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 15th, 2006 25
21 Appearances 2 Derry Millar ) Commission Counsel 3 Susan Vella ) (np) 4 Donald Worme, Q. C ) 5 Katherine Hensel ) 6 Megan Ferrier ) 7 Murray Klippenstein ) The Estate of Dudley 8 Vilko Zbogar ) George and George 9 Andrew Orkin ) (np) Family Group 10 Basil Alexander ) 11 12 Peter Rosenthal ) Aazhoodena and George 13 Jackie Esmonde ) Family Group 14 15 Anthony Ross ) (np) Residents of 16 Cameron Neil ) 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 ) The Honourable Michael 7 Bill Hourigan ) Harris 8 Jennifer McAleer ) 9 10 Ian Smith ) Robert Runciman 11 Alice Mrozek ) 12 13 Harvey T. Strosberg, Q.C.) (np) Charles Harnick 14 Jacqueline Horvat ) 15 16 Douglas Sulman, Q.C. ) Marcel Beaubien 17 Mary Jane Moynahan ) (np) 18 Dave Jacklin ) (np) 19 Trevor Hinnegan ) (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 ) (np) 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 ) 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 ) Christopher Hodgson 4 Craig Mills ) (np) 5 Megan Mackey ) (np) 6 Peter Lauwers ) (np) 7 Erin Tully ) (np) 8 Michelle Fernando ) (np) 9 Maanit Zemel ) (np) 10 11 David Roebuck ) (np) Debbie Hutton 12 Anna Perschy ) 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 4 Michael Dean Harris, Resumed 5 Cross-Examination by Mr. Mark Sandler 8 6 Cross-Examination by Mr. Murray Klippenstein 56 7 Cross-Examination by Mr. Peter Rosenthal 178 8 9 10 11 12 13 Certificate of Transcript 294 14 15 16 17 18 19 20 21 22 23 24 25
71 --- Upon commencing at 9:01 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, everybody. 8 MR. MARK SANDLER: Good morning, sir. 9 COMMISSIONER SIDNEY LINDEN: Are you 10 first, Mr. Sandler? 11 MR. MARK SANDLER: I am first. I 12 understand that counsel for Mr. Hodgson has no questions. 13 COMMISSIONER SIDNEY LINDEN: Oh, no 14 questions. That's fine. 15 Your estimate, if I recall, is ninety (90) 16 minutes, up to ninety (90) minutes? 17 MR. MARK SANDLER: Up to ninety (90) 18 minutes. If I get the right answers I'll be much shorter 19 than that. 20 COMMISSIONER SIDNEY LINDEN: Thank you. 21 MR. MARK SANDLER: How's that for an 22 interorum argument, Mr. Harris? 23 24 MICHAEL DEAN HARRIS, Resumed 25
81 CROSS-EXAMINATION BY MR. MARK SANDLER: 2 Q: Good morning. 3 A: Good morning. 4 Q: My name's Mark Sandler. I'm counsel 5 for the OPP and its senior commissioned officers 6 including Ron Fox and I have some questions for you, if I 7 may. 8 A: Okay 9 Q: You've already testified in response 10 to several questioners including Mr. Millar yesterday 11 that you did not provide any instructions to the OPP on 12 how to enforce the law or when to enforce the law. 13 I have your evidence correct in that 14 regard? 15 A: That's correct. 16 Q: Nor did you suggest to anyone within 17 government that these kinds of directions should be 18 provided to the OPP am I right? 19 A: That's correct. 20 Q: You saw nothing wrong then or now 21 with your government officials, Ministers, Deputy 22 Ministers, or their staff receiving updates on what had 23 happened on the ground in Ipperwash am I right? 24 A: That's correct. 25 Q: And I'm going to suggest to you that
91 that would enable your government to make informed 2 decisions on whether an injunction should be sought, what 3 type of injunction should be sought, and when such an 4 injunction should be sought, correct? 5 A: Yes, I think it would be beneficial. 6 Q: All right. Now similarly, looking at 7 it from the other perspective, you saw nothing wrong with 8 government communicating to the OPP its decisions on 9 whether an injunction would be sought, what type of 10 injunction would be sought, and when it would be sought, 11 am I right? 12 A: I -- I believe that would be 13 appropriate, yes. 14 Q: Okay. And indeed from your 15 perspective that was the kind of information that would 16 have to be communicated to the OPP to enable it to make 17 its operational decisions, right? 18 A: That's correct. 19 Q: Now similarly, if the Government 20 wanted an OPP officer to provide evidence at an 21 injunction hearing you'd see nothing wrong as a Premier 22 with the Government contacting the OPP to identify that 23 officer and what he would say at any court hearing, am I 24 right? 25 A: That's all hindsight. I had no idea
101 how the government went about preparing its case, 2 preparing the injunction, but I would leave that to the 3 Ministry of the Attorney General and -- and assume that 4 they would do the appropriate things and to the best of 5 my knowledge they did. 6 Q: Well, you've anticipated my very next 7 question you'll be delighted to hear, because you were 8 asked about the channel of communication or the protocol 9 between government and -- and the OPP and you -- you 10 spoke briefly about communication taking between the 11 Ministry of the Solicitor General and the Commissioner of 12 the OPP. 13 And I just wanted to be clear, you weren't 14 -- I didn't take from your answers and I want -- I want 15 to clarify this with you that were suggesting that the 16 Commissioner of the OPP has to be personally involved in 17 these kinds of communications? 18 A: No. 19 Q: Okay. Now, you've testified that 20 consensus was reached on September the 6th about the 21 Government seeking an injunction and you had been made 22 aware by Ms. Hutton that various approaches to the issues 23 had first been aired at the IMC meeting. 24 Am I correct so far? 25 A: I believe so, yes.
111 Q: And -- and you'd been made aware that 2 information was being provided by the OPP to the 3 Interministerial Committee to help inform that decision, 4 right? 5 A: Correct. 6 Q: And again, not difficulty with that 7 from your perspective was there? 8 A: No, I thought that was appropriate. 9 Q: All right. Now, whatever views were 10 being expressed in these various approaches at the 11 Interministerial Committee Meeting as communicated to 12 you, one (1) thing that we know for sure and that is that 13 the consistent unvarying message that you were receiving 14 and which was never deviated from was that the OPP was 15 not prepared to enter the Park or take any action 16 whatsoever to remove the occupiers from inside the Park 17 before an injunction was obtained; right? 18 A: That's correct. 19 Q: Now, I've used that phrase 'not to 20 enter the Park or to remove the occupiers from inside the 21 Park' because as you pointed out yourself yesterday the 22 message that was also being communicated consistently was 23 that public safety might require some interim action to 24 be taken by the OPP if the occupation extended beyond the 25 Park; am I right?
121 A: That's correct. 2 Q: And again to be clear on that issue, 3 namely whether and under what circumstances public safety 4 might compel that kind of action, government could have 5 nothing to say, right? 6 A: That's correct. 7 Q: So if, for example, and I'll deal 8 with that in a hypothetical so as not to embark on a 9 debate with some of my fellow Counsel as to the facts, if 10 the occupiers left the Park brandishing clubs or bats in 11 an intimidating matter it was the OPP's decision not your 12 government's as to how the OPP should address that issue 13 operationally, right? 14 A: Yes. 15 Q: And when the OPP should address that 16 issue, right? 17 A: Yes. 18 Q: Now, on the evening of September the 19 6th I'm going to suggest to you that you had no knowledge 20 whatsoever that an issue had developed that very evening 21 outside of the Park, am I right? 22 A: That's correct. 23 Q: You were not briefed on that issue 24 prior to any OPP decision to send officers down the road 25 to cause the occupiers to go back into the Park, am I
131 right? 2 A: That's correct. 3 Q: You never sought to be briefed in 4 advance of what the OPP intended to do in such a 5 situation? 6 A: That also is correct. 7 Q: Now, up to and including September 8 the 6th, you never sought to speak to the Commissioner of 9 the OPP about the operational decisions that had made at 10 Ipperwash or would have to make in the future at 11 Ipperwash; am I right? 12 A: That's correct. 13 Q: You never instructed your staff to 14 seek out the Commissioner or anyone else within the OPP 15 chain of command about those kinds of operational 16 decisions? 17 A: That's correct. 18 Q: Now was it your expectation that your 19 staff, your Ministers or your Deputy Ministers would seek 20 out the OPP to influence its operational decisions? 21 A: That was not my expectation, no. In 22 fact, it would be the contrary. 23 Q: And -- and did you ever receive any 24 information that they did that? 25 A: I did not.
141 Q: Now we've heard some evidence here 2 that the Solicitor General, Mr. Runciman, back in the 3 summer of 1995 had been briefed by the Commissioner of 4 the OPP about a number of issues and that briefing likely 5 included an outline of this OPP policy that blockades or 6 occupations should generally be contained, force used as 7 a last resort, and an injunction sought before the 8 Government's ownership rights were asserted. 9 And we've also heard that the Solicitor 10 General expressed his view that he had no difficulty with 11 that policy. 12 Did you ever express to the Commissioner 13 of the OPP or anyone else disapproval of that policy? 14 A: I did not. 15 Q: Now, I want to turn to this infamous 16 dining room meeting as it's been styled here. 17 And as you know, Ron Fox testified about 18 that meeting and his participation as did many others. 19 And I'm going to ask you some questions directed to your 20 recollection about that meeting. 21 But to be clear and in fairness to you, 22 I'll ask you at the outset, that to your knowledge no 23 notes were made either by you or at your direction 24 concerning the contents of that meeting, am I right? 25 A: That's correct.
151 Q: You know of no notes that were made 2 by anyone present at that time? 3 A: I'm not aware of -- of notes and 4 certainly wasn't aware at the time and not aware now. 5 Q: Okay. And -- and you're being asked 6 to recollect events at a meeting that took place some ten 7 (10) years ago and you recognize, I'm going to suggest, 8 the limitations that that imposes upon your memory? 9 A: Yes. 10 Q: And the closest thing I can tell you 11 that we have to a contemporaneous record of someone's 12 recollection of the meeting is a taped conversation 13 between Ron Fox, John Carson and Chris Coles in which Ron 14 Fox relates his recollection of the conversation. 15 And that conversation takes place, as you 16 probably know by now, shortly after the dining room 17 meeting concluded. 18 A: Yes. 19 Q: Okay. Now ,I expect that you are 20 aware now, though not then, that some of Ron Fox's 21 opinions about you and the Government were somewhat 22 unflattering. You've been made aware of that, I take it? 23 A: I have. 24 Q: And it may or many not surprise you 25 to learn that I don't intend you to ask -- I don't intend
161 to ask you to comment on his opinions, but instead upon 2 his recollection and the recollection of -- of others 3 about what actually happened at the dining room meeting. 4 And just to tell you where I'm going up 5 front so that there's no surprises here, I'm going to 6 explore with you just how much common ground there truly 7 is between what Ron Fox said happened at the dining room 8 meeting in your own recollection, all right? I'm going 9 to try and do that as quickly as I can. 10 A: Okay. 11 Q: So going to Ron Fox's testimony, 12 first of all, he indicated that he and Scott Patrick both 13 of whom were seconded to the Ministry of the Solicitor 14 General did attend that meeting. 15 A request came through the Deputy 16 Solicitor General's office though it's not clear who 17 initiated the request. 18 And I trust it's fair to say that -- that 19 you've already conceded you didn't know the identities of 20 every person at that dining room meeting, am I right? 21 A: That's true. 22 Q: And you're not in a position to deny 23 that Ron Fox and Scott Patrick were indeed present at the 24 meeting? 25 A: That's true.
171 Q: Okay. Second of all, they both 2 testified that they arrived to a meeting that was already 3 in progress. And in fairness I take it you can't deny 4 that some of the participants to the meeting may have 5 arrived while the meeting was in progress? 6 You just can't speak to that issue, can 7 you? 8 A: No, I think that's -- that's correct. 9 And I -- I'm not sure that anybody can tell you when the 10 meeting started and when it finished. It seemed to be 11 discussions that took place and recollections before they 12 thought the meeting started and after they thought the 13 meeting ended. 14 So it was that kind of informal gathering. 15 I think it's important that -- that the Commissioner 16 understand that. 17 Q: So it was a fluid situation? 18 A: Right. 19 Q: People are attending at different 20 points in the meeting -- 21 A: Right. 22 Q: -- and participating at different 23 levels in a different times, perhaps? 24 A: Yeah, that -- that, I think, is -- I 25 think yesterday said it was not a gavel to start the
181 meeting and a gavel to end the meeting. I think that's a 2 better description. 3 Q: Fair enough. Ron Fox testified that 4 -- that you did not stay for the whole meeting and that 5 you left before others did. 6 And again, I take it that that would not 7 be incompatible with -- with your recollection and, 8 indeed, quite usual? 9 A: Yes. 10 Q: Okay. Fourth, Ron Fox testified that 11 he provided an update on what was transpiring on the 12 ground at Ipperwash. 13 And I can tell you that Chris Hodgson and 14 David Moran also testified that Ron Fox gave an update on 15 what was happening on the ground. 16 Now, to be clear, you recalled that an 17 update was provided. 18 A: Right. 19 Q: Right. You can't recall who provided 20 the update, right? 21 A: Correct. 22 Q: You can't recall whether you knew the 23 person personally who did provide the update, am I right? 24 A: I -- I think if I did know the person 25 personally, I might be able to recall that, so I think --
191 Q: Better still. So it's likely that 2 the person who provided the update was someone not 3 previously known to you, am I right? 4 A: Correct, yes. 5 Q: And so Ron Fox may well have been the 6 individual who provided the update to the assembled 7 group? 8 A: Could have been. 9 Q: Could have been, okay. Now, Ron Fox 10 then testified that one topic communicated by him in his 11 update on what was happening on the ground had to do with 12 automatic gunfire and that he discussed the fact that 13 automatic gunfire can be mistaken for semi-automatic 14 gunfire. 15 And again, leaving aside the identity of 16 the person providing the report, that accords entirely 17 with your recollection, am I right? 18 A: Yes. 19 Q: Okay. Indeed, semi-automatic can be 20 mistaken for automatic; if I reverse those, you 21 understood what I meant? 22 A: Yes. 23 Q: And -- and indeed, that accords with 24 your recollection because you made the point yesterday 25 that -- that from your perspective you didn't see what
201 difference it made, gunfire is gunfire, right? 2 A: Right. I think that was a more 3 relevant point as opposed to what type of weapon it was. 4 Yes, that's correct. 5 Q: And -- and what I'm going to suggest 6 to you is that the point that was be made -- was being 7 made, and let's assume it was Ron Fox so I don't have to 8 keep qualifying -- 9 A: Okay. 10 Q: -- my questions by -- by the unknown 11 identity of the person providing the update. The point 12 that was being -- being made by Ron Fox was that undue 13 reliance shouldn't be placed upon the report of automatic 14 gunfire, am I right? 15 A: I believe somebody made the point 16 that -- that there were reports of automatic gunfire and 17 -- and that somebody, and if was Ron Fox, made the point 18 that -- that it could have been semi-automatic gunfire 19 mistaken for it -- a automatic, I guess. 20 I mean, I think this point would be made 21 and to be honest with you, I couldn't see the relevance 22 of what type of weapon it was. 23 Q: Okay. Fair enough. Now, Ron Fox 24 testified that before he provided the update, he was 25 introduced. He did not say he was introduced as an OPP
211 officer or by reference to his rank. 2 Now, in fairness, Scott Patrick's 3 recollection was that Ron Fox was indeed introduced by 4 his rank. 5 And would it be fair to summarize your 6 position that Ron Fox may well have been introduced by 7 name, you don't recollect one way or the other, but not 8 by rank or in a way that communicated to you that he was 9 an OPP officer. Is that a fair summary -- 10 A: Yes, yeah. 11 Q: -- of where you're at? 12 A: That would be absolutely correct and 13 -- and I can tell you that I would be very firm, that he 14 was not introduced as an OPP officer or by his rank, 15 because I think that would have alerted me to -- to 16 believe that he was a member of OPP or even a former 17 member of the OPP and -- and I did not have that 18 impression. 19 Q: All right. And as I said, Ron Fox 20 didn't allege that he was introduced in that way, and 21 others may cross-examine you on that issue. It's not of 22 interest to me. 23 Whoever provided the update was indeed 24 giving you, however, the OPP's perspective on what was 25 happening on the ground; is that fair?
221 A: Yes. 2 Q: Now, Ron Fox testified then that you 3 made comments with respect to the police operations that 4 had taken place thus far, that you were displeased that 5 the matter had gone on as long as it had, and that 6 actions hadn't been taken. 7 And this point is captured in a slightly 8 different way on the taped conversation that Ron Fox had 9 with Inspector Carson where he says: 10 "The OPP, in my opinion, made mistakes. 11 They should have done something right 12 at the time. I'm sure this will all 13 come out in an inquiry." 14 And this is purported to be capturing your 15 comments. 16 Now, I want to deal with the inquiry point 17 first if I may. Chris Hodgson testified here that he did 18 recall a comment made by you that if matters worsened it 19 would all come out in an inquiry some day. If there's 20 mistakes made here it will all come out at an inquiry. 21 And Scott Patrick testified that -- that 22 you indicated that this story or information will come 23 out some day and at that time the OPP will have to 24 account for their actions. 25 Now, I'm not terribly fussed about whether
231 the term 'inquiry' was used by you. What I'm going to 2 suggest is, whether the word 'inquiry' was specifically 3 used, you may very well have communicated the notion that 4 the OPP will have to account for its actions at some 5 point in allowing the Park to be occupied, am I right? 6 A: Perhaps I can put it into context. 7 What I indicated yesterday and my recollection is that 8 there were questions that I would have asked of Ms. 9 Hutton or I would have asked at the meeting. And -- and 10 whether I gleaned the information and where the answers 11 came from, it -- it could have either, it could have been 12 both. 13 I believe there were questions asked and 14 there could have been some by me because I wanted an 15 understanding of how this event took place; how it 16 happened, were the police prepared, should they have been 17 prepared? 18 Those were all -- all questions that I or 19 others, particularly I think perhaps from -- from the 20 angle of the Ministry of Natural Resources would have 21 been asking at the meeting so we'd have a good 22 understanding. 23 The -- the evidence that others have given 24 that I have reviewed would be consistent with someone, 25 perhaps me, at some point saying, Can we forget all that.
241 Let's get on with why we're here. After the fact we'll 2 review -- somebody will review whether the appropriate 3 resources were there, whether more resources should have 4 been there, whether the occupation could have been 5 prevented. In the meantime let's get on with why we're 6 here which is dealing with the situation we have. 7 That's all consistent, I would say, with 8 the type of thing I would might have said at the meeting 9 or somebody else may have said at the meeting. 10 Q: Okay. So -- and there's a lot in 11 that answer and I'm going to deal with certain aspects of 12 it in a moment, but just trying to focus on -- on the -- 13 on the one concept that I put to you that -- and I take 14 it that in effect you are agreeing with me that -- that 15 you may well have communicated that at some point in the 16 future the OPP will have to account for its actions in 17 allowing the Park to be occupied? 18 A: I -- I think that would be a given, 19 that the OPP always has to, after the fact, account for 20 their actions and they always do. And I -- I don't 21 recall saying that but I may have and I see nothing wrong 22 if somebody or I said that. 23 Q: All right. And -- and as you say, 24 not only may you have said it but it accurately reflected 25 how you felt?
251 A: I do feel that way. I think that -- 2 that's how I feel today too. 3 Q: Okay. Now, going back to Ron Fox's 4 testimony that you made comments with respect to the 5 police operations that had taken place to-date and I 6 think you've conceded as much that in the course of 7 dialogue that took place you were posing questions -- 8 A: Yeah. 9 Q: -- about the OPP actions that had 10 taken place to-date. Fair so far? 11 A: I -- I asked to ascertain what had 12 happened, how it happened. You know, I think those were 13 appropriate questions because I felt those were questions 14 I was going to be asked or the Government would be asked 15 in explaining to -- to the media and to the public. 16 Q: So the answer to my question is yes? 17 A: Yes. 18 Q: All right. And when Ron Fox says 19 that you expressed displeasure that the matter had gone 20 on as long as it had I take it that accurately reflects 21 how you felt. 22 You were displeased that the matter had 23 gone on in the way that it had? 24 A: Well, it was displeased it occurred 25 in the first place. So --
261 Q: Of course. 2 A: -- yeah, one (1) second of occupation 3 was not a pleasure to me. 4 Q: And -- and just putting together 5 everything that you've said yesterday and today we have 6 you saying you wanted answers about what actions the OPP 7 had taken to keep the Park secure in the first place, 8 right? 9 A: Right. 10 Q: You were aware that the OPP had some 11 foreknowledge that the occupation was possible, right? 12 A: Yes. 13 Q: That you did question whether the 14 potential was being taken, or had been taken seriously 15 enough by the OPP, right? 16 A: I -- I don't know whether that's 17 exactly the -- the wording but I think given -- 18 Q: That sentiment? 19 A: -- I think that sentiment, yes, is 20 correct. 21 Q: Fair enough. That if the intent was 22 to keep the occupiers out of the Park, something had gone 23 wrong? 24 A: Yes. 25 Q: You indicated that sentiment?
271 A: Yes. 2 Q: And that you had the impression at 3 the end of the meeting that the OPP was not as prepared 4 as the MNR would have liked them to be, right? 5 A: That was my sense, yes. 6 Q: Okay. And -- and that sense would 7 have come from someone at the meeting representing the 8 MNR. Whether Mr. Hodgson or -- or someone else there. 9 A: Or it could have come from -- from 10 previous briefings that I'd received from Ms. Hutton from 11 other meetings that had taken place. 12 Q: And it's fair to say that all of the 13 sentiments that I've just articulated in my questions to 14 you, were expressed at some point without being precise 15 as to the language you used, during the course of the 16 dining room meeting. Am I right? 17 A: Or at briefings that I had received 18 that had taken place in discussions in Interministerial 19 Committee meetings. I indicated to you that -- that I'm 20 not clear in my mind whether it was Ms. Hutton reporting 21 to me the sentiments of discussions that took place at 22 the Interministerial Committee meetings or at the dining 23 room meeting. 24 But through that period of briefings that 25 I received and the one meeting that I attended to receive
281 information, that by the conclusion of the meeting of the 2 6th was my impression. 3 Q: All right. So -- and what we can say 4 with certainty is that -- that you may very well have 5 communicated all of those sentiments at the dining room 6 meeting? 7 A: Others may have and I may have. 8 Q: All right. Now Mr. Taman when he 9 testified here was told about Ron Fox's conversation on 10 the tape that paraphrasing you that the OPP in my opinion 11 made mistakes; they should have done something right at 12 the time; I'm sure this will all come out at the Inquiry. 13 And he said that it was consistent with 14 the sense of what the Premier said. 15 And -- and do you think that's a fair 16 outline by Mr. Taman of the sense that you were 17 communicating at the time? 18 A: I -- I think the words are not words 19 that I would have used at the time but the sentiment that 20 if there were mistakes that were made that could have 21 prevented the occupation, there would be a time and a 22 place to look at that. 23 In the meantime, we had a situation where 24 the occupation was taking place and we should deal with 25 it. I think that -- if that is the sentiment that --
291 that you are referring to from -- from Mr. Taman, then I 2 would agree with that. 3 Q: Mr. Hodgson testified here that you 4 said that: 5 "It was easier to avoid these 6 situations than it is to remove people 7 once an occupation had begun. There 8 was a lot of frustration on the 9 Premier's part when he made that 10 statement. It was manifested in a loud 11 firm voice." 12 Is that an accurate reflection of what you 13 may have said and done at the meeting? 14 A: Well, I don't recall the loud firm 15 voice but I -- I think the sentiment that it is easier to 16 prevent these situations than -- than correct them after 17 the fact if you like, is -- is accurate. I -- I think 18 that's true. 19 Q: It's accurate. You may well have 20 said it and you -- 21 A: May well. 22 Q: -- may well have said it in a sense 23 that communicated some frustration on your part, fair? 24 A: May have. 25 Q: May have. David Moran testified here
301 that the substance of your comments was that you were 2 disappointed that the OPP had allowed the situation to 3 get this far. 4 It was your understanding from previous 5 briefings that the OPP had the situation under control 6 and that everything was well in hand. 7 He thought you were expressing your 8 frustration and disappointment that when officials knew a 9 situation could be potentially become a real problem, 10 that the appropriate steps weren't taken to defuse it in 11 advance. The tone of the meeting was somewhat tense and 12 the Premier felt strongly about the issue. 13 Is than accurate reflection of what you 14 may have communicated at the meeting? 15 A: It sounds to me like a fairly 16 accurate assessment of the MNR position. 17 Q: Well no, I'm asking is it a fairly 18 accurate assessment of your position? 19 A: I -- I don't know that. But I'm 20 telling you that it sounds to me like a fairly accurate 21 presentation of the MNR position as articulated by the -- 22 the Assistant to the Minister of -- of the Minister of 23 Natural Resources. 24 Q: And may that have been a sentiment 25 that you communicated in the course of that meeting
311 that's why -- 2 A: If he may feel I concurred with their 3 position. 4 Q: All right. Well, I'll ask you this 5 right up front. I mean, here you've got and there's 6 several more to read to you but here you've got a number 7 of people reflecting the fact that you are communicating 8 disappointment at the fact that the OPP had allowed the 9 situation to get this far, that mistakes had been made, 10 that you had a certain level of frustration over the 11 situation. 12 I mean, do you see it as possible that 13 that was the message that I could read -- 14 A: I -- 15 Q: I'll just answer -- finish the 16 question, please. 17 A: Okay. 18 Q: Did you see that as possible as -- as 19 a message that could reasonably be taken from the 20 comments that you made at the dining room meeting? 21 A: No. I think I reflec -- as I 22 indicated to you, I think what I heard you quote me from 23 Mr. Moran is a pretty accurate position of the MNR 24 position. I don't recall saying that anybody made 25 mistakes. I recall disappointment that it occurred, that
321 the occupation occurred. 2 And I think my sentiment that I did agree 3 could have been my sentiment at the time, that after the 4 fact they -- we can -- we can ask all the questions we 5 want and -- and everybody will be accountable as to why 6 the occupation occurred. 7 I don't think at that point in time that I 8 was passing any judgment that there were mistakes made by 9 the OPP. 10 Q: Well, would you agree with me that 11 when one is communicating the thought it's easier to 12 avoid these situations than it is to remove people once 13 an occupation has begun, that would reasonably be taken 14 as meaning that the situation could have easily have been 15 avoided at first instance? 16 A: It -- I -- I think it's easier to 17 avoid these situations. I don't know that that's any 18 criticism of the OPP role. 19 Q: Bob Runciman testified here that -- 20 that you appeared anxious from your body language. 21 You're a strong personality. You're not shy about 22 expressing your concerns. You didn't want this to 23 deteriorate in to an Oka. You were expressing a level of 24 concern or frustration that the occupiers were still in 25 the Park. He didn't think you were very happy with the
331 fact that the occupation had evolved the way it had 2 evolved. 3 Again does that accurately reflect the 4 sentiments that you likely communicated in the course of 5 the meeting? 6 A: I think everybody around the table 7 felt that way, but I think there is a lot of emphasis 8 being put on -- on the situation. I think far more time 9 at this meeting was spent on what are we going to do 10 about it. 11 Q: All right. Well, I'm just asking you 12 about -- about this part of it for now as opposed to what 13 you're going to do about it. 14 A: Well, I -- 15 Q: What I asked you is did -- 16 A: I would be shocked if any 17 participants of the meeting did not feel that way; that 18 they regretted it took place, disappointed that it was an 19 ongoing occupation, and we wanted to quickly have the -- 20 the situation diffused and the occupation ended. 21 So if that is my viewpoint, if that's the 22 one you're expressing, I think that was everybody's view 23 point and I think I concurred with everybody. 24 Q: All right. Mr. Taman testified that 25 he recalled having a dialogue with you in which you
341 indicated that you would have thought that the police 2 would have had the First Nations citizens out of the Park 3 by this time. 4 Is that an accurate reflection of what you 5 said? 6 A: No. 7 Q: And you're quite definitive about 8 that? It never happened? 9 A: I -- I may have asked questions about 10 -- about what role everybody takes. It may have been of 11 Ms. Hutton to ask, it may have been me asking, but I -- I 12 don't believe I would express it that way, no. 13 Q: All right. Well, whether expressed 14 in that way or not did you have a dialogue with Mr. Taman 15 in which you expressed the view in whatever form that you 16 would have thought that the police would have had the 17 First Nations citizens out of the Park by this time? 18 A: I don't recall any dialogue with Mr. 19 Taman outside of that meeting so if there was dialogue at 20 that meeting that he has interpreted that way that -- 21 that it's possible his interpretation, yeah. 22 Q: Well, not only is it possible, it's 23 his interpretation but it's possible that those were the 24 sentiments that you communicated in a dialogue with Mr. 25 Taman?
351 A: My recollection of my sentiments at 2 the meeting were -- were more asking how, why. And if 3 somebody interpreted that as -- as me thinking it 4 shouldn't have happened then that may have been their 5 interpretation, but that's not my recollection of how I 6 felt going in the meeting and my participation in the 7 meeting. 8 Q: You could see -- I take it we can 9 agree that you could see how a forceful articulation by 10 you of the kinds of questions that have been raised about 11 how the OPP had dealt with the situation before, could be 12 taken reasonably as criticism of the OPP? 13 A: No, I -- I don't -- 14 Q: You don't agree with that? 15 A: -- quite honestly with you. I -- I 16 think that -- that it is entirely appropriate that those 17 who are not involved in any of these decisions, had not 18 been involved before, were not involved operationally, 19 but we're -- we're now after the fact seeking answers are 20 asking these questions. 21 And this was clearly for us as a 22 government in a new situation, for Ms. Hutton, for 23 myself, and I -- I think we -- we quite appropriately 24 asked all of these questions to ascertain for ourselves 25 where all -- you know, what occurred and -- and were all
361 the steps taken appropriate and getting a good 2 understanding of that. And -- and that's -- that's our 3 job now. 4 Now, if someone interpreted those 5 questions as -- as taking a position I'm -- I'm sorry but 6 I think that's the wrong conclusion. 7 Q: Well, at the end of the meeting were 8 you satisfied that the OPP had -- had done all that it 9 could do to prevent the occupation? 10 A: I wasn't dissatisfied. I think the 11 sentiment was, let's not worry about that. I have great 12 confidence in the OPP, I have before taking government, 13 and have since taking government and still do. A great 14 respect for a very difficult job that they do. 15 Q: Now, Mr. Taman indicated that -- that 16 you expressed a sentiment that in other situations, the 17 police would have gotten the people out of this place 18 very quickly. 19 In effect, that other police forces might 20 have done a -- a better job. Does that accurately 21 reflect what you said to him? 22 A: No, not at all. It may very well be 23 that I or somebody asked, are we handling this situation 24 in Ontario the same way as they would in other provinces 25 or other jurisdictions; is there anything different
371 there? Just so that we have that understanding. 2 That may very well have been asked in -- 3 in questioning what we were doing, and how we were 4 handling it. But I -- I don't believe that -- and I know 5 I would not have said, oh, I think others would have done 6 a better job or anything to that effect. 7 Q: Mr. Taman testified that -- that he 8 told you that it could very well be that the better 9 policing practice in this situation was to wait and give 10 the situation a chance to stabilize and to come into 11 order in a slower, and more careful way. 12 Could he have communicated that sentiment 13 to you? 14 A: He could have, and I wouldn't 15 disagree with that sentiment. 16 Q: All right. Scott Patrick testified 17 that Mr. Taman spoke to you about how the OPP and the 18 approach in the past had been successful; that dialoguing 19 and negotiating with First Nations when used in a 20 conjunct -- in conjunction with -- with an injunction had 21 been successful in the past. 22 Could that sentiment have been 23 communicated by Mr. Taman to you at that meeting? 24 A: It could have, and I don't believe 25 that I would disagree with that sentiment or did disagree
381 with that sentiment. 2 Q: Now, Mr. Taman also testified that -- 3 that you made it clear at that meeting that, in a firm 4 way, that the First Nations should be removed from the 5 Park. 6 And I -- and I take it that -- and he said 7 there was nothing wrong with the Government saying that 8 we have a zero tolerance of people who are illegally in a 9 Provincial Park. 10 I take it that sentiment would certainly 11 have been communicated firmly by you at that meeting? 12 A: I thought that was everybody's view. 13 Q: Well, it was simply -- 14 A: It was my view. 15 Q: It was -- of course it was your view. 16 A: Well, I would -- 17 Q: I have to start somewhere, all right? 18 A: Well, I realize that but I think that 19 I felt that was the view of everybody and I concurred 20 with it. 21 Q: All right. And in fairness to -- to 22 the former Attorney General, Mr. Harnick, who -- whose 23 recollection at this Inquiry was that -- that you 24 indicated: 25 "I want the fucking Indians out of the
391 Park". 2 Leave aside the expletive, the sentiment 3 that you did communicate at the meeting was that you 4 wanted the occupiers out of the Park? 5 A: Yes. 6 Q: Right. I mean the debate is over the 7 expletive. The substance of the balance of what Mr. 8 Harnick remembers perfectly accurately reflects your 9 sentiment at that meeting, doesn't it? 10 A: I think it reflected everybody's 11 sentiment. 12 Q: Including yours. 13 A: Including mine. 14 Q: Fair enough. Now, Elaine Todres 15 testified that -- that there was a heated discussion, 16 there was a lot of frustration on the part of 17 politicians; there was a great deal of sense of urgency 18 about dealing with this issue as promptly as possible. 19 Now, the last line you've already 20 acknowledged that -- that there was, certainly, a sense 21 of urgency about dealing with the issue as promptly as 22 possible, am I right? 23 A: Yes. 24 Q: And what she's expressing and what 25 others are expressing is that what was bubbling up
401 throughout this meeting on the part of the politicians 2 was -- and by the politicians here, I'll refer to you and 3 Mr. Hodgson in particular, was a lot of frustration. 4 And again, does that accurately reflect 5 the tenor of the meeting? 6 A: No, that's -- that's not my 7 reflection or re -- memory of the -- of the tenor of the 8 meeting. 9 Q: Now, Ron Fox, in his taped 10 conversation with John Carson he described the government 11 as "redneck" and I -- I'm not going to ask you to comment 12 upon his characterization, as I say. 13 But he was asked to explain what was 14 actually said at the meeting that gives context to the 15 comment and he said that there's one (1) justice for all, 16 there's no differential treatment for anybody. The 17 Premier reflected that we should not pander to the Native 18 communities and they will be treated the same as 19 everybody else. 20 And in his taped conversation to Chief 21 Superintendent Chris Coles, he uses these words: 22 "The Premier was quite adamant that 23 this is not an issue of Native rights. 24 And in his words we've tried to pacify 25 and pander to these people for too
411 long. It's now time for some swift 2 affirmative action." 3 Now again, let's see where we have common 4 ground here. You were of the view that this was not an 5 issue of Native rights, the occupation was illegal, am I 6 right? 7 A: That's correct. 8 Q: And you communicated that view? 9 A: I communicated that. I think that 10 was -- that was the consensus that we all came to, that - 11 - and -- and I think it's important that the Commission 12 understand that -- that -- that the occupation was not 13 sanctioned by the Chief. It was not sanctioned by the 14 official elected representatives of the Kettle and Stony 15 Point Band. That it was a dissident group that had taken 16 over land that did not belong to them. 17 So we viewed it as -- as an illegal 18 occupation. There were no claims by this group of 19 ownership of the land, the land claim of -- of what they 20 wanted. 21 And so in that sense I think we viewed 22 this as -- as not a -- an issue of -- of Native versus 23 non-Native that the -- the laws would be applied equally 24 whether this was a group of Natives or a group of non- 25 Natives.
421 And I think that is the sentiment and I 2 believe that -- that was the consensus of not the 3 majority view of those at that meeting. 4 Q: So just responding to the very 5 limited question that I'm putting to you now, when Ron 6 Fox told Chris Coles in a contemporaneous taped message 7 that the Premier was quite adamant that this is not an 8 issue of Native rights, that was a perfectly accurate 9 statement, wasn't it? 10 A: Yes. I believe that that was my 11 viewpoint. 12 Q: Right. 13 A: Whether I was adamant about it or 14 whether I came to the conclusion as a result of -- of Ron 15 Fox's and others concurring with that, I think would -- 16 would perhaps differentiate how it was explained. 17 Q: And when he told Chris Coles that in 18 your words "we've tried to pacify and pander to these 19 people for too long", I'm going to suggest to you, you 20 did not think it appropriate to pacify or pander to 21 illegal occupiers, did you? 22 A: I don't believe those were my words. 23 But I -- I did not feel that it was -- that we should 24 treat an illegal occupation any differently than other 25 Governments had. I think the quote I was given I think
431 was, we don't negotiate over barriers, from the NDP 2 Government. 3 So I -- I don't interpret my view at that 4 meeting as any different than -- that other governments 5 would have taken or -- or any reasonable person would 6 have taken had they had the information that I had. 7 Q: But I'm really putting to you, again, 8 a very limited question, and that is that if Ron Fox took 9 from your comments in his words, "We've tried to pacify 10 and pander to these people for too long", you may very 11 well have expressed that sentiment and in those precise 12 words, I'm -- 13 A: I doubt it. He may have concluded 14 that from a series of meetings that he -- he had on it. 15 But I don't believe I would have used those words and I 16 don't know what he -- his definition of those are because 17 they're not my words. 18 Q: Well, I'm not asking for his 19 definition. I'm just saying that it's possible -- 20 A: Well, but I don't understand his 21 definition. It's pretty tough for me to comment. 22 Q: Is it possible that you used those 23 words? 24 A: No. 25 Q: Are you quite certain about that?
441 A: I -- I don't believe I used those 2 words, no. 3 Q: "It's now time for some swift 4 affirmative action." 5 It certainly was time as far as you 6 regarded it for some swift action to be taken. We can 7 debate what the action should be but it's fair enough. 8 A: I -- I believe -- I believed we 9 should be moving quickly to end the occupation, taking -- 10 Q: Fair enough. 11 A: -- the measures that we should, yes. 12 Q: All right. Now both Ron Fox and 13 Scott Patrick talked about a comment that had something 14 to do with the holocaust. And in -- and in fairness, 15 because we know what a public inquiry how -- how these 16 comments can -- can mushroom, they -- they were unable to 17 put it in context, you certainly don't recollect saying 18 anything to that affect and -- and they hadn't alleged 19 that -- that anything beyond that. 20 But I want to ask you one aspect of it and 21 that is when Scott Patrick was asked to comment about -- 22 about the context here, he was able to say in the course 23 of his testimony, that -- that something was said about 24 this being a test, that you were a new government and 25 that this is how things get started.
451 And what I want to ask you is this. Could 2 you have communicated the sentiment in that meeting that 3 -- that one had to deal with this situation in a decisive 4 way because it is a test for our government? 5 A: Yeah, I don't -- don't recall the 6 word test, but I -- I would agree with this sentiment 7 that -- that -- that how -- how we acted would be viewed 8 by others, Native and non-Native as to whether we would 9 tolerate illegal action in -- in any sense. 10 Q: All right, so -- 11 A: I think that's fair. 12 Q: And again, I think you can see the 13 recurrent theme in the questions I'm asking you, is that 14 apart from the precise language that was used, that kind 15 of a sentiment namely that this would be looked to it as 16 the way the Government would deal with an illegal 17 occupation was something that you may very well have 18 communicated? 19 A: I -- it certainly wasn't foremost on 20 -- on people's minds, but I was always cognizant and I 21 think the government's always cognizant that -- that you 22 need to be consistent in how you're -- you deal with 23 situations, all situations. 24 Q: And the answer to my question is 25 "yes"?
461 A: I -- it -- I'm sorry, what's your 2 question again. 3 Q: Oh, there's the problem. What I was 4 suggesting is that the sentiment that you may very well 5 have been communicating in the course of the meeting was 6 that -- that the Government had to act decisively on this 7 matter, because -- 8 A: No, no. 9 Q: -- it would be -- it would be looked 10 to -- 11 A: No, I think -- I don't agree with 12 that. I think we felt it was appropriate to act 13 decisively on this matter, that's one thing. 14 I don't think it was appropriate to act 15 decisively so we could set an example as how we would act 16 in five hundred (500) situations that might occur during 17 our tenure. 18 I think it was appropriate to act 19 decisively; that was an appropriate decision to make. 20 Separate from that was a sentiment that -- that we -- we 21 needed to be consistent. Would this be viewed by others, 22 that that could be there, too. 23 But I think the two (2) are disconnected 24 and both true. 25 Q: All right. Well, see part of this
471 is, as much as anything else, the tenor of the meeting 2 that took place and as -- as you can hear, as I'm reading 3 to you pass -- passages from various people who attended 4 the meeting, there's a lot of talk about frustration and 5 strength on your part and firmness on your part and -- 6 and clear messages being sent on your part. 7 And when I hear your testimony today and 8 yesterday, I don't get any sense of that at all and I'd 9 just ask you to comment on that. 10 A: I think I was pretty clear at the 11 time and clear today that -- that we needed to take 12 action as soon as possible to end the occupation as soon 13 as possible. 14 If -- I think that's -- was my view. 15 Others have expressed the view in different ways and 16 different language and different terms, but I do not deny 17 that that was my view. 18 Q: Okay. Now, we've heard some evidence 19 that after you left the meeting, there was a somewhat 20 animated discussion as between Minister Hodgson and Ron 21 Fox and that one of the comments made by Mr. Hodgson was, 22 You stay out of politics because I'm told that I have to 23 stay out of police business. 24 And -- and I'm not asking you to comment 25 on what, if anything, was said in your absence because we
481 can agree on one thing, you can't help us on that. 2 But you and Minister Hodgson and the 3 others at the meeting were indeed told, in effect, that 4 you have to stay out of police business, right? 5 A: Yes. 6 Q: Right. And what we've heard from 7 several witnesses -- 8 A: By the way, I didn't -- I didn't 9 sense any surprise in being told that or any reluctance 10 to accept that advice -- 11 Q: Well -- 12 A: -- or any frustration. 13 Q: Well, that's what I want to ask you 14 about -- 15 A: I thought so -- 16 Q: -- because -- 17 A: -- because I'm telling you I -- I 18 didn't feel anything. 19 Q: That's what I want to ask you about 20 because I want you to now -- I want you to have an 21 opportunity to -- to comment on what others have said 22 about the dining room meeting. And Ron Vrancart 23 testified that: 24 "Mr. Taman inserted himself into 25 discussion on a couple of occasions and
491 forcefully made the point with the 2 politicians that not only did they have 3 to, but they had to be seen not to be 4 instructing the police on the matter. 5 He was forceful, because he had to 6 insert himself into the conversation. 7 This was a new government with a steep 8 learning curve." 9 David Moran testified that both the Deputy 10 Solicitor General and the Deputy Attorney General spoke 11 at length about the separation of the political side 12 versus the police officers. 13 Jeff Bangs testified that you were asking 14 why you were there if you were being told by these people 15 that there was no role for him. 16 "He didn't have a role in directing the 17 OPP so what was he being asked to do?" 18 Mr. Taman also testified that Ron Fox told 19 him after the meeting that he was glad that Mr. Taman had 20 reinforced the fact that operational management of this 21 was for the OPP. 22 It was Elaine Todres that initially spoke 23 about the separation between operational matters and the 24 Government: 25 "I said I thought it was important to
501 bear in mind that the best practice in 2 the situation was that when there was 3 an ongoing law enforcement matter that 4 the police had the operational 5 management." 6 Now, the question that I have for you is 7 this. You've made it quite clear in your testimony 8 yesterday that you were well aware without being told and 9 that you expected that your ministers were well aware 10 without being told that operational matters were for the 11 police and policy was for the Government, am I right? 12 A: That's correct. 13 Q: And yet we've heard several witness 14 testify here that -- that both Ms. Todres made the point 15 and felt that the point had to be made, that Mr. Taman 16 made the point and felt that the point had to be made, 17 that indeed Mr. Taman inserted himself into the 18 discussion several times to forcefully make the point. 19 And I'm wondering if you have any comment 20 on, first of all, whether that took place, namely the 21 point being made both by Mr. Taman and Ms. Todres that 22 you could have no involvement in police operational 23 decisions? 24 I'll stop there. Now, is that possible 25 that they both --
511 A: My recollection is that -- that the 2 point was made by Ms. Todres and I recall that kind of at 3 the outset. I indicated yesterday I didn't recall Mr. 4 Taman repeating that but it is possible. 5 Q: But it is possible. So I guess the 6 question is if you already knew this and you expected 7 that all of your Ministers knew it, do you have any 8 explanation for why the point would have to be made 9 several times by several people? 10 A: No, I -- I don't have an explanation 11 for that save and except I can tell you, that we were 12 asking questions of police operation after the fact so we 13 could understand what happened. It is -- it is possible 14 that -- that somebody had said, Well, you're not involved 15 in operational decisions; we all understood that; nobody 16 was asking to be involved. 17 Q: So -- 18 A: But after the fact I think it was 19 fair for us to ask what happened? What action was taken? 20 Clearly occupation took place. How do we explain this to 21 the media and to the public? Those are questions that 22 are likely to be asked. 23 I think those are fair questions and if 24 anybody interpreted that as -- as wanting to go further 25 into the future they're very, very mistaken. I think
521 everybody including me understood that we were not and 2 would not be involved in any operational decisions of the 3 OPP. 4 Q: I hear what you're saying, but what I 5 also heard from your -- your last comment is that -- is 6 that one explanation, based upon your attendance at the 7 meeting, for why Mr. Taman might have and Ms. Todres did 8 interject about the importance of not being involved in 9 police operations is that discussion did take place about 10 whether the OPP had reacted appropriately to the 11 occupation of the Park. 12 You can see that there could be a nexus 13 between that discussion taking place and why Deputy 14 Ministers would want to remind the politicians what their 15 roles was? 16 A: Just to correct the record -- 17 COMMISSIONER SIDNEY LINDEN: Just before 18 you answer, Mr. Harris -- 19 THE WITNESS: Yes. I'm sorry. 20 COMMISSIONER SIDNEY LINDEN: -- your 21 Counsel is on his feet. 22 MR. PETER DOWNARD: I'm -- I'm hesitant 23 to interfere with the cross-examination but we're awfully 24 close to asking the Witness to speculate what's in the 25 minds --
531 COMMISSIONER SIDNEY LINDEN: To get into 2 the minds of other people and so on. 3 MR. PETER DOWNARD: Right. Right. 4 COMMISSIONER SIDNEY LINDEN: Very close 5 but I -- 6 MR. MARK SANDLER: I'm not quite over the 7 line yet. 8 COMMISSIONER SIDNEY LINDEN: I think 9 you're very close though so -- 10 MR. MARK SANDLER: Well -- 11 COMMISSIONER SIDNEY LINDEN: We don't 12 want to wait until you go over. 13 MR. PETER DOWNARD: The closer we gets to 14 the line the -- the more useless the -- any answers 15 become, so. 16 COMMISSIONER SIDNEY LINDEN: Yes, the 17 more -- I think you may have gone as far as you need to 18 go in that area, Mr. Sandler. 19 MR. MARK SANDLER: Yeah. It may well be. 20 THE WITNESS: Perhaps, Mr. Commissioner, 21 could I -- can I correct the record? 22 COMMISSIONER SIDNEY LINDEN: Yes, by all 23 means. 24 THE WITNESS: It is not my belief that 25 Ms. Todres interrupted the meeting at any point to
541 explain the role about the police and politicians. It 2 was my recollection, very clearly, that she, at the 3 outset, reminded everybody of that before our discussion 4 took place. 5 6 CONTINUED BY MR. MARK SANDLER: 7 Q: Fair enough. And I -- I heard your 8 evidence the other day and -- and thank you for 9 correcting that. 10 So -- so try and ask the question in a 11 slightly a different way so as not to run afoul of Mr. 12 Downard's concerns, and I'm always mindful of, if two (2) 13 individuals at that meeting, two (2) Deputy Ministers 14 felt the need to articulate the separation between policy 15 and police operations, you could see why there may well 16 have been a need to do so given where the conversation 17 went in the course of the dining room meeting, isn't 18 that -- 19 A: I think the best I can tell you is 20 that I didn't see any need for it. I understood it and I 21 don't recall anything at the meeting that required it. 22 Q: All right, so we have your answer. 23 Thank you. Those are all the questions I have. Thank 24 you, Commissioner. 25 COMMISSIONER SIDNEY LINDEN: Thank you
551 very much, Mr. Sandler. 2 It's ten to 10:00. Like I say it's a bit 3 too early for a break. Would you like to start and then 4 have a break? I think that's what we should do. It's 5 too early to have a break now. 6 Why don't you start, Mr. Klippenstein. 7 8 (BRIEF PAUSE) 9 10 COMMISSIONER SIDNEY LINDEN: I recall 11 your estimate that the time was roughly four (4) to five 12 (5) hours. Is that still a reasonable estimate? 13 MR. MURRAY KLIPPENSTEIN: I expect I may 14 be less than that. 15 COMMISSIONER SIDNEY LINDEN: That's fine. 16 Carry on. 17 MR. MURRAY KLIPPENSTEIN: And if I -- a 18 moment's indulgence just to set up my materials here. 19 COMMISSIONER SIDNEY LINDEN: Fine. Would 20 you like to take a short break? 21 MR. MURRAY KLIPPENSTEIN: It may be 22 beneficial because I have to move some binders over here. 23 COMMISSIONER SIDNEY LINDEN: Why don't we 24 do that and take a short break now. It's a bit early but 25 that's fine.
561 THE REGISTRAR: This Inquiry will recess 2 for five (5) minutes. 3 4 --- Upon recessing at 9:53 a.m. 5 --- Upon resuming at 10:06 a.m. 6 7 COMMISSIONER SIDNEY LINDEN: Let's go. 8 MR. MURRAY KLIPPENSTEIN: Thank you, 9 Commissioner. 10 11 CROSS-EXAMINATION BY MR. MURRAY KLIPPENSTEIN: 12 Q: Good morning, Mr. Harris. 13 A: Good morning. 14 Q: My name is Murray Klippenstein and I 15 represent the Estate and Family of Dudley George. 16 And I'd like to ask you a number of 17 questions with respect to, first of all, the question of 18 the injunction and your understanding of the 19 implementation of such an injunction. 20 I guess it's trite to say that one of the 21 issues that's come up over the last many years is the 22 allegation that there was improper influence or direction 23 from the Government to the police in a way that affected 24 the police in the Ipperwash events. 25 Is that fair? That's trite I guess.
571 A: I -- I'm not aware of anything that - 2 - that would cause anybody to come to that conclusion. 3 Q: All right. But that's certainly been 4 one of the allegations; is that fair? 5 A: Yes. 6 Q: And I was listening yesterday in your 7 testimony with Mr. Millar where at one point you 8 described your understanding, I think, of how the 9 procedure of an injunction and implementation of that 10 injunction would work. 11 And I would like to just read that to you 12 from the transcript and just see if that's still your 13 view or understanding of how the process would work. 14 Obviously I think your view was that you 15 wanted to have the Government get the protesters out of 16 the Park, right? 17 COMMISSIONER SIDNEY LINDEN: Excuse me. 18 Yes, Mr. Downard...? 19 MR. PETER DOWNARD: Yes. When we're 20 having transcript references, if we could have a page 21 reference please. 22 COMMISSIONER SIDNEY LINDEN: I'm sure 23 you're going to get it. 24 MR. MARK SANDLER: Yes, I was going to 25 get to that, but thank you, Mr. Downard.
581 2 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 3 Q: My question a moment ago was that, 4 obviously, it was the Government's wish that the 5 protesters be actually out of the Park, right? 6 A: Yes. 7 Q: Yes. Okay. And Mr. Millar took you 8 through various events related to the meeting in the 9 dining room near your office on September 6th. 10 And I'm going to call it the boardroom 11 because I think that's what you suggested it was rather 12 than a dining room, it was actually a boardroom, right? 13 A: I think that's a more accurate 14 description of it, yeah. 15 Q: Okay. And it's a boardroom that's 16 adjacent to the Premier's main office, is that right? 17 A: That's correct. 18 Q: So it's -- it's a boardroom that's 19 not available to other people, so it's fair to call it 20 the Premier's boardroom, is that fair? 21 A: I think it's referred to that way. I 22 -- I'm not so sure it wouldn't be used by other people, 23 but... 24 Q: It doesn't matter. Mr. Millar took 25 you through the meeting in the Premier's boardroom, if I
591 can use that term now, on the afternoon of September 6th, 2 and -- and in response to questioning about how you felt 3 things had been left after that meeting, and I'll just 4 take the liberty of -- of reading a few sentence -- 5 sentences. 6 You said -- 7 COMMISSIONER SIDNEY LINDEN: Now what 8 page of the transcript are you reading from, just so we 9 can -- 10 MR. MURRAY KLIPPENSTEIN: Thank you, 11 yeah. 12 COMMISSIONER SIDNEY LINDEN: -- all be on 13 the same page. 14 MR. MURRAY KLIPPENSTEIN: It's at page 15 141, sorry 149 to 150. That's 149 to 150. 16 17 (BRIEF PAUSE) 18 19 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 20 Q: And you were quoted as saying: 21 "I recall leaving that meeting [which 22 is the September 6th meeting in the 23 Premier's Boardroom] and heading out 24 that evening and going to bed that 25 night feeling that lawyers would be
601 preparing an injunction, that we'd be 2 in Court the next morning, and that 3 once the injunction was obtained that - 4 - that that was the path to a peaceful 5 end to the occupation. 6 Q: All right. And what was your 7 understanding would happen after, 8 assuming an injunction was obtained, as 9 you hoped, on September 6th, what was 10 your understanding of what would happen 11 after that on September the 6th?" 12 And your answer was: 13 "On September 6th I felt whenever the 14 injunction was obtained, that it would 15 then be served on those who were 16 involved in the illegal occupation and 17 they would either leave or the OPP 18 would have to take steps through 19 negotiations or otherwise, to remove 20 protesters from the Park. 21 Q: And whose decision was it to -- 22 who did you understand would make the 23 decisions as to how to enforce the 24 injunction? 25 [and your answer] The OPP."
611 Is that still a bit of a summary and an 2 accurate summary -- 3 A: I -- I believe so. 4 Q: Yeah. If you could just wait until I 5 finish my questions. I realize I'm not as fast as My 6 Friend, Mr. Sandler, but if you could just be patient 7 with me. 8 So assuming -- I'd like -- I'd like to 9 just go through that so I can better understand how you 10 thought those steps would work and to the extent you can 11 elaborate on it. 12 I guess you felt that when the injunction 13 was obtained that it would be served. Did you have any 14 understanding of the service process? 15 A: No. 16 Q: All right. And then you said, it 17 appears that your understanding was: 18 "They would either leave or the OPP 19 would have to take steps through 20 negotiations or otherwise to remove the 21 protesters from the Park." 22 Now, I guess your understanding is that 23 they would -- one option is, once the injunction was 24 obtained and the order was served on them, they would 25 leave voluntarily.
621 Is that -- is that one of the -- had in 2 mind? 3 A: I don't think there was any 4 discussion at the meeting or before the meeting on that, 5 but that was -- was -- was my understanding and I -- it 6 may just have been a logical conclusion that I came to as 7 to what happens next. 8 Q: Right. But there wasn't any 9 discussion at the meeting that you recall? 10 A: I don't recall -- 11 Q: On the topic of voluntarily leaving 12 after serving of a Court Order. 13 A: I don't recall any discussion on what 14 would happen after -- after the injunction. I recall 15 that it would be up to the OPP and how or any action that 16 they took would -- would be their decision. 17 Q: All right. Well, you then continued, 18 and you said that: 19 "I guess failing a voluntary departure 20 from the Park, the OPP would have to 21 take steps through negotiations or 22 otherwise, to remove protesters from 23 the Park." 24 So let me ask you about what you said 25 about the OPP.
631 A: Yeah. 2 Q: "The OPP would have to take steps 3 through negotiation." 4 I take it from what you said, you had in 5 mind that the OPP could use the Court Order that they 6 leave the Park as something to negotiate with, with the 7 protesters; is that fair? 8 And say to them something like: There's 9 now a Court decision and you have to leave. You can't be 10 here, you have no right to be here, leave. 11 Is that what you had in mind? 12 A: I didn't have anything particularly 13 in mind. I thought it's -- it's like, it's entirely 14 speculative, but it -- so and I'm not -- I -- if I was 15 the OPP and I'm not, and I wasn't, I would think that 16 would -- that would be logical. 17 And by the way I'm not sure if you're 18 putting word 'protestors' into my mouth or whether that's 19 your definition. I -- I didn't know that anything was 20 really being protested so I -- I think a fairer 21 description of the dissident group is 'occupiers'. 22 Q: All right. I'll call them occupiers. 23 Now, the next point you made was that an 24 alternative to negotiations -- but before I leave the -- 25 the term 'negotiations', it was your understanding that
641 neither the OPP nor anyone from your government was 2 authorized to negotiate anything of substance while the 3 occupation was going on; is that right? 4 A: It depends what you mean by 5 substance. If it's substance as to -- to any potential 6 or future land claim I think that would be fair. I 7 didn't think that was a role for the OPP. 8 Q: Right. So, is it fair to say that 9 your understanding when you said the OPP would take steps 10 through negotiations would -- would be -- that the 11 negotiations would be only about the circumstances of 12 leaving the Park and nothing else? 13 A: Yes. 14 Q: And then you said -- you went on and 15 said: 16 "OPP would have to take steps through 17 negotiations or otherwise to remove 18 protestors from the Park." 19 Now, when you said, "or otherwise," I take 20 it you would mean things like arresting the -- the 21 occupiers, right? 22 A: I'm -- I'm not sure I had very much 23 thought put into it but in hindsight yes, I suppose that 24 if they refused to obey the court order which as I 25 understand the injunction is then -- then the police have
651 to deal with that -- is the police have to deal with it. 2 Q: Right. And I think you agreed with 3 me one (1) such otherwise that you talked about here 4 would be arrest, right? Have I got your answer right? 5 A: I -- I don't know that. 6 Q: You don't know that? 7 A: No. 8 Q: Okay. So when you said -- 9 A: Could be. 10 Q: Go ahead. 11 A: Possible. I -- I don't know. 12 Q: So it is possible that that would be 13 an arrest is your understanding? 14 A: I'm -- I'm not an expert in that 15 area. 16 Q: No, okay. I'm just asking -- I 17 didn't ask if you were an expert, I just said -- 18 A: Yeah. 19 Q: -- that was one (1) of the 20 possibilities when you said, "or otherwise"? 21 A: I -- I don't know that. 22 Q: You don't know that? 23 A: No. 24 Q: Okay. So when you said the OPP would 25 have to take steps through negotiations or otherwise,
661 you're not sure whether the other -- otherwise you refer 2 to included arrests? 3 A: I -- I think that's -- that's 4 correct, yeah. 5 Q: So you -- okay. 6 A: I -- but I'm -- listen, I don't know 7 the definition. Arrest applies to me that you -- you 8 arrest somebody, charge them, arraign them I guess; I 9 don't know if that's the right word. I -- I wasn't -- I 10 don't know whether that's the appropriate action to take 11 or -- or just remove them from the Park. 12 Q: Okay. When you say, "just remove 13 them from a Park," okay, let's step aside from my 14 question about arrest, so it's possible when you use the 15 word, "otherwise" to remove them your understanding in a 16 general sense was that once the OPP had a court order it 17 authorized them to physically go inside the Park and 18 physically remove them from the Park. 19 Was that -- 20 A: I -- I would assume if all other 21 avenues had failed and -- and that they would not leave 22 voluntarily then -- but I -- you know -- we -- we didn't 23 discuss that or have thoughts of that or anything at the 24 time. I mean I -- I've seen many examples. I suppose 25 maybe my impression comes from TV.
671 Normally if somebody is -- is -- wants to 2 make a point by way of -- of protest as to why they're 3 doing something then normally you like to have the 4 cameras there and somebody is carrying people off and -- 5 and they're going against their will, they prefer to 6 stay, and -- and everybody gets their point out that way. 7 That seems to be the way most of these things come to a 8 conclusion. 9 Q: All right. So are you saying to me 10 that that was -- when you said that the OPP would have to 11 take steps through negotiations or otherwise and you said 12 that was your understanding on September the 6th -- 13 A: No, I'm saying I have no idea what my 14 understanding was. I didn't think about it. I'm telling 15 you now that seems to be the way these things take place. 16 So if you're asking me my thoughts on 17 September 6th, as I've clearly indicated to you, I really 18 didn't have any thoughts. It wasn't discussed and it 19 would be left to the OPP. 20 Q: And so are you telling me that on 21 September 6th you and the Government were instructing 22 your legal counsel to get an injunction and you had no 23 idea how that might be implemented or enforced? 24 A: I -- I didn't have an idea. I had a 25 general sense that -- that everybody wants things
681 resolved peacefully; that the OPP, historically, had 2 always attempted to resolve things as peaceably as they 3 could. And I think I would have had a general sense that 4 -- that you would -- you would use and take only what 5 action was necessary to effect the Court Order. 6 7 (BRIEF PAUSE) 8 9 Q: Now, again going back to what you 10 said about your understanding that the OPP would take 11 steps with the injunction Order to remove protesters from 12 the Park. 13 Just for clarity your understanding and 14 when -- your intention, when you talked about this, is 15 that the protesters would be out of the Park, right? 16 A: Yes. The occupiers would leave the 17 Park and the Ministry of Natural Resources on behalf of 18 the people of Ontario, would have their Park back. 19 Q: I apologise. I used the word 20 'protesters' when I said I would use 'occupiers'. 21 A: We understand each other. 22 23 (BRIEF PAUSE) 24 25 Q: If I could -- I believe you have two
691 (2) or three (3) binders on your table, and I'll ask you 2 to refer to one. The big, thick one is the material put 3 before you by the Commission Counsel and the two (2) 4 others which I'll possibly be referring to later, were 5 provided by us. 6 If you could get that large binder and 7 turn to Tab 39 which is a handwritten note by Larry Taman 8 and it's Inquiry Document Number 3000776 and it's Exhibit 9 number -- 10 MR. DERRY MILLAR: 550. 11 MR. MURRAY KLIPPENSTEIN: 550, thank you, 12 Mr. Millar. 13 14 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 15 Q: So, I know it's a bit difficult with 16 such a thick binder -- 17 A: Yes, it's going to take me a while to 18 get there. 19 20 (BRIEF PAUSE) 21 22 A: I think it would be easier to leave 23 some of those out of the binder. 24 25 (BRIEF PAUSE)
701 Q: Yeah, maybe just take some pages out. 2 We can have that -- 3 A: Yeah. 4 Q: -- corrected during the break. 5 A: The -- which Tab, now, do you want? 6 Q: This is at Tab 39. 7 A: Okay. 8 9 (BRIEF PAUSE) 10 11 COMMISSIONER SIDNEY LINDEN: It looks 12 like the rings aren't aligned properly and you'll have 13 to -- 14 THE WITNESS: Yeah, they're going to have 15 ton -- it just keeps coming apart. Okay. Tab 39, there 16 we go. 17 18 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 19 Q: Tab 39 is, when you flip one (1) 20 page, a note with handwriting on it; do you see that? 21 A: I do. 22 Q: And the evidence is that this is a 23 note from, I guess the day book, of Mr. Larry Taman who, 24 of course, was the deputy Attorney General at the time 25 and the handwriting at the top, I'll just go through it,
711 says: 2 "ONAS meeting re. Ipperwash." 3 Do you see that? 4 A: Yes. 5 Q: And then it says: 6 "AG instructed by P that he desires 7 removal within twenty-four (24) hours 8 [hyphen] - instructions to seek 9 injunction." 10 And that is a correct reading of those 11 words, according to Mr. Taman. 12 Mr. Taman's evidence was that he wrote 13 those words on September 6th, 1995, and he was entirely 14 sure at what point in the day he wrote them or that 15 reference was, but he was clear that he wrote that on 16 September 6th. 17 Now, again, I think Mr. Sandler touched on 18 this, but you have no notes from September 6th, 1995, 19 obviously, right? 20 A: That's correct. 21 Q: And nor does, for example, your 22 executive assistant, Deb Hutton, right? 23 A: I don't know. 24 Q: Okay. But you don't know of any -- 25 A: No, I --
721 Q: -- of hers? 2 A: -- I'm not aware of notes. 3 Q: All right. And this note refers to 4 instructions from the Premier to the Attorney General, 5 generally, and talks about removal and talks about 6 instructions to seek an injunction. 7 Now do you know of any other note or 8 document in writing that contains instructions about an 9 injunction on September 6th, 1995? 10 I don't know of any such note and I'm just 11 clarifying or wondering if you -- 12 A: I -- I don't know. 13 Q: Okay. Now the -- the first part of 14 that note says, "AG instructed by P", now we've heard 15 various evidence and various people about what that meant 16 and when it might have happened on September 6th. 17 But Mr. Taman was clear that his 18 understanding on September 6th was that the Premier 19 desired removal of the occupiers within twenty-four (24) 20 hours. 21 Now can you tell me if that was in fact 22 your desire at that time? 23 A: As soon as possible I think is -- is 24 -- was -- was my view before the meeting and after the 25 meeting.
731 Q: All right. And it appears very clear 2 that Mr. Taman understood that the removal in your 3 desires should take place within twenty-four (24) hours. 4 Do you know with -- do you know if that -- 5 do you recall if you actually said, Within twenty-four 6 (24) hours? 7 A: No my only recollection of twenty- 8 four (24) hours was -- I believe that was the estimate 9 that was given to all of us and to me at the meeting of 10 the soonest that an injunction was likely to be able to 11 be obtained; so preparation of the documents, into court, 12 obtain the injunction. 13 So that -- that's my only recollection of 14 -- of twenty-four (24) hours. 15 Q: All right. Now, I asked Mr. Taman in 16 some detail about the words he chose to write down and he 17 happens to have used the same word that you did in your 18 testimony yesterday, 'removal and remove'. 19 And I asked him very specifically whether 20 by removal he meant just obtaining an injunction or 21 implementing it as well. And he was very clear that his 22 understanding of the Premier's desire was that the 23 removal, namely obtaining the injunction and implementing 24 it, should happen within twenty-four (24) hours. 25 Now saying it that way, was that in fact
741 your desire on September 6th? 2 A: My desire was as soon as possible. 3 And I -- I certainly didn't have any indication whether 4 it would be twenty-four (24) hours or -- or seven (7) 5 days or fourteen (14) days. 6 The only timeline that I recall being 7 discussed was to -- to obtain the injunction. After that 8 it was in the hands of the OPP. Nobody would have 9 speculated, least of all me, as -- as to how long that 10 process would take. 11 Q: All right. Well, would you agree 12 with me that there appears to be a communication problem 13 if the Deputy Attorney General believed on September 6th 14 that the Premier wanted both an injunction and 15 implementation of that injunction within twenty-four (24) 16 hours and wrote that down; that was the only thing he 17 wrote about Ipperwash on September 6th. 18 Will you agree we have a communication 19 problem if that's not indeed your desires at that time? 20 A: I don't. 21 Q: We don't have a communication -- 22 A: I don't have a communication problem. 23 COMMISSIONER SIDNEY LINDEN: Sorry. Ms. 24 Twohig has an observation. 25 MS. KIM TWOHIG: Yes, Mr. Commissioner.
751 I think in fairness to Mr. Harris, it's important that 2 Mr. Klippenstein indicate that -- that what Mr. Taman 3 wrote down was information that he had received from the 4 Attorney General, not as a result of a direct 5 instruction. 6 COMMISSIONER SIDNEY LINDEN: From Mr. 7 Harris? 8 MS. KIM TWOHIG: From Mr. Harris. That's 9 right. 10 MR. MURRAY KLIPPENSTEIN: I didn't 11 suggest that. I didn't mean to suggest that but thank 12 you, My Friend, for the clarification. 13 The note only says -- well my questions 14 only relate to what -- the connection if any, between 15 what the Premier desired on September 6th and what the 16 Deputy Attorney General wrote down as his understanding 17 of the Premier's desires. 18 Now let me go back to my question. 19 COMMISSIONER SIDNEY LINDEN: But I think 20 the point that Ms. Twohig is making, is that didn't come 21 to Mr. Taman from the Premier. 22 Isn't that the point that she's making? 23 MR. MURRAY KLIPPENSTEIN: Fair enough. 24 That was Mr. Taman's evidence but my -- and my point -- 25 thank you for the clarification.
761 2 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 3 Q: My point is whether -- however this 4 information came to the Deputy Attorney General, would 5 you agree that we have -- we, the government, has a 6 communication problem if the Deputy Attorney General 7 thinks that an injunction should be obtained and 8 implemented within twenty-four (24) hours and that was or 9 -- and if that was not, in fact, your intention? 10 A: I can't speak for the Deputy Attorney 11 General and his thoughts at that time. He has testified. 12 You have his evidence. 13 All I can do is tell you that -- that I 14 don't recall, me or anybody else, having any expectation 15 of the timeline after having obtained the injunction. 16 I mean, I was well aware that -- that it 17 was possible the injunction would not be obtained for 18 days. So, I -- I would find it surprising, and I'm sure 19 it wouldn't be Mr. Taman's view, and I would be surprised 20 if anybody would have reflected that as my view. 21 Q: Well, would you agree with me, we 22 have a potentially serious problem then, if that wasn't 23 your view. You think it may not have been Mr. Taman's 24 view and yet the -- one of the only notes we have on this 25 from September 6th is Mr. Taman's note before us which he
771 said he carefully chose the words for, and that says the 2 Premier wants them out within twenty-four (24) hours. 3 Would you agree with me that's a potential 4 problem? 5 A: I don't see any problem. That isn't 6 what I wanted, but what I wanted wasn't particularly 7 relevant anyway. I wanted an injunction. Beyond that, 8 what any of us may have wanted was -- was not in our 9 hands. It was then in the hands of the OPP. 10 Q: Well, speaking, you know, as the 11 Premier of the Province and -- and as the -- one of the 12 participants in the decision about the injunction, isn't 13 it of concern to you if the Deputy Attorney General 14 thinks and writes down that the Premier wants removal 15 within twenty-four (24) hours and that wasn't, in fact, 16 your desire, isn't that a communication and a government 17 problem? 18 A: I don't know when he wrote the note. 19 I would very much doubt if Mr. Taman left the meeting 20 that I was at with him on the 6th, thinking that. 21 Q: So if you think that he didn't think 22 that, leaving the meeting, would you agree with me as the 23 Premier of the Province and a participant in this 24 injunction proceedings, that this should be of concern to 25 you if he left that meeting not thinking twenty-four (24)
781 hours and wrote this down and that appeared to be his 2 understanding. 3 Would you agree -- 4 COMMISSIONER SIDNEY LINDEN: Just a 5 minute. 6 THE WITNESS: No, I would not -- 7 COMMISSIONER SIDNEY LINDEN: It takes Ms. 8 Twohig -- 9 THE WITNESS: -- agree with -- 10 COMMISSIONER SIDNEY LINDEN: -- a minute 11 to reach the podium, but... 12 MR. DERRY MILLAR: The evidence, just to 13 be -- just in fairness. The evidence of Mr. Taman was he 14 believed that he wrote this note before the senior 15 management meeting in the morning of September 6th, which 16 he testified was at, he thought, at ten o'clock and he 17 testified that he thought it was at that point in the 18 morning because of its juxtaposition in his book. 19 COMMISSIONER SIDNEY LINDEN: Was that the 20 point you were going to make, Ms. Twohig? 21 MS. KIM TWOHIG: Yes, it is, thank you. 22 COMMISSIONER SIDNEY LINDEN: That's fine. 23 24 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 25 Q: Thank you. Would it be of -- would
791 you agree with me, whether this note by Mr. Taman was 2 written before or after the meeting in the Premier's 3 dining room, would you agree with me it's a problem if 4 the Deputy Attorney General thinks you want removal 5 within twenty-four (24) hours and writes that down, and 6 that's not what you wanted? 7 Isn't that of concern? 8 A: I -- I, you know, I can't answer that 9 for you. I -- I -- if -- if -- and I don't know what 10 weight Mr. Taman attached to it, I don't know when it was 11 written. I don't know how he received the information. 12 It -- if I read this it says it looks like 13 that I instructed the AG. If it was before the meeting, 14 that's certainly not correct. 15 So there's so many variables in all of 16 this, so I think the best thing that I can do is tell you 17 that it was not my view, nor was it my expectation. And 18 I tell you, I had no expectation of how long it would 19 take to obtain an injunction. 20 I had an expectation that the soonest it 21 would be likely is twenty-four (24) hours and beyond 22 that, I had no expectation. 23 After that, I -- I'm not going to 24 speculate on -- on whether it was a problem or it wasn't 25 or what others thought.
801 Q: And that's your reflection now, ten 2 and a half (10 1/2) years later of what your position was 3 then? 4 A: Yes. 5 Q: All right. And unfortunately, we 6 have no notes recording otherwise, those points you've 7 just mentioned. 8 A: Well, that was my recollection eight 9 (8) years ago, too, when you cross-examined me in a 10 different case. 11 Q: Well, and at that point, 12 unfortunately, we also only had your recollection from 13 many years before and this note, right? 14 And -- and my question to you is: Is 15 there not another possibility which is that your 16 recollection was wrong and that, in fact, your position 17 on September 6th was as stated in this note, which was 18 you -- you wanted removal within twenty-four (24) hours? 19 A: I think the words that I used, As -- 20 as soon as possible. I think that gives you a lot of 21 latitude for one (1) minute or if it was only possible in 22 -- in a month, you've got lots of latitude. 23 As soon as logically possible, following 24 the process, let's seek the injunction; that's a fair 25 interpretation of my view.
811 Q: Yeah. My question was: Isn't it 2 also possible that your recollection of your position 3 back then, now, ten and a half (10-1/2) years or eight 4 (8) years later, is wrong and that, in fact, the only 5 note we have here was correct? 6 Isn't that possible that your desire at 7 that time was removal within twenty-four (24) hours and, 8 in fact, you conveyed that, by words or actions or 9 combined, to the Deputy Attorney General? 10 Isn't that a possibility given this note? 11 A: No, I don't believe it is. 12 13 (BRIEF PAUSE) 14 15 Q: You -- you said yesterday, in answer 16 to questions from Mr. Millar about attendance of Ms. 17 Hutton at various meetings, including the 18 Interministerial Committee Meetings, that, essentially, 19 when Ms. Hutton went to the IMC meetings on September 5th 20 and September 6th, she had authority to speak on your 21 behalf and the Premier's Office behalf; is that fair? 22 A: Yes. 23 Q: Okay. And I would then ask you to 24 turn, in the same rather thick binder from the Commission 25 Counsel to Tab 23.
821 (BRIEF PAUSE) 2 3 A: Okay. 4 Q: And at that tab, and just a word of 5 explanation so it's not confusing, there are some 6 handwritten notes and these are the notes of one (1) 7 Julie Jai taken during meetings of the IMC on September 8 5th and 6th. 9 And if you turn in several pages of the 10 handwritten notes, you'll see a page that has a 11 handwritten "3" on the top. It's about four (4) pages in 12 or so? 13 A: Yes. 14 Q: And an inch down the page you see the 15 word, "Tim" on the left? 16 A: Yes. 17 Q: You see that? I'm going to ask you 18 about a question or -- or a statement attributed to Deb 19 Hutton, but just for background -- again that's Tab 23 in 20 the -- 21 COMMISSIONER SIDNEY LINDEN: Thank you. 22 MR. MURRAY KLIPPENSTEIN: That's at Tab 23 23. 24 COMMISSIONER SIDNEY LINDEN: I have it. 25
831 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 2 Q: And handwritten page 3 which is 3 approximately four (4) pages in. 4 And these handwritten notes, as I said, 5 were the notes of Julie Jai and this particular page is 6 from the notes of September 6th, 1995, in a meeting of 7 the IMC on the morning, just before the meeting in the 8 Premier's boardroom. 9 And I'll just read through a few lines 10 beginning with the word, "Tim" on the left. 11 Do you see that, Mr. Harris? 12 A: Yes. 13 Q: Okay. And this is a discussion of -- 14 with Tim McCabe, one of the Crown civil lawyers, about 15 the injunction, including service of the injunction and 16 whether to do it ex parte and the time frame. 17 "TIM: Ministers can say instructions 18 have been given to AG to seek an 19 injunction ASAP. Not a case for ex 20 parte injunction. Should give notice 21 but we could go into court to seek an 22 abridgement of the three (3) days 23 notice. We are checking with Sarnia 24 Court to find when a judge is 25 available."
841 Are you with me so far? 2 A: Hmm hmm. 3 Q: "The other variable, getting our 4 material ready. Need to establish this is 5 Provincial Crown land, title history, 6 incidents in Park, et cetera. Best case 7 Friday in court." 8 And I've questioned Ms. Jai, who wrote 9 these notes, who says she took these basically while 10 people were speaking and that -- and we've questioned Mr. 11 McCabe and the -- the bottom line is the words, "best 12 case Friday," appear to be Mr. McCabe's communication of 13 what he thought was the best case for the injunction to - 14 - to be scheduled in court, namely that Friday. 15 And then the next line says: 16 "DEB [which is Ms. Hutton]: Premier 17 feels the longer they occupy it, the 18 more support they'll get. He wants 19 them out in a day or two." 20 And for now I would just like to focus on 21 the last phrase which says: 22 "He wants them out in a day or two." 23 And I questioned Ms. Jai, fairly 24 extensively, about the meaning of those words or the 25 accuracy of them. And she was very clear that the -- the
851 reference there to "out" and so forth was, Out of the 2 Park in a day or two, was her understanding. 3 Now, does this assist your memory in -- in 4 -- if I ask you whether or not, as I asked before, on 5 September 6th your view was, at the time of this meeting 6 on -- in the morning, that you wished the protesters to 7 be out of the Park in a day or two? 8 A: No. 9 Q: And in the context of your 10 description yesterday of the process you believed would 11 take place after the meeting in the Premier's boardroom; 12 namely, how an injunction would be obtained and what the 13 OPP would do with it, can you assist us as to the 14 relationship between what Ms. Hutton said, on your 15 behalf, about getting them out in a day or two, and the 16 process you described yesterday. 17 COMMISSIONER SIDNEY LINDEN: Just before 18 you answer the question, yes, Ms. Perschy, on behalf of 19 Ms. Hutton, you have an observation. 20 MS. ANNA PERSCHY: Yes. Mr. 21 Commissioner, the concern, of course, here is that Mr. 22 Harris was not present at the Interministerial Committee 23 meeting and My Friend Mr. Klippenstein did ask Ms. Hutton 24 as to what she was intending to communicate at that time. 25 And I think, in fairness to this witness,
861 Mr. Klippenstein should make reference to Ms. Hutton's 2 understanding as to what it was that she was responding 3 to when she was making her comments and what her beliefs 4 were in terms of what she was trying to communicate. 5 Because he's being asked about the 6 relationship in terms of what Ms. Hutton was saying but 7 he isn't being provided with the context of her testimony 8 as to what it is she was responding to and what she 9 intended. 10 COMMISSIONER SIDNEY LINDEN: Well -- 11 MR. MURRAY KLIPPENSTEIN: I don't want to 12 get into this too far because that's not my point. And 13 perhaps I can clarify -- 14 COMMISSIONER SIDNEY LINDEN: I understand 15 that and that's why I don't want you to go too far and 16 you're going to have to quote all the evidence in your 17 examination of Ms. Hutton and so on. 18 MR. MURRAY KLIPPENSTEIN: I don't want to 19 and that's -- I don't believe that's necessary because my 20 question, for clarification, relates to this is what was 21 recorded of Ms. Hutton. 22 I'm not asking what was in Ms. Hutton's 23 mind. But I'm asking about the communication here that 24 happened to a room full of twenty (20) or twenty-five 25 (25) people about this statement, He wants them out in a
871 day or two. 2 COMMISSIONER SIDNEY LINDEN: But you have 3 to put the context and the question fairly to the witness 4 and I don't know what Ms. Hutton said about this. 5 But if it's different than this, you might 6 have to put the context so that the witness can answer 7 the question. 8 MR. MURRAY KLIPPENSTEIN: Well let -- let 9 me -- let me try a different phrase here. 10 11 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 12 Q: The -- these notes were taken by Ms. 13 Jai who was a senior lawyer and the Acting Chair of the 14 Committee at that point. 15 And let me just ask with respect to her. 16 Would you agree with me that we have -- and she wrote 17 down: 18 "Premier wants them out in a day or 19 two." 20 A: I have no idea what she wrote. If 21 she says these are her notes then talk to her about them. 22 I -- I don't know. 23 Q: My -- my -- the question I have -- 24 A: I -- I can confirm with you that's 25 what I read here, I don't know the context, I don't know
881 response and -- and I wasn't at the meeting. I'm not 2 sure I can help you anymore on this. 3 Q: See my question relates, and I'm -- 4 I'm going back to what you said yesterday about your 5 understanding of the procedure which was that the 6 Government would get an injunction and then the OPP would 7 negotiate or otherwise remove the protesters. 8 And it appears here that the note taker, 9 at least, thinks you wanted that all in a day or two. 10 And isn't it a communication problem if that wasn't, in 11 fact, your intention or was that, in fact, your 12 intention? 13 A: I have no idea. 14 Q: You have no idea. Wouldn't you agree 15 it's a communication problem if the Chair of the IMC 16 thinks that you want the injunction and the 17 implementation of removal within twenty-four (24) hours? 18 A: I have no idea if that's what she 19 thought. I know that she apparently wrote these notes 20 down at some point in the meeting, at the end of the 21 meeting I have no idea if that's what she thought. 22 Q: That wasn't my question. Let's -- 23 the words here appear to say -- 24 A: Your question, I think was: Is it a 25 problem if that's what she thought. And I said, I don't
891 know if that's what she thought. You would have to ask 2 her, I think, if that's what she thought. 3 Q: All right. Well, I -- with respect, 4 I think you may have answered a different question than 5 the one I asked. 6 A: Okay. 7 Q: Let me try again. As the Premier, 8 who's one of the participants in this injunction process, 9 which may result in the use of force against protesters, 10 doesn't it concern you as a communication issue if 11 there's a misunderstanding and Ms. Jai thinks that you 12 actually want them out in a day or two. 13 Isn't that a communication problem? 14 A: I don't know if that's what she 15 thought, so I'm sorry. I think you're asking me to 16 speculate, is that what she thought, and I don't know if 17 that's what she thought, and I see no evidence that 18 that's what she thought. 19 So I'm not sure I can help you. I'm not 20 sure I'm -- 21 Q: All right. 22 A: -- the right witness to be asking 23 this question to. 24 Q: All right. Well, you are -- you were 25 the Premier of Ontario who was a participant in the
901 injunction decision and you testified yesterday -- 2 A: Yes. 3 Q: -- about what your assumption was 4 that would happen after the injunction. And I just want 5 to understand -- or perhaps you have no interest in this. 6 I mean -- 7 MR. DERRY MILLAR: Well, I don't think 8 that's fair. I think that -- 9 COMMISSIONER SIDNEY LINDEN: That's not 10 fair. 11 MR. DERRY MILLAR: -- what -- what the -- 12 what Mr. -- the witness can be asked about what he did, 13 what he wanted and My Friend has all -- has already asked 14 him if it was his view, Mr. Harris, that he wanted them 15 out in a day or two. 16 Mr. Harris has said, in response to that 17 question, he wanted them out as soon as possible. 18 COMMISSIONER SIDNEY LINDEN: As soon as 19 possible. 20 MR. DERRY MILLAR: And so it's -- it's 21 the -- it's what he said and what he did is what he can 22 be asked. He's -- he can't be asked what we've already 23 asked Ms. Jai. We've asked Ms. Hutton and ultimately 24 it's up to you to make a decision. 25 But it's not -- he can't answer for what
911 Ms. Jai thought. 2 MR. MURRAY KLIPPENSTEIN: With respect, I 3 believe My Friend is basically right, but it's not 4 actually what I'm questioning. 5 And if this is not helpful, I won't pursue 6 it. But in my respectful submission, if I can explain, 7 it may be very helpful, which is for you to decide, of 8 course. 9 I have put forward a couple of written 10 documents, contemporaneous at the time, that record, 11 apparently, what two (2) significant players thought the 12 desires of the Premier were. 13 Now, whether or not my interpretation of 14 what they thought, this is not -- that's not the point 15 here. The point is, if these folks thought the Premier 16 was saying something and that's not what he was saying, 17 we have, at minimum, a communication problem. 18 And we have, additionally, a problem about 19 what happened as a result of that communication problem. 20 If the Premier -- if -- if some of these 21 folks thought the Premier wanted them out of the Park in 22 twenty-four (24) hours, it may be of interest to you -- 23 to you to know if the Premier actually wanted that or 24 not. 25 COMMISSIONER SIDNEY LINDEN: Well, that
921 would be of interest and I gather you've asked that 2 question and he's answered it, I believe. 3 MR. MURRAY KLIPPENSTEIN: Well -- 4 COMMISSIONER SIDNEY LINDEN: It would be 5 of interest, that -- the answer to that question. 6 MR. MURRAY KLIPPENSTEIN: And the next, 7 if I may just fin -- respond before My Friend, but if -- 8 my point is, it may be of interest to the Commission if 9 there's a communication problem in a sense that some 10 people thought the Premier wanted them out of the Park 11 within twenty-four (24) hours, and if he -- even if he 12 didn't think that, we have a problem based on what they 13 understood. 14 COMMISSIONER SIDNEY LINDEN: Well, I'm 15 not sure I follow you in that last part. 16 Yes, Mr. Millar...? 17 MR. DERRY MILLAR: Well, it may be that, 18 in part, the question is -- is, in part, argument. But 19 the last part of the question is: Was there a 20 communications problem? And it may be that it's a fair 21 question to put to the -- to the witness, Was -- was 22 there a communication problem that you knew about it, 23 because it's only what he knew about. 24 COMMISSIONER SIDNEY LINDEN: Yes. 25 MR. DERRY MILLAR: And then after that,
931 it becomes, based on all of the evidence, a question of 2 argument. 3 COMMISSIONER SIDNEY LINDEN: Of argument. 4 MR. DERRY MILLAR: As to whether there 5 was or there wasn't. 6 COMMISSIONER SIDNEY LINDEN: Yes, I think 7 he -- but I think you've already asked the question, Mr. 8 Klippenstein, and got an answer. But if you don't think 9 you have, I think that is a fair question. 10 Ms. Twohig, do you have something to add? 11 MS. KIM TWOHIG: Well, just that the 12 issue of whether or not there's a communications problem 13 over -- 14 COMMISSIONER SIDNEY LINDEN: From his 15 perception. 16 MS. KIM TWOHIG: -- whether Mr. Harris 17 wanted the occupiers out of the Park and how Ms. Jai may 18 have interpreted that, in my submission is completely 19 irrelevant given that neither Ms. Jai nor anyone at the 20 Interministerial Committee had any responsibility for 21 enforcing an injunction if it were obtained. 22 COMMISSIONER SIDNEY LINDEN: Well, he's 23 asking him for his understanding, his perception. But I 24 think you've asked the question and I think you've got an 25 answer; I may be wrong, but I think you have.
941 MR. MURRAY KLIPPENSTEIN: Well, let me 2 try and take a step backward and -- and avoid the 3 problem. And I think My Friend Mr. Millar raises a valid 4 point but I'm -- I'm just trying to clarify for the 5 Commission if the Premier, in fact, thought something, 6 and other people thought he wanted something else. 7 COMMISSIONER SIDNEY LINDEN: Does he see 8 that as a problem, communication or otherwise? 9 MR. MURRAY KLIPPENSTEIN: Does he see -- 10 so -- so that's going a little bit further than what Mr. 11 Millar has talked about. And I'm -- my -- my suggestion 12 is that it may be a valid question simply because Mr. -- 13 Mr. Harris was the one whose desires are at issue; if -- 14 if the Premier's desires are misinterpreted I would think 15 that would be of interest. 16 COMMISSIONER SIDNEY LINDEN: Yes, well 17 you've already asked him what his thoughts were. You've 18 already told him what the evidence is regarding other 19 peoples' and now you want to ask him whether that seeming 20 disparity is a problem? 21 MR. MURRAY KLIPPENSTEIN: Yes. And the 22 reason is, in my -- and it relates to what Ms. -- Ms. -- 23 what -- what Ms. Twohig just said. What follows from the 24 fact of possible misinterpretation, other people may act, 25 with respect to implementation of the injunction, in a
951 way that had effects. I mean the police may have, if 2 they had this misunderstanding. 3 We've heard how -- 4 COMMISSIONER SIDNEY LINDEN: Well -- 5 MR. MURRAY KLIPPENSTEIN: -- Ms. -- Ms.-- 6 COMMISSIONER SIDNEY LINDEN: You don't 7 have to make your argument now. 8 MR. MURRAY KLIPPENSTEIN: No. 9 COMMISSIONER SIDNEY LINDEN: You don't 10 have to make the argument. 11 MR. MURRAY KLIPPENSTEIN: I know. I 12 know. 13 COMMISSIONER SIDNEY LINDEN: But the 14 question that you have, you want to put the question 15 again -- 16 MR. MURRAY KLIPPENSTEIN: Yes. 17 COMMISSIONER SIDNEY LINDEN: -- so we'll 18 see if anybody objects to it? 19 MR. MURRAY KLIPPENSTEIN: Yeah. And I -- 20 I will try and take My Friend's comments into it as well. 21 COMMISSIONER SIDNEY LINDEN: That's fine. 22 23 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 24 Q: And to -- to clarify, Mr. Harris, I 25 am not asking for you to look in the minds of Julie Jai
961 or Larry Taman, I am just suggesting that these 2 handwritten notes, that I put to you, raise enough of a 3 suggestion that some people thought you wanted them out 4 of the Park in a day or two (2). 5 For me to ask -- at this point I'm not 6 asking whether that was your desire or not, I'm asking 7 you is it a concern that that's what they thought? 8 A: I think I disagree with the premise 9 of your suggestion. 10 Q: All right. Which -- which premise do 11 you disagree with? 12 A: Well, you -- you said -- I -- I 13 believe that you are suggesting that Ms. Jai thought 14 that. I disagree with that premise. 15 Q: Okay. So just so I can clarify, you 16 don't agree, when I look at these notes and Ms. Jai says 17 that according to Deb Hutton, He wants them out in a day 18 or two (2), you don't agree with the idea that Ms. Jai 19 thought you wanted them out in a day or two (2)? 20 A: No, I -- I don't have near enough 21 evidence as to what was being discussed. I can give you 22 many scenarios where -- where -- and I -- I mean you seem 23 to want get into, what if. 24 I wasn't there at the meeting. If 25 somebody said one (1) option could take a day or two (2),
971 one (1) could take two (2) weeks, one (1) could take a 2 year, one could say you'll never get the -- the occupiers 3 out, I think Ms. Hutton would respond, I think the 4 Premier would prefer a day or two (2). 5 Is that the context? I don't know, I 6 wasn't there. 7 8 (BRIEF PAUSE) 9 10 Q: We've heard evidence that the context 11 is -- is very clearly stated in the line before, which 12 is, Best case Friday in court. 13 Now, Friday in court was not good enough 14 for you. We know that much, right? 15 A: I preferred Thursday, if we could be 16 ready for Thursday. 17 Q: Right. And in fact, Thursday morning 18 was what happened, right? 19 A: Yes. 20 Q: Yes. And we've heard evidence that, 21 in fact -- 22 A: And -- and by the way, that was the 23 consensus, I think, of the meeting. It wasn't just my 24 position. 25 Q: I'll get to that in a moment but --
981 A: Okay. 2 Q: We've heard evidence, for example, 3 from Ms. Christie, who was a civil lawyer working on the 4 injunction, that she -- that after the meeting in your 5 boardroom she was instructed to call the Trial 6 Coordinator in Toronto and see whether the injunction 7 could be obtained that very afternoon, the afternoon of 8 the 6th in Toronto. 9 Were you aware of that suggestion? 10 A: No. 11 Q: And we also heard evidence that when 12 that didn't appear to be possible, some Crown lawyers 13 tried to arrange for a judge in Sarnia for that evening 14 on the 6th. 15 Were you aware of that attempt? 16 A: No. 17 Q: And we actually -- we heard evidence 18 that there was some discussion that the Crown lawyers 19 would actually try to fly to Sarnia to -- to get there on 20 the 6th. 21 Were you aware of that discussion? 22 A: No. But I'm impressed to find out 23 they were trying to get the injunction as soon as 24 possible. 25 Q: That's right. You were impressed and
991 that -- 2 A: I am today, you're telling me. 3 Q: You are today. And you're impressed 4 because that is pretty much what you had hoped back then. 5 You wanted them to go that fast, right? 6 A: I think the consensus of the meeting 7 was, as soon as possible. 8 Q: Well let's divide that into two (2); 9 the consensus of the meeting and what you wanted. My 10 question was: You wanted them to act that fast, right? 11 A: Yes. 12 Q: Okay. I want to say something about 13 the consensus of -- 14 A: Just that I concurred with that 15 consensus. 16 Q: You concurred with that consensus. 17 A: Yes. 18 Q: I'll get to that in a minute. 19 A: Sure. 20 Q: So -- so if -- the -- the evidence 21 has been that the Crown lawyers attempted to obtain a 22 court order that very afternoon, on the 6th, and I gather 23 that would have been the kind of fast action you would 24 have liked to see, right? 25 A: Well, I -- I think I testified that
1001 my understanding was it would take 'til the next morning 2 to prepare all of the court application, what's there. 3 I have no idea what others did, what 4 others were trying to do, but my expectation was that, 5 not just finding a judge, but preparing the case and 6 whatnot, that that would probably be the next morning and 7 that would involve probably working all evening to do so. 8 I concurred with that and thought that was 9 what we should be attempting to do. 10 Q: But, in fact, what they did try to 11 do, namely, get an order that afternoon, you just said 12 you were impressed with that. 13 A: I'm impressed that people seemed to 14 be exploring options for -- for dealing with it. Whether 15 -- whether they could find a judge and they can have the 16 case ready, it may have been one (1) person doing one (1) 17 thing and somebody else the other. 18 But I -- I can't comment on this. I 19 don't, you know, I don't know the relevance of you asking 20 me about this. 21 Q: Well fine. I don't know when another 22 break, if any, would be appropriate. But this is one 23 possible time to stop for a break. 24 COMMISSIONER SIDNEY LINDEN: Is this a 25 good time to stop for a break?
1011 MR. MURRAY KLIPPENSTEIN: Yes. 2 COMMISSIONER SIDNEY LINDEN: Because I 3 think we do need a break before lunch. So we'll have a 4 break now. 5 THE REGISTRAR: This Inquiry will recess 6 for fifteen (15) minutes. 7 8 --- Upon recessing at 10:56 a.m. 9 --- Upon resuming at 11:17 a.m. 10 11 THE REGISTRAR: This Inquiry is now 12 resumed. Please be seated. 13 COMMISSIONER SIDNEY LINDEN: Carry on. 14 MR. MURRAY KLIPPENSTEIN: Thank you, 15 Commissioner. 16 17 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 18 Q: Mr. Harris, I was asking you earlier, 19 before the break, about your comments yesterday about how 20 the injunction might be implemented and what you said 21 about that yesterday. 22 And asking you about some documents that 23 seemed to talk about people's understanding of your or 24 the Government's position. 25 I want to ask you that about one different
1021 situation or conversation. And if you could turn in your 2 large Commission binder to Tab 43. 3 COMMISSIONER SIDNEY LINDEN: 48? 4 MR. MURRAY KLIPPENSTEIN: 43, I'm sorry. 5 COMMISSIONER SIDNEY LINDEN: 43. 6 7 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 8 Q: Which is the transcript of the taped 9 conversation between Officers Carson and Fox at -- as 10 Exhibit P-444A. 11 Mr. Harris, do you have Tab 43? 12 A: I have Tab 43, yeah. 13 Q: Right. 14 A: I just have a 37 at the top, is that 15 -- is that correct? Page upside down here too, but I'll 16 fix that. 17 COMMISSIONER SIDNEY LINDEN: Another page 18 upside down. It's the gremlins. 19 MR. MURRAY KLIPPENSTEIN: That's part of 20 my cross-examination strategy. 21 22 (BRIEF PAUSE) 23 24 COMMISSIONER SIDNEY LINDEN: I don't 25 know, it looks like every second page in this is --
1031 THE WITNESS: Is upside down. 2 COMMISSIONER SIDNEY LINDEN: -- upside 3 down. So we're going to have to -- 4 THE WITNESS: Well, let's see if we have 5 to refer to them. 6 MR. DERRY MILLAR: Perhaps we could give 7 the witness a copy of Exhibit 444A, and it's Tab 37 and 8 Exhibit 444A. 9 COMMISSIONER SIDNEY LINDEN: Thank you. 10 11 (BRIEF PAUSE) 12 13 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 14 Q: Are we settled now, you have a 15 transcript? And if I could ask you to turn several pages 16 in to what I think is labelled the bottom right hand 17 number is 262. 18 A: Yes. 19 Q: Got that? 20 A: Hmm hmm. 21 Q: All right. And I'd just like to read 22 a few sentences here and this is from the phone call 23 between -- it was taped on September 6th and made between 24 Inspector Fox in Toronto and Inspector Carson in Forest, 25 I believe, at the command post.
1041 And I'd like to start about half way down, 2 after Inspector Carson says, "Absolutely." Do you see 3 that? 4 A: Yes. 5 Q: The -- this tape was made shortly 6 after the meeting in the Premier's dining room or 7 boardroom and, however, the excerpt I'm going to read to 8 you, and you can check this later, appears to be 9 referring not to that meeting but to the IMC meeting in 10 the morning that Mr. -- that Inspector Fox had also 11 attended. 12 And that's the meeting with the notes I 13 just took you to which say, "Premier wants them out in a 14 day or two." Fox sat in on that meeting. At this point, 15 Fox says: 16 "Okay, well, let me just give you the - 17 - I went through this meeting, John. 18 We're dealing with a real red neck 19 government. 20 CARSON: Okay. 21 FOX: They are fucking barrel suckers, 22 they just are in love with guns. 23 CARSON: Okay. 24 FOX: There's no question. 25 CARSON: So.
1051 FOX: They couldn't give a shit less 2 about Indians. 3 CARSON: All right. They just want us 4 to go kick ass. 5 FOX: That's right. 6 CARSON: Yeah. 7 FOX: Um. 8 CARSON: We're not prepared to do that 9 yet. 10 FOX: Well, I'll tell you, I was then 11 -- when I left that meeting, I got a 12 page, Go to the legislative building 13 immediately." 14 Now stopping there, we have Inspector Fox 15 giving some of his views arising from the IMC meeting 16 that he attended earlier that day, and then we have 17 Inspector Carson in the command saying: 18 "All right. They just want us to go 19 kick ass." 20 And Inspector Fox says: 21 "That's right". 22 Now I realize, of course, that Inspector 23 Carson later says, "We're not prepared to do that yet," 24 but for now I just want to focus on what Inspector Carson 25 said.
1061 He was cross-examined about that by 2 several people and he said -- and he was asked: 3 "And when you said 'kick ass,' what did 4 you mean?" 5 And this is in the transcripts of June 6 7th, page 84. 7 "A: I'm not sure I'm able to provide 8 you a very clear definition of what 9 that means other than just go out and 10 arrest. 11 Q: Other than, pardon me? 12 A: Go out and arrest. 13 Q: Okay. So you think that's 14 possibly what was meant there was that 15 the Government wants us to go and 16 arrest? 17 A: Yeah, sure, that's -- that's my 18 best guess." 19 And then also on the same question of what 20 Carson meant when he was saying, "All right. They just 21 want us to go kick ass," or what his understanding was, 22 in cross-examination by Mr. Rosenthal on June 9th, page 1 23 -- page 185, he was asked: 24 "So did you take from what he was 25 telling you, they want you to go in
1071 there and attack these people somehow, 2 right?" 3 Answer from Mr. Carson: 4 "It's all about aggression, yes. 5 Q: That's what you took from it? 6 A: Yeah. 7 Q: And Fox agrees that you're 8 appropriately interpreting it, right? 9 A: Correct." 10 So what we appear to have here, Mr. 11 Harris, is a description from Inspector Fox about this 12 meeting including the one where -- including the -- the 13 parts where Ms. Hutton made these comments. 14 And Carson says -- Carson's interpretation 15 is, They just want us to go kick ass, which he -- which 16 he -- by which he meant making arrests and taking 17 aggressive action. 18 Now, my question to you is: Does it 19 concern you, as a matter of communication, and as the 20 Premier who was participating in this injunction 21 procedure, when the Incident Commander appears to have 22 this understanding of what the Government wants? 23 A: Yes. 24 Q: It's of concern to you, is that 25 right?
1081 A: Yes. 2 Q: All right. And can you tell me 3 whether or not Inspector Carson's interpretation of what 4 the Government wanted at that point was correct, in your 5 view? 6 A: In my view and from any of the 7 reports that have come back to me and any of the evidence 8 I've seen from everybody who attended the meeting that's 9 referenced here, I would say it's 100 percent the wrong 10 view. 11 Q: And we've just looked at the apparent 12 comments by Ms. Hutton in that meeting saying the Premier 13 wants them out in a day or two (2). 14 And is it still your view that this is not 15 -- this interpretation of the Government's intentions, by 16 Incident Commander Carson, is not a correct understanding 17 of that position? 18 A: I think it's totally incorrect. I 19 think if I understand what came out of the meeting it was 20 to go forward with the option of two (2) types of 21 injunction. 22 Q: All right. Now, would you agree with 23 me, in -- in follow-up to your concern about this 24 interpretation of the Government's position, that we have 25 Inspector Carson saying, We're not prepared to do that
1091 yet. 2 Now, that offers some comfort about the 3 potential problem of that misinterpretation; is that 4 right? 5 A: Yes. 6 Q: Now, would you agree with me that we 7 still, potentially, should have a concern about what 8 other officers might pick up from Inspector Carson's 9 message? 10 A: I -- I don't know who else Mr. Fox 11 communicated to. 12 COMMISSIONER SIDNEY LINDEN: We have some 13 objections, Mr. Harris -- 14 THE WITNESS: Okay. 15 COMMISSIONER SIDNEY LINDEN: -- we should 16 hear them. 17 MR. PETER DOWNARD: I don't know what My 18 Friend's talking about when he -- when he talks about 19 Inspector Carson's message going to other officers in the 20 context of this statement that -- that Fox has -- has -- 21 or that Carson says to Fox and that Fox concurs. 22 I don't know what he's talking about -- 23 message to other officers. 24 COMMISSIONER SIDNEY LINDEN: Well, he has 25 to ask some more questions I guess, before he can get
1101 there. 2 MR. MARK SANDLER: Well, that's my point. 3 There is no evidence that would support -- 4 COMMISSIONER SIDNEY LINDEN: Yes. 5 MR. MARK SANDLER: -- that's the message 6 being communicated to other officers. 7 MR. MURRAY KLIPPENSTEIN: Let me withdraw 8 that -- that word, "message," and -- and try a different 9 question then that is a little -- is a little different. 10 11 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 12 Q: Is -- is it of concern to you, Mr. 13 Harris, that this interpretation by Inspector Carson at 14 the Command Post, of the Government's desires, could be 15 transmitted or picked up -- let me back up -- could be 16 transmitted by Inspector Carson to other officers? 17 A: It would concern me. It would 18 concern me if he believed this was the view of the 19 Government. The only evidence I have -- have heard is 20 that he believed this was Mr. Fox's view. I can't 21 imagine that anybody would think that -- that this would 22 be the view of the Government. 23 Q: Well, let me just back up a step. In 24 -- in the transcript which we just read Inspector Fox 25 says, I just went through this meeting, says various
1111 things. Says: 2 "They couldn't give a shit less about 3 Indians." 4 And then Inspector Carson says: 5 "All right. They just want us to go 6 kick ass." 7 And when I asked, in cross-examination, 8 Mr. Carson who he meant, and specifically I asked him who 9 he meant by "they," he said the Government. 10 And so you say you can't imagine that 11 anybody would have the interpretation which Inspector 12 Carson did, are you suggesting that Inspector Carson 13 could conceivably have talk -- been talking to you about 14 something else? 15 A: No. It seems to me he was talking 16 about his interpretation of Mr. Fox's view of the 17 meeting. 18 Q: All right. And Inspector Carson 19 says: 20 "They just want to go kick ass." 21 And Fox says: 22 "That's right." 23 So Inspector Fox was affirming -- 24 A: That that was his view. 25 Q: -- when Mr. -- when Inspector Carson
1121 said, "They just want to go kick ass," that Inspector Fox 2 agreed with that. 3 Let me -- let me take a step back. Would 4 you agree with me that is also -- quite apart from 5 Inspector Carson's interpretation, would you agree with 6 me that it's a concern if Inspector Fox believed that? 7 A: Yes. 8 Q: Yes. And if Inspector Fox is 9 transmitting that interpretation of the Government's 10 desires to Inspector Carson, that's of concern, right? 11 A: If he communicates to anybody and 12 anybody believes it, that's a big concern. 13 Q: Right. And if Inspector Carson, for 14 example, transmits it however, in whatever way, to his 15 second in command, that's a concern? 16 A: Well, I think we're now speculating 17 but I -- it would be a concern if it was -- anybody felt 18 that was the view of the Government. 19 Q: All right. And would you agree with 20 me that one reason it would be of concern, is the 21 possibility that that might somehow affect the actions of 22 the police, right? 23 A: Well, I think the police were -- is 24 well aware of the separation of -- of politicians in 25 their role and I think Mr. Carson has -- has acted
1131 appropriately and said that. 2 But it would be a concern if there was 3 somebody who received information and then acted 4 inappropriately, which the OPP doesn't appear to have 5 done. 6 Q: All right. Now, it -- would it -- 7 will your concern perhaps be raised if evidence, that we 8 expect to hear, was put to you that the self-styled 9 second command of Inspector Carson, Mark Wright, was an 10 officer who, on that same day, September 6th, was advised 11 of the injunction, the ex parte injunction, was advised 12 that he would testify the next morning and then ended up 13 down at the site of the occupation and then ended up 14 phoning in -- or radioing in that he thought the OPP 15 should send some more officers down there? 16 Would that concern you as a possible mis- 17 communication of this interpretation of the Government's 18 intentions? 19 A: No. 20 COMMISSIONER SIDNEY LINDEN: Just before 21 you answer, Mr. Harris, yes, Mr. Millar? 22 MR. DERRY MILLAR: I don't know how he 23 can answer the question. I think that he -- he can't -- 24 there are too many links here that, in fairness to the 25 witness or to any witness, I don't think they can pick up
1141 all those links. 2 And the -- there's -- there's -- you can - 3 - and I just don't think it's a question that can be 4 answered. 5 MR. MURRAY KLIPPENSTEIN: I'll withdraw 6 the question. I -- I'll move onto another topic. 7 COMMISSIONER SIDNEY LINDEN: Thank you. 8 9 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 10 Q: I'd like to leave the topic, Mr. 11 Harris, of -- of the enforcement of the injunction or the 12 implementation of the injunction. 13 And I'd like to ask you about the 14 obtaining of the -- the decision to obtain the 15 injunction. 16 A: Okay. 17 Q: And you mentioned several times this 18 morning about, I think it was consensus of the meeting or 19 whatever, I'd like to talk about that -- or ask about 20 that. 21 Would you agree with me that at the time 22 just before or at the time of the beginning of the 23 meeting in the early afternoon of September 6th in the 24 Premier's boardroom or dining room, that your 25 understanding was that the issues were would the
1151 government instruct the obtaining of an injunction and, 2 secondly, would that injunction be ex parte or not? 3 Is that a fair description of your 4 understanding of the issues going into that meeting? 5 A: My understanding was that the 6 Interministerial Committee had felt that they should seek 7 an injunction and they would come to one (1) meeting with 8 the -- the Ministers and deputies that would not have, 9 you know, attended the Interministerial Committee 10 meetings, to go over the -- the advantages, I suppose, or 11 disadvantages or the -- the prospects of an injunction 12 with notice or without notice. 13 I don't think they came to that meeting 14 and the second purpose of the meeting was to -- to get an 15 update on the status so that that could -- any 16 communication to the public could be -- could be carried 17 out by the politicians. 18 The -- I don't think the purpose of the 19 meeting was to decide whether there should be an 20 injunction or not. I think that was pretty well 21 established and I don't think they were asking the 22 Committee to consider other options. 23 Q: All right. So your evidence right 24 now is that, from your point of view, the decision was 25 pretty much made to get some sort of injunction by the
1161 beginning of that meeting? 2 A: Yes. 3 Q: Let me then go to the second point 4 I've put to you. It was your understanding that at the 5 beginning of the meeting, going into the meeting, that 6 one of the issues to be determined, well frankly -- let 7 me take it a step backwards. 8 In your discussion yesterday with Mr. 9 Millar about the briefings and knowledge that you had, I 10 believe you said, and I can take you to the transcript, 11 that on the evening of September 5th or the morning of 12 the September 6th, you had already been briefed by Ms. 13 Hutton about the fact that the OPP were suggesting an 14 injunction and you had also been briefed about the issue 15 of ex parte or normal injunction with notice. 16 In other words, you were aware that that 17 was an issue? 18 A: I -- yes. 19 Q: Okay. So taking that forward then, 20 going into the meeting in the Premier's dining room or 21 boardroom, one of the issues was whether an injunction 22 would be either ex parte or a normal injunction with 23 notice? 24 A: Correct. 25 Q: Correct. Now, skipping over what
1171 happened in the meeting, would you agree with me that 2 coming out of the meeting, first of all your 3 understanding was that the -- the government lawyers 4 would be, unless something went wrong, would be in Court 5 at least by the next morning on Thursday the 7th? 6 A: Yes. That -- that was the earliest. 7 Q: Right. And so coming out of the 8 meeting, you understood that that issue, ex parte or not, 9 had been resolved and it was now -- the government was 10 now going to attempt an ex parte injunction? 11 A: Yes. 12 Q: Okay. So during that meeting, the 13 decision to attempt an ex parte injunction gelled? Is 14 that fair? 15 A: That was the conclusion. Gelling 16 infers that it -- that -- that there wasn't an opinion 17 before going into the meeting, I suppose. 18 Q: I didn't mean to use a -- 19 A: Okay. 20 Q: -- controversial word -- 21 A: All right. 22 Q: Let me say that the decision to go ex 23 parte was made during that -- is that fair? 24 A: Well, it was certainly confirmed at 25 that meeting.
1181 Q: All right, okay. Because going into 2 it, the lawyers didn't know whether they were going to go 3 ex parte or not? 4 A: I think there was some deferral of 5 that final decision, that's correct. 6 Q: All right. 7 8 (BRIEF PAUSE) 9 10 Q: If you could then turn in your 11 document book to Tab 23. We've been there before. That 12 is, again, the handwritten IMC meeting notes of Ms. Julie 13 Jai. 14 A: Okay, I got to go back -- 15 Q: This is Tab -- 16 A: -- one, eh? 17 Q: Tab 23. 18 A: Okay. Are we finished with this? 19 Q: Yes. 20 COMMISSIONER SIDNEY LINDEN: I wouldn't 21 put it too far. 22 THE WITNESS: Okay. 23 COMMISSIONER SIDNEY LINDEN: Leave it 24 close by. 25 THE WITNESS: Fair enough. Nice try,
1191 though. 2 3 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 4 Q: At Tab 23 which are those handwritten 5 notes and if you could then turn quite a few pages in and 6 in fact -- 7 A: Okay. 8 Q: -- go to the back of that tab and 9 work in backwards about four (4) pages to a handwritten 10 page 8 at the top? 11 A: Yes. 12 Q: That's Tab 23. 13 A: Okay. 14 Q: And again this is the meeting notes 15 of the meeting on September 5th, not September 6th of the 16 IMC. 17 And at the bottom of that page 8 we have 18 the word, the name "Deb". 19 Do you see that? 20 A: Yes. 21 Q: And that is notes made according to 22 the evidence of what Ms. Hutton said to the meeting which 23 is: 24 "Wants an emergency injunction. 25 Doesn't want to wait two (2) weeks."
1201 Now this is on the morning of the 5th. 2 A: Correct. 3 Q: And I take it from these notes that 4 the position at least of Ms. Hutton at that point that 5 she expressed was that she wanted not the regular 6 injunction with notice but an emergency or ex parte 7 injunction? 8 A: You can talk to her about it. She 9 seems to be expressing a view that -- on the information 10 that she had at the time this note was written out that 11 there was a choice, that would be her preference. 12 Q: All right. It doesn't surprise you 13 that was her -- would be her preference at that time? 14 A: I -- I have no idea. I wasn't at the 15 meeting. I got briefed in a -- 16 Q: All right. 17 A: -- later that evening on the whole 18 meeting and the end of the meeting. 19 Q: All right. Now, going into the 20 meeting in the Premier's dining room it would appear from 21 what we just looked at that Ms. Hutton -- well, let me 22 back up a step. 23 Do you recall going into that meeting 24 whether Ms. Hutton at that point wanted an ex parte 25 injunction?
1211 A: I think her view on the information 2 that she had been given to-date that that was the way to 3 proceed but I think the -- the final decision was 4 deferred till we had another update at the meeting in the 5 dining room or the boardroom. 6 Q: Right. 7 A: I'll -- I'll use your terminology. 8 Q: I -- I switched to boardroom but My 9 Friend -- 10 A: In deference to me. I know. 11 Q: -- just advised that for transcript 12 searching purposes I should stick to dining room. 13 A: We'd better go back to the dining 14 room? Okay. 15 Q: And do you recall whether you had a 16 view going into that meeting on the question of ex parte 17 or injunction with notice? 18 A: I -- I think I would have concurred 19 with Ms. Hutton's view. She had more information, was in 20 -- in more meetings, hearing more information than -- 21 than I was. 22 But I knew there'd be an additional 23 meeting and we would get the information, you know, there 24 and -- and I think I would have been prepared to have an 25 open mind if there was -- if there was information that
1221 came forward that suggested it should not be an ex parte 2 injunction and then, you know, I would listen to it. 3 Q: And are you aware of whether anyone 4 else in that meeting entered that meeting in favour of an 5 ex parte injunction? 6 Do you have any knowledge on that? 7 A: I -- I thought there was a consensus 8 on the information they had before that ex parte was the 9 way to go, but I would hope everybody had an open mind 10 and -- and didn't have to make a final decision until we 11 -- we'd got an update there. 12 But I -- I can't speak to those who were 13 at the Interministerial Committee Meeting of the -- of 14 the morning of the 6th previous to this -- to this 15 meeting. 16 Q: All right. Did -- just to clarify 17 your answer do you have any recollection specifically of 18 the views of anyone else going into that meeting on the 19 question of ex parte or not? 20 Do you recall for example, you know, Mr. 21 Hodgson or Mr. Runciman going into the meeting saying 22 anything on that issue? 23 A: No, I don't recall. 24 Q: Now, in -- in the meeting do you 25 recall -- and there were something like fourteen (14)
1231 people there; several ministers and assistants and Deputy 2 Ministers and others, do you recall anyone else 3 specifically advocating for or recommending an ex parte 4 injunction? 5 A: I -- my recollection is that nobody 6 advocated anything else but an ex parte injunction. It 7 wasn't a meeting where you went around the table and said 8 ex parte, not -- with notice. 9 I don't recall anybody when we -- we heard 10 all the information, suggesting that ex parte was not the 11 way to go. 12 Q: Right. You flipped my question 13 around of course and let me go back to my question. Let 14 me flip my question back to the way I started, okay? 15 Do you recall anybody in that meeting 16 actually advocating for or recommended an ex parte 17 injunction? 18 Can you name anybody or do you recall 19 any -- 20 A: No. No. 21 Q: Okay. So you don't recall for 22 example, do you know if Mr. Hodgson in that meeting 23 specifically recommended or advocated for an ex parte 24 injunction? 25 A: I don't recall who advocated for or
1241 who advocated against. I recall the meeting. I -- my -- 2 certainly sensed there may have been a number of people 3 who -- who made recommendation. 4 But my sense was that there was unanimity 5 that -- that an ex parte injunction was the way to 6 proceed. 7 Q: Now there were no notes taken of that 8 meeting obviously so we don't know for example whether -- 9 there wasn't a vote to your recollection, right? 10 A: No. 11 Q: And, in fact, there wasn't an actual 12 motion or anything like a motion that you recall? 13 A: No. 14 Q: And do you recall who put it out 15 saying, all right, it's going to be ex parte? 16 A: No. 17 Q: And do you recall anybody saying at 18 the end of the meeting, now, okay, it's going to be ex 19 parte? 20 A: I -- I may have at some point. I 21 think when -- at the end of the meeting and I don't 22 recall this, but there's -- there's enough evidence and 23 it would make sense and I'd say, okay, we're proceeding 24 ex parte. 25 I think at this point, we would have
1251 relied on not the judgment of most of the people in the 2 room, but the judgment of Mr. Taman in particular as to - 3 - to which injunction to proceed with. 4 My recollection from the meeting is that 5 Mr. Taman's comments were more on the likelihood of 6 success -- 7 Q: Right. Well that's my -- 8 A: -- of the two (2) injunctions. 9 Q: That's my next question. Do you -- 10 do you recall as your evidence that Mr. Taman in fact 11 recommended or advocated for an ex parte injunction? 12 A: I -- I don't recall what others 13 recommended or -- or didn't recommend. I don't -- I 14 don't recall anybody objecting to an ex parte. 15 Q: Just again to -- to ask from the 16 civil servant point of view, was there any other civil 17 servant that you recall advocating or recommending an 18 injunction? I take it the answer's no. 19 A: I -- I don't know. But I -- I'm sure 20 they've all been called or will be called to testify. 21 Why don't you ask them? 22 Q: I'm asking about your recollection. 23 Everyone has their own -- 24 A: My recollection is there was 25 unanimity at the end of the meeting, ex parte was the way
1261 to go. 2 Q: All right. Let me ask you about that 3 unanimity. You said your collection was unanimity. I 4 believe for example, your -- your evidence was that -- 5 that Mr. Hodgson said little or anything while you were 6 there. 7 Is that right? 8 A: Right. 9 Q: And how do you know that he agreed 10 with the proposal or idea that somehow got put forward of 11 an ex parte? 12 A: Because I think if anybody disagreed 13 they would have spoken up and said no, I think we should 14 proceed with notice and here's why. 15 Q: And -- and does that logic apply to 16 other Ministers and other civil servants and other 17 police, they didn't speak up and you took that as 18 agreement? 19 A: I -- I would certainly have expect 20 -- I don't know why they would be in a meeting if they 21 weren't prepared to speak up and express their view. 22 Q: All right. But just before I go on - 23 - go further than that, it's your recollection or 24 understanding that basically nobody objected and you -- 25 you take that as unanimity.
1271 A: I -- I -- you know, it was the whole 2 context to me, nobody objected the evidence that we had 3 heard, it may have been heads nodding, it may have been 4 all kinds of things. That was my conclusion. 5 Q: Now would you agree with me that it's 6 possible that since it appears Ms. Hutton preferred an 7 emergency or ex parte injunction, that that was the 8 position -- did she speak at the meeting do you recall? 9 A: I don't recall her speaking. 10 Q: Okay. Is it possible that she spoke 11 and advocated for an ex parte injunction? 12 A: At that meeting? 13 Q: Yes. 14 A: I -- I don't think she would have 15 spoken at the meeting. I think she spoke at the 16 Interministerial Committee meetings but I -- I don't 17 know. 18 Q: Is it possible that you advocated or 19 recommended an ex parte injunction at some point in 20 that -- 21 A: It's possible. 22 Q: It's possible. And would you agree 23 with me that if you as the Premier advocated for a 24 recommended -- an ex parte injunction, it's possible that 25 other people would not object to that?
1281 A: If they agreed, they wouldn't. 2 Q: All right. And, in fact, if you 3 expressed that in a forceful manner, it's quite possible 4 they would simply defer to you on that one (1) and not 5 object and go along. Is that fair? 6 A: It's not my recollection of either 7 the Ministers or the deputies that were -- were in that 8 meeting. 9 Q: But just take a step backwards. It's 10 possible, right? 11 A: No, that's not my recollection. I've 12 always recalled any time when we had a discussion if -- 13 if there was a contrarying view I never found either the 14 Deputies that were in that room, so I can give you my 15 experience over ten (10) years since, because we were -- 16 we were new, or the Ministers, that -- that they would 17 have difficulty expressing a viewpoint, we would welcome. 18 Q: Well, we've heard evidence, evidence 19 which you have specifically and strongly denied, that in 20 fact you said in a forceful manner, 21 "I want the fucking Indians out of the 22 Park". 23 And would you agree with me that just 24 using that evidence, the decision is up to the 25 Commissioner on -- on the evidence, but if that evidence
1291 comes out to be accepted, that that may have influenced 2 other people in the room not to speak against an ex parte 3 injunction? 4 A: No. 5 Q: You disagree with that? 6 A: I do. 7 Q: Okay. And would you agree with me 8 that if you, as the Premier, expressed such a view 9 forcefully it would at least affect the willingness of 10 the civil servants in that room to speak on the -- 11 against the side of the ex parte issue? 12 A: Can't speak for them. 13 Q: All right. Now, we don't -- as part 14 of the fact that we don't have any notes of that meeting 15 from anybody, well let me take a step backwards. 16 Do you find it at all unusual that there 17 were fourteen (14) people in that meeting, you were -- 18 the government was deciding about an injunction that 19 would possibly result in arrests of people, that nobody 20 took any notes, apparently? 21 Do you find that unusual? 22 A: Not -- I don't. I think we were 23 receiving briefing on information. I -- it wouldn't be 24 hard for people to remember ex parte, with notice. 25 Q: All right.
1301 A: That was a decision that -- 2 Q: All right. 3 A: -- would have to be implemented when 4 we left the room. 5 Q: And can you enlighten us at all on 6 how the instructions would have been given to the civil 7 servants on the ex parte issue coming out of that 8 meeting? 9 A: I don't recall specific wording but I 10 think the evidence suggests, and I -- it would be logical 11 to me that -- that for my part of the meeting, before I 12 left, I said, Okay, we're all agreed and we'll leave it 13 to -- to Mr. Taman, to use -- and the officials, I guess, 14 to use their best judgment and the professionals and 15 we've made that decision that we're going to go ex parte 16 and good luck. 17 Q: All right. And we've heard some 18 discussion that happened after -- we've heard evidence 19 about some discussion that happened after you left the 20 meeting and despite that, it's still clear in your mind 21 that the decision about ex parte had been made by the 22 time you left the meeting? 23 A: Yes. 24 Q: Yeah, all right. And we've heard 25 evidence from the tape made at the time that Mr. Fox said
1311 to -- sorry, Inspector Fox said to Inspector Carson that 2 Minister Hodgson had said: 3 "Supposing we get the injunction, how 4 long are the police going to sit on it? 5 Two (2) weeks. 6 For two (2) weeks?" 7 And my question to you is: Do you know 8 anything about that exchange as reported or recorded or 9 reported at that time? 10 A: No. 11 Q: Right. And would it concern you that 12 a Minister is inquiring with a police officer, even if 13 it's just a liaison police officer, on the issue of how 14 long the police might take to enforce an injunction? 15 A: Well, it would concern me if -- if, I 16 suppose, if it was an operational police officer and you 17 were trying to -- to get operational information; if it 18 was in a question to a civil servant, you know, do you 19 know how long this would take, do you have any idea 20 what's going to happen after; that's not a -- a illogical 21 question to ask. 22 Q: And if it's a question that is in the 23 context of an understanding that or -- or a perception 24 that the Premier wants them out in twenty-four (24) hours 25 or wants them out in a day or two (2) would you agree
1321 with me that's a concern? 2 A: I think we've been through all of 3 that. 4 COMMISSIONER SIDNEY LINDEN: I'm not sure 5 where that comes from. 6 MR. PETER DOWNARD: Right and my -- my -- 7 indeed. 8 COMMISSIONER SIDNEY LINDEN: Yeah. 9 MR. PETER DOWNARD: And if My Friend's 10 going to talk about any context, he has to put the 11 context fairly. 12 COMMISSIONER SIDNEY LINDEN: Yeah. 13 MR. PETER DOWNARD: And these statements 14 of Hodgson including the statement that he's been told he 15 can't direct the police? 16 COMMISSIONER SIDNEY LINDEN: Yeah. 17 You're asking him questions about Hodgson and we were 18 with you up to that point. I don't know where that last 19 question came from. 20 MR. MURRAY KLIPPENSTEIN: Well, I -- 21 won't -- I won't pursue that. 22 COMMISSIONER SIDNEY LINDEN: That's fine. 23 MR. MURRAY KLIPPENSTEIN: This is 24 actually a convenient breaking point if you wish to break 25 for lunch?
1331 COMMISSIONER SIDNEY LINDEN: I was going 2 to go a little longer because I want to try to break the 3 day up and of course your examination. How much longer 4 do you think -- 5 MR. MURRAY KLIPPENSTEIN: I expect -- I 6 expect I will be shorter than I estimated. 7 COMMISSIONER SIDNEY LINDEN: Would you 8 give me a rough estimate from this point on? 9 MR. MURRAY KLIPPENSTEIN: I think -- I 10 think probably I will be finished in an hour to an hour 11 and a half. 12 COMMISSIONER SIDNEY LINDEN: All right. 13 Then I think this is as good a time as any to take a 14 lunch break. Thank you, Mr. Klippenstein. 15 THE REGISTRAR: This Inquiry stands 16 adjourned until 1:15. 17 18 --- Upon recessing at 11:55 a.m. 19 --- Upon resuming at 1:16 p.m. 20 21 THE REGISTRAR: This Inquiry is now 22 resumed. Please be seated. 23 COMMISSIONER SIDNEY LINDEN: Good 24 afternoon. Good afternoon, everybody. 25
1341 (BRIEF PAUSE) 2 3 COMMISSIONER SIDNEY LINDEN: Yes, sir. 4 MR. MURRAY KLIPPENSTEIN: Thank you, 5 Commissioner. 6 7 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 8 Q: Mr. Harris, I want to ask you some 9 questions about something that was raised in examination- 10 in- chief and I'd like to explore a little more in depth. 11 And that relates to some documents pertaining to burial 12 grounds allegedly in the Park which came to light in the 13 days shortly after Dudley George was shot in 1995. 14 And I gather you were somewhat aware, at 15 least, of the fact that some documents were brought out 16 by the Federal Minister of Indian Affairs around 17 September 13th -- 12th or 13th or 14th in 1995? 18 A: Yes. 19 Q: And in your examination-in-chief you 20 didn't seem to think too highly of the Federal Minister 21 putting them out at that time but my question is whether 22 you were ever briefed at -- at all about the contents of 23 those documents? 24 A: I -- I don't -- don't believe I had 25 any kind of in-depth briefing. I think -- I recall that
1351 there was some documentation from back in the '30s that 2 may have alluded to the possibility of a burial ground, 3 on those lines. 4 Q: And so I take it you didn't ever 5 actually see those documents? 6 A: I don't recall reading them. 7 Q: And did anybody explain in any way 8 the significance of those documents from the point of 9 view of the Provincial Government and from the point of 10 view of -- a little more detail of what had happened at 11 that time in the '30s? 12 A: I -- I don't recall getting much of a 13 briefing on any of that. I think -- no, I don't think 14 so. 15 Q: All right. When Mr. Millar asked you 16 about those documents and you -- you had no rough 17 comments. You said, and I'm reading from the transcript 18 of yesterday at page 192: 19 "This was the main issue that was 20 causing the frustration and the concern 21 from both the Band and the dissident 22 group, if I'm using the right word, the 23 occu -- occupiers of the Park." 24 A: Right. 25 Q: And that:
1361 "So they hustled around to dig up 2 something that was sixty (60) or 3 seventy (70) years old. I think my 4 reaction would be if there was anything 5 to it -- the Band felt there was 6 anything to it, if anybody felt there 7 was anything to it, somebody would have 8 followed up on this and to the best of 9 our knowledge nobody had." 10 So I take it, your assessment of those 11 documents from the 1930's was that they were a political 12 ploy by the Federal Minister that they had hustled around 13 to dig up for some purpose, not really legitimate; is 14 that fair? 15 A: I think there were two (2) sentiments 16 that I expressed there and in -- that to go back over 17 what was said. 18 One was that I felt that the Minister, I 19 think it was Mr. Irwin at the time, felt here's a 20 marvellous opportunity to deflect attention from the 21 disgraceful way that we have treated the Band in not 22 returning the lands, deflect it to the -- to the 23 Provincial Government. I think it was a -- a good 24 political move if you wanted to deflect attention. 25 Secondly though, the second sentiment was
1371 that -- that if there had been this opinion that many 2 years back, it was my view that it would have been 3 something that would have been looked at and -- and not 4 treated that seriously at the time or somebody would have 5 taken some action. 6 Q: And somebody -- well, let me ask you 7 to have a glance at the contents of those documents and 8 after that I'd ask you to pick up another binder which 9 you have on your table. 10 It's a black binder prepared by ourselves 11 and has a cross-examination brief, Michael Harris, Table 12 of Contents. 13 It might be the other one there. 14 A: Yeah. 15 Q: All right. If you could turn to Tab 16 15. Do you have Tab 15? 17 A: I do. 18 Q: And turn three (3) pages if you 19 would. And this is not the -- a copy of the actual 20 documents from the 1930's but a transcription of part of 21 it which I think is accurate for these purposes. 22 And if you turn to the page that's headed 23 at the top, August 17th, 1937; do you see that? 24 A: Yes. Hmm hmm. 25 Q: What we have is a transcription of a
1381 letter from the Federal Indian Affairs Branch to WC Cain 2 who was I believe at the time the Provincial Deputy 3 Minister of Lands and Forests; roughly equivalent to the 4 Minister of Natural Resources -- Ministry of Natural 5 Resources. 6 And the letter -- well let me just read 7 it. 8 "Connection with the work at present 9 being carried out under the direction 10 of your department at Ipperwash Beach 11 near Sarnia, I have to inform you that 12 the Indians of the Kettle and Stony 13 Point Band are much concerned in the 14 preservation of an old Indian cemetery 15 which I understand is located within 16 the boundary now being developed as a 17 park. 18 On the 13th of this month, the Council 19 of the Kettle and Stony Point Bands 20 passed a resolution requesting this 21 department to bring the matter to your 22 attention with the view to having this 23 old Indian burial ground preserved 24 intact and properly fenced. 25 Your request will I'm sure [I think it
1391 should be] their request will I'm sure 2 appear to you as entirely reasonable 3 and I should be glad if you would see 4 that the necessary action is taken with 5 the view to meeting the wishes of the 6 Indians." 7 And on the -- on the next page is the 8 reply or at least the text of the reply from the 9 Provincial Deputy Minister dated August 19th, 1937. 10 "Not having before me all the facts in 11 connection with the location of this 12 area in relation to the program of 13 works being carried out, I cannot speak 14 definitely on the matter except to say 15 that I shall do my best to make such 16 arrangements as we'll respect the 17 natural wishes of the Indians." 18 And that is the letter from the Provincial 19 Deputy Minister in reply. 20 I take it you've never seen these 21 documents? 22 A: I have not. Or I didn't then. 23 Q: Okay. Now in the context of what you 24 said yesterday about these documents, would you agree 25 with me that that would appear to be a responsible and
1401 appropriate approach of the Band at the time, namely 2 passing a resolution which is forwarded to Indian Affairs 3 to the Provincial Ministry requesting some protection? 4 A: Seems to be. 5 Q: And the evidence is that we have no 6 record of any kind of action taken by either Mr. Cain who 7 wrote this letter or by anyone else in the -- in the 8 Government. We have no record of any letter from him or 9 of anybody following up in any way. So there's no record 10 of any follow-up. 11 And would you agree with me that that 12 doesn't seem appropriate? 13 A: I don't know. 14 Q: Okay. You don't have any -- 15 A: I don't know what was done in 1937, 16 I'm sorry. 17 Q: Okay. Well, my question was a little 18 bit different. Based on what I've told you about the 19 state of evidence before this Inquiry, namely that there 20 is no evidence of anything having been done, would you 21 agree with me on that basis that that would not be -- 22 A: I agree that there does not seem to 23 be, and I'm sure everybody's looked in any files, of 24 written evidence of -- of what was done, but I don't know 25 what was done.
1411 Q: I'll just repeat my question one more 2 time, Mr. Harris. based on that, would you agree with me 3 that that was not an appropriate response by the 4 Province. 5 A: No. I don't know whether it's 6 appropriate or not. I think the Province said they'll do 7 their best to make such arrangements. They would respect 8 the natural wishes of the Indians. 9 I think that's the response, and I don't 10 know whether they did or they didn't. 11 Q: All right. I won't repeat my 12 question again. 13 A: Okay. 14 15 (BRIEF PAUSE) 16 17 Q: Just still looking at these 18 documents, on the assumption that nothing was done by the 19 Province, do you have a view on what the Native people 20 should have done further with respect to their request 21 that the burial ground be protected? 22 A: No, but I -- I -- you're asking me to 23 go on an assumption and -- and I don't know whether 24 that's correct or not. 25 All I can tell you is that it was after
1421 the fact that -- that I am aware of, in any recent time, 2 either, you know, whether in opposition, as leader of the 3 opposition or as -- as Premier that there was any effort 4 on the part of anybody, Federal Government, Provincial 5 Government, any Band, to suggest to the -- to the current 6 administration that -- that there was a burial ground 7 there. 8 And I think that there's a process that 9 can and would have been followed had there been any 10 indication of that. 11 Q: You said yesterday, and you repeated 12 today, that you think that there was a process that could 13 be followed. You said yesterday: 14 "I think there is a process that could 15 have been in 1935 or whenever this was 16 dated." 17 Do you know what that process was that you 18 think should have been followed in the -- 19 A: No, I wasn't -- 20 Q: -- 1930's? 21 A: -- born and haven't read up on it. 22 Q: So you don't know? 23 A: No, I don't know. I was told though, 24 and briefed that there was a process in place at the time 25 that I was Premier.
1431 Q: So you were told -- 2 A: But to the best -- to the best of my 3 government's knowledge or any brief in my knowledge, I 4 guess, any briefings I had there was no -- no attempt to 5 -- to search that out or to seek confirmation of it or... 6 Q: So you were told that there was a 7 process in place during the -- 8 A: Which I think -- I think was the 9 Cemeteries Act. I think that was the briefing that I 10 got, but it didn't matter to me what it was called. 11 Q: Right. Do you have any awareness, 12 because yesterday you said you: 13 "Think there was a process that could 14 have been followed in 1935". 15 Do you have any awareness about the 16 process prior to your term in government related to this 17 kind of -- 18 A: No, I don't know when -- when the 19 current process came into place, no. 20 Q: So you -- is it fair to say you have 21 no idea what process might have been followed in the 22 1930's? 23 A: Yeah, that's fair to say, yeah. 24 Q: And are you aware that in the Indian 25 Act in -- during this period in the '30's all the way up
1441 to the '50's, if an Indian Band was not pleased with or 2 satisfied with what the Government was doing in response 3 to its requests, such as this letter, that the Band was 4 actually prohibited from hiring lawyers to pursue it 5 further. 6 Were you aware of that? 7 A: No, I wasn't. 8 Q: No. And would you -- would your 9 answer change at all with respect to the documents of the 10 1930s if you're aware that no response was forthcoming 11 from these letters and the Band couldn't follow it up by 12 legal process with a lawyer? 13 A: I -- I have no idea what was 14 happening so I -- 15 COMMISSIONER SIDNEY LINDEN: Just a 16 minute, Mr. Harris. 17 THE WITNESS: Sorry. 18 COMMISSIONER SIDNEY LINDEN: Your lawyer 19 has got an observation, you want to let him make it. 20 MR. PETER DOWNARD: His answer to what 21 question? His answer to what question? 22 COMMISSIONER SIDNEY LINDEN: I'm sorry. 23 What's that again? I didn't hear you. 24 MR. PETER DOWNARD: He's asking the 25 Witness whether his answer would change if --
1451 COMMISSIONER SIDNEY LINDEN: Oh. 2 MR. PETER DOWNARD: -- that were so, and 3 I'm just wondering what questions -- what question he's 4 referring to. 5 COMMISSIONER SIDNEY LINDEN: Okay. 6 7 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 8 Q: All right. Well, let me back up. 9 You said yesterday, Mr. Harris, I think there is a 10 process that could have been followed in 1935, or 11 whenever this was dated. 12 And you said if anybody legitimately felt 13 that there was a burial ground that had not been properly 14 protected, there's a process for this and illegal 15 occupation or taking over of the Park is not the process. 16 So my question is: Do you have any 17 further thought on what the process should be other than 18 writing the letters that we've seen and if hiring a 19 lawyer for the legal process is not an option? 20 A: No, I don't have thoughts on that. I 21 -- I guess the only thoughts that I can correctly give 22 you is that -- that there was a process on September the 23 4th of 1995 and there'd been no process that had been 24 followed. 25 Q: All right. Would you agree with me
1461 that there might be a legitimate sense of frustration on 2 the part of the people in the Native community if their - 3 - as in the 1930s, their letters had resulted in no 4 action and they were legislatively prohibited from using 5 a lawyer in the legal process; would you agree with me a 6 certain frustration -- 7 A: Well, I don't know whether hiring a 8 lawyer -- I -- I realize I now am employed part-time at a 9 legal firm, but I don't know whether hiring a lawyer is 10 the only action that is -- that is available, but I'm 11 sure there are a number in this room would say that's the 12 preferred action to always take. 13 Let me -- you know, I think you're -- 14 you're asking me to -- to speculate there. I don't know 15 if there was frustration. I don't know if there was 16 consultation. I don't know what action was taken and I - 17 - I'm not sure I can speculate on that. 18 Q: And I take it when these documents 19 came out you didn't instruct anybody to find out anything 20 more about what had happened in the '30s and thereafter 21 with respect to government follow-up? 22 A: No, I was a lot more concerned about 23 what had happened in recent history and whether there was 24 any claim of anybody that was -- that was currently 25 connected with the Kettle and Stony Point Band, whether
1471 there was any action that had been taken, whether there 2 was anything that our government should have done, 3 anything that the -- the Federal Government should have 4 done and I was told that -- that there had been none. 5 Q: All right. 6 7 (BRIEF PAUSE) 8 9 Q: If you could turn, in the binder that 10 we've just been looking at, to Tab 16? And before I move 11 on the document I just referred to was Exhibit P-822. 12 And the document I'm now asking you to 13 look at, Mr. Harris, at Tab 16, is Exhibit P-909 which is 14 entitled, Note to File re. Ipperwash Skull, dated October 15 17th, 1996. 16 And this document, I won't read too much 17 of it, pertains to an investigation after the shooting of 18 Dudley George related to photographs in the possession 19 of, I believe, a daughter of a former park superintendent 20 at Ipperwash. 21 And to summarize parts of it near the 22 bottom of the page, she remembers a bulldozer levelling a 23 site for construction of a bath house and during that 24 work period there was a big storm and a skeleton appeared 25 in the sand.
1481 And if you, Mr. Harris, turn to the second 2 page of that document, the document refers to Arnold Dale 3 which was her father, the Superintendent of the Ipperwash 4 Park at the time, says: 5 "Arnold Dale took the skull and kept it 6 on his desk for several months 7 according to Mrs. Dulmage. She thinks 8 that the remains of the skeleton were 9 abandoned." 10 Now, would you agree with me that that was 11 not appropriate conduct for an employee or agent of the 12 Provincial Ministry, and particularly a park employee at 13 that point? 14 A: Yes, I would. 15 Q: And we have heard evidence, or rather 16 a lack of evidence that there's no information that Mr. 17 Dale or anybody in the Ministry advised any of the 18 surrounding Native communities of a skeleton or 19 Aboriginal skeleton being located there so they would 20 have had a way to do something about it. 21 Would you agree with me that that lack of 22 notice was not appropriate? 23 A: Yes. 24 Q: And the last paragraphs says that: 25 "Mrs. Dulmage recalls that local lore
1491 states that during the construction of 2 the water reservoir in the Park in the 3 1940's, truckloads of bones were 4 removed from the sand hill where the 5 reservoir is built." 6 And would you agree with me that, quite 7 apart from the removal of truckloads of bones, about 8 which I don't need to ask anything, that that knowledge, 9 as stated here, local lore would be -- that local lore 10 would be something that would probably and reasonably be 11 a source of frustration in the community? 12 In other words, if there's local lore 13 about truckloads of bones being removed? 14 A: Could be. 15 Q: In fact, more than could be, it 16 probably would be; is that fair? 17 A: Probably would be -- it would be if 18 it was me. 19 Q: Yes. Sorry, what did you say? 20 A: It would be if it was me. 21 Q: Yeah, yeah. And we reviewed, a few 22 minutes ago, your thoughts yesterday about proper process 23 being followed, and would you agree with me that the 24 description here is an example both of -- of actions or 25 lack of actions by Government employees and agents, and a
1501 resulting or related local lore, which was not a proper 2 process to follow all around; is that fair? 3 A: I -- I would say at the time. I 4 can't speak to the lore or how long it went on or whether 5 it was brought to anybody's attention, I don't know that. 6 Q: I'm sorry? 7 A: I said, at the time, if you're -- 8 you're talking about if, in fact, if you go back to the 9 time when the construction was taking place, I think I 10 agreed with you that that is not proper. As to the local 11 lore, I guess I -- I don't know who knew that, whether 12 that was brought to anybody's attention and it was 13 ignored or -- or not or -- so I can't really speak to 14 that. 15 Q: All right. 16 A: I would like to think, if it was 17 brought to anybody's attention in the Ministry, they 18 would have looked into it. 19 Q: And would you agree with me that in 20 the context of a skull being -- a skeleton being 21 uncovered, the skull being sat on a desk for several 22 months and the local Native community's not being advised 23 of this, that if there is local lore about truckloads of 24 bones, it's not -- it wouldn't be unexpected that people 25 had no confidence in any other process about this?
1511 MR. DERRY MILLAR: I'm not certain he can 2 answer that question. It's pure speculation and that -- 3 that any link -- there are too many links is what -- 4 COMMISSIONER SIDNEY LINDEN: Yes, I think 5 much too much of a leap from where you were going. 6 MR. MURRAY KLIPPENSTEIN: Let me try and 7 take a step backwards. 8 9 (BRIEF PAUSE) 10 11 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 12 Q: Well, I've asked you a number of 13 questions about this. This particular report is from 14 1996, October 17th, a little more than a year after the 15 shooting of -- of Dudley George. 16 Were the events or descriptions in this 17 memo ever brought to your attention? 18 A: In 1996? 19 Q: Or thereafter. Any time thereafter. 20 A: It could have been. 21 Q: All right. But you don't remember 22 whether this -- this description of the skull from 19 -- 23 skeleton from -- 24 A: I don't -- I don't recall that, no. 25 Q: All right.
1521 A: No. 2 Q: Certainly, if you were advised in any 3 way of what's in this memo, you didn't take any action? 4 A: Such as what? 5 Q: Well, no action at all. 6 7 (BRIEF PAUSE) 8 9 A: Well I guess I'm not sure whether -- 10 whether this specific memo was brought to my attention, I 11 -- at any time. I don't know what action, I guess, that 12 would be taken, could have been brought to -- 13 Q: But -- 14 A: It could have been brought to my 15 attention, I guess it's something that could have been 16 looked at if we-- but at this point in time I don't think 17 the Government had any access to the Park. 18 Q: But do you know if this was -- if 19 this particular information was, for example, provided by 20 the Province to the local First Nation? 21 A: I don't know. I don't recall seeing 22 it, so, and hearing it, so. 23 Q: And if you could then in the same tab 24 at page 15, sorry Tab 15. 25 A: Tab 15.
1531 Q: There's a -- the first page is a fax 2 transmittal sheet from Daryl Smith. 3 Do you see that? 4 A: Yes, hmm hmm. 5 Q: Who was a Ministry of Natural 6 Resources employee at the time of this memo, which was 7 September 14th, '95. 8 Do you see that? 9 A: Yes. 10 Q: This is Exhibit P-822, and the memo 11 says: 12 "The attached is a collection of 13 historical notes I found in my files 14 relating to the beginnings of Ipperwash 15 Provincial Park. On January 16th, 1975 16 I found these in the third basement of 17 Whitney Block." 18 Now, Whitney Block, of course, is part of 19 Queen's Park, loosely speaking; is that fair? 20 A: Yes. 21 Q: And Mr. Smith is advising, and this 22 is September of 1995, after the shooting of Dudley 23 George, that he found these notes back in 1975 and these 24 notes referred to are the letters of 1937, right? 25 If you look at the rest of the -- of the
1541 memo you can see. 2 3 (BRIEF PAUSE) 4 5 A: So this is on page -- where are the 6 rest of the memo? 7 Q: Okay. Let me -- the next step, if 8 you flip over the page, is a memo dated January 16th, 9 1975; do you see that? 10 A: Yes. 11 Q: And that's a memo to the 12 Superintendent of Ipperwash Park, right? 13 A: Yes. 14 Q: From a Mr. Fortner, District Manager. 15 A: Yes. 16 Q: And he says, in his first paragraph 17 in the second sentence: 18 "I have recently perused several 19 Ipperwash record files and attach 20 copies of rather interesting 21 information." 22 Do you see that? 23 A: Yes. 24 Q: And the copies he attaches are the 25 ones on the next pages, being the letters from 1937
1551 pertaining to burial grounds, right? 2 A: Okay. 3 Q: So I'm suggesting to you, you can 4 take this subject to check or your Counsel will object if 5 I'm misstating it, I'm sure that this suggests that in 6 1975 the records of burial grounds from 1937 were within 7 the awareness of a number of officials in the MNR, 8 including, apparently, the Superintendent of Ipperwash 9 Park. 10 Now, there's no -- there's no information 11 or evidence that anything was done about this information 12 in 1975, including any kind of referral to the local 13 First Nation about this, back in 1975. 14 Would you agree with me that that was not 15 following a proper process by the Ministry at that -- 16 A: Well, it doesn't appear to, but I -- 17 I don't know what was done or what wasn't. 18 Q: But as far as you -- the information 19 we have before us here, that doesn't appear to be a 20 proper process by the Ministry? 21 A: Well, I -- I don't -- if this is -- 22 if this is it, and you're assuring me that nothing 23 verbally, nothing -- nothing else written, nothing 24 anywhere was done, then you may be right. 25 Q: So we appear to have three (3)
1561 separate instances, one in 1937, one in 1950, and one in 2 1975, when information about a burial ground in Ipperwash 3 Park came to the attention of a Provincial Ministry and 4 it appears as far as we know nothing was done. 5 Now, would you agree with me that that's 6 not proper treatment of the issue of burial grounds in 7 the Park by the Provincial Ministry? 8 A: If nothing was done it strikes me 9 that it's -- that it's not appropriate. 10 Q: All right. I'd like to ask you 11 questions about a particular aspect of communication in 12 September of 1995. It is somewhat related to the items I 13 referred -- I asked you about before and if you could 14 turn in the same binder which is the binder I provided to 15 you to Tab -- one (1) moment. 16 17 (BRIEF PAUSE) 18 19 Q: A moment's indulgence here. Tab 12. 20 That's -- do you have Tab 12? 21 A: I do. 22 Q: Commissioner, this is a transcript of 23 a telephone or rather radio I believe conversation 24 between Mark Wright and the Command Post. It's just one 25 (1) page long.
1571 And it was -- it's from September 6, 1995, 2 at 19:54 hours. It was recently provided to us I think 3 in anticipation of -- of Mr. Wright's evidence and it 4 hasn't been entered -- entered as an exhibit. 5 And I wonder if it could be because I 6 intend to ask Mr. Harris a number of questions related to 7 Mr. Wright and the knowledge he had and his actions, 8 connected to Mr. Harris. And I'm wondering if this one 9 (1) page could be marked as an exhibit? 10 MR. DERRY MILLAR: I have no objection to 11 the page being marked as an exhibit. I guess we're going 12 to have to go question by question to deter -- I -- I 13 have no idea what knowledge Mr. Harris has if any of the 14 activities of Mr. Wright. 15 COMMISSIONER SIDNEY LINDEN: Let's give 16 Mr. Harris a minute to read the page if you're going to 17 make it an exhibit and then we'll see where we're going. 18 MR. MARK SANDLER: I suggest before it be 19 made an exhibit, because it will be made an exhibit 20 when -- 21 COMMISSIONER SIDNEY LINDEN: When 22 Detective Sergeant Wright -- 23 MR. MARK SANDLER: When Detective 24 Inspector Wright test -- 25 COMMISSIONER SIDNEY LINDEN: Inspector
1581 Wright. 2 MR. MARK SANDLER: -- testifies that we 3 should find out if there's any evidentiary foundation for 4 it to be introduced to this Witness at all. 5 COMMISSIONER SIDNEY LINDEN: Well, you 6 would think it would go in through Detective Inspector 7 Wright -- 8 MR. MARK SANDLER: Yes, of course. 9 COMMISSIONER SIDNEY LINDEN: -- but let's 10 hear what Mr. Klippenstein intends to do with it. 11 MR. MURRAY KLIPPENSTEIN: I don't have -- 12 I don't much care whether it's marked as an exhibit other 13 than for its convenience, and I could simply read in the 14 one (1) sentence that wish to refer. And if Mr. Harris 15 wants a moment to read it -- 16 COMMISSIONER SIDNEY LINDEN: Yes. 17 MR. MURRAY KLIPPENSTEIN: -- and I'll 18 just read in the one (1) sentence. 19 COMMISSIONER SIDNEY LINDEN: I think 20 that's a better idea and then it'll be an exhibit when 21 Detective Inspector Wright testifies. 22 MR. MURRAY KLIPPENSTEIN: That's fine. 23 And I don't know if Mr. Harris has -- has had a chance to 24 skim this. 25 THE WITNESS: Yes.
1591 2 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 3 Q: All right. This appears to be a 4 radio communication from Mr. Wright to the Command Post 5 at about 19:54, in other words 7:54 p.m., on September 6 6th which is a couple of hours before the shooting 7 incident and Mr. Wright is going into the Command Post. 8 Mr. Wright, and this will be the 9 anticipated evidence of Mr. Wright and -- and others I 10 think, was just driving away from the Park area where 11 he'd seen some occupiers. And beginning with the 12 sentence: 13 "So can you talk to your ERT guy." 14 Do you see that? 15 A: Yes. 16 Q: "So can you talk to your ERT guy in 17 there with the Inspector? I'm on my 18 way back. I'll give you a full rep 19 when I get back, but I think we should 20 be moving some people down that way. I 21 think we should be moving some people 22 down that way." 23 And stopping there. Now, I just want to - 24 - for your information and context, identify that as -- 25 as Detective Sergeant Wright phoning ahead and suggesting
1601 -- leaving the Park area and suggesting we should be 2 moving some people down that way. 3 Now, I'm going to ask you some questions 4 about Mr. Wright in relation to yourself. 5 If you turn to Tab 4 of the binder I've 6 provided to you, we have some handwritten notes which are 7 the scribe notes or record of the OPP command post and 8 this is Exhibit 427. And these, for your information, 9 we've reviewed these earlier in evidence a number of 10 times, are notes of the command post on September 5th, 11 1995. 12 And at the end, near the bottom of the 13 page you see the initials JC at the left, do you see 14 that? 15 A: Yes. 16 Q: Those stand for John Carson, the 17 Incident Commander. And the next sentence, in the 18 handwritten notes -- and before I say that, this 19 according to the evidence was said in the presence of 20 several people in the command post, including Mark 21 Wright. 22 "Premier's no different treatment from 23 anybody else." 24 Now, would you agree with me, specifically 25 with respect to Mark Wright, given his involvement in the
1611 transcript we just saw, that it is probably inappropriate 2 for that to be mentioned in the command post and be -- in 3 particular, the reference to the Premier's statement? 4 COMMISSIONER SIDNEY LINDEN: Just before 5 you answer, Mr. Harris. 6 Yes, Mr. Sandler? 7 MR. MARK SANDLER: This is not helpful to 8 you, with great respect. 9 COMMISSIONER SIDNEY LINDEN: No. 10 MR. MARK SANDLER: We have had a fulsome 11 inquiry into what should or shouldn't be said as between 12 officers at the scene. You're going to hear from 13 Detective Inspector Wright. 14 To ask the former Premier in the absence 15 of lots of context and lots of evidence, to be commenting 16 on what is or isn't appropriate, as between officers, 17 especially in the context when we all agree that 18 operational matters don't fall within the Premier's 19 purview, is just not helpful and is potentially 20 misleading. 21 And I say, with great respect, this is the 22 subject that -- where you are assisted through the 23 evidence of -- of the officers and not through the former 24 Premier. 25 MR. MURRAY KLIPPENSTEIN: Well, My Friend
1621 has put his finger on it and would have been speaking 2 that -- saying that the question is whether in 3 operational matters, something of this nature should be 4 reviewed, and that's precisely my question. 5 The Premier -- we have the reference here 6 to the Premier and we have the then-Premier as a witness 7 and I want to ask the then-Premier, given he said that 8 the separation between police and a government is a 9 fundamental aspect of democracy, that he -- he's entitled 10 to have -- express on view on where his name is used and 11 where his views are transmitted. 12 COMMISSIONER SIDNEY LINDEN: Sorry, yes, 13 Mr. Millar. Do you want to speak to it? I -- 14 MR. DERRY MILLAR: Well, the -- 15 COMMISSIONER SIDNEY LINDEN: I don't want 16 to start hearing from everybody, because I -- 17 MR. DERRY MILLAR: Well, there's two (2) 18 issues. The first issue is, there's a lot of -- with 19 respect to tying this September 5th comment to a radio 20 transmission on September 6th and asking the Premier to 21 comment on it, is -- the former Premier, is simply 22 unfair. 23 There's no link between the two (2) from 24 this Witness' perspective. 25 The second issue of the mention of -- the
1631 then mentioning the -- in the scribe notes of the Premier 2 that -- that the problem that you get into is that we've 3 had -- then-Inspector Carson told us what he understood. 4 There was a lot of evidence around the 5 discussions with respect to where the Premier was 6 mentioned. But it -- I think that one might be able to 7 ask the general question but -- 8 COMMISSIONER SIDNEY LINDEN: Yes. 9 MR. DERRY MILLAR: -- but -- but not 10 these specific questions tying this Witness in -- on 11 September the 6th then you hear the radio transmission. 12 The radio transmission is -- the very next witness is 13 Inspector -- Detective Inspector Mark Wright. 14 COMMISSIONER SIDNEY LINDEN: I think you 15 could ask a question in a general way and -- 16 MR. MURRAY KLIPPENSTEIN: Let me try and 17 back off and -- 18 COMMISSIONER SIDNEY LINDEN: I think so 19 without referring to this separate evidence that we have. 20 MR. MURRAY KLIPPENSTEIN: I don't want to 21 get tangled up in the specifics so let me take a few 22 steps backward and see. 23 24 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 25 Q: Mr. Harris, as the then Premier,
1641 would you agree with me that it raises concerns if what 2 are apparently your views on this issue are mentioned as 3 such in the command post at Ipperwash? 4 A: No I -- I don't know if it is my 5 views on this issue or whether it -- it's Mr. Wright 6 expressing views attributable to me on -- on what I'm not 7 sure. 8 But I -- I can't comment on that. 9 Q: All right. Just -- just to be clear 10 and I won't -- I won't try and tangle us in details, but 11 I'm not asking about whether you happen to agree with 12 this statement of what your view is. 13 I'm just asking about the possible 14 occurrence of the Premier's views whatever those views 15 are, being mentioned or identified in the police command 16 post; would you agree that that's not appropriate? 17 A: I -- I think that it would be up to 18 the police and the police how they operate to tell you 19 whether they think it's appropriate or not. It's 20 actually none of my business. 21 Q: All right. 22 23 (BRIEF PAUSE) 24 25 Q: Then I would just like to turn to a
1651 different topic and start by asking you about some other 2 comments you made in your testimony in-chief. 3 I think about three (3) or four (4) times 4 in your testimony in-chief, you were asked by Mr. Millar 5 about the situation of the Army Camp and the long running 6 dispute there. And I think I heard you express at least 7 some sympathy for the situation of the First Nation 8 community about having part of their lands taken away in 9 1942 during the war and not returned. 10 Is that -- is that generally speaking, 11 fair? 12 A: Yes. 13 Q: And I think you mentioned a couple 14 times that you, and I understand you may not have studied 15 the issue in detail, but you had some impression of that 16 from, for example, the press clippings which you saw 17 during the summer of '95; is that right? 18 A: Yes. 19 Q: Yeah. And you mentioned that it 20 appeared to you that those lands had been clearly owned 21 by the Band and that the sympathy arose from the fact 22 they had been promised to be returned and they'd never 23 been returned; is that fair? That was your 24 understanding? 25 A: That's my understanding, yeah.
1661 Q: Now I just want to ask you about a 2 possible connection between that scenario and the 3 Provincial Park lands. 4 Now, you referred to the ownership of the 5 Army Camp by the Band and it's possi -- maybe you never 6 got into it in this detail but were you aware that that 7 ownership of the Camp lands was part of an agreement with 8 the Crown more than a hundred (100) years ago in a 9 Treaty, but those lands would be owned, if you will, by 10 the Native Band as part of a Treaty Agreement? 11 Did your knowledge -- 12 A: I -- I wouldn't have had that 13 knowledge pre the 4th of September. What I believe I was 14 briefed on was that there is -- is no challenge, no 15 doubt, and lawyers aren't usually aren't this definitive, 16 that -- that the Park rightfully and legitimately belongs 17 to the Government of Ontario and the Ministry of Natural 18 Resources. 19 That -- that was kind of the extent I 20 think of what information had been -- 21 Q: All right. 22 A: -- been shared with me; that would 23 have been post -- so sometime September 4th, 5th, 6th, 24 probably. 25 Q: All right. But let me go back to my
1671 question. You've perhaps gone a couple of steps ahead of 2 -- of my glacial pace. 3 Were you aware when you discussed the 4 ownership of the Camp lands that that ownership was 5 actually confirmed by a treaty agreement with the Crown. 6 Perhaps -- I mean you -- 7 A: No, no. 8 Q: You didn't know that? Okay. And you 9 -- in the Serpent Mounds case you -- you treated that 10 differently in your mind partly because the ownership of 11 those parklands were clear I believe; is that right? 12 A: Actually I don't think I treated it 13 differently but I think it was treated differently by -- 14 by the Government and explained to -- to me as to why it 15 was treated differently. One of the -- one of the issues 16 I think was ownership of the land. I think the 17 expiration of an agreement. 18 I think that's all on -- on the record 19 yesterday of -- of using that land for the Serpent Mounds 20 Park, and I think there was a -- an information that was 21 -- a protest that would have been circulated dealing 22 with, I think, hunting and fishing rights and -- 23 Q: All right. 24 A: -- perhaps the Williams Treaty. I 25 think that was one of the issues at the time.
1681 Q: All right. It was a little different 2 there but in terms of the ownership of the land would it 3 have been of any use to you at all in 1995 to be aware 4 that the ownership of the Ipperwash Parklands had, a long 5 time ago, been assigned or recognized to the Band in 6 exactly the same way with the same treaty agreement that 7 the Camp lands ownership had been resolved? 8 Would that have been of any interest or 9 news to you? 10 A: Well, I -- I -- you're talking about 11 in advance of the 4th of September? 12 Q: Either in advance or afterwards or at 13 any time thereafter? 14 A: Well -- well, let me say I -- I'm not 15 sure of how -- whether it made any difference how it 16 ended up in the Government's hands if that's what you're 17 -- you're suggesting. 18 On the 4th, up to the 4th, I wasn't sure 19 that -- where Ipperwash Provincial Park was or that it 20 was adjacent to or -- or part of the -- adjacent to the 21 Ipperwash Camp lands. I became aware of that on the 4th, 22 5th, 6th. I think the important thing to me was, was 23 there any legitimate claim or any dispute over the 24 ownership of those lands today. 25 Q: And I take it your evidence was that
1691 whatever the protestors may have said to the police or 2 whatever anyone else knew, to the best of your 3 recollection a dispute about ownership wasn't transmitted 4 to you was that right? 5 A: That's correct. 6 Q: Now, if there was an issue about the 7 ownership of the Parklands and that issue was related in 8 the ownership the say way that the Camp lands was, would 9 that have been something that would have been useful for 10 you to be twigged to as a possible sign of trouble? 11 COMMISSIONER SIDNEY LINDEN: Just a 12 minute. 13 THE WITNESS: I don't know what -- 14 COMMISSIONER SIDNEY LINDEN: Before you 15 answer, Mr. Harris, I see Ms. Twohig has a... 16 17 (BRIEF PAUSE) 18 19 MS. KIM TWOHIG: Mr. Commissioner, 20 perhaps I'm not understanding the question, but I'm just 21 concerned that it seems to contain an assumption that 22 there was some kind of dispute about the ownership of the 23 Park land at the time in 1995. And I don't believe 24 there's any evidence of that apart from one (1) comment 25 that was made to an MNR employee or a police officer by
1701 one (1) of the occupiers. 2 And I -- I'm just concerned that it may be 3 not only misleading the Witness but is not fair to the 4 Inquiry, so. 5 COMMISSIONER SIDNEY LINDEN: Well, 6 perhaps you could be a little more precise. You're very 7 knowledgeable -- 8 MR. MURRAY KLIPPENSTEIN: Well -- 9 COMMISSIONER SIDNEY LINDEN: -- in this 10 area, Mr. Klippenstein, try to be as precise as you can. 11 MR. MURRAY KLIPPENSTEIN: Oh, thank you, 12 Commissioner. That's... 13 COMMISSIONER SIDNEY LINDEN: Well -- 14 MR. MURRAY KLIPPENSTEIN: Then you've 15 gone too far though. 16 COMMISSIONER SIDNEY LINDEN: No, I 17 think... 18 MR. MURRAY KLIPPENSTEIN: I was 19 deliberately avoiding the question of what the details in 20 the evidence and the facts had been and because Mr. 21 Harris had said nothing had been transmitted to him. 22 But since My Friend raises it, I should 23 point out that there is, in the evidence, a lot of 24 instances of the protesters saying, This is our land, Get 25 off our land. You know, and that was put before the IMC
1711 as many of the notes say. 2 They're saying it's our land and there's a 3 burial ground in there. I won't get into it, but I 4 just -- 5 COMMISSIONER SIDNEY LINDEN: That's fine. 6 MR. MURRAY KLIPPENSTEIN: And my 7 question -- 8 COMMISSIONER SIDNEY LINDEN: Your 9 question to Mr. Harris is? 10 MR. MURRAY KLIPPENSTEIN: Mr. Downard, I 11 think, wants to say something. 12 COMMISSIONER SIDNEY LINDEN: Oh. 13 MR. PETER DOWNARD: We have evidence, 14 clearly, that at least one (1) person, not a 15 spokesperson, it appeared, for the occupiers, said, It's 16 our land. 17 Now, beyond that, we have very, very thin 18 indications, at best, of any substantial claim being 19 brought forward prior to the occupation, or of any 20 grounds being raised as to how there could be any 21 legitimate claim. 22 And so I would just ask My Friend that if 23 he wants to talk about an issue existing prior to the 24 occupation commencing, he should be very specific about 25 what objective basis there is for saying that.
1721 MR. MURRAY KLIPPENSTEIN: I won't try and 2 drag this out. I -- I'm tempted -- I, with respect, 3 disagree with Mr. Downard and I'm tempted to go into a 4 long description of the evidence about how the issue of 5 the -- 6 COMMISSIONER SIDNEY LINDEN: Save that 7 for your argument -- 8 MR. MURRAY KLIPPENSTEIN: Yes. 9 COMMISSIONER SIDNEY LINDEN: -- because 10 I'm sure we're going to hear that at some point and -- 11 MR. MURRAY KLIPPENSTEIN: Yes. 12 COMMISSIONER SIDNEY LINDEN: -- this 13 isn't the time. 14 MR. MURRAY KLIPPENSTEIN: I just want -- 15 for the record, I respectfully disagree with Mr. Downard 16 on that point there -- 17 COMMISSIONER SIDNEY LINDEN: That's fine. 18 MR. MURRAY KLIPPENSTEIN: -- very, very 19 strongly. But -- but Mr. Downard has -- has correctly 20 said, and I've been trying to avoid dragging this out and 21 I won't, but -- but he's asked for the specifics and -- 22 and Mr. Harris, I have distributed to your Counsel, and 23 other Counsel beforehand, a few documents which I won't 24 get into unnecessarily, but the documents that have been 25 retrieved from various archives, indeed, in some cases
1731 since this Inquiry began, appear to show that the Indian 2 Agent of the Federal Government who was charged with the 3 responsibility of protecting the Indians at Stoney 4 Point -- 5 COMMISSIONER SIDNEY LINDEN: I think 6 you're going into much too much detail for this Witness-- 7 MR. MURRAY KLIPPENSTEIN: Then let me -- 8 COMMISSIONER SIDNEY LINDEN: -- at this 9 time, with respect to this area. 10 MR. MURRAY KLIPPENSTEIN: This Witness' 11 Counsel asked me to be explicit and detailed -- 12 COMMISSIONER SIDNEY LINDEN: Well, he 13 did, you -- 14 MR. MURRAY KLIPPENSTEIN: -- so I'll back 15 up -- 16 COMMISSIONER SIDNEY LINDEN: -- can't 17 win. 18 MR. MURRAY KLIPPENSTEIN: -- and try 19 again. 20 COMMISSIONER SIDNEY LINDEN: You can't 21 win, I mean, if you're -- 22 MR. MURRAY KLIPPENSTEIN: I can't win. 23 COMMISSIONER SIDNEY LINDEN: -- not 24 explicit -- 25 MR. MURRAY KLIPPENSTEIN: The story of my
1741 life. 2 COMMISSIONER SIDNEY LINDEN: -- and -- 3 MR. MURRAY KLIPPENSTEIN: But -- 4 COMMISSIONER SIDNEY LINDEN: I just think 5 that's more than we need at this stage. 6 MR. MURRAY KLIPPENSTEIN: Let me try one 7 more time. 8 9 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 10 Q: Mr. Harris, there -- there is, if I'm 11 -- there is some evidence that the Indian Agent was -- 12 was financially gaining from the sale of the Indian lands 13 in 1928 because he was the director and shareholder of a 14 finance company which financed the purchaser of the sale. 15 And the Indian Act specifically says in 16 situations like that, the transaction, at least the 17 financing transaction is void and the Indian Agent 18 forfeits his job. 19 Now, would that kind of information be 20 useful to you, either before September 1995 or after 21 1995, including over the years when this matter was an 22 issue? 23 A: Well, I -- it -- it was not brought 24 to my attention before, and as I indicated to you, all I 25 can do in my position as Premier and in -- is -- is ask,
1751 which I did, and get responses back, as I did, that there 2 was no dispute about the ownership of the land. 3 I don't think I can speculate as to if I 4 had other information or if I had something completely 5 different. 6 After September 6th some of this 7 information did become available in a -- in a, you would 8 probably agree with me, a sporadic way, or certainly not 9 as timely, I think, as -- as everyone would like. 10 And I think there was, in -- perhaps in 11 '96 or '97, a year or two (2) later, a notice from Chief 12 Bressette and the -- and the Band, an official notice 13 that they had passed a resolution that -- notice of 14 intent to follow-up with -- with a -- a potential land 15 claim. 16 But to the best of my knowledge, over the 17 last -- since that letter came, if it was '96 or '97, I 18 don't think there has been any attempt to do that. 19 But it is useful after the fact type of 20 information and all I can assume is, since the Band does 21 have access, I think, now, to legal counsel, that 22 somebody must have been reviewing that and making 23 recommendations as to whether that is something that -- 24 that should be pursued. 25 To the best of my knowledge, it has not
1761 been but I think that's information helpful to me as 2 Premier of the day and the current Premier today. 3 Q: Right. And I just -- I just have one 4 question, one last question, Mr. Harris. 5 And out of fairness and your ability to 6 respond if you wish, I do have to suggest to you that, 7 from the point of view of the Estate and Family, there is 8 a concern that some of your actions and your comments, 9 including the switching to an ex parte injunction, which 10 appear to potentially be attributable to yourself and Ms. 11 Hutton, were -- were unnecessary and potentially 12 influenced OPP officers, including officers such as Mark 13 Wright, and may have contributed or precipitated the use 14 of unnecessary force in September of '95. 15 And I just wonder if you have any comments 16 on that? 17 A: No. I -- I -- it's not a premise 18 that I accept or -- but I -- that's your view. 19 Q: Those are all my questions, thank 20 you, Mr. Harris. 21 Thank you, Commissioner. 22 COMMISSIONER SIDNEY LINDEN: Thank you 23 very much, Mr. Klippenstein. 24 Mr. Rosenthal...? 25 MR. PETER ROSENTHAL: A very short break,
1771 Mr. Commissioner? 2 COMMISSIONER SIDNEY LINDEN: Would you 3 like to have a break now? 4 MR. PETER ROSENTHAL: Yes, just very 5 short. 6 COMMISSIONER SIDNEY LINDEN: Well okay. 7 We'll take -- 8 MR. PETER ROSENTHAL: Or whichever -- 9 whatever you like. 10 COMMISSIONER SIDNEY LINDEN: We'll take a 11 short break now. That's fine. 12 THE REGISTRAR: This Inquiry will recess 13 for five (5) minutes. 14 15 --- Upon recessing at 2:12 p.m. 16 --- Upon resuming at 2:22 p.m. 17 18 THE REGISTRAR: This Inquiry is now 19 resumed. Please be seated. 20 COMMISSIONER SIDNEY LINDEN: Thank you. 21 Can I ask you, Mr. Rosenthal, what your current estimate 22 of time is? 23 MR. PETER ROSENTHAL: My estimate of four 24 (4) to five (5) hours still seems accurate. 25 COMMISSIONER SIDNEY LINDEN: Still seems
1781 accurate to you? 2 MR. PETER ROSENTHAL: Yes. 3 COMMISSIONER SIDNEY LINDEN: Carry on. 4 MR. PETER ROSENTHAL: As -- as you know, 5 can't be -- 6 COMMISSIONER SIDNEY LINDEN: You never 7 know but -- 8 MR. PETER ROSENTHAL: -- sure but I shall 9 try to expedite matters. 10 COMMISSIONER SIDNEY LINDEN: Thank you. 11 Let's go. 12 13 CROSS-EXAMINATION BY MR. PETER ROSENTHAL: 14 Q: Thank you. Good afternoon, Mr. 15 Harris. 16 A: Good afternoon. 17 Q: My name is Peter Rosenthal. I'm 18 counsel for some of the Stoney Point people of the name 19 Aazhoodena and George Family Group. 20 Now in some of your answers so far, not 21 unexpectedly, you've said you don't recall when asked 22 about certain events because it was ten (10) years ago, 23 there's a lot that one does not recall from ten (10) 24 years ago, right? 25 So you've said, "I don't recall", from
1791 time to time? 2 A: I have. 3 Q: And you've also sometimes, though, 4 said in answer to a question, did such and such happen, 5 you've said, "No". And I presume, like most people, 6 there's a distinction in those two (2) answers. 7 For you, if you say you don't recall 8 something, it means you don't know either way. If you 9 say no, then you mean for some reason you know that that 10 did not occur; is that fair? 11 A: The times when I don't recall that -- 12 my recollection could be 'no' so let's try and be more 13 definitive. 14 Q: Well -- 15 A: Me, I'm talking about me. 16 Q: And that -- I'm talking about you 17 too. And even you, when you say you don't recall, then 18 that means you don't have a recollection; isn't that 19 right? 20 A: Yeah. And there -- but I will try 21 and be more definitive. There are times when I have no 22 recollection because I'm quite sure that no recollection 23 means that wasn't a fact, or the state, or said, or 24 phrased that way, but I will try to be more definitive. 25 Q: If you say you don't recall, that
1801 means you have no recollection. If you say no, it means 2 that for some reason you know it didn't happen; isn't 3 that fair? 4 A: I -- I think that's fair and I 5 indicated to you that I'll try and be more precise when I 6 say that's not my recollection. 7 Q: Now, we've heard evidence, as you 8 well know, from Mr. Harnick, that, either towards the 9 beginning of or just before the beginning of the dining 10 room meeting, you said something like, I want the fucking 11 Indians out of the Park. 12 We've also, as you, I believe, know, heard 13 from Dr. Todres that towards the end of that dining room 14 meeting or perhaps after it ended she heard Mr. Hodgson 15 say words to the effect of, Get the fucking Indians out 16 my Park. 17 You're aware of that evidence too, are 18 you, sir? 19 A: Yes. 20 Q: Now, also, we've had some further 21 away evidence that you might have said something like, 22 Get those fucking Indians out of the Park and use guns if 23 you have to, or words to that effect. 24 You've heard that rumour as well have you, 25 sir?
1811 COMMISSIONER SIDNEY LINDEN: Just a 2 minute. 3 THE WITNESS: No. 4 COMMISSIONER SIDNEY LINDEN: Yes...? 5 MR. PETER DOWNARD: I don't think -- I 6 don't accept that we have any testimony that constitutes 7 evidence of that fact; none. 8 MR. PETER ROSENTHAL: Well, I -- 9 COMMISSIONER SIDNEY LINDEN: No. 10 MR. PETER ROSENTHAL: -- I tried to imply 11 we've heard rumours to that effect -- 12 COMMISSIONER SIDNEY LINDEN: He did say 13 rumours but that may not be... 14 MR. DERRY MILLAR: The best that we -- 15 the evidence was that it was reported at an IMC meeting - 16 - that the phrase was attributed to the IMC meeting on 17 September the 6th to someone having said that the Premier 18 said that at that meeting. So that is about six (6) 19 steps back -- 20 COMMISSIONER SIDNEY LINDEN: Times 21 removed and we weren't able to track it down or make it 22 any firmer than that. So let's leave it at that. 23 MR. PETER ROSENTHAL: I think I put it 24 fairly in saying we've heard rumours to that effect. 25 COMMISSIONER SIDNEY LINDEN: Okay.
1821 2 CONTINUED BY MR. PETER ROSENTHAL: 3 Q: I just wanted to get on the table 4 those three (3) different statements that we've heard at 5 this Inquiry and that have been bandied about in the 6 press and you've heard all three (3) of those statements; 7 is that correct, sir? 8 A: I -- I've heard two (2) of the 9 statements and I've heard a rumour. I -- I don't know 10 why we're commenting on rumour but... 11 It's pretty -- pretty easy to start 12 rumours in my business. 13 Q: It certainly is. Now, did you -- 14 when you were asked about whether you ever said, Get 15 those fucking Indians out of the Park and use guns if you 16 have to, or words to that effect, you gave a definitive, 17 No; is that not correct, whenever you've been asked about 18 that? 19 A: Yeah. I don't recall when I was 20 asked about that but, perhaps in the Legislature. 21 Q: But every time, you would give a 22 definitive no to that? 23 A: Yes. 24 Q: You know you didn't say that? But 25 have you not, at least sometimes, when you were asked the
1831 question, Did you say I want the fucking Indians out of 2 the Park, answered, I do not recall if I said that? 3 A: I -- I may have said that if -- but 4 not -- I have not said that at this Inquiry. Perhaps in 5 Question Period I may have said that. 6 Q: Do you -- do you agree that you are 7 more certain that you did not say, Get those fucking 8 Indians out of the Park and use guns if you have to, or 9 words to that effect, than you are that you did not say, 10 I want the fucking Indians out of the Park? 11 A: No, I wouldn't agree with that. 12 Q: You don't agree with that? 13 A: No. 14 Q: You don't agree with any distinction 15 between your certainty on either of those two (2), sir? 16 A: That's correct. 17 Q: And you have not implied that to 18 anyone, as far as you understand? 19 A: I -- I hope not. 20 Q: Now, Mr. Harnick, as you know, 21 testified in these proceedings in -- last November. I'd 22 like to refer you to a portion of the evidence of Mr. 23 Harnick, and this is his cross-examination by your 24 counsel Mr. Downard, or part thereof. 25 And Mr. Downard began his examination on
1841 November 28th, beginning at page 52 of the transcript, by 2 saying good morning to the Commissioner, but then 3 afterward he said -- he introduced himself to Mr. Harnick 4 and said right at the outset: 5 "Now, Mr. Klippenstein wanted you to go 6 over again your description of what you 7 say the Premier said in the dining room 8 and I would like to do that too. 9 Now, as I understand it, your evidence 10 is that, as you walked into the dining 11 room the Premier said, I want the 12 fucking Indians out of the Park; is 13 that correct? 14 A: Yes. 15 Q: That's your evidence that the 16 Premier made that inappropriate 17 statement? 18 A: Yes. 19 And then there was a pause. 20 Yes. 21 And then the Premier made another 22 statement. 23 Yes. 24 And he broke the silence in a calm 25 voice."
1851 And so on. 2 Now continuing, then, later on in that 3 examination, I should like to go to page 56 of the 4 transcript. 5 Beginning at line 5, your Counsel put to 6 Mr. Harnick: 7 "All right. Now, as you can imagine, 8 when I became aware, very recently, of 9 your evidence regarding the 10 inappropriate statement of the Premier 11 in the dining room that you've 12 described, I informed Mr. Harris of 13 that, and I have to tell you that he 14 tells me that he does not and that 15 he'll testify that he does not recall 16 saying anything like that in the 17 meeting." 18 Now was that report of your Counsel 19 correct, sir? 20 Had you told him that you do not recall 21 saying anything like that in the meeting? 22 A: I may have and it would have been 23 because I didn't say it. 24 Q: It might have been because you didn't 25 say it.
1861 A: No, it would have been because I 2 didn't say it. 3 Q: And you're saying that you're not 4 recall there had the same force as saying no; is that 5 right? 6 A: I -- I don't recall what I said to my 7 Counsel, but you're quoting back to me what my Counsel 8 said. 9 What I am telling you is, I didn't say it. 10 Q: Okay. Let's look at what you said 11 yesterday to Mr. Millar on this question. 12 13 (BRIEF PAUSE) 14 15 Q: Now, this is yesterday's transcript 16 beginning at about -- about page 153, towards the bottom 17 of the page. 18 "Now, do you recall stating at this 19 meeting at any time, Get those fucking 20 Indians out of the Park and use guns if 21 you have to? 22 A: No. 23 Q: And do you recall stating -- 24 saying, I want the fucking Indians out 25 of the Park?
1871 A: No, I did not say that. 2 Q: And to put this into context, Mr. 3 Harnick said that he'd just come into 4 the dining room when he heard the -- 5 the statement, I want the fucking 6 Indians out of the Park, being spoken 7 by you and then after you made the 8 statement the room went silent, and 9 then he felt you realized your 10 statement was inappropriate. Does that 11 assist? 12 [you say] I'm sorry that -- 13 MR. MILLAR: Does that assist you at 14 all in responding to -- responding to 15 this question? 16 A: No. I -- I absolutely did not say 17 that or words to those effect or use 18 that adjective at any time during the 19 meeting. 20 Q: And from time to time have you 21 used that adjective? 22 A: The word, the adjective's not 23 foreign to me, but not the kind of 24 language I would use at any kind of a 25 meeting, like the meeting we were at.
1881 Not the kind of language that I ever 2 think is appropriate, even if I have 3 used it from time to time, but 4 certainly not at any meeting like 5 this." 6 So you recall that answer yesterday, sir, 7 do you? 8 A: Yes. 9 Q: So am I correct in extrapolating from 10 that that you are feeling that you did not say that at 11 that time because you would not say that at such a 12 meeting, that's what leads you to say, no you didn't say 13 it, rather than just you don't recall, right? 14 A: No, I think you can extrapolate that 15 I don't ever remember saying it, any time, anywhere. 16 Q: Yes, we appreciate you don't remember 17 saying it, sir, but on the other hand, we have the 18 testimony under Oath by Mr. Harnick that he remembers you 19 saying it. 20 And therefore, if you just don't remember 21 it, and he clearly remembers it, the Commissioner might 22 well conclude that you did say it. 23 A: I can't speak for what the 24 Commissioner is going to conclude. I can -- 25 Q: Yes.
1891 A: -- just tell you the facts and the 2 truth. 3 Q: Yes. 4 A: As I know it. 5 Q: And the truth is simply you don't 6 recall whether you said it or not, is that not the truth 7 from your perspective, sir? 8 A: No. I think the truth is, I did not 9 say it. 10 Q: And you're concluding that, not based 11 on what you remember, but based on your assumption that 12 you would not say that at such a meeting; is that fair? 13 A: I'm basing that on the fact that I am 14 confident that I did not say it. 15 Q: Now, sir, perhaps we can reconcile 16 your evidence with Mr. Harnick's as follows: In the 17 passage I read to you from your evidence yesterday, it 18 seems to suggest that you feel you would not make such a 19 statement at a meeting like that. Mr. Harnick described 20 that statement as being made as the meeting began. 21 Now, perhaps the true reconciliation 22 between you and Mr. Harnick is, you said that before the 23 meeting began, not at a meeting, which you would not do, 24 but just before the meeting, which you might well have 25 done.
1901 Isn't that a fair conclusion, sir? 2 A: Not at all. 3 Q: Why would that not be fair? 4 A: Well, you're -- you're concluding 5 that I said it in the dining room with other people 6 present. But I don't know how you can possibly conclude 7 that when the truth is, I did not say that. 8 Q: But might you have said it just as 9 you entered the dining room, sir? 10 A: I don't believe so. But I think the 11 truth is, I didn't say that. 12 Q: You're less certain that you might 13 not have said it just as you entered the dining room? 14 A: The answer is no and you will have to 15 draw whatever conclusion you wish. Whatever conclusion 16 you draw I can't influence. I can only tell you that I 17 did not use those words. 18 Q: Now, sir, you have been reported as 19 using the word 'fucking' in another public context, have 20 you not? In the -- at the time of the meeting, the 21 advance polling with respect to the Conservative Party 22 Leadership Convention in September of 2004, you evidently 23 said that in a public place; is that not right, sir? 24 A: There is a report to that effect. 25 Q: And is that report true, sir, or not?
1911 A: Yes, it is. 2 Q: It is true. And so I -- I don't need 3 then to turn up the articles but I'll just ask you if 4 it's true. 5 COMMISSIONER SIDNEY LINDEN: You just did 6 and he said it was. 7 MR. PETER ROSENTHAL: Yes I'll ask him 8 specif -- specific wording if it's true. 9 10 CONTINUED BY MR. PETER ROSENTHAL: 11 Q: Did you say to a woman who was 12 supposed to be handing out ballots for polling, "Just 13 give me the fucking ballot." 14 Is that what you said, sir? 15 A: Those were the words, yes. 16 Q: That's what you said to her in a 17 public place, right? 18 A: I don't believe it was a public 19 place. I believe it was a Conservative Party polling 20 station for the leadership of the Conservative Party. 21 And it was said to a -- a gentleman that 22 was in the room. 23 Q: It was said in a hallway where -- 24 where polls were being handed out, right? 25 A: Yeah, in front of three (3) or four
1921 (4) people and to a gentleman that was in the room and I 2 subsequently apologized for having used that language. 3 Particularly in front of the -- the other three (3) that 4 were in the room. All Conservative Party workers. 5 Q: Well in fact, is it not true as the 6 press seems to suggest, sir, that you said to the woman 7 handing out the ballots, "Just give me the fucking 8 ballot." and then a gentleman intervened and said -- 9 COMMISSIONER SIDNEY LINDEN: No -- 10 MR. PETER ROSENTHAL: -- may I put the 11 question? 12 COMMISSIONER SIDNEY LINDEN: Yeah, finish 13 the question, finish the question. 14 15 CONTINUED BY MR. PETER ROSENTHAL: 16 Q: A gentleman then intervened and said 17 to you "What's going on here?" and then you turned 18 around and you sais to him "You can challenge my fucking 19 ballot, you jackass." 20 COMMISSIONER SIDNEY LINDEN: I don't 21 think it's helpful to have -- 22 23 CONTINUED BY MR. PETER ROSENTHAL: 24 Q: That's what the press account says, 25 sir. Now is that true is my question but wait until your
1931 counsel objects before you answer. 2 A: Okay. 3 MR. PETER DOWNARD: Sir, I've -- I've 4 already stood back from objecting for longer than I can 5 possibly imagine any lawyer doing in any other situation 6 than this. 7 And in my respectful submission, this has 8 already gone farther than it should and it is not helpful 9 to you. 10 COMMISSIONER SIDNEY LINDEN: Well, I 11 think you've gone farther than you have to go with issue 12 on this. 13 MR. PETER ROSENTHAL: With great respect 14 I haven't gone quite far enough yet. And in my 15 submission, Mr. Commissioner, and this is a very 16 important question as to whether he said those words on 17 the -- not these words on that occasion, but those words 18 on the dining room occasion. 19 COMMISSIONER SIDNEY LINDEN: Well, I 20 understand that. But -- 21 MR. PETER ROSENTHAL: And his credibility 22 on that issue is going to be something difficult for you 23 tp decide perhaps and I wish to influence in you in a 24 certain direction by further cross-examination of this 25 Witness' credibility in that respect.
1941 And he implied to Mr. Millar in his answer 2 as I read yesterday, that he wouldn't say it in that kind 3 of a context. He's now admitted that he has said that 4 word in a somewhat related context and I wish to explore 5 it a little bit further and then get back to the -- 6 COMMISSIONER SIDNEY LINDEN: Thank you, 7 Mr. Rosenthal. 8 MR. PETER ROSENTHAL: -- dining room 9 context. 10 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 11 Millar? 12 MR. DERRY MILLAR: Well the -- the 13 Witness as admitted that he used the adjective. 14 COMMISSIONER SIDNEY LINDEN: Yes. 15 MR. DERRY MILLAR: The Witness is not 16 denying that. The witness has explained -- 17 COMMISSIONER SIDNEY LINDEN: Yes. 18 MR. DERRY MILLAR: -- the circumstances 19 under which he made the statement. And the -- and it's 20 not a question of the Witness denying having made the 21 statement. 22 COMMISSIONER SIDNEY LINDEN: Yes. 23 MR. DERRY MILLAR: The Witness explained 24 making the statement. My Friend, if he -- and -- think 25 it's -- it's not as if the Witness has -- denies having
1951 said it. 2 COMMISSIONER SIDNEY LINDEN: If he denies 3 it then -- 4 MR. DERRY MILLAR: If he says, Yes, I did 5 and I -- and I -- 6 COMMISSIONER SIDNEY LINDEN: -- you'd be 7 entitled to. 8 MR. PETER ROSENTHAL: Well -- 9 MR. DERRY MILLAR: -- and I explained -- 10 and then he explained what he -- the situation where it 11 was. 12 MR. PETER ROSENTHAL: No, but I just -- 13 COMMISSIONER SIDNEY LINDEN: If he denied 14 it you'd be entitled to cross-examine. 15 MR. PETER ROSENTHAL: No, no. He did 16 agree that he used that word and then I was -- I was just 17 going -- I was about to be finished I thought. 18 COMMISSIONER SIDNEY LINDEN: You were. 19 MR. PETER ROSENTHAL: I was just going to 20 see if he agreed that he used all the words that are 21 attributed to him in the article. If he does, then I 22 will not confront him with the article and I'll move on. 23 COMMISSIONER SIDNEY LINDEN: Well, I had 24 the impression that he did right at the front end. 25 MR. PETER ROSENTHAL: Well -- but -- but
1961 may I just clari -- I don't think the record makes that 2 clear. 3 4 CONTINUED BY MR. PETER ROSENTHAL: 5 Q: So what I was asking you, sir, and 6 would you please tell me if you agree that on that 7 occasion you said essentially the following, that you 8 said to a woman who was handing out ballots, "Just give 9 me the fucking ballot"? 10 And then you grabbed it from the woman and 11 then a man intervened and said, "What's going on here" 12 and then you turned around and said, "You can challenge 13 my fucking ballot, you jackass"? 14 And I said -- I -- the man then apparently 15 said to you, "Don't be an asshole" and he -- you -- said 16 to him, "You're the biggest asshole of them all"? 17 That's what was recorded. Now, is that 18 more or less an accurate account of your interchange on 19 that day, sir? 20 A: Yes, it is. 21 Q: Thank you. And I shall move on. 22 COMMISSIONER SIDNEY LINDEN: Thank you 23 very much. 24 25 CONTINUED BY MR. PETER ROSENTHAL:
1971 Q: Now, as far as you know, sir, Mr. 2 Harnick was a loyal member of your government; is that 3 correct? 4 A: He was a what? 5 Q: A loyal member of your government? 6 A: Yes. 7 Q: And did you read his evidence in its 8 entirety, sir, that he gave at this Inquiry? 9 A: I did, not in great detail, but I 10 have reviewed it. 11 Q: And you saw that after reporting the 12 -- what your counsel termed inappropriate comment, he 13 went on to indicate his respect for you and so on right? 14 A: Yes. 15 Q: So can you give us any reason, sir, 16 to doubt the accuracy of Mr. Harnick's recollection? 17 COMMISSIONER SIDNEY LINDEN: That's -- 18 MR. PETER DOWNARD: No witness in any 19 proceeding is to be asked to -- 20 COMMISSIONER SIDNEY LINDEN: No, that's-- 21 MR. PETER DOWNARD: -- comment on the 22 credibility of another witness. 23 COMMISSIONER SIDNEY LINDEN: No, that's 24 up to me. That's up to me. 25 MR. PETER ROSENTHAL: It's not a question
1981 of credibility. Can he give us any reason to think -- 2 COMMISSIONER SIDNEY LINDEN: Well, 3 that's -- 4 MR. PETER ROSENTHAL: -- that might be -- 5 COMMISSIONER SIDNEY LINDEN: -- what's 6 you're asking him. You're asking him and that's a 7 decision for a Commissioner to make in these matters. 8 MR. PETER ROSENTHAL: Okay. I'll move on 9 to another question if I may. 10 11 CONTINUED BY MR. PETER ROSENTHAL: 12 Q: You have used the phrase, 'the 13 fucking Indians' from time to time have you not, sir? 14 A: I don't believe I have, no. 15 Q: Are you absolutely certain that you 16 never uttered that phrase, sir? 17 A: I -- I am certain I have never 18 uttered that phrase. 19 Q: You are. Did you hear other members 20 of your government utter the phrase, 'the fucking 21 Indians' over the period September 4, 5, 6, 7, 1995? 22 A: I -- I don't recollect that, no. 23 Q: You don't recollect that? 24 A: No. 25 Q: But you're not sure that nobody else
1991 said so; is that fair? 2 A: They could have said so if I wasn't 3 around where I didn't hear it. It's possible I suppose, 4 but I don't recollect hearing it. 5 Q: You don't recollect it? 6 A: I think I would recollect if I heard 7 it. 8 Q: Well, let me ask you, is that a 9 racist phrase in your view, sir? 10 A: It could be. It's an adjective 11 describing a race of people as opposed to an object or an 12 expression of -- of frustration, but I guess I -- I'm not 13 an expert on that since I didn't hear it. I would have 14 to know who said it and under what context. 15 Q: But as you understand it, sir, would 16 you understand that to be a racist phrase? 17 COMMISSIONER SIDNEY LINDEN: He just said 18 it would depend on the context. 19 MR. PETER ROSENTHAL: Yes, well, if -- 20 COMMISSIONER SIDNEY LINDEN: And he 21 said -- 22 MR. PETER ROSENTHAL: -- he could explain 23 further. Your understanding. I don't want any expert 24 view from you, I want your understanding as to the 25 context in which that would or would not be a racist
2001 phrase. 2 COMMISSIONER SIDNEY LINDEN: It's not 3 helpful to me. He said he didn't hear it. 4 MR. PETER ROSENTHAL: With great respect, 5 Mr. Commissioner -- 6 COMMISSIONER SIDNEY LINDEN: It's not 7 helpful. 8 MR. PETER ROSENTHAL: -- we have strong 9 evidence that he said it. 10 COMMISSIONER SIDNEY LINDEN: That's fine. 11 MR. PETER ROSENTHAL: Now, it's up to you 12 to decide on the credibility in the -- in the end, but I 13 will be arguing certainly that Mr. Harnick's evidence is 14 as credible evidence as you will ever see at any 15 proceeding anywhere. 16 COMMISSIONER SIDNEY LINDEN: Well, again, 17 that's for me to decide. 18 MR. PETER ROSENTHAL: But that's for 19 argument. 20 COMMISSIONER SIDNEY LINDEN: That's 21 right. That's for argument. 22 MR. PETER ROSENTHAL: That is for 23 argument and I will make that argument but -- 24 COMMISSIONER SIDNEY LINDEN: But ask this 25 Witness --
2011 MR. PETER ROSENTHAL: -- given that -- 2 COMMISSIONER SIDNEY LINDEN: -- questions 3 that he can answer. 4 MR. PETER ROSENTHAL: Yes. 5 6 CONTINUED BY MR. PETER ROSENTHAL: 7 Q: So in your view, sir, from your 8 understanding. I know you're not an expert in these 9 matters and I'm not asking you to respond as such. I'm 10 trying to understand what you did in September 1995 and 11 as part of that understanding I'm trying to ask you, sir, 12 do you consider -- in what -- you said it depends upon 13 the context as to whether you would consider that to be a 14 racist phrase. 15 And I'm asking you, sir, to assist me, in 16 your view what context would make it not racist? 17 A: Perhaps the best way I can answer 18 that is you give me all the contexts and I'll tell you 19 whether I think that's racist. 20 Q: Okay. Suppose somebody said, I want 21 the fucking Indians out of the Park, would that be a 22 racist statement in your view, sir? 23 A: I think so. 24 Q: Yes. Thank you. What about an 25 expression like, 'the fucking Jews'; would you consider
2021 that to be a racist expression, sir? 2 A: Yes, I would. 3 Q: No matter what the context? 4 A: I -- I can't think of a context. If 5 -- if you want to try me with a context that may not be 6 racist I'm prepared to that if that's what you think is 7 important to this Inquiry. 8 COMMISSIONER SIDNEY LINDEN: I don't 9 think doing that -- 10 11 CONTINUED BY MR. PETER ROSENTHAL: 12 Q: But you would -- you would assume 13 that in any context it would be racist is that what 14 you're saying? 15 A: I -- I would think so. I suppose if 16 somebody used the adjective every second word in every 17 day language then that person might be able to make a 18 case that -- that it's not. 19 I've heard comedians use the phrase 20 generally about their own race or religion and I didn't 21 interpret it as racist, but I'm not an expert in that. 22 So I think you would have to ask the -- 23 Q: Sir -- 24 A: -- the individual making the comment, 25 and what the context was.
2031 Q: Sir, I'm not -- just to reaffirm, any 2 questions I ask you, I'm asking for your views as Mike 3 Harris, former Premier. I'm not asking for any expert 4 opinion -- 5 COMMISSIONER SIDNEY LINDEN: This is -- 6 MR. PETER ROSENTHAL: -- on anything 7 other than what you are. 8 COMMISSIONER SIDNEY LINDEN: But some of 9 this is beyond the point of being helpful. Where are you 10 going now, Mr. Rosenthal? 11 MR. PETER ROSENTHAL: I'm going to a 12 different matter. 13 COMMISSIONER SIDNEY LINDEN: That's good. 14 15 CONTINUED BY MR. PETER ROSENTHAL: 16 Q: If we could please turn to your Tab 17 43 of your -- I'm only going to be referring, I believe, 18 to the fat binder -- 19 A: This binder -- 20 Q: The Commissioner binder. 21 22 (BRIEF PAUSE) 23 24 Q: Now, Tab 43 -- 25 MR. DERRY MILLAR: Just for the benefit
2041 of My Friend, Mr. Rosenthal, and others, we divided the 2 large binder into two (2) binders. Tabs 1 to 59 are in 3 the larger binder; Tabs 60 to 83 are in the smaller 4 because it kept coming apart. 5 MR. PETER ROSENTHAL: All right. 6 THE WITNESS: Okay. 7 MR. PETER ROSENTHAL: Would you please 8 re-divide mine, too, because mine keeps coming apart, 9 too. But I'll try to remember that. 10 11 CONTINUED BY MR. PETER ROSENTHAL: 12 Q: This is in the first and thicker 13 volume then, at Tab 43. Tab 43 is Tab 37 of Exhibit 14 444A, you need not concern yourself with this, Mr. 15 Harris, but for the record, it's Tab 37 of Exhibit 444A. 16 And if you could turn, please, to page 274 17 of that transcript. 18 And you were asked about this somewhere -- 19 A: I -- 20 Q: -- by Mr. Sandler and I won't 21 repeat -- 22 A: I'm sorry, I maybe at the wrong tab. 23 Which tab? 24 Q: I believe it should be Tab 43 of 25 your --
2051 A: Oh, okay. 45 here -- Tab 43, yes? 2 Q: It's a transcript of a telephone 3 conversation. 4 A: Yes. 5 Q: This is the famous telephone 6 conversation between Inspector Fox and Inspector Carson 7 and then Superintendent Coles, and I should like to turn 8 to page 274 of that, please. 9 10 (BRIEF PAUSE) 11 12 A: 274. 13 Q: 274. 14 A: Okay at the top, from Coles? 15 Q: Yes, that's right. 16 A: Okay, all right. 17 Q: If you go to the middle of that page, 18 you'll see an attribution to Fox. And Mr. Sandler took 19 you to some of this but not all of it. I want to take 20 you to the other parts. 21 This is, as you'll recall, Mr. Fox 22 reporting shortly after the dining room meeting. 23 A: Right. 24 Q: Now, you explain some of these 25 comments or your response to some of these comments. I
2061 don't believe you were asked by Mr. Sandler about Mr. 2 Fox's statement that he, meaning you: 3 "Views it as a simple trespass to 4 property, that's in his thinking." 5 Now, was that correct, sir, that you 6 viewed it basically at this point at the dining room 7 meeting point, as a trespass to property issue? 8 A: No. 9 Q: That's not correct? 10 A: No, it's not. 11 Q: So did you think that the persons 12 were trespassers? 13 A: Yes, and I think the questions were 14 asked, if not at this meeting, certainly at -- that Ms. 15 Hutton would have asked, and -- and reported back to me, 16 and there could have been questions asked at this meeting 17 too, what is the difference between trespass and an 18 occupation? 19 Why does one potentially require an 20 injunction and one not; and I think there was some 21 discussion of that, probably at that meeting as well. 22 But there certainly -- there would have 23 been, if not that meeting, at an Interministerial 24 Committee meeting. 25 Q: But you didn't view it as a trespass,
2071 then, sir? 2 A: Well, my -- my concern here is that I 3 think there were some options discussed at the 4 Interministerial Committee meeting that a -- a issue of 5 trespass, the person whose property was trespassed on, 6 could then request the police to remove the trespasser. 7 And I think that was -- that was something 8 that was explored, I believe, at the Interministerial 9 Committee meeting, I think, as reported to me. 10 So we were new at this, new to the 11 legality of it. We were all trying to get an 12 understanding. 13 I think it was a moot point because we -- 14 the conclusion was, and the -- and the advice from the 15 OPP, if MNR had said, We want our Park back, somebody's 16 trespassing in it, the -- the answer back from the OPP -- 17 and that may have been done, I don't know, from the OPP 18 is, well, you'll need to get an injunction. 19 Q: Sir, if I -- 20 A: So if there's a different legal 21 interpretation over trespass not requiring an injunction 22 or an occupation, requiring an injunction, then -- then 23 fine. 24 If -- that's my concern and you asked me 25 whether is a tres -- a simple trespass.
2081 Q: I'm reluctant to cut you off but I 2 wasn't asking you what might have happened at any other 3 meeting. I was asking you about the accuracy or 4 inaccuracy of Inspector Fox reporting: 5 "He [you] views it as a simple trespass 6 to property." 7 Is that a correct or incorrect report, 8 sir? 9 A: If his definition of simple trespass 10 is -- is one that does not require an injunction, 11 absolutely incorrect of my view. 12 COMMISSIONER SIDNEY LINDEN: Yes...? 13 MR. DERRY MILLAR: In fairness of and to 14 the Witness, the -- this is the Inspector certain of the 15 comments that are made in this transcript by Superin -- 16 by then Inspector Fox are matters that he attributes 17 directly to this Witness. 18 Certain other things are his -- he doesn't 19 make an attribution to the Witness, so it's -- it's -- or 20 he may be interpreting the Witness. So it's -- it's 21 difficult to -- where he makes a direct attribution then 22 it's fair to put to the Witness. 23 But it's -- it's not if it's some -- we 24 don't know other than going back to Mr. Fox and getting 25 his testimony whether it's a direct attribution to this
2091 Witness or something he's interpreting the Witness to 2 have said. 3 MR. PETER ROSENTHAL: Yes, sir, that's 4 correct, Mr. Commissioner. But it reads as -- it says 5 "he" meaning the Premier "views it as a simple trespass" 6 and it was appropriate to ask the Premier if that was 7 correct. 8 COMMISSIONER SIDNEY LINDEN: You've asked 9 him the question -- 10 MR. PETER ROSENTHAL: Yes and I'm moving 11 on now. 12 COMMISSIONER SIDNEY LINDEN: -- and he's 13 answered it. 14 MR. DERRY MILLAR: Mr. Millar rose 15 afterward to object so I must -- 16 COMMISSIONER SIDNEY LINDEN: No, that's 17 all right. 18 MR. PETER ROSENTHAL: -- explain that I 19 was moving on. He has answered the question. 20 21 CONTINUED BY MR. PETER ROSENTHAL: 22 Q: Now, I didn't fully understand and 23 should like a little bit of clarification of your 24 response to Mr. Sandler this morning about the earlier 25 expression that is attributed to you in the same
2101 paragraph by Inspector Cox: 2 "We've tried to pacify and pander to 3 these people for too long." 4 What I noted is that you said something 5 like, I don't believe I would have used those words; is 6 that correct, sir? 7 A: Yes. 8 Q: But do I correctly conclude from 9 that, that you might have expressed those ideas that 10 there's been too much pandering or in some other words, 11 too much yielding to First Nations people in the past. 12 A: I -- I don't recall that. I -- I -- 13 and I think if you're talking about 'these people', being 14 the occupiers, this would have been my first dealing with 15 the occupiers. So it just doesn't seem like -- like the 16 -- the -- as I interpret this that that was on our minds 17 or something that was on my mind. 18 Q: Now, you're reading 'these people' as 19 meaning the occupiers specifically, but perhaps we should 20 look at the entire sentence then, sir. It says: 21 "Okay. The Premier's quite adamant 22 that this is not an issue of Native 23 rights." 24 And then there's words: 25 "Uh, I mean we've tried to pacify and
2111 pander to these people for too long." 2 I would suggest to you, sir, what 3 Inspector Fox seems to be saying is that you're talking 4 about First Nations people generally, not just 5 specifically the occupiers, that you pandered to for too 6 long -- they pandered to for too long. 7 A: That could be. Could be what he's 8 saying, yes. 9 Q: Yes. So if that is what is meant, is 10 it true that you might well have said something to that 11 affect in perhaps different language? 12 A: I -- I don't recall anything along 13 that -- that context, no. 14 Q: Okay, so now we're in the situa -- 15 you don't recall but it is possible, right? 16 As opposed to an absolute 'no' which you 17 expressed with respect to the other phrase? 18 A: Well, it's possible Mr. Fox interpret 19 something I said that way but in -- but that's not my 20 recollection and that's not the -- the meaning as I think 21 Mr. Fox has relayed it of anything that I said. 22 And if he took that meaning then he 23 definitely took from anything I said the wrong intention. 24 Q: But there is some aspect of it that 25 is true about your thinking, at least in September of
2121 1995, is that not correct, that you did think that at 2 least in some situations to some extent, First Nations 3 people had be yielded to too much by Governments; is that 4 fair? 5 A: You'd have to give me an example. 6 Q: Well whatev -- did you think that to 7 some extent at all, sir? 8 A: I thought -- 9 Q: I'm asking you what you thought. 10 A: I thought there were some examples of 11 -- of that. 12 Q: Yes. 13 A: But not as a generality. 14 Q: Thank you. Now, you told Mr. Millar 15 yesterday the following, that is beginning at page 133 of 16 the transcript of yesterday's proceedings, Mr. Millar 17 asked you: 18 "Do -- and we've heard evidence from 19 Inspector Fox and Mr. Patrick that they 20 came late to the meeting and that Mr. 21 Lindsey brought them to the meeting 22 [this is the dining room meeting, 23 sorry, I should...] to the meeting and 24 introduced Ron Fox as Inspector Fox. 25 Do you recall that?
2131 [and you answered] No, and I would -- 2 Q: That was -- 3 A: -- unequivocally tell you that's 4 not true. 5 Q: That was Scott Patrick's evidence. 6 A: That is not true. 7 Q: And -- 8 A: Because I would remember that. 9 [you said]" 10 A: Yes. 11 Q: Now, what I want to ask you is: Why 12 would you remember, of all the things that were going on 13 in the dining room meeting, whether they said Inspector 14 Fox or Mr. Fox or Joe Blow? 15 A: Because about a year later, when 16 there was a newspaper report, I think, when I first 17 learned that an allegation that there was a -- a police 18 inspector or somebody who was -- who was with the OPP in 19 this meeting, I was very surprised at that. 20 And I -- I remember coming in to the 21 morning meeting that day saying we've got to correct the 22 record, they're wrong. And it turns out they were right, 23 there was a seconded OPP officer, in fact two (2), maybe 24 three (3) I hear now, I was aware of two (2) but I think 25 yesterday I heard there was -- could have been a third.
2141 But that -- that was not known to me and 2 nor to a number of people at the meeting and I would have 3 known that and I would have remembered that. 4 Q: So you say that this was brought to 5 your attention about a year after September 1995? 6 A: Well, I -- 7 Q: Approximately. 8 A: Approximately, I think. 9 Q: And at that time you did an 10 investigation then, is what you're telling us? 11 A: Yeah, because I said they're wrong, 12 that newspaper article is wrong, that reporter is wrong, 13 we've got to correct the record. 14 Q: And who did that investigation for 15 you, sir? 16 A: I have no idea. I would have asked 17 probably Ms. Hutton or whoever was -- I met with that 18 morning. 19 Q: And you asked her to find out if 20 there were any OPP officers at the dining room meeting? 21 A: Right. She was as shocked as I was. 22 Q: And what did she report back to you, 23 then, sir? 24 A: That there were seconded officers at 25 the meeting, not in the capacity of OPP but on staff now,
2151 seconded to one of the Ministries. 2 Q: And you must have asked, and she must 3 have asked, then, how those people got to that meeting? 4 A: Well, they -- they -- that wasn't -- 5 may have. It was pretty obvious how they got to the 6 meeting; they were seconded to the Ministry of the 7 Solicitor General so the deputy Solicitor General, I 8 assume, would have invited them to the meeting. 9 Q: You would have investigated that when 10 you were investigating the situation a year after the 11 event, sir? 12 A: Could have, but it seems pretty 13 obvious to me. 14 Q: Seemed obvious to you? 15 A: Yeah. I don't think a Ministry of 16 Natural Resources deputy would have invited them. They 17 worked -- they were seconded as civil servants and acting 18 in the capacity of civil servants, giving advice to the - 19 - the Solicitor General, that's my understanding. 20 Q: Yes. So you learned that at the 21 time, that they were seconded to the office of the 22 Solicitor General? 23 A: Right. 24 Q: And you didn't ask, why were they 25 invited to the meeting as opposed to the thousand other
2161 employees of the office of the Solicitor General? 2 A: Well, the deputy is entitled to bring 3 who she thinks is beneficial and it turns out this -- 4 this officer, the two (2) of them, I guess, are the ones 5 that she thought should be invited. And it also turns 6 out they were the same two (2) employees that were 7 attending, I guess, on her behalf or the Ministry's 8 behalf to the -- the Interministerial Meeting. 9 Q: So you're assuming that they were 10 attending on her behalf or you checked at the time and 11 found out, sir? 12 A: Well, I -- I don't think they would 13 go off on their own and attend at the meeting. I think 14 they worked for the -- the Deputy Solicitor General. 15 But I -- I don't recall whether I checked 16 or not. I'm not sure I cared. 17 Q: So even though this was a matter of 18 public interest at the time, that there was an OPP 19 officer at this meeting, you didn't do any further 20 investigation other than to confirm the fact that one was 21 there? 22 A: Well, I -- I asked were they there, 23 yes. Why were they there? They were there because they 24 were now working for the -- the Ministry of the Solicitor 25 General.
2171 I think we've -- we've determined all 2 that. 3 Q: So, we'll discuss that a little bit 4 more in a different context in a moment, but -- 5 A: Okay. 6 Q: -- you told us that the dining room 7 meeting -- the dining room meeting began with Dr. Todres 8 giving a description of the required separation between 9 police and government; is that correct? 10 A: That's -- that was my recollection, 11 yes. 12 Q: And she gave a rather full 13 description of the relationship; is that fair? 14 A: I -- I thought she did. 15 Q: Now, it was apparent to you, was it 16 not, that the reason that she was doing that was because 17 the question had arisen, at least in some people's minds, 18 as to whether some of those in attendance at the dining 19 room meeting understood that separation? 20 A: No, it wasn't clear to me whether 21 that was just a normal procedure when you had -- I think 22 it may have been the first meeting that I had had with 23 her in this -- certainly in this capacity, or that a 24 number of others, and there were a number of people in 25 the room who I didn't know.
2181 I didn't know some of the others, 2 including, as it turns out, two (2) seconded OPP 3 officers, who they were. So she may have been informing 4 them, I don't know. She didn't need to inform me, that's 5 all I knew. 6 Q: Yes, you knew about it since you were 7 a school child you told us, right? 8 A: Well, I don't know whether child's 9 the right word, but sometime I think we learned that in 10 school. 11 Q: You don't recall who invited her to 12 give that discussion or who began the meeting? 13 A: No. 14 Q: And you told us you don't know who 15 even called the meeting? 16 A: That's correct. 17 Q: Now, you told us yesterday, at page 18 99 of the transcript, you were asked by Mr. Millar the 19 following questions and gave the following answers 20 according to the transcript: 21 "And were you told, on September 5th by 22 Ms. Hutton, who Mr. Fox, Ron Fox was? 23 Did she mention that name or...? 24 A: No. 25 Did she mention to you that -- whether
2191 or not there were OPP officers at the 2 meeting on September the 5th? 3 A: No. And I -- I mean --" 4 And then Mr. Millar said: 5 "Pardon me?" 6 And then you said the following: 7 "I mean I subsequently know that she 8 had no idea there were OPP officers 9 there, nor did I." 10 And then Mr. Millar is ready to go on to 11 something else. He says: 12 "And at Tab 28 of the book --" 13 But then you interrupt him. You say -- 14 this is at the bottom of page 99 at line 21: 15 "By -- by the way, nor do I believe 16 there were OPP officers there. There 17 were --" 18 Mr. Millar: 19 "Now why do you say that, sir? 20 A: Well, I don't think I was -- 21 attended any of these meetings as a 22 teacher, but that was my training, I 23 had a certificate. I had been seconded 24 by the people of Ontario to take the 25 position of Premier, and as I
2201 understand it two (2) OPP officers, I 2 understood this in, you know, in 1996, 3 two (2) OPP officers had been seconded 4 to the Ministry as Civil Servants, as 5 liaison and -- and to give advice in 6 these areas. And certainly at any 7 meeting I attended, any meeting that I 8 understood Ms. Hutton attended and 9 reported to me, at no time did they -- 10 did they act as police officers." 11 Now, sir, given your comparison between 12 your secondment as Premier from your role as teacher and 13 that of Inspector Fox from the OPP, were you providing 14 some kind of liaison between the Government and your 15 grade 4 class, sir? 16 A: No. 17 Q: No. And you knew that he was a 18 liaison officer, right? 19 A: No. 20 Q: You said, in answer, As liaison. 21 A: I subsequently found out he was a 22 liaison officer. At the time I didn't know if those 23 people were bag carriers, whether they were assistants, 24 how long they'd been with the Ministry and which Ministry 25 they belonged to.
2211 Q: Yes, but you were answering questions 2 yesterday -- 3 A: Yes. 4 Q: -- of Mr. Millar. 5 A: Yes. 6 Q: And yesterday you said: 7 "I don't believe there were OPP 8 officers there." 9 A: Right. I don't believe they were 10 there acting in the capacity as an OPP officer. I 11 believe they were there as civil servants, having taken a 12 civil service oath and acting as civil servants, not as 13 active police officers. 14 Q: You understood the word, "liaison" 15 included information going back and forth through that 16 person; is that not fair, sir? 17 A: I'm not sure I thought about what 18 liaison meant. 19 Q: Until yesterday? Until today, sir? 20 A: No, I certainly -- I'm not sure 21 yesterday or -- or at any time. I don't know what all 22 their roles were. I don't know what all they did. 23 Q: Well, do you not understand that 24 liaison between two (2) organizations has something to do 25 with a flow of information between those organizations,
2221 sir? 2 A: It could, but I don't know what their 3 role was. 4 Q: You don't know precisely, but you 5 understand "liaison" has something to do with flow of 6 information back and forth, do you not, sir? 7 A: It could. 8 Q: It must, right? 9 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 10 Millar. 11 THE WITNESS: Well, if you say so. 12 That's your definition. 13 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 14 Millar? 15 Just a minute, Mr. Harris. 16 Yes, Mr. Millar...? 17 MR. DERRY MILLAR: There's a difference. 18 He -- what -- what the Witness said yesterday was he 19 found out in 1996. 20 COMMISSIONER SIDNEY LINDEN: In 1996. 21 MR. DERRY MILLAR: In 1995 he did not 22 know. 23 COMMISSIONER SIDNEY LINDEN: Yes. 24 MR. DERRY MILLAR: So that what he knew 25 in 1996 doesn't help us with what he knew and what he did
2231 in 1995. 2 And I point that out to My Friend because 3 it's not helpful to -- to -- he -- he said he'd learned 4 this in '96. 5 MR. PETER ROSENTHAL: Mr. Millar and Mr. 6 Commissioner, I remind Mr. Millar of the answers that he 7 gave yesterday to Mr. Millar. 8 COMMISSIONER SIDNEY LINDEN: Yes. 9 MR. PETER ROSENTHAL: Where he said, now 10 he does not -- now, in the present, he does not believe 11 there were OPP officers there because they were seconded 12 in the same way as he was seconded as a teacher. 13 COMMISSIONER SIDNEY LINDEN: I -- 14 MR. PETER ROSENTHAL: And I surely have 15 the right to pursue this a little bit further, Mr. 16 Commissioner. 17 COMMISSIONER SIDNEY LINDEN: I 18 understand, Mr. Rosenthal. You're testing his 19 credibility but I don't want this to become more than it 20 is. I don't need to hear -- 21 MR. PETER ROSENTHAL: I wouldn't have if 22 Mr. -- I don't understand why Mr. Millar rose, frankly -- 23 COMMISSIONER SIDNEY LINDEN: Well he -- 24 MR. PETER ROSENTHAL: -- or I wouldn't 25 have --
2241 COMMISSIONER SIDNEY LINDEN: -- he has a 2 right to rise just as anybody does. 3 MR. JULIAN FALCONER: Speaking of 4 anybody -- 5 COMMISSIONER SIDNEY LINDEN: Just as Mr. 6 Falconer does. Now I'm not sure what you're doing there 7 but you've got a right to stand. Yes, sir? 8 MR. JULIAN FALCONER: Thank you -- thank 9 you, Mr. Commissioner. It's your counsel's broad 10 statement that the issues of 1996 and this Witness' 11 knowledge in 1996 wouldn't be relevant for reasons that 12 will become clear during my examination. 13 I certainly hope he didn't mean that as 14 broadly and generally as he stated it. Because there's 15 very relevant issues to his knowledge in 1996 and what he 16 told the people of Ontario. 17 COMMISSIONER SIDNEY LINDEN: I think it's 18 important that we deal with your issues when you're 19 examining. 20 Mr. Rosenthal -- 21 MR. PETER ROSENTHAL: Can I continue, 22 thank you, sir. 23 COMMISSIONER SIDNEY LINDEN: I know 24 you're dealing with credibility and I want to give you 25 some leeway, but I think that we have to move on.
2251 MR. PETER ROSENTHAL: Not just 2 credibility, sir, but also trying to find out the facts, 3 as well. 4 5 CONTINUED BY MR. PETER ROSENTHAL: 6 Q: So I -- we do agree, do we not, when 7 we use the word 'liaison' we understand some sort of 8 information flow back and forth if someone is a liaison 9 person between two (2) organizations. 10 Is that correct, sir? 11 A: Well I -- I -- if -- if you want to 12 get into different definitions, all -- all I can tell you 13 is that that seems possible that would be a role. 14 I -- all I can tell you is that -- that in 15 1995, I did not know A) they were liaison officers, I 16 didn't know what capacity they were there in the meeting 17 and I certainly didn't know that they were trained as OPP 18 and employed and seconded from the OPP, that's all I can 19 tell you. 20 Q: And you found that -- all that out a 21 year later, approximately -- 22 A: Well, or some time later, yeah. I 23 think it was -- 24 Q: Approximately a year later. 25 A: Yes, I believe so.
2261 Q: And when you found that out, sir, did 2 you then do further investigation, knowing that the 3 question of what information flowed from Government to 4 police was one of the public issues with respect to what 5 happened at Ipperwash? 6 A: Well, I -- I didn't see it as a major 7 concern, if that's your concern. There should have been 8 a public flow of information from somebody at the 9 meeting, or somebody at the meeting would delegate it to 10 -- to somebody, notifying the OPP, request granted. 11 The Government will be seeking, tomorrow 12 morning, an injunction. 13 Q: Sir, I would put it to you that you 14 didn't need to have somebody at the meeting to convey a 15 simple message about the conclusion of the meeting as to 16 when an injunction would be applied for. 17 A: I would agree with you. I think 18 there was, it turns out, a separate function at the 19 meeting that Ms. Todres, the new Deputy, I think, had 20 requested, as it turns out, and I've learned this 21 afterwards, to -- to also report on the status what 22 information they could share with the -- with the 23 Committee. 24 You want me to say in hindsight, after 25 that they should have left. If I was the Deputy I would
2271 have asked them to leave. 2 Q: So, sir, perhaps I -- 3 A: That's all hindsight though. 4 Q: -- didn't understand your evidence. 5 Are you saying that you did learn afterward, perhaps a 6 year afterward, that the Deputy did specifically invite 7 Inspector Fox to attend the meeting? 8 A: I -- I believe that they did and I 9 have heard subsequently that -- that he was one of the 10 people, Inspector Fox, that she had requested to share 11 information with the meeting. But I didn't know who he 12 was at the time. 13 Q: Now, you told Mr. Sandler this 14 morning that there was some person at the meeting, you 15 say you didn't who it was at the time -- 16 A: Right. 17 Q: -- who was providing an update and 18 giving the OPP view of what was happening on the ground, 19 right? 20 A: Right. 21 Q: And at the time, you understood you 22 were getting the OPP view of what was happening on the 23 ground, right? 24 A: Right. 25 Q: And sir, at the time you must then
2281 have wondered how does this person, whoever is talking, 2 get the OPP view of what is happening on the ground. 3 A: I assume they report that through the 4 official channels, to somebody in -- in either the Deputy 5 or whoever the Deputy designates in the Ministry of the 6 Solicitor General. 7 Q: I would suggest to you, sir, that it 8 is likely, and it's ten (10) years later and we can't 9 reconstruct this, unfortunately we don't have a 10 transcript of the dining room, but it's likely that Scott 11 Patrick was correct and Inspector Fox was introduced as 12 Inspector Fox and that's how you knew he was giving OPP 13 information because he was a liaison officer giving 14 information direct from the OPP; isn't that fair, sir? 15 A: No, I think it's a wrong conclusion, 16 actually. 17 Q: Now, you told us that you met OPP 18 Commissioner Tom O'Grady at your swearing in ceremony, 19 sir? 20 A: I believe so, yes. 21 Q: Was that the first time you had met 22 him? 23 A: I can't recall other meetings, but I 24 would not have met him, I don't believe, in any kind of a 25 -- a formal meeting, but it may have been other
2291 ceremonial occasions that I met him. 2 Q: But you know him -- do you -- would 3 you recognize him? 4 A: Yes. 5 Q: And you would have recognized him in 6 September of 1995? 7 A: Yes. 8 Q: And you spoke to him from time to 9 time in person and by phone? 10 A: Not between the swearing in, I don't 11 believe, in 19 -- September of '95, and I -- actually, I 12 don't recall ever talking to him on the phone. 13 Q: You don't recall ever talking to him 14 on the phone. 15 A: Hmm hmm. 16 Q: You do recall meeting him at the 17 swearing in? 18 A: I recall he was at the swearing in 19 along with others, but -- and he's there in his capacity 20 as -- as Commissioner of the OPP. I don't recall talking 21 to him at the time and that wasn't top of my mind that, 22 golly gee, there's the Commissioner too. 23 Q: Now, you told us that about a year 24 after September of '95, approximately, and I realize that 25 you weren't precise about it, there was a question about
2301 some OPP officer being at the dining room meeting and 2 there was a press article about it and that got you 3 wondering, and then you made the inquiries that you told 4 us about; is that right? 5 A: That's correct, yes. 6 Q: But sir, am I incorrect in recalling 7 that the public -- the media acknowledgement of the fact 8 that the dining room meeting even existed, did not happen 9 until at least 2001? 10 Didn't happen within a year of September 11 '95, did it? 12 A: I don't know. 13 Q: Well, if that is correct, then 14 something's incorrect about what you've reported to us, 15 right? 16 A: No. I think there was something in 17 the media that OPP officers were at a meeting that I was 18 at on -- on -- somewhere between 4th, 5th and 6th. So I 19 made inquiries, found out which meeting it was and that 20 they were there. 21 So I -- I'm -- I don't know what's -- 22 what's inaccurate about that. 23 Q: Now, as we know, the Park was 24 reclaimed by Stoney Point people on Labour Day, September 25 4, 1995, right?
2311 A: I -- 2 Q: Now going back to that -- 3 A: I -- I -- I don't ever recall the 4 Park being reclaimed, I'm not sure what that word means. 5 Q: Well, you can call it occupied, you 6 can call it reclaimed -- 7 A: Okay. 8 Q: -- you can -- the people went to the 9 Park on that day? 10 A: Some people did, yes. 11 Q: And we don't have any direct 12 evidence, prior to your attendance here, of your 13 participation in the other events, except through Deb 14 Hutton, in the previous events to the dining room 15 meeting. 16 And we have -- as you know, we have a lot 17 of evidence about Deb Hutton's role at the 18 Interministerial Committee meetings of September 5 and 6. 19 And she was speaking on behalf of the Premier, as you are 20 well aware. 21 A: And as a representative of the 22 Premier's office, I believe. 23 Q: Yes. Now, during this period, she -- 24 her title was executive assistant with respect to issues 25 management; is that correct?
2321 A: Correct. 2 Q: And you trusted her as much as you 3 trust anyone? 4 A: That's true. 5 Q: And you trusted her to fully and 6 accurately represent your views? 7 A: I trusted her to ascertain the facts 8 and express her views, too. 9 Q: Express her views, and if she said 10 these are your views, you trusted her to be accurate in 11 that -- any such representation? 12 A: Yes. 13 Q: And you met with her frequently over 14 that period, September 4, 5, 6, 7, 1995; is that fair to 15 say? 16 A: I don't think I met with her on the 17 4th and -- possible the morning of the 5th and the 18 morning of the 6th. 19 Q: Morning of the 5th and 6th and that's 20 all? No other meetings in that time period? 21 A: No, I would have talked to her by 22 telephone as well. As I've indicated, either the evening 23 of the 4th or the morning of the 5th, and the evening of 24 the 5th, by telephone. 25 And I would have been briefed on all kinds
2331 of issues, including this issue. 2 Q: Now, sorry, I -- I might have missed 3 a bit. Am I correct that you had two (2) in person 4 meetings with her and about three (3) telephone calls 5 about this issue? 6 A: I -- if -- I -- I believe I would 7 have met with her, as I indicated, on the morning of the 8 5th with other individuals. I think there was a meeting 9 scheduled and to the best of my knowledge that meeting 10 took place. 11 And certainly there would have been a -- I 12 think there would have been a meeting on the morning of 13 the 6th that she very likely would have attended, I 14 believe. And there would have been, I believe, phone 15 calls where she would have called me on, I thought the 16 evening of the 4th and the evening of the 5th. 17 Q: And also late on the 6th or early on 18 the 7th to report the death of Dudley George? 19 A: That's correct. 20 Q: And in those personal meetings and 21 telephone calls, she would generally give you an overview 22 of what she had learned about the situation and you would 23 discuss the situation and perhaps discuss particular 24 responses to particular aspects that arose; is that fair? 25 A: I think that's fair. I think that's
2341 fair. 2 Q: And you felt at the time, and you 3 feel even in retrospect, that she appropriately kept you 4 informed about what was going on and you -- you and she - 5 - between you -- represented the Premier's views 6 appropriately during the period? 7 A: Yes, as well as she represented her 8 views and views of the Premier's Office. I don't know 9 who else she talked to. 10 Q: I'm sorry, sir? 11 A: I -- I don't know who else she talked 12 to in the Premier's Office. 13 Q: When -- you make a distinction 14 between the views of the Premier's Office and the views 15 of the Premier. 16 A: Right. 17 Q: Would there sometimes be a situation 18 where Ms. Hutton would say, The Premier thinks this but 19 the Premier's Office thinks the opposite? 20 A: I don't think that's -- that's 21 likely. I think she would try and find a consensus view 22 that she would express or she would express her own view 23 given the -- the information that she was getting at the 24 time. She was fully capable of doing that. 25 Q: But if she expressed a view as the
2351 Premier's view or the Premier's Office view, people would 2 take it in the same way; is that fair? 3 A: I don't know. 4 Q: Would there be a semantic difference 5 between those two (2)? 6 A: There could be, if she's indicated 7 the Premier's Office feels this or I feel this. I -- I - 8 - there may be a semantic difference. 9 Q: And so would you have instructed her, 10 at some point during this period, to say that the Premier 11 says this, as opposed to the Premier's Office? 12 A: I don't ever recall or instructing to 13 say anything that the Premier said. 14 Q: Well, you -- is it fair to say that 15 you and she had discussions about these issues -- 16 A: Yes. 17 Q: -- and came to a consensus about what 18 to say in response to the issues as they erupt? 19 A: No, I think she was free to go. She 20 was getting the information first-hand and -- and more 21 than I was. 22 So when we talked, if it was the evening 23 of the 4th, as I believe it was, there was no consensus 24 on what she should say. I think at that point it was -- 25 it was more finding out information and -- and use best
2361 judgment in -- in advancing your view point. 2 On the evening of the 5th I would have -- 3 she would have relayed what information she gleaned. We 4 could have discussed that. My recollection, though, is 5 that I usually concurred with conclusions that she had 6 drawn. I'm not sure I can think of an exception to that. 7 Q: Yes, and even now, looking back on 8 it, in preparation for this Inquiry and so on, there's no 9 instance where you feel that she misrepresented your 10 views; is that fair? 11 A: I -- I don't believe that she 12 misrepresented my views, no. 13 Q: No. And you've heard of -- you've 14 read the notes of the various meetings, you've heard some 15 of the evidence attributed to her -- 16 A: Hmm hmm. 17 Q: -- saying the Premier wants this, the 18 Premier wants that, and you don't have -- there's no 19 aspect of that that you feel she incorrectly expressed 20 your views? 21 A: There could very well be. At -- 22 others that -- you're talking now about notes that others 23 made of her views, so -- 24 Q: No, but -- 25 A: -- I -- I -- if you're asking me to
2371 comment on that you'd have to give me -- 2 Q: No. 3 A: -- each individual one. If you're 4 telling me -- I think she fairly reflected my views, and 5 I would have great confidence in her to do so. 6 Q: And you don't know of any utterance, 7 that she indicates she made on your behalf, that you do 8 not accept as being appropriate on your behalf? 9 COMMISSIONER SIDNEY LINDEN: Just a 10 minute. Yes -- 11 MR. PETER ROSENTHAL: Is that correct? 12 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 13 Downard? 14 MR. PETER DOWNARD: The Witness has 15 pretty fairly said, Look, if you -- if you want to ask me 16 about anything, as to this -- 17 COMMISSIONER SIDNEY LINDEN: Other 18 people's interpretations. 19 MR. PETER DOWNARD: -- stack of notes, 20 give me the note please. 21 COMMISSIONER SIDNEY LINDEN: Yeah. I'd 22 like to take -- 23 MR. PETER ROSENTHAL: I'm trying to be 24 somewhat expeditious, Mr. Commissioner, and I -- I don't 25 want to go over all those notes, but I will if necessary,
2381 frankly. 2 THE WITNESS: Well -- 3 COMMISSIONER SIDNEY LINDEN: Well -- 4 THE WITNESS: -- if I could help the 5 situation, I think Ms. Hutton has already testified so 6 I'm sure she's given her view -- 7 MR. PETER ROSENTHAL: Yes. 8 THE WITNESS: -- of what she said. I 9 have a great deal of confidence in her and -- and so I 10 would accept her view. 11 12 CONTINUED BY MR. PETER ROSENTHAL: 13 Q: And you -- and my question was, you 14 don't know of any incidents where she has accepted that 15 she did or said something -- 16 A: Well she may -- she may have given 17 evidence before this Inquiry. I wasn't here when she 18 testified. But if -- I -- I said, I have a great deal of 19 confidence in her even to -- to the evidence that she 20 presented so. 21 Q: Well perhaps we'll have to look at 22 some specifics then, sir. 23 A: Okay. 24 COMMISSIONER SIDNEY LINDEN: I would like 25 to take a break. An afternoon break some time in the
2391 next few minutes if this is a good a time as any. 2 MR. PETER ROSENTHAL: I'm in your hands, 3 sir. Now is fine. 4 COMMISSIONER SIDNEY LINDEN: Yes, we've 5 got another -- a bit to go and we can't go straight 6 through. So I would like to take a break now, if that's 7 all right. 8 MR. PETER ROSENTHAL: Certainly. Thank 9 you. 10 THE REGISTRAR: This Inquiry will recess 11 for fifteen (15) minutes. 12 13 --- Upon recessing at 3:19 p.m. 14 --- Upon resuming at 3:39 p.m. 15 16 THE REGISTRAR: This Inquiry is now 17 resumed. Please be seated. 18 MR. PETER ROSENTHAL: Thank you, Mr. 19 Commissioner. 20 COMMISSIONER SIDNEY LINDEN: Carry on, 21 Mr. Rosenthal. 22 23 CONTINUED BY MR. PETER ROSENTHAL: 24 Q: Now, Mr. Harris, before the break, 25 you told us something to the effect that you -- you
2401 thought or you knew, I'm not sure which it was, that the 2 Deputy Minister, Dr. Todres, had invited Inspector Fox to 3 that dining room meeting. 4 A: After the fact. 5 Q: After the fact you -- 6 A: Yes. 7 Q: -- you learned that upon an 8 investigation. 9 A: I -- I believe so. 10 Q: But Dr. Todres testified in these 11 proceedings and my co-counsel, Jackie Esmonde, has 12 located her testimony in that respect which is at the 13 November 30th transcript beginning at page 50. 14 And if we could begin perhaps at about 15 line 17, sorry, sir, I don't have an extra copy to this, 16 but if you could on there if you want to read along with 17 me. But or -- 18 A: Well I'll just -- 19 Q: -- you can trust my voice if you're 20 willing. 21 A: I can't read that, so go ahead. 22 Q: So Dr. Todres told us that: 23 "Someone called my office, I wouldn't 24 know who called my office, I was simply 25 told I had to be there. And as a
2411 Deputy Minister having been invited to 2 a Premier's Office I wouldn't have 3 decided who I wished to take with me to 4 the meeting. Someone, and I don't know 5 who that someone is, would have 6 suggested who had to attend. I 7 wouldn't have had the temerity to bring 8 along a party list to a meeting like 9 that." 10 So she was quite definitive that she did 11 not invite anybody to that meeting and she would not have 12 had the temerity to do so. 13 A: Okay. 14 Q: So can you put that evidence together 15 with your recollection of what you learned a year later 16 and try and assist us to what the facts were, sir? 17 A: Well, I -- it seems that -- that this 18 meeting, dining room meeting, seemed to have been some 19 extension of those key people that were involved in the 20 Interministerial Committee Meeting. 21 I assume the two (2) seconded OPP officers 22 were there under the auspices of the Deputy Minister. 23 And if -- as I've indicated to you, we -- we can't recall 24 who called the meeting and who chaired the meeting. 25 So it -- it -- certainly, I don't know
2421 whether it's relevant but a very plausible explanation is 2 that the ICC Committee said, Well, let's convene, all the 3 ministers are in Cabinet, we can -- I'm sure after 4 Cabinet we can gather them for a few minutes and share 5 the information that we have and -- and move forward. 6 So that's another possibility. 7 Q: My -- my colleague Ms. Esmonde has 8 also pointed out that we do have some evidence about who 9 called the meeting or at least who directed him to attend 10 the meeting. If we could please look at the transcript 11 of January 9 of this year, Mr. Runciman's evidence at 12 page 127, beginning at line 13 at page 127: 13 "Q: And the -- the meeting in the 14 Premier's dining room, you were asked 15 to attend that meeting by the Premier, 16 by Mr. Harris? 17 A: I believe so. I think he -- now 18 we may have been -- had some little 19 notice prior to that. I don't think -- 20 I think -- think we may have gotten a 21 note sent into Cabinet. I'm not really 22 clear on the notification but certainly 23 I do recall him, at the very least, 24 reminding us that we were having a 25 brief meeting following the adjournment
2431 of Cabinet." 2 And then before I get your response to 3 that, sir, just to shed some light on the question we 4 were dealing with with Dr. Todres: 5 "Q: And did you give instructions to 6 anyone with respect to your department 7 as to who should attend that meeting? 8 A: No, I had no idea who was 9 attending that meeting until I walked 10 into the room." 11 So we have the Solicitor General and the 12 Deputy Solicitor General telling us that they had no idea 13 who was going to be at that meeting. So they did not 14 invite Inspector Fox, evidently. 15 COMMISSIONER SIDNEY LINDEN: Mr. 16 Rosenthal -- 17 THE WITNESS: I -- I -- 18 COMMISSIONER SIDNEY LINDEN: -- you can 19 correct me if I'm wrong, but isn't there also some 20 evidence from Inspector Fox that he was walking down the 21 street and received a phone call? 22 MR. PETER ROSENTHAL: Yes. 23 COMMISSIONER SIDNEY LINDEN: Are you 24 going to get to that too? 25 MR. PETER ROSENTHAL: There is -- there
2441 is some evidence to that, certainly. 2 COMMISSIONER SIDNEY LINDEN: I just seem 3 to recall that. 4 MR. PETER ROSENTHAL: Yes. 5 6 CONTINUED BY MR. PETER ROSENTHAL: 7 Q: Now, but then -- then, sir, I wish to 8 fasten on the other aspect of this evidence from Mr. 9 Runciman, that he believed that you were the one who 10 asked him but, in any event, he certainly recalled, at 11 the very least, that you reminded him at the end of the 12 Cabinet meeting that there was going to be a brief 13 meeting following. 14 Now, does that refresh your memory, sir? 15 A: I believe I've indicated that -- that 16 somebody had suggested that the relevant ministers meet. 17 I think I probably informed all of Cabinet that there 18 would be a meeting afterwards of the relevant ministers. 19 Whether I got a note sent in to me to that effect or not 20 I don't know and so I -- I think that is consistent with 21 my understanding, yes. 22 Q: Now, it is consistent with your 23 understanding that you would have informed the members of 24 Cabinet, at the end of the Cabinet meeting, there's 25 another brief meeting?
2451 A: Yes. 2 Q: But still you cannot tell us who 3 would have suggested that there be that other brief 4 meeting or how that arose? 5 A: Well, I -- I assume I would have 6 heard about it through Ms. Hutton or a note sent to me 7 saying we're all going to get together and all the 8 ministers are here; I think that's my recollection. I -- 9 I really don't care and I -- I don't know how it was 10 called. I didn't call it but it took place and there we 11 were and it seemed appropriate. 12 Q: Well, it may be of some importance to 13 this Inquiry to learn how it took place, sir. 14 A: Then -- then if you have information 15 on how it was, you don't have it from me. I'm sorry. 16 Q: Yes, we don't have it from you, sir. 17 But can the Premier be required to attend a meeting by 18 anybody not in the Premier's Office? 19 A: Well, I -- I guess nobody can be 20 required to attend a meeting, including -- including 21 anybody. If it's suggested that this is a good idea by 22 somebody then -- then we would and I think I've given 23 evidence or -- that rather than take the whole time of 24 Cabinet, since we had a busy Cabinet agenda and many 25 other issues to deal with, that we would deal with this
2461 issue after Cabinet with those relevant Ministers. 2 I believe that's how it -- how it took 3 place, and who made the suggestion, I don't know. But I 4 guess I would have heard about it from my representative 5 of the Interministerial Committee which would have been 6 Ms. Hutton. 7 Q: You're not suggesting that the 8 Interministerial Committee somehow decided that the 9 dining room meeting should take place? 10 A: That's one (1) possibility, yes. 11 Q: I see. Well, we don't have any 12 evidence to suggest that, sir, and we've interviewed many 13 people from those meetings. 14 A: Okay. 15 Q: So we're left with no possibilities 16 other than Mr. Runciman telling us that he believes that 17 you called the meeting or at least you reminded him. 18 A: Well, there you go. 19 Q: There you go. Now let's go to 20 something else, then. 21 You told Mr. Millar yesterday, beginning 22 at page 8 of the transcript, he asked you: 23 "Did you discuss with her on the 24 morning of September 5th, prior to her 25 attending the meeting, that this
2471 government treats Aboriginal and non- 2 Aboriginal people the same? [and you 3 answered] 4 I don't recall that discussion, but 5 that would be my view, if you're 6 dealing with an occupation that we 7 viewed was illegal or breaking the law. 8 Q: And then it was not a native 9 issue, but a law and order issue. Did 10 you discuss that with her? 11 A: I don't believe that was discussed 12 in the morning, but that certainly 13 became my view as I -- as more and more 14 information was given to me. 15 Q: And if she expressed that view on 16 the morning of September 5th, was she 17 speaking on your behalf? 18 A: She wouldn't be speaking on my 19 behalf, but I think she would be if I 20 had the same information she had at the 21 time and subsequently was given to me, 22 I think she would be, you know, 23 accurately reflecting my reaction." 24 So you gave that evidence yesterday, sir? 25 A: Yes.
2481 Q: And you did then, regard this as a 2 law and order issue, as you testified yesterday? 3 A: I did view it as that. 4 Q: You did regard this not as a native 5 issue but a law and order issue, as you indicated 6 yesterday. 7 A: Yes. I don't know whether that was 8 the case on the morning of the 5th, if that's what you're 9 saying. That's where you started, but certainly I came 10 to view it that way. 11 Q: You certainly came to view it that 12 way by the evening of the 5th, sir? 13 A: I believe so, yes. 14 Q: Now, I'd like to explore a bit more 15 what might be meant by that, by the law and order views 16 that you had as Premier and we have a document at your 17 Tab 45, I believe that's still in the first, thicker 18 volume, as divided by Mr. Millar, which is Exhibit P-952 19 to these proceedings, Inquiry document 1006196. 20 21 (BRIEF PAUSE) 22 23 Q: And this you'll note, sir, is a -- a 24 fax from Mr. Beaubien to Bill King of your office, on 25 September 6th, 1995 and there's a covering letter from
2491 Mr. Beaubien and then if you go beyond that, there is the 2 letter from a constituent of his that he attached to that 3 fax. 4 Can you see that, sir? 5 A: Yes. 6 Q: Now I should like to ask you about 7 the second and third paragraphs of that. 8 9 (BRIEF PAUSE) 10 11 Q: And this letter, as you recall, was 12 copied to you although you may not have seen it in the 13 flurry of correspondence you got as Premier. 14 A: That's correct. 15 Q: It was copied to you originally, 16 evidently, by the letter writer according to the CC's at 17 the end, but then in addition, this fax is when Mr. 18 Beaubien faxed it to Bill King to bring to your 19 attention, specifically. 20 Now, the paragraph I should like to draw 21 your attention to first is: 22 "I do not want to see the Provincial 23 Government back down in the face of a 24 lawlessness. Under trespass law, the 25 occupiers can be arrested. This should
2501 be done immediately. Those responsible 2 for property damage should be charged 3 with mischief. 4 Each hour of delay allows them to 5 commit more damage and become better 6 entrenched. 7 Protracted negotiations simply lends 8 credibility to their cause. 9 The time to act and act decisively is 10 now. If people are hurt, so be it. 11 Laws must be enforced to be respected." 12 Now, sir, this person identifies himself 13 as a supporter of your Party and so on and of your 14 Government. 15 Is that an accurate rendition of the 16 views, the law and order views of the Conservative Party 17 at the time would you say? 18 A: No. I -- I -- these are his views. 19 Q: I see. And what respect is that 20 different from the law and order platform of the 21 Conservative Party, sir? 22 A: Well I -- I can't recall all the 23 details of the platform in 1995 but I could if you want 24 me to take under advisement, go through it in detail and 25 -- and look at it or I could give a cursory look if you
2511 want. 2 But I didn't see this letter at the time. 3 In fact until years later I believe. And he's expressing 4 his views. 5 Q: Yes. But is it not in accord with 6 what was your view at the time, sir? 7 A: No. I think our view was that -- 8 that if you want to avoid people being hurt, the sooner 9 we were able to end the occupation, the better it would 10 be. That was -- that was certainly underlying our 11 premise. This seems to be the opposite of that. 12 Q: Well, sir, -- 13 A: That's one (1) part. 14 Q: He say: 15 "If people are hurt, so be it. The law 16 must be enforced." 17 He doesn't he say wants you to try to hurt 18 people but is this not a standard expression of a law and 19 order platform that you must enforce the law and 20 unfortunately sometimes that leads to people getting 21 hurt? 22 A: Well I think if the law is -- is 23 enforced and enforced fairly and consistently, that it is 24 the hope through doing that, that fewer people are hurt. 25 Q: Yes. But in -- in this particular
2521 occasion, we know that somebody got grievously hurt. 2 A: Yes. 3 Q: By the enforcement of the law that 4 took place on September 6th, 1995 is it not? 5 A: Well I -- I guess your presuming that 6 the law was being enforced at that time but I -- I have 7 no knowledge of that. 8 COMMISSIONER SIDNEY LINDEN: I'm not sure 9 how this is helping me, Mr. Rosenthal. This is a letter 10 from a constituent that the Premier says he never saw. 11 MR. PETER ROSENTHAL: I'll take your 12 advice and move on, sir. 13 COMMISSIONER SIDNEY LINDEN: Thank you. 14 15 CONTINUED BY MR. PETER ROSENTHAL: 16 Q: Now I would like to ask you for some 17 clarification of something that -- else that you said to 18 Mr. Millar yesterday. 19 Beginning at page 88. This is your 20 transcript of evidence yesterday at page 88, at the very 21 bottom. And getting back to another statement and at the 22 very, very bottom, just the last sentence on the page. 23 Yes, I want just the very bottom of that 24 page, just the one phrase on that page and then next one 25 I think. Maybe page 89 that I --
2531 MR. DERRY MILLAR: Okay, you got it, it's 2 right there. 3 MR. PETER ROSENTHAL: Oh yes, okay, thank 4 you. 5 6 CONTINUED BY MR. PETER ROSENTHAL: 7 Q: Well beginning at the bottom of page 8 88 and getting back to another statement attributed and 9 then he read to you a quote from notes of the meeting of 10 September 5th: 11 "This will set the tone of how we deal 12 with these issues over the next four 13 (4) years." 14 And Mr. Millar then informed you that 15 that's attributed to Ms. Hutton at that meeting and asked 16 you: 17 "Did you discuss that issue with her on 18 the morning of September the 5th? 19 A: I don't believe so. 20 Q: That you wanted to move 21 decisively. Did you discuss that with 22 her before the morning of September 23 5th? 24 A: On the morning of September 5th, I 25 don't believe so.
2541 Was that something that she, if it's 2 correctly attributed to her which the 3 evidence is, that she said that 4 -- that it was something that you 5 wanted done on the morning of September 6 the 5th? 7 Well again, I'm not sure how much 8 information I had the morning of the 9 5th. I can tell you by the evening of 10 the 5th, morning of the 6th, that was 11 certainly my view that we should take 12 action to be clear what the action is, 13 it should be decisive and taking no 14 action was in fact a mistake and I 15 believe that to this day." 16 And there's several questions that I have 17 arising -- 18 A: Okay. 19 Q: -- from that, sir. 20 First, you didn't directly respond 21 although I think by implication you did, that you -- I 22 take it that you do agree with Ms. Hutton's statement 23 that this, meaning the Ipperwash event where you deal 24 with it, will set the tone of how we deal with these 25 issues over the next four (4) years.
2551 You did agree with that, is that correct, 2 sir? 3 A: Yes. And I -- 4 Q: Upon -- 5 A: I -- 6 Q: You didn't know necessarily on the 7 morning of September -- 8 A: Right, I didn't know the context in 9 which she said or what all she was responding to, but -- 10 but I think that -- that I concurred at some point in my 11 -- my testimony that -- that we wanted to be consistent. 12 I don't think that was foremost in her 13 mind that -- that -- of that, but I think that is a fact. 14 Q: Well -- 15 A: That this was the first incidence of 16 this type that we had faced. 17 Q: It was evidently so much in Ms. 18 Hutton's mind that she did mention that specifically to 19 the Interministerial Committee the way that led to people 20 taking notes and her agreeing ten (10) years later she 21 said it. 22 A: Right. 23 Q: So -- 24 A: Right. 25 Q: It played -- it was some fact that it
2561 was worth mentioning, at least, at the time. 2 A: Okay. 3 Q: Right. In her view and in your view, 4 is that correct? 5 A: Well, I think she -- 6 COMMISSIONER SIDNEY LINDEN: Just -- 7 THE WITNESS: I -- it wasn't my view. I 8 didn't hear what she was responding to. I think it's 9 clear that Ms. Hutton has -- has said that anything that 10 I have said, I think this is how the Premier would 11 respond if he had all the information I had. 12 13 CONTINUED BY MR. PETER ROSENTHAL: 14 Q: Yes. 15 A: So whatever information she was 16 responding to, I accept that. I trust her in that. 17 Q: And she -- 18 COMMISSIONER SIDNEY LINDEN: Do you have 19 an objection, Ms. Perschy...? 20 MR. PETER ROSENTHAL: Sorry. 21 MS. ANNA PERSCHY: Yes. It took me a few 22 minutes to get up here. I'm just concerned that, as I've 23 indicated before, this Witness wasn't at the meeting. 24 These not -- these notes are not a verbatim transcript 25 and My Friend is now referring to what may or may not
2571 have been in Ms. Hutton's mind. 2 She's testified. Her testimony's 3 available. I think if -- if My Friend's going to start 4 asking these sorts of questions, in terms of what were 5 Ms. Hutton's views, what she was trying to convey, in 6 fairness to this Witness who wasn't at the meeting, he 7 should be putting -- providing some of that context as to 8 what she has testified before this Inquiry, she was 9 trying to convey at the time. 10 So if he has -- does have some context, 11 because the notes are not a transcript. 12 MR. PETER ROSENTHAL: Ms. Perschy 13 completely misunderstands my question and I hope that the 14 Witness didn't and I hope you didn't, Mr. Commissioner. 15 I was not asking what Ms. Hutton's views 16 were; we've had her evidence on that. 17 This witness has told us that he, in 18 general, felt that Ms. Hutton did accurately represent 19 his views and I'm asking him would this, upon reflection, 20 even though he didn't know ahead of time, would this 21 have been an accurate reflection of his views, not of Ms. 22 Hutton's views. 23 THE WITNESS: Well -- 24 MR. PETER ROSENTHAL: I think that's an 25 entirely appropriate question --
2581 THE WITNESS: Well -- 2 MR. PETER ROSENTHAL: -- for this Witness 3 and no other. 4 COMMISSIONER SIDNEY LINDEN: I -- 5 THE WITNESS: Other than accepting Ms. 6 Hutton's explanation, I have no way of knowing. I wasn't 7 there, I don't know what she was responding to, I don't 8 know at what point in the meeting the note was written. 9 But if she says this would reflect my 10 views, I accept that. 11 12 CONTINUED BY MR. PETER ROSENTHAL: 13 Q: Sir, I'm asking you, looking back ten 14 (10) years ago, did you -- would you agree with the 15 statement that how you behaved with respect to the 16 Ipperwash incident, how you, the government, reacted to 17 that, would among other things, set the tone as to how 18 you deal with these issues for the next four (4) years. 19 Do you agree with that statement, sir? 20 A: I -- I do. 21 Q: Thank you. 22 A: I think that's fair and I indicated 23 to you that -- that by the evening of the 5th, I think I 24 had more information to refer to these types of 25 situations --
2591 Q: Yes. 2 A: -- which were an illegal occupation 3 by a group of dissidents with -- with no support from -- 4 from any -- any organized body. 5 Q: And so by the evening of the 5th, you 6 did come to that conclusion that she had expressed as I 7 indicated? 8 A: Yeah, yes. 9 Q: And, sir, when you -- in your mind, 10 when you -- these issues, you mean, protests, 11 occupations, things of that type. Those are the kind of 12 issues -- 13 COMMISSIONER SIDNEY LINDEN: No -- 14 MR. PETER ROSENTHAL: -- that this would 15 set the tone -- 16 THE WITNESS: Yeah, illegal activities, 17 yeah. 18 COMMISSIONER SIDNEY LINDEN: He just 19 described, the Witness just described what he meant by -- 20 THE WITNESS: I don't think protests is 21 fair. I don't think this was viewed as a protest. 22 COMMISSIONER SIDNEY LINDEN: Well, he 23 just described -- 24 MR. PETER ROSENTHAL: I see he -- 25 COMMISSIONER SIDNEY LINDEN: -- what he
2601 meant just a minute ago. 2 MR. PETER ROSENTHAL: Yes, occupations. 3 You meant occupations that are illegal in your view? 4 THE WITNESS: Yeah. 5 COMMISSIONER SIDNEY LINDEN: Yes. Now, 6 he went even further than that. He said that weren't 7 supported by the official Band or First Nation. 8 MR. PETER ROSENTHAL: Oh, yes, he -- 9 COMMISSIONER SIDNEY LINDEN: He made 10 that -- 11 MR. PETER ROSENTHAL: -- yes. Perhaps I 12 should pursue that. Thank you, Mr. Commissioner. 13 14 CONTINUED BY MR. PETER ROSENTHAL: 15 Q: So, sir, was that important in your 16 decision as to how to react to these people, the fact 17 that the official Band as you understood it, did not 18 support the people in the Park? 19 A: Yes. 20 Q: And if the official Band had 21 supported them, you might have taken a different view? 22 A: I think that -- that at that point, 23 then there may have been a different view, yes. 24 Q: So even if you were still assured as 25 you were in other respects that this Park was -- that the
2611 Province had clear title to this Park and there was no 2 problem with title, there were no land claims on it -- 3 A: Well -- 4 Q: -- but if the official band had 5 indicated that they supported the people in the Park that 6 would have changed your view? 7 A: Well, I -- with all due respect I 8 think you've described the reasons why the Band didn't 9 support them. 10 Q: Perhaps but if nonetheless the Band 11 unanimously did support them that would have changed your 12 view? 13 A: Well, I -- I think we would have 14 wanted to find out why they supported them and on what 15 basis but that wasn't the case so... 16 Q: Thank you. Now, I did also want to 17 ask you about the last part of what I read to you which 18 is on page 89 at line 25: 19 "It should be decisive in that taking 20 no action was in fact a mistake and I 21 believe that to this day." 22 Now, do I correctly understand, sir, that 23 what you meant by that was that if we just waited a 24 while, left the people in the Park and didn't do 25 anything, that would be a mistake?
2621 A: I think the -- 2 Q: Is that -- that's the mistake you 3 meant? 4 A: I think the first action that was 5 taken was comments to the media and so that it was known 6 by presumably the -- all of those involved including the 7 protestors that we considered this an illegal occupation 8 and that we were exploring options to end the occupation. 9 I think that was the first action. It 10 was a communication action and I think it was important 11 that that be done as soon as we -- we had come to the 12 conclusion. 13 And with all due respect I think the 14 Interministerial Committee came to that conclusion on 15 their own without me because I -- I wasn't involved in 16 any of that. 17 Q: Well, sir we have evidence from many 18 people who were at the Interministerial Committee 19 Meetings and we can get that evidence from them. 20 A: Right. 21 Q: I'd appreciate getting from you your 22 evidence, sir, -- 23 A: Right. 24 Q: -- about what you know. Now -- so 25 taking no action would have been a mistake.
2631 You -- you've indicated you had to at 2 least take the action that you just described in 3 communicating that it was in your view an illegal 4 occupation? 5 A: That was the first action that was 6 taken and then the second was an indication that we would 7 be pursuing what alternatives we could as a government to 8 get the Park back. 9 Q: Now, it has been suggested by a 10 couple of witnesses to this Inquiry that it might have 11 been more appropriate if you just waited a couple of days 12 and see what was happening. 13 But what you mean by this is that that 14 would be a mistake to just wait and see, right? 15 A: Yes, I think once you know it's 16 illegal and it's in your power, the longer you -- you 17 allow that to go on the more you're seen to condone it. 18 I didn't think we wished to condone an illegal action. 19 Q: Thank you. Now, if you could turn 20 please to your Tab 23 which is the notes of Julie Jai of 21 the September 6th Interministerial Committee Meeting, 22 it's Exhibit P-536 to these proceedings Inquiry Document 23 Number 1012569. 24 A: Let me just... 25 Q: Tab 23.
2641 A: P-536? 2 Q: Yes. You need not be concerned with 3 what the exhibit is or the Inquiry Document Number is, 4 just make sure that you have -- 5 A: Tab 23? 6 COMMISSIONER SIDNEY LINDEN: Tab 23, yes. 7 8 CONTINUED BY MR. PETER ROSENTHAL: 9 Q: Tab 23. 10 A: Yeah, it says P-536 on the top. 11 Q: It's some handwritten notes, sir? 12 A: The handwritten note is P-536 and -- 13 Q: Yeah. 14 A: P -- 15 Q: It may say P-536 on your copy but 16 don't worry about that. 17 A: Okay. 18 Q: Worry about whether you have a 19 document, the handwritten notes which begin -- it says: 20 Agenda September 6th/95? 21 A: No -- oh yes. Okay. The next page. 22 Q: Thank you. Now, if you'd go to the 23 next page after the agenda page it's labelled page 1 in 24 the upper left. 25 Is that correct, sir?
2651 A: Yes, I have that. 2 Q: Now, then if you look two thirds of 3 the way down you'll see it says, "Hutton". 4 A: Yes? Where -- where does it say 5 Hutton? 6 Q: Sorry. It may not say Hutton but it 7 says -- two thirds (2/3's) of the way down: 8 "Prem does not want anyone involved in 9 disc's other than OPP and possibly 10 MNR." 11 Do you see that, sir? 12 A: Yes. 13 Q: And we have evidence from Ms. Hutton 14 that -- that was the view that she did convey to this 15 meeting and I would ask you then again, if as you've 16 indicated with some other matters, that was an accurate 17 rendition of what your view either was or became after 18 you and she discussed it? 19 A: Yes. 20 Q: And that -- that was accurate, sir? 21 A: That don't want to get into 22 negotiations, that's correct. 23 Q: "Premier doesn't want anyone involved 24 in discussions other than OPP and 25 possibly MNR."
2661 A: Well I think Ms. -- Ms. Hutton 2 actually indicated that it might be beneficial if -- if 3 the Chief could help end the occupation. But I think the 4 conclusion of the meeting -- I think that was part of the 5 discussion at the meeting it was relayed that -- that not 6 on behalf of the Government, that would probably 7 compromise the Chief as -- as well. 8 So anything that could end this occupation 9 I think was -- would have been welcome. But from the 10 Government point of view I believe here she would be -- 11 be referring to -- this would be a matter for the OPP. 12 However, if possibly the MNR could be 13 involved in discussions, if that would help facilitate it 14 and I think those were the options that -- that -- that 15 they had considered and all the ones that she had heard 16 at the meeting. 17 So in that sense, I agree with that. 18 Q: Sir, we know you were not present at 19 this meeting, correct? 20 A: Correct. 21 Q: But did I misunderstand you or were 22 you telling us that Ms. Hutton told you that she told 23 this meeting that she wanted the Chief to be involved? 24 A: No. I think I've read testimony from 25 her that she felt at the time that -- that would be
2671 helpful but not as part of a Government response that 2 anybody who could assist in that would be beneficial. 3 As far as the Government response goes it 4 should be left to the OPP. 5 Q: So you've read her evidence at this 6 Inquiry you're telling us? 7 A: I -- I thought I read that somewhere, 8 yes. 9 Q: And that you thought you read 10 somewhere that she communicated to the Interministerial 11 Committee -- 12 A: No, I think -- 13 Q: -- that she thought that the -- that 14 she thought -- 15 A: -- I think that I read that she felt 16 that would be beneficial but not as part of response 17 coming from the Interministerial Committee and a 18 recommendation for the Government to follow. 19 That's -- that was my recollection -- 20 Q: I see. 21 A: -- after the fact. 22 Q: Okay. So you -- you don't dispute 23 then that what she brought to the Interministerial 24 Committee meeting was the notion that the Premier doesn't 25 want anyone involved in discussions other than OPP and
2681 possibly MNR? 2 A: Right. And I -- I also believe that 3 was the consensus of the meeting. 4 Q: Well whether it was the consensus of 5 the meeting, sir, that was something that you and Ms. 6 Hutton concurred on as you've told us you concurred on 7 many things, right? 8 A: Right. 9 Q: Thank you. 10 11 (BRIEF PAUSE) 12 13 A: I don't know if this is objecting, 14 the last question here -- 15 COMMISSIONER SIDNEY LINDEN: Ms. Perschy, 16 do you have something to say? 17 THE WITNESS: -- or the one you're going 18 to do but -- 19 MR. PETER ROSENTHAL: I'm sorry? 20 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 21 Perschy. 22 MS. ANNA PERSCHY: I'm sorry. Just that 23 it takes so long and I don't want to interrupt but -- 24 COMMISSIONER SIDNEY LINDEN: Yes. 25 MS. ANNA PERSCHY: -- My Friend's
2691 referring to one set of notes and -- and he was 2 effectively cross-examining this Witness as to what was 3 going on at the Interministerial Committee meeting. And 4 just in fairness and -- and to clarify the record, it is 5 reflected in some of the notes that in fact Ms. Hutton 6 was indicating that it would be helpful to have Chief Tom 7 Bressette assist but to do it independently as -- 8 COMMISSIONER SIDNEY LINDEN: Well, she 9 mentioned that. It did come out. 10 MR. PETER ROSENTHAL: That's correct but 11 irrelevant to my -- 12 COMMISSIONER SIDNEY LINDEN: Well -- 13 MR. PETER ROSENTHAL: And he answered the 14 question that this was something he did agree with it 15 and -- 16 COMMISSIONER SIDNEY LINDEN: That's fine. 17 MR. PETER ROSENTHAL: -- I don't 18 understand the objection. 19 COMMISSIONER SIDNEY LINDEN: Well it's 20 important that I understand it, Mr. Rosenthal. Carry on. 21 MR. PETER ROSENTHAL: Please, when you're 22 considering my time, don't count Ms. Perschy's time. 23 24 CONTINUED BY MR. PETER ROSENTHAL: 25 Q: Now, turning to the next page of
2701 these notes, of course, I'm only presenting one (1) page 2 of notes at a time, Mr. Commissioner, if necessary I'll 3 present them all but I don't think we have to. 4 On page 2 at the bottom of the page and 5 again, I'm asking you, sir, when I refer to these aspects 6 of the notes that I do want to bring to your attention, 7 I'm asking if these statements come within what you 8 indicated before, the concurrence that you and Ms. Hutton 9 came to at whatever period of time, morning or evening of 10 September 5, 6, -- 11 A: Okay. 12 Q: -- so at the bottom of page 2 -- 13 COMMISSIONER SIDNEY LINDEN: You just 14 want to remind, Mr. Harris, I think he already knows, 15 this is Julie Jai's interpretation. 16 MR. PETER ROSENTHAL: Yes. 17 COMMISSIONER SIDNEY LINDEN: Right. I 18 mean I just want to make sure that we know this isn't -- 19 MR. PETER ROSENTHAL: Yes, that's -- 20 COMMISSIONER SIDNEY LINDEN: Because with 21 the words "Deb" it's not her speaking, it's Julie Jai's 22 interpretation of what she said. 23 MR. PETER ROSENTHAL: It's Julie Jai's 24 notes of that meeting. 25 COMMISSIONER SIDNEY LINDEN: Yes.
2711 MR. PETER ROSENTHAL: But the portions 2 I'm reading, I don't think they're controversial at all, 3 but -- but I want -- but Mr. Harris was not at that 4 meeting and Ms. Hutton was at the meeting. 5 I want to ask him if this is within the 6 ambit of his concurrence with Ms. Hutton as he told us 7 many things were. 8 9 CONTINUED BY MR. PETER ROSENTHAL: 10 Q: So, if we look at the bottom of page 11 2. 12 A: Yes. 13 Q: And I -- I believe you acknowledge -- 14 I'm just going to quickly -- I believe you've 15 acknowledged this in your examination by Mr. Millar, but 16 that attributed to Deb, we want -- 17 "We want to be seen as having control 18 over this, so Ministers can't duck if 19 scrummed. 20 I'm not going to ask you about the 21 ducking. Mr. Millar gave you enough ducking. 22 And: "Premier not adverse to this being a 23 Provincial Government action." 24 You did agree at some point with Ms. 25 Hutton that we, the government, wanted to be seen as
2721 having control over this and that the Premier, you were 2 not adverse to this being regarded as a Provincial 3 Government action; is that fair? 4 A: I -- I don't know what "this" means. 5 I'm not sure that -- how relevant the -- that is -- 6 Q: It's in response to the Ipperwash 7 situation. 8 A: But certainly it would be -- the 9 government should be responding. It is the government 10 that was responsibility (sic) and had ownership of the 11 Park and is the government that was, through the Ministry 12 of Natural Resources, requesting the Park back and I -- I 13 absolutely think the government -- this was a government 14 issue, one we had to deal with. 15 Q: Now, on page 3 there's the reference 16 attributed to you, "He wants them out in a day or two 17 (2)." 18 You've told us, I believe, that you don't 19 recall saying that so much as just as soon as possible, 20 was your view? 21 A: That's correct. 22 Q: But then if we could go to page 6 of 23 these notes. 24 25 (BRIEF PAUSE)
2731 Q: About the middle of the page, 2 attributed to Deb: 3 "Has MNR asked OPP to remove them? 4 They could be formally requested to do 5 so but how and when they do it is up to 6 them. Could have that as a 7 communication message. MNR has 8 formally asked that they remove them." 9 Now, the evidence at this Inquiry suggests 10 that that last sentence, "MNR has been formally asked 11 that they remove them", was added later. 12 In other words, that at the time it wasn't 13 known whether they had made that request or not, but 14 later it was determined that they had. 15 But what I wish to ask you about was, did 16 you concur with Ms. Hutton that the OPP should be 17 formally asked or requested to remove them, although how 18 and when they do it should be left up to them? 19 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 20 Downard? 21 MR. PETER DOWNARD: Just a -- just a 22 small point of context. This isn't a thought that is 23 originating with Ms. Hutton. 24 If one looks at the notes directly above, 25 the notes make clear that as we've previously heard, this
2741 is a scenario where the question was being raised as to 2 what the government could do and the lawyer who was 3 there, Mr. Hutchinson, as he testified, provided advice 4 that you can ask them to remove them, you can't insist or 5 demand that they may be removed. 6 And then Ms. Hutton is responding -- 7 COMMISSIONER SIDNEY LINDEN: Well -- 8 MR. PETER DOWNARD: -- to that advice 9 from the lawyer. 10 MR. PETER ROSENTHAL: I don't see why 11 that's necessary to say, but I'm happy to put that in, 12 sir. 13 14 CONTINUED BY MR. PETER ROSENTHAL: 15 Q: So, Ms. Hutton in response to the 16 statement from the lawyer that you can't demand that they 17 remove them, another indication that somebody felt that 18 some people might be not understanding the line between 19 politics and police, but in any event, the lawyer did 20 feel he had to say that -- 21 A: Hmm hmm. 22 Q: And then Ms. Hutton, evidently 23 responded as indicated by your Counsel, as -- and as I 24 indicated. 25 Now, what my question to you, sir, is --
2751 perhaps Ms. Perschy -- 2 COMMISSIONER SIDNEY LINDEN: Ask the 3 question. Mr. Rosenthal -- 4 MR. PETER ROSENTHAL: I'll have Mr. 5 Harris answer that question. 6 MR. DERRY MILLAR: Perhaps in fairness to 7 both Mr. Rosenthal and Ms. Perschy and Mr. Downard and 8 Mr. Harris, the line above is a quote: 9 "Deb: Feels MNR as property owner can 10 ask OPP to remove people. 11 Scott: You can ask them to remove 12 them, you can't insist or demand that 13 they remove. 14 Deb: Has MNR asked OPP to remove 15 them?" 16 MS. ANNA PERSCHY: That's part of a 17 context, but I'm concerned with the way Mr. Rosenthal was 18 referring to -- to Scott Hutchinson and I don't think 19 that's a fair characterization of his evidence at all. 20 And he was asked about -- about this 21 exchange and his views on that and again Mr. Harris 22 wasn't there. So I do have some concerns with the way My 23 Friend is characterizing that evidence. 24 COMMISSIONER SIDNEY LINDEN: Well -- 25 MR. PETER ROSENTHAL: Mr. Commissioner, I
2761 simply wanted to ask a much more simple question than 2 either Mr. Downard or Ms. Perschy has led me to now. So 3 may I go back to my original question? 4 COMMISSIONER SIDNEY LINDEN: The original 5 simple question? 6 7 CONTINUED BY MR. PETER ROSENTHAL: 8 Q: My simpler question, sir, is: Do the 9 statements attributed to Ms. Hutton, as follows, I'll 10 read them to you in a moment, fall within the kind of 11 concurrence that you and she had as you've described to 12 us over this period, namely: 13 "They could be formally requested to do 14 so [in other words to remove them] but 15 how and when they do it is up to them. 16 And we could have that as a 17 communications message." 18 A: I -- I think so. I -- I -- listen, 19 you're asking me to -- to comment when I wasn't there. 20 She is asking questions as she should do; have they asked 21 the OPP to remove them? You're telling me she didn't get 22 the answer to that then? 23 Q: Sorry, no. 24 A: That she got the answer later? 25 Q: May I reiterate? I'm not asking you
2771 to affirm or deny or comment on what happened at the 2 meeting. 3 A: Well -- 4 Q: I'm asking you, do you agree with 5 the -- 6 A: I agree that she should have 7 requested the information. I agree that if MNR said yes 8 they had formally asked that they remove them, that that 9 would be considered as something that maybe should be 10 communicated. That was part -- it looks like it was a 11 section of the meeting where they were talking about what 12 do we communicate. 13 Q: Yes. 14 A: So that's -- I think that's fair -- 15 fair for her to ask that. 16 Q: Do you agree that MNR should be asked 17 to remove -- should be asked to request the OPP to remove 18 them? 19 A: Well, I -- I guess this meeting says 20 that they already have, so if they have, they have. I 21 don't know whether it was appropriate or not. 22 Q: Well -- 23 A: I would think they were the landowner 24 and they owned the Park, and if they don't ask the OPP to 25 get their Park back, who do they ask?
2781 Q: Sir, Ms. Hutton was taken as speaking 2 for you on a number of occasions and I began this part of 3 my examination of you by asking you if there were 4 situations where she appeared to be misrepresenting you. 5 And I'm trying to find out if this is such a situation, 6 so please listen carefully to my question. 7 A: Okay. 8 Q: My question is: Sir, did you, at 9 around this time, form the view that MNR should be asked 10 -- should ask the OPP to remove the occupiers? 11 A: No, I had not formed any view on that 12 at that time. 13 Q: Did you at any time on September 4, 14 5, 6? 15 A: I may have but it probably was a moot 16 point because it was probably reported back to me that 17 they already had. 18 Q: They already had asked the OPP? 19 A: Yeah. 20 Q: Well, the evidence suggests that that 21 took place perhaps a little bit later, but in any event, 22 you don't disagree with the request of MNR of OPP that 23 they be asked to remove them, right? 24 A: I -- I don't believe so, but I, you 25 know, I think the best way to deal with Ms. Hutton's
2791 comments is -- is to review her testimony and if she has 2 objected to this, that this isn't a fair portrayal, then 3 I don't think it's fair to ask me -- 4 COMMISSIONER SIDNEY LINDEN: Yes. 5 THE WITNESS: -- do I concur with her if 6 she doesn't concur with this. So I -- 7 MR. PETER ROSENTHAL: Sir, I'm asking 8 you -- 9 THE WITNESS: -- I concur with here and 10 her conclusions. I thought she drew very good 11 conclusions. 12 13 CONTINUED BY MR. PETER ROSENTHAL: 14 Q: Now, you were just -- 15 COMMISSIONER SIDNEY LINDEN: We're -- 16 17 CONTINUED BY MR. PETER ROSENTHAL: 18 Q: You are not going to give us any 19 evidence about what you feel? You just want to rely 20 entirely on Deb Hutton? 21 A: Well, at this point -- 22 COMMISSIONER SIDNEY LINDEN: Not -- 23 THE WITNESS: -- at this meeting I think 24 that's fair. 25 MR. DERRY MILLAR: That's not fair.
2801 COMMISSIONER SIDNEY LINDEN: That's not 2 fair, Mr. Rosenthal. 3 MR. PETER ROSENTHAL: That is fair, Mr. 4 Millar, because -- 5 COMMISSIONER SIDNEY LINDEN: No. 6 MR. PETER ROSENTHAL: -- my question to 7 you, sir -- 8 COMMISSIONER SIDNEY LINDEN: No. 9 MR. PETER ROSENTHAL: -- is independent 10 of Deb Hutton. I'm asking you, Premier Harris at the 11 time, in September of 1995, did you, in the course of 12 these events of September 5 and 6, come to the view that 13 MNR should ask the OPP to remove the occupiers? 14 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 15 Downard? I -- 16 MR. PETER DOWNARD: He answered that 17 question, he said he may have. 18 COMMISSIONER SIDNEY LINDEN: Yes. 19 MR. PETER ROSENTHAL: What was his 20 answer? 21 MR. PETER DOWNARD: He said he may have. 22 COMMISSIONER SIDNEY LINDEN: Yes. 23 MR. PETER ROSENTHAL: Well, I want to 24 know "yes" or "no," sir, if you -- 25 MR. PETER DOWNARD: But that's --
2811 COMMISSIONER SIDNEY LINDEN: He may have. 2 3 CONTINUED BY MR. PETER ROSENTHAL: 4 Q: The best you can say is you may have? 5 That is -- 6 COMMISSIONER SIDNEY LINDEN: I think we 7 should just move on. He said he may have and that's an 8 answer to the question and that's as good as you're going 9 to do. 10 MR. PETER ROSENTHAL: Well, with respect, 11 Mr. Commissioner, this is a very important point. 12 COMMISSIONER SIDNEY LINDEN: Well, you've 13 got an answer and it's and answer that he's given. He 14 wasn't at this meeting -- 15 16 CONTINUED BY MR. PETER ROSENTHAL: 17 Q: You may have but in any event you 18 found out at some point, you told us, that MNR had 19 requested that the MNR remove them; is that right? 20 A: That's what the note says. 21 Q: And that's what you found out at the 22 time as well? 23 A: I -- I'm not aware of what I found 24 out at the time, but if they did I guess they got an 25 answer to seek an injunction. So I'm pretty consistent,
2821 I think, with generally what -- what my understanding is 2 of what occurred. I -- I don't know why you'd get an 3 injunction of you didn't want the Park back. 4 Q: But, sir, did you come to the 5 understanding -- I thought you indicated earlier that you 6 had, did you come to the understanding sometime, at the 7 time, on September 5 or 6, that, in fact, MNR had asked 8 the OPP to remove the occupiers prior to the injunction 9 application? 10 A: I -- I don't know whether it was 11 specifically MNR or how all that came about but I -- I 12 accept that that occurred and I didn't object to it nor 13 do I think anybody else did. 14 Q: Okay. Thank you. So you don't 15 recall now specifically whether it was MNR, but you were 16 aware that on September 5 or 6, certainly by the end of 17 September 6, the OPP had been asked by someone, probably 18 MNR, we could say, to remove the occupiers, right? 19 A: I -- I believe so, yes. 20 Q: Thank you. And also you were aware 21 by that time that there was going to be a communication 22 message to that effect, right? 23 A: No, I think these notes suggest that 24 they were discussing what should we communicate and -- 25 and I think that's the gist of this, as I understand it.
2831 Q: Did you come to the understanding 2 that there was to be a communication message to that 3 effect, and I can tell you that Ms. Hutton testified that 4 she did and there was. And do you disagree with that, 5 sir? 6 COMMISSIONER SIDNEY LINDEN: Now, just a 7 minute. Before you answer it I see Ms. Perschy trying to 8 reach the microphone. 9 MS. ANNA PERSCHY: I'd appreciate it if 10 My Friend -- 11 COMMISSIONER SIDNEY LINDEN: Is he mis- 12 stating the evidence? 13 MS. ANNA PERSCHY: I'm not sure. I don't 14 -- I -- I don't believe it is accurate and I was simply 15 going to ask My Friend, if he's going to make reference 16 to Ms. Hutton's testimony if he could provide us with a 17 transcript -- 18 COMMISSIONER SIDNEY LINDEN: That's fine. 19 MS. ANNA PERSCHY: -- reference so I 20 could check. I don't have an encyclopaedic recollection 21 but I -- I didn't think that was accurate. 22 MR. PETER ROSENTHAL: Well, that is not a 23 reason to rise and I'm believe it was accurate -- 24 COMMISSIONER SIDNEY LINDEN: Yes, if it's 25 inaccurate I'd like to know it but --
2841 MR. DERRY MILLAR: No, in fairness to Mr. 2 Rosenthal -- 3 COMMISSIONER SIDNEY LINDEN: Yes. 4 MR. DERRY MILLAR: - the -- the minutes 5 of the -- at Tab 28, Inquiry Document 1012288 talks about 6 next steps, and that's the minutes of the meeting that 7 Mr. Rosenthal's now referring to. It says, on page 4: 8 "MNR will act as the spokesperson 9 regarding this matter in the short- 10 term. It will inform the public that 11 (1) the Province has valid title to the 12 Park, (2) the occupiers have been told 13 they are trespassing and have been 14 asked to leave, (3) the Province will 15 take steps to remove the occupiers 16 ASAP." 17 COMMISSIONER SIDNEY LINDEN: What page 18 was that on? 19 MR. DERRY MILLAR: That was page 3 of the 20 minutes. It's Exhibit -- 21 COMMISSIONER SIDNEY LINDEN: Of the 22 formal minutes of the meeting? 23 MR. DERRY MILLAR: Of the formal minutes. 24 MR. PETER ROSENTHAL: Yes, that's the 25 minutes but I -- I will respond directly to Ms. Perschy's
2851 so-called objection. 2 COMMISSIONER SIDNEY LINDEN: Well, she -- 3 MR. PETER ROSENTHAL: If we could please 4 look at the -- Mr. Millar, could you please get the 5 evidence of November 23rd and page 11, Ms. Hutton's 6 testimony? I do not think it's proper for someone to 7 question a lawyer's rendition of evidence unless a lawyer 8 makes a mistake. 9 COMMISSIONER SIDNEY LINDEN: Well, that's 10 why I asked her if you mis-stated it. 11 MR. PETER ROSENTHAL: She said she 12 thought I -- 13 COMMISSIONER SIDNEY LINDEN: She said if 14 you're going to state she just wants to be sure that it's 15 accurate. And you're telling us it is? 16 MR. PETER ROSENTHAL: Yes, sir. 17 COMMISSIONER SIDNEY LINDEN: That's fine. 18 19 (BRIEF PAUSE) 20 21 MR. PETER ROSENTHAL: Page 11, please. 22 MR. PETER DOWNARD: I -- I don't mean to 23 slow things down anymore than I have to but My Friend was 24 -- was -- made a mistake as to what the communications 25 message was. And we know exactly what the communications
2861 message was as delivered to the media because we have the 2 transcript of Mr. Hodgson's media conference. 3 And so if My Friend is going to examine on 4 what message was actually delivered, it should be in the 5 context of the message, which is the media conference. 6 MR. PETER ROSENTHAL: There's -- there's 7 no evidence, as far as I understand, and I may be wrong, 8 that there was only one (1) message and only Mr. 9 Hodgson's communication message. This was the general 10 message that was put out is the way I understood Ms. 11 Hutton's evidence. Let's look at her evidence. 12 COMMISSIONER SIDNEY LINDEN: Well, this 13 is the consensus of the meeting. This was the message 14 that was going to go from the meeting, is that what 15 you're referring to? 16 MR. PETER ROSENTHAL: This was the 17 message that was going to go from the Government. There 18 was a decision, apparently advocated by Ms. Hutton at 19 this meeting, that this should be the following 20 communication message and she agreed, if we look at Tab - 21 - at November 23rd, that there was that communication 22 message and so on. 23 Now, so shall we deal with that? I -- I 24 know we're time -- getting close to the time to break, 25 sir, but perhaps we should finish this off, although
2871 actually this leads to another bigger -- bigger picture 2 and I can if you -- if you wish stop here and pick this 3 up tomorrow. 4 COMMISSIONER SIDNEY LINDEN: Well, I 5 would finish this here. I want to finish this. 6 7 CONTINUED BY MR. PETER ROSENTHAL: 8 Q: Okay. As far as -- just this point, 9 Ms. Hutton was -- could -- sorry, if you could raise it a 10 tiny bit please? 11 This exact passage was read to her: 12 "Has MNR asked OPP to remove them and 13 then to state they could be formally 14 requested to do so but how and when 15 they do it is up to them. Could have 16 that as a communication message." 17 Close quote. 18 And the question to Ms. Hutton: 19 "Now, is that in accordance with what 20 you would have said approximately at 21 that juncture? 22 A: It is certainly consistent with my 23 understanding of where we were at at 24 that point in time, yes. 25 Q: Yes. Now by a communication
2881 message you meant something that would 2 be put out by government people to the 3 media? 4 A: Correct. Generally to the public 5 but usually through the media. 6 Q: To the public and through the 7 media..." 8 And so on. 9 Perhaps that clears up this point and I 10 can rest that point at this point. 11 COMMISSIONER SIDNEY LINDEN: Well, I'm 12 not sure how we're leaving this. It's sort of left -- 13 it's left a bit in the air. 14 MR. PETER ROSENTHAL: So -- 15 COMMISSIONER SIDNEY LINDEN: Just -- 16 MR. PETER ROSENTHAL: Well, yes, no I -- 17 COMMISSIONER SIDNEY LINDEN: Mr. 18 Rosenthal, you can't see -- 19 MR. PETER ROSENTHAL: -- Harris now. 20 COMMISSIONER SIDNEY LINDEN: -- Ms. 21 Perschy. Mr. Rosenthal, you can't see Ms. Perschy; she's 22 behind you. 23 MS. ANNA PERSCHY: I'm sorry. I don't 24 want to belabour this point, but I'm not sure this 25 excerpt assists us with respect to the issue that I
2891 thought My Friend was raising was -- which was whether or 2 not the suggestion or the query that Ms. Hutton had made 3 with respect to the communications message actually went 4 anywhere. 5 And this isn't responsive to that. And 6 that's -- 7 MR. PETER ROSENTHAL: That was not my 8 question. 9 COMMISSIONER SIDNEY LINDEN: See that, 10 you're fine then, Ms. Perschy. It wasn't his question -- 11 MS. ANNA PERSCHY: Oh -- 12 COMMISSIONER SIDNEY LINDEN: So you're 13 fine. 14 MR. PETER ROSENTHAL: Thank you. 15 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 16 Rosenthal? 17 MR. PETER ROSENTHAL: My question was 18 whether Mr. Harris -- 19 COMMISSIONER SIDNEY LINDEN: Yes. 20 MR. PETER ROSENTHAL: -- concurred in 21 this as he did with many other aspects of Ms. Hutton's 22 representations during this occasion. 23 He told us that he concurred with most or 24 perhaps all and my question specifically now, sir, and 25 perhaps I can end on this note for today if I can get a
2901 clear answer on this. 2 3 CONTINUED BY MR. PETER ROSENTHAL: 4 Q: Do you then agree with the 5 propositions that -- well, sorry, you already did agree 6 with the proposition that MNR being asked to remove them, 7 but then did you agree with the proposition that this 8 should be a communication message? 9 A: I can't answer that. I wasn't there, 10 I wasn't asked to agree with it, it was not advanced -- 11 Q: Sir, not at that meeting -- 12 A: -- as my -- it was not advanced as my 13 view. It was not suggested by Ms. Hutton that this is 14 the Premier's view. This was part of the discussion that 15 took place by Ms. Hutton so I would say it was her view. 16 And had I been at the meeting and heard 17 everything, I've indicated to you I think I would 18 generally have agreed with Ms. Hutton's views -- 19 COMMISSIONER SIDNEY LINDEN: I don't see 20 how -- 21 THE WITNESS: -- and the communication 22 message -- 23 MR. PETER ROSENTHAL: Did you reach 24 that -- 25 THE WITNESS: -- that went out is pretty
2911 clear. 2 3 CONTINUED BY MR. PETER ROSENTHAL: 4 Q: Did you reach -- get the 5 understanding, prior to the evening, let's say, of 6 September 6th, 1995, that this was to be a communications 7 message? 8 A: I think it had already, by the time I 9 heard about it, had already been communicated. 10 Q: Had already been communicated? 11 A: Whatever the Government was going to 12 communicate at -- after this meeting, I think had been 13 communicated. 14 Q: And were you, as Premier, satis -- 15 happy with that communication? 16 A: Communication that was -- 17 MR. PETER DOWNARD: Wait, wait, wait. 18 THE WITNESS: Oh. 19 MR. PETER DOWNARD: Let's not play peek a 20 boo with this thing, I mean, we know what the message 21 was. 22 COMMISSIONER SIDNEY LINDEN: You -- 23 MR. PETER DOWNARD: -- have the message 24 that was, we have the message. 25 COMMISSIONER SIDNEY LINDEN: You're
2921 referring to the press scrum that Minister Hodgson had? 2 MR. PETER DOWNARD: Right, the transcript 3 of the press scrum. It's all -- if My Friend is going to 4 ask the former Premier about the message that was put 5 out, he should have the fairness, at least, to take him 6 to the transcript and ask him about it. 7 COMMISSIONER SIDNEY LINDEN: If you want 8 to be fair, what went out? 9 MR. PETER ROSENTHAL: I don't want to 10 know what went out. 11 COMMISSIONER SIDNEY LINDEN: You don't 12 want to know what went out. 13 MR. PETER ROSENTHAL: I would like the 14 question I asked to be answered and if there's an 15 objection, I would like it to be for the question I 16 asked, not to another question. 17 The question I asked Mr. Harris was the 18 following. I asked him: Did he agree, as Premier, that 19 that be a communication message? 20 The answer could be yes, it could be no -- 21 COMMISSIONER SIDNEY LINDEN: Yes. 22 MR. PETER ROSENTHAL: -- it could be he 23 doesn't know. 24 COMMISSIONER SIDNEY LINDEN: Yes, all 25 right. All right.
2931 MR. PETER DOWNARD: The question -- 2 3 CONTINUED BY MR. PETER ROSENTHAL: 4 Q: Now, sir, did you -- did you, at the 5 time, agree -- you say you found out about it perhaps 6 after the fact, after it had been already a communication 7 message, but did you, as Premier, agree with that being a 8 communication message? 9 A: I agree that they made the right 10 decision. There should have been a communication message 11 and that the message that was communicated was the right 12 one. 13 COMMISSIONER SIDNEY LINDEN: Now you 14 can't get a better answer than that. 15 MR. PETER ROSENTHAL: I cannot and I'll 16 rest on that, if I may, and continue tomorrow morning, if 17 I may, sir. 18 COMMISSIONER SIDNEY LINDEN: Thank you 19 very much. We'll adjourn now until tomorrow morning at 20 nine o'clock 21 22 (WITNESS RETIRES) 23 24 THE REGISTRAR: This Public Inquiry is 25 adjourned until tomorrow, Thursday February the 16th at
2941 9:00 a.m. 2 3 --- Upon adjourning at 4:29 p.m. 4 5 6 7 Certified Correct, 8 9 10 11 12 _________________ 13 Carol Geehan, Ms. 14 15 16 17 18 19 20 21 22 23 24 25