 individuals whose opinions, he thought, 16 would be helpful so as not to offend 17 anyone. 18 Then he reflects that he spoke to a 19 First Nations person, an OPP officer, 20 Detective Staff Sergeant Mark Wright. 21 As a result, he decided upon the design 22 because he felt it was tasteful, non- 23 offensive and projected a positive 24 image. 25 Another individual was shown two (2)
881 designs, one with an arrow, one with a 2 feather. He stated the one with the 3 arrow was offensive, but he was not 4 personally offended by the feathers." 5 And then skipping down: 6 "There seemed to many interpretations 7 as to what the feather stands for. 8 Stan Cloud and Sam George indicate 9 feather on its side indicate a fallen 10 warrior. 11 Other First Nations persons spoken to 12 felt it was a peace symbol. 13 And then he cites the Anishnaabek News, 14 a publication of the Union of Ontario 15 Indians, with a photograph of an eagle 16 feather being held sideways and the 17 caption indicating, "it's a soothing 18 spirit to balance today's frustration." 19 I spoke with an individual who has 20 knowledge of First Nations customs. He 21 draws the analogy that the feather 22 could be equated to a crucifix in a 23 certain religion. 24 Therefore, the importance one would 25 place on it would depend on the depth
891 of their own faith and particular 2 beliefs." 3 He then reflects under findings: 4 "The t-shirt, once again, is an 5 expected memento of policing 6 involvement in major incidents. It's 7 noteworthy that witnesses interviewed 8 indicated that shirts are being made 9 for the RCMP and so on. 10 Detective Inspector made an interesting 11 comment. It may have been 12 inappropriate to initiate a memento 13 such as a t-shirt prior to the 14 termination of the event. 15 The press corps at this incident had 16 created their own shirts with the logo 17 'Camp Overtime' on them. 18 At Oka, during the crisis where a 19 police officer was killed, shirts were 20 made with crests of agencies involved 21 and an arrow, and being distributed by 22 First Nations persons. 23 In conversation, Mr. Sam George alluded 24 to the fact that after Ipperwash was 25 over, First Nations persons would
901 probably make a memento. 2 I asked him if he would consult with an 3 OPP officer for input, he indicated 4 maybe First Nations officers. 5 I find that although there were people 6 offended by the shirts, care and 7 professionalism was used to attempt to 8 ensure that people were not offended by 9 the shirts and the officers' sole 10 purpose was to supply a memento. 11 Unfortunately, the sensitivity of the 12 situation did not allow for this 13 interpretation." 14 So stopping there for a moment. Staff 15 Sergeant Atkins' findings -- and I apologize, 16 Commissioner Linden, I've read more than I'm sure you 17 would have liked to hear from the report. 18 But his findings, on the bottom line, was 19 that the officers had intended to create mementos in a 20 non-offensive way, but Staff Sergeant Atkins found, 21 nonetheless, that the sensitivity of the situation, which 22 would include, of course, the death of Dudley George, 23 would not permit that to take place; am I right? 24 A: That's correct. 25 Q: And you agree with that?
911 A: That's correct. 2 Q: And would you be prepared in -- in 3 addressing the -- the makers of the t-shirts and mugs, to 4 characterize those officers or senior officer as -- as 5 racist or -- or troop them out of the police force as a 6 result of their actions? 7 A: No, sir. 8 Q: Okay. Now, I alluded to the fact 9 that Staff Sergeant Atkins made certain recommendations. 10 One (1) of the recommendations was that -- that 11 reconsideration should be given to the use of the OPP 12 insignia and images. 13 And if I can take you to Tab 103... 14 15 (BRIEF PAUSE) 16 17 Q: ...which again is in Exhibit P-1052, 18 this is a memorandum to Regional Commanders, Bureau 19 Commanders and Detachment Commanders dated December 1996, 20 "Use of OPP insignia and images." 21 And are you aware of and were you aware of 22 back in 1996 of this new policy in connection with the 23 use of insignia and images? 24 A: Yes, sir. 25 Q: And the bottom line, without reading
921 it out, is that, henceforth, except where authorized by 2 the Commissioner, the OPP image shall not be created or 3 released without the written authorization of the 4 Regional or Bureau Commanders; am I right? 5 A: Correct, sir. 6 Q: And that was directly responsive to 7 the insensitivity and inappropriateness of the mementos 8 that we've just talked about; am I right? 9 A: Yes, sir. 10 Q: So that's one (1) of the 11 institutional responses. And then we see, at Tab 104, a 12 letter of apology from Commissioner O'Grady to -- to Mr. 13 Sam George in connection with the memorabilia; am I 14 right? 15 A: Yes, sir. 16 Q: And then I expect there'll also be 17 evidence, and I'll ask you if you're aware of this, that 18 -- that the Commissioner also made an apology through the 19 media to all Aboriginal Canadians for the inappropriate 20 memorabilia. Were you aware of that? 21 A: Yes, sir. 22 Q: All right. In addition to that, and 23 we see this at Tab 105, that the commissioned officers 24 who had knowledge of the memorabilia, were brought 25 together in the subject of non-disciplinary discussions;
931 am I right? 2 A: Correct, sir. 3 Q: And again, that would represent 4 another institutional response to the memorabilia, as 5 described in the findings of Staff Sergeant Atkins; am I 6 right? 7 A: Yes, sir. 8 Q: And Commissioner Linden has also 9 heard, through the forum, that in July 1996 the OPP 10 together with the Ontario RCMP established the 11 Commissioner's Select Liaison Council on Aboriginal 12 Affairs to enhance understanding and relationships with 13 First Nations communities. 14 And you were aware of -- of the creation 15 of that select council? 16 A: I was, sir. 17 Q: And again, responsive to Ipperwash 18 and these memorabilia; was it not? 19 A: Correct, sir. 20 Q: And we'll also hear some evidence 21 about Native awareness training programs and -- and the 22 reaction to -- to who those would be offered to as a 23 result of these memorabilia. 24 And again, you were familiar with that 25 program as a senior officer, back when you with the
941 Force? 2 A: Yes, sir. 3 Q: Now, and as for the officers 4 themselves that were involved in the t-shirts and mugs, I 5 expect we'll hear further evidence in that regard? 6 Now, if I can turn from the memorabilia 7 and -- and ask you some questions arising out of Mr. 8 Falconer's questions to you the other day. 9 COMMISSIONER SIDNEY LINDEN: Is this in 10 respect of the mugs and t-shirts or is this a new area? 11 MR. MARK SANDLER: No, I've moved to a 12 different topic now. 13 COMMISSIONER SIDNEY LINDEN: Should we 14 take a break now? 15 MR. MARK SANDLER: That's fine. 16 COMMISSIONER SIDNEY LINDEN: This would 17 be a good place to take a break. We'll take a morning 18 break. 19 THE REGISTRAR: This Inquiry will recess 20 for fifteen (15) minutes. 21 22 --- Upon recessing at 11:58 a.m. 23 --- Upon resuming at 12:18 a.m. 24 25 THE REGISTRAR: This Inquiry is now
951 resumed. Please be seated. 2 COMMISSIONER SIDNEY LINDEN: You 3 originally estimated about an hour, you've used about a 4 half. So you've got roughly a half hour left. Is that 5 still accurate? 6 MR. MARK SANDLER: I'll do my best. 7 COMMISSIONER SIDNEY LINDEN: Well, but 8 it's still reasonably accurate -- 9 MR. MARK SANDLER: It's -- 10 COMMISSIONER SIDNEY LINDEN: -- you 11 haven't changed? 12 MR. MARK SANDLER: -- ten (10) minutes 13 either way. 14 COMMISSIONER SIDNEY LINDEN: Thank you. 15 16 CONTINUED BY MR. MARK SANDLER: 17 Q: So you'll understand, Mr. Parkin, if 18 my questions go very quickly. 19 A: Yes, sir. 20 COMMISSIONER SIDNEY LINDEN: Well I don't 21 expect you to do that, Mr. Sandler. 22 23 CONTINUED BY MR. MARK SANDLER: 24 Q: It was suggested to John Carson when 25 he testified here that Chris Coles and you when you
961 attended the command centre on September the 6th, gave 2 him orders to take back the Park. 3 Is that true? 4 A: No, sir. 5 Q: Any doubt about that? 6 A: No doubt about that. 7 Q: Now we've actually heard evidence 8 that John Carson expressly told Wade Lacroix not to go 9 into the Park later that night. 10 Is that consistent or inconsistent of what 11 you would have expected of your Incident Commander that 12 evening? 13 A: It's consistent with what I would 14 have expected and it is what I understand that happened. 15 Q: Now much has been said about 16 political pressures being exerted on Incident Commanders 17 or their staff. And -- and I want to ask you a frank 18 question. 19 You dealt with Marcel Beaubien, did you 20 have any concern after meeting with him that John Carson 21 or Wade Lacroix would be intimidated by him or feel 22 pressured to conform to Mr. Beaubien's desires? 23 A: No, sir. 24 Q: Now you were quite candid with the 25 Commissioner in saying that there's always pressures on
971 Incident Commanders to do this or to do that, aren't 2 there? 3 A: It is part of the business, yes. 4 Q: Did you have any concern back then 5 about John Carson's ability to withstand those kinds of 6 pressure? 7 A: No, sir. 8 Q: Anything you've seen since cause you 9 to change your evaluation? 10 A: No, sir. 11 Q: Now, Wade Lacroix, people have seized 12 upon your comments upon the strength -- about the 13 strength of his personality. 14 Did you have any concern that he would not 15 respect the chain of command once a decision was made? 16 A: No, sir. 17 Q: Now leaving aside that issue, did you 18 expect as a senior officer, that Wade Lacroix would care 19 about what someone outside of the chain of command would 20 be suggesting that he do or not do? 21 A: I'm not sure I follow that question, 22 sir. 23 Q: Were you concerned at all leaving 24 aside whether he would follow the chain of command? Were 25 you concerned that he would -- that he would care about
981 what someone outside of the chain of command would want 2 him to do or not to do? 3 A: No, sir. 4 Q: Now you were questioned at some 5 length by Mr. Falconer about how the facts discussed by 6 Inspector Linton in his telephone call with you would 7 impact upon the decision to send the CMU down the road. 8 And -- and those questions on February the 9 8th last week culminated in answers at pages 287 to 288. 10 And -- and I just want to read you the questions and 11 answers because I want to ask you a series of questions 12 arising out of them, okay? 13 COMMISSIONER SIDNEY LINDEN: I'm sorry, 14 what are you reading now. The transcript of yesterday? 15 MR. MARK SANDLER: And I'm reading -- I'm 16 reading Mr. Falconer's cross-examination of Mr. Parkin 17 last week. 18 COMMISSIONER SIDNEY LINDEN: A couple of 19 days ago. 20 MR. MARK SANDLER: All right. 21 22 CONTINUED BY MR. MARK SANDLER: 23 Q: And I'm at 287. And this is after he 24 and you talk about hindsight and armchair quarter- 25 backing.
991 Do you remember you had a dialogue with 2 him about your reticence about doing that? 3 A: Yes, sir. 4 Q: And he asked this question: 5 "If Dale Linton had told you what Mark 6 Wright experienced with people tapping 7 their hands with bats and clubs as I 8 read to you carefully and I told you 9 about the stone being thrown against 10 the car, it would have caused you to 11 slow them down, right? 12 Correct. 13 And you said I would have asked 14 questions but the questions would have 15 been designed to slow him down, right? 16 Correct. 17 Because on that information it's really 18 looking weak, isn't it? 19 A: Yes." 20 Now I want to ask you about questions 21 arising out of those if I may. 22 Now, we've evidence that is was Inspector 23 Carson, not Inspector Linton, who made the decision to 24 send the CMU down the road and the reason why the CMU was 25 sent down the road.
1001 And again, that accords with your 2 understanding as to who was responsible for that 3 decision, does it not? 4 A: Yes, sir. 5 Q: Now did Inspector Carson before he 6 made the decision to send CMU down the road, telephone 7 you and discuss all of the factors that impacted upon his 8 decision to do so? 9 A: No, sir. 10 Q: Now I'm going to ask you to comment 11 upon the factors that Inspector Carson who made the 12 decision identified, all right? 13 And I want to preface this at once by 14 saying Inspector Carson acknowledged a number of times in 15 his testimony that he did not have as it turned out, the 16 correct information about the incident with the Gerald 17 George car. 18 And as Mr. Falconer pointed out to you, he 19 candidly acknowledged that he doesn't know, he can't say 20 for sure what he -- whether he would have made the same 21 decision today. 22 So my -- my question isn't trying to get 23 into the head of John Carson, I want to ask you to 24 comment on the same questions that Mr. Falconer put after 25 I put certain facts, all right?
1011 So, let's assume that John Carson had 2 picked up the phone and telephoned you, and -- and he 3 told you these things. 4 First, that he told you that there were 5 eight (8) to ten (10) individuals standing on the edge of 6 the road, four (4) to five (5) of them brandishing axe 7 handles, clubs or similar objects. 8 He told you that an individual, not 9 identified as a police officer, namely Mark Wright in 10 plain clothes, had been told to get out of there; that it 11 wasn't his fight and that they were brandishing those 12 objects in an intimidating manner. 13 And that he also told you that his 14 information was that Mark Wright was told that he could 15 not go into the parking lot area outside of the 16 Provincial Park, and that this was before any movement by 17 the police towards the Park, okay? 18 Do you understand the first fact that I've 19 put to you? 20 A: Yes, sir. 21 Q: Now, would that be a valid fact for 22 an incident commander to consider in determining whether 23 the CMU should go down the road? 24 A: It would be something to consider. 25 Q: Okay. Now, and I take it that the
1021 fact they're outside of the Park would be significant, 2 right? 3 A: Yes, sir. 4 Q: The fact that they spoke about a 5 fight, right? 6 A: Yes, sir. 7 Q: The fact that they have weapons in 8 their hands, that would be significant? 9 A: Yes, sir. 10 Q: The fact that they're brandishing 11 them to a stranger who drives by, that would be 12 significant as well? 13 A: Yes, sir. 14 Q: Would those facts be irrelevant 15 because this wasn't a specific threat directed to the 16 police? 17 A: No, sir. 18 Q: Now, and we actually indeed see that 19 this isn't simply testimony now, but if I can take you 20 to, just dealing with that fact, to Tab 7 of your 21 audiotapes, which I believe is Exhibit 469. 22 Do you have that? 23 A: Yes, sir. 24 Q: And if you look at page 46, I'm just 25 going to take you to two (2) entries.
1031 (BRIEF PAUSE) 2 3 Q: And this first entry has been read to 4 you a number of times. Parkin, and about two-thirds of 5 the way down the page: 6 "I mean so you're kind of saying that 7 if something happens on the road or off 8 of the Park -- 9 Yes? 10 You're going to take whatever action is 11 reasonable? 12 Yeah. 13 But if it stays inside the Park -- 14 Yeah. 15 We're not planning on going in. 16 LINTON: No." 17 And then if you look at 53, page 53, and 18 you see this second entry here: 19 "And, you know, if they want to burn 20 picnic tables, if they want to act like 21 yahoos back in there..." 22 And I take it that's back in the Park, am 23 I right? 24 A: Yes, sir. 25 Q: "Fine. If they come out into your
1041 turf and we can safely make arrests, 2 well then that's fine, too." 3 Do you see that? 4 A: Yes, sir. 5 Q: And did that represent your 6 sentiments back then? 7 A: Yes, sir. 8 Q: So that you were drawing a 9 distinction at those two (2) pages between conduct by the 10 occupiers inside the Park that should not be acted upon, 11 and conduct outside of the Park proper, am I right? 12 A: Correct. 13 Q: Now, second fact. Assume that John 14 Carson told you the correct facts about the Gerald George 15 incident, that one of the individuals in that same group, 16 some of whom were brandishing weapons, had also damaged 17 Gerald George's car as it came by, with a stone, and 18 punched Gerald George. 19 Now, we've heard evidence from Gerald 20 George that he was punched and that he was a Kettle and 21 Stony Point councillor who had criticized the occupiers. 22 So, John Carson tells you that, okay? 23 A: Yes, sir. 24 Q: The third fact. He tells you that 25 some occupiers had attempted to take a position in the
1051 parking lot in the previous day with picnic tables, and 2 had set fires in the parking lot and that a strategy of 3 sending a number of officers down the road had been 4 successful in causing the occupiers to go back into the 5 Park, all right? 6 A: Yes, sir. 7 Q: And would that be a relevant 8 consideration in determining whether or not the incident 9 commander should send the CMU down the road? 10 A: Yes, sir. 11 Q: Why? 12 A: You have a public safety issue, and 13 it's outside the Park. 14 Q: All right. And the fact that there 15 had been some success through the show of some numbers in 16 having the occupiers go back into the Park, should that 17 have figured prominently in an incident commander's 18 determination of what to do? 19 A: Well, it seemed to peacefully resolve 20 the prior situation. 21 Q: All right. Now assume that in this 22 context John Carson also told you that he had reasonable 23 concerns that if the occupiers held the parking lot and 24 set fires there it would be difficult to get the Fire 25 Department in should a fire spread to the adjoining
1061 cottages. 2 Would that be a valid consideration for 3 the Incident Commander? 4 A: Yes, sir, it would. 5 Q: Regardless of whether at the time he 6 was speaking to you the fires were in the parking lot? 7 A: Yes, it would. 8 Q: Okay. So I've left out the incorrect 9 information about fires actually being in the parking lot 10 on the evening of September the 6th, you understand that? 11 A: Yes, sir. 12 Q: The next fact. John Carson says to 13 you that the occupiers had first taken the Army Camp, 14 then the Park, now we're in the parking lot and that he 15 had heard rumours from the First Nations Chief and others 16 that the cottages might be next. 17 Now again, recognizing that that would be 18 unverified information was that the kind of information 19 that the Incident Commander should at least factor into 20 his determination as to whether he should send the CMU 21 down the road that evening? 22 A: He would have had no choice. 23 Q: Okay. Fifth, John Carson tells you 24 or reminds you that the cottages are in close proximity 25 to the parking lot.
1071 And again you knew that did you not? 2 A: Yes, I did, sir. 3 Q: And would that have been a relevant 4 consideration for the Incident Commander in determining 5 whether the CMU should go down the road that night? 6 A: Yes, it would. 7 Q: Why? 8 A: Again, public safety issue. There 9 was -- the non-native community were very concerned about 10 what was taking place. 11 Q: Sixth. Let's assume that John Carson 12 said to you, Chief Superintendent, or Superintendent back 13 then, shortly before these events that are now 14 transpiring, the non-native cottagers in the area had to 15 be dissuaded from marching down the road towards the Park 16 themselves. 17 Now, would that be a relevant 18 consideration for the Incident Commander? 19 A: Yes, it would, sir. 20 Q: How would that be relevant in the 21 context of occupiers being outside of the Park and some 22 concerns about cottagers being prepared to march towards 23 or to the Park? 24 A: Well, it speaks to the whole issue 25 that the police are faced with in these types of disputes
1081 where we become in the middle of the situation if you 2 will and we certainly would not want to have a situation 3 where we have one (1) portion of the community perhaps 4 marching down towards the Park to confront another part 5 of the community. 6 We have to maintain the safety of the 7 public at large. 8 Q: All right. Let's say John Carson 9 went on to say, And by the way, Superintendent, the bus 10 and the dump truck are being brought into play by the 11 occupiers and this is the same bus that had been used to 12 violently take over the built-up area of the Army Camp, 13 in other words as an offensive weapon in the past, all 14 right? 15 Would that have been a relevant 16 consideration for the Incident Commander? 17 A: Yes, sir. 18 Q: Why? 19 A: Again, knowing the history of the 20 situation, the continuity, what had taken place at one 21 (1) event was there the potential for that to re-occur? 22 All these things would have had to be taken into 23 consideration. 24 Q: Okay. And let's say John Carson 25 ended his outline of what was going on by saying, And
1091 we've also been told that women and children are leaving 2 the Park and communicating to officers at checkpoints 3 that something is going to happen. 4 Again, would that be a relevant 5 consideration for the Incident Commander, even subject to 6 -- the concerns that Mr. Falconer expressed that we don't 7 have all the information as to -- as to why that's taking 8 place? 9 A: Again, it would be another piece of 10 information that would have to be incorporated into the 11 total thought process. 12 Q: Okay. Now again, let's say that at 13 the end of that piece, John Carson with the luxury of a 14 little bit of time which we already know is somewhat 15 surrealistic, had told you all of that and then he said, 16 What I intend to do, Superintendent, is send the CMU down 17 the road with clear instructions not to go into the Park 18 and if the occupiers run back into the Park to let them 19 go back. 20 And I'm going to do it, Superintendent, 21 with sufficient numbers to deter any confrontation in the 22 same way as we did the day before. And if nobody's in 23 the parking lot when the CMU arrives I'll have them 24 withdraw. 25 Now, let's say he said all that to you and
1101 he said, Superintendent, what do you think? 2 Would you have told him that information 3 was too weak to act upon or to go slow? 4 MR. WILLIAM HENDERSON: Commissioner? 5 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 6 Henderson? 7 MR. MARK SANDLER: I'll just finish the 8 question. Or that that -- 9 COMMISSIONER SIDNEY LINDEN: I don't -- 10 11 CONTINUED BY MR. MARK SANDLER: 12 Q: -- direction was inappropriate? And 13 don't answer until My Friend objects. 14 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 15 Henderson? 16 MR. WILLIAM HENDERSON: Mr. Commissioner, 17 a little earlier this morning we had an objection based 18 on the fact that Mr. Parkin was not party to a 19 conversation that he was being examined upon. 20 This is a conversation that never took 21 place. My Friend has already, and fairly, conceded that 22 in Deputy Superintendent Carson when he gave his 23 evidence, himself said that, apprised of all of the 24 information, he might have done things differently at the 25 time.
1111 Now, it seems to me that this fictitious 2 conversation is directed towards getting Superintendent 3 Parkin to say that he would have done the same thing John 4 Carson did. 5 That's of no value to you. Much of this 6 information was actually presented to Mr. Parkin by Dale 7 Linton at the time. 8 COMMISSIONER SIDNEY LINDEN: Well -- 9 MR. WILLIAM HENDERSON: And didn't evoke 10 any comment at that time. 11 I'm concerned that -- that the question 12 that's being asked, is to validate a decision that the 13 person who made it might today second guess. 14 This witness' evidence or opinion is not 15 going to change that. Indeed, it might even go so far as 16 to undermine the evidence that we already have from -- 17 from Inspector Carson. 18 I just don't see that this is a proper 19 question or that it helps you. 20 COMMISSIONER SIDNEY LINDEN: Thank you. 21 What's the fictitious conversation that never occurred? 22 MR. WILLIAM HENDERSON: Well, My Friend 23 has just conjured up a conversation and has -- it's been 24 going on so long that you've forgotten it's fictitious, 25 with respect, sir.
1121 COMMISSIONER SIDNEY LINDEN: Well, I -- 2 MR. WILLIAM HENDERSON: It's a 3 conversation that -- 4 COMMISSIONER SIDNEY LINDEN: Well, that-- 5 MR. WILLIAM HENDERSON: -- John Carson 6 supposedly called -- 7 COMMISSIONER SIDNEY LINDEN: Yes. Oh, 8 you're talking about the whole conversation? 9 MR. WILLIAM HENDERSON: I'm talking about 10 the whole thing -- 11 COMMISSIONER SIDNEY LINDEN: Okay. 12 MR. WILLIAM HENDERSON: -- culminating -- 13 COMMISSIONER SIDNEY LINDEN: Okay. I 14 thought you were referring to something specific. You're 15 referring to the way in which the question is being 16 framed. 17 MR. WILLIAM HENDERSON: Oh no, no, no. 18 It's an entirely fictitious conversation -- 19 COMMISSIONER SIDNEY LINDEN: Yes, that is 20 fine. 21 MR. WILLIAM HENDERSON: -- and I mean we 22 could through it. 23 COMMISSIONER SIDNEY LINDEN: No, that's 24 fine. 25 MR. WILLIAM HENDERSON: As to how it was
1131 posed and which parts, in fact, Mr. Parkin knew at the 2 time. But that doesn't, you know, his -- his Monday 3 morning quarter-backing doesn't affect the evidence that 4 Inspector Carson or Deputy Commissioner Carson already 5 gave and, with respect, it's inappropriate and doesn't 6 assist you. 7 COMMISSIONER SIDNEY LINDEN: Thank you. 8 Yes, Mr. Sandler...? 9 MR. MARK SANDLER: Perhaps I can make 10 clear what I'm doing here, because I'm not doing what My 11 Friend thinks I am. 12 Deputy Commissioner Carson said, not 13 surprisingly, that -- that he can't say today what he 14 would have done with the correct information. 15 I'm simply responding to Mr. Falconer's 16 cross-examination which suggested that, based upon what 17 Inspector Linton was communicating to this witness, that 18 it would have been a weak basis to make the decision to 19 send the CMU down the road. 20 And I simply want to ascertain whether Mr. 21 Parkin would feel the same way in characterizing that 22 decision had the facts which John Carson says were the 23 facts that impacted upon him, been put to him. 24 It's -- it's completely responsive to -- 25 to the point that Mr. Falconer raised, with great
1141 respect. 2 COMMISSIONER SIDNEY LINDEN: Yes? 3 MR. JULIAN FALCONER: Mr. Commissioner, 4 now that Mr. Sandler's articulated this point, I'm 5 objecting, because in fact, it's not responsive at all. 6 I took the witness to a concrete 7 conversation that happened between him and a subordinate. 8 Mr. Sandler is taking him to a 9 hypothetical conversation that never happened, in order 10 to have him opine hypothetically what might have been 11 okay, in the context of a witness who's already said 12 today, it might never have been okay. 13 So, my difficulty is, to respond to the 14 concrete conversation or communication that happened 15 between this superior and a subordinate, he should be 16 using concrete evidence or nothing. 17 The theory of a hypothetical conversation 18 that never happened, to deal with the con -- it's not 19 helpful to you. I mean, we can then get up and ask him 20 some more questions. 21 What if you had talked to Mark Wright 22 later that night, and Mark Wright had told you a whole 23 bunch of other things? 24 I mean, that's not very helpful to you, 25 because none of those things happened. That's the
1151 problem with the way -- the direction this questioning is 2 going and I -- 'cause I didn't really understand what 3 he's doing. 4 I now do and I -- that's not how you use 5 hypotheticals. 6 COMMISSIONER SIDNEY LINDEN: Well, thank 7 you, Mr. Falconer. 8 MR. MARK SANDLER: With all due respect, 9 My Friends may not like the answers that I may elicit 10 here but -- 11 MR. JULIAN FALCONER: That's not the -- 12 MR. MARK SANDLER: Well, if I could just 13 respond. 14 Mr. Falconer was putting the hypothetical 15 at first instance to Mr. Parkin, because he was putting 16 Inspector Linton's comments to him as corrected by what 17 we now know. 18 Remember, what he was saying to him is -- 19 COMMISSIONER SIDNEY LINDEN: Yes, yes, 20 yes. 21 MR. MARK SANDLER: -- if -- if Linton had 22 said and that's why I started with that passage. If 23 Linton had told you that it was just a stone thrown at a 24 car, how -- what would have your response been? 25 And -- and now when I want to do the very
1161 same thing, if Carson had told you these things what 2 would your response have been, he doesn't like the 3 answers that I might elicit. 4 This is just a frivolous objection with 5 great respect. 6 COMMISSIONER SIDNEY LINDEN: Okay just -- 7 stop now. I want to hear from Mr. Worme. I want to -- 8 keep going back and forth. I've heard from you both, I 9 want to hear from Mr. Worme. I've got to make a decision 10 and move on. 11 Yes, Mr. Worme...? 12 MR. DONALD WORME: Just with respect to 13 the comments from My Friend, Mr. Henderson, if I thought 14 for a moment, Commissioner, that you or the Commission 15 would be misled by a hypothetical and certainly I would 16 be objecting to the question. 17 It is a hypothetical question. I think 18 it's appropriate in the circumstances and it is 19 responsive to some degree. I think that Mr. Sandler 20 ought to be permitted to continue. 21 COMMISSIONER SIDNEY LINDEN: Thank you. 22 Mr. Sandler ask the question. Let's move on. You've 23 already asked -- no, you haven't asked your ultimate 24 question. You put it hypothetically, you don't have to 25 repeat it all, it would be impossible.
1171 2 CONTINUED BY MR. MARK SANDLER: 3 Q: Well here's the bottom line question 4 and that is if John Carson had called you and told you 5 all those facts and indicated to you that what he 6 intended to do was send the CMU down the road with clear 7 instructions not to go into the Park, if the occupiers 8 run into the Park, they'll let them go back, that he 9 intended to do so with sufficient numbers to deter any 10 confrontation and that if nobody was in the parking lot 11 when the CMU arrived, he'd have his officers withdraw. 12 If he told you all those things and sought 13 your input, would you have had the same reaction that Mr. 14 Falconer elicited from you, it's too weak to act upon, go 15 slow? 16 A: No, sir. It would be a reasoned 17 approach. 18 Q: Okay. And I've been very careful 19 when I ask you the questions, not to ask you whether you 20 would or wouldn't have done the same thing because one 21 (1) thing that you've made crystal clear to everyone 22 involved here, is that you recognized you're not on the 23 ground, you're not in the position to make the ultimate 24 decision, right? 25 A: That's correct, sir.
1181 Q: Now Mr. Falconer asked you a number 2 of questions about intelligence and acting upon 3 unverified information. And you told him that sometimes 4 you have to act upon information that's available to you 5 that you don't have the ability to verify. 6 And -- and I just want to talk -- ask you 7 a little bit about some of the unverified information. 8 And just so you'll know where I'm going, what I'm going 9 to suggest to you is that the extent to which you act 10 upon unverified information, depends upon what action it 11 is that you're actually performing. 12 Do you know what I mean by that? 13 A: No. Perhaps you could clarify that a 14 bit. 15 Q: I will. Let's take an example of the 16 kiosk. Mr. Falconer asked you about the fact that there 17 was a concern about whether or not there was a weapon in 18 the kiosk. 19 Do you remember that? 20 A: Yes, sir. 21 Q: And -- 22 MR. JULIAN FALCONER: No, that's not -- 23 COMMISSIONER SIDNEY LINDEN: I'm not sure 24 that's exactly the way he asked that question. I don't 25 remember exactly. But the blinds were pulled --
1191 OBJ MR. JULIAN FALCONER: I object. I asked 2 about -- 3 COMMISSIONER SIDNEY LINDEN: I'm sorry. 4 MR. JULIAN FALCONER: -- the blinds being 5 dropped. 6 COMMISSIONER SIDNEY LINDEN: Yes, the 7 blind came down. 8 MR. JULIAN FALCONER: I asked about the 9 blind being dropped in the kiosk. 10 COMMISSIONER SIDNEY LINDEN: Yes, I do 11 remember that. 12 MR. MARK SANDLER: All right. Fair 13 enough. 14 15 CONTINUED BY MR. MARK SANDLER: 16 Q: Mr. Falconer asked you about a blind 17 being dropped in the kiosk? 18 A: That's correct. 19 Q: And -- and the concern obviously that 20 was -- that was motivating some interest in the kiosk was 21 whether or not there was a weapon inside the kiosk, 22 right? 23 That's why we're talking about blinds 24 being drawn down and who's in the kiosk and what are they 25 doing, right?
1201 A: That may have been one (1) 2 possibility. 3 Q: Okay. Now let's assume that -- that 4 the Incident Commander is given information that there's 5 activity around the kiosk, that the blinds are down, that 6 some of his officers are concerned that -- that there may 7 be a weapon inside the kiosk as a result of that 8 activity, okay? 9 A: Yes, sir. 10 Q: And that's all you know about it, all 11 right? 12 And could an Incident Commander ignore 13 the risk of weapons because there was no validation that 14 they were inside the kiosk? 15 A: I don't think it would be appropriate 16 to ever ignore the risk of weapons. 17 Q: Now we've heard evidence that what 18 John Carson did in these circumstances as he sent 19 officers out to determine whether there were sight lines 20 from the kiosk to the -- to the parking lot. And -- and 21 wanted the continued monitoring through video of the 22 kiosk. 23 Was that an appropriate reaction to un- 24 validated information? 25 A: Yes, sir.
1211 Q: Okay. Now I take it and the point 2 that I was trying to make undoubtedly and perfectly 3 earlier on is that if based upon that information alone, 4 the Incident Commander had ordered an assault on the 5 kiosk you'd have some trouble with -- with that action 6 wouldn't you? 7 A: Yes, sir. 8 Q: All right. Now, then you were -- you 9 were asked about automatic weapons within the Park. 10 And again if -- based upon an informant's 11 story that there were a series of automatic weapons 12 within the Park the Incident Commander ordered that the 13 Park be stormed I take it you'd have some trouble with 14 that action based upon unvalidated information am I 15 right? 16 A: Yes, sir, you're right. 17 Q: If on the other hand the Incident 18 Commander made note of the allegation of automatic 19 weapons within the Park and -- and had his officers 20 proceed more cautiously with TRU support as they go down 21 the road that would be an appropriate recognition of 22 unvalidated information would it not? 23 A: Correct. 24 Q: Okay. Now, I want to ask you a 25 little bit about purported criticism of John Carson over
1221 losing the Park. 2 And you've told Commissioner Linden that 3 you didn't criticize the decision to withdraw the -- from 4 the Park or you didn't criticize the fact that John 5 Carson had insufficient resources in place to prevent the 6 takeover of the Park. 7 Do I have your evidence correct? 8 A: Yes, you do, sir. 9 Q: Now, you've told Commissioner Linden 10 that it was not known exactly when the Park would be 11 taken or if it would be taken. I want to ask you a 12 question in hindsight. 13 Are -- are you of the view that even with 14 the benefit of hindsight that John Carson should have 15 deployed sufficient officers in the Park indefinitely to 16 prevent the takeover of that Park? Does that make sense 17 to you? 18 A: No, sir. 19 Q: Why not? 20 A: We could have been there for months. 21 With no timeframe you wouldn't have the resources to 22 simply sit and wait and you could have put all the 23 resources you wanted in there and then it would have 24 simply been a matter of being outwaited until the 25 resources left. And then if that was still the intent
1231 they could have moved into the Park at any time. 2 Q: Okay. I want to ask you about two 3 (2) others areas if I may and that is that Mr. Falconer 4 suggested that you should be criticized for the dialogue 5 that took place between you and Inspector Linton about -- 6 about the politicians' views. 7 Do you remember being cross-examined about 8 that? 9 A: In general, yes, sir. 10 Q: Okay. And if I can take you back to 11 Tab 7, Exhibit 469 of the audiotapes page 50. 12 13 (BRIEF PAUSE) 14 15 Q: And we see at page 50 that there is 16 discussion about the fact that information went up on the 17 MNR side about the possibility of automatic weapons. It 18 went up there; the next thing you know, and I'm at page 19 51, the Deputy Solicitor General's office expressed some 20 concern that maybe we weren't doing the right thing and 21 then Marcel Beaubien, the Attorney General, and Mr. 22 Runciman are referred to as "follows". 23 Two (2) things arising out of that. The 24 first is how did the conversation turn to the political 25 views in your mind?
1241 A: Through the injunction. 2 Q: Okay. And Mr. Falconer suggested to 3 you and you agreed that political views were irrelevant 4 to whether the CMU should be sent down the road. 5 Was it irrelevant to the Incident 6 Commander whether and under what circumstances the 7 injunction would be granted? 8 A: It was relevant. 9 Q: Okay. Now, the other feature that 10 you haven't been asked by anyone about is this, that -- 11 that when you're commenting and -- and Inspector Linton 12 are commenting upon the political views we see in the 13 middle of the page: 14 "Marcel Beaubien was in tonight. He 15 had talked to the Solicitor General and 16 the Attorney General and they were 17 comfortable." 18 And then you say: 19 "Well, that's right. We called the 20 Commissioner tonight. He'd been 21 talking to Runciman and they were more 22 than pleased with what they the OPP 23 were doing. It was no problem there." 24 Now, first of all you've already made it 25 clear you didn't deal directly with your Commissioner,
1251 right? 2 A: Correct, sir. 3 Q: You didn't deal directly with Mr. 4 Runciman, right? 5 A: Correct. 6 Q: What actual contact took place is not 7 within your personal knowledge; am I right? 8 A: Correct. 9 Q: And when such contact took place, 10 again is not within your personal knowledge, and you've 11 made that clear, right? 12 A: Correct. 13 Q: But leave that aside for a moment, 14 I'm gong to suggest to you that the message that you were 15 communicating to Inspector Linton was that the 16 politicians were more than pleased with what the OPP had 17 been doing; is that right? 18 A: Correct. 19 Q: So when you understood that that had 20 taken place, whether you were right or wrong about it, 21 was before there had been any movement by the OPP down 22 that road, right? 23 A: Correct, sir. 24 Q: So if the politicians were pleased 25 with what the OPP was doing, as far as you were
1261 concerned, and you were communicating that to Inspector 2 Linton, they could only have been pleased with the OPP's 3 position in preserving the status quo and waiting for the 4 injunction? 5 I mean, can this be interpreted in any 6 other way? 7 A: No, sir. 8 Q: So we talk a lot, in theory, about 9 political pressures by -- by talking about what the 10 politicians think. The message that you were 11 communicating was that the politicians were quite happy 12 with the go-slow status quo, right? 13 A: That's correct. 14 Q: Now, the last topic that I want to 15 ask you about is -- is a systemic one and that has to do 16 with the recording of calls. 17 We've heard a lot of evidence about calls 18 recorded and unrecorded and first of all, I'll ask you 19 this, just from a factual perspective. 20 You've heard a series of phone calls, that 21 were recorded, that you thought were unrecorded at the 22 time; am I right? 23 A: I've heard a number of phone calls 24 that were recorded that I had forgotten about. I'd 25 forgotten, during the incident, which lines were recorded
1271 and not recorded. 2 Q: Fair enough. Are you concerned about 3 the contents of any of these calls that you've heard, 4 whether you knew they were recorded or unrecorded at the 5 time? 6 A: No, sir. 7 Q: Now, leave aside that factual point, 8 I want to ask you systemically about how to deal with the 9 recording of calls. 10 Because I personally find this a very 11 difficult area, from a systemic perspective. The 12 suggestion that's implicit in some of the questions that 13 have been put to you, is that every call that has an 14 operational feature to it should be taped, okay? 15 That's kind of a suggestion that's out 16 there. And what I want to be clear on is that 17 operational calls, and by that I mean a telephone call 18 that has as part of its content, operations, right? 19 Can take place to and from the TOC, the 20 mobile command centre; am I right? 21 A: Correct. 22 Q: And generally speaking, those were 23 taped at the time and it remains policy that those are 24 taped at present; am I right? 25 A: Correct.
1281 Q: And operational calls can take place 2 to and from the command vehicle manned by John Carson and 3 Kent Skinner from the TRU team. You were aware that he 4 was in a separate vehicle as the officers went down the 5 road; am I right? 6 If you weren't, that's fine. 7 A: Ken Skinner? 8 Q: Yes. 9 A: Yes. He would be separate, but 10 whether I -- where -- whether I was familiar with where 11 he was at the time, I can't say. 12 Q: But you're aware that John Carson was 13 in a separate vehicle? 14 A: Yes, sir. 15 Q: And -- and again, we can all agree 16 that -- that the incident commander is sending out 17 commands and receiving information from the officers that 18 are on the ground, reporting from the scene, those should 19 be taped, right? 20 A: We have the technology in place that 21 all those communications are taped. 22 Q: Okay. The part that I find 23 difficult is that we also know that operational 24 conversations could take place back at the command centre 25 in Forest, right?
1291 A: Correct. 2 Q: They could take place in the Forest 3 Detachment itself, which is just next door, right? 4 A: Correct. 5 Q: They could also take place on cell 6 phones that may have to be used, to and from officers 7 that are involved in the incident; am I right? 8 A: That's correct. We didn't have the 9 proliferation of cell phones back then, but there were 10 some. 11 Q: And we do now, certainly. 12 A: Yes. 13 Q: They could take place, in theory, to 14 and from the residences of the Commissioner himself, 15 Chris Coles, Tony Parkin and -- and other senior 16 officers, right? 17 A: Yes, sir. 18 Q: And recognizing, as we have to here, 19 that when things go wrong it's obviously preferable to 20 have as much operational communication recorded and 21 played at an inquiry as possible. 22 I'm just wondering if you have any 23 thoughts on whether it's possible or practical to suggest 24 that all operational communications, wherever or to 25 whoever, should be recorded?
1301 A: I don't believe it's possible, sir. 2 Q: Now I'm going to raise another issue, 3 and -- and this is apart from -- and I don't want to 4 characterize it as conspiratorial theories. 5 But -- but apart from suspicions that can 6 be cast upon the non-recording of events, one of the 7 concerns that -- that has been expressed in some evidence 8 already heard is that -- is that, for non-sinister 9 reasons, officers can be more candid about their 10 personnel and -- and about their views when they know 11 that a line is not going to be recorded for posterity. 12 Is that a fair comment? 13 A: That would be fair. 14 Q: So the challenge for Commissioner 15 Linden, I'm going to suggest to you, is to devise 16 guidelines as to what kinds of operational calls should 17 be recorded, as opposed to every single call that has an 18 operational feature. 19 Is that a -- is that a fair summary of 20 where we're at? 21 A: That would be fair, sir. 22 COMMISSIONER SIDNEY LINDEN: That's not 23 only a challenge for me, it's a challenge for the OPP. 24 MR. MARK SANDLER: Well, we're going to 25 have some ideas about how you might do that.
1311 COMMISSIONER SIDNEY LINDEN: Yes. 2 3 CONTINUED BY MR. MARK SANDLER: 4 Q: And what we know for sure is that, at 5 the very least, the core of the operation itself should 6 be recorded. In other words, when the officers are at 7 the scene, they're involved in an altercation, the 8 radioing back information or instructions and 9 instructions are being provided, that information just 10 has to be recorded, there's no two-ways about it; am I 11 right? 12 A: Yes, sir. And I believe it is. 13 Q: And similarly, when individuals, 14 third parties are calling in from the scene or with 15 information about the scene or with a complaint or with 16 concerns or in a 9-1-1 call, those are the kinds of calls 17 that just have to be recorded, whatever we do, right? 18 A: We certainly would want those, but 19 there is always a limit to the capacity within the 20 command post for incoming calls. And this is one of the 21 issues that I was speaking to is -- it's normal -- I 22 shouldn't say normal. 23 But many times, in a lot of serious 24 occurrences, we had the need to put in more lines than we 25 presently had at the Detachment, simply because we knew
1321 that down the road we would be maxed out and we would 2 have an inability to get a hold of the Incident Commander 3 or others when we needed them. 4 Q: So you've anticipated my -- my last 5 question. And that is that when you had expressed the 6 concern on the tape about what might happen down the 7 road, what was figuring most prominently is -- is 8 capacity as opposed to concern about recording or un- 9 recording of lines; is that right? 10 A: That's correct, sir. 11 Q: Okay. Thank you, those are all the 12 questions I have. 13 COMMISSIONER SIDNEY LINDEN: Thank you, 14 Mr. Sandler. Do you have any re-examination, Mr. Worme? 15 MR. DONALD WORME: I do not have any re- 16 examination, Commissioner. 17 COMMISSIONER SIDNEY LINDEN: Well, we can 18 break for lunch now. Just before -- 19 MR. DONALD WORME: All right. And I 20 would thank -- I would thank Mr. Parkin for his 21 attendance here and for giving us his testimony. 22 COMMISSIONER SIDNEY LINDEN: Thank you 23 very much for coming and giving us the benefit of your 24 experience and your testimony. Thank you. 25 THE WITNESS: I hope I've been of
1331 assistance, sir. 2 3 (WITNESS STANDS DOWN) 4 5 COMMISSIONER SIDNEY LINDEN: Thank you. 6 Now here we are ready to break for lunch. When we come 7 back it will be approximately half past 2:00 and we have 8 to try to finish up, right? 9 It's one o'clock. We only have the 10 afternoon to finish McCabe. 11 If all the estimates that were made last 12 week are maxed out, as it were, we would be a little over 13 that. So we'll have to see what we can do to finish 14 McCabe this afternoon, even if it means that we have sit 15 a little later. 16 So we'll break for lunch now, thank you. 17 MR. DONALD WORME: Thank you. 18 THE REGISTRAR: This Inquiry stands 19 adjourned until 2:15. 20 21 --- Upon recessing at 12:57 p.m. 22 --- Upon resuming at 2:15 p.m. 23 24 THE REGISTRAR: This Inquiry is now 25 resumed. please be seated.
1341 TIMOTHY ST. CLAIR MCCABE, Recalled 2 3 COMMISSIONER SIDNEY LINDEN: Welcome 4 back, Mr. McCabe. 5 THE WITNESS: Thank you, sir. 6 MR. DONALD WORME: Perhaps before we 7 commence, Mr. Commissioner, I would invite Ms. Twohig 8 just up to the microphone. She has a couple of comments 9 just relative to the documents that we'll be looking at. 10 MS. KIM TWOHIG: Thank you, Mr. Worme. 11 Mr. Commissioner, I thought it might be helpful to 12 explain to you and to the Parties why these notes 13 surfaced when they did. 14 Mr. McCabe had left a file when he left 15 the Crown Law Office Civil and the handwritten notes were 16 in the file over which privilege had been claimed because 17 it had appeared to everyone that these were notes that 18 Counsel had made in the course of preparing for -- for 19 court. 20 After other witnesses had testified and 21 gone through their notes of the meeting of September 6th 22 and while we were engaged in our ongoing review of 23 documents over which privilege was claimed it appeared to 24 me that these notes might be notes made from the 25 September 6th meeting. Mr. McCabe had no recollection of
1351 making any notes as he testified earlier but given the 2 sequence I showed them to Mr. McCabe again and we thought 3 that perhaps they had been made at that meeting. 4 And there were a few other notes I think 5 after the first couple of pages that seemed to relate to 6 the events about which evidence had been given by Mr. 7 McCabe and by other witnesses. 8 So I just wanted to assure you and to 9 assure My Friends that these notes were produced as soon 10 as it became apparent that they might relate to the 11 evidence that had been given and that Mr. McCabe had 12 never taken them anywhere or failed to disclose them for 13 any reason. Thank you. 14 COMMISSIONER SIDNEY LINDEN: Thank you 15 very much, Ms. Twohig. Now, I presume you want to take 16 us through these, Mr. Worme, examine him in-chief on 17 these documents? 18 MR. DONALD WORME: I do, Mr. 19 Commissioner. 20 21 EXAMINATION-IN-CHIEF BY MR. DONALD WORME: 22 Q: And perhaps -- what we have here are 23 two (2) -- essentially two (2) documents. One is a six 24 (6) page set of handwritten notes which I would ask Mr. 25 McCabe if he would take a look at these notes. You have
1361 the same as -- as I think we all do. It looks like at 2 the top of page 1, what looks like Bert Manning? 3 A: Yes. 4 Q: First of all do you acknowledge that 5 this is your handwriting, sir? 6 A: Yes. 7 Q: And these are the notes that you 8 disclosed in the course of -- pardon me, that you're -- 9 that -- that were disclosed to the Commission through 10 your Counsel that she just spoke to? 11 A: Yes, I suppose so. I -- I don't 12 think I've seen these notes since the day I made them, 13 but... 14 Q: You've had a chance to review them 15 however before testifying here -- 16 A: Yes. 17 Q: -- at this moment? 18 A: Yes. 19 Q: And I wonder, before I refer to them, 20 Mr. Commissioner, if I could ask that they be made simply 21 the next exhibit then I will take the Witness to them. 22 THE REGISTRAR: P-1073, Your Honour. 23 COMMISSIONER SIDNEY LINDEN: P-1073. 24 25 --- EXHIBIT NO. P-1073: Handwritten notes of Mr. Tim
1371 McCabe. 2 3 CONTINUED BY MR. DONALD WORME: 4 Q: Mr. McCabe, perhaps it might be 5 helpful if you would just take us through these notes. I 6 know that some of the parties had some difficulty reading 7 some of the -- the handwriting. 8 A: Right. 9 Q: It's not a criticism, but it is a 10 personal -- personal preference -- 11 A: Right. 12 Q: -- and you might just assist us by 13 going through these if you would please. 14 And if you could tell, us while you're 15 going through, them at when do you recall, if you do, 16 making these notes, what are they in relation to? 17 A: I don't recall making these notes. 18 They're certainly mine though. It's certainly my 19 handwriting. The -- the first page and a half, perhaps 20 the first two (2) pages appear to me to relate to the 21 meeting, the Interministerial Committee Meeting, on 22 September the 6th. Certainly the -- it would appear 23 certainly the first page and the second page down to 24 about the middle -- 25 Q: Where it says, "list of names"?
1381 A: Yes. Now, from "list of names" down 2 I'm not sure whether these are my own scribblings at some 3 later point or whether this also -- whether I wrote those 4 lines also at the -- at the meeting on the 6th. 5 Q: Just so I'm clear, Mr. McCabe, before 6 we move on, you're looking at the second handwritten page 7 of the handwritten notes; it commences at the top with 8 "MNR" which is underlined? 9 A: Yes. 10 Q: And your evidence is is that starting 11 at the middle of the page from list of names down to the 12 bottom, They have been made at the same Interministerial 13 Committee meeting on the 6th of September 1995? 14 A: Yes. They -- they may have been it 15 appears to me. Then at some point certainly, it -- they 16 seem to be, my jottings as the week went on, I'm not sure 17 about the next page; that might have been the evening of 18 September the 6th at some point. 19 This is the page where a couple of phone 20 numbers -- or three (3) phone numbers have been redacted 21 at the top. Opposite the phone numbers it says "Command 22 Post pager cell". 23 Q: All right, I'm with you. 24 A: And then it says "Inspector John 25 Carson." I'm not sure when that was made. As I say it
1391 may have been the evening of the 6th. It may have been 2 the next day or at some later stage. 3 The next page where it -- at the top it 4 says "Gordon Peters", this would appear to be after the 5 injunction proceeding on the 7th. Or could well have 6 been after the injunction proceeding on the -- on the 7 7th. 8 The final page where the first line -- is 9 it the final page? The sec -- the second to the last 10 page where the first line is, "Shows that we had some 11 empathy" this in my view is almost certainly on the 12 Sunday afternoon, September the 10th. 13 I think as I mentioned last time that I 14 was here, I received instructions that Sunday. Until 15 that point I had been proceeding to get ready to appear 16 before Judge Daudlin in -- in Sarnia on the Monday, on 17 the -- on the return of the matter in order to obtain an 18 order extending the injunction. 19 But on the Sunday, I received instructions 20 to withdraw the motion the next day and it seems almost 21 certain that this page, 'Shows some empathy', and so 22 forth has to do with discussions that -- that day, on 23 Sunday the 10th. 24 And the last page I have no idea, nor do I 25 know whether these sheets are in the order in which they
1401 were originally created. 2 Q: All right, fair enough. There are no 3 page numbers on them but that I think is your 4 recollection, at least insofar as you could surmise 5 having reviewed these notes as to when they may have been 6 made. 7 A: Right. 8 Q: I appreciate you can't be anymore 9 particular than that. But having said that, might we 10 take a moment, simply to go through again in the very 11 general way, just the -- the nature of the -- of the 12 notes themselves? 13 A: Yes. 14 Q: So we understand your handwriting it 15 starts out "Bert Manning" and am I right in saying that 16 the next entry is "have made no demands"? 17 A: Yes. 18 Q: It's our land. In quotation marks 19 "our land"? 20 A: Yes. 21 Q: All right. The note just to the 22 right of that, can you just read -- read that for us 23 please? 24 A: Yes, if you'd like I can -- I think I 25 can read pretty much everything that's said here. I can
1411 -- I can take you through it if you want me to do that? 2 Q: Why don't we do that. 3 A: All right. 4 Q: Thank you. 5 A: "Do they say the surrender of the 6 land to the Crown was bad? [question 7 mark] 8 Have said there is a burial ground. 9 Numbers thirty (30) to forty (40): 10 [colon] list of names. 11 Do we have any names? Chief of the 12 Band splinter group, affidavit? [with a 13 question mark] 14 Have no sanction of the Band. 15 Minor damage. Weapons charge. What 16 charges? [question mark] 17 A flare. Warrants for arrest of three 18 (3) people: [colon]" 19 And then the arrow of course goes up to 20 where it says: 21 "What charges? 22 Fire on the Army Road. Officers were 23 stoned when they went in to 24 investigate." 25 Or:
1421 "...when they went to investigate. No 2 injuries. Minor damage to vehicle. 3 Meeting at noon today: [colon] 4 Inspector Carson, delivery of a 5 document, will be asked to lead. 6 Alcohol use. OPP affidavit? [question 7 mark] OPP service? [question mark] 8 Information. Sworn three (3) 9 individuals. Warrants for arrest." 10 Over on the next page: 11 "MNR. Reports of automatic gunfire. 12 Heavy equipment work? Buildings have 13 been broken into. Are being used. 14 Great fear [I've stroked out the word 15 'fear'] apprehension, alarm. 16 Campers [I've stroked that out] 17 cottagers, MNR staff in jeopardy even 18 though public is out of the Park. 19 List of names. [there's a checkmark] 20 Affidavit from OPP? [checkmark] 21 OPP service? Who can we talk to re. 22 content of Affidavit? 23 Succinct information about gunfire. 24 Threats to safety. The charges. Do 25 you have a note that we can work from?
1431 Fifty (50) to one hundred (100) rounds 2 of gunfire. None brandished during 3 takeover." 4 Then on the next page, as I say: 5 "Command post pager cell. Inspector 6 John Carson. 7 I'm not entirely sure of the next word, I 8 -- it's probably 'western.' 9 "Incident commander level 2 allows him 10 to take charge of response to incidents 11 by tactical team from 1993 on. List of 12 names." 13 And the next page: 14 "Gordon Peters, Les Kobayashi, 8:05 15 Friday a.m. Court office Sarnia." 16 I think that's 519. 17 "Eileen Hipfner, S. Hutchinson* [with a 18 asterisk] pub ban." 19 I think this is publicity ban. 20 "1. Police have any concerns re. what 21 was said in the Motion evidence? 22 2. Did police officer who gave 23 evidence subject to cross-examine?" 24 And then I say: 25 "Yes, Detective Sergeant Wright."
1441 I -- I'm interpreting that as questions 2 that Scott Hutchinson asked me at some point and then I 3 think those are my answers, "yes" and "Detective Sergeant 4 Wright." 5 "Notice of Motion? Motion record. 6 Chief Superintendent Coles. Ron Fox. 7 RB-1, relay of material to check 8 [perhaps] check 1 point. 9 3. [or sorry, yeah], 3. Sarnia Monday. 10 Pager Larry Taman, Marc Rosenberg, 11 Inspector Jim Potts." 12 Next page: 13 "Shows that we have some empathy. 14 Provides a valuable bargaining chip. 15 Larry Taman: Very good idea. RFX's... 16 [I think that probably means Ron Fox's] 17 two (2) points. Take a longer view. 18 This shooting has, I expect, set back 19 relations between the Crown and 20 Aboriginal peoples years. Was no great 21 shakes before, now infinitely worse. 22 And further the moral balance, in the 23 eyes of the public, has, I think, 24 probably shifted in the direction of 25 the Aboriginal peoples.
1451 I'm not restricting that to this 2 incident, I mean across the Board. 3 Coles thought it inappropriate, indeed 4 inadvisable, to serve. Adjournment is 5 the right idea. 6 Inspector Jim Potts. Committal of page 7 25-38 and short for the Plaintiffs." 8 Q: All right. Thank you, Mr. McCabe. 9 Just turning back to the first page of P-1073, am I right 10 in assuming that you would be recording information as 11 the meeting is progressing, and on the right side of the 12 page where there seems to be separate entries with 13 question marks, those perhaps might be your own questions 14 that you would need answers as you begin to think about 15 the task that you were assigned? 16 A: That's quite possible, yes. 17 18 (BRIEF PAUSE) 19 20 Q: And aside from what you've told us is 21 the interpretation of this writing, you don't have any 22 recollection of making these, and you can't tell us 23 beyond what you've already spoken to as to the timing of 24 the creation of these -- of these notes? 25 A: That's correct.
1461 Q: All right. You were subsequently 2 responding to a request, and this is -- I'm referring you 3 now to the document you will have in front of you, it's a 4 memorandum dated March the 5th of 1996 and it is 5 addressed to Yan Lazor, Assistant Secretary, Ontario 6 Native Affairs Secretariat re. Ipperwash Provincial Park 7 occupation. 8 Do you have that? 9 A: Yes, I do. 10 Q: And this is a document that you would 11 have prepared at the insistence of Mr. Lazor, at the 12 request of Mr. Lazor perhaps? 13 A: Yes. 14 Q: And I wonder if I might just ask you 15 if you would go through that and without maybe looking at 16 every specific phrase, if you can tell us generalities 17 the -- the nature and content of this? 18 What were you responding to and what was 19 it that you were doing in this memorandum? 20 A: I can't remember specifically what 21 the request was. Of course it -- as is indicated in the 22 first page, the first sentence, it appears that it was a 23 request from Yan Lazor of the previous day March the 4th. 24 This, as I recall, is my first involvement 25 in the matter after September the 11th, 1995, or the
1471 immediate aftermath of that. It's possible that I had 2 some phone conversations or some -- or something of that 3 sort, you know, the next day, September the 12th, as to 4 what had happened on the 11th. 5 But thereafter, until now, the beginning 6 of March of 1996, I was not consulted, I had no work 7 assigned to me in relation to the matter and neither was 8 I informed about any deliberations, either, within the 9 Government or the -- the Government of Ontario and -- and 10 other parties who were involved in this. 11 So my first occasion to revisit the matter 12 is this memo. I'm sure that in the -- in the -- you 13 know, for the first week or perhaps, you know, days or -- 14 or weeks after September the 11th I was alert to the 15 possibility that there may very well be a -- a, you know, 16 another request to -- to seek an injunction again. 17 And I know that I've seen, in -- in 18 preparation for -- for testimony in -- in September, a 19 memo that Elizabeth Christie of our office prepared on 20 the question of the possible effective delay in seeking 21 another injunction. 22 So it's -- it's possible that in our own 23 deliberations within the Crown Law Office or our 24 conversation at some point, either I suggested to 25 Elizabeth that she might want to look into that or she
1481 suggested it and I agreed that, Yes, why don't you do 2 that, because I'm sure that we anticipated the 3 possibility but we were not directed to do so, and as I 4 say we were not consulted or -- or informed about -- 5 about the matter. 6 And so here we are in -- in March of 1996 7 and I have, you know, a pretty indistinct memory, but I 8 do have a memory of writing this memo. I can't remember 9 whether, you know, I got a -- a note from Yan or whether, 10 you know, just a phone call or -- or, you know, my 11 secretary told me that -- or my assistant as we -- as we 12 say these days, but ask me whether I should -- ask -- Yan 13 Lazor had called and asked this be done, but I do 14 remember preparing this -- this memo. 15 Q: And it's obviously in connection with 16 the remedy that was being sought and you go on to opine 17 as to what the -- the Province may do and -- and what 18 they would encounter in terms of their attempts to obtain 19 that particular kind of remedy. 20 A: Yes. 21 Q: You speak on -- on page 2, for 22 example, of the interlocutory injunction, the need for 23 service, and then you set out a variety of or a test, 24 rather, for what would be required in order to obtain 25 that sort of remedy?
1491 A: Right. 2 Q: Similarly, on page -- at the bottom 3 of page 2 you then speak about some of the other 4 requirements including affidavit evidence, what you were 5 going to need in terms of the contents of those -- of 6 those affidavits? 7 A: Yes, I -- I took it that Yan Lazor, 8 who is a lawyer in addition to being, as it says at this 9 time, Assistant Secretary Acting of the Ontario Native 10 Affairs Secretariat, he's a lawyer. And I -- and I took 11 it that he was involved in deliberations within the 12 Government in some way at some remove, in any event, as 13 to -- as to the matter, continuing occupation of the 14 Park, which I took to be continuing to exist. 15 And so what I was trying to do here, I 16 think, as I look at it, is to help Yan to, you know, here 17 -- here is a memorandum, it's all very common place, you 18 know, much of it is very obvious and so forth, but these 19 are some of the things that you're probably going to want 20 to have before you when you discuss with, whomever, the 21 possibility of seeking an injunction again. 22 Q: And as legal counsel, it was your job 23 to lay this out and, in fact, you do so. 24 A: That's right. 25 Q: For the most part I -- I would
1501 suggest, Mr. McCabe, that much of this will be 2 uncontroversial. I do think, however, that there may 3 well be some interest at the bottom of page 3 under, 4 "Prerequisites," of a motion for interlocutory 5 injunction. 6 Do you see that where they -- 7 A: Yes. 8 Q: "There are several issues that the 9 Government resolve internally and one 10 step that it must take before bringing 11 such a motion..." 12 And then you set out a number of issues. 13 And then the first issue, I wonder if you would just go 14 ahead and take a look at that and speak to it, if you 15 would, please? 16 A: Yes, well, you know, I thought it was 17 important in -- in that the Government understand that 18 one of the things that was going to occur, in all 19 likelihood was going to occur, if a -- if a motion for an 20 injunction were brought, was that there would be cross- 21 examination of, for example, the OPP witness on the -- on 22 the police operations on the -- on the night of September 23 the 6th. 24 And so weighing in the balance as to 25 whether to proceed with the injunction or not, that was -
1511 - it seemed to me is probably one of the things that the 2 Government wants to take into account. 3 Whether it wants to proliferate the forums 4 in which this matter would be dealt with. I mean, it 5 appears, as I read this, that -- that at even at this 6 point I was -- I was aware, not surprisingly, that there 7 was at least one civil action that had been brought. 8 I don't know as to what -- what the state 9 of the criminal proceedings or possible criminal 10 proceedings was at this point, but I wouldn't be at all 11 surprised if it wasn't very much in the air. 12 And of course, there would be other -- 13 other investigations and other, you know, internally with 14 -- involving -- involving the police, I'm sure, a 15 coroner's inquest, things of that sort. 16 There are sure to be a number of 17 investigations into -- into those -- into those tragic 18 events that night. And if this step is taken, this is 19 another one. 20 Q: All right. Aside from that sort of 21 strategic consideration that the Government should engage 22 in, you go on to provide them with other information and 23 advice. 24 Do you wish to take a moment to speak to 25 any of those comments?
1521 A: Well, I speak of an overall strategy 2 for the resolution of the Park issue, part of which 3 strategy would be the injunction proceeding. 4 I guess it goes without saying but I 5 wanted to say it anyway, that the injunction proceeding 6 is not the, you know, is not the -- is not a -- a panacea 7 here, this is not going to, by itself, resolve the 8 matter. 9 And so I speak of -- well, the burial 10 grounds investigation, by this time, of course, in -- in 11 the days following the events of the previous September, 12 the Federal Minister had -- had produced a -- this letter 13 from the 1930's, I believe, about the burial ground and 14 so forth. 15 And this had taken on -- and this had 16 taken on some -- some -- some fame. So the burial ground 17 business was going to be front and centre of anything 18 that was going to occur at this point. 19 And I also said: 20 "The Government should have a clear 21 idea of the reasons for its view that 22 an interlocutory injunction is 23 necessary in order to resolve the 24 problem, in light of the fact that 25 there's probably offences of one sort
1531 or another that are -- that are being 2 committed." 3 And of course the -- there's always the 4 possibility, I think, well it occurred to me that there 5 was the possibility that a judge may well take the view 6 that I -- I -- you know, why are you bothering me in a 7 civil forum with this. 8 But, you know, when -- when then are more 9 straightforward matter -- matters -- proceedings that 10 could be taken. 11 And then the issue of enforcement; you'll 12 recall, Mr. Worme, that -- that Judge Daudlin, in 13 September, had been concerned about that very issue, 14 right? Is this going to make it worse? 15 And, you know, it's, you know, injunctions 16 are always a matter of discretion and a Judge could very 17 well take the position, at this stage, that, you know, 18 getting an injunction, I don't -- he could -- he or she 19 could take the view that, I don't see how this is going 20 to help resolve the situation. 21 I'm going to -- just another thing that 22 the -- that the people who would be making this decision 23 should keep in mind about the nature of injunctions and-- 24 Q: Right, thank you. 25 A: -- its discretionary nature. And the
1541 third thing: 2 "The cooperation of the OPP in the 3 endeavour will have to be enlisted." 4 And I list, I think, several -- four (4) 5 things that -- where the OPP would -- would be involved. 6 And there -- it could be read: 7 "First it would be necessary for the 8 OPP to provide Affidavit evidence about 9 the occupation last September and 10 thereafter and about the negotiations 11 and agreements of last September. 12 Secondly, it might have a role to play 13 in service of documents. 14 Thirdly, it would almost certainly play 15 an important role in enforcement of any 16 injunction granted. 17 Fourthly, it might have reservations 18 about the judicial forum matter 19 mentioned above." 20 And then it's necessary for a step that I 21 refer to and this really revolves around a letter, which 22 would, you know, sort of, at this stage, be -- that the 23 Government would communicate with the -- with the people 24 in the Park, or their representatives. 25 I -- I don't know whether, at this stage,
1551 there was counsel or other agent, you know, that the 2 Government could deal with but, in any event, whoever 3 would act for the people in the Park or, indeed, the 4 people themselves, needed to be communicated with, it 5 seemed to me, before this step would be -- should be 6 taken. 7 Q: All right. Thank you, Mr. McCabe. 8 You mentioned that your last involvement was your 9 attendance at Court on the 11th of -- 10 A: Yes. 11 Q: -- September 1995, prior to this memo 12 that you wrote in March of '96? 13 A: Yes. 14 Q: Did you have any further involvement 15 in this matter, Mr. McCabe? 16 A: No. 17 Q: All right. I don't have any further 18 questions of this witness on -- 19 COMMISSIONER SIDNEY LINDEN: Thank you. 20 MR. DONALD WORME: -- the narrow 21 examination. 22 COMMISSIONER SIDNEY LINDEN: Thank you, 23 Mr. Worme. 24 The first person who indicated an 25 intention to question Mr. McCabe on these matters was Ms.
1561 Twohig. Do you still have any questions? 2 MS. KIM TWOHIG: Mr. McCabe is my client. 3 I have no questions. 4 COMMISSIONER SIDNEY LINDEN: Then the 5 next person, Mr. Alexander? 6 MR. BASIL ALEXANDER: Mr. Commissioner, 7 we can advise that we anticipate our Friends will cover 8 most of our areas, so we have no questions for Mr. 9 McCabe. 10 COMMISSIONER SIDNEY LINDEN: Thank you. 11 I think the next person is Ms. Esmonde. 12 13 (BRIEF PAUSE) 14 15 COMMISSIONER SIDNEY LINDEN: Mr. 16 Rosenthal made a time estimate on your behalf. Perhaps I 17 should ask you how long you anticipate you might be. 18 MS. JACKIE ESMONDE: Given the 19 examination of Mr. Worme, I will be able to cut down. I 20 believe about thirty (30) minutes, perhaps less. 21 COMMISSIONER SIDNEY LINDEN: Thank you. 22 23 CROSS-EXAMINATION BY MS. JACKIE ESMONDE: 24 Q: Good afternoon, Mr. McCabe. As you 25 may have heard, I'm co-counsel to Mr. Peter Rosenthal who
1571 cross-examined you on the last day you were here. 2 A: Yes. 3 Q: And I will be asking you some 4 questions on behalf of the Aazhoodena and George Family 5 Group. 6 If we could start with your handwritten 7 notes. 8 A: Yes. 9 Q: Which have now been marked as P-1073. 10 Now, on the first page, it's your -- it's your best guess 11 that these notes were made in the course of the September 12 6th, 1995 Interministerial Committee meeting? 13 A: Yes. 14 Q: And have you had an opportunity to 15 compare the notes here with the other handwritten notes 16 of other participants in the meeting? 17 A: I haven't done so, no. 18 Q: Okay. On -- on what basis, then, do 19 you surmise that these were the -- the -- your notes made 20 during the course of the Interministerial Committee 21 meeting? 22 A: Prior to my visit here in September 23 last year, I then, at that point, had an opportunity to 24 read a collection of handwritten notes that other 25 participants in that meeting had taken, and I was
1581 congratulating myself for having the presence of mind not 2 to have taken any. 3 Q: Well, if I could, I'd like to put 4 before you the handwritten notes of Ms. Eileen Hipfner. 5 These are P-636 in this proceeding, Inquiry Document 6 1011784. I just have one (1) copy. Perhaps the Exhibit 7 copy could be placed in front of the Witness and I have a 8 copy for Mr. Commissioner. 9 10 (BRIEF PAUSE) 11 12 Q: This is for Mr. Commissioner. 13 I -- I bring this to your attention just 14 so that we can have some certainty with respect to 15 whether these are indeed the notes that you made during 16 the course of the Interministerial Committee Meeting. 17 A: Yes, I -- I don't think this is the 18 exhibit that you had in mind. 19 Q: It should be 636. 20 COMMISSIONER SIDNEY LINDEN: Those are 21 the notes of Ms. Hipfner. 22 23 (BRIEF PAUSE) 24 25 CONTINUED BY MS. JACKIE ESMONDE:
1591 Q: Okay. You have the right notes now, 2 sir? 3 A: Yes. 4 Q: Okay. If I could turn your attention 5 to, under Item Number 2, "Update (a) OPP Ron Fox." 6 A: Yes. 7 Q: And you will have had an opportunity 8 to have reviewed these prior to your testimony in 9 September, but you'll see it begins by discussing an 10 interim spokesman Mr. Bert Manning. It goes on to talk 11 about a meeting between the OPP and Stoney Pointers is 12 scheduled for noon today. Having made no demands. 13 Asserted it's their land. 14 Have raised issue of burial grounds? 15 A: Yes. 16 Q: And then it goes on to say: 17 "Number estimated by police thirty-five 18 (35) to forty (40)." 19 A: Yes. 20 Q: And comparing that -- that to the 21 notes that you made, you'd agree with me that those -- 22 there's very similar notations that are made in your 23 handwriting and following the same chronology there? 24 A: Yes, that appears to be the case. 25 Q: And can you agree with me then that
1601 it -- it's quite certain that these are, in fact, the 2 notes that you made in the course of the September 6th, 3 1995 meeting? 4 A: Yes, it certainly appears to -- to me 5 to be the case, yes. 6 Q: And in terms of your note taking 7 practices, is it fair to say that you would have -- you 8 would have made notes of those items that came up in the 9 meeting that would have particular relevance to you, 10 keeping in mind that you had to prepare an injunction 11 application following the meeting? 12 A: Well, that makes sense, yes. 13 Q: Yes. Is that, in general, your 14 practice in taking notes at meetings? 15 A: I -- I think it's right to say I was 16 a very bad note taker and particularly at a meeting like 17 this one where I was accompanied by a competent colleague 18 like Elizabeth Christie who I knew would take notes of -- 19 of what had occurred. 20 Q: Okay. Now, I'm interested in you 21 notation on the right-hand side that you've interpreted 22 for us as saying: 23 "Do they say the surrender of the land 24 to the Crown was bad?" 25 A: Yes.
1611 Q: And I take it you wrote that notation 2 in your notes beside the comment, "It's our land," 3 because it raised, in your mind, the question of whether 4 the people in the Park were questioning the validity of 5 the surrender. 6 A: Yes, that seems likely. 7 Q: And I take it then, based on your 8 evidence from the last time you were here in September, 9 you did nothing to follow up on the question of whether 10 the people in the Park viewed the surrender as invalid? 11 A: No, I didn't follow up on that issue, 12 no. 13 Q: And you did not ask anybody else to 14 do so? 15 A: No, I asked MNR to produce an 16 affidavit setting out, recounting the title history of 17 the Park. 18 Q: Right. And you'd agree with me that 19 that affidavit operated on the assumption that the 20 surrender was good? 21 A: Yes. 22 Q: There was no question as to the 23 validity of the surrender? 24 A: Yes. 25 Q: And I believe it was determined, when
1621 you were here in September, that over the course of the 2 injunction hearing there was no explicit information put 3 before the judge who heard that injunction application, 4 that this comment,"it's our land," had been made. 5 A: I -- I can't remem -- I can't 6 remember what the, you know, the course of -- of -- of 7 my, you know, the evidence during my appearance last time 8 was. 9 It certainly seemed to me at the time, 10 that is in 1995, and also when I was here last September, 11 that no one was under any illusion, whatever, that the 12 people in the Park, in some sense, thought that this was 13 their land or ought to be their land. 14 Q: Yes, you did make comments to that 15 affect when you -- 16 A: Right. 17 Q: -- were here in September. But with 18 re -- obviously you attached some importance to the 19 comment "it's our land," and it raised in your mind the 20 question of whether the people in the Park questioned the 21 validity of the surrender. 22 A: Yes. 23 Q: And that's a more -- that's a 24 somewhat different statement than the fact that they were 25 in the Park in and of itself suggested that they felt
1631 that the -- that the land was theirs. 2 A: Well yes. The issue of whether the 3 surrender is valid is a -- is another issue. It's 4 certainly related to the question of what was in the 5 minds of the -- of the people in the Park. 6 But, yes, it is another issue, or it's a 7 related issue. 8 Q: Well, it's a -- it's a critical 9 issue, is it not, if -- if the surrender was not valid, 10 then they could be lawfully occupying the land, correct? 11 A: Yes. Well, the critical issue here 12 is whether there had been any determination or any even 13 claim 14 that the -- that the surrender was -- was invalid in any 15 way. 16 I mean that's the issue that's going to be 17 -- that -- that -- well that might be of concern to the 18 judge the next day. 19 Q: Precisely. 20 A: Yeah. 21 Q: And I -- I take it you maintain the 22 position today that you did in September 1995, that you - 23 - you believed that you met your disclosure obligation to 24 provide the court with as much detail about the position 25 that would be put forward by the respondents to the
1641 application? 2 A: Yes. 3 Q: And you do so even though I've drawn 4 your attention to this notation in your notes, that in 5 your own mind you were wondering whether or not the 6 people in the Park were questioning the validity of the 7 surrender? 8 A: Well, yes. 9 Q: Now you've described to us how after 10 September 7th, 1995 and before September 11th, 1995 a 11 decision was made that the injunction application would 12 be withdrawn, and you've described the conversation that 13 you had with Mr. Taman. 14 A: Yes. 15 Q: Which is, I believe, on the -- you've 16 made some notations on the fifth page of your notes. Now 17 I'd like to -- could you explain for us a little bit 18 further about your notations at the top of the page where 19 it says: 20 "Shows that we have some empathy. 21 Provides a valuable bargaining chip." 22 What is that in reference to? 23 A: I don't know. I noticed that the 24 second line after "Larry Taman [colon]:" says Ron Fox and 25 his two (2) points. In fact, it said two (2) 'good'
1651 points. And I stroke out the word 'good.' 2 So it seems possible that the two (2) 3 points at the top were somehow communicated to me that 4 day, whether in a conversation with whom, I don't know, 5 that this was Ron Fox's view. 6 I mean that's -- that seems to follow from 7 -- from this -- this -- these notes. But I don't know 8 that. That's -- that's conjecture just based on -- on -- 9 on what I see here. 10 Q: Okay. As -- as I understand what 11 you're saying, you're not sure who would have made these 12 comments? 13 A: Yes. 14 Q: That you've recorded at the top? 15 A: Yes, I'm not sure. 16 Q: But am I correct in interpreting it 17 that withdrawing the injunction application shows that we 18 have some empathy. 19 Is that how that should be read? 20 A: I expect so, yes. I think that the 21 context for everything that's on this page, is 22 deliberations about the issue of whether there should be 23 a withdrawal of the injunction. 24 Q: Okay. And what is it that provides a 25 valuable bargaining chip?
1661 A: I don't know. 2 Q: Was it the injunction that provides a 3 valuable bargaining chip? 4 A: Was it the injunction? 5 Q: The injunction application itself. 6 A: I don't know. The co -- again, I -- 7 this is conjecture at this point. But I would think that 8 the -- that the context of those two (2) points up there 9 is that the withdrawal that the -- that these two (2) 10 lines describe, the effects or the possible effects of 11 the withdrawal, rather than the injunction, I would 12 think. 13 Now how that works, I'm not sure, but... 14 Q: Oh, I see. So you read that as of 15 the withdrawal of the injunction application provides a 16 valuable bargaining chip? 17 A: Well, it's just that I think what's 18 going on on this page is discussion of -- of the 19 withdrawal of the injunction. 20 So it seems to me it's a reasonable 21 conjecture, though it is only that, that that's what's 22 being addressed here. 23 Q: Now at this point, when you were 24 having this conversation with Mr. Taman, the Motion 25 materials had still not been served on the people in the
1671 Park, correct? 2 A: That's correct. 3 Q: And that was, in part, because the 4 OPP had refused to serve the materials on the people in 5 the Park? 6 A: I can't remember whether the OPP 7 refused at any point. I know that the OPP, on the 8 Saturday, had picked up, at my office at 720 Bay Street, 9 the material for service. And I think on the previous 10 page it talks about relay, I think. 11 And the idea was that the officer from 12 Toronto was going to relay the material down and -- into 13 Western Ontario and eventually would be delivered to 14 Forest, and eventually would be served. 15 I can't remember today, you know, what 16 information had come forward, either Saturday night or 17 Sunday, as to whether the OP was refusing to -- had 18 refused or decided it was not a good idea to serve, or 19 whether they simply hadn't don't it yet at this point. 20 So to speak of refusal may be a little 21 misleading, but I'm not -- but I'm not sure. 22 Q: Okay. Can I turn your attention to 23 the memorandum from March of 1996, then. 24 MR. DONALD WORME: Perhaps maybe if I can 25 just interrupt briefly. I should have asked to have this
1681 marked as the next exhibit, but I'm not sure I did. 2 MS. JACKIE ESMONDE: I believe it already 3 is an exhibit, that's -- 4 COMMISSIONER SIDNEY LINDEN: I think this 5 letter is already marked -- 6 MS. JACKIE ESMONDE: -- P-763. 7 COMMISSIONER SIDNEY LINDEN: I believe. 8 MR. DONALD WORME: Thank you. 9 COMMISSIONER SIDNEY LINDEN: I'm sorry, 10 what's the number. 11 MR. DONALD WORME: 7 -- 12 MS. JACKIE ESMONDE: P-763. 13 COMMISSIONER SIDNEY LINDEN: 763. 14 15 CONTINUED BY MS. JACKIE ESMONDE: 16 Q: Do you have then -- you have the 17 memorandum in front of you? 18 A: Yes. 19 Q: Could you turn to page 2? 20 A: 2? 21 Q: And the last sentence of the third 22 paragraph reads: 23 "The OPP, after first indicating in 24 Court that it would serve the material, 25 later declined to do so partly because
1691 of the volatile situation in the Park." 2 A: Yes. 3 Q: Now, does that refresh your memory 4 then, sir, that you had information that the OPP had 5 declined to serve the material? 6 A: It doesn't refresh my memory, but it 7 does provide some indication that the OPP had declined to 8 serve the material. It looks like on -- in March of 1996 9 I was of that view, so it would tend to substantiate the 10 view that they had declined to do so, yes -- 11 Q: Of course, because this was a 12 memorandum to your client, you would have, of course, 13 attempted to be as accurate as possible. 14 A: Yes. 15 Q: And can you assist us, you say in 16 this memorandum that they -- 17 "OPP declined to serve the material 18 partly because of the volatile 19 situation in the Park." 20 Now, can you assist us as to what the 21 other reasons must have been for declining to serve the 22 materials? 23 A: No, I can't and I can't actually tell 24 you whether there were other reasons and, you know, I 25 just don't know.
1701 Q: Well, your wording there would 2 suggest that there were other reasons, correct? You say 3 it was partly because of the volatile situation in the 4 Park. 5 A: Right. That wording would suggest 6 that there were other reasons. I don't know what those 7 other reasons were or if other reasons existed. 8 But, you know, I suppose I should have 9 said, At least partly because. 10 11 (BRIEF PAUSE) 12 13 Q: Now, as Mr. Worme had taken you 14 through this memorandum, beginning at page 3 you itemize 15 a series of issues for the Government to consider in 16 making a decision regarding whether or not to pursue the 17 injunction option, correct? 18 A: Yes. 19 Q: And I'd like to read the actual 20 wording of the very first issue that you itemize. 21 "The Government will have to decide 22 whether it is willing to risk providing 23 by means of injunction proceedings, a 24 judicial forum for review of the police 25 operations of last September and the
1711 death that occurred on the evening of 2 September 6th." 3 Now just a few moments ago, when you were 4 asking questions -- sorry, responding to questions from 5 Mr. Worme, you had suggested that the Government may not 6 wish to proliferate forums in which that issue could be 7 dealt with? 8 A: Yes. 9 Q: However, you'll note that your 10 wording in the memorandum is that the Government will 11 have to decide whether it is willing to risk providing a 12 judicial forum for the review of police operations. 13 A: Well -- 14 Q: Now, you'd agree with me that your 15 choice of wording there suggests -- and by that I refer 16 to the use of the word, "risk," that, in your view, the 17 Government may see the provision of a judicial forum for 18 review of the police operations as something to avoid? 19 A: Well, of course I had no information 20 at this point about what the Government -- what the 21 Government's position with respect to any of this was. 22 Perhaps I should have said, Risk another forum, because 23 there certainly would be judicial forums in which this 24 issue would be explored. 25 Q: And what do you mean by that, sir?
1721 A: Well, there was a civil action. 2 There's going to be at least one (1) civil action, 3 possibly more, and as I said to Mr. Worme, I'm not sure 4 whether I knew that there was going to be or whether it 5 was, you know, public knowledge that there was going to 6 be a criminal prosecution at this point or not, but as I 7 say it was certainly in the air and thought of as a 8 possibility. 9 So whether the Government wanted to avoid 10 a judicial forum or not, it couldn't do so if it wanted 11 to. 12 Q: Well certainly, with respect to a 13 civil proceeding, a public airing of what had -- had 14 occurred would be something that could be avoidable 15 through settlement and so on, correct? 16 A: That's possible, yes. 17 Q: Now, were you not aware during the -- 18 the months or between September 1995 and March 1996 that 19 there were people in the Government, officials in 20 government who had made comments to the effect that they 21 wished to avoid a judicial forum that would review the 22 circumstances that led to the shooting of Dudley George? 23 A: I'm not aware of that. Now, as I say 24 I was not -- I was not called upon to do anything. I was 25 not consulted. I was not informed as to -- as to what,
1731 you know, what -- what deliberations were going on in the 2 Government. I -- I read the newspapers in those days. 3 It probably gave me some indication of 4 what was -- sometimes even the Toronto Star at that time. 5 And also I was on a list of recipients of clippings from 6 Ontario papers on Aboriginal issues. So these things 7 would daily cross my desk about -- about, you know, news 8 items, and so forth, as to these things. 9 Also, it's possible that, you know, one 10 (1) of my colleagues at one (1) time or another, I have 11 no recollection or memory or -- or any indication that 12 this actually occurred, but I was in daily contact with 13 the people in the Crown Law Office Civil and in the 14 Ministry of the Natural Resources and the Ontario Native 15 Affairs Secretariat and so forth. 16 So I just -- you know, I can't tell you, 17 you know, whether I thought that the Government was 18 trying to avoid anything or felt that proliferating 19 judicial matters would be, you know, that -- that the 20 Government didn't want to risk more judicial forums or 21 not, but I certainly didn't have any -- any knowledge 22 imparted to me along those lines. 23 Q: Would it be fair to summarize your -- 24 what you've just said then, that through the sources that 25 you've described, that you had the impression, then, that
1741 government -- government officials may wish to avoid -- 2 A: No, as I said I don't have any 3 recollection of what my view of these things was at all. 4 I mean, I should say that I was delighted with the fact 5 that I was not involved in what was going on and I was 6 very happy with that circumstance. And, you know, there 7 was plenty of work to be done and I was getting about 8 that work and -- and this was just a fond memory by -- by 9 the latter part of 1995 and the early part of 1996. 10 Q: So you can't tell us today what it 11 was that motivated you to identify as the first issue to 12 be considered by the Government, the issue of whether it 13 was willing to risk providing, by means of injunction 14 proceedings, a judicial forum for review of the police 15 operations? 16 A: You know, I -- I can't tell you 17 except on the basis of -- of, you know, just knowing how 18 I would normally go about a task like this, you know, 19 this request from Mr. Lazor to tell us what we ought to 20 know about civil injunctions. 21 One of the questions I ask myself is what, 22 you know, the things that government is going to have to 23 ask itself about deciding to -- to proceed with a civil 24 injunction or not. 25 And one of the things that it might well,
1751 and should consider, is whether to add another judicial 2 forum. 3 Q: You'd agree with me, though, sir, that 4 the -- the words that you used in the memorandum were 5 different than what you've just described. 6 You talk about providing a judicial forum 7 for review of the police operations rather than another 8 judicial forum. 9 A: Well I -- I'd say it's entirely 10 consistent with what I just said. 11 Q: Moving onto page 5, the issue number 12 3 that you identified related to the co-operation of the 13 OPP. 14 A: Yes. 15 Q: And you state at the bottom of the 16 second paragraph: 17 "Fourthly, it [that being the OPP] 18 might have reservations about the 19 judicial forum matter mentioned above." 20 A: Yes. 21 Q: Now was that a concern of the OPP 22 that had been communicated to you? 23 A: No. 24 Q: That was based on your speculation 25 that the OPP might have reservations about the judicial
1761 forum issue? 2 A: No. I'm not speculating about that. 3 What I'm saying is, the co-operation of the OPP is going 4 to be essential. And then I, you know, here are some 5 things that might have an impact upon co-operation of the 6 OPP. 7 It's, you know, it's not my role to 8 speculate on these things, I don't think, I, you know, or 9 to form an opinion. But it is my role, I think, to point 10 out to the -- to -- to Yan Lazor here, in the first 11 instance, and -- and in order to equip him as he, you 12 know, as he enters into deliberations that he -- with 13 whomever he's advising, Here are some of the things that 14 you need to think about. 15 Q: Right. And one of the things that 16 you were advising should be thought about was that the 17 OPP may have reservations about the judicial forum? 18 A: That's right. 19 Q: And was that based on your 20 experiences in preparing the injunction materials in 21 September of 1995 and the decision to withdraw that 22 application? 23 A: I don't think so, no. 24 25 (BRIEF PAUSE)
1771 Q: Now on that same page, the second 2 paragraph. 3 "When the matter arose last September, 4 the position of the OPP on the 5 injunction issue was understandably and 6 quite properly left to the field 7 staff." 8 A: I -- I'm sorry, where is this? 9 Q: This is the second paragraph. 10 A: Oh, the same paragraph, yeah. 11 Q: Yes. Are you with me? 12 A: Yes. 13 Q: "That staff was at first of the view 14 that an injunction should be sought, 15 but later, in response to changed 16 circumstances and after some internal 17 debate, oppose the continuation of the 18 injunction proceeding." 19 Do you see that? 20 A: Yes. 21 Q: Now, with respect to the internal 22 debate within the OPP, was it not the case that you were 23 aware that there were certain members of the OPP who 24 wished to avoid an application for an injunction because 25 that would provide another judicial forum -- that would
1781 provide a judicial forum for the review of the police 2 operations at Ipperwash? 3 A: I was not aware of that, no. 4 Q: Then what were the positions that 5 were being taken in the internal debate? 6 A: I don't know. The -- the -- my first 7 inkling that the OPP had some reservations about the 8 injunction, occurred on the Friday morning in London. 9 You'll recall that the injunction order, 10 albeit suspended in its force, had been granted on the 11 Thursday. On the Friday, Elizabeth Christie and I 12 attended in London to attempt to obtain a variation of 13 the order of the Thursday. 14 We had arranged, this is rather sketchy 15 and I apologize for -- for my -- for not having a more 16 precise recollection of the -- of the order of events, 17 but we had arranged for an officer or officers from the 18 OPP to attend in court in London for that purpose. 19 We waited a very long time that day and 20 when the officer eventually appeared, and I can't 21 remember who it was who gave evidence before the -- the - 22 - before the Judge in London, Judge Flinn in London, that 23 day -- 24 Q: Was that not Inspector Carson? 25 A: Could well have been, yes. You know,
1791 I have a -- a very indistinct recollection of him saying 2 something about internal deliberations within the OPP 3 whether they wanted to have anything to do with -- with 4 this proceeding. 5 So, as I say, that was my first inkling 6 that there were some, in the OPP, who were concerned 7 about the injunction it seemed. 8 Q: Okay, and what was your second 9 inking, then? 10 A: The -- I think on page -- on the 11 handwritten notes, this conversation that took place on 12 the Sunday as to whether there should be a withdrawal, 13 and I think -- I mean, one (1) of the lines there is 14 about Officer Coles and his view and so forth, so. 15 I'd say something on Friday and then 16 something on -- on Sunday. 17 Q: So is it your evidence, then, that it 18 was based on these -- these vague indications that there 19 was an internal debate about whether to proceed with the 20 injunction or not, within the OPP? 21 That's what led you to write these words 22 in this memorandum? 23 A: Yes. 24 Q: You had nothing more concrete than 25 that?
1801 A: I had nothing after September the 2 11th about what the OPP's view of these things was, or 3 indeed, of the governments. 4 COMMISSIONER SIDNEY LINDEN: Ms. Esmonde, 5 I'd like to take a short break. Are you almost finished? 6 MS. JACKIE ESMONDE: I am finished. 7 COMMISSIONER SIDNEY LINDEN: You are 8 finished? 9 MS. JACKIE ESMONDE: I am finished. 10 COMMISSIONER SIDNEY LINDEN: Oh. If you 11 are finished, then we will take a short break. You are 12 finished? 13 MS. JACKIE ESMONDE: I am finished. 14 COMMISSIONER SIDNEY LINDEN: You have one 15 (1) last question? You look like you had one (1) last -- 16 MS. JACKIE ESMONDE: I assure you, I am 17 finished. Thank you, Mr. McCabe. 18 THE WITNESS: Thank you. 19 MS. JACKIE ESMONDE: Thank you, Mr. 20 Commissioner. 21 COMMISSIONER SIDNEY LINDEN: Thank you 22 very much. We'll take a short break. 23 THE REGISTRAR: This Inquiry will recess. 24 25 --- Upon recessing at 3:12 p.m.
1811 --- Upon resuming at 3:26 p.m. 2 3 THE REGISTRAR: This Inquiry is now 4 resumed, please be seated. 5 COMMISSIONER SIDNEY LINDEN: Good 6 afternoon, Mr. Horton. 7 MR. WILLIAM HORTON: Good afternoon, sir. 8 9 (BRIEF PAUSE) 10 11 CROSS-EXAMINATION BY MR. WILLIAM HORTON: 12 Q: Good afternoon, Mr. McCabe. 13 A: Good afternoon. 14 Q: I'm Bill Horton; I represent Chiefs 15 of Ontario. 16 A: Yes. 17 Q: And I do have some questions for you. 18 They're all based on Exhibit 763, which is the 19 memorandum, so as long as you have that. 20 COMMISSIONER SIDNEY LINDEN: How long do 21 you think you might be, Mr. Horton? 22 MR. WILLIAM HORTON: About half an hour, 23 might be the -- 24 COMMISSIONER SIDNEY LINDEN: That's fine. 25 MR. WILLIAM HORTON: -- extent of it.
1821 2 CONTINUED BY MR. WILLIAM HORTON: 3 Q: Now, Mr. McCabe, we've focussed a lot 4 on the interlocutory injunction and in various guises and 5 it's -- 6 A: Hmm hmm. 7 Q: -- come up in different meetings and 8 so on. One fact I just wanted to establish at the outset 9 of my questions on this memo is that by its very nature 10 an -- an interlocutory injunction does not actually 11 decide who's right in the dispute. 12 Do you agree with that? 13 A: Yes. 14 Q: All the interlocutory injunction 15 decides is what people will do while the lawsuit is being 16 determined in order to determine who's right in the 17 substantive dispute, correct? 18 A: Yes. 19 Q: And whether or not for example the 20 status quo will be maintained or whether the status quo 21 should be changed pending determination of the issues on 22 their merits, right? 23 A: Yes. 24 Q: And that's why in your memo when you 25 talk about the different considerations that the Court
1831 will review in granting an interlocutory injunction and 2 you talk about irreparable harm and balance of 3 convenience, but one (1) of the items that's missing from 4 the list is who's right and who's wrong, right? 5 A: Yes. And, well, a serious question 6 to be tried and I suppose to relate it. 7 Q: And all that means is that in fact 8 there's a -- there's an issue that the Court should look 9 into; it's not a slam dunk either way, correct? 10 A: Well, it might be but -- it might 11 turn out to be that but -- 12 Q: Yeah. 13 A: -- there is a serious issue, yeah. 14 Q: Yeah. And the Court doesn't 15 determine who's right and who's wrong on that motion even 16 if they decide there's a serious issue to be tried, 17 correct? 18 A: That's correct. 19 Q: Okay. So regardless of whether the 20 injunction proceeds or not there is -- if there are 21 issues outstanding that need to be resolved by judicial 22 determination the actual action can proceed to have that 23 determination made, correct? 24 A: Yes. 25 Q: And in this particular case when you
1841 applied for an interlocutory injunction you applied for 2 it in the context of the Court being required to resolve 3 certain issues. 4 For example the Court would have to 5 resolve and make a determination of provincial ownership 6 of the Park and the fact that the occupiers were 7 trespassing, correct? 8 A: Are you referring to the -- to the 9 interlocutory injunction that was in fact sought in 10 September of '95? 11 Q: I'm talking about the action in which 12 that interlocutory -- 13 A: Yes. 14 Q: -- injunction was sought. You would 15 seek the interlocutory injunction but it would have to be 16 in the context of an -- of an overall action in which you 17 would be asking the Court to determine those issues -- 18 A: Yes. 19 Q: -- right? And those issues in this 20 case are the issues of provincial ownership of the Park 21 and whether or not the occupiers were trespassing. 22 Those would be two (2) substantive issues 23 that the Court would have to determine in the actual 24 action, right? 25 A: Yes.
1851 Q: And we've heard that prior to your 2 being instructed to seek that interlocutory injunction 3 the Government, in particular the Premier's Office, had 4 expressed great concern about this being a Provincial 5 Park, about the occupiers trespassing. 6 We've heard that characterized as a desire 7 to enforce the law and in terms of actually achieving a 8 judicial determination that the Province was right on all 9 of those issues you would need to proceed with the 10 action, right? 11 A: Yes. In proceeding with the action 12 there no doubt would be a challenge mounted to provincial 13 title to the land. 14 Q: Right. 15 A: Yes. 16 Q: Right. And in fact that was in play 17 as was pointed out to you just moments ago in your own 18 notes that claimed this is our land, burial grounds, all 19 those issues would have to be gone into and there'd have 20 to be a judicial determination on that right? 21 A: In all likelihood there would be, 22 yes. 23 Q: Yeah. All right. Now, with those 24 issues being in play as of the date you wrote this 25 memorandum, March the 5th, 1996, your issue -- your memo
1861 addresses whether or not to proceed with the 2 interlocutory injunction right? 3 A: Yes. 4 Q: Who is proceeding with the action to 5 actually determine that this is a Provincial Park and 6 that the occupiers are trespassing? 7 Where -- where is that being addressed? 8 Where was that being addressed? 9 A: Well the -- the interlocutory 10 injunction that is -- it's under consideration in my memo 11 here, as you've said, presupposes that an action would be 12 brought as well. 13 Q: Yeah, right. 14 A: And -- and it would be for the 15 defendants I suppose -- 16 Q: Yeah. 17 A: -- to challenge the title of the 18 Province in the course of that action. 19 Q: But who -- you're addressing the 20 interlocutory injunction and whether or not to bring it, 21 what about proceeding with the civil action to determine 22 that the -- the Provincial rights in the matter? 23 Did you have any instructions to do that? 24 A: No, I didn't have any instructions at 25 this point to do anything --
1871 Q: Right. 2 A: -- other than write this memorandum 3 to -- to Yan Lazor. 4 Q: Right. 5 A: And I -- as I would have envisioned 6 the action at this point, the action would have simply 7 sought a permanent injunction. 8 Q: I understand that. That's what I'm 9 asking you about. 10 You never sought or received instructions 11 to proceed with an action to establish that this was in 12 fact a Park that was owned by the Province, is that 13 correct? 14 A: No. 15 Q: Am I correct in saying that? 16 A: That's correct, yes. 17 Q: All right. And when you talk about 18 all the different legal proceedings that were going on, 19 the civil action brought by the George Family and the 20 criminal proceedings, none of those proceedings involved 21 a determination of whether or not the Province properly 22 owned the Park or whether or not the occupiers were 23 trespassing. 24 Isn't that correct? 25 A: I suppose it's -- I suppose the civil
1881 proceeding could have raised that issue. 2 Q: Yeah. You're not aware of any 3 proceeding that did raise that issue, that sought a 4 determination that the Park was owned by the Province? 5 A: I -- I'm not aware of any proceeding 6 that was brought by the Province -- 7 Q: No. 8 A: -- in order to -- 9 Q: Right. 10 A: -- in order to seek a declaration I 11 suppose if that's the case, no. 12 Q: So whatever concerns and we've heard 13 all about the concerns that were expressed about 14 Provincial resources and the enforcing the law and so on, 15 in fact the Province did not proceed with any action to 16 determine those issues? 17 Are we -- are we agreed on that? 18 A: I'm not aware of any proceeding that 19 the Province took to determine those issues, no. 20 Q: Now in terms of your saying as you do 21 in -- on page 3 of your memo, that in terms of proceeding 22 with the application for an interlocutory injunction, and 23 you've already agreed with me that proceeding with that 24 would mean proceeding with it in the context of an action 25 in which the Province seeks a determination of its
1891 ownership, right? 2 A: No. I don't think the Province would 3 have sought a determination of its ownership. The 4 Province would have sought a permanent -- 5 Q: No. 6 A: -- injunction. 7 Q: All right. The -- the Province would 8 seek a permanent injunction and that injunction would 9 require the court to determine that the Province was in 10 the right and the occupiers were in the wrong on a -- 11 A: It's the -- 12 Q: -- at -- at the trial of that action, 13 correct? 14 A: Well if the defendants raised that 15 issue, yes. 16 Q: Well whether it's the -- we -- we 17 won't quibble today on whose job it is, if you are 18 seeking an injunction to remove people from land that you 19 say is yours, it's your understanding that it's up to the 20 defendants to prove that it's not your land? 21 Is that what you're saying? 22 A: The action -- I don't think that's 23 what I'm saying, sir. 24 Q: No, all right. You don't -- you are 25 suggesting that one (1) of the reasons that you might not
1901 proceed with the civil -- civil action to seek an 2 injunction on either an interlocutory or permanent basis, 3 is that it -- the Government has to consider whether it 4 is willing to risk providing a judicial forum for review 5 of the police operations, correct? 6 A: Yes. 7 Q: All right. Now you've elaborated on 8 that and said that in fact there were many judicial forum 9 -- fora that were already in existence. And I want to 10 explore that from -- with you from two (2) perspectives. 11 First of all, as far as the criminal 12 proceedings are concerned, you're aware that the criminal 13 proceedings would focus on the conduct of the accused, is 14 that correct, is that your understanding? 15 A: Yes. 16 Q: All right. 17 A: I -- 18 Q: All right. 19 A: Yes, I certainly don't put myself 20 forward as a -- as an authority on what would have 21 happened in the course of those criminal proceedings but 22 generally, yes -- 23 Q: Hmm hmm. 24 A: -- suppose that's -- that's true. 25 Q: Right. You wouldn't expect that in a
1911 charge that's laid against a police officer, that the 2 question of whether -- what Mr. -- or what Premier Harris 3 may or may not have said in his dining room, would 4 necessarily be pertinent to those charges, you'd agree 5 with me on that? 6 A: Well, I suppose it would depend on a 7 lot of things, including the defence that -- that was 8 raised and, you know, I -- 9 Q: Right. 10 A: -- I don't think that one can -- can 11 -- can foresee with a great deal of certainly in advance, 12 as to what is going to turn out to be germane in a -- in 13 a proceeding of that sort, no. 14 Q: Well, sorry. You've told us that 15 what you had in mind was the fact that there were 16 multiple fora already in existence. 17 A: I -- 18 Q: Is that what we should take your 19 evidence to -- 20 A: Well, if I could -- 21 Q: -- mean? 22 A: A slight quibble with that. I don't 23 think that I was aware of a plethora of -- of 24 proceedings. I suppose it's right to say that I surmised 25 that, if there weren't already, there would be.
1921 Q: And did you have it in mind, then, 2 that the information about the police operations would 3 come out in these other fora? 4 A: I think it -- what you need to -- to 5 understand here is I'm not purporting to give advice as 6 to -- as to what the -- the result of this should be. 7 All I'm saying is that these are the sorts 8 of considerations that the people to whom Yan Lazor is 9 going to be reporting, should keep in mind. 10 Q: Yeah. What I'm trying to -- 11 A: And I'm just saying -- 12 Q: -- understand -- 13 A: -- that in this -- in this proceeding 14 you -- 15 Q: Hmm hmm. 16 A: -- know, it -- there is likely to be 17 or, there -- you know, there's the possibility that the - 18 - that the, you know, the events and circumstances in all 19 their fullness on that evening is going to be -- is going 20 to be germane to the proceeding. 21 Q: This is what I'm not understanding. 22 Are you saying that because there were other proceedings 23 where this same information is likely to come out, 24 therefore it doesn't matter that we have a further 25 judicial proceeding in which the same information might
1931 come out? 2 A: No. 3 Q: Is that we should take your memo to 4 mean? 5 A: No. 6 Q: So, are we to take your memo to mean 7 that even though there are other proceedings where the 8 same information may come out, I don't think we should 9 have another forum where the same information would come 10 out? 11 Is that what we should take this memo to 12 mean? 13 A: No. 14 Q: Isn't it really clear that the 15 concern that you're suggesting the government might have 16 is that they don't want to provide a forum in which this 17 type of information would come out, if they can possibly 18 help it, or that it may be a consideration. 19 Isn't that the consideration you're 20 raising? 21 A: The latter point that it -- 22 Q: Yeah. 23 A: -- may be a consideration. 24 Q: Yeah, you're raising it because you 25 want to alert them to the fact that this will provide a
1941 forum for this information to come out and they may not 2 want that, isn't that -- 3 A: Well, -- 4 Q: -- what you're raising? 5 A: -- I wouldn't say come out, because 6 this information is going to come out. The question is 7 whether in -- in -- in making the calculus, in -- in 8 engaging in the calculus as to whether to proceed in this 9 particular way, given the -- you know, the -- the, you 10 know, the advantages and the benefits on the one hand and 11 the considerations to the contrary on the other hand, 12 this is one (1) of the things that should be kept in 13 mind, yes. 14 Q: And, Mr. McCabe, you mentioned the 15 civil proceedings. 16 You are well aware that in civil 17 proceedings, there's an implied undertaking not to 18 disclose discovery outside of the proceedings until 19 trial; you're aware of that? 20 A: I -- I can't say that I'm 21 particularly aware of that, no. 22 23 Q: Oh, all right. You're aware, 24 certainly, that the civil proceedings in this matter that 25 you've referred to as a forum in which this information
1951 might come out, had not reached trial after the 2 completion of two (2) terms of the -- of the Harris 3 government? 4 A: So I understand. 5 Q: Yes. And you're aware, certainly, 6 that it takes a long time for civil proceedings to come 7 to trial in this province? 8 A: Sometimes that's true, yes. 9 Q: Yes. And you are certainly aware 10 that there isn't nearly the same publicity with respect 11 to disclosure that is made in civil proceedings as one 12 might expect prior to the matter coming to trial? 13 You're aware of that? 14 A: I can't say I particularly addressed 15 my mind to the question -- 16 Q: Yeah. 17 A: -- the relative publicity -- 18 COMMISSIONER SIDNEY LINDEN: Your Counsel 19 has an objection so I'm not sure if you should continue 20 to answer. 21 MS. KIM TWOHIG: I'm not sure how the 22 Witness can answer a question about what one might expect 23 in a proceeding. 24 MR. WILLIAM HORTON: That's fine. I'll - 25 - I'll reword the question.
1961 2 CONTINUED BY MR. WILLIAM HORTON: 3 Q: I just want to be sure I heard you 4 right the first time though. You're not aware of the 5 fact that there is an implied undertaking rule with 6 respect to discovery in civil actions respecting 7 disclosure of discovery outside the civil proceedings? 8 Is that your evidence, you're not aware 9 of that? 10 A: That's right. 11 Q: All right. And do you -- will you 12 at least agree with me this far, Mr. McCabe, that one (1) 13 of the characteristics of injunction proceedings, 14 interlocutory injunction proceedings in particular is by 15 their very nature, they happen rather quickly? 16 A: Yes. 17 Q: And they happen over a -- they happen 18 very quickly because of the -- as I say the very nature. 19 They're dealing with urgent matters, 20 correct? 21 A: Yes. 22 Q: And the cross-examinations that take 23 place on affidavit material and the examination of 24 witnesses takes place over the course of days or weeks 25 rather than over the course of months or years, correct?
1971 A: Yes. 2 Q: All right. And also all of those 3 examinations that take place over that short and intense 4 period of time become public when those transcripts are 5 filed with the court at the hearing of the application, 6 correct? 7 A: Yes, I -- 8 Q: All right. 9 A: -- expect that's the case. 10 Q: So -- 11 A: I can't say that I've ever 12 particularly addressed my mind to that issue but I -- but 13 I have no reason to expect that that's not true. 14 Q: And -- and isn't that the kind of 15 thing you had in mind when you raised with the Government 16 the concern that this -- these injunction proceedings are 17 going to provide a particularly effective forum and a 18 particularly speedy forum. I'm adding those words in 19 terms of probing and disclosing what happened leading up 20 to the death of Dudley George. 21 Weren't -- isn't that what you were aware 22 of and -- and concerned about? 23 A: No. 24 25 (BRIEF PAUSE)
1981 Q: And I'd also just like to determine 2 from you, Mr. McCabe, definitively -- sorry, before I do 3 that there was one (1) other ground I wanted to cover. 4 You're aware, Mr. McCabe, that one (1) of 5 -- that one (1) of the defences to an interlocutory -- 6 and application for an interlocutory injunction is the 7 question of whether or not the Applicant has 8 quote/unquote "clean hands". 9 You're aware of that principle? 10 A: Yes. 11 Q: All right. And you're aware that the 12 Court exercises its discretion, not just on the basis of 13 whether or not the Applicant is right but whether or not 14 the Applicant has acted equitably in the -- in the 15 matter, correct? 16 A: The Court's entitled to do that, yes. 17 Q: Right. And you are aware that issues 18 such as whether or not in this case the actions of the 19 Government were motivated by racial intolerance, 20 political opportunism, political interference with police 21 operations. 22 Those could be matters that the Court 23 could take into account if you brought your interim -- 24 application for an interim injunction back on for a 25 hearing, isn't that right?
1991 A: I didn't take those sorts of things 2 into account, no. 3 Q: Isn't that basically the concern that 4 was being raised in your mind as you were seeing police 5 reports -- sorry, as you were seeing newspaper reports 6 about the kinds of issues that were being raised about 7 this government action? 8 Isn't that exactly the kind of thing that 9 was being brought to your mind? 10 A: No. 11 Q: You were aware from the newspaper 12 reports that you were seeing the -- the comments that 13 were being attributed to the Premier in terms of getting 14 the fucking Indians out of the Park? 15 Do you recall seeing that in the newspaper 16 reports? 17 A: I don't actually recall seeing that 18 in the newspaper reports, certainly not between September 19 and March. I don't -- 20 Q: Okay. So -- so you read the 21 newspapers but you missed that; is that what you're -- 22 you'd have us understand? 23 A: I can't remember specifically what I 24 was reading about, you know, about this matter. I raise 25 that in the question of -- of, you know, where I was
2001 receiving information. 2 Q: And you read the newspaper reports 3 but you -- you were not aware that there were issues 4 being raised about the interference of -- of Premier 5 Harris and his office in police operations, is that 6 right? 7 A: Not -- I don't know that I was 8 unaware. I can't remember and what -- what specifically 9 I was reading in the newspaper that I thought was 10 germaine to the memo that I was writing to -- to Mr. 11 Lazor at this point. 12 Q: So -- so, number 1, you can't 13 remember reading in the newspapers the reports about 14 these sorts of issues, is that correct? 15 A: Yes. 16 Q: Okay. And number 2, you can't 17 remember what exactly were the concerns in your mind 18 about what might come out if -- if a further judicial 19 forum were offered? 20 A: No. Look, a man lost his life in the 21 course of -- of -- you know, police operations that 22 occurred on that evening, right? 23 As far as I was concerned, that was, you 24 know, that was the issue. That is going to have to be 25 determined in some forum at some time. That is going to
2011 be aired. 2 All I'm saying here to Mr. Lazor is, the 3 Government ought to keep in mind, Yan, that this will be 4 a forum or an additional forum in which that, you know, 5 an appraisal or an investigation, examination of those 6 events and circumstances will take place. 7 Q: Okay. 8 A: And that's all. 9 Q: And this was the number 1 issue that 10 you drew to him, the first issue you drew to his 11 attention, but you can't remember anything specific that 12 -- that provoked you to make that recommendation other 13 than a very theoretical concern. Is that -- 14 A: Yes. 15 Q: -- is that right? 16 A: Yes, both those statements are 17 correct. 18 Q: Okay. And you're aware that on an 19 application to continue an interlocutory injunction on 20 notice that one (1) of the issues the court can take into 21 account is whether or not there was full disclosure on 22 the original ex parte application. 23 You're aware of that principle, correct? 24 A: Yes. 25 Q: And you're aware that if the Court is
2021 -- is satisfied that there was not full disclosure of 2 material facts, the Court will not continue the 3 injunction when it's applied for on notice even though it 4 would otherwise have done so. 5 You're aware of that? 6 A: That's possible, yes. 7 Q: Yes. And in this case you were aware 8 that the issue with respect to the statement about 'not 9 our lands' was -- was not referred to in your material -- 10 sorry, 'it's our land' was not referred to in the 11 material that was filed with the Court, correct? 12 A: Well the only material that was filed 13 with the Court was the affidavit of the Ministry of 14 Natural Resources -- 15 Q: Hmm hmm. 16 A: -- which went to the title history -- 17 Q: Right. 18 A: -- of the property. Apart from that, 19 it was the vive voce evidence of the police officer who 20 was asked what the people in the Park were saying by way 21 of rationale for their presence. 22 Q: Right. And the 'our land' comment 23 was not repeated in that -- in that material? 24 A: I can't recall, sorry. 25 Q: Well the -- the record will stand for
2031 it -- itself. 2 A: Yes. 3 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 4 Twohig? 5 MS. KIM TWOHIG: Yes, I was just going to 6 say the record would stand for itself. And this area was 7 canvassed in great detail the last time -- 8 COMMISSIONER SIDNEY LINDEN: Yes. 9 MS. KIM TWOHIG: -- Mr. McCabe was here. 10 COMMISSIONER SIDNEY LINDEN: Yes, yes. 11 12 (BRIEF PAUSE) 13 14 CONTINUED BY MR. WILLIAM HORTON: 15 Q: And the final thing I just wanted to 16 ask you, Mr. McCabe, just to -- to make sure that we do 17 have it tied up, I take it that you never received 18 instructions to proceed with an interlocutory injunction, 19 correct? 20 After that memo? 21 A: Right. 22 Q: And you never received instructions 23 to proceed with an action for a permanent injunction? 24 A: Right. 25 Q: And you never received instructions
2041 actually to take any legal proceedings that might have 2 the purpose of simply establishing what the Province's 3 rights were in the matter with respect to the Park. 4 Is that correct? 5 A: Right. 6 Q: And you're not aware of anyone else 7 having received those instructions? 8 A: I'm not aware of that, no. 9 Q: On any of those points? 10 A: Right. 11 Q: Okay. 12 MR. WILLIAM HORTON: Thank you very much, 13 Commissioner. 14 COMMISSIONER SIDNEY LINDEN: Thank you, 15 Mr. Horton. 16 Mr. Scullion, I skipped over you. Did you 17 have any questions? 18 MR. DONALD WORME: I was going to 19 indicate, Commissioner, for the record, Mr. Scullion had 20 asked me to -- simply to note that he had no questions 21 and that he perhaps might take an additional thirty (30) 22 minutes elsewhere. 23 COMMISSIONER SIDNEY LINDEN: Thank you 24 very much. So the only questioner left is Mr. Roy, 25 unless Mr. Roy has no questions, too, in light of Mr.
2051 Horton's examination. 2 MR. JULIAN ROY: In light of both Ms. 3 Esmonde's and Mr. Horton's examination, they've both 4 adequately covered the areas that I intended to cover. 5 COMMISSIONER SIDNEY LINDEN: Thank you 6 very much. 7 MR. JULIAN ROY: So if we could -- we 8 could trade the minutes that I've been assigned, that's 9 for some future consideration, I'd appreciate that. 10 COMMISSIONER SIDNEY LINDEN: Thank you 11 very much. So where are we now? Are we -- 12 MR. DONALD WORME: I think it just leaves 13 Ms. Twohig, if she has any examination. 14 COMMISSIONER SIDNEY LINDEN: Ms. Twohig 15 has no questions and -- 16 MR. DONALD WORME: If that is it than I 17 don't have anything further to go into and I simply would 18 like to thank Mr. McCabe for his re-attendance here. 19 COMMISSIONER SIDNEY LINDEN: Yes -- 20 THE WITNESS: Thank you, Mr. Worme. 21 COMMISSIONER SIDNEY LINDEN: Thank you 22 very much for coming -- 23 THE WITNESS: Thank you. 24 COMMISSIONER SIDNEY LINDEN: -- back, Mr. 25 McCabe.
2061 I think we're done for the day, if I'm not 2 mistaken and we will reconvene tomorrow morning at nine 3 o'clock. 4 Thank you. 5 6 (WITNESS STANDS DOWN) 7 8 THE REGISTRAR: This Inquiry stands 9 adjourned until tomorrow, Tuesday February the 14th, at 10 9:00 a.m. 11 12 --- Upon adjourning at 3:53 p.m. 13 14 15 16 Certified Correct, 17 18 19 20 21 _________________ 22 Carol Geehan, Ms. 23 24 25