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 January 16th, 2006 25
21 Appearances 2 Derry Millar ) Commission Counsel 3 Susan Vella ) 4 Donald Worme, Q. C ) (np) 5 Katherine Hensel ) (np) 6 Megan Ferrier ) (np) 7 Murray Klippenstein ) The Estate of Dudley 8 Vilko Zbogar ) (np) George and George 9 Andrew Orkin ) (np) Family Group 10 Basil Alexander ) 11 12 Peter Rosenthal ) Aazhoodena and George 13 Jackie Esmonde ) (np) Family Group 14 15 Anthony Ross ) (np) Residents of 16 Cameron Neil ) Aazhoodena (Army Camp) 17 Kevin Scullion ) 18 William Henderson ) (np) Kettle Point & Stony 19 Jonathon George ) Point First Nation 20 Colleen Johnson ) (np) 21 Kim Twohig ) (np) Government of Ontario 22 Walter Myrka ) 23 Susan Freeborn ) (np) 24 Michelle Pong ) (np) 25 Lynette D'Souza ) (np)
31 APPEARANCES (cont'd) 2 Janet Clermont ) Municipality of 3 David Nash ) (np) Lambton Shores 4 Nora Simpson ) (np) Student-at-law 5 6 Peter Downard ) (np) The Honourable Michael 7 Bill Hourigan ) (np) Harris 8 Jennifer McAleer ) 9 10 Ian Smith ) (np) Robert Runciman 11 Alice Mrozek ) 12 13 Harvey T. Strosberg, Q.C.) (np) Charles Harnick 14 Jacqueline Horvat ) 15 16 Douglas Sulman, Q.C. ) Marcel Beaubien 17 Mary Jane Moynahan ) (np) 18 Dave Jacklin ) (np) 19 Trevor Hinnegan ) 20 21 Mark Sandler ) Ontario Provincial 22 Andrea Tuck-Jackson ) (np) Ontario Provincial Police 23 Leslie Kaufman ) (np) 24 25
41 APPEARANCES (cont'd) 2 Ian Roland ) (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 ) (np) 9 Caroline Swerdlyk ) 10 11 Julian Falconer ) (np) Aboriginal Legal 12 Brian Eyolfson ) (np) Services of Toronto 13 Kimberly Murray ) (np) 14 Julian Roy ) 15 Clem Nabigon ) (np) 16 Linda Chen ) 17 Adriel Weaver ) (np) Student-at-Law 18 19 Al J.C. O'Marra ) Office of the Chief 20 Robert Ash, Q.C. ) (np) Coroner 21 22 William Horton ) (np) Chiefs of Ontario 23 Matthew Horner ) 24 Kathleen Lickers ) (np) 25
51 APPEARANCES (cont'd) 2 Mark Fredrick ) (np) Christopher Hodgson 3 Craig Mills ) (np) 4 Megan Mackey ) (np) 5 Peter Lauwers ) 6 Erin Tully ) 7 8 David Roebuck ) (np) Debbie Hutton 9 Anna Perschy ) 10 Melissa Panjer ) 11 Adam Goodman ) (np) 12 13 14 15 16 17 18 19 20 21 22 23 24 25
61 TABLE OF CONTENTS 2 PAGE NO. 3 List of Exhibits 7 4 5 Christopher Douglas Hodgson, resumed 6 Continued Examination-In-Chief by Ms. Susan Vella 8 7 Cross-Examination by Ms. Jennifer McAleer 36 8 Cross-Examination by Ms. Anna Perschy 53 9 Cross-Examination by Mr. Mark Sandler 60 10 Cross-Examination by Mr. Walter Myrka 125 11 Cross-Examination by Ms. Janet Clermont 141 12 Cross-Examination by Mr. Murray Klippenstein 147 13 14 15 16 17 18 Certificate of Transcript 273 19 20 21 22 23 24 25
71 EXHIBITS 2 No. Description Page 3 P-1016 Document Number 1001184. Sessional 4 Paper, number P-58, Petition Relative 5 to Ipperwash Provincial Park, Mr. M. 6 Beaubien, March 18/'96. 9 7 P-1017 Document Number 1003803. Letter from J. 8 Fantino, Chairman, Criminal Intelligence 9 Service of Ontario to Premier Mike 10 Harris, April 22/'96. 17 11 P-1018 Document Number 1012218. Faxed draft, 12 Review of the 1995 Hostile Occupations 13 at Ipperwash and Serpent Mounds 14 Provincial Parks, February 9/'96. 19 15 P-1019 Document Number 1004288. Confidential 16 draft of a Memorandum of Understanding 17 between the Ministry of Natural Resources 18 and the Kettle and Stony Point Band, 19 June 17/'96, page 4. 146 20 P-1020 Document Number 1011655. E-mail from 21 Maureen Wraight re. Briefing Note, 22 Winterizing of Ipperwash Provincial Park 23 System, Nov. 27/'95. 201 24 25
81 --- Upon commencing at 10:31 a.m. 2 3 THE REGISTRAR: This Public Inquiry is 4 now in session, the Honourable Mr. Justice Linden 5 presiding. Please be seated. 6 COMMISSIONER SIDNEY LINDEN: Good 7 morning. Good morning everybody. 8 MS. SUSAN VELLA: Good morning, 9 Commissioner. Good morning, Mr. Hodgson. 10 11 CHRISTOPHER DOUGLAS HODGSON, resumed 12 13 THE WITNESS: Good morning. 14 15 CONTINUED EXAMINATION-IN-CHIEF BY MS. SUSAN VELLA: 16 Q: I'd like to take you this morning to 17 Tab 63 of the Commission Counsel brief of documents. 18 It's Inquiry Document Number 1001184, Sessional Paper, 19 number P-58, Petition relating to Ipperwash Provincial 20 Park. Mr. Beaubien, Lambton, March 18, 1996. 21 First of all, can you identify this 22 document for us please? 23 COMMISSIONER SIDNEY LINDEN: Sorry, what 24 tab number is that? Because Tab 53 doesn't seem -- 25 MS. SUSAN VELLA: No, I'm sorry, it's 63.
91 COMMISSIONER SIDNEY LINDEN: 63. Okay. 2 3 CONTINUED BY MS. SUSAN VELLA: 4 Q: Appears to bear your signature on the 5 last page; do you see that? 6 A: Yes. 7 Q: All right. Can you just tell us what 8 -- what this document was meant to achieve? 9 A: I'm assuming that this was a response 10 from our Ministry to a petition presented by Mr. Beaubien 11 who was the member from Lambton that he would have 12 presented in the House. I'm assuming that. 13 Q: All right. And again is that your 14 signature on the second page? 15 A: Yes, it is. 16 Q: All right. I'd like to make this the 17 next exhibit please? 18 THE REGISTRAR: P-1016, Your Honour. 19 20 --- EXHIBIT NO. P-1016: Document Number 1001184. 21 Sessional Paper, number P-58, 22 Petition Relative to 23 Ipperwash Provincial Park, 24 Mr. M. Beaubien, March 25 18/'96.
101 CONTINUED BY MS. SUSAN VELLA: 2 Q: And did you have an opportunity to 3 review this document prior to today? 4 A: Just briefly in preparation for this 5 hearing. 6 Q: And are the contents an accurate 7 reflection of what your Ministry's position was as at 8 that -- that date? 9 10 (BRIEF PAUSE) 11 12 A: In quick review it appears that this 13 would be the Ministry position, yes. 14 Q: And so as at March the 18th, of 1996, 15 it was still the Ministry's desire that the -- that the 16 Park would be open for the 1996 summer season? 17 A: Yes. 18 Q: And the Ministry continued to view 19 the occupation of the Park as an active illegal trespass? 20 A: Yes. 21 Q: I note that Item 3 deals with the 22 topic of burial sites. It indicates in part that the MNR 23 is anxious to resolve the matter of burial sites within 24 Ipperwash Provincial Park. And that to this end the 25 Ministry is willing to enter into a cooperative research
111 project with the First Nations to investigate the alleged 2 locations and origins of the sites and to comply with the 3 intent and procedures set out in the Cemeteries Act 4 Revised. 5 And then it sets out that if a site or one 6 (1) or more sites were to be discovered the MNR would be 7 willing to enter into an agreement dealing with 8 identification, protection, and access to the sites by 9 the First Nations. 10 Now, do you -- do you recall taking that 11 position? 12 A: Yes, and that would be the Ministry's 13 position historically, as well. 14 Q: And in fact was any such agreement 15 entered into with the First Nations concerning a research 16 project to determine the possible existence and location 17 of burial sites within the Park? 18 A: I assumed there was. I also assume 19 that there was Federal dollars based on a letter from Mr. 20 Irwin that there's Federal dollars for this purpose as 21 well. 22 Q: And can you tell you us then what the 23 result of the -- or what the agreement was because we 24 haven't seen such an agreement? 25 A: My understanding was that this could
121 be related to what I talked about earlier, Mr. Girman's 2 exploration on the ground to try to find a process to 3 work with all the parties. 4 Q: All right. This was to be part of 5 his mandate then, the burial site research project? 6 A: I'm not -- it wouldn't be that 7 specific, but it was my -- my understanding that this was 8 one of the underlying factors that should be looked at. 9 Q: And to the best of your recollection 10 when Mr. Girman was unable to complete his assigned task, 11 what happened to the initiatives addressed in this 12 document on the burial site issue? 13 A: I assumed it continued. We had the 14 Federal letter from the Minister stating that there was 15 Federal dollars for this research and examination to find 16 that there was a burial site in the Park. 17 Q: Do you have any specific recollection 18 as to whether or not an agreement or research project 19 agreement was in fact entered into by your Ministry or at 20 least with your Ministry's participation and the First 21 Nations? 22 A: Not specifically, no. 23 Q: Do you have any specific recollection 24 as to what the outcome of any such research was? 25 A: No, I do not.
131 Q: Did you see any documents relating to 2 same? 3 A: Not that I'm aware of? 4 Q: Thank you. I wonder if you would go 5 next to Tab 70, please. This is Exhibit P-921, Inquiry 6 Document 3001382. It appears to be a Minister's note 7 from your Deputy Minister, Issue update on reopening of 8 Ipperwash Provincial Park, and it indicates that this is 9 a suggested response. 10 First of all is this something that you 11 would have been given and would have worked with in or 12 around May 22 -- 22, 1996? 13 A: I'm assuming that I would have. 14 15 (BRIEF PAUSE) 16 17 Q: All right. And again, as of May, 18 you'll see the fourth point, states the follows: 19 "It is my desire that the Park operates 20 for the convenience of visitors this 21 season. However, MNR management must 22 be confident that the safety of the 23 Park users is assured. I remain 24 hopeful that the Park will be open this 25 summer season."
141 Now, back in the Spring of 1996, what 2 issues with respect to safety, continue to or at least 3 posed a concern for your Ministry? 4 I can't recall any specifics other than 5 there was still an occupation taking place on the Park 6 property. 7 Q: Do you recall -- all right. Thank 8 you. 9 10 (BRIEF PAUSE) 11 12 Q: I wonder if you would next go, 13 please, to Tab 67, it's Inquiry Document Number 1003803. 14 It's a letter dated April 22, 1996 from the Criminal 15 Intelligence Service of Ontario. It's addressed to 16 Premier Harris, apparently signed by J. Fantino, 17 Chairman, and you are shown as having received a copy. 18 First of all -- and this appears to 19 reflect an interview that you gave in part to the London 20 Free Press, entitled, Ipperwash Opening Still Unclear, 21 dated April 19, 1996, if you look at the second page of 22 that letter. 23 And first of all, do you recall -- is it 24 likely that you received a copy of this letter? 25 A: I don't know.
151 Q: Do you recall making a statement to 2 the -- to the London Free Press to the effect that: 3 "I can't assure that now -- that 4 because of the occupation that's going 5 on, he said in an interview. That's a 6 policing matter; it's kind of out of my 7 hands." 8 I don't recall stating it. 9 Q: Is that consistent, though, with what 10 your Ministry's position was at the time? 11 A: I believe it was, yes. 12 Q: All right. And Mr. Fantino is 13 apparently expressing a concern that the -- that the 14 statement reflects that you may be out of touch with 15 reality according to the last paragraph. 16 And he is requesting on behalf of this 17 organization, the Premier's direct intervention in 18 ensuring that the integrity of the police in the existing 19 situation or any potential future escalation of the 20 conflict be seriously considered in expediting a peaceful 21 resolution. 22 It appears that the -- Mr. Fantino was 23 concerned about the statement that this was a policing 24 matter as opposed to a Ministry matter. 25 And the question is: Do you recall having
161 any discussions with the Premier or someone on his behalf 2 about -- about these comments? 3 A: No, I did not and the quote that my 4 comments, it appears, in regard to the actual occupation 5 not the underlying issues that may have or may not have 6 caused the occupation, and their resolution that I 7 believe he's talking about needs to happen. 8 So obviously that's not a policing issue, 9 but the occupation itself, I view it as a policing issue. 10 Q: All right. Thank you. So the police 11 -- the occupation itself you considered to be a policing 12 issue, as opposed to an MNR issue as of this date? 13 A: I believe so, yes. 14 Q: All right. Now, did you ever 15 participate in any sort of review or evaluation which 16 addressed how the -- how your Ministry handled the 17 Ipperwash Park occupation? 18 19 (BRIEF PAUSE) 20 21 Q: Sorry. 22 A: I'm sorry, can you repeat the 23 question? 24 Q: All right. Well before I repeat the 25 question, can we make the document at Tab 67 the next
171 exhibit, please? 2 THE REGISTRAR: P-1017, Your Honour. 3 4 --- EXHIBIT NO. P-1017: Document Number 1003803. 5 Letter from J. Fantino, 6 Chairman, Criminal 7 Intelligence Service of 8 Ontario to Premier Mike 9 Harris, April 22/'96. 10 11 CONTINUED BY MS. SUSAN VELLA: 12 Q: Yeah, my question was: Did you ever 13 participate in a review or evaluation which addressed how 14 the Ministry of Natural Resources handled the Ipperwash 15 Park occupation? 16 A: Not that I can recall. 17 Q: Were you briefed in relation to any 18 such review or evaluation process? 19 A: Not that I can recall. 20 Q: Would you go to Tab 60, please. Tab 21 60 is Inquiry Document Number 1012218. And you'll see 22 this marked as a, "Draft Review of the 1995 Hostile 23 Occupations at Ipperwash and Serpent Mounds Provincial 24 Parks." 25 And we also have a document -- the
181 document in the final form which I am advised is 2 substantially the same. It's Exhibit P-802, Inquiry 3 Document 1012220. 4 I wonder if that can be handed up to the 5 Witness please? 6 7 (BRIEF PAUSE) 8 9 Q: And we note that this is not marked 10 "draft". We don't know if this was the final version, 11 but it's not marked "draft" in any event. 12 It's dated February 16, 1995 but logic 13 indicates that it was probably done February 16, 1996 14 after the Ipperwash occupation, not before. And I wonder 15 if on looking at these documents, the one at your Tab 60 16 and Exhibit P-802, whether that refreshes your memory in 17 any way with respect to having received any type of 18 briefing on an evaluation or review process? 19 A: No, it does not. 20 Q: All right. And do -- you ever seen 21 this document? 22 A: No I hadn't until preparation for 23 this Inquiry. 24 Q: I would like to make the document at 25 the Tab 60, Inquiry Document Number 1012218, which is
191 marked "Draft Review of the 1995 Hostile Occupations at 2 Ipperwash and Serpent Mounds Provincial Parks" the next 3 exhibit please. 4 THE REGISTRAR: P-1018, Your Honour. 5 6 --- EXHIBIT NO. P-1018: Document Number 1012218. 7 Faxed draft, Review of the 8 1995 Hostile Occupations at 9 Ipperwash and Serpent Mounds 10 Provincial Parks, February 11 9/'96. 12 13 CONTINUED BY MS. SUSAN VELLA: 14 Q: To your knowledge was anything 15 undertaken or done by the Ministry of Natural Resources 16 aimed at improving its practices and procedures in 17 relation to park related Aboriginal occupations or 18 disputes as a result of its experience with the Ipperwash 19 Park matter? 20 A: I would assume that that would be an 21 ongoing process within the Ministry to always try to 22 improve processes around our operations or contingency 23 planning. 24 Q: Are you aware of any specifics 25 however in that -- in that respect?
201 A: No, I'm not. 2 Q: Did you direct at any review or 3 evaluation of the processes in your Ministry be 4 undertaken as a result of its experience with the 5 Ipperwash Park occupation? 6 A: I'm sorry, did I direct? 7 Q: Direct that any such review where 8 analysis be undertaken? 9 A: Not that I'm aware of, no. 10 Q: All right. Now was -- you've 11 testified that it was your view that the Ipperwash Park 12 occupation was not a Ministry of Natural Resource issue 13 on September 4th, 5th, 6th or 7th, 1995; is that right? 14 A: That's correct. 15 Q: Rather you saw this Park occupation 16 to be the -- to be the -- be the responsibility of ONAS 17 and the OPP? 18 A: That's correct. And that was the 19 advice I was given by my Deputy Minister and senior MNR 20 staff. 21 Q: At any time during your term as 22 Minister of Natural Resources, did you consider the Park 23 ongoing occupation and closure to be a Ministry of 24 Natural Resources issue? 25 A: I'm sorry, could you repeat that?
211 Q: At any time during the course of your 2 term as Minister, did you change your mind, did you -- 3 did you see the ongoing occupation and Park closure to 4 be, at least in part, an MNR issue? 5 A: Not the occupation. There were a lot 6 of MNR issues that, the winterization of the water system 7 for example, that we felt that needed to be resolved. 8 There was also, after I met with Chief Bressette and he 9 requested that assistance -- we tried to provide 10 assistance to try to resolve some of the underlying 11 issues around the Military Camp. 12 And if we could be assistance in the -- 13 trying to resolve some of the outstanding issues, for 14 example, with the Federal Government's inaction to hand 15 over the Military Base in a clean safe fashion, we would 16 try to help. 17 Q: All right. And on that point you're 18 referring to the -- the correspondence essentially that - 19 - that you initiated with Minister Irwin? 20 A: Yes. And the appointment of Lloyd 21 Girman. 22 Q: All right. Any other significant 23 initiatives that you undertook? 24 A: Not that I can recall right now. 25 Q: As at the end of your terms as
221 Minister of Natural Resources what was the status of the 2 efforts by your ministry to re-open Ipperwash Park? 3 A: What was the status? 4 Q: Yes. 5 A: I believe it's similar to what it is 6 today. I don't think there's much change that I'm aware 7 of. I'm not aware of all the details that exist today 8 but I know the Park wasn't open. I know the occupation 9 was still in existence. 10 Q: Do you have any belief as to why -- 11 why there's been an inability to reach resolution which 12 would allow the Park to re-open as a Provincial Park? 13 A: Well, it's complicated. There's a 14 lot of factors at play. There -- Mr. Girman tried to 15 bring together all the parties. The Federal Government 16 at that time said they weren't interested; I'm 17 paraphrasing. So if you can't resolve some of the 18 underlying causes then you're not going to end the 19 occupation in my opinion, looking back at it from today. 20 Q: So, is your view that until the 21 Military Camp issue could be resolved there was no 22 ability to resolve the Park occupation? 23 A: There was also a question of local 24 representation of which First Nation speaks for the First 25 Nation community.
231 Q: All right. Can you expand upon that 2 please? 3 A: My understanding is that there's a 4 recognized First Nation with Chief Bressette and his 5 Council at that time and there's also a breakaway group, 6 the Stoney Pointers, who are -- that do not have 7 recognition under the Federal meaning of the term and 8 that there's some ambiguity of who would actually end up 9 with the property if you were to turn it over. 10 Q: All right. 11 A: That's just my opinion. 12 Q: Why -- I'm interested in your 13 perspective as the then-Minister. 14 A: Yeah. 15 Q: Was that -- was there perspective at 16 the time? 17 A: Yes, it was. 18 Q: All right. Did the Province ever put 19 together a co-management proposal to the First Nations 20 for their consideration as a possible way to resolve the 21 occupation during the -- your term as -- 22 A: I don't believe we put it forward as 23 a proposal. There was a discussion around that. 24 Q: I think you indicate -- 25 A: Probably in the fall of '95 or '96.
241 Q: Was that a discussion, an internal 2 discussion that you had with -- 3 A: Yes. 4 Q: -- your Deputy Minister? 5 A: Yes. 6 Q: All right. Can you tell me, was that 7 option revisited by you after September the 7th? 8 A: No, it wasn't visited before 9 September 7th but -- well, probably in '96 we would have 10 talked about it. 11 Q: All right. And why -- I take it that 12 you came to the conclusion that a proposal should not be 13 put forward? 14 A: I believe so, yes. 15 Q: Can you tell me the reasons 16 underlying that decision? 17 A: Well, there was a number of factors 18 but the bottom-line was that who would you give it to? 19 Who would you enter into the agreement with? Would it be 20 the recognized First Nation Council who had employees 21 that had worked there for generations or would you give 22 it to the people that were occupying the Park? 23 And how would that be viewed? And would 24 that cause more division in the local community? It was 25 the advice that I was given, it was best to maybe not get
251 involved in an internal Aboriginal dispute. That's -- 2 that's why the proposal wasn't put forward. 3 Q: All right. Now, we have heard 4 testimony at this Inquiry from Mr. Kobayashi who you've 5 indicated you knew was the Park Superintendent and Peter 6 Sturdy who was his superior that a complaint was -- was - 7 - sorry, was raised with respect by a Pinery Park 8 employee Stan Cloud indicating that he had witnessed what 9 he considered to be discriminatory objects or derogatory 10 objects at the Pinery Park in late 1995. 11 And you may recall that at the Pinery Park 12 -- well, do you recall that the Pinery was used in part 13 as a base for certain OPP personnel? 14 A: I may have been aware of that, I 15 can't remember that specifically, no. 16 Q: All right. Now, Mr. Kobayashi and 17 Mr. Sturdy testified that the objects complained about by 18 Mr. Cloud were a certain mugs and T-shirts, a can with a 19 feather in the hole, and a picture of a bull's eye and 20 arrow on the police cruiser and two (2) cartoons that 21 were posted, the latter being posted within the Pinery 22 Park building. 23 And I wonder at this time if we could put 24 on the screen Exhibit P-458, please. 25
261 (BRIEF PAUSE) 2 3 Q: All right. And you see on the screen 4 there is indication of the OPP insignia. And on the top 5 it says underneath, "Team Ipperwash '95," and the bottom 6 is the insignia with an arrow through it. 7 Did you become familiar with these images 8 through -- through the media at all? 9 A: No, I did not. 10 Q: All right. Would you go, please, to 11 the next image? It's also part of Exhibit P-458, and 12 you'll see this is apparently the logo on the left, 13 "Ipperwash '95" and the ERT and TRU stamped on it. And 14 then on the right the T-shirt, this is the -- apparently 15 was one of the insignias on the T-shirts in question. 16 Did -- did you become familiar with those, 17 in any way? 18 A: No, I -- 19 Q: All right. 20 A: This is the first time I've seen 21 that. 22 Q: Okay, thank you. Were you apprised 23 of the fact that a Park employee had made a complaint? 24 A: No, I was not. 25 Q: Now Mr. Kobayashi, Mr. Sturdy also
271 testified that there was an investigation by the OPP into 2 all of the alleged objects and that the MNR conducted a 3 more modest side investigation, if you will. 4 Are you aware of that? 5 A: No, I'm not. 6 Q: Mr. Kobayashi and Mr. Sturdy also 7 testified that it was found that a Park employee had been 8 responsible with respect to the posting of the cartoons 9 in question. 10 Did you know that? 11 A: No, I didn't. 12 Q: Finally, they testified that the -- 13 that -- sorry, that the result of this investigation was 14 that the -- from the MNR perspective was that the MNR 15 employee was spoken to and that Stan Cloud was apologized 16 to by Mr. Kobayashi. 17 Are you aware of that? 18 A: No, I'm not. 19 Q: Are you surprised that you were not 20 apprised of this information at the time that you were a 21 Minister? 22 A: Normally, there is a line between 23 political side and the Ministers, and the personnel that 24 would have gone up the chain of command to the deputy who 25 was responsible for personnel matters.
281 Q: All right. So are you -- are you 2 surprised or not, in light of the context of this 3 complaint, that -- that you were not surprised -- that 4 you were not apprised of it? 5 A: A little bit, but it's probably the 6 proper procedure, but I just hadn't heard of it before -- 7 Q: All right -- 8 A: -- this Inquiry, so. 9 Q: Are any circumstances where you -- 10 which are gen -- which are matters of discipline which 11 are brought to your attention? 12 A: Well normally, if there's somebody 13 charged criminally with an offence or dismissed, there's 14 usually a reference to it to the Minister. There's 15 nothing you can do about it, they just let you know for 16 informational purposes, in case you're asked a question 17 about it. 18 Q: Okay. 19 20 (BRIEF PAUSE) 21 22 A: I should just expand on that. 23 Normally, the names aren't included and normally there's 24 a response that says, you know, this isn't a matter that 25 politicians are involved with. It's -- the civil service
291 deals with this and there's certain collective agreements 2 with -- 3 Q: Hmm hmm. 4 A: -- the unions, et cetera, that 5 dictate how these matters are dealt with. But, you asked 6 me if I was surprised that I didn't know. Well, 7 somewhat, yeah. 8 Q: All right. Now, and as you may know, 9 the Commission has two (2) mandates or two (2) -- at 10 least two (2) parts to its mandate. 11 And the second part of its mandate is to 12 make recommendations which are aimed at resolving -- at 13 avoiding similar situations of violence in the future. 14 And we've given the opportunity to other 15 witnesses and I'd like to give the opportunity to you to 16 -- to advise if you have any recommendations which you 17 would like to share with the Commissioner which would be 18 aimed at avoiding similar situations of violence in the 19 future. 20 A: Okay. Thank you. First if I could 21 just take the liberty, Mr. Commissioner, I've spoken to 22 Mr. George and -- and expressed our family's condolences 23 for the death of his brother; I'd just like to put that 24 on the record. 25 I know we've talked before in 2001 and I'd
301 say how badly our family feels for your family and your 2 community. So, I just want to put that on the record. 3 As far as advice in avoiding future 4 confrontations of this nature I don't particularly have 5 anything profound to offer other than three (3) probably 6 obvious points. 7 One is that, I think, the Federal 8 Government should be somehow encouraged to live up to 9 their responsibilities in a timely fashion, not to let 10 these issues fester for lengthy periods of time. And I'm 11 speaking particularly around the Military Camp. 12 And this -- you know, they promised to do 13 it and just didn't do it, just dragged on and it showed 14 that, you know, through a civil society and due process 15 that things weren't happening the way they should. 16 The second observation, upon reflection, 17 is that I believe there should be an internal process to 18 First Nation communities to resolve, and maybe there is, 19 but in a more timely fashion, representational rights on 20 who has status and who doesn't, who speaks for the 21 community. 22 The third issue, upon reflection, is I 23 don't believe you should have these Interministerial 24 Committees or barracks committee -- barricade committees 25 set up in the first place. I believe that ONAS should
311 have their own Minister and there should be somebody in 2 charge, both politically and from a civil service 3 standpoint, that can guide these events to try to avoid 4 them in the future. 5 I think the fact that there's a committee 6 that some people assume is in charge means that nobody's 7 taking a firm responsible approach to try to get to the 8 bottom of some of these issues ahead of time. 9 Those are my three (3) observations that - 10 - there's not probably that enlightening, but that's how 11 I feel. 12 COMMISSIONER SIDNEY LINDEN: Thank you. 13 MS. SUSAN VELLA: Thank you very much. 14 Commissioner, that concludes the examination-in-chief and 15 I think it's appropriate at this time to canvass parties 16 with respect to anticipated lengths of cross-examination. 17 THE WITNESS: Thank you. 18 COMMISSIONER SIDNEY LINDEN: This would 19 give you an idea about how long you might be cross- 20 examined and it helps us to organize ourselves as well. 21 MS. SUSAN VELLA: And I'll be repeating 22 the times into the -- the microphone for the record 23 everyone. 24 COMMISSIONER SIDNEY LINDEN: If anybody 25 has any intention of asking Mr. Hodgson any questions,
321 would you please stand up. 2 Yes, Ms. McAleer, on behalf of Mr. Harris? 3 MS. JENNIFER MCALEER: Approximately 4 twenty (20) to thirty (30) minutes. 5 MS. SUSAN VELLA: Twenty (20) to thirty 6 (30) minutes. 7 COMMISSIONER SIDNEY LINDEN: I'm just 8 looking for Mr. Harnick? No. 9 Mr. Runciman? No. 10 Mr. Beaubien? No. 11 Ms. Hutton? Yes. Ms. Perschy, how long 12 would you have? 13 MS. ANNA PERSCHY: Five (5) to ten (10) 14 minutes. 15 MS. SUSAN VELLA: Five (5) to ten (10) 16 minutes for Ms. Hutton. 17 COMMISSIONER SIDNEY LINDEN: Mr. Sandler 18 on behalf of the OPP. 19 MR. MARK SANDLER: About an hour and a 20 quarter. 21 MS. SUSAN VELLA: Hour and a quarter. 22 COMMISSIONER SIDNEY LINDEN: Nobody for 23 the OPPA. 24 Mr. Myrka...? 25 MR. WALTER MYRKA: Twenty (20) minutes to
331 a half an hour. 2 COMMISSIONER SIDNEY LINDEN: On behalf of 3 the Province twenty (20) minutes. 4 MS. CLERMONT, Lambton Shores? 5 MS. JANET CLERMONT: Ten (10) minutes. 6 MS. SUSAN VELLA: Ten (10) minutes for 7 Lambton Shores. 8 COMMISSIONER SIDNEY LINDEN: Mr. 9 Klippenstein. 10 MR. MURRAY KLIPPENSTEIN: Unfortunately 11 because of the importance of the Witness I estimate four 12 (4) to five (5) hours. 13 MS. SUSAN VELLA: Four (4) to five (5) 14 hours for the Estate and Family Group. 15 MR. PETER ROSENTHAL: Approximately three 16 (3) hours, Mr. Commissioner. 17 MS. SUSAN VELLA: Approximately three (3) 18 hours for Aazhoodena and George Family Group. 19 COMMISSIONER SIDNEY LINDEN: Mr. 20 Scullion...? 21 MR. KEVIN SCULLION: Two (2) hours. 22 MS. SUSAN VELLA: Two (2) hours on behalf 23 of the Residents of Aazhoodena. 24 COMMISSIONER SIDNEY LINDEN: First 25 Nation?
341 MR. JONATHON GEORGE: Half hour to forty- 2 five (45) minutes. 3 MS. SUSAN VELLA: Thirty (30) to forty- 4 five (45) minutes for the First Nation. 5 COMMISSIONER SIDNEY LINDEN: Chiefs? 6 MR. MATTHEW HORNER: Approximately two 7 and a half (2 1/2) hours. 8 MS. SUSAN VELLA: Two and a half (2 1/2) 9 hours for Chiefs of Ontario. 10 COMMISSIONER SIDNEY LINDEN: ALST? 11 MR. JULIAN ROY: About an hour to an hour 12 and a half. 13 MS. SUSAN VELLA: About an hour to an 14 hour and a half for Aboriginal Legal Services of Toronto. 15 COMMISSIONER SIDNEY LINDEN: And I 16 presume on behalf of Mr. Hodgson, you'd want to wait and 17 see how it all goes down before you decide. 18 MS. SUSAN VELLA: So we'll reserve on 19 behalf of Mr. Hodgson's counsel. 20 COMMISSIONER SIDNEY LINDEN: Do you have 21 any idea roughly, how that adds up? 22 23 (BRIEF PAUSE) 24 25 COMMISSIONER SIDNEY LINDEN: Assuming
351 you -- 2 MS. SUSAN VELLA: About -- well, about 3 fifteen (15) hours. 4 COMMISSIONER SIDNEY LINDEN: Assuming 5 everybody uses the maximum. 6 MS. SUSAN VELLA: About fifteen (15) 7 hours. 8 COMMISSIONER SIDNEY LINDEN: What would 9 that give us in terms of...? 10 MS. SUSAN VELLA: About three (3) days. 11 COMMISSIONER SIDNEY LINDEN: I think it 12 took you a day and about a quarter to examine him in- 13 chief. That may be a little excessive in terms of 14 estimates but I don't think any one of the estimates are 15 out of line at the moment. So I think we'll just have to 16 proceed and see where we go. The total seems a bit 17 excessive for the amount of time that the examination-in- 18 chief took but we'll have to see how it goes. 19 We're hopeful that we can get through Mr. 20 Beaubien this week as well, in-chief, and hopefully his 21 cross-examine. We're looking ahead at next week. 22 We only have a two (2) day week, two (2) 23 days of hearings on Tuesday and Wednesday and we have a 24 program on Thursday and Friday of next week and then we 25 have a week off. So, we have to figure out how to do
361 this, but I don't want waste any time talking about, I 2 want to get started. So we'll see where it goes. 3 Okay. Then, Ms. McAleer, let's get 4 started. 5 6 (BRIEF PAUSE) 7 8 MS. JENNIFER MCALEER: Thank you, Mr. 9 Commissioner. 10 11 CROSS-EXAMINATION BY MS. JENNIFER MCALEER: 12 Q: Good morning, Mr. Hodgson. My name 13 is Jennifer McAleer and I'm one of the lawyers who's 14 acting for the former Premier Mike Harris. 15 You testified that you were -- you 16 participated in a number of briefings in the summer of 17 1995 shortly after you were elected into government and 18 you were asked by Ms. Vella whether or not you recalled 19 anybody from ONAS participating any of those briefings. 20 And I believe your evidence was you didn't 21 have any such recollection, but you didn't deny that that 22 could possibly have occurred; is that correct? 23 A: That's correct. 24 Q: Okay. And you also indicated that 25 you -- you didn't know who Julie Jai was back in the
371 summer of 1995, so I take it you don't recall being 2 briefed by Ms. Jai in the summer of 1995? 3 A: That's correct and I still don't -- 4 Q: Okay. 5 A: -- recall Ms. Jai. 6 Q: Ms. Jai gave testimony here and she 7 did recall providing a briefing to you and your staff in 8 the summer of 1995. And I wanted to put some of Ms. 9 Jai's comments to you to see whether that assisted with 10 your recollection or to see if you had anything in 11 response with respect to her comments. 12 And for My Friends I'm referring to Ms. 13 Jai's testimony of August 30th, 2005 at pages 69 and 14 following. 15 Now, I'm -- I'm going to read this so that 16 I'm -- 17 A: Okay. 18 Q: -- accurately reflecting her 19 evidence. Ms. Jai was asked to describe a number of the 20 briefings that she had provided and she indicated: 21 "But I know particularly when I was at 22 the MNR briefing with the Minister of 23 Natural Resources and also with the 24 Premier's office staff, that the 25 message that I got back after saying
381 that there are -- that Aboriginal 2 people do have special rights that are 3 protected by Section 35 of the 4 Constitution Act, I was told, Well, we 5 don't care. 6 Our policy is Aboriginal people have 7 the same rights as everybody else. We 8 believe in, you know, equal treatment 9 for all of all people and that's our 10 policy. 11 And even after I reiterated and kind of 12 pointed out that, in fact you can't 13 take that position legally and that the 14 Government is bound by the Constitution 15 and that there are reasons why 16 Aboriginal people do have special 17 rights by virtue of the fact that they 18 were the original occupiers of this 19 land and that have been recognized in 20 agreement in royal proclamations in the 21 Constitution Act. So, in fact, the 22 Province did not have the ability to 23 treat Aboriginal people the same way as 24 other people in all instances? 25 I was -- again that was just sort of,
391 Well, we don't really care about that. 2 Our position is there's no such thing 3 as special rights for Aboriginal 4 people." 5 Now, do you recall at any of the briefings 6 regarding Aboriginal issues and how they pertained to the 7 Ministry of Natural Resources conveying the message that 8 we don't care about Aboriginal people? 9 A: No, I did not or would not and I, 10 furthermore, cannot recall a meeting that I would have 11 had with the Premier's office staff and a briefing in the 12 summer of 1995 as well. 13 Q: Putting aside whether the Premier's 14 office staff were there, do you recall, you or any of 15 your staff, conveying that message at a briefing? 16 A: No, I do not. 17 Q: Or anyone in your staff? 18 A: Or anyone in my staff. 19 Q: And did you at any point deny that 20 Aboriginal have people have special rights under Section 21 35 of the Constitution? 22 A: Absolutely not. I was very familiar 23 with -- well, not very familiar, but I was familiar, as 24 I've outlined in these hearings, my understanding of 25 Section 35.
401 Q: The following day in her testimony of 2 August 31st, 2005, Ms. Jai indicated that she'd given the 3 matter some further thought and she'd had further 4 particulars with respect to what had been said at this 5 briefing and I'm now reading from page 284 and following 6 of the transcript. 7 "I was just thinking about that, trying 8 to remember what it was and I believe 9 that it was in relation -- relationship 10 to the Temagami land claim agreement 11 which had been at the -- on the table 12 and had not been ratified. 13 Like, there was actually a no vote by 14 the members of the Temagami First 15 Nation. And so at that time when the 16 Government came in, one of the issues 17 was whether to leave that agreement on 18 the table or, like, the offer on the 19 table or not. 20 And I think that's one of the issues 21 that -- that Minister Hodgson was 22 being briefed on because there was a 23 large area of Crown land that was being 24 kind of interim protected or with some 25 restrictions on land and any
411 dispositions, so that I was at the 2 briefing because -- because of that 3 topic." 4 I'm just going to stop there. Do you 5 recall having a briefing on the Temagami land claim? 6 A: I totally disagree with that. The 7 Temagami land claim at that time was under a process that 8 I think, wisely, was set up by the former government. 9 Garry O'Connor (phonetic) if my recollection is correct, 10 from Sturgeon Falls, was the Chair of a committee that 11 was studying the issue and interviewing all affected 12 parties, and they would make recommendations to the 13 Minister. I believe it was scheduled for 1996. 14 So, anything about Temagami that I was 15 briefed on, the answer was, This Committee's discussing 16 it, if you have input, refer it to the Committee. 17 And I can remember exactly the date that 18 we announced the Temagami resolution; it was the Friday 19 before the long weekend. And if the insinuation is that 20 I was somehow trying to short change the Temagami First 21 Nation, I really take offence to that. 22 I was personal friends with the Chief, 23 Holly Mathias was her maiden name. Her married name's 24 Chary and she worked in the Haliburton area as a student, 25 and we're roughly around the same age. And we attended
421 the Temagami winter carnival together in the early months 2 of January/February '96. 3 So if that was her testimony, I strongly 4 disagree with that. 5 Q: Well, I'll continue on and -- and 6 tell you what she says in particular -- 7 A: Okay. 8 Q: -- with respect to what she recalls 9 you having said at that briefing. But my question was 10 simply: Do you recall a briefing on the Temagami issue, 11 prior to September of 1995? 12 A: No, I do not. 13 Q: And Ms. Jai continues at page 285. 14 "And so the comment that Minister 15 Hodgson made, I believe, was in 16 relation to the restrictions that were 17 currently in place at the time on any 18 harvesting activities which would be 19 harvesting of trees. 20 Like so, that there couldn't be any, 21 like, commercial forestry operations, 22 for example, in the Temagami area. 23 Q: Okay, fine. 24 A: So I believe that his comment was 25 something like, you know what, if
431 they're worried about trees being cut, 2 you know what, well, that like just 3 wait and see what we do or something. 4 I mean, it was -- it was a very kind of 5 aggressive, you know, they haven't seen 6 anything yet, kind of comment." 7 Now, does that help refresh your memory as 8 to a briefing on Temagami and conveying to Ms. Jai or a 9 representative of ONAS, that, essentially, the Aboriginal 10 people hadn't seen anything yet with respect to your 11 Government and its policies? 12 A: Absolutely not. 13 Q: Thank you. You testified briefly 14 about the Cape Croker and Serpent Mounds situations and 15 your involvement with both of those cases in the summer 16 and fall of 1995. 17 Both Cape Croker and Serpent Mounds 18 involved concerns or rights that were being pursued by 19 the recognized First Nations through their Chief and 20 Council; is that correct? 21 A: That's correct. 22 Q: And in both those situations, the MNR 23 communicated and dealt directly with the recognized Chief 24 and Council? 25 A: That's correct.
441 Q: In neither case did the MNR encounter 2 any reluctance on behalf of those who had these concerns 3 to discuss these issues with you and representatives of 4 the MNR? 5 A: That's correct. 6 Q: And in particular with respect to 7 Serpent Mounds, you indicated that your department was 8 told that there was going to be a protest in advance. 9 Prior to that protest that -- was it your 10 understanding that there had been some dialogue between 11 the Serpent Mounds First Nation and the Ministry of 12 Natural Resources? 13 A: I'm sorry, could you repeat the 14 question? 15 Q: You were -- you were given notice of 16 the protest. And what I want to know is, I'm trying -- 17 I'm trying to figure out the context of that notice. Had 18 there been discussions or dialogue between the Ministry 19 of Natural Resources and Serpent Mounds, prior to the 20 protest? 21 A: I'm not sure, I -- I wasn't privy to 22 it if there was. 23 Q: Okay. And that protest was taking 24 place over the Labour Day weekend; is that correct? 25 A: I believe so.
451 Q: And would I be correct in assuming 2 that the Labour Day weekend at Serpent Mounds would have 3 been a popular camping weekend? 4 A: I would assume that. 5 Q: And in -- in essence, then, what 6 occurred was that the First Nation people of Serpent 7 Mounds didn't permit any camping over the Labour Day 8 weekend; is that correct? 9 A: Yes. 10 Q: And after the long weekend ended, 11 then the protest ended; is that -- 12 A: That's correct. 13 Q: Okay. And that protest took place 14 without any violence or any acts of property destruction, 15 as far as you're aware; is that correct? 16 A: That's correct. 17 Q: Now, Ms. Vella had asked you a couple 18 of questions about the nature of the Park closing at 19 Ipperwash Provincial Park. In particular, she had 20 indicated to you that this Commission had heard some 21 evidence about two (2) different types of park closings. 22 One in which the -- the Park is closed to 23 all public access. And a second type of park closing 24 where the Park is closed, but it's not -- it's not -- 25 access to the public is not denied, to come onto the Park
461 grounds and -- and hike or picnic. 2 And you had indicated that you assumed 3 that the Ipperwash Provincial Park was to be closed to 4 all public access. 5 Do you recall providing that testimony? 6 A: Yes, I do. That was my assumption. 7 It could be corrected. 8 Q: Okay. When Mr. Kobayashi came here 9 and testified, he indicated that, although the Provincial 10 Park was scheduled to be closed to camping, members of 11 the public would still be able to use the Park after 12 September 4th for picnicking, walking along the beach, or 13 hiking. 14 Do you have any reason to disagree with 15 Mr. Kobayashi's assessment as to the potential use of the 16 Park after September 4th? 17 A: No, I do not. 18 Q: Would you defer to his recollection 19 as -- 20 A: Yes, I would, yes. 21 Q: Thank you. Now, if I could quickly 22 turn to Tab 14 of the brief that the Commission Counsel 23 prepared for you, it's the transcript of the media scrum 24 that took place on September 5th, 1995. 25 Do you have that, Mr. Hodgson?
471 A: Yes, I do. 2 MS. SUSAN VELLA: That's Exhibit P-529, 3 just for the record. 4 MS. JENNIFER MCALEER: Thank you, Ms. 5 Vella. 6 7 CONTINUED BY MS. JENNIFER MCALEER: 8 Q: If we go halfway down the first page 9 where it says: 10 "Q: [Minister] The mayor and others 11 called it basically a reign of terror." 12 Do you see that? 13 A: Yes. 14 Q: "He says that people are being 15 assaulted on the beach, buildings are 16 being burnt to the ground, and 17 basically lawlessness in the area, and 18 that the Provincial and Federal 19 Government should step in and impose 20 the law." 21 And then you answer: 22 "I don't want to deal in rhetoric." 23 Now, can you tell us what you meant by 24 that? 25 A: Just what it says. I've been
481 involved with situations in a small town; anytime there's 2 a dispute or a fight the -- the first reports are always, 3 from my experience, somewhat exaggerated. 4 So I didn't want to get into that. I 5 didn't want to deal with rhetoric, I wanted to deal with 6 the facts as they would come in over time and figure out 7 what was going on. 8 Q: All right. And prior to the press 9 conference, did you have any discussions with any of your 10 aides about the possibility of using this press -- press 11 conference as an opportunity to actually reduce tension 12 surrounding the Ipperwash occupation? 13 A: My recollection is I had about twenty 14 (20) minutes to try to digest what the Government message 15 was going to be and go ahead and deliver it to a scrum. 16 So I didn't do much reflection on the motive behind the 17 press conference. 18 Q: Okay. During the course of the press 19 conference, was that something that would have been 20 important to you, to try and reduce tensions in the 21 community, surrounding the Ipperwash situation? 22 A: Yes. 23 Q: And -- and did you attempt to convey 24 that in the press conference? 25 A: I tried to the best of my ability to
491 convey exactly what the messages, as given to me, were. 2 Q: Now, I want to turn to the transcript 3 of the phone conversation between Mr. Fox and Mr. Carson, 4 which is at Exhibit 444A, Tab 37. 5 6 (BRIEF PAUSE) 7 8 Q: And Ms. Vella had previously taken 9 you to some excerpts within this transcript and I just 10 wanted to ask you a couple of further questions. 11 I'm at the page that has the handwritten 12 at the very bottom, 262? 13 Do you have that, Mr. Hodgson? 14 A: Yes, I do. 15 Q: Halfway down the page, and this is 16 Mr. Fox speaking with Mr. Carson following the dining 17 room meeting. 18 "Okay, well, let me just give you -- 19 that I went through this meeting. 20 John, we're dealing with a real red 21 neck government. 22 Carson: Okay. 23 Fox: They're fucking barrel suckers. 24 They are just in love with guns." 25 Now, would you agree or disagree with this
501 description of you and your colleagues at the Premier's 2 dining room meeting? 3 A: Well, I disagree with that. 4 Q: You're not of the view that that's an 5 accurate description of you and your colleagues? 6 A: No, not at all. 7 Q: And at the dining room meeting, did 8 you or anyone suggest that force or weapons should be 9 used against the occupiers? 10 A: No. 11 Q: Turning to page 264. Actually, 12 starting at the bottom of page 263 where it says, "Fox." 13 And Mr. Fox is talking about the Premier here, Mr. 14 Hodgson. 15 "And he came right out, and I just 16 walked in on the tail end of this. The 17 OPP, in my opinion, made mistakes. 18 They should have done something right 19 at the time and he said that will, I'm 20 sure, all come out in an Inquiry 21 sometime after the fact. 22 Yeah, yeah. 23 He believes that he has the authority 24 to direct the OPP." 25 Now, first of all, did you hear Mr. Harris
511 say, at the dining room meeting, The OPP, in my opinion, 2 made mistakes. They should have done something right at 3 the time? 4 A: No, I did not. I heard something 5 that I've already testified to, that he felt, you know, 6 the view that I had expressed to Mr. Fox earlier in that 7 day, that it's easier to avoid these confrontations than 8 it is to remove people from an area. 9 Q: And where Mr. Fox states: 10 "He believes he has the authority to 11 direct the OPP." 12 A: Yeah. 13 Q: Did you hear Premier Harris say 14 anything that would -- that gave you the impression that 15 you were of the view Mr. Harris thought he had the 16 authority to direct the OPP? 17 A: Quite the opposite. As I testified, 18 the meeting somewhat concluded with the Premier stating, 19 unequivocally and in a rather loud voice, that it was a 20 police matter, that no politician, including himself, 21 should be directing, and we're accepting the advice of 22 the Attorney General. 23 That's how the matter was left and that 24 was pretty clear in the meeting, in my recollection. 25 Q: Turning to page 274; this is the
521 second last page of the transcript. 2 3 (BRIEF PAUSE) 4 5 Q: And now Mr. Fox is speaking with 6 Chief Superintendent Coles. 7 You see where it says: 8 "FOX: Okay, the Premier?" 9 A: 274? 10 Q: Right, 274, about almost halfway down 11 the page. 12 A: Halfway down the page? 13 Q: Right. 14 A: "Okay, the Premier." 15 Q: Right. 16 A: Okay, I've got that, yeah. 17 Q: "Okay, the Premier is quite adamant 18 that this is not an issue of Native 19 rights. 20 And then his words: 21 "Ah, I mean, we've tried to pacify and 22 pander to these people for too long. 23 It's now time for swift, affirmative 24 action." 25 Do you recall the Premier saying, We've
531 tried to pacify and pander to these people for too long? 2 A: No, I do not. 3 Q: Do you recall anybody at the meeting 4 saying, We've tried to pacify and pander to these people 5 for too long? 6 A: No, I do not. 7 Q: Do you recall the Premier saying, 8 It's now time for swift, affirmative action? 9 A: No, I do not. 10 Q: Do you recall anybody at the meeting 11 saying, It's now time for swift, affirmative action? 12 A: No, I do not. 13 Q: Thank you, Mr. Hodgson, those are all 14 my questions. 15 COMMISSIONER SIDNEY LINDEN: Thank you. 16 Ms. Perschy...? 17 18 CROSS-EXAMINATION BY MS. ANNA PERSCHY: 19 Q: Good morning, Mr. Hodgson. My name 20 is Anna Perschy. I'm counsel for Ms. Hutton who, as you 21 know, was the Executive Assistant to the Premier at the 22 time in question. I just had a few questions for you 23 today. 24 You testified last week that after the 25 occupation of the Ipperwash Provincial Park commenced,
541 you were told that the police would require that the 2 Government obtain an injunction. 3 Did you recall giving that testimony? 4 A: Somewhat. You might have to refresh 5 my memory. 6 Q: I just have an additional question in 7 regard to that. Park Superintendent Les Kobayashi 8 testified, before this Inquiry, that he was aware, as of 9 September 1, 1995, from a meeting with Inspector Carson, 10 that in the event of an occupation the OPP expected MNR 11 to rapidly seek an injunction. 12 And -- and my question to you was: Were 13 you told, prior to the morning of September 5, that this 14 was the OPP's view regarding the timing of an injunction? 15 A: No, I was not. 16 Q: Were you made aware after? 17 A: I believe I was aware on the 6th. We 18 talked about an injunction in general terms. But the 19 fact that they needed MNR to be the signatory, I wasn't 20 aware of specifically until, I believe, the 6th. 21 Q: You testified last week about walking 22 in as the Interministerial Committee Meeting was -- was 23 wrapping up on the 6th -- September the 6th. And I just 24 had a few questions about that. 25 You testified that you weren't sure where
551 the meeting on September 6th took place. If I recall 2 correctly, you said that it was either at ONAS or the 3 Solicitor General's meeting but that you took it to be 4 the end of the Interministerial Committee Meeting. 5 Do you recall giving evidence in that 6 regard? 7 A: I do. 8 Q: Now, you testified that you may have 9 attended this meeting at about, you weren't quite sure 10 about the time, it was maybe 11:20 or 11:30. Now, I 11 wanted to just take you to Mr. Bangs' testimony in 12 regards to this meeting. 13 And for the assistance of My Friends, it's 14 his testimony on November 3rd, 2005. The bottom of page 15 91 is where Mr. Bangs begins talking about it. He says: 16 "I believe I was notified, I don't 17 recall by whom, to attend at the 18 Solicitor General's office in Bloor 19 Street very quickly after the 20 Interministerial Committee Meeting. 21 And I recall going there with Minister 22 Hodgson and Deputy Vrancart. 23 What occurred when we got there, it 24 became apparent that -- I don't -- and 25 I don't know exactly the sequence of
561 events, but it's as if there was an 2 attempt to have a meeting started, but 3 because there was a Cabinet meeting 4 happening at the same time and 5 ministers weren't necessarily 6 available, the meeting that was -- 7 would been called to didn't actually 8 occur as a proper meeting. 9 But I do recall going to the 10 Solicitors's General office on Bloor 11 Street that morning. 12 Q: And do you recall -- 13 A: Later. 14 Q: -- being -- 15 A: Later that morning around lunch 16 time." 17 Now we've heard evidence that the 18 Interministerial Committee Meeting ran from 9:30 a.m. to, 19 I believe, it's 11:45 a.m. 20 And my first question was: Does hearing 21 Mr. Bangs' testimony assist, in regards to your 22 recollection, with respect to the timing of when you went 23 to this meeting that you walked in on? 24 A: Yes it does. I would probably defer 25 to Jeff's timing and the location; he was driving, he
571 picked us up. I'm not certain which building it was at, 2 but I'm very certain on what took place inside the 3 boardroom and I can describe the boardroom. 4 But I would defer to Jeff if -- what the 5 meeting was officially called. I've always assumed it 6 was the Interministerial Committee, tail end of that 7 meeting. 8 Jeff would probably have a clearer 9 recollection, given the fact that he was the one 10 attending all the meetings, and the one picking me up, 11 and the one looking after the schedule that day. 12 Q: And I just wanted to follow up on 13 that point. Neither Mr. Moran, Dave Moran, nor Ms. Hunt 14 indicated, in their testimony, that they saw you at the 15 Interministerial Committee Meeting. 16 I take it that you don't recall seeing 17 them as you walked into this meeting? 18 A: No, I would have remembered them. Or 19 I would have remembered Kathryn Hunt. I'm not sure about 20 Dave Moran. 21 Q: And you also mentioned that you 22 didn't recall Ms. Hutton at this meeting that you walked 23 in on, and the Inquiry has heard evidence that Ms. 24 Hutton, Ms. Hunt and Mr. Moran all attended the 25 Interministerial Committee Meeting which was at ONAS.
581 And I'm wondering, could you be mistaken 2 in your understanding that it was the Interministerial 3 Committee that you were walked in -- walking in on, and 4 not some other meeting? 5 A: I could be. I defer to Jeff on that. 6 But I'm certain on what took place at the meeting and 7 what the boardroom looked like and who was there, that I 8 recall. 9 Q: Mr. Bangs testified, in the excerpt 10 that I referred you to, that the Ministers' meeting 11 didn't actually proceed because the other Ministers 12 weren't available, because they were at Cabinet 13 And it appears that based on your 14 recollection today, that there was some sort of 15 misunderstanding regarding this Ministers' meeting. I 16 mean, it -- you -- as I understood your evidence -- 17 A: That's correct. 18 Q: -- you were expecting to see other 19 Ministers at this meeting? 20 A: Yes, I was. 21 Q: So, to come back to my first 22 question: Would you agree that -- is it -- would it be 23 fair to say that there was some sort of misunderstanding 24 regarding this meeting? 25 A: Yes.
591 (BRIEF PAUSE) 2 3 A: My assumption, actually, was that 4 they called the meeting, realized that the Cabinet 5 Ministers were at Cabinet, Bob Runciman Chairs Cabinet, 6 cancelled the meeting and not told me. 7 That's always been my assumption. 8 Q: And you testified last week that you 9 assumed that it was Ms. Hutton who had called this 10 Ministers' meeting at -- at Sol Gen and Ms. Hutton 11 testified that she attended the Interministerial 12 Committee Meeting, and then following the meeting, she 13 went to Queen's Park, because she knew that the Premier 14 and the Ministers were meeting at Cabinet. 15 And I'm going to suggest that your 16 assumption that it was Ms. Hutton that was calling this 17 meeting at the Ministry of the Solicitor General may also 18 be mistaken. 19 A: That's fine. That's my assumption 20 though. 21 Q: But you don't have any evidence on 22 that, it's just an assumption? 23 A: Just an assumption. 24 Q: Okay. Those are all of my questions. 25 Thank you.
601 COMMISSIONER SIDNEY LINDEN: Thank you, 2 Ms. Perschy. 3 Mr. Sandler...? 4 5 (BRIEF PAUSE) 6 7 MR. MARK SANDLER: Good morning, 8 Commissioner. Happy New Year. 9 COMMISSIONER SIDNEY LINDEN: Good 10 morning. 11 12 CROSS-EXAMINATION BY MR. MARK SANDLER: 13 Q: Mr. Hodgson, I appear as Counsel for 14 the OPP and for its senior officers, including Ron Fox. 15 A: Yeah. 16 Q: Now, you've testified about 17 conversations that purportedly took place at the end of 18 this Interministerial Committee Meeting on September the 19 6th and during a meeting in the Premier's dining room 20 later that day, and my questions are almost exclusively 21 going to be directed to your evidence on those topics, 22 all right? 23 Now, just to give a little bit of a 24 backdrop to -- to what you're being asked to do here, 25 you've already acknowledged that you have no notes of
611 either meeting to refresh your memory; am I right? 2 A: That's correct. 3 Q: You've already been made aware of 4 several 5 facts; first of all that the Interministerial Committee 6 minutes held that day make no reference to your 7 attendance. 8 You know that? 9 A: Yes. 10 Q: You've been made aware of the fact 11 that extensive notes of many of those who did attend that 12 meeting make no reference to your attendance? 13 You know that? 14 A: I haven't seen my name, no. I'd 15 agree with you, I haven't seen that. 16 Q: Thank you. Nor did any of the 17 participants at that Interministerial Committee Meeting 18 who testified here, acknowledge your presence at that 19 meeting and, again, you've been made aware of that. 20 Am I right? 21 A: That's not totally correct. I 22 wouldn't agree with that. There was -- Mr. Vrancart was 23 there and Mr. Bangs was there, Peter Allen was there; I 24 don't know if he's been asked or not, but he was 25 definitely there.
621 Q: No, but I've suggested something to a 2 little -- little bit different to you and that is that 3 those who attended the Interministerial Committee Meeting 4 and who have testified here, said that you weren't 5 present. 6 You'll have to just take that from me as a 7 given, all right? 8 A: Okay. 9 Q: Okay. Now -- and Commissioner Linden 10 has already heard a taped conservation between Ron Fox 11 and another officer named Mark Wright, shortly after the 12 Interministerial Committee Meeting took place, and before 13 the dining room meeting, where Mr. Fox makes no reference 14 to any dialogue with you, all right? 15 So I'm just giving you those facts so that 16 you're aware of them, okay? 17 A: Okay. 18 Q: Now, as for the dining room meeting, 19 and again as a backdrop to the questions that I'm going 20 to ask you, you've been made aware of the fact that Ron 21 Fox recounted to Inspector Carson very shortly after that 22 meeting was over what he said transpired at the meeting 23 and we have a contemporaneous record of what he said. 24 You know that? 25 A: I've heard it, yes.
631 Q: All right. And you've also heard, 2 though you don't know Julie Jai, that Ron Fox also 3 recounted to Julie Jai who recorded shortly after the 4 dining room meeting what Ron Fox said happened there. 5 Am I right? 6 A: Yes. 7 Q: And we also know that at your 8 examination-for-discovery you were asked some questions 9 about the events that took place on September the 6th of 10 1995. 11 Am I right? 12 A: Yes. 13 Q: And your examination-for-discover I 14 can tell you took place back in September of 2001, much 15 closer to the events. 16 Am I right? 17 A: Yes. 18 Q: And at that examination-for-discover, 19 and I -- I can take you to the passages if you have any 20 difficulty with my questions, so don't feel that you have 21 to take it on faith from me, but one (1) of the things 22 that you said at the examination-for-discover was that 23 you had assumed that you had attended the Cabinet meeting 24 that morning. 25 Am I right?
641 A: Well, I think we spent about -- Mr. 2 Klippenstein can correct me probably, but I thought we 3 spent quite a bit of time on that Discovery trying to 4 recollect if I was or I wasn't at Cabinet. I couldn't 5 recall it, and so I think we left it that we'd make an 6 assumption that I was at Cabinet, but -- 7 Q: Fair enough. And -- 8 A: -- for than an hour of that 9 Discovery. 10 Q: -- that's what I said you -- you made 11 an assumption. You had no recollection one way or the 12 other as to whether you were there? 13 A: No, I couldn't remember being at 14 Cabinet, and we spent quite a bit of time around that. 15 Q: Fair enough. So you agree with me? 16 A: Yes. 17 Q: Okay. And -- and you were asked, 18 pursuant to an undertaking, to determine whether in fact 19 you had attended the Cabinet meeting. And we know that 20 in March of 2002 in response to the undertakings 21 provided, you were asked to confirm whether or not Mr. 22 Hodgson was at the Cabinet meeting of September 6th, 1995 23 and the answer was: 24 "Mr. Hodgson attended the Cabinet 25 meeting on September 6th, 1995."
651 A: I don't know why it's worded like 2 that because we didn't spend a lot of time. I couldn't 3 recall being at Cabinet. 4 Q: Well, I'm asking you something a 5 little bit different here. 6 A: Oh, okay. 7 Q: That pursuant to the undertakings 8 that you yourself said followed the Discovery, counsel on 9 your behalf indicated that you indeed did attend the 10 Cabinet meeting on September the 6th of 1995. 11 A: Okay. But as I -- 12 Q: So -- 13 A: -- pointed out even in 2001 I 14 couldn't remember being at Cabinet. 15 Q: All right. So -- 16 A: And my counsel I guess in 2002 said 17 they're assuming I was. Is that what you're question is? 18 Q: So that was just an assumption? 19 A: I would assume that, yeah. 20 Q: All right. So, did your counsel make 21 inquiries on your behalf about your attendance at the 22 Cabinet meeting before you responded to undertakings that 23 had been made concerning your examination-for-discover? 24 A: I don't know that. You'd have to ask 25 my counsel.
661 Q: You don't know. All right. So 2 moving there for a moment, back to the examination-for- 3 discover, you were asked, I'm going to suggest: 4 "Do you know what you did on the 5 morning of September the 6th before the 6 Cabinet meeting?" 7 And you said, "No, I don't." 8 And again you didn't recall -- 9 A: Yeah. 10 Q: -- what you had done before the 11 Cabinet meeting back when you were examined for 12 Discovery. 13 Am I right? 14 A: That's correct. 15 Q: Fair enough. And you were asked 16 whether you recalled whether you left at the end of the 17 Cabinet meeting or before the end of the Cabinet meeting 18 and all you could recall at that time was that you were 19 over at the MNR office and walked back across the street 20 to Queen's Park. 21 And again, that represented your 22 recollection as best you could give it at that time. 23 Am I right? 24 A: No, I think I've added some detail to 25 it at the time. I walked with Jeff Bangs and Ron
671 Vrancart. I remember that at the time and I still 2 remember that. 3 Q: Okay. So you walked over, and this 4 would have been from the Whitney Block where the MNR 5 offices were located, to the dining room meeting. 6 Am I right? 7 A: That's correct. 8 Q: Fair enough. And -- and I'm going to 9 suggest -- and if you have the examination-for-discover 10 perhaps you could -- 11 A: No, I don't. 12 Q: All right. Well, I'll just read you 13 the one -- the one question. It's question 386 at page 14 114 of the examination-for-discover: 15 "Do you recall any discussion between 16 yourself and Mr. Bangs and Mr. Vrancart 17 as you were proceeding to the meeting? 18 A: No, I don't." 19 And does that accurately represent what 20 your state of recollection was when you were examined for 21 Discovery back in 2001? 22 A: Walking to the meeting; is that the 23 question? 24 Q: "Do you recall any discussion between 25 yourself and Mr. Bangs and Mr. Vrancart
681 as you were proceeding to the meeting? 2 No, I don't." 3 A: So, we were walking from the Whitney 4 Block over to the dining room meeting? 5 Q: Right. 6 A: Yes, okay. 7 Q: And -- and had you recollected as of 8 the time of the examination-for-discover? Because I have 9 to tell you in fairness, having read it from start to 10 finish I don't see it anywhere, any discussion that had 11 to do with Ipperwash as between you and Mr. Bangs and Mr. 12 Vrancart prior to the dining room meeting that day? 13 A: No. 14 Q: No. Okay. So -- so, without the 15 benefit of Ron Fox's taped conversation, five (5) years 16 ago in September 2001 when you were examined for 17 Discovery, you have no recollection of any discussion 18 with Ron Fox, no recollection of participating at the 19 Interministerial Committee Meeting, and no recollection 20 of the content of any discussion with Mr. Vrancart or Mr. 21 Bangs immediately before the dining room meeting. 22 Do I have that right, so far? 23 A: That's correct. 24 Q: Fair enough. Now, apart from those 25 limitations and -- and let me say it once that even
691 though this is cross-examination, I appreciate the 2 difficulties in recollecting events over ten (10) years 3 ago. 4 But, that's why I'm drawing this out so 5 that we can evaluate and Commissioner Linden can evaluate 6 with the benefit of this and other information, what 7 reliance can be placed upon the testimony. 8 So, apart from those limitations that -- 9 that we've just talked about, we also know that Scott 10 Patrick who was the assistant at the time to Ron Fox, who 11 you don't remember in fairness, took contemporaneous 12 notes of a meeting held on September the 7th of 1995 that 13 he and Ron Fox attended with Ministers and Deputy 14 Ministers at about 5:30 p.m. that day. 15 And we've seen from those notes which are 16 Exhibit P-517 that there was talk about service of the 17 injunction documents that had been ordered that morning 18 by the Court. 19 And do you remember Ms. Vella asking you 20 about that in the course of your examination-in-chief? 21 A: Yes. I can't recall being at that 22 meeting. I find it probably highly unlikely I would have 23 been, at 5:30 on a Thursday night. 24 Q: All right. But in -- in the face of 25 those notes and the specific reflection to the --
701 A: Well, is my name specifically 2 mentioned in those notes? 3 Q: Well, this is what I'm going to just 4 put to you now, so -- 5 A: Okay. 6 Q: -- bear with me for a moment, all 7 right? 8 Scott Patrick testified that -- that you 9 were present, the notes reflect that it's in the 10 Minister's boardroom, but I'm -- I'm going to tell you it 11 once that it's not clear from the notes whether you were 12 present as opposed to the testimony. All right? 13 MR. PETER LAUWERS: With respect to My 14 Friend, if he's going to refer to the Minister's 15 boardroom he should be clear about which Minister's 16 boardroom because he's implying that it's this Minister's 17 boardroom when -- 18 COMMISSIONER SIDNEY LINDEN: That's fine. 19 Which Minister's boardroom are you referring to? 20 MR. MARK SANDLER: The Minister of the 21 Solicitor General if I remember correctly. 22 MR. PETER LAUWERS: Thank you. 23 MR. MARK SANDLER: All right. Fair 24 enough. 25
711 CONTINUED BY MR. MARK SANDLER: 2 Q: So in fairness, Scott Patrick's notes 3 as opposed to the testimony don't assist in identifying 4 whether you were present. Okay? 5 A: Okay. 6 Q: So, what I'm asking you is -- is 7 this, that -- that we've heard some evidence and leaving 8 aside whether or not you're present, because as I 9 understood your evidence to Ms. Vella, you couldn't deny 10 that you were present but you didn't have a recollection 11 that would support your presence. 12 Do I have that right? 13 A: That's correct. 14 Q: Okay. Fair enough. But what I want 15 to ask you, just applying a little bit of common sense 16 and putting some things together here, we know from the 17 evidence and this appears to be uncontradicted, that it 18 was the Judge who ordered, on the morning of September 19 the 7th of 1995, that service of the injunction related 20 documents be made by helicopter dropping it from the air. 21 All right? You can take that from me. 22 A: Okay. 23 Q: Okay. And we also know that counsel 24 on behalf of the Attorney General who appeared as the 25 only counsel on that motion, didn't ask that service of
721 the injunctive documents be effected in that way. All 2 right? 3 A: Okay. 4 Q: Okay. Now what I'm going to suggest 5 to you is that -- that it makes sense, first of all, that 6 one of the subject matters that would follow the Judge's 7 Order that wasn't asked for, in other words, service will 8 be effected by helicopter from a-high, would be some 9 discussion within the Ministries involved as to the 10 appropriateness of that method of service. 11 Is that fair, so far? 12 A: Okay. 13 Q: All right. And what I'm going to 14 suggest to you that you can't deny, in the face of the 15 notes and in the face of the chronology and in the face 16 of how it came about that the documents were ordered to 17 be served in, that way that it may be that the first 18 discussion that took place about service of documents by 19 air took place after the Order was made by the Judge and 20 not before. 21 I mean isn't that fair, with great 22 respect? 23 A: It's not my recollection. And I 24 don't recall talking to Ron Fox after the 6th and he 25 refers to it on the tape, our discussion.
731 I don't recall having a meeting with him 2 after that. 3 Q: I understand you don't recollect it, 4 but in the face of all of that, are you prepared to swear 5 absolutely that you had a conversation about the service 6 of documents by air, with Ron Fox, prior to the Judge 7 making an Order in relation to that service? 8 I just want to understand your evidence. 9 Or, is it possible that you're wrong in that regard? 10 A: Well, it's -- it's not my 11 recollection and that's what I've been asked to give is 12 my recollection. I recall having a discussion with Ron 13 Fox and I know he refers to it in his tape and that's 14 taped on the 6th. That's the only discussion I can ever 15 recall having with Ron Fox. 16 Q: All right. But he's not referring to 17 service of documents by air on the tape, and that's what 18 you're using to refresh your memory is your conversation 19 with Ron Fox. 20 A: No, there's a bunch of stuff that 21 came back to me, but what refreshed my memory was other 22 phrases he used in the tape. 23 Q: But do you understand my question? 24 My question is that you -- 25 A: I understand your question.
741 Q: -- you've testified that it was Ron 2 Fox's taped conversation that refreshed your memory about 3 your conversation with him -- 4 A: That's right. 5 Q: The taped conversation makes no 6 reference to the service of documents by air -- 7 A: No, I know it -- 8 Q: -- and I'm simply asking you, with 9 the benefit of everything that I've put to you, whether 10 it's possible that indeed your recollection was 11 inaccurate and that service of documents was only 12 discussed after the Judge made the Order? 13 A: Anything's possible, but I don't 14 recall having a conversation with him other than one (1) 15 time. 16 Q: All right. 17 A: Okay. 18 A: Now, so anything's possible and that 19 is one of the possibilities that presents itself on the 20 evidence, isn't it? 21 A: Okay. 22 Q: Okay. Now, I want to move on if I -- 23 if I may and let's see the extent -- 24 COMMISSIONER SIDNEY LINDEN: Mr. Sandler, 25 would this be a point that we could take a break, because
751 you're going to be a bit longer -- 2 MR. MARK SANDLER: Yes, that's fine. 3 COMMISSIONER SIDNEY LINDEN: -- and we've 4 been going and going and going. 5 We'll take a morning break now and then 6 you can move on to another area. 7 THE REGISTRAR: This Inquiry will recess 8 for fifteen (15) minutes. 9 10 --- Upon recessing at 11:45 a.m. 11 --- Upon resuming at 12:03 p.m. 12 13 THE REGISTRAR: This Inquiry is now 14 resumed, please be seated. 15 COMMISSIONER SIDNEY LINDEN: Carry on. 16 MR. MARK SANDLER: Thank you. 17 18 CONTINUED BY MR. MARK SANDLER: 19 Q: Mr. Hodgson, what I was about to do 20 now is just see if we can examine together just how much 21 we can actually agree upon did happen on September the 22 6th of 1995. 23 First of all, we can all agree that Ron 24 Fox was at the dining room meeting and -- and spoke at 25 that meeting, right?
761 A: Yes. 2 Q: And there's some difference in 3 recollection over whether he attended from the outset or 4 only during the meeting. 5 And given the difficulties that you've 6 fairly described in your recollection, it's possible, I 7 suggest, that he did join the meeting once it was already 8 in progress; isn't that so? 9 A: That's not my recollection, no. 10 Q: All right. Is it possible that he 11 did? 12 A: No. 13 Q: All right. We can all agree that, 14 during the meeting, Ron Fox provided an update as to what 15 was happening on the ground? 16 A: Yes. 17 Q: Now, Ron Fox testified that the 18 Premier made comments that indicated he was displeased 19 that the matter had gone on as long as it had and that 20 actions had not been taken, that this would likely come 21 out at an inquiry in some form, and Fox took it as a 22 criticism of the police operations that had gone on thus 23 far. 24 And you've reviewed, and just recently 25 this morning Counsel reviewed with you that portion of
771 the tape in which Ron Fox describes the Premier saying: 2 "The OPP, in my opinion, made mistakes, 3 that they should have done something 4 right at the time." 5 And he said: 6 "That will, I'm sure, come out in an 7 inquiry sometime after the fact." 8 So now, against the background of what Ron 9 Fox has said and what is captured on the tape, what I 10 want to see is what is common to your recollection and 11 that of Ron Fox. 12 First of all, I'm going to suggest to you 13 that, as you've already described, the Premier did say 14 that it's easier to avoid these situations than it is to 15 remove people once an occupation has begun, correct? 16 A: Correct. 17 Q: The Premier did express a lot of 18 frustration at that. This was manifested in a loud, firm 19 voice, right? 20 A: Yes. 21 Q: The Premier did say that if mistakes 22 have been made it would all come out at an inquiry, 23 correct? 24 A: I believe he referenced something to 25 that effect, yes.
781 Q: Right. The Premier did say that this 2 is a police matter, right? 3 A: Yes. 4 Q: And what I'm going to suggest to you, 5 putting all of that together, it was clear that it was 6 the police who had been in the Park before -- 7 A: No, you're -- well, you're making an 8 assumption that they were all -- 9 Q: I haven't asked the question yet, 10 sir. 11 A: Okay, sorry. Okay. 12 Q: What I'm going to suggest is that it 13 was clear that the police had been in the Park prior to 14 the occupation; you knew that, right? 15 A: Is that a question now? 16 Q: Yes. 17 A: Yes, I knew that in -- after the 18 August 2nd meeting. 19 Q: And what I'm going to suggest to you 20 is, that when the Premier is describing that it's easier 21 to avoid these situations than remove them once they'd 22 begun, that he expressed that as frustration and in a 23 loud, firm voice, If mistakes have been it would all come 24 out in an inquiry and that this is a police matter. 25 I mean putting it all together, what was
791 clear is that the Premier's comments were directed to the 2 failure of the police to avoid the occupation; isn't that 3 fair? 4 A: No, it's not. You've missed about 5 three (3) or four (4) minutes of dialogue in between 6 those sentences. He stated that it's unfortunate that 7 the situation's evolved the way it has, that these 8 occupations are easier to avoid, in his opinion, than 9 they are to remove people. 10 And then he went on to some other thoughts 11 and he ended the -- my recollection is, how he ended it 12 was by stating that the occupation was a police matter; 13 politicians and -- so, we were not to interfere with 14 that. 15 And he was accepting the Attorney 16 General's advice and that was the end of the meeting. 17 Q: Well, I've heard all that, sir, but 18 I'm simply asking you a fairly simple question and that 19 is that -- 20 A: I didn't see it -- to answer your 21 fairly simple question, I didn't see the -- 22 Q: All right. 23 A: -- two (2) thoughts connected -- 24 Q: All right. Well then I'll ask -- 25 A: -- between being an OPP issue --
801 COMMISSIONER SIDNEY LINDEN: Give him a 2 chance to finish, Mr. Sandler. 3 THE WITNESS: Okay, sorry. 4 COMMISSIONER SIDNEY LINDEN: Go ahead. 5 I'm sorry, finish your answer. 6 THE WITNESS: Okay. Between it being an 7 OPP issue was at the end of talking about the occupation. 8 To start, was talking about the events around Ipperwash; 9 that they'd progressed to this point and I've never saw 10 those two (2) as being connected. 11 12 CONTINUED BY MR. MARK SANDLER: 13 Q: Well, let me ask you this: That 14 when, in your recollection, you said to Ron Fox at the 15 Interministerial Committee Meeting that -- that it's 16 easier to avoid these situations and prevent occupations 17 from occurring, if you can, than to remove people. 18 And you remember saying that? 19 A: Yes. 20 Q: All right. Would you have said that 21 to Ron Fox if he was a police officer? 22 A: No, I wouldn't have. 23 Q: No, and the reason you wouldn't have 24 said that to Ron Fox if you knew he was a police officer, 25 is that given the fact that the police had been in the
811 Park, that would be construed as a critique of the police 2 operations that had taken place in the Park, correct? 3 A: I don't know one (1) way or the 4 other. I do know that I thought Ron Fox was the head of 5 the Interministerial Committee for ONAS. 6 Q: Yeah, but I'm asking you something 7 different. 8 A: I was talking about ONAS. 9 Q: I'm asking you something very 10 different, sir. You indicated that you would not have 11 made that comment to Ron Fox if you knew that he was a 12 police officer; that's your sworn testimony, right? 13 A: That's correct. 14 Q: Right. And the reason why, according 15 to you, you would not have said that to Ron Fox had you 16 known that he was a police officer, is that a comment 17 that it's easier to avoid these situations by preventing 18 occupations from occurring than to remove people 19 afterwards, is that it would be taken, potentially, as a 20 criticism of the police conduct to date; fair enough? 21 A: I believe my concern was even more 22 basic than that. Are we making an assumption that he had 23 operational responsibility? 24 Q: Well, I've just asked you if you -- 25 if you feel you can't answer the question, that's fine.
821 What I've just suggested to you is -- 2 A: My answer -- 3 Q: -- a fairly self evident proposition, 4 which is that the reason why you wouldn't be saying that 5 to a police officer is for fear of being interpreted as 6 critiquing the police operation. 7 Now, am I right or am I wrong about that? 8 A: I wasn't thinking of it in those 9 terms when I answered the question earlier. I was 10 thinking of it in terms of a police officer with 11 operational responsibilities, I wouldn't have talked to. 12 Q: All right. Well we've got your 13 answer. Now, Ron Fox also recounts, in the taped 14 conversation, that during his briefing on the situation 15 he confirmed that between fifty (50) to hundred (100) 16 shots had been heard over night and that he had a 17 discussion with you about whether this was semi-automatic 18 or automatic fire. And Fox said there was no evidence 19 that the guns were pointed at anybody or used in an 20 untoward fashion. 21 Now, you've denied that you had that 22 dialogue with Ron Fox? 23 A: That's correct. 24 Q: Well, let's examine that for a 25 moment. You don't recollect the content of Ron Fox's
831 briefing other than the meeting was assured that the 2 situation was stable; am I right? 3 A: That's fairly correct. I know he 4 gave, you know, a couple of minute presentation. 5 Q: Correct. And in the course of those 6 couple of minutes, I'm going to suggest to you that he 7 probably did talk about the gunfire heard the night 8 before. 9 A: That's possible. I don't recall it, 10 but it's possible. 11 Q: All right. Did you -- because I want 12 to be clear what you're denying and what you're simply 13 saying you can't recollect and that Ron Fox's 14 conversation doesn't assist you on. 15 It is possible and indeed probable, I'm 16 going to suggest, that Ron Fox described the gunfire that 17 had been heard the night before, as part of the briefing. 18 Do you deny that? 19 A: No, I don't deny that, no. 20 Q: Fair enough. And if he did, he may 21 have well have described the number of shots heard and 22 that there may well have been a dialogue about semi- 23 automatic as opposed to automatic fire. 24 Do you deny that? 25 A: I don't believe I was present when he
841 talked about that. I recall hearing about that from Jeff 2 Bangs in a briefing of what took place in the 3 Interministerial Committee, but I don't recall hearing 4 that directly from Mr. Fox, no. 5 Q: All right. So you don't recollect 6 it. Do you deny that, at the course of the dining room 7 meeting, that Ron Fox discussed -- leave aside your role 8 in that for a moment, discussed the distinction between 9 semi-automatic and automatic fire? 10 I just want the benefit of -- 11 A: No, I -- 12 Q: -- your evidence. 13 A: I deny that. My recollection -- 14 Q: You deny that? 15 A: -- of that is from Jeff Bangs. 16 Q: All right. So that didn't happen? 17 A: I don't think that happened, no. 18 Q: And now you would be concerned about 19 gun play within the Park, would you not? 20 A: Well, at that time, it was rumours 21 that there was gun -- gun play. 22 Q: All right. I'll take that answer. 23 Were you concerned about the possibility of gunfire 24 within your Park? 25 A: Not particularly, no.
851 Q: No. So that if somebody told you 2 that -- leave aside your recollection about what was and 3 wasn't said, if somebody had told you that -- that there 4 were reports of gunfire, whether automatic or semi- 5 automatic, fifty (50) to hundred (100) rounds within the 6 Park the night before, that wouldn't concern you? 7 A: I would have assumed the police were 8 handling that. 9 Q: So it would not have concerned you, 10 that's your answer? 11 A: Correct. 12 Q: All right. And you testified that -- 13 that you remember Jeff explaining to Ron and to you that 14 the discussion at the Interministerial Committee Meeting 15 was around the difference between an automatic and a 16 semi-automatic gun. And you were asked what was the 17 significance of that and you couldn't figure that out, 18 either. 19 Do I accurately have that? 20 A: That's correct. 21 Q: Now, again, in fairness, there's 22 nothing that you've heard in Ron Fox's tape that assists 23 in refreshing your memory, for the first time here, about 24 that conversation with Ron Vrancart and Jeff Briggs 25 (sic), am I right?
861 A: No, no. 2 Q: Fair enough. Now, what I'm going to 3 suggest to you is, here you are, articulating for 4 Commissioner Linden, that -- that you couldn't figure out 5 the significance of the difference between an automatic 6 and semi-automatic gun, right? 7 A: Right. 8 Q: Right. So does it not make sense, 9 I'm going to suggest to you, very respectfully, that your 10 inability to figure out the significance of that may have 11 generated a question from you to Ron Fox about it? 12 A: No. I'm familiar with both types of 13 weapons and the one is as fast as you can pull the 14 trigger, the other you just hold the trigger. I don't 15 see the significance of it. Whether it's a semi- 16 automatic or an automatic, it's still a gun. 17 Q: It's still a gun. So -- so you 18 wouldn't have been interested enough, had the topic come 19 up to pose a question to Ron Fox about it. That's your 20 evidence. 21 A: Absolutely not. 22 Q: Fair enough. Now back to Ron Fox's 23 recollection. Ron Fox said that this is a property 24 dispute, we're going to see at the end of the day a 25 disused Provincial Park closed for the season, people
871 involved in mischief. The police know what mischief is. 2 It sounds like the kind of stuff our kids get involved 3 in. 4 Now again, leaving aside where the 5 discussion took place, because your evidence is -- is 6 clear as to where you think it took place, you'd agree 7 with me that Ron Fox said those kinds of things at the 8 meeting that you attended; am I right? 9 A: Some of those things. 10 Q: Well, there was discussion about the 11 fact that there's a disused Provincial Park closed for 12 the season; am I right? 13 A: I never heard that. 14 Q: There -- there was discussion about 15 these people are simply involved in mischief and police 16 know what mischief is, right? 17 A: No it wasn't worded like that. 18 Q: Well, I thought that you had 19 indicated to Ms. Vella that police know what mischief is 20 and about criminal offences and so on. 21 There was conversation around that and it 22 wouldn't look good in the newspapers. 23 A: That's correct. 24 Q: Right. All right. So -- so here was 25 a fellow --
881 A: He didn't -- he didn't -- just to be 2 -- clarify that for you, he didn't say that these people 3 are involved in mischief. He said that the police know 4 what mischief is. 5 Q: All right. And this is from a person 6 who -- who, according to you, wasn't a police officer. 7 A: That's right. 8 Q: But he's saying police know what 9 mischief is and about criminal offences and there was 10 conversation around that and that it wouldn't look good 11 in the newspaper; am I right? 12 A: Yes. 13 Q: Okay. And what wouldn't look good in 14 the newspaper was the suggestion that -- that the police 15 go into the Park and -- and arrest these individuals for 16 these kinds of offences, like mischief, right? 17 A: I'm assuming that, yes. 18 Q: Fair enough. And this was Ron Fox 19 that was advising you of that. 20 A: Well he was advising the room. I 21 don't believe I asked the question, it was somebody off 22 to the side or behind that had asked the question, yes. 23 Q: Now Ron Fox said, in a dialogue with 24 you, I'm going to suggest: 25 "I've just been told that I can have no
891 influence over the police doing --" 2 I'm sorry, that you said, in the course of 3 your dialogue with Ron Fox: 4 "I've just been told that I can have no 5 influence over the police doing their 6 job, so I'm suggesting you let me worry 7 about the political ramifications." 8 He responded: 9 I'm not making a political statement, 10 giving you a bite of reality." 11 The tenure of that conversation, not word 12 for word, did in fact take place, did it not? 13 A: I never said, I've just been told. I 14 said, on behalf of the room, We shouldn't be talking 15 about policing issues and he shouldn't be talking about 16 politics. That was my opinion. 17 Q: Well, let's -- 18 A: And then he responded, fairly 19 accurately to that, that he was just talking about 20 reality. 21 Q: So he was saying, I'm giving you a 22 bite of reality, I'm not making a political statement. 23 He may very well have said -- 24 A: That's correct. 25 Q: -- those precise words.
901 A: Yes. 2 Q: All right. 3 A: Fairly close to that. 4 Q: Now, I just want to discuss with you 5 and break down, if I may, what it is that -- that you 6 were talking about here. 7 You said that -- that one of the things 8 that you indicated to him was that -- was that we 9 shouldn't be talking about police matters. 10 A: Hmm hmm. 11 Q: What -- what was it that he had said 12 that generated that purported caution on your part? 13 A: It wasn't something he said, it was 14 some of the questions that were being asked around the 15 room on other options to an injunction. Some people were 16 suggesting that, you know, if this isn't a recognized 17 First Nation, are we dealing with a First Nation issue or 18 just, you know, what would happen if somebody else broke 19 the law, what -- what would take place. 20 And somebody else said, you know, could 21 you not just make arrests on -- on trespassing? And 22 that's wrong answer to that. And I said, look we 23 shouldn't be talking about police issues and you 24 shouldn't be talking about politics. 25 That's the extent of that exchange.
911 Q: Well, I'm just trying to understand 2 this because here, at an Interministerial Committee 3 Meeting, as you understood it, one of the things that the 4 Interministerial Committee had to do was evaluate what 5 action the Government should take in response to this 6 incident; am I right? 7 A: I would assume that, yes. 8 Q: Right. And one of the things that 9 the Government had to be informed on is the situation on 10 the ground, in order to determine, for example, whether 11 injunc -- injunctive relief should be sought. 12 Am I right? 13 A: Hmm hmm. 14 Q: So, that when we talk in the abstract 15 about operational information not being shared, I mean I 16 take it you would agree with me that you'd expect the 17 Interministerial Committee Meeting to be provided with a 18 description of what was going on on the ground and the 19 options that were available in order for Government to be 20 informed on its choices, fair enough? 21 A: Okay. 22 Q: Right. So I go back to my original 23 question. At an Interministerial Committee Meeting, on 24 your evidence, what was it that Ron Fox or anyone else 25 was saying that according to you was inappropriate and --
921 and had to be shut off by a caution from you? I don't 2 understand that. 3 A: That was questions around, Could you 4 not just go in and make arrests? They started to ask 5 different questions from different parts of the room and 6 Ron answered with a lengthy answer about how it wouldn't 7 look good in the papers. And that's when I just chipped 8 in that piece of advice. 9 Q: Now, you're aware that nobody else 10 who was at that Interministerial Committee Meeting 11 recalls you providing some sort of a caution not to talk 12 about -- not to talk about police operational matters? 13 You know that? 14 A: I'm -- that's fine. 15 Q: And -- and I read to you a little 16 earlier on that Ron Fox described you as saying: 17 "I've just been told that I can have no 18 influence over the police doing their 19 job." 20 Now, stopping there for a moment, we've 21 heard evidence that at the dining room meeting that the 22 Deputy Minister Elaine Todres and/or Deputy Minister 23 Larry Taman provided that caution to the Ministers at the 24 meeting. 25 Do you deny that?
931 A: No, that's possible. That caution 2 was issued and it was common understanding in both 3 meetings I was at. 4 Q: All right. So, do you recall what 5 the circumstances might have been under which -- this 6 common knowledge to the Ministers would nonetheless being 7 imparted by Deputy Ministers at the dining room meeting? 8 A: I can't recall that, no. 9 Q: You can't recall. And of course if 10 it was relayed in the way that -- that you say is 11 possible and as was described by Larry Taman and Elaine 12 Todres then you would have just been told that would you 13 not? 14 A: And I would have been -- I understood 15 it before I got into politics. 16 Q: But you would have just been told 17 that would you not? 18 A: You're assuming that they said that 19 at the meeting that we were at? Or are we talking about 20 the dining room meeting right now? 21 Q: Yes. 22 A: Yes. 23 Q: Okay. Now, what I also want to 24 understand is that here you're saying to Ron Fox, and 25 your recollection in this regard isn't terribly different
941 from Ron Fox's, that in effect you let -- I'll deal with 2 the political matters or I'll deal with the political 3 ramifications or something along those lines? 4 A: No. 5 Q: You're saying that -- that -- 6 A: No. 7 Q: -- the IMC should have nothing to say 8 about political matters? 9 A: Basically. 10 Q: So, now I'm trying to understand what 11 was it that was going on at the IMC that would cause you 12 to administer a caution not to talk about even political 13 matters at that meeting? 14 A: Well, normally at all meetings we 15 drew the line, whether it was Cabinet or briefings with 16 Civil Service, the political level didn't talk politics 17 at meetings. 18 Q: But, what I'm trying to understand is 19 what it was that was being said at that meeting that in 20 your view infringed this principle that political matters 21 ought not to be discussed even at the Interministerial 22 Committee Meeting. 23 A: That might be too strong a word for 24 it. I just didn't feel that Mr. Fox needed to be talking 25 about politics. We were there to discuss the situation
951 around Ipperwash and talking about the optics, how it 2 wouldn't look good in the news or this option wouldn't 3 look good in the papers. 4 Q: Well, now -- 5 A: I just thought from the Civil Service 6 side that we didn't need to be talking about that. 7 8 (BRIEF PAUSE) 9 10 Q: Now, Ron Fox, according to the tape, 11 described you as saying that: 12 "If we can -- if we get the enjoining 13 hour -- order how long will the police 14 sit on it? Two (2) weeks? I was told 15 that the police knew about this before 16 it happened." 17 Ron Fox said: 18 "That's not correct. 19 Well, that's my information. 20 Well, with respect it's wrong." 21 And then Ron Fox describes a discussion 22 about it having been the next logical step. He had 23 discussions with the Incident Commander about that. 24 There was a contingency plan in place. And then the 25 Minister got into:
961 "Well, why didn't the police stop it? 2 I understand that they were at the Park 3 at the time." 4 And he said: 5 "Let's put that into perspective." 6 And then there was some discussion about 7 limited police resources. 8 Now, you've denied that parts of that 9 conversation took place, so again I want to tease out 10 what it is that's truly being denied here and what 11 substance of the conversation, in fact, did take place. 12 First of all, that -- had Ron Fox 13 indicated to you that he had discussions with the 14 incident commander about these matters that would have 15 signalled that you knew that he was a police officer. 16 So, you deny that that took place? 17 A: It totally didn't take place. Yeah. 18 Q: All right. Now, you had been told by 19 your staff that -- that the occupiers might take over the 20 Park, right? 21 A: Yes. 22 Q: And you had been told as well, that 23 the police were in the Park, prior to the occupation, 24 correct? 25 A: Yes.
971 Q: And one of the things that you did 2 think was that why hadn't the occupation been stopped, 3 because you did understand that the police were in the 4 Park at the time? 5 A: No, I understood they were in the 6 Park for campers' safety as undercover officers back in 7 early August is my understanding. 8 Q: But what I'm suggesting to you is 9 that apart from what you did or didn't say to Ron Fox, 10 and Commissioner Linden will have to deal with the 11 evidence on that, you did think why was it that the 12 police didn't stop it, because they had been in the 13 Park -- 14 A: No, I don't -- 15 Q: -- at the time. 16 A: I don't recall thinking that at all. 17 I remember thinking, what had ONAS done? They'd had a 18 meeting of the Interministerial on August 2nd. 19 Any time we asked about issues throughout 20 the summer, I was told this is not an MNR issue, this is 21 -- barricades committee and the police are monitoring it 22 on the ground. 23 Q: Well, it's interesting you say that-- 24 A: I always viewed this issue as a 25 Federal issue.
981 Q: Well, we're kind of mixing a few 2 things in there. One of the things that you've told Ms. 3 Vella is, 4 "I wondered what he, [and this is Ron 5 Fox], had been doing to prevent the 6 situation from occurring." 7 Now, so one of the sentiments that you 8 were expressing, and leaving aside what role Ron Fox was 9 playing for a moment, was the concern that he had not 10 done enough to prevent the situation from occurring, am I 11 right? 12 A: Yeah, but I don't think you can leave 13 aside his role. I assumed he was the head of the 14 Interministerial Committee working for ONAS at that time. 15 Q: So, let me ask you this: If -- if 16 you had known that he was a police officer, would you 17 have said to him or expressed concern about what he had 18 done to prevent the situation from occurring? 19 A: So, are you saying he had operational 20 responsibility? 21 Q: Well, I'm just asking a question now. 22 A: -- for -- 23 Q: If you'd known that he was a police 24 officer in any capacity, would you have expressed the 25 concern as to what he had been doing to prevent the
991 situation from occurring? 2 A: No I wouldn't have. 3 Q: No. Why not? 4 A: Because I wouldn't have talked to the 5 police. I was pretty clear on the distinction between 6 police and -- and elected politicians on operational 7 matters. 8 Q: And -- and if I may say so, it's a 9 fairly confrontational thing to say to someone, to ponder 10 what they've been doing to prevent the situation from 11 occurring in the first place. 12 Were you frustrated? 13 A: No, not particularly. 14 Q: So, that -- 15 A: He'd just told me that that was a 16 reality. And I pointed out that the reality also was, 17 you knew you had an issue here for some time, I might not 18 have been as eloquent as I probably should have, and 19 what's -- you know, what was done to prevent this? 20 And he gave a long response to that. But, 21 I wouldn't say it was an argumentative meeting. 22 Q: All right. But what I'm going to 23 suggest is, that you were expressing your frustration, 24 whether he's at ONAS or whether he's a police officer or 25 what have you, your frustration over the fact that he or
1001 others had not done something to prevent the situation 2 from occurring. 3 Isn't that fair? 4 A: No, I just asked the question, what-- 5 Q: Just asked -- 6 A: Yeah, what -- what -- the reality is, 7 you knew that there's a situation here, what's -- what 8 was done? 9 Q: So you didn't ask -- 10 A: And -- 11 Q: -- it out of any -- 12 A: It's easier -- 13 Q: -- it was curiosity -- 14 A: -- in my opinion, to prevent these 15 things than it is to try to remove people. 16 Q: So you asked it out of curiosity, not 17 of any frustration or -- or anger? 18 A: I don't recall being angry. 19 Q: So, the answer to my question is that 20 you asked it out of curiosity, not out of any frustration 21 or anger? 22 A: Yes. 23 Q: All right. Now, he gave an answer: 24 "About a thousand (1,000) officers 25 linked arm to arm could not prevent the
1011 occupation." 2 Right? 3 A: That's correct. 4 Q: And not terribly different, in that 5 respect, to what Ron Fox had had to say in the taped 6 conversation. 7 Well, let me ask you that: That was a 8 policing answer to the question that you posed? 9 A: That's right. 10 Q: And did that give you some cause for 11 reflection as to who it was that Ron Fox was? 12 A: No, it didn't. I remember just 13 letting it drop. I knew at that time I wasn't going to 14 be the spokesperson, even if he had recommended I was, 15 and I'd made my point earlier in the meeting. 16 So, I just let it drop and we were -- we 17 left. The meeting was almost over. 18 Q: So, when you say that he gave a 19 police answer to a -- to a question, the perspective he 20 gave to you in responding to the question was apparent -- 21 apparently being defensive about whether the police were 22 at fault for the occupation having occurred? 23 A: That's fair. We were -- 24 Q: Fair. 25 A: -- we weren't communicating very
1021 well. 2 Q: All right. And -- and you appreciate 3 now that, knowing that he's a police officer, that that 4 could reasonably be taken as a criticism of the police 5 operations that had taken place to-date? 6 A: In hindsight I can see exactly where 7 he's coming from today. And I probably should have made 8 myself a little clearer at the time, but I had no idea 9 that he was a police officer or acting as a police 10 officer. 11 Q: Now, Scott Patrick testified that at 12 the dining room meeting, that you were quite angry that 13 your officials had been assured by the OPP that the 14 Park's occupation could be prevented; that you were the 15 property owner; that it was your Park and that you wanted 16 it back. 17 And, of course, that's consistent with 18 what Ms. Todres has described as -- as something that you 19 said at the dining room meeting as well. 20 Is it still your evidence that you 21 remained absolutely mum at that dining room meeting? 22 A: Yes, it is. 23 Q: And you have a vivid and certain 24 recollection -- 25 A: Yes.
1031 Q: -- that you said not a word at that 2 dining room meeting? 3 A: Yes, I do. 4 Q: Even against the background of all 5 the limitations in your recollection that we've described 6 at the beginning of this cross-examination? 7 A: Yes. I remember that meeting fairly 8 accurately in terms of Larry Taman stating that Charlie 9 Harnick was going to be the Government spokesperson and I 10 stand by that. 11 Q: All right. Now one of the things 12 that you said was said at that meeting was that it was 13 the Premier that expressed the caution not to be 14 interfering with police operations? 15 A: I believe that's how we ended the 16 meeting. 17 Q: All right. Now, is that an equally 18 vivid and certain recollection that you have? 19 A: Yes. 20 Q: Now, you knew that when you were 21 examined for Discovery back in 2001 that political 22 interference was the issue of the day, correct? 23 A: I believe that, yeah. 24 Q: Yeah. And did you say at any spot in 25 your examination-for-discovery that -- that the Premier
1041 had said anything more than this was a police matter and, 2 indeed, had expressed caution that we ought not to 3 interfere with an ongoing police investigation or 4 operation? 5 A: Yeah, I've remembered that. 6 Q: Pardon me? 7 A: I believe so. 8 Q: So, you believe that in your 9 examination- for-discovery that -- that you indicated 10 that the Premier cautioned the assembled parties not to 11 interfere -- 12 A: Well, you're the one -- well, let 13 me -- 14 Q: Hear my question first. 15 A: Yeah, okay. 16 Q: -- that the Premier cautioned the 17 assembled parties against interfering with an ongoing 18 police operation. 19 A: I don't ever recall using the word, 20 'the Premier cautioned'. I do recall stating that the 21 Premier mentioned that he understood this was a police 22 matter -- 23 Q: Right. 24 A: -- and that he or anyone else on the 25 political level not interfere or give direction.
1051 Q: Okay. And what I'm asking you is. 2 And we can file the exact -- the entire examination-for- 3 discovery, what I'm going to suggest to you is that you 4 never said in your examination-for-discovery that the 5 Premier said that we are not to interfere in the police 6 operation? 7 A: Well -- 8 Q: Just never said it? 9 A: I'm pretty sure I would have said 10 what the Premier said in terms of this being a police 11 matter. 12 Q: Yes, and I've agreed with you as to 13 that. 14 A: Yeah, I might not have been as 15 fulsome on what he talked about but I do recall -- I 16 don't think my opinion's changed since then. 17 Mr. Klippenstein can correct me -- 18 Q: Well, I suspect he may well. 19 A: Hmm hmm. 20 Q: Now, just going back to the 21 recollection that others have had as to -- as to your 22 involvement in the dining room meeting, first of all, the 23 Premier did say that the longer the occupation went on, 24 the more dangerous it was, right? 25 A: I believe there was a general concern
1061 about escalation and it was thought that it was going to, 2 maybe widen out to affect the roads around the Park or 3 the Military Base, including Highway 21. 4 You -- sort of the -- the backdrop to this 5 was that, you know, in '93 there had been an occupation 6 of an unoccupied part of the Military Camp. And then in 7 '95 that had moved into the occupied part of the Military 8 Camp, in the fall, and moved over to the Park, and still 9 the Federal Government wasn't responding. 10 And there was sort of a general, shared 11 view that they probably weren't going to respond if it 12 was a provincial park and a provincial issue, that this 13 could very well widen. And so there was a concern around 14 the escalation. 15 Q: All right. And I believe you are 16 agreeing with me that the Premier said that the longer it 17 went on the more dangerous it was; it could escalate, 18 right? 19 A: That's the -- the context of it, yes. 20 Q: Of course. And that resonated with 21 you? 22 A: I think it was a shared view by many, 23 yes. 24 Q: Including you? 25 A: Hmm hmm.
1071 Q: And no doubt the Premier wanted the 2 occupiers removed as soon as possible and expressed that 3 view? 4 A: Wanted the resolution to the issue as 5 soon as possible, yes. 6 Q: Well, the resolution of the issue 7 included the removal of the occupiers as soon as 8 possible; fair enough? 9 A: Well, I think we were -- the context 10 of that meeting was it was an information meeting on what 11 the Attorney General was doing and so it would be in the 12 context of the Attorney General's recommendations. 13 Q: But one (1) of the points that -- 14 that you were fed, prior to the media scrum that you 15 participated in, was the desire of the Government to 16 remove the occupiers as soon as possible; that's all I'm 17 asking. 18 A: Oh, okay. That -- 19 Q: And you agree? 20 A: -- no assumptions, yes. 21 Q: All right. And Larry Taman testified 22 here that -- that during the dining room meeting he had a 23 dialogue with the Premier, that the Premier expressed the 24 view that the would have thought that the police would 25 have the First Nations citizens out of the Park by this
1081 time. Mr. Taman told him that he didn't think that was 2 necessarily so, it could be better police practice to 3 wait. 4 Mr. Taman gave testimony that, according 5 to the Premier, other police forces could have done a 6 better job, in effect. And that the Premier said -- what 7 he said was consistent with the sense that the OPP had 8 made mistakes and they should have done something right 9 at the time. If this were any other country or any other 10 setting the police would have acted more quickly. 11 And David Moran testified here that the 12 substance of the Premier's comments was that he was 13 disappointed that the OPP had allowed the situation to 14 get this far. He described the tone of the meeting as a 15 somewhat tense situation. The Premier felt strongly 16 about the issue. 17 A: Yeah. 18 Q: Do those accurately reflect what 19 transpired at that meeting? 20 A: Not in my recollection, no. 21 Q: What -- 22 A: The general sentiment was that there 23 was a frustration that the situation had developed the 24 way it had, but I don't ever recall a criticism of the 25 OPP.
1091 Q: All right. But, what I'm asking you 2 is: Do -- do you deny the substance of what Mr. Taman 3 and Mr. Moran described as having taken place at that 4 meeting? 5 A: If they're saying -- 6 Q: I mean, did it not happen or is it 7 just simply one (1) aspect of the meeting that you can't 8 recollect, one (1) way or the other? 9 A: No, if -- if there was -- if the 10 question, if I understand it correctly, is, was there a 11 criticism of the Ontario Provincial Police at that 12 meeting, the answer is no. 13 Q: All right. So that when Mr. Taman 14 said that, in his dialogue with the Premier, that the 15 Premier expressed the view that he would have thought the 16 police had the First Nation citizens out of the Park by 17 this time, was that sentiment expressed? 18 A: Not that I recall, no. 19 Q: And that Mr. Taman said he didn't 20 think that was necessarily so; it could be better police 21 practice to wait? 22 Did Mr. Taman provide that cautionary 23 note? 24 A: Not that I recall. All I recall Mr. 25 Taman talking about is the injunction.
1101 Q: And was there a dialogue about other 2 police forces could have done a better job, in effect? 3 A: No. 4 Q: No? You absolutely deny that? 5 A: I didn't hear that, no. 6 Q: Okay. Now, in the minutes of the 7 Interministerial Committee of September the 6th, part of 8 that has been read to you, where it says: 9 "The Minister wants to act as quickly 10 as possible to avoid further damage and 11 to curtail any escalation of the 12 situation." 13 And your testimony, in response to 14 questions from Ms. Vella, was that -- that you don't 15 recall authorizing that position to be articulated on 16 your behalf, one (1) way or the other. 17 Do I have that right? 18 A: That's correct. 19 Q: Well, apart from whether you 20 specifically authorized that position, that did 21 accurately reflect your view of the matter, did it not? 22 A: Well, I think it was a little harsher 23 than what I would have been thinking about at the time, 24 to be honest. I don't recall saying that until we were 25 working on this Inquiry the other day.
1111 Q: What -- what was it that -- that -- 2 A: Which tab are you talking about, that 3 I can refer to specifically? 4 Q: This is at Tab 26. And this is 5 document 1011766. 6 A: And it's page 2, right? Under 7 Section 3, Minister's Directive? 8 Q: Right. 9 A: I don't ever recall somebody asking 10 me my opinion on what direction should be given. 11 Q: All right. And I -- I've got your 12 evidence on that. 13 A: Yeah. 14 Q: I simply asked you, if you actually 15 look at the substance of the comment, apart from the 16 issue of authorization: 17 "The Minister wants to act as quickly 18 as possible to avoid further damage and 19 to curtail any escalation of the 20 situation." 21 I mean that fairly represents your views, 22 does it not? 23 A: Not entirely. The escalation of the 24 situation, definitely. That was the general government 25 concern. To avoid further damage, I think -- I'm not
1121 sure what that's referring to. 2 The water system couldn't be -- could be 3 winterized in November or December. There was no urgency 4 on that. So I don't really -- so I don't remember ever 5 having a specific discussion on, you know, the material 6 effects of the occupation on the physical structure, 7 other than the water. 8 Q: So, you deny that you had ever been 9 briefed on any destruction that was allegedly taking 10 place within the Park and expressed any concern about it, 11 prior to September the 6th? 12 A: No. My understanding was that we 13 were going to get information on what was damaged and 14 what wasn't. And we didn't have that information at that 15 time, as I recall. 16 Q: All right. That's your evidence. 17 Now Ron Fox also said, in the tape, and this was read to 18 you this morning, that: 19 "The Premier is adamant this is not an 20 issue of Native rights. I mean we've 21 tried to pacify and pander to these 22 people for too long, it's now time for 23 swift, affirmative action." 24 Now, leave aside the rhetoric or the -- or 25 the precise words that were used, I'm going to suggest
1131 that the substance of that message was indeed the 2 Premier's view. He felt strongly that this was not an 3 issue of Native rights and that the occupiers ought not 4 to be pacified. 5 Isn't that fair? 6 A: You'll have to ask the Premier. If 7 you're asking me to disregard the language and the tone 8 and the substance about the general meaning, you'll have 9 to ask the Premier. I don't recall that. 10 Q: The message that was being 11 communicated by the Premier, in the dining room meeting, 12 was that this was not an issue of Native rights. Let's 13 start there. A position with which you agreed. 14 A: I -- I don't recall that discussion 15 had taken place, other than in the context of: The 16 recognized First Nation was the Chief did not approve of 17 the occupation and this was an unrecognized dissident 18 group; was how it was always described in our briefings. 19 Q: Well did you regard the occupation of 20 the Park as an issue of Native Rights? 21 A: Not counsel to counsel, I wouldn't 22 say that, no. 23 Q: No. And -- and was a concern 24 expressed, again leaving aside the language and the tone 25 for a moment, that -- that the Government ought not to
1141 take action in relation to the occupiers that would be 2 regarded as coddling them or being accepting of criminal 3 activity? 4 A: I don't recall that. My recollection 5 is we were talking about the injunction and the Attorney 6 General's recommendations. 7 Q: So you -- you don't even acknowledge 8 that that was even a tone or a sub text of what was being 9 said at that meeting? 10 A: I just don't recall that. 11 Q: And Ron Fox recounted to -- to Julie 12 Jai that it appeared that a decision to pursue the 13 injunction, ex part, had already been made. 14 And again, that accords with your 15 recollection that it appeared that the decision to pursue 16 the injunction as soon as possible had already been made 17 prior to the dining room meeting; am I right? 18 A: That was my assumption, yes. 19 Q: Now -- 20 A: That this was an information meeting. 21 Q: We can agree that Ron Fox remained 22 professional and calm throughout his encounter with you, 23 wherever and whenever it took place? 24 A: Yes, we do agree on that. 25 Q: And, in fairness, we can agree that
1151 there was never any direction by the Premier, whatever 2 his views, for the police to take any particular action? 3 A: That's correct. 4 Q: And that was so at the dining room 5 meeting or at any other encounter that you had with the 6 Premier? 7 A: I didn't have any other encounters 8 with the Premier. 9 Q: Fair enough. When you went home for 10 the day, or left the meeting on September the 6th, I'm 11 going to suggest, and we've heard this from some of the 12 others who attended the dining room meeting, that the 13 expectation was that the police would stay the course, 14 contain the occupation and await the outcome of the 15 injunction application, correct? 16 A: That's correct. 17 Q: All right. And that nothing that 18 occurred during the course of that dining room meeting 19 gave you any indication that the police would be sent 20 down the road later that same night; am I right? 21 A: Yes, that's correct. 22 Q: Now, I just want to be clear on -- on 23 your evidence about Ron Fox's status as an OPP officer. 24 You testified that you were unaware that he was an OPP 25 officer seconded to the Solicitor General; am I right?
1161 A: That's correct. 2 Q: Now, you testified, in response to 3 questions from Ms. Vella, that you thought he was from 4 ONAS and the Chair of the Interministerial Committee 5 Meeting and that you said that you learned a couple of 6 hours later, at the dining room meeting, that he had been 7 seconded to the Solicitor General, but you thought 8 seconded from ONAS. 9 Do I have that right? 10 A: That's correct. 11 Q: And that you only became aware of the 12 fact that he was a police officer some three (3) months 13 later? 14 A: Yeah, I could stand to be corrected 15 on the three (3) months. I know it was a question in the 16 Legislature about Mr. Fox and it was referred to him as a 17 police officer. That was the first time that I'd ever 18 heard that he was connected to the police. 19 Q: Well, you've anticipated my next 20 question, because I want to be clear on this, because at 21 the examination for discovery in 2001, at page 116, you 22 said you didn't know Ron Fox was a police officer until 23 2001, when you read it in the newspaper. 24 You thought he was Ministry staff and that 25 was your testimony at the examination for discovery.
1171 Q: That's probably accurate. That might 2 have been -- that was raised in the House. I thought it 3 was three (3) months, it might have been two (2) years. 4 I don't know. 5 But I do know that I was surprised and I 6 learned about it in the Legislature. 7 Q: And at the examination for discovery, 8 you testified, at page 101, that you knew Ron Fox as a 9 Ministry staff person at the time, that's how you knew 10 him. 11 A: I did in 2001. 12 Q: At page -- pardon me? 13 A: In 2001, that's how I recalled him 14 being at the dining room meeting. 15 Q: All right. And you testified, at 16 page 132, that you knew who Ron Fox was when you went 17 into the dining room, from management board or around the 18 Government with the Solicitor General's Ministry. 19 A: I don't recall that. 20 Q: All right. Well, let me ask you 21 this: I mean, did you have any recollection back at the 22 examination for discovery, that you knew Ron Fox because 23 you had a dialogue with him minutes before at an 24 Interministerial Committee Meeting? 25 A: No, I didn't. I didn't remember that
1181 at all. 2 Q: Okay. 3 4 (BRIEF PAUSE) 5 6 Q: I just want to ask you about one (1) 7 other thing, if I may, and take you to Tab 60 of the 8 materials that you have in front of you. 9 10 (BRIEF PAUSE) 11 12 Q: And Ms. Vella asked you about this 13 document a little bit earlier in the day. It's a draft, 14 and there are a number of drafts, I can tell you, Mr. 15 Hodgson, of this document, but this is but one of them. 16 And the differences are inconsequential 17 for the purposes of my questions. 18 This is a review of the 1995 hostile 19 occupations at Ipperwash and Serpent Mounds Provincial 20 Parks. 21 And if I can take you to page 6 of the 22 document. 23 COMMISSIONER SIDNEY LINDEN: This is 24 Exhibit 1018. 25 MR. MARK SANDLER: 1018, yes.
1191 COMMISSIONER SIDNEY LINDEN: Right. 2 3 CONTINUED BY MR. MARK SANDLER: 4 Q: Another form of it is also P-824. 5 MS. SUSAN VELLA: 802. 6 MR. MARK SANDLER: And 802. 7 8 (BRIEF PAUSE) 9 10 COMMISSIONER SIDNEY LINDEN: Page 6. 11 MR. MARK SANDLER: We're expecting, in 12 your final report, Commissioner, that you do a detailed 13 analysis of the difference between the three (3) 14 documents that you have. 15 COMMISSIONER SIDNEY LINDEN: I think 16 we've got enough to do. 17 18 CONTINUED BY MR. MARK SANDLER: 19 Q: I simply want to establish with you, 20 if I may, some of the chronology surrounding Serpent 21 Mounds Provincial Park, all right? 22 And I -- and I wish to do that with the 23 benefit of this document, where someone at MNR has 24 summarized part of that chronology, okay? 25 It reflects, in the first paragraph:
1201 "For the past forty (40) years, Serpent 2 Mounds Provincial Park has been 3 operating under a lease agreement 4 involving the Hiawatha First Nation. 5 Approximately 27 percent of the Park, 6 including visitor facilities and use 7 areas, lies within First Nations 8 reserve land. The Park is classified 9 as a historical provincial park in 10 recognition of the site's rich Native 11 heritage, including burial grounds 12 dating back over two thousand (2,000) 13 years. The lease expired on June the 14 1st, 1995 and an interim lease was 15 agreed upon pending a decision on the 16 future of the arrangements." 17 Now, stopping there for a moment. So what 18 we know is, prior to September of 1995 there was a lease 19 agreement as between the Hiawatha First Nation and the 20 Province of Ontario. 21 Am I right so far? 22 A: I'm -- I'm seeing this for the first 23 time, basically. I haven't seen this before. It 24 actually reads: 25 "The lease expired on June 1st, '95 and
1211 an interim lease --" 2 Q: And an interim lease was agreed upon? 3 A: "-- pending a decision on the future 4 of this arrangement." 5 Q: See, what I'm going to suggest to you 6 is -- is simply this: That prior to September of 1995, 7 there had been an arrangement in place between the 8 Hiawatha First Nation and the Provincial Government 9 whereby the Park was owned by the Hiawatha First Nation 10 but managed by MNR. 11 Am I not right as to that? 12 A: 27 percent of the Park. The rest of 13 the -- 14 Q: 27 percent of the Park? 15 A: The rest of the Park was on Crown 16 land, provincially owned. 17 Q: All right. So the Park was co- 18 managed, was it not? 19 A: Co-owned? 20 Q: And co-managed. 21 A: Not at that time. 22 Q: Well, this is what I'm trying to 23 understand. Under the least agreement, the part that was 24 owned by the Hiawatha First Nation was managed by the 25 MNR; am I right?
1221 A: The whole Park was managed by the 2 MNR. 3 Q: Right. 4 A: Yes. 5 Q: So it's managed by the MNR and -- and 6 owned, at least in part, by the Hiawatha First Nation; am 7 I right? 8 A: Yes. 9 Q: And that was an arrangement that was 10 in place, whether -- and I take your point -- whether 11 that can be strictly characterized as a co-management 12 agreement or not, but that was an arrangement that was in 13 place as between the Province of Ontario and the Hiawatha 14 First Nation, prior to the events of September of 1995; 15 am I right? 16 A: Yes, but I wouldn't -- I've never 17 heard it characterized as co-management. 18 Q: Fair enough. 19 A: Okay. 20 Q: But I'm simply saying that the 21 Province and the Hiawatha First Nation had come to an 22 accommodation which had existed for many years -- 23 A: Forty (40) years according to this. 24 Q: -- which involved -- 25 A: No.
1231 Q: -- which -- right, for forty (40) 2 years? 3 A: Hmm hmm. 4 Q: As reflected here. And -- and the 5 second paragraph reflects: 6 "The Hiawatha First Nation was one (1) 7 of the seven (7) Williams Treaty First 8 Nations treaty in which those natives 9 surrendered their hunting and fishing 10 rights, that signed Community 11 Conservation Harvest Agreements in 12 February 1995. On August 20th the 13 Minister of Natural Resources announced 14 Ontario's intention to terminate the 15 Community Conservation Harvest 16 Agreements effective September 30th." 17 And does that accord with your 18 recollection? 19 A: Yes, it does. 20 Q: And -- and the occupation of Serpent 21 Mounds, that took place in September of 1995, was 22 perceived to be a possibility arising out of the decision 23 to terminate the Community Conservation Harvest 24 Agreement; am I right? 25 A: I think that's the reason for it. I
1241 don't know if it was ever characterized as a possibility. 2 I know when they informed us, I think it was made clear 3 that was the reason for it. 4 Q: All right. So leaving aside the 5 motivation for the -- for the occupation that had taken 6 place, what we knew is that the Hiawatha First Nation and 7 the Province of Ontario had worked together well, in 8 connection with Serpent -- Serpent Mounds Provincial Park 9 in the past, right? 10 A: Hmm hmm. 11 Q: And -- and I'm going to suggest that 12 there had been discussions, that preceded the occupation 13 in September of 1995, as to what would happen in 14 connection with the leasing arrangement as between the 15 Hiawatha First Nation and the Province of Ontario; am I 16 right? 17 A: I have no knowledge of that. 18 Q: When you say you have "no knowledge" 19 of it, are you saying -- 20 A: I don't know what the discussions 21 were. I'm assuming they would have talked about the 22 lease coming due. 23 Q: All right. But -- but you weren't 24 involved in them, is that what you're saying? 25 A: No.
1251 Q: Okay. Thank you. Those are the 2 question I have. 3 COMMISSIONER SIDNEY LINDEN: Thank you, 4 Mr. Sandler. 5 Mr. Myrka...? 6 That's fine, I think we've got some time. 7 8 CROSS-EXAMINATION BY MR. WALTER MYRKA: 9 Q: Good afternoon, Mr. Hodgson. My 10 name's Walter Myrka. I'm here on behalf of the Province 11 of Ontario. 12 If I can just begin by clearing up at 13 least in my mind, the situation at Serpent Mounds. 14 Now I understand your evidence to be that 15 there was a co-management agreement that was entered into 16 approximately the beginning of 1996? 17 A: I believe it was after that. It was 18 about February or March somewhere in there. 19 Q: Okay. It was in the spring of '96? 20 A: Yes. 21 Q: Okay. Now the arrangement prior to 22 that, just so we're clear. 23 I understood your evidence to be that if 24 you look at Serpent Mounds Provincial Park, approximately 25 20 percent -- or 27 percent of the land was owned by the
1261 Hiawatha First Nation? 2 A: Yes I believe they had title to it, 3 yes. 4 Q: Okay. And the balance which I take 5 it to be about 73 percent, that would be owned by the 6 Province? 7 A: That's fair. 8 Q: Okay. And what happened is that the 9 Province leased from the -- from the Band, from the 10 Hiawatha First Nation, the 27 percent that it owned. 11 Is that right? 12 A: I think that was the case, yes. 13 Q: Okay. And then MNR staff then 14 operated the Provincial Park much in the same way as 15 other Provincial Parks were operated in Ontario by MNR 16 staff? 17 A: Yes. 18 Q: Okay. Now in 1996 when a co- 19 management agreement was entered into, do you know the 20 specifics of that? 21 How it actually worked? 22 A: Not particularly, no. 23 Q: Okay. But do you know who managed 24 the Park as a result of that agreement? 25 A: I understood it to be -- and I'm just
1271 going by memory here on the advice I got from the staff 2 around the time, that it would have to be consistent with 3 the Provincial Park's policy and the First Nations would 4 operate the Park according to those policies. 5 The capital equipment, the picnic tables, 6 the facilities were included but there was no operating 7 subsidy. You had to make -- if you made a profit you 8 made a profit. 9 If you had a loss, you'd have to absorb 10 the loss is my understanding. 11 Q: Now the staff at the Park, they would 12 be First Nations persons? 13 A: Well whoever they chose to. It was a 14 deal between the -- council and Chief of the First 15 Nation. So it would be up to them who they hired to run 16 the Park. They would have to be qualified and fit into 17 the Provincial Park's policies. 18 Q: Okay. But this would be the council 19 who would choose who to employ for purposes of working at 20 the Park? 21 A: Right. Now -- I'm -- I'm just going 22 by memory here, but they could have subcontract out that 23 role. I don't know if the council actually decided on 24 who works there. It might have been -- an entity might 25 have been set up to manage it on their behalf.
1281 Q: Okay. And with respect to Serpent 2 Mounds, I understand your evidence to be that the 3 agreement was one between the Province, that is the co- 4 management agreement, between the Province and the 5 official Band, that is the Hiawatha First Nation? 6 A: I'm assuming that it would be between 7 Ontario Parks and the Hiawatha First Band. 8 Q: Okay. 9 A: The First Nation Band. 10 Q: Now you've talked about in your 11 evidence the unrecognized dissident group who were the 12 occupiers of Ipperwash Provincial Park. 13 And I wanted to ask you whether in your 14 recollection at Serpent Mounds, was there ever an issue 15 of a faction or a splinter group that the Province in 16 some way had to deal with? 17 A: Not that I'm aware of. 18 Q: Okay. So far as your recollection 19 goes, the Province always dealt with the recognized First 20 Nation in regard to Serpent Mounds? 21 A: Yes. It was sort of government to 22 government. Yes. 23 Q: Okay. Now was the -- did I 24 understand your evidence to be that the -- the co- 25 management agreement in early '96, was that the first one
1291 in Ontario that you were aware of? 2 A: I'm sure there's a room full of 3 people that can correct me but I don't recall any 4 precedent being mentioned to me to go on for this. Yes. 5 Q: Okay. And you're aware of other 6 co-management agreements that were entered into perhaps 7 afterwards with other First Nations? 8 A: Yes. I -- there was -- I don't know 9 if we characterized it as co-management, but I know at 10 Wabakimi Provincial Park, it was unregulated and I know 11 we're pushed for time but there was an arrangement that 12 we worked out with the Chief for the traditional lands, 13 the hunting area was inside this Park that Bob Rae had 14 announced -- 15 Q: Hmm hmm. 16 A: -- and the World Wildlife Fund had 17 concerns that the First Nation issues weren't being 18 addressed and so there was a question whether we regulate 19 this Park. 20 Environmental communities saw it as a 21 huge achievement if we could do that I happened to offer 22 the Chief a ride to Thunder Bay and her concern was that 23 she hadn't received a -- an answer to a letter she'd 24 written, nobody had ever gotten back to her. 25 And so she wasn't opposing the Park; she
1301 just had a question about their traditional summer lands 2 and whether they would still be able to fish and hunt. 3 As a result of that plane ride, we worked 4 out an agreement where the First Nation could actually 5 work inside the Park and conduct, you know, a tourism 6 business if they wished. 7 I don't know if that would be considered 8 co-management, because the MNR didn't actually operate 9 that Park. The only operator would be the First Nation 10 in that situation. 11 Q: Mr. Hodgson, in your experience as 12 Minister of Natural Resources, have you ever had to 13 consider or enter into a co-management arrangement where 14 there was a dispute within the affected First Nation? 15 And by a dispute, I want to use the 16 example of Ipperwash where, on the one hand, you had the 17 official First Nation represented by Chief Bressette and 18 the Council versus a dissident group with which the Band 19 Council and the Chief obviously disagreed about issues 20 such as the occupation? 21 A: No, we didn't and that's why I 22 mentioned to the Commissioner that that's one of the 23 things I think should be resolved, is how you deal with 24 situations like that. 25 The SPR that was introduced in the
1311 government in 1991 talks about government to government, 2 but where it talks, you know, I might be corrected there, 3 I just have a memory of this, the recommendation of the 4 Ontario Government is not to get in the middle between 5 First Nations disputes over jurisdictions. 6 Q: Hmm hmm. 7 A: So, usually when that happens, 8 everyone pulls back and there's no resolution to the 9 issue. I talked about that a little bit this morning on 10 the option around co-management of the Ipperwash Park. 11 Q: Now, you were taken to some 12 correspondence yesterday between yourself and your 13 Federal counterpart, Minister Irwin. 14 Now, the Federal Government, would you not 15 agree with me, also would have been faced with the same 16 difficulty in that they're dealing with both an official 17 sanctioned First Nation and a dissident group? 18 A: Yes, I would. 19 Q: Okay. And do you know, Mr. Hodgson, 20 what the Federal Government did to address that issue, 21 what steps they took and what was the result? Assuming 22 they did anything? 23 A: No, I don't. 24 Q: Okay. Now, early on in your evidence 25 on Thursday, you described how you were aware that, prior
1321 to the September long weekend in 1995, you knew that 2 there were OPP officers within Ipperwash Park posing as 3 campers. 4 Do you recall that? 5 A: Yeah, there is a subtlety to that, 6 the answer, though, that I'd like to clarify again that I 7 understood that they were posed as undercover officers, 8 not in uniform inside the Park after the August 2nd 9 meeting, some time in that range. 10 I wasn't aware that staff had been put in 11 the Park prior to the long weekend. I -- there is a 12 nuance there that when I was asked the question, that I 13 just wanted to clarify. 14 Q: Okay. And my question is this. 15 If I understood your evidence, you 16 indicated that it was that you understood that the 17 officers were there not so much as to anticipate or 18 prevent an occupation, but to preserve and protect the 19 safety of other campers? 20 A: Exactly. 21 Q: Okay. And when you gave that answer, 22 you spoke about incidents on the beach and I recall your 23 evidence was that you had heard of certain things through 24 the media and you may have also heard of them from Peter 25 Allen.
1331 And my question to you is, can you give us 2 specifics, what you recall these incidents on the beach 3 consisting of and who was involved? 4 A: I can't give a lot of specifics. I 5 know there was more than one (1) incident that was 6 reported. The one that stands out was a car on the beach 7 doing doughnuts and there was a family, I believe, and I 8 hate to repeat stuff that I can't absolutely recall, 9 certainly. 10 But I believe that the man was injured, 11 the camper, was injured by the car. He had a broken leg 12 or something to that effect. 13 Q: And did anyone ever tell you or 14 suggest to you who was driving the car that injured the 15 camper? 16 A: It was suggested at the time, the -- 17 the information I received that it would be the people 18 that were occupying the adjacent Military Camp and the 19 Federal Government. 20 Q: And did you ever ask who knew that 21 and how they knew it? 22 A: No, the only direct question was 23 from the media and I never did phone them back. 24 Q: Okay. 25 A: No offence to the profession but I
1341 was told that it -- by a deputy that that wasn't an MNR 2 issue, that that was a -- a policing issue. 3 Q: Okay. But the information you had 4 right or wrong was that the -- the person allegedly 5 driving the car was a First Nations person? 6 A: Yeah. And that could have been an 7 assumption by the people phoning in the question or -- or 8 from the person asking me to give a phone interview. 9 Q: Okay. 10 A: There must be records of that some 11 place. 12 Q: Okay. Were you shown things like 13 incident reports or police reports relating to -- to 14 incidents like that? 15 A: No, I was not. 16 Q: Okay. And that's not something that 17 you would normally be provided with in your position as 18 minister, is that fair? 19 A: That's correct. 20 Q: Okay. Now, with respect to MNR staff 21 at the OPP Command Centre liaising with OPP and 22 particularly Inspector Carson, I understand that you 23 weren't, from your evidence earlier, that you're not 24 familiar with the details of that, is that fair? 25 A: That's fair.
1351 Q: Okay. But you knew that Les 2 Kobayashi was there and he tried to serve trespass 3 papers? 4 A: Yes, I was aware of that. 5 Q: Okay. 6 A: I -- just -- just to be clear, I 7 didn't know he was at the police command centre. I was 8 aware that Les Kobayashi and a police officer had tried 9 to serve trespass notices and they weren't successful. 10 Q: Did you know that the OPP were trying 11 to secure the services of an MNR helicopter and that Mr. 12 Kobayashi was trying to assist with that effort? 13 A: No, I was not. 14 Q: Okay. So if MNR was to provide a 15 helicopter to lend it to the police if you will that's 16 not something where they would have to come to you as 17 minister and seek your approval? 18 A: No. 19 Q: Okay. That would go what, as -- as 20 high as the Deputy or...? 21 A: I'm not sure. I can't recall. 22 Q: Okay. 23 A: But it may have gone to the Deputy. 24 I don't know. 25 Q: In any event you weren't involved in
1361 that at all? 2 A: No. 3 Q: Okay. Now, at the dining room on 4 September 6th you indicated in your evidence that you 5 never said a word at the meeting. 6 Do you recall gesturing at the meeting? 7 A: No. 8 Q: Okay. Do you recall if you were 9 sitting down the whole time or whether you were getting 10 up and sitting down and getting up again? 11 A: I recall sitting there and the 12 meeting was only about fifteen (15) minutes in my 13 recollection. It wasn't a long meeting. 14 Q: Okay. And you didn't get up to -- as 15 best as you can recall? 16 A: No, I didn't get up. I can remember 17 sitting down. I remember standing up and leaving. 18 Q: Okay. And do you recall anyone else 19 at the meeting alternately getting up, sitting down, 20 acting agitated in any manner? 21 A: No, I do not. 22 Q: Okay. 23 24 (BRIEF PAUSE) 25
1371 Q: When you went home on the night of 2 September 6th you didn't go home as I understand it you 3 went to your apartment or to your hotel room? 4 A: Right. 5 Q: Okay. And you indicated that was 6 about 9:00 or 10:00 at night? 7 A: Yes. 8 Q: Okay. As you left the office was 9 there anything that you can recall demonstrating any kind 10 of urgency with respect to the events at Ipperwash? 11 A: No, nothing had changed since the 12 dining room meeting that I could recall and the update on 13 the ground. 14 Q: Okay. And there was nothing 15 suggesting that anything imminent was about to happen at 16 Ipperwash? 17 A: Absolutely not. 18 Q: Okay. You heard about the death of 19 Dudley George the next morning? 20 A: Yes, I did. 21 Q: Okay. Was that the first time you 22 heard Mr. George's name? 23 A: I don't even believe I heard his name 24 that morning, but I knew that a person had been killed 25 that had been occupying the Camp.
1381 Q: Okay. Mr. George was not somebody 2 whose name you'd heard before and I take it you didn't 3 know the gentleman? 4 A: No, I did not. 5 Q: Okay. 6 7 (BRIEF PAUSE) 8 9 Q: At the end of your evidence, you 10 indicated or your provided a possible recommendation 11 which was that ONAS should have its own Minister. 12 I'm going to suggest to you that, rather 13 than having its own Minister, is it not more important 14 that ONAS has a Minister who is effective and who will be 15 heard at the Cabinet table? 16 A: I might have -- I wish I could be 17 more clear in my answers. 18 I realize that they had a Minister and 19 that's not the new part of the recommendation. The new 20 part that I would suggest is that they have a Deputy 21 Minister, that they have a full Minister that would take 22 a lead on these issues and be known to have the lead. 23 That the Committee structure where you 24 have so-called shared responsibilities, I probably didn't 25 understand that as well as I should have, but they're the
1391 lead, they're politically accountable both from the civil 2 service side and from a political side and it's clear. 3 And -- 4 Q: Okay. 5 A: -- I just think that if they had a 6 full deputy Minister's role, you'd have more weight, so 7 to speak, in dealing with these issues. 8 Q: And does part of that reflect what I 9 understood to be another recommendation you made, which 10 was that there shouldn't be an IMC Committee? 11 A: That's correct. 12 Q: Okay. Now the IMC Committee, my 13 understanding of your evidence is that you weren't aware 14 and hadn't been briefed on the mandate of that committee? 15 A: That's correct. 16 Q: Okay. And you hadn't attended -- you 17 hadn't formally attended those meetings from start to 18 finish? 19 A: That's correct. 20 Q: Okay. But you were aware, I take it, 21 that at the meetings, you had representatives from a 22 variety of government programs and ministries? 23 A: I'm aware of that, yes. 24 Q: Okay. And that the people who were 25 at the meeting, there were some political representatives
1401 as well as representatives from the civil service? 2 A: Yes. 3 Q: Okay. And were you aware that one of 4 the important purposes of the committee was to provide 5 advice in the forms of consensus and recommendations to 6 senior management, such as yourself as Minister? 7 A: Oh, I might have been. 8 Q: But you're not sure? 9 A: No. And my recommendation was based 10 on my experience after ten (10) years. 11 Q: After ten (10) years? 12 A: That's my recollection, that, in my 13 experience -- I was trying to share with the Commissioner 14 that, in my experience, we have these committees with 15 shared responsibility. They're not as effective as when 16 you have a Minister and a deputy Minister accountable for 17 the outcomes. 18 And if one of the outcomes of this 19 committee was to prevent situations like this, I think 20 it's a more effective format to have people directly in 21 charge. 22 Anything that I was able to negotiate or 23 bring a consensus to in the Government, whether it was 24 Oakridges Moraine or the Niagara Scarborough Commission 25 or the completion of Parks or the gaming exercise, I was
1411 able to draw upon ADM's from all the affected Ministries. 2 There might have been six (6) or eight (8) 3 of them, as you needed, or they formed a panel. But they 4 knew that there was a one point person on it, and that 5 you would go and meet with the people ahead of time, if 6 you had issues. 7 Q: Okay. Thank you. Mr. Commissioner, 8 those are my questions. 9 COMMISSIONER SIDNEY LINDEN: Thank you, 10 Mr. Myrka. 11 Ms. Clermont...? 12 13 (BRIEF PAUSE) 14 15 CROSS-EXAMINATION BY MS. JANET CLERMONT: 16 Q: Good afternoon, Mr. Hodgson. My name 17 is Janet Clermont and I represent the Municipality of 18 Lambton Shores, formerly Bosanquet Township where the 19 incident occurred. 20 And I'm really interested, specifically, 21 in your Ministry's interaction with the municipality 22 during the occupation and prior to. 23 And I take it that you didn't have any 24 direct contact with the Municipality? 25 A: No, I did not.
1421 Q: All right. And are you aware of 2 anyone within your Ministry who had contact with the 3 municipality during that time? 4 A: I'm not aware of anyone. That 5 doesn't mean it didn't happen; I'm just not aware of it. 6 Q: Okay. No, I understand. And your 7 deputy Minister at that time, Ron Vrancart, gave 8 testimony that part of his role, as deputy Minister, was 9 to communicate or liaise with stakeholders, and from time 10 to time this included Municipal officials. 11 And I'm wondering, was it your expectation 12 that Mr. Vrancart would be liaising or communicating with 13 the municipality during this time? Was that your 14 expectation? 15 Or did you turn your mind to -- to that? 16 A: I never turned my mind to it. I 17 never thought about it, sorry. 18 Q: Okay. And did you have an opinion on 19 -- at the time, on what Ministry had the responsibility 20 of communicating with the municipality? Do you have -- 21 A: I assumed that ONAS was a lead for 22 this issue all of August and continued to be the lead, 23 that they would have talked to the local people and 24 others. 25 Q: All right. Thank you. And I just
1431 want to turn you briefly to Tab 26. Those are the IMC 2 notes from September 6th. And that's Exhibit P-509, 3 Document Number 1011766. 4 Do you have that there? 5 A: Yes. 6 Q: And if you could just turn to page 2. 7 Point number 4 under Communications, the second sentence: 8 "MNR will also work on informal 9 communications with key people in the 10 region, for example, Marcel Beaubien, 11 MPP and local politicians to defuse 12 tensions." 13 And was this suggestion ever brought to 14 your attention? 15 A: No, it was not. 16 Q: Okay. So I -- I take it then that 17 you don't have any information as to whether it was 18 followed up on? 19 A: No, I do not. 20 Q: All right. And would you agree with 21 me that it would have been helpful to have a formal or 22 informal communications plan in place with the community 23 leaders? 24 A: Well open communication, in theory, 25 is always a good thing.
1441 Q: Right. Okay. And establishing a 2 communications plan that -- that anticipated defusing 3 tensions would have been consistent with the approach 4 that you had taken at Nawash, where you met with -- 5 A: I'm sor -- yes. 6 Q: -- you met with the local -- 7 A: Yes. 8 Q: -- community there. And -- and that 9 assisted in defusing tensions? 10 A: That's right. 11 Q: There's just one final document that 12 I wanted to take you to. And this is Document Number 13 1004288 and I've provided a notice to your counsel and 14 I'll pass this document up to you. 15 16 (BRIEF PAUSE) 17 18 COMMISSIONER SIDNEY LINDEN: Thank you. 19 20 CONTINUED BY MS. JANET CLERMONT: 21 Q: I'll just have you turn to the last 22 page, page 4. And I'll ask you first, have you ever seen 23 a copy of this document? It's -- it's marked, "Draft" 24 and "Confidential," at the top. 25 It appears to be a memorandum of
1451 understanding dated June 12th, 1996. And if you look at 2 the bottom, it has -- it has a place for the signature of 3 the Minister of Natural Resources, that she would have 4 been at the time, the Chief of the Kettle and Stony Point 5 Band, the Mayor of Bosanquet and the Mayor of Forest. 6 If you want to take a minute and just 7 familiarize yourself with that. 8 9 (BRIEF PAUSE) 10 11 A: No, I haven't seen this. 12 Q: And I take it then you -- you can't 13 help me with whether anything came of the agreement? 14 A: I'm sorry I can't hear. 15 Q: Did -- did anything come of the 16 agreement? 17 A: I don't know. 18 Q: You don't know -- you don't recall 19 signing it? 20 A: No. 21 Q: Okay. I'm -- I'm wondering, Mr. 22 Commissioner, if I can make this an exhibit? Just the -- 23 just page 4. 24 COMMISSIONER SIDNEY LINDEN: That's fine. 25 Just page 4?
1461 MS. JANET CLERMONT: Yes, just the last 2 page. 3 THE REGISTRAR: P-1019, Your Honour. 4 5 --- EXHIBIT NO. P-1019: Document Number 1004288. 6 Confidential draft of a 7 Memorandum of Understanding 8 between the Ministry of 9 Natural Resources and the 10 Kettle and Stony Point Band, 11 June 17/'96, page 4. 12 13 CONTINUED BY MS. JANET CLERMONT: 14 Q: Thank you, Mr. Hodgson. 15 A: Thank you. 16 COMMISSIONER SIDNEY LINDEN: Thank you, 17 Ms. Clermont. 18 COMMISSIONER SIDNEY LINDEN: I think 19 we'll take a lunch break now. 20 THE REGISTRAR: This Inquiry stands 21 adjourned until 2:30. 22 23 --- Upon recessing at 1:19 p.m. 24 --- Upon resuming at 2:30 p.m. 25
1471 THE REGISTRAR: This Inquiry is now 2 resumed. Please be seated. 3 COMMISSIONER SIDNEY LINDEN: Good 4 afternoon, Mr. Klippenstein. 5 MR. MURRAY KLIPPENSTEIN: Good afternoon, 6 Commissioner. 7 8 CROSS-EXAMINATION BY MR. MURRAY KLIPPENSTEIN: 9 Q: Good afternoon, Mr. Hodgson. 10 A: Good afternoon. 11 Q: I won't be asking you about your 12 memories in 2001 because mine isn't so good either. 13 A: Okay 14 Q: But, as you know, I represent -- I'm 15 one of the legal counsel for the Estate of Dudley George 16 and the Family of Dudley George and I'll be asking you 17 questions in a number of areas -- areas. 18 MR. MURRAY KLIPPENSTEIN: Commissioner, 19 I've tried to actually omit some areas that are of 20 interest to the Family and the Estate on the assumption 21 and the belief that other counsel will cover them but 22 that's not to be interpreted as not believing they may be 23 important, so. 24 COMMISSIONER SIDNEY LINDEN: Thank you. 25
1481 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 2 Q: Mr. Hodgson I'd like to begin with 3 some questions about the press conference, or press scrum 4 as it's been referred to occasionally, that occurred on 5 the afternoon of September 5th. 6 And I eventually want to ask some 7 questions about the content, but first I'd like to just 8 understand a bit more about how it came to be. I believe 9 you said that at that time you -- on the evening of the 10 4th had been in -- been at your family cottage up north; 11 was that right? 12 A: Yes, that's correct. 13 Q: And then you brought your son I think 14 to his first day of school on the morning of the 5th; is 15 that right? 16 A: Yes, we were back at the house at 17 that time. 18 Q: And then headed back to Toronto, and 19 I think you mentioned that you'd had a conversation with 20 either Jeff Bangs or Ron Vrancart before you left for 21 Toronto; is that right? 22 A: Yes. Jeff Bangs. 23 Q: Right, okay. And did you know before 24 you left that you would be having a media presentation of 25 some sort?
1491 A: No, I did not. 2 Q: Okay. And then I believe your 3 testimony was that you arrived at your office somewhere 4 around two o'clock that afternoon; is that right? 5 A: Yes. 6 Q: And did you go almost immediately 7 into a briefing -- the briefing that you mentioned with - 8 - with Mr. Vrancart and others? 9 A: Yes. 10 Q: Did -- were you advised -- let me 11 back up a step. When were you advised that you would be 12 making a presentation to the media? 13 A: When I walked into the office. 14 Q: I see. So you weren't phoned about 15 it on the road or something like that? 16 A: No, I was not. 17 Q: All right. And I just wanted to know 18 a bit more about the nature of that presentation that's 19 been referred to as a scrum. I gather the reporters were 20 around your office in the Wellsley (sic) block; is that 21 right? 22 A: Yes. They were inside the door. 23 Q: And do you remember how many there 24 were; five (5), ten (10), twenty (20)? 25 A: Probably in the range of ten (10) to
1501 twenty (20) someplace like that. 2 Q: I see. And am I right in inferring 3 that they had been invited to your office perhaps because 4 it had already been -- had been decided that you would be 5 the spokesperson and they'd either gotten wind of it or 6 somebody had distributed your name? Do you know if 7 something like that happened? 8 A: I'm assuming something like that 9 happened. I can tell you I did not invite them. 10 Q: And just so I have an image of it, 11 were -- were they just standing around outside your 12 office door or in the lobby or how? 13 A: Just outside the door. Just like a 14 scrum outside of the Legislature; there's was cameras and 15 reporters and... 16 Q: And were they outside the building on 17 a sidewalk or inside in the lobby or in -- in the hallway 18 in front of your own office or -- 19 A: Up on the sixth floor right in front 20 of the office. 21 Q: I see. So they'd been let in -- 22 A: Yes. 23 Q: -- and is there a reception area in 24 your part of the floor there where they were or were they 25 literally in the hallway in front of your office or
1511 something like that? 2 A: Just right in front of the doorway. 3 I'm trying to remember the layout of the -- the office 4 but the reception area would be close by, yes. 5 Q: All right. And did you walk past 6 them into your office? 7 A: No, I did not. 8 Q: You went some other way? 9 A: No, I came in the same way, they came 10 in shortly after I'd arrived. 11 Q: Oh, I see. So, in a group they came 12 in? 13 A: Yes. 14 Q: Okay. So this was essentially a pre- 15 arranged scrum if I will that had -- that was on notice 16 to many reporters; is that right? 17 A: Not from me but obviously somebody 18 communicated that that was where they were to go for 19 information. 20 Q: Right. And that's what I'm getting 21 at. I infer that after the discussion at the IMC meeting 22 somebody had distributed your name and location as the 23 contact person on Ipperwash and -- with the expectation 24 that you would speak to the assembled press; is that 25 right?
1521 A: I'm assuming that as well. 2 Q: Okay. And Mr. Bangs, in his 3 testimony, said that at the IMC meeting, essentially Ms. 4 Hutton had appointed MNR or yourself as the spokesperson. 5 Does that accord with your knowledge or 6 information? 7 A: It's not inconsistent but I -- I 8 don't believe I was made aware that it was specifically 9 Ms. Hutton. I assumed it came out of the IMC meeting -- 10 Q: All right. 11 A: -- he Interministerial Committee 12 Meeting. It had been -- 13 Q: Okay. 14 A: -- the Committee's decision through 15 the Chair. 16 Q: Okay. All right. Maybe it's helpful 17 if I quote back part of Mr. Bangs' testimony if you can 18 hang on one moment. 19 20 (BRIEF PAUSE) 21 22 Q: On November 3rd Mr... 23 24 (BRIEF PAUSE) 25
1531 Q: A moment's indulgence, please. 2 3 (BRIEF PAUSE) 4 5 Q: Sorry, Commissioner, a moment's 6 indulgence. 7 COMMISSIONER SIDNEY LINDEN: Sure. 8 9 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 10 Q: There's several references to -- to 11 you as a spokesperson. Anyway, for now I'll... 12 13 (BRIEF PAUSE) 14 15 Q: Anyway, Mr. Bangs' testimony was that 16 it was Ms. Hutton who appointed MNR and you as the 17 spokesperson. And do you know whether it was Ms. Hutton 18 or someone else who would have advised the press to 19 contact you at your office? Any idea? 20 A: At the time I recall believing it 21 came through the Committee; that was what was expressed 22 to me, and I always assumed it was the Chair. Later on 23 with experience, knowing how the Government works today, 24 Jeff's account is probably accurate. 25
1541 (BRIEF PAUSE) 2 3 Q: And so you arrived and were told that 4 you were going to speak to the press and you sat down, I 5 think, for twenty (20) minutes you said, and spoke with 6 Mr. Vrancart and several others in preparation for the 7 press conferences or scrum; whatever you -- 8 A: Specifically, I believe it was Peter 9 Allen, Ron Vrancart, Jeff Bangs and myself. 10 Q: All right. 11 A: Rob Savage, the communication person, 12 may have been in the room. 13 Q: And I notice that the briefing note 14 in the materials, it is identified, and this is at Tab 15 13, is identified as being prepared by Gary Wice; was he 16 present there as well? 17 At Tab 13 at the end. 18 A: No, he was not. 19 Q: Okay. But Rob Savage -- Savage, was? 20 A: Well, I can't be certain on that, but 21 he was my press secretary at the time and he would have 22 held the tape recorder to generate this transcript. I'm 23 assuming that. 24 Q: I see, okay. And do you happen to 25 remember whether, in this briefing, you looked at the
1551 Minister's note at Tab 13 in preparation for the press 2 conference, or press scrum? 3 A: I believe this is the -- the script 4 that I was given, yes. 5 Q: I see, okay. And I'll be asking 6 about the contents of this in a minute, but it says it's 7 from Ron Vrancart, but prepared by Garry Wice. 8 And what does that mean -- does that mean 9 when you look at this, you say Ron Vrancart has approved 10 this, and so it has that authenticity or -- or authority, 11 or does it mean anything, that it's -- it's identified as 12 being from -- from Mr. Vrancart, but prepared by Mr. 13 Wice? 14 Does that mean anything? 15 A: Not particularly. I would assume it 16 came from Ron Vrancart -- 17 Q: Okay. 18 A: -- and he staff help him prepare it. 19 Q: Right. And I notice a number of 20 things in this Minister's note. Bullet point number 5 21 says -- do you see that, bullet point number 5; "the 22 bottom line"? 23 A: Yes. 24 Q: "The bottom line is, these people are 25 illegally trespassing on Provincial
1561 property and they shouldn't be there." 2 Do you see that? 3 A: Yes. 4 Q: And do you recall discussing that or 5 reading that in preparation to the -- for the media 6 presentation? 7 A: Yes, I tried to digest this whole 8 briefing note. 9 Q: Right. And again, three (3) bullet 10 points down, the note says: 11 "The Government is considering all 12 possible legal remedies to end this 13 illegal occupation in a peaceful 14 manner." 15 And the reference there is to an illegal 16 occupation, and I take it you saw that, as well, before 17 the press -- 18 A: Yes. 19 Q: -- right? If I then turn to the next 20 Tab 14 in the Commission brief of documents, which is the 21 transcript of your presentation, and would I be correct 22 in assuming that this transcript was prepared by Rob 23 Savage, your press communications staffer? 24 A: I'm not sure who prepared it. It 25 would, I'm assuming, be based on a tape he would have
1571 recorded. 2 Q: Okay. And whoever typed this out, 3 this transcript, called it at the very top, "a news 4 conference", I see, right? 5 A: Yes. 6 Q: And when you were questioned about 7 this occasion by Ms. Vella in examination-in-chief, I 8 believe you said you were very focussed on what you said, 9 because you were delivering the Government's message to 10 the media and the public when you spoke this; is that 11 right? 12 A: I was trying to be -- be focussed on 13 the content of the briefing note that I'd been given, 14 yes. 15 Q: And the reason was you knew that you 16 were now the Government spokesperson and you were sending 17 the Government's message to the media and the public when 18 you spoke; you knew that, right? 19 A: I don't know if I got that 20 sophisticated about it. I was always nervous in front of 21 the media and I was trying to make sure I had my lines 22 right. 23 Q: So, you weren't aware that you were 24 sending the Government's message to the media and people 25 -- the public?
1581 A: I was trying to follow the message 2 that came out of the IMC meeting that they wanted 3 delivered -- 4 Q: Okay. 5 A: -- to the public. 6 Q: Okay. 7 A: Yes. 8 Q: And let me just go through the 9 transcript that we had here at Tab 14 which is Inquiry 10 Document 3000575. And I don't have the exhibit -- 11 MS. SUSAN VELLA: It's Exhibit number P- 12 529. 13 MR. MURRAY KLIPPENSTEIN: P-529. Thank 14 you, Ms. Vella. 15 16 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 17 Q: If you could go to the second page of 18 that transcript and the comment attributed to you, 19 Minister, at the bottom line, do you see that? 20 A: Yes. 21 Q: The bottom line is: 22 "We feel that this splinter group is -- 23 we own the land and they're 24 trespassing." 25 So, I see that in that particular line,
1591 you're saying that they're tres -- the occupiers are 2 trespassing but you say that we feel that; it just 3 expresses your opinion, right? Or the Government's 4 opinion? Is that fair? 5 A: Okay. 6 Q: And turn -- if you would turn the 7 page, again at page 3 at the bottom. The last comment 8 attributed to you says: 9 "It's a Provincial Park that the 10 Provincial Government paid for and in our opinion 11 they're illegally trespassing." 12 Right. Again its expressed as the opinion 13 of the Government, fair? 14 A: Okay. 15 Q: I would like to contrast that with 16 some -- a number of other messages or lines that you are 17 recorded as saying. 18 If you go back to page 1 in the second 19 paragraph of your first comment. 20 "The point that we want to make quite 21 clear ..." 22 Do you see that? 23 A: Yes. 24 Q: "...is that the Provincial 25 Government, through the MNR, paid for
1601 this land legally back in the 1930's. 2 There is no claim to this land that we 3 are aware of. No formal claim has been 4 made. 5 The people that have entered the Park 6 are illegally trespassing." 7 Now, that is stated as a -- a matter of 8 fact that they are illegally trespassing, correct? 9 A: That's the information that I was 10 given, yes. 11 Q: Okay. If you go to the next line 12 that you are quoting as saying: 13 "Well we're going to examine, for 14 example, the use of injunctions, other 15 possible measures. I don't want to 16 limit the scope of that but the bottom- 17 line here is that it is our Park, we 18 paid for it and they are illegally 19 trespassing upon it." 20 So, that's the second time when you are 21 saying that they are illegally trespassing, as a matter 22 of fact. Correct? 23 A: That's the information that I was 24 given, yes. 25 Q: Okay. And if I go to your next
1611 comment. 2 "Well there's not much to consult 3 about. They are illegally 4 trespassing." 5 Again, same thing. 6 And finally, if you go to page 3 and look 7 at your second comment, it says: 8 "I'm not sure about the lawlessness, 9 all I'm dealing with is we own the 10 property, it's a Provincial Park, we 11 paid for it and these people are 12 illegally trespassing." 13 A: I'm sorry, whereabouts are you? 14 Q: I'm sorry. That's at page 3 of the 15 transcript. 16 A: Okay. 17 Q: The second comment. I'll read it 18 again. 19 "I'm not sure about the lawlessness..." 20 Do you see that? 21 A: Hmm hmm. 22 Q: "...all I'm dealing with is we own 23 the property, it's a Provincial Park, 24 we paid for it and these people are 25 illegally trespassing."
1621 Do you see that? 2 A: Yes. That's in direct reference to 3 the media's question about the lawlessness in the area 4 that's been going on. It's a followup from the question 5 on page 1 -- 6 Q: Right. Now what I see -- 7 A: -- where I said I wouldn't deal in 8 the rhetoric. 9 Q: Right. 10 A: Yeah. 11 Q: And when I read this short three and 12 a half (3 1/2) page transcript in its totality -- I've 13 just gone through with you as six (6) references to the 14 phrase 'illegally trespassing' and two (2) of which you 15 said 'it's our opinion' but in four (4) of which you 16 stated as a fact that they are illegally trespassing. 17 Now, my question to you is: Isn't it 18 normal or regular or accepted that you not identify 19 somebody as a law breaker until a Court has made that 20 ruling? Isn't that fair? 21 A: I was trying to do my best just to 22 follow the briefing note that you went through in Tab 13, 23 and it stated that there was -- the occupation was 24 illegal 25 Q: And that's found at Tab 13 and the
1631 fifth bullet point that we looked at, correct, that says: 2 "The bottom-line is these people are 3 illegally trespassing on Provincial 4 property and they shouldn't be there." 5 Right? 6 A: Yes. 7 Q: So, you were repeating what was in the 8 briefing note? 9 A: That's what I was trying to do to the 10 best of my ability. 11 Q: Right. And so you said those words 12 six (6) times and you did a good job of sending out the 13 message, I guess. 14 But my question -- my follow-up question 15 is: Did you give any consideration when you were 16 listening to these briefing notes and speaking to the 17 media, that you were saying that these people in the 18 Park, including Dudley George, were as a matter of fact 19 lawbreakers because they were as a matter of fact 20 illegally trespassing? 21 Did that issue cross your mind? 22 A: No. 23 Q: And did -- 24 A: I was trying to get the message out 25 that I've been given to deliver.
1641 Q: Right. And so the media, who were 2 there, ten (10) or twenty (20) people, heard your 3 message, which was, They are illegally trespassing, 4 right? 5 You saw them, as you said those words, and 6 they heard it, it appears, right? 7 A: I would assume that, yes. 8 Q: Yeah. And taking a -- going back to 9 the briefing, did Mr. Vrancart or Mr. Allen or Mr. Bangs 10 express any -- or take notice of the fact that the 11 Government spokesperson here was saying that people were, 12 as a matter of fact, lawbreakers? 13 Did -- did that come up at all? 14 A: No. 15 Q: Okay. Have you, in your many years 16 of -- of senior public service, publicly said, about 17 anybody else, that they were illegally doing something, 18 that they were lawbreakers, before a Court had so ruled? 19 A: I may have expressed an opinion that 20 I thought an activity was illegal, if it was being 21 conducted. 22 Q: And -- but do you recall ever saying, 23 These people are illegally, something? 24 A: Not that I'm aware of. 25 Q: All right. So to the best of your
1651 knowledge, this is the only time where -- in your public 2 career, where you've accused somebody of being a 3 lawbreaker before the court has so ruled? 4 A: I couldn't be definite on that. 5 Usually you're referring to activities and you'd say this 6 activity would be illegal if it was conducted by 7 somebody. 8 Q: Right. 9 10 (BRIEF PAUSE) 11 12 Q: I -- I'm going to come back to the -- 13 to -- to the issue of the reference to illegal 14 activities, because it comes up in later documents as 15 well, but let me go back to some other circumstances of 16 this press conference. 17 I believe you testified that after this 18 conference you discussed, with Jeff Bangs and perhaps 19 others, that you did not want to be the spokesperson for 20 the Government anymore; is that right? 21 A: No, that was an ongoing conversation 22 by the time I arrived at the office -- 23 Q: All right. 24 A: -- just before the press conference 25 and after the press conference.
1661 Q: Okay. And I believe you -- 2 A: And that was a shared view, by the 3 way, with my Deputy and Jeff Bangs. 4 Q: All right. And I believe you said, 5 in your testimony, that you'd instructed Jeff Bangs to go 6 to the person who'd appointed you and say you're not 7 doing it anymore; is that right? 8 A: That was prior to the press 9 conference. 10 Q: I see. And Mr. Bangs did testify 11 that he had called Ms. Hutton to say something to that 12 effect that you didn't want to do it anymore, and that 13 Ms. Hutton had said that you have to be the spokesperson. 14 A: Well, just -- just to clarify, it 15 wouldn't be 'anymore', it would be, He doesn't want to do 16 it. 17 Q: All right. 18 A: It was before the press conference. 19 Q: That's part of my question. So do 20 you recall that Ms. Bangs -- Mr. Bangs actually phoned 21 Ms. Hutton before the press conference? 22 A: I'm not sure it was Ms. Hutton, but I 23 know he phoned the person that had told him. 24 Q: I see. 25 A: Because I think that was my
1671 direction. 2 Q: I see. And Mr. Bangs came back to 3 you before the press conference and said, You've got to 4 do it? 5 A: He came back and I don't know if he 6 said that -- 7 Q: So -- 8 A: -- or not. The next thing we knew 9 the press were at our door. 10 Q: And after the press conference, did 11 you -- did you, yourself or through your staff, pursue 12 that issue further, that you did not want to be 13 spokesperson anymore? 14 A: Yeah, for about the next two (2) -- 15 two (2) days, until Larry Taman said that -- at the 16 dining room meeting that Charlie Harnick would be the 17 Government spokesperson. 18 Q: I see. Okay. Did you ever speak to 19 Ms. Hutton directly, either in person or on the phone, 20 about that issue? 21 A: No, I did not. 22 Q: Okay. Were you aware when Ms. -- 23 when Mr. Bangs came back and said -- well, do you 24 remember what he said after he came back, having made a 25 phone call about that issue before the press conference?
1681 A: No, I believe he came back because he 2 left a message to that effect. I don't believe he had a 3 talk to anybody directly. 4 Q: Oh, I see. 5 A: He may have, but I don't recall. 6 Q: Okay. So you didn't have an answer 7 before the press conference? 8 A: No, the press showed up; that was the 9 answer. 10 Q: So I'm just not understanding the 11 timing here because of how much time -- 12 A: It was a short period of time. 13 Q: Yes. 14 A: I arrived at the office, was informed 15 by the Deputy and Jeff that I was expected to answer 16 questions of the media on the IMC, Interministerial 17 Committee Meeting that they'd just come from. 18 And I expressed the opinion that they 19 shared that we had not been the lead on this issue all of 20 August, and it wasn't an MNR issue now, that ONAS was in 21 charge of First Nation issues, the OPP were monitoring 22 the situation on the ground. 23 And I asked Jeff to contact the person 24 that decided that I would be the spokesperson. I assumed 25 it was the -- the Interministerial Committee and by that
1691 the Chair and say I wasn't doing it. He would have done 2 that. 3 I don't think we ever did get an answer 4 back. I don't know if he talked to anybody directly, 5 but, you know, a few minutes later I was informed by Rob 6 Savage or somebody that the media were actually outside 7 our door and they wanted to talk to me. They'd been told 8 that I'd be the spokesperson, so. 9 Q: And did you speak to the press again 10 after that? 11 A: After the 5th? 12 Q: Yes. 13 A: No. 14 Q: Okay. 15 16 (BRIEF PAUSE) 17 18 Q: Did -- was there any discussion by 19 Mr. Vrancart or Mr. Bangs or Mr. Savage, for that matter, 20 or Mr. Allen, at all, about the fact that you, as 21 spokesman for the Government, was -- was saying that 22 certain people were law breakers? 23 Was there any discussion about that at any 24 time after that -- 25 A: No.
1701 Q: -- press conference on the 5th? 2 Nobody talked about it? 3 A: No. 4 Q: Okay. 5 6 (BRIEF PAUSE) 7 8 Q: Did -- did you ask or were you told, 9 before the press conference, the basis in terms of legal 10 advice, or something similar, for publicly saying that 11 these people were law breakers? 12 A: There would have been questions on 13 the -- the reason why it was viewed as an illegal 14 occupation, and it would have been involved around the 15 title. 16 We also asked questions around has there 17 been a land claim made. The information I received back 18 was there has been absolutely no land claim made, that 19 they were aware of. 20 I said, Is there any claim, any demands? 21 And I was told there were none. 22 That's why we assumed it was a Federal 23 issue. 24 Q: And -- but you had no, and weren't 25 given any statement that we have a legal opinion to this
1711 effect or this, in a nutshell, is the legal basis? You - 2 - you never actually found out the support -- 3 A: No, that would -- 4 Q: -- so -- 5 A: -- have been conveyed to me through 6 the deputy that the AG and ONAS, the legal branches, had 7 reviewed the title or looked at the ownership issue. 8 That would have been conveyed to me on 9 that day. 10 Q: Okay. 11 A: That was conveyed to me earlier than 12 that as well. 13 Q: Okay. Did you ever see, let's say on 14 the 5th, anything in writing by way of any kind of legal 15 opinion that, in fact, these folks were illegally in the 16 Park, they were law breakers? 17 Did you see any -- 18 A: Only in briefing notes from our 19 officials. 20 Q: Okay. Like the one that we've just 21 looked at? 22 A: Correct. 23 Q: Okay. So you never saw a legal 24 opinion, before the shooting of Dudley George, that was 25 identified by author, that said these people are illegal
1721 in the -- illegally in the Park? 2 A: No. I had confidence in the senior 3 Ministry staff and the department of the Attorney 4 General. 5 Q: Okay. In fact, after the shooting of 6 Dudley George -- well, I'll get into that in a few 7 minutes. 8 Is it fair to say that when you were 9 telling the media and the public that The native 10 protesters in the Park were illegal trespassers, that you 11 believed that? 12 A: I believed the action was illegal, or 13 the occupation of the Park was illegal, that it wasn't 14 legal. 15 Q: And you wanted the public to believe 16 that the people in the Park were illegal trespassers, 17 right? 18 A: No, I was expressing the Government's 19 opinion, that this was an illegal act that was taking 20 place. 21 Q: But -- well, first of all, saying 22 that you were expressing the Government's opinion, you 23 wanted the public to believe that and accept that; is 24 that -- is that right? 25 A: Well, it was in response to the
1731 media's questions, yes. 2 Q: And when you went a step further and 3 left out the qualifier about the Government's opinion and 4 simply said four (4) times, They are illegal trespassers, 5 you believed that and you wanted the public to accept 6 that? 7 A: No, that just would have been an 8 error in not following the script close enough. I was 9 trying to follow -- the bottom line is these people are 10 illegally trespassing on provincial property and they 11 shouldn't be there. 12 There's no -- in the briefing notes I was 13 given it's not, you know, qualified that it says, Our 14 opinion. I just added that in the first couple of 15 answers, I guess. 16 Q: I see. So you were just transmitting 17 what had been received from elsewhere? 18 A: The Interministerial Committee, is my 19 understanding. 20 Q: Okay. Did you ever consider, during 21 this afternoon, the effect on certain segments of the 22 public, such as the police, of you saying, repeatedly, 23 that the Government -- in the eyes of the Government, 24 these are illegal trespassers? 25 A: No, I did not. We were trying to
1741 convey the point that we didn't know of any land claim, 2 there had been no land claim filed on the title of the 3 property with -- in the provincial Crown's ownership and 4 that it was legitimate. That was the message we were 5 trying to convey. 6 Q: And would you agree with me that, for 7 professionals in the legal system, such as the police, 8 they are aware of the difference between saying, and they 9 have to be professionally aware of the difference between 10 saying, This person is charged with something or this one 11 -- this person is believed, by so and so, to be something 12 and, on the other hand, stating, as a fact, This person 13 is a lawbreaker? 14 Do -- would you -- do you believe -- would 15 you accept that the police know the difference and 16 hearing you say this would recognize the difference 17 between the two (2)? 18 A: I don't know. 19 Q: I see. 20 A: I'm assuming the police would follow 21 their proper procedures and they're professionally 22 trained and they're professionals and they would have to 23 follow their own protocols. 24 Q: Now, you said earlier, in response to 25 some questions, that one (1) of the things you wanted to
1751 accomplish with this statement was reducing tension. 2 Would you agree with me that it is hard to see how 3 tension can be reduced when you repeatedly accuse 4 somebody or a group of people of being illegal 5 trespassers? 6 A: No, I wouldn't. 7 Q: How does that reduce tension when you 8 state they are lawbreakers even before a court has made a 9 decision on it? 10 A: Well, I wasn't personalizing it, I 11 was saying the occupation was illegal, that the title of 12 the property belonged to the Province of Ontario and in a 13 civil society there's processes that take place when 14 somebody has a claim of ownership or any other claim on a 15 piece of property. 16 Q: Well, you say there's a process. 17 Isn't there a process in civil society that, before you 18 say someone is a lawbreaker, a court has to make that 19 conclusion? Isn't that part of the process of law in a 20 civil society? 21 A: Yes. And I didn't interpret my 22 repeating the line that the Government felt that this was 23 an illegal occupation was particularly inflammatory. I 24 thought it was more along the lines of drawing clear 25 lines and saying here's what the rules are, if you're not
1761 aware of that, this is our opinion of -- of the -- your 2 action. 3 Q: Well, the problem I have with that 4 is, you didn't say, This is our opinion, on quite a few 5 of these occasions. And you may have just been quoting 6 the bulletin, but it says, These people are illegally 7 trespassing. 8 Isn't that breaking one of the rules of 9 the civil society process that you referred to? 10 A: Well, I followed the lines in four 11 (4) instances and I added the, "our opinion," in two (2). 12 But the point was that we were trying to send a message 13 that this was an illegal action, that there was no claim 14 made on the Park that we were aware of, that the title, 15 according to our legal advice and staff, was clear in the 16 Province's name. 17 And so to reduce tensions people have to 18 know what the rules are and what -- 19 Q: And isn't -- 20 A: -- you know, what our position was. 21 Q: Well, you said your basis was that no 22 claim was made and your advice was that it was illegal, 23 but isn't the rule in our society not that a person is a 24 lawbreaker when they haven't made a claim and when they - 25 - and -- and depending on the advice, a law -- a person
1771 is a lawbreaker when the court has decided; isn't that 2 right? 3 Isn't that one of the rules? 4 A: Well it depends. If -- if you're 5 talking about an action, not characterizing people here. 6 We're talking about an occupation that took place; that's 7 not legal, in our opinion. 8 Q: Well, you're -- you didn't -- you're 9 saying you're not talking about people, but the line here 10 in the bulletin and in your transcript says: 11 "These people are illegally 12 trespassing." 13 You're identifying a certain identifiable 14 number of people as lawbreakers. And that's not the way 15 the legal process works; isn't that right? 16 A: Well, in hindsight, it would have 17 been nice if I said, This occupation. But that wasn't 18 the lines that came out of the Interministerial Committee 19 that I was to deliver. 20 Q: All right. Would you agree with me 21 that you shouldn't have said what you said in the way you 22 did? 23 A: No. The -- my job was conveyed that 24 the message is coming out of the Interministerial 25 Committee on behalf of the Government. I had twenty (20)
1781 minutes, was in a debating society, the press were at the 2 door and I went ahead and delivered what they had come to 3 a consensus at, I assumed, at that meeting. 4 Q: All right. I would like to follow up 5 on some comments by yourself and Mr. Vrancart and -- and 6 Mr. Bangs about the position of MNR staff at the IMC, 7 prior to this press conference. 8 And we've -- we've seen evidence, from 9 various handwritten notes of various folks at the IMC 10 meeting on the morning of September 5th, that Peter Allen 11 said at the meeting that, We need to talk to the 12 occupiers about what they're trying to accomplish. 13 There's three (3) note takers who've 14 identified something like that. For example, Elizabeth 15 Hipfner's notes say, at page 3: 16 "Need to have a talk with them about 17 what 18 they're trying to accomplish." 19 Now, would you -- was Peter Allen speaking 20 within the bounds of the MNR position when he was saying 21 that? 22 A: Yes. 23 Q: And the notes also say that Peter 24 Allen says, and this is recorded by about five (5) note 25 takers, that:
1791 "We shouldn't take precipitous action. 2 They're only occupying an empty Park." 3 Although there's some concerns about 4 infrastructure. 5 Now the concept of not taking precipitous 6 action, when Peter Allen is recorded as saying that on 7 the morning of September 5th, was he speaking within the 8 bounds of the MNR position at the time? 9 A: I believe so. 10 Q: Yeah. And Mr. Allen is recorded by a 11 variety of note takers as saying: 12 "There's no great inconvenience." 13 And I believe you've said basically the 14 same thing; is that right? 15 A: That's correct. 16 Q: And Jeff Bangs is recorded by a 17 variety of note takers as saying, We can afford to wait, 18 or words to that effect. And that was your position as 19 well at the time; is that right? 20 A: It was, in terms of the Park. 21 Q: Yes. All right. 22 A: In terms of the general situation, we 23 didn't want to see it escalate, that the roads 24 surrounding the Park -- 25 Q: All right. Another person, who's not
1801 identified, is recorded by various note takers as saying: 2 "Public safety is not an issue." 3 And I think you've basically said the same 4 thing, that public safety was taken care of, as it's far 5 as you could tell, at that point in time. 6 A: Well, to be specific, I was probably 7 talking about campers and Ministry staff, not the general 8 public or the cottages or the homes around the area. 9 Q: All right. Now, all of those 10 comments by MNR staff about, "no great inconvenience; we 11 can afford to wait; shouldn't take precipitous action; 12 need to talk to the occupiers," occur in the meeting 13 before Ms. Hutton is recorded as saying: 14 "The Premier is hawkish on this issue. 15 It will set the tone for how we deal 16 with these issues over the next four 17 (4) years." 18 Now, did any of the people from MNR, who 19 were at that meeting, report back to you that Ms. Hutton 20 had said something like that at the meeting? 21 A: No, they did not. 22 Q: All right. 23 24 (BRIEF PAUSE) 25
1811 Q: When your staff gave you a briefing 2 note, which you then repeated public -- publicly, 3 containing the comment that these people are illegally 4 trespassing -- 5 A: Hmm hmm. 6 Q: -- was that consistent with the way 7 Ron Vrancart usually works? 8 Or was that a little bit unusual to have 9 such a forceful statement coming from his briefing note 10 to be publicly stated? 11 A: No, Ron would prepare notes that were 12 straightforward. He would rely on the expertise inside 13 the Ministry or from other Ministries for the 14 information, but he was pretty detailed in his briefing 15 notes, yes. 16 Q: All right. 17 18 (BRIEF PAUSE) 19 20 Q: If you could turn to the Commission 21 binder of documents that was provided to you, and Tab 10. 22 I'll be asking some more comments later about the 23 reference to illegal trespassers but, for now, if you 24 could turn to Tab 10, which is Inquiry document 3000626, 25 Exhibit P-777.
1821 Do you have that? 2 A: Is this the one with -- e-mail to 3 Barry Jones? 4 Q: Yes. 5 A: Okay. 6 Q: Now, this is an August 1st, 1995 e- 7 mail from Peter Sturdy, who's an MNR employee; is that 8 right? 9 A: I believe so. 10 Q: And it's to Barry Jones, and who was 11 Barry Jones? 12 A: I believe he was legal counsel from 13 the AG, but working on MNR issues. 14 Q: So he was seconded to MNR; is that 15 right? 16 A: I believe all of the legal 17 departments report to the AG, but some of them specialize 18 in line Ministries. 19 Q: Okay. And I see a distribution list 20 at the bottom. It says: 21 "Distribution to Barry Jones, Peter 22 Allen..." 23 And Peter Allen was your deputy Minister's 24 executive assistant; is that right? 25 A: That's correct.
1831 Q: And: 2 "...Garry Wice..." 3 Was he in your office as well? 4 A: I don't know. I know he's in the 5 issues management section, I believe. 6 Q: Okay. And then: 7 "...Barry -- Barry Jones..." 8 That's whom we've discussed. 9 "...Jeff Bangs..." 10 Your executive assistant; is that right? 11 A: Yes. 12 Q: And the last person on the list is: 13 "...Ron Baldwin." 14 Who was also an MNR person. Did you know 15 at that time who Ron Baldwin was? 16 A: Not at that time. 17 Q: All right. 18 A: Later on I did. 19 Q: Now, if I just look at this e-mail, 20 you haven't -- have you ever seen this e-mail before? 21 A: Not before preparation for the 22 Inquiry. 23 Q: I just want to go through a couple of 24 things and see whether the -- any of this was ever 25 mentioned to you by any of the staff people who are
1841 listed as we receiving this. 2 The e-mail says: 3 "Barry, when I talked to Inspector 4 Carson this afternoon and a couple of 5 different situations that might 6 develop, he gave me a couple of 7 examples and how he would see 8 proceeding. Number 1..." 9 Do you see that? 10 A: Yes. 11 Q: "Small group, six (6) to ten (10), 12 enter Park and make claim. OPP 13 response: Small enough to make arrest 14 and remove from Park." 15 Then go to number 3: 16 "Large Group..." 17 Do you see that? 18 A: Yes. 19 Q: "... including women and children 20 enter Park and make claim similar to 21 tactics used at Camp Ipperwash. OPP 22 response: Evacuate Park of staff and 23 public. Negotiate. Physically remove 24 from Park." 25 Did Jeff Bangs ever tell you that
1851 Inspector Carson had described scenario for the 2 occupation in which the occupiers would be physically 3 removed from the Park by the OPP? 4 Did he ever say that Inspector Carson had 5 -- had described this to him? 6 A: No. 7 Q: Did any of the other people whose 8 names appear on the distribution list here? 9 A: No. 10 Q: Okay. 11 12 (BRIEF PAUSE) 13 14 Q: Do you ever recall Mr. Bangs 15 discussing with you that the OPP might physically remove 16 or were planning, according to these scenarios, for the 17 eventuality of physically removing protestors from the 18 Park? 19 A: No. 20 Q: Now, you said, I believe, at one 21 point in your testimony that you had asked people what 22 would happen if you get the injunction? And you said, I 23 asked that and I never got an answer. 24 Is that -- do you recall that? 25 A: Yes.
1861 Q: Yes. And do you know if you asked 2 that of any of the people in this distribution list? 3 A: No. Mr. Bangs is in the distribution 4 list so, yes, Mr. Bangs. 5 Q: Okay. Could you turn with me to 6 some -- 7 A: Peter Allen would have been there as 8 well. So, he talked about it at the -- the briefing as 9 well. 10 Q: Okay. He talked about getting an 11 injunction? 12 A: Well, it was one of the points that 13 was mentioned when I had -- before I do the press 14 conference. 15 Q: All right. 16 A: I recall, that I talked about it with 17 Ron Vrancart on the Sunday evening too, I recall. 18 Q: Right. And so you talked about what 19 happens when you get an injunction? 20 A: Not specifically that. It's -- I was 21 questioning him -- why do they want an injunction? 22 Q: And did you talk about what would 23 happen if there was an injunction? 24 A: No, that was my rhetorical question, 25 that if you get an injunction you might be expected to do
1871 something, or raise expectations. That was just the 2 conversation as I recall it. 3 Q: So, it was a rhetorical question? 4 And what brought -- what made you ask that question? 5 A: I don't know if it would be 6 rhetorical or not but I was asking the question. I 7 didn't -- wasn't aware that they were asking for -- the 8 police wanted an injunction. 9 Q: Right. 10 A: It came about the 4th or the 5th 11 around injunction. I didn't know that it had been 12 plagued with Ministry staff before. 13 Q: Right. 14 A: So I just asked the question with Mr. 15 Bangs, Ron Vrancart, and others, why are they asking for 16 an injunction? 17 Q: Okay. So, you were thinking about 18 what would happen once an injunction was obtained, in 19 your own mind? 20 A: That's what I was thinking, yeah. 21 Q: Yes. Okay. If you could turn with 22 me to a binder that I've provided to you that has various 23 -- it's a -- mine is black, yours is the small white 24 binder and it's a compilation of handwritten notes 25 basically, from various note-takers at the IMC meetings.
1881 And if you turn to -- this binder has an 2 index listing or entitling -- entitling it, Compendium of 3 Notes of Interministerial Committee Meetings. 4 MR. PETER LAUWERS: Thank you very much. 5 MR. MURRAY KLIPPENSTEIN: And, 6 Commissioner, I've provided copies of these binders to 7 Counsel and the -- and the Witness. 8 I dumped several large binders on My 9 Friend and he says he's grateful. 10 11 (BRIEF PAUSE) 12 13 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 14 Q: If you could turn please to Tab 6 of 15 the first part of that binder, the first part being the 16 notes -- collected notes of September 5th. 17 If you turn to Tab 6 do you see 18 handwritten notes with the name, Caroline Pinto, at the 19 top right? 20 A: Okay. 21 Q: And if you would turn to handwritten 22 page 4 of those notes, and that's Inquiry Document 23 1011727. And I don't have the exhibit number handy, I'm 24 sorry. But the -- halfway down or at the top of the page 25 rather you see the word, "options" with five (5) numbered
1891 segments. 2 Do you see that? 3 A: Yes. 4 Q: And the last one is, "injunction." 5 And the fifth bullet point under the word, "injunction," 6 the handwriting says: 7 "May require force anyway." 8 Do you see that? 9 A: I can't make out the writing but -- 10 Q: That appears to be what it says or do 11 you -- 12 A: Can you repeat it then? 13 Q: "May require force anyway." 14 A: Okay. 15 Q: Does that make sense as -- as to 16 writing? 17 A: Yeah, it does now. 18 Q: Okay. 19 A: The -- so, yeah. 20 Q: And then if you could turn to Tab 7, 21 and this handwriting is neater. No offence to anybody 22 intended. So, turn to Tab 7 if you would. 23 A: I'm on Tab 7, yes. 24 Q: Yeah. Okay. Handwritten page 5. 25 A: Okay.
1901 Q: And at the bottom -- well, half way 2 down the page first of all, it says "Five Options" in the 3 middle; do you see that? 4 A: Yes. 5 Q: And again we have the list of five 6 (5) options, the fifth one being injunction; do you see 7 that? 8 A: Yes. 9 Q: And at the very bottom of the page, 10 the line says: 11 "But if they won't leave, it comes down 12 to using force." 13 Do you see that? 14 A: No, I don't. Where is that? 15 Q: At the very -- the last line of page 16 5. 17 A: Okay. Okay. I do see it. 18 Q: "But if they won't leave, it comes 19 down to using force." 20 Do you see that? 21 A: Okay. 22 Q: Yeah. Now Jeff Bangs was attending 23 at that meeting and as were several other MNR people, 24 some of whom had also received the August 1st memo which 25 talks about physically removing from the Park.
1911 Now, did you hear any of these staff 2 members of MNR ever talk to you about the physical 3 removal of the occupiers from the Park by the police 4 using force? 5 A: Not that I can recall. 6 Q: All right. I'm going to suggest to 7 you that the use of force was kind of like the elephant 8 in the room that nobody talks about, because it would 9 appear that your -- quite a few of your staff members had 10 it mentioned to them that it might come down to using 11 force. 12 And I'm suggesting to you that you 13 yourself knew that the injunction might come down to 14 removal of the occupiers by force. You knew that 15 intuitively, didn't you? 16 A: I would agree with that, yes. 17 Q: All right. And indeed in the -- in 18 the meeting in the Premier's office, did anybody 19 specifically mention the use of force in relation to the 20 injunction by the police? 21 A: Not that I can recall, no. 22 Q: And would you agree with me again, 23 that that -- it was an example of the elephant in the 24 room that nobody talks about? 25 Would you agree with me that in that
1921 meeting in the Premier's office, you knew intuitively 2 that when the discussion was about an -- an injunction, 3 that it might well come down to the police using force to 4 enforce it? 5 A: Well, it might be one of the options 6 I think would be a common understanding. 7 Q: Right. Okay. And when the 8 discussion in the Premier's meeting turned around whether 9 to get an injunction with notice to the occupiers so 10 they'd have the option or opportunity of showing up in 11 Court, or on the other hand an ex parte, without notice 12 injunction, in which they wouldn't get notice of the 13 Court hearing, did anybody talk about the possible result 14 of the injunction, namely use of force in relation to 15 that decision? 16 A: No. 17 Q: All right. So, when people were 18 considering whether to speed up the injunction and 19 proceed to Court without notice to the occupiers, nobody 20 talked about the possible use of force for that 21 injunction that might follow? 22 A: No. It was -- I'm assuming that 23 everyone would consider that to be one of the options of 24 a variety of options at the AG, and the police would have 25 -- this was based on the advice of the Attorney General
1931 and this is what the police said they wanted or needed. 2 Q: All right. All right. And it was 3 clear, I take it, in the meeting, that the Premier wanted 4 the protesters out of the Park as soon as possible? 5 A: He wanted the confrontation, the 6 occupation, ended as soon as possible to avoid further 7 escalation around the roads or other Provincial Parks. 8 Q: And implicit in that is that the 9 protesters would be out of the Park, right? That's 10 obvious? 11 A: I would assume that, yeah. 12 Q: Yeah. And so when the Premier wanted 13 the protesters out of the Park and he wanted it as soon 14 as possible and the -- and the meeting decided to go for 15 an ex parte injunction on a -- on a rush basis without 16 notice to the occupiers, it was implicit that this might 17 result in the use of police force to remove the 18 protesters; isn't that true? 19 A: No. I wouldn't agree with that, no. 20 Q: It's not true. 21 A: No. 22 Q: All right. Well, isn't that kind of 23 the elephant in the room that nobody's talking about? 24 Did -- did anybody -- did anybody say -- 25 A: I didn't agree with your elephant
1941 being in the room. 2 Q: All right. Okay. It was -- it was a 3 question. 4 A: Okay. 5 Q: Did anybody say that there's a 6 difference between a notice injunction and an ex parte 7 injunction, in that you don't use force to enforce an ex 8 parte injunction? Did anybody say that? 9 A: I don't recall that, no. 10 Q: Okay. And so nobody, as far as you 11 could tell, saw there was any difference in the two (2) 12 injunction types in terms of enforcing them, right? 13 A: That's correct, that's my 14 understanding of it. 15 Q: And just as the use of force to 16 implement a normal injunction would be a reasonably 17 foreseeable aspect of it, likewise, the use of force by 18 police to enforce and implement an ex parte injunction 19 was also foreseeable? 20 A: All I can comment on is my opinion at 21 the time, that was -- had confidence in the Attorney 22 General and their senior Deputy and the legal staff, had 23 confidence that this is what the police were asking for; 24 I was okay with that. 25 Q: All right. And so when the Premier
1951 made it clear that he wanted them -- the -- it was clear 2 to you that the Premier wanted them out of the Park as 3 quickly as possible, right? 4 A: No, I didn't agree with that. I -- 5 Q: All right. 6 A: -- know that he was worried about the 7 situation escalating and didn't want to see it go to the 8 roads and fester for a long period of time. 9 Q: Are you telling me that it was your 10 view at the time that the Premier was indifferent as to 11 whether or not they were removed or taken out of the 12 Park? 13 A: I don't know if I ever analysed it 14 that far, but we didn't consider, at least I didn't, and 15 I didn't hear him, express a concern about the Park 16 itself on the dining room meeting, we understood it to be 17 contained and stable. 18 The concern in the dining room meeting 19 that I perceived and what I felt, the general government 20 concern, was around the escalation of the situation to 21 outside the Park, to the roads and the surrounding 22 highway. 23 Q: So, as far as you were concerned, are 24 you saying to me your perception was that the Premier 25 wasn't -- wasn't particularly concerned about getting the
1961 protesters out of the Park? 2 A: Well, he never expressed it that way. 3 He expressed disappointed -- I'm paraphrasing now, that 4 the situation had come to this, but he made it clear that 5 -- and this is similar to the point that I'd made earlier 6 in the day, that it's easier to avoid these situations 7 than it is to remove people. 8 But he also made the point that we didn't 9 want to see this escalate -- 10 Q: I understand -- 11 A: -- and that was the general concern 12 that, I think, was shared by the other Cabinet Ministers. 13 Q: I -- I've heard repeatedly what 14 you've said, but my question now is, because I thought I 15 heard you say something else before, my question now is: 16 Was it your understanding at the Premier's meeting, that 17 the Premier wasn't desiring to have them removed from the 18 Park? 19 A: I don't think it was discussed. It 20 was -- what was discussed was the escalation of the 21 situation. What the Attorney General was presenting was 22 the option of an injunction to try to resolve the 23 situation by legal means. 24 Q: But my question was: Was it your 25 understanding in the Premier's meeting, that the Premier
1971 wasn't particularly concerned about removing the 2 occupiers from the Park? 3 Is that your understanding at the time? 4 A: That's basically my understanding, 5 that that situation was stable. 6 Q: All right. Okay. I don't know, 7 Commissioner, if this would be a good time for the 8 afternoon break. 9 COMMISSIONER SIDNEY LINDEN: If it is for 10 you. 11 MR. MURRAY KLIPPENSTEIN: Yeah, that's 12 fine. 13 COMMISSIONER SIDNEY LINDEN: That's fine. 14 15 (BRIEF PAUSE) 16 17 COMMISSIONER SIDNEY LINDEN: Take a break 18 now. 19 THE REGISTRAR: This Inquiry will recess 20 for fifteen (15) minutes. 21 22 --- Upon recessing at 3:28 p.m. 23 --- Upon resuming at 3:46 p.m. 24 25 THE REGISTRAR: This Inquiry is now
1981 resumed. Please be seated. 2 3 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 4 Q: Mr. Hodgson, if you could, in the 5 Commission book of documents, please turn to Tab 43? 6 A: In which binder? 7 Q: This is the white binder of documents 8 that the Commission Counsel provided to you. 9 MS. SUSAN VELLA: It's probably the black 10 binder. 11 MR. MURRAY KLIPPENSTEIN: Oh, the black 12 one, sorry, 13 THE WITNESS: Yeah. 14 15 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 16 Q: Tab 43. And this is a Minister's 17 note I take it to you from Ron Vrancart, dated September 18 26th 1995 being Inquiry Document 1010587 Exhibit P-302. 19 Do you remember this note? 20 A: No, I do not, but... 21 Q: It seems to be generally similar to 22 the -- one (1) or two (2) of the previous ones and so is 23 it fair to say you probably got it or do -- do you know? 24 A: I couldn't say for sure, but -- 25 Q: All right.
1991 A: -- it's consistent with other 2 information. 3 Q: Bullet point number 4 in that 4 Minister's note says that Ontario still views the 5 occupation of the Ipperwash Provincial Park as an act of 6 illegal trespass, right? 7 A: Yes. 8 Q: Do you see that? Now, I take it that 9 was your view at that time, namely September 26th, 1995? 10 A: This is a note from my Deputy -- 11 Q: Right. 12 A: -- Ron Vrancart, and that would be 13 based on the information provided to him from senior 14 legal staff and others in the Ministry. 15 Q: All right. But, you don't know what 16 information he was relying on? You haven't seen, you 17 know, a legal opinion or anything like that to your 18 recollection that backed this up, but this is what he put 19 in his -- 20 A: This is what was given I would 21 assume, for a House note to be put in my binder in 22 anticipation of any questions in the Legislature. 23 Q: And was it, in fact, your view as of 24 September 26th as this note states which was prepared by 25 others of course that Ontario still views the occupation
2001 of the Ipperwash Provincial Park as an act of illegal 2 trespass? 3 A: Yes, based on the advice of my Deputy 4 and senior staff, yes. 5 Q: And if you could turn to Tab 48? 6 7 (BRIEF PAUSE) 8 9 Q: This is an issue note or something 10 like that dated November 27th, 1995, Inquiry Document 11 1011655. And I apologize, I don't have the Inquiry 12 number handy. 13 MS. SUSAN VELLA: It's 1011655. 14 MR. MURRAY KLIPPENSTEIN: Sorry, the 15 exhibit? 16 MS. SUSAN VELLA: I don't -- I don't 17 think it's an exhibit. 18 MR. MURRAY KLIPPENSTEIN: Okay. I 19 wonder, Commissioner, since I think it may not yet be an 20 exhibit if we could make it an exhibit? 21 COMMISSIONER SIDNEY LINDEN: That's 22 1011655? 23 MR. MURRAY KLIPPENSTEIN: That's correct. 24 COMMISSIONER SIDNEY LINDEN: All right. 25 THE REGISTRAR: P-1020, Your Honour.
2011 2 --- EXHIBIT NO. P-1020: Document Number 1011655. E- 3 mail from Maureen Wraight re. 4 Briefing Note, Winterizing of 5 Ipperwash Provincial Park 6 System, Nov. 27/'95. 7 8 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 9 Q: And I see at the back of this note 10 that it appears to have been distributed to Peter Sturdy 11 and to Peter Allen, your Deputy Minister's executive 12 assistant and one (1) or two (2) other people; do you see 13 that? 14 MS. SUSAN VELLA: I don't think it has to 15 do with this -- 16 THE WITNESS: Yes. 17 MS. SUSAN VELLA: I'm not sure it was 18 distributed to Mr. Sturdy? 19 MR. MURRAY KLIPPENSTEIN: I'm not sure 20 from what I've heard so far whether in fact it was 21 distributed. Let me take a step backwards first. 22 23 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 24 Q: Do you remember seeing this 25 particular issue note?
2021 A: No. 2 Q: All right. Let me ask whether 3 something in it is consistent with your views at the 4 time. 5 The author seems to say in the background 6 section, in the second bullet point: 7 "That the occupation is therefore 8 viewed as an illegal act." 9 Do you see that? 10 A: Is this right below, there's been no 11 formal land claim submitted. Is -- 12 Q: Yes. 13 A: -- that the section? Yes, I see 14 that. 15 Q: And do you have an opinion -- sorry, 16 let me rephrase that. 17 Can you tell me whether that was your view 18 at that time, in other words, the end of November that 19 the occupation was still an illegal act? 20 A: Yes, it would have been a shared view 21 based on the -- the advice as was receiving from the 22 Ministry. 23 Q: And can you turn in the black 24 Commission documents binder to Tab 61. And that appears 25 to be an e-mail from Maureen Wraight at Parks Ontario.
2031 Do you know Maureen Wraight, or did you at 2 the time? 3 A: No, I'm not familiar with her. 4 Q: Okay. And this appears to be a draft 5 of a letter that would be addressed to Chief Gord Peters 6 of the Ontario -- of the Chiefs of Ontario to be signed 7 by you. 8 I don't know whether this was actually 9 finalized or sent, if you happen to be able to enlighten 10 me on that? 11 A: Do you mind if I just a minute and 12 read it then? 13 Q: Yes. Please. 14 A: Okay. 15 16 (BRIEF PAUSE) 17 18 A: I'm not -- I don't recall this. 19 Q: Okay. I don't know whether there's 20 actually a signed copy in existence which is why I ask 21 whether you recall whether it was actually sent. But, 22 let me ask whether this -- whether something in this 23 draft which was, I guess, prepared probably for your 24 signature tentatively, reflects your views at the time? 25 On page 2 of the document, paragraph 3,
2041 the draft says: 2 "I would like to clarify my view of the 3 Park's current status." 4 Do you see that? 5 A: Yes, I see that. 6 Q: And drop down several sentences if 7 you would to the sentence beginning a, "Second" 8 A: And that's right behind the line: 9 "To my knowledge no formal land claim 10 has ever been initiated."? 11 Q: Yes. 12 A: Okay. I see that. 13 Q: The sentence says: 14 "Second. I view the occupation of the 15 Park on September 4, 1995 as an illegal 16 act." 17 Was it still your view ,to the best of 18 your recollection, back in February of '96 that the 19 occupation of the Park was -- was illegal as of September 20 4th as that sentence seems to suggest? 21 A: Right. And that would be based on 22 the advice from the Ministry. 23 Q: Right. And I think you've said in 24 your testimony at one point that you still believe the 25 occupation is illegal; is that right?
2051 A: Yes. I don't believe there's been a 2 formal land claim made on the property. But that's just 3 my understanding. 4 Q: And throughout that period, from 5 September 4th to -- 1996 that we've seen and even, well, 6 for some time thereafter, you as Minister of Natural 7 Resources took no action other than the motion on 8 September 7th to bring the matter before the Court for a 9 finding of legality, did you? 10 A: I don't recall doing that on the 7th. 11 Q: All right. Let me come back to that 12 but other than the issue -- the -- the 7th, you never 13 actually brought the issue before a Court did you? 14 A: No, we based our opinion on the 15 opinion of the Attorney General, the Legal Branches of 16 the Ministry. And I believe I had correspondence with 17 Ron Irwin of the Federal Government to ascertain whether 18 he knew of any claims that had been made against the Park 19 in terms of land claim to title or anything of that -- 20 Q: Right. 21 A: -- nature. 22 Q: And so you went through this whole 23 period saying, or believing that it was illegal, but you 24 never actually had a pronouncement of a Court on the 25 issue of whether it was trespass?
2061 A: I had confidence in the Attorney 2 General's department, the legal staff in our Ministry, 3 and our senior Ministry officials. 4 Q: All right. 5 A: Including my Deputy. 6 Q: Do you recall, at any time during 7 that period, let's say to -- for the six (6) months or so 8 after September 4th, anybody mentioning to you the issue 9 of colour of right? 10 A: They may have. 11 Q: Yeah. You don't recall it, 12 particularly? 13 A: I don't recall it, specifically. 14 Q: Okay. And do you recall any time 15 after, let's say February '96, in the ensuing years, did 16 you ever have anybody give you information about the 17 meaning of colour of right in the context of the Park 18 occupation? 19 A: Not that I can recall. 20 Q: Okay. 21 A: It doesn't mean it didn't happen. 22 Q: Right. And if you could turn with me 23 to the binder of documents that we've prepared for you 24 and it's, I believe, the black binder. Blue, I guess it 25 is, on your table. Thank you.
2071 And it includes an index at the front -- 2 documents. 3 If you turn to Tab 1, and we have a copy 4 of the Trespass to Property Act from the revised Statutes 5 of Ontario and I won't go into this in a whole lot of 6 detail, don't worry. 7 Technically, in the -- in the legal sense, 8 but if you look near the bottom of the first page, you 9 see a heading, Trespass an Offence. 10 Do you see that? 11 A: Yes. 12 Q: And if you turn the page, the next 13 heading is, Colour of Right as a Defence. 14 Do you see that? 15 A: Yes. 16 Q: And I'd just like to read that one 17 sentence, which is subsection 2 of Section 2, and it 18 says: 19 "It is a defence to a charge under 20 Subsection 1 in respect of premises 21 that is land that the person charged 22 reasonably believed that he or she had 23 title to or an interest in the land 24 that entitled him or her to do the act 25 complained of."
2081 Now, if I can summarize that, hopefully 2 fairly, it says that a person charged with trespass can 3 be acquitted by convincing the Court that he or she 4 believed, reasonably, that they had an interest in the 5 land that entitled them to do what they've been doing. 6 COMMISSIONER SIDNEY LINDEN: Do you have 7 an objection now, Mr. Lauwers? 8 MR. PETER LAUWERS: Yes, I do. This -- 9 this whole line of -- of -- of evidence, in my respect 10 submission, is utterly and completely irrelevant to the 11 issues before you, sir. 12 The advice that Mr. Hodgson responded to 13 and used in his briefings and his characterization has 14 been put squarely before this -- this -- this Tribunal. 15 He has no evidence or he has no knowledge 16 of anything about colour of right or any of these other 17 legal concepts. It's entirely inappropriate to quiz a 18 former Cabinet Minister, who is not a lawyer, on the 19 reach of the law in this setting. 20 This is not a defence, this is not a Court 21 of Law in which these issues are -- are to be disposed 22 of. My Friend can raise it in argument if he likes. 23 It's inappropriate to go after a witness on it, I say, 24 with the greatest respect. 25 COMMISSIONER SIDNEY LINDEN: Yes, Mr.
2091 Klippenstein...? 2 MR. MURRAY KLIPPENSTEIN: Mr. 3 Commissioner, the reason I raise these, and I have, I 4 think, not been legalistic about it, is that the 5 occupation has frequently and publicly been characterized 6 as a trespass, and as an illegal trespass, and has been 7 done so by Mr. Hodgson. And sure it's been, he says, on 8 the advice of others, but he's been the face of the 9 Government saying that, frankly, my -- the client, whose 10 estate I speak for, Dudley George, is an illegal 11 trespasser. 12 And it is an intrinsic part of that, that 13 a person accused of trespass can say, I believe I was in 14 the right and I think I can show I was reasonable in 15 that. 16 And so whether Mr. Hodgson is a lawyer or 17 not, it's not a complicated concept, basically, and yet 18 it's essential, in my submission, for any kind of public 19 discussion and for your consideration -- 20 COMMISSIONER SIDNEY LINDEN: Yes. 21 MR. MURRAY KLIPPENSTEIN: -- of whether - 22 - of how the occupation was portrayed. Mr. Hodgson has 23 accepted that he didn't bring it before a court. It's 24 repeatedly referred to as an illegal occupation. 25 COMMISSIONER SIDNEY LINDEN: Yes.
2101 MR. MURRAY KLIPPENSTEIN: So in my 2 submission, it's a fair question as long as I don't get 3 too legalistic about it, and I don't intend to. 4 COMMISSIONER SIDNEY LINDEN: Well, I'm 5 just wondering where you're going. You've read the 6 section to him -- 7 MR. MURRAY KLIPPENSTEIN: Yes. 8 COMMISSIONER SIDNEY LINDEN: -- and what 9 else are you going to do? 10 MR. MURRAY KLIPPENSTEIN: Well, the -- 11 the way I can show you where I'm going is to ask the next 12 question, so maybe I can do that? 13 COMMISSIONER SIDNEY LINDEN: Well, how 14 many more questions in this area do you have, because it 15 really isn't an area that I want to go into in any great 16 detail and certainly not in any legal technicalities, so. 17 MR. MURRAY KLIPPENSTEIN: Well, I don't 18 intend to get into it in a legal, technical sense. 19 However, in my submission it's a fundamental part of the 20 consideration of the Commission with respect to the 21 events surrounding the death of Dudley George. And I -- 22 COMMISSIONER SIDNEY LINDEN: Yes, if it 23 weren't fundamental, you wouldn't be asking these 24 questions, I'm sure of that. But I'm just wondering 25 where you're going from here.
2111 MR. MURRAY KLIPPENSTEIN: Well -- 2 COMMISSIONER SIDNEY LINDEN: You've got 3 him to admit on a number of occasions that he viewed it 4 as an illegal trespass. 5 MR. MURRAY KLIPPENSTEIN: Yes. 6 COMMISSIONER SIDNEY LINDEN: And now 7 you've read the section of the Act to him. 8 MR. MURRAY KLIPPENSTEIN: Yes. 9 COMMISSIONER SIDNEY LINDEN: He's not a 10 lawyer, he can't interpret what's next. 11 MR. MURRAY KLIPPENSTEIN: I want to ask 12 him whether or not he was ever -- whether he ever had 13 this concept in this section put to him, or discussed, or 14 in any form of advice or briefing note at all, and I wish 15 to inquire about that. 16 Frankly, to have a Cabinet minister who 17 owns the land, from the Government's point of view, that 18 is being occupied, to be regularly, if you will, and 19 sometimes publicly accusing the occupiers of being 20 trespassers, and there to be no understanding or 21 discussion or consideration of colour of right, in my 22 submission, is a -- potentially something I want to argue 23 about in final argument. 24 COMMISSIONER SIDNEY LINDEN: I think it's 25 open to you to make that argument. It's open to you to
2121 make that argument right now. 2 You've got enough on the record to make 3 that argument. That may be a legitimate argument and I 4 expect you will make it, but I'm not sure what else you 5 need by way of evidence to make that argument now. 6 MR. MURRAY KLIPPENSTEIN: I want to ask 7 and perhaps I should just ask a question or two (2). 8 What I want to do is explore in a little more detail 9 because it's, in my submissio -- 10 COMMISSIONER SIDNEY LINDEN: Fundamental. 11 MR. MURRAY KLIPPENSTEIN: -- it's 12 fundamental and relevant. 13 No, but I -- I think, if I'm not intending 14 to take a whole lot of time -- 15 COMMISSIONER SIDNEY LINDEN: Well -- 16 MR. MURRAY KLIPPENSTEIN: -- in my -- in 17 my submission -- 18 COMMISSIONER SIDNEY LINDEN: -- if -- 19 MR. MURRAY KLIPPENSTEIN: -- it's -- I 20 should be able to ask the questions for purposes of 21 argument. 22 COMMISSIONER SIDNEY LINDEN: Well, you 23 should be able to ask questions for purposes of argument, 24 but there's a limit to how far you go and what is 25 evidence and what is argument.
2131 MR. MURRAY KLIPPENSTEIN: Yes. 2 COMMISSIONER SIDNEY LINDEN: And we 3 talked about this before. 4 MR. MURRAY KLIPPENSTEIN: And in my 5 submission, I haven't gone very far at all, yet. 6 COMMISSIONER SIDNEY LINDEN: I find it's 7 often better to let you ask the question than to argue 8 about whether or not you should ask the question, so I 9 think I'm going to let you ask the question and let's see 10 how far it goes. 11 MR. MURRAY KLIPPENSTEIN: All right. And 12 My Friend may -- may well, I expect, object again, but 13 I -- 14 COMMISSIONER SIDNEY LINDEN: Well, if you 15 don't get too technical and you're asking questions that 16 the Witness has a chance of answering, to give you an 17 evidentiary base -- 18 MR. MURRAY KLIPPENSTEIN: Yeah. 19 COMMISSIONER SIDNEY LINDEN: -- to make 20 your argument, then I don't think there's any objection. 21 22 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 23 Q: Well, Mr. Hodgson, I've read to you 24 one (1) sentence from the Trespass to Property Act which 25 talks about colour of right as a defence --
2141 COMMISSIONER SIDNEY LINDEN: Yes. 2 3 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 4 Q: -- and about a -- what a person 5 believes and reasonably believes about what they were 6 doing on the land. 7 Now, would you agree with me that you were 8 advised, or concluded, that the occupiers of the Park 9 believed that they had a right to be in the Park? 10 A: No, I was not. And secondly, I just 11 have a question for you: Is this a defence of access to 12 property or defence of an occupation which prohibits 13 others from entering the property? 14 Q: Well -- 15 COMMISSIONER SIDNEY LINDEN: You don't 16 want to get into asking a lawyer questions because then 17 we'll really be in trouble. 18 THE WITNESS: Okay. 19 MR. MURRAY KLIPPENSTEIN: Commissioner, 20 he asked; I should answer. 21 COMMISSIONER SIDNEY LINDEN: We'll really 22 be in trouble. 23 THE WITNESS: Okay. 24 COMMISSIONER SIDNEY LINDEN: You'll have 25 to change places.
2151 2 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 3 Q: Well, my -- my question was -- and 4 I'll take this step by step. I believe you said that you 5 did not -- you were not advised that the people in the 6 Park, who were occupying the Park, believed they had a 7 right to be there. 8 Let me ask you this: Isn't it fair to say 9 you assumed that the people in the Park believed they -- 10 they had a right to be there, from everything you had 11 heard? 12 A: No. No. 13 Q: So you believed they were -- they 14 were in the Park and didn't believe they had a right to 15 be there? 16 A: That's correct. We assumed that it 17 was a protest over the Federal inaction to hand back the 18 Military Camp and that -- in a clean state of health, 19 that they hadn't gotten any action on that. 20 There was a progression of events: As 21 described to me it had started in '93 with the occupation 22 of an unoccupied part of the Federal lands. In '95 it 23 progressed to occupation of the occupied portion of the 24 Federal camp property and when they didn't get any action 25 on that it spread over the Provincial Park.
2161 I'd asked the question whether there was 2 demands that had been made. I was told there were none. 3 I asked about title to the property, if 4 there was any claims, has there ever been a -- a land 5 claim initiated; it's a fairly common occurrence in 6 Canada. And I was told no. 7 Q: If you could pick up the binder of 8 IMC meetings notes which, I believe, is white in your 9 copy, a thin white binder. 10 11 (BRIEF PAUSE) 12 13 Q: And if you could turn to Tab, I 14 believe it's Tab 7 -- sorry, 8, in the first part. 15 16 (BRIEF PAUSE) 17 18 A: Okay. 19 Q: One moment please. I may not have 20 the right... 21 22 (BRIEF PAUSE) 23 24 Q: If you could turn, yes, to Tab 8 and 25 at -- there's a handwritten page 2. Do you see that?
2171 MS. SUSAN VELLA: And this is Exhibit P- 2 742. 3 4 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 5 Q: Exhibit P-742, which is Inquiry 6 Document 1011749. And then turn to the next page which 7 is unnumbered. Do you see that? 8 A: So, this is Elizabeth Christie? 9 Q: Yes. 10 A: Who is that? 11 Q: She is a lawyer in the Attorney 12 General's department at the time. 13 A: Yeah. The page is, "A burial ground 14 doesn't give them title." Is that the first page of this 15 document? 16 Q: That's right. 17 A: Okay. So -- and the second page is 18 the one unnumbered? 19 Q: That's correct. Which I take it was 20 the reverse of the numbered page 1 and then numbered page 21 2 and then unnumbered page 2(b), I guess. 22 MR. PETER LAUWERS: What is the line at 23 the top of the page? 24 MR. MURRAY KLIPPENSTEIN: I'm sorry? 25 MR. PETER LAUWERS: What's the line at
2181 the top of the page? 2 3 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 4 Q: The -- the line at the top page is, 5 "Normally shut down." Do you see that? 6 A: Okay. 7 Q: At the bottom of that page: 8 "Why are they there? Unclear but 9 language seems to suggest they claim 10 ownership." 11 Do you see that? 12 A: Yes. 13 Q: All right. And then if you could 14 turn to -- well just leaving at that. Did -- did any of 15 the -- are you telling me that the various MNR people, 16 who were at that meeting or participated by phone call, 17 and I believe it was totaled in six (6) or seven (7), did 18 not convey to you that there was some form of apparent 19 claim of ownership by the occupiers? 20 Did they never tell that to you? 21 A: No, they did not. 22 Q: All right. 23 A: Quite -- quite the contrary. 24 Q: Okay. And so are you telling me that 25 you believed, at the time, that they did not claim a
2191 right to be in the Park other than the burial grounds? 2 Is that your understanding? 3 A: I don't think I, on September 5th, 4 was aware of the burial ground issue. 5 Q: All right. 6 A: Now, this Elizabeth Christie, was she 7 the one that did the minutes up for the meeting? 8 Q: No. 9 A: On the script that I wrote -- okay, 10 that I read from? 11 12 (BRIEF PAUSE) 13 14 Q: And on -- that's September 5th. On 15 September 6th, and there are numerous references that 16 could be referred to. Let me just find a sample that I 17 would like to ask you about. 18 19 (BRIEF PAUSE) 20 21 Q: Okay. If you could turn to the notes 22 for September 6th, Tab 8. It's the second part of the 23 binder, Tab 8. 24 25 (BRIEF PAUSE)
2201 MS. SUSAN VELLA: Exhibit P -- 2 THE WITNESS: I'm on Tab 8. 3 MS. SUSAN VELLA: P-636. 4 THE WITNESS: Which binder, then? 5 6 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 7 Q: This is now the same binder of IMC 8 handwritten meeting notes, same one that we just looked 9 at, and there's a second section for September 6 notes -- 10 A: Is that the -- 11 Q: A new set of tabs. 12 A: Still Tab 8, though? 13 Q: If you go further back, I believe, in 14 the binder, you'll find it. Tab 8, not page 8. 15 COMMISSIONER SIDNEY LINDEN: These are 16 the notes of Eileen -- 17 MS. SUSAN VELLA: The tabs start -- 18 COMMISSIONER SIDNEY LINDEN: -- Eileen 19 Hipfner. 20 MS. SUSAN VELLA: -- over again for the 21 September 6th. 22 MR. MURRAY KLIPPENSTEIN: Yeah, if you -- 23 MS. SUSAN VELLA: So it starts from 1 24 forward. 25 THE WITNESS: Well.
2211 COMMISSIONER SIDNEY LINDEN: Are these 2 Eileen Hipfner's notes? 3 MR. MURRAY KLIPPENSTEIN: Yes. 4 5 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 6 Q: And so these are Exhibit P-636, 7 Inquiry Document 1011784, the notes of Eileen Hipfner. 8 Do you see that? 9 A: Yes. 10 Q: And if you go down halfway there's a 11 reference to, "Updates," and "OPP Ron Fox." 12 Do you see that? 13 A: Yes. 14 Q: If you drop four (4) bullet points 15 down, there's a line that says: 16 "Have made no demands." 17 Do you see that? 18 A: Yes. 19 Q: And the fifth bullet point says: 20 "Asserted it's their land." 21 Do you see that? 22 A: I see that now that you read it out. 23 Q: Yes. And the next bullet point says: 24 "Have raised issue of burial grounds." 25 Is that right?
2221 A: Yes. 2 Q: And if you could turn one tab over, 3 to Tab 9, these are the notes of Elizabeth Christie for 4 September 6th, in the morning of September 6th. It's 5 Inquiry document 1011800. 6 COMMISSIONER SIDNEY LINDEN: Before you 7 leave Eileen Hipfner's, are you going ask him if anybody 8 communicated this -- 9 MR. MURRAY KLIPPENSTEIN: I will after -- 10 COMMISSIONER SIDNEY LINDEN: Are you 11 going to go through it all? 12 MR. MURRAY KLIPPENSTEIN: -- showing -- 13 I'm going to do several. I'm trying to be not too 14 tedious but be sufficiently detailed -- 15 COMMISSIONER SIDNEY LINDEN: All right. 16 Do it your way, that's fine. 17 MR. MURRAY KLIPPENSTEIN: Okay. 18 19 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 20 Q: And so these notes of Elizabeth 21 Christie at Tab 9 are Exhibit P-637, and do you see near 22 the top of the first page, and this is the September 6th 23 IMC meeting, a bullet point that says: 24 "They have made..." 25 Do you see that?
2231 A: No, which page? 2 Q: This is now handwritten page 1 at Tab 3 9 on this... 4 A: Okay, whereabouts? 5 Q: It's about the fourth line down. The 6 bullet point says: 7 "They have made..." 8 Do you see that? 9 10 (BRIEF PAUSE) 11 12 A: Okay. 13 Q: Do you see that? 14 A: "They have made no demands." Is 15 that -- 16 Q: Right. So let me read that then. 17 A: Okay. 18 Q: "They have made no demands, have said 19 that the Park is their land and that 20 the land is a burial site". 21 And that's almost, word for word, the same 22 as the previous notes, right, which seems to say they 23 have made no demands but have said that the Park is their 24 land and that the land is a burial site. 25 Now, a number of witnesses -- there's
2241 other notes that say the same thing, I won't take you to 2 them. Various witnesses have said, including Ms. Jai and 3 Mr. McCabe, that the report in -- on September 6th was 4 clear that the protesters were saying that the Park is 5 their land and that there was a burial ground in it. 6 Now, are you suggesting to me that your 7 staff never said to you that the occupiers were saying 8 that it was their land? 9 A: My recollection is that Ron Vrancart, 10 and any staff or any briefings that I was at, made it 11 clear there was no demands, and there had been no land 12 claim made up on the land. 13 Q: All right. Now, I've heard the term, 14 "formal land claim," as in, "no formal land claim," a 15 large number of times -- 16 A: That -- 17 Q: -- and the phrase -- 18 A: -- was the information that was 19 passed on to me. 20 Q: -- the phrase, "no formal land claim" 21 appears countless times in the various documents, and 22 being a lawyer, I suspect the word "formal" appears not 23 by accident. 24 And you're telling me you were advised 25 that there was no formal land claim made; is that right?
2251 A: That's correct. 2 Q: And you've used the description 3 yourself, No formal land claim; right? 4 A: I'm sorry? 5 Q: You've used the description yourself 6 in your evidence, No formal land claim? 7 A: That's my understanding, based on the 8 advice I was given, yes. 9 Q: Right. And were you ever advised 10 that there was a land claim other than formal, that was 11 made by the occupiers? 12 A: I don't believe so. 13 Q: So you're telling me that, during 14 this period, you, as the Minister of Natural Resources, 15 were never told that the occupiers had said that they 16 believed the Park was their land? 17 A: Not that I recall, specifically; that 18 they were occupying it. I asked about the demands; I was 19 told there was no demands. I asked if there had been any 20 land claims; I was told there had been no formal land 21 claims made. That's the extent of my recollection on 22 that issue. 23 Q: Are you -- would you agree with me 24 that, you, as the Minister of the Crown in charge of the 25 parks, may have been vulnerable to making a wrong
2261 judgment if you weren't advised that the occupiers of the 2 Park were saying that they believed it was their land? 3 Would you agree with me that put you in a 4 difficult position, if that's the case? 5 A: No, I had confidence in the Ministry 6 staff and the legal departments to ascertain if we had 7 title to the property. 8 Q: And would you agree with me it would 9 be very useful to know, when you assess the overall 10 situation, to be advised that the people occupying the 11 Park believed that it was their's? 12 Wouldn't that have been very useful 13 information? 14 A: It would have been helpful, I 15 believe, in getting a fuller understanding, but that 16 wasn't the case. 17 Q: All right. 18 A: It was the IMC meeting that was the 19 basis for the script. That was the only press interview 20 I gave on this topic so I'm assuming these people were -- 21 this is at the IMC meeting? 22 Q: Yes. 23 A: And the script that I delivered to 24 the press scrum came out of that meeting, is my 25 understanding. I'm not referring to, particularly the
2271 September 6th, but on the 5th. 2 3 (BRIEF PAUSE) 4 5 Q: Does it surprise you, now, to read in 6 these note of September 6, and I would suggest even the 7 5th, that it was reported to the IMC that the occupiers 8 said that the Park is their land? 9 Does that surprise you now? 10 A: Well, I wasn't aware of it, for sure, 11 on the 5th, before I did the press interview. And my 12 understanding was that the script that I was given came 13 out of the IMC. 14 Q: Right. And is it possible that you 15 were advised of this by the time of the 6th? 16 A: It's possible that there could have 17 been -- I don't recall the burial site though. I don't 18 recall anything other than no demands and there's been no 19 formal land claim. It's possible somebody mentioned it 20 and was -- it was dismissed by ONAS, but I can't 21 recollect that. 22 Q: And assuming that the occupiers still 23 believe today what these notes report them as believing 24 in 1995, is it helpful for you today to consider the 25 situation of the Park with part of the equation being
2281 that the people occupying the Park believe it's their 2 land? 3 A: Well, I've been under the belief for 4 some time now that they believe that. There should be a 5 formal land claim made. Make a claim. Take it to a 6 court, as you expressed earlier. 7 Q: All right. But you've -- well, let 8 me just explore that. You said you've been of the view 9 that if they believe that, they should file a claim, 10 right? 11 A: Exactly. 12 Q: And are you suggesting that it's 13 impossible for them to believe it without filing a claim? 14 A: No, I think they should act on their 15 belief -- 16 Q: Right. 17 A: -- and file a claim and let a court 18 decide it. 19 Q: All right. So you -- you can -- 20 A: That's -- that's the normal course of 21 event, as I understand. 22 Q: Well, let me explore that. You -- 23 you accept, I take it, that it's possible that they 24 believe it and have for whatever reason not filed a so- 25 called formal land claim?
2291 A: Yeah, in retrospect. I didn't know 2 that on the 5th of September, 1995. 3 Q: All right. 4 A: But after that event, I've been of 5 that belief for some time. 6 Q: Okay. And by belief, I think this 7 was my question: You accept that it's possible that they 8 believe it's their land and they just have never filed a 9 formal land claim? 10 A: I'm assuming that now. 11 Q: Okay. 12 A: Because it -- to my knowledge, there 13 is -- still isn't a formal land claim that's been filed. 14 Q: All right. And can you tell me -- 15 A: I may be corrected on that but that's 16 my understanding. 17 Q: Can you tell me when you began or 18 achieved the realization that the occupiers might believe 19 that it is their land even though they hadn't filed a 20 formal land claim? 21 Was that a few months afterwards or? 22 A: No. It was in relation to the burial 23 site that they believed they have a claim on all the 24 property or parts of the property and I've always been of 25 the view that that should be sorted out.
2301 I think my advice probably included that 2 if -- if it's a strongly held belief that they shouldn't 3 do an occupation, it should go through the court system 4 and prove your case. 5 Q: Well I'm going to ask some questions 6 about that and doesn't -- doesn't that apply to the 7 Ministry as well because we'd seen month after month 8 after month and now year after year, the Ministry appears 9 to say that the occupiers are legal and keeps on saying 10 it as you did and never put it before a court -- 11 A: Well I think they -- 12 Q: -- other than September 7th? 13 A: -- assume they have the title and 14 their legal department, the Attorney General are of that 15 belief. And usually the onus is on people when your 16 name's not on the title it's my understanding according 17 to the legal department, that it's up to somebody else 18 and they challenge that. 19 It's not up to the people that already 20 have their name on the title. 21 Q: So you think it's okay for the 22 Ministry to do nothing for ten (10) years and not 23 actually bring it to court if the Ministry believes they 24 have title? 25 A: I've never been questioned with that
2311 before. 2 MS. SUSAN VELLA: Excuse me. I -- I 3 think that that's, with respect, an unfair question. 4 MR. MURRAY KLIPPENSTEIN: It's all right. 5 I don't need to ask that. 6 7 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 8 Q: Can -- you went through a lot of 9 briefings and -- and discussion about this situation and 10 the period after -- after the shooting on September 6th I 11 take it, is that fair? 12 A: No. It wasn't viewed as an MNR 13 issue. There were issues that came up around it such as 14 the winterization and other things. But the advice I had 15 from my Deputy and others in the Ministry, this was an 16 ONAS issue as lead on .- 17 Q: All right. 18 A: -- so we didn't have a lot of 19 briefings on it. 20 Q: Now you said, I think as an aside a 21 few minutes ago when I was talking about the Ministry 22 going to court, that it wasn't your decision to go to 23 court on September 7th or something like that. 24 Do you recall that statement in .- 25 A: Yes. I think I said it earlier in
2321 the examination around the injunction. 2 Q: Yes. 3 A: Was I asked my opinion on the 4 injunction? I don't recall formally being asked or I 5 think the specific question, I'm going by memory here, 6 was that were you asked about the dropping of the 7 injunction. 8 My answer was no I was not asked. And I 9 wasn't asked about the granting of it either. 10 11 (BRIEF PAUSE) 12 13 Q: I'm not sure that you -- you gave me 14 a -- an answer to a question a few minutes ago which was, 15 do you recall when -- when abouts you began to realize 16 that the occupiers in the Park were claiming that it was 17 their land? 18 Can you tell me more about that? Was it - 19 - do you remember whether at some point you began to 20 realize that there was both as in these notes, burial 21 ground and statements about the Park being their land? 22 You -- did that become clear over time? 23 A: I don't know if I ever knew that. 24 Q: All right. 25 A: I -- I became aware of the potential
2331 for a burial site on the property. 2 Q: Yes. And were you aware that the 3 Park lands were previously the subject of an agreement 4 between the Crown and the Native people, called the 5 'Treaty'? 6 Was that ever brought to your attention, 7 let's say before the time of the shooting? 8 A: Not specifically. My recollection 9 would be that the recognized First Nation council and the 10 chief and the Council were not in favor of the 11 occupation. 12 Q: Right. 13 A: And I would assume that was based on 14 the treaty was with that recognized council and chief. 15 Q: Right. 16 A: But I don't recall the specifics of 17 the discussion on that. 18 Q: All right. Do you recall whether 19 anybody put before you the idea that the Park was the 20 subject of an agreement between the Crown and the First 21 Nations people from a hundred and fifty (150) or more 22 years ago guaranteeing them that land in perpetuity, was 23 that concept ever put before you after the shooting or 24 before or after the shooting, to your recollection? 25 A: No. I should tell you, though, that
2341 there is an assumption that I'm making that all these 2 issues were vetted through the legal branch. 3 Any time we dealt with issues that may 4 have an impact or concerned First Nations, usually legal 5 staff and the deputy Minister would vet that before I got 6 information. 7 Q: Right. And -- 8 A: To make sure that treaties and Court 9 decisions were being abided by. 10 Q: All right. Did it -- I believe you 11 said in your evidence in-chief that you were generally 12 familiar with treaties and the concept of treaties, 13 namely agreements between the Crown and/or the government 14 and native groups that may have taken place hundred (100) 15 or two hundred (200) years ago. 16 You were familiar with that, generally 17 speaking, right? 18 A: Generally speaking. I wouldn't say I 19 was anywhere near an expert on it. 20 Q: All right. And, in fact, you'd said 21 that you understood that because of changes in the 22 Constitution, there was some situations where treaty 23 agreements of that nature took precedent over Canadian 24 and Provincial law, right? 25 A: Well, my understanding is that when
2351 we -- we repatriated the Constitution, treaty and 2 Aboriginal rights went ahead of Federal and Provincial 3 law. 4 Q: Right, right. And if I could ask you 5 to pick up the white binder before you. Sorry, the 6 large, thick white binder that we prepared for you. 7 MR. MURRAY KLIPPENSTEIN: And, 8 Commissioner, this is simply a copy of a binder that was 9 prepared for another witness, Julie Jai, previously and I 10 don't think I'll refer to it all but rather than redoing 11 an index and -- and I just have reused this particular 12 collection. 13 14 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 15 Q: And if you could turn in that to Tab 16 14. 17 18 (BRIEF PAUSE) 19 20 Q: And do you see the heading, Indian 21 Treaties and Surrenders? 22 A: Yes. 23 Q: And I notice that the -- this is a -- 24 a -- an official Ottawa government publication. It's 25 used the word "surrenders" as much bigger than the word
2361 "treaties", and it's neither here nor there. 2 And if you can see the first copied set of 3 pages, identified as 70 and 71. 4 A: Yes. 5 MR. MURRAY KLIPPENSTEIN: And 6 Commissioner, I wonder if I could, and this being Inquiry 7 Document 4000023, have this particular excerpt made an 8 exhibit? 9 COMMISSIONER SIDNEY LINDEN: Which 10 excerpt, the two (2) pages? 11 MR. MURRAY KLIPPENSTEIN: This is -- I 12 believe it's four (4) pages, five (5) pages. 13 COMMISSIONER SIDNEY LINDEN: Was this not 14 made an exhibit before? I know it's been referred to. 15 MR. MURRAY KLIPPENSTEIN: I don't think 16 this particular excerpt was made -- 17 COMMISSIONER SIDNEY LINDEN: Oh, okay. 18 MR. MURRAY KLIPPENSTEIN: -- an exhibit. 19 I've tried to reduce the number of pages and underline 20 the parts I want to refer to, to make it simpler. 21 I'm quite content not to have an exhibit 22 but this may simplify some references and I'm totally in 23 your hands. 24 COMMISSIONER SIDNEY LINDEN: Well, let's 25 see where you're going with it.
2371 MR. MURRAY KLIPPENSTEIN: All right. 2 COMMISSIONER SIDNEY LINDEN: -- And we 3 can make it an exhibit. 4 MR. MURRAY KLIPPENSTEIN: I see My Friend 5 standing beside me. I don't think it's to help -- 6 COMMISSIONER SIDNEY LINDEN: I'm not sure 7 if he's making an objection or just getting ready. 8 MR. PETER LAUWERS: Well, I -- you know, 9 maybe you can call this clearing my throat, but in my 10 respectful submission, it's completely inappropriate to 11 put to this witness a treaty concerning an Indian Treaty. 12 This Witness gave no evidence on any of 13 these issues. He's advised the Commission that he relied 14 on legal advice from the -- from ONAS and from the 15 Attorney General on the state of title to the property. 16 My Friend wants to get into, clearly, 17 surrenders and treaties which is so far away from this 18 witness' expertise that it's completely unfair to even 19 raise the question. 20 So I would encourage you in the interests 21 of shortening this exercise down -- 22 COMMISSIONER SIDNEY LINDEN: Yes. 23 MR. PETER LAUWERS: This witness has no 24 expertise to offer, no evidence to offer on any of this, 25 with the greatest of respect.
2381 COMMISSIONER SIDNEY LINDEN: I suspect -- 2 MR. PETER LAUWERS: My Friend's trying to 3 tee off on the witness, and that's not fair. 4 COMMISSIONER SIDNEY LINDEN: No, I 5 suspect that this witness doesn't have any information or 6 any evidence that would be of assistance, but I'm not 7 sure where you're going. It's -- 8 MR. MURRAY KLIPPENSTEIN: If I can 9 comment on that, because I'm not sure that finishes the 10 discussion. 11 COMMISSIONER SIDNEY LINDEN: No, that's 12 not the point. 13 MR. MURRAY KLIPPENSTEIN: I'm obviously 14 interested in the witness' knowledge and information and 15 belief, but I -- my submission in this kind of setting, 16 it's equally important, possibly, for the job you have to 17 do to know what the information -- what the witness may 18 not -- may not know -- 19 COMMISSIONER SIDNEY LINDEN: Yes. 20 MR. MURRAY KLIPPENSTEIN: And not be 21 aware of. 22 COMMISSIONER SIDNEY LINDEN: Yes. 23 MR. MURRAY KLIPPENSTEIN: And this 24 particular witness is a Minister of the Crown and as -- 25 COMMISSIONER SIDNEY LINDEN: He was.
2391 MR. MURRAY KLIPPENSTEIN: -- was at the 2 time. And as a minister of the Crown and as -- 3 COMMISSIONER SIDNEY LINDEN: He was. 4 MR. MURRAY KLIPPENSTEIN: -- was at the 5 time. And as a minister of the Crown, Mr. Hodgson -- 6 COMMISSIONER SIDNEY LINDEN: Yes. 7 MR. MURRAY KLIPPENSTEIN: -- represents 8 much more than the mere facts in his head. 9 COMMISSIONER SIDNEY LINDEN: Yes, this is 10 not the time to make argument. I understand what you're 11 saying -- 12 MR. MURRAY KLIPPENSTEIN: Yes. 13 COMMISSIONER SIDNEY LINDEN: -- Mr. 14 Klippenstein, and I believe that there may be a lot of 15 things this Witness doesn't know, for one reason or 16 another, but I think it's important that we try to stick 17 to what he does know, in terms of asking him his 18 evidence. 19 MR. MURRAY KLIPPENSTEIN: Well, I will 20 try and stick to what he does know, Commissioner, but to 21 be honest, I think I must work on the borderline. And 22 I'm entitled to investigate what he doesn't know because, 23 frankly, for argument, I may well want to argue -- 24 COMMISSIONER SIDNEY LINDEN: Yes. 25 MR. MURRAY KLIPPENSTEIN: -- that the
2401 fact that a minister of the Crown of Natural Resources 2 dealing with the Park occupation knows -- 3 COMMISSIONER SIDNEY LINDEN: Yes. 4 MR. MURRAY KLIPPENSTEIN: -- "X" or does 5 not know "X" about a fundamental, in my submission, 6 treaty, may be significant. 7 COMMISSIONER SIDNEY LINDEN: Well, you 8 can ask that in one (1) question, if he knows anything 9 about these treaties -- 10 MR. MURRAY KLIPPENSTEIN: Well, that's -- 11 COMMISSIONER SIDNEY LINDEN: If he 12 doesn't then I think we ought to move on. 13 MR. MURRAY KLIPPENSTEIN: That's why I'm 14 presenting a copy with an underlined section and so -- 15 COMMISSIONER SIDNEY LINDEN: But it 16 doesn't help to read him sections, either he's familiar 17 with the treaty and then you can go into it, or he isn't. 18 MR. MURRAY KLIPPENSTEIN: Well, 19 Commissioner, I -- 20 COMMISSIONER SIDNEY LINDEN: If he isn't 21 familiar with it then what's the point of just -- 22 MR. MURRAY KLIPPENSTEIN: Well, the point 23 may be, in my submission, extraordinarily important and 24 it's my argument and my position it may be and I -- I 25 may, with respect, feel I should be entitled to ask this
2411 Witness -- 2 COMMISSIONER SIDNEY LINDEN: All the 3 things he doesn't know? 4 MR. MURRAY KLIPPENSTEIN: No, and I've 5 never taken that position. But certain things, I would 6 like to suggest, are particularly relevant to the exact 7 facts in this case. And I don't intend to make a 8 theoretical argument about -- 9 COMMISSIONER SIDNEY LINDEN: Well -- 10 MR. MURRAY KLIPPENSTEIN: -- about 11 treaties, I intend to ask about this particular situation 12 in this Park. And in my -- in my submission, if the 13 Minister of the Crown does not know anything about the 14 treaty, that is something that may be quite -- I should 15 be entitled to -- 16 COMMISSIONER SIDNEY LINDEN: I think you 17 should ask that question. 18 MR. MURRAY KLIPPENSTEIN: Yes. 19 COMMISSIONER SIDNEY LINDEN: And I think 20 we've agreed on that. 21 MR. MURRAY KLIPPENSTEIN: But -- 22 COMMISSIONER SIDNEY LINDEN: Ask that 23 question. See what that answer is and where we go from 24 there. 25 MR. MURRAY KLIPPENSTEIN: Well, I'd like
2421 to begin by -- by asking the one (1) -- by referring to 2 one (1) sentence in the treaty, if you could -- 3 COMMISSIONER SIDNEY LINDEN: Well -- 4 MR. MURRAY KLIPPENSTEIN: -- at page 72, 5 which is the printed page 72. 6 MR. PETER LAUWERS: With respect, Mr. 7 Commissioner, My Friend seems to want to get the Witness 8 into the treaty without asking the fundamental question 9 if the Witness has ever seen -- 10 COMMISSIONER SIDNEY LINDEN: Yes. 11 MR. PETER LAUWERS: -- or is familiar 12 with the treaty. 13 COMMISSIONER SIDNEY LINDEN: I -- 14 MR. PETER LAUWERS: That's the first 15 question. 16 COMMISSIONER SIDNEY LINDEN: The language 17 in the treaty, if he doesn't know anything about the 18 treaty, then I don't think it's useful to ask him 19 specific questions about the language in the treaty. 20 MR. MURRAY KLIPPENSTEIN: Well, with 21 respect, Commissioner, I think if -- if I may have the 22 opportunity to try and convince you that it may be very 23 important for a former or then-time Minister of the Crown 24 to have, in a timely manner, a document put before him 25 that deals with the Minister's mandate and ask, even if
2431 he never saw it before, say is this potentially relevant? 2 If not, why not? And so forth. I mean -- 3 COMMISSIONER SIDNEY LINDEN: I'd like you 4 to ask him if he knows anything about the treaty and if 5 he does then we'll proceed from there to see what he does 6 know and doesn't know. But if you don't establish that 7 he has some knowledge of the treaty, some knowledge, then 8 I'm not sure where -- 9 MR. MURRAY KLIPPENSTEIN: Well, 10 Commissioner, I -- if I -- 11 COMMISSIONER SIDNEY LINDEN: You haven't 12 asked a question yet so... 13 MR. MURRAY KLIPPENSTEIN: Well, I -- I 14 tried to and I will try again. 15 16 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 17 Q: Mr. Hodgson, if you could look at 18 printed page 72 at -- at Tab 14? 19 COMMISSIONER SIDNEY LINDEN: It's the 20 question about the treaty in general you need to ask 21 first. 22 23 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 24 Q: Mr. Hodgson, at the time -- Mr. 25 Hodgson, when you were the Minister of Natural Resources,
2441 as a representative of the Crown, in the period around 2 1995, before and after the shooting of Dudley George at 3 Ipperwash Park, did you have any knowledge or any 4 awareness, whatsoever, of what's labelled Treaty Number 5 29, which covered the lands that were, at that time, 6 Provincial Park -- Ipperwash Provincial Park? 7 A: No, I did not. 8 Q: Commissioner, I think, in my 9 submission, I should be entitled to ask -- to put to the 10 Minister in a -- an efficient way, some elements of that 11 treaty. 12 COMMISSIONER SIDNEY LINDEN: That he 13 doesn't know anything about? 14 MR. MURRAY KLIPPENSTEIN: That he doesn't 15 know anything about it because -- 16 COMMISSIONER SIDNEY LINDEN: And ask him 17 what? 18 MR. MURRAY KLIPPENSTEIN: In my -- in my 19 submission, and I will - I don't want to -- I don't want 20 to make argument now, Commissioner. 21 COMMISSIONER SIDNEY LINDEN: It's pure 22 argument. 23 MR. MURRAY KLIPPENSTEIN: I -- 24 COMMISSIONER SIDNEY LINDEN: It is. I 25 mean you're saying that because that's what it is, it's
2451 pure argument. 2 MR. MURRAY KLIPPENSTEIN: But no, the 3 argument is not for the overall issues, Commissioner. 4 The argument that I'm putting to you right now is just 5 asking to be able to explore the knowledge or lack 6 thereof of the -- the Crown representative at the time, 7 and in my submission, the lack of knowledge on a 8 particular point may be significant. 9 COMMISSIONER SIDNEY LINDEN: I think -- 10 MR. MURRAY KLIPPENSTEIN: That's all I'm 11 saying. 12 COMMISSIONER SIDNEY LINDEN: I think it 13 may be. I am not disagreeing with you. 14 MR. MURRAY KLIPPENSTEIN: I -- 15 COMMISSIONER SIDNEY LINDEN: I just think 16 it's not evidence, it's argument. I'm not disagreeing 17 with you. 18 Yes, Ms. Vella...? 19 MS. SUSAN VELLA: Just two (2) things. 20 The first is the surren -- the Treaty is not Inquiry 21 Document Number -- it is, all right, thank you very much. 22 My -- my concern is that we should wait 23 for questions to be -- to be asked before objections are 24 raised. But given Mr. Hodgson's answer that he is not 25 familiar with the Treaty or the contents of it and did
2461 not receive any advice about it, what Mr. Klippenstein 2 would necessarily be asking for is a conclusion of law 3 with respect to the potential application of provisions 4 of the Treaty to the fact situation. 5 He is not a legal historian, he is not a 6 lawyer. If he had been briefed and provided with advice, 7 then, you know, the -- the details of the advice could be 8 explored. 9 But in my respectful submission, with the 10 answer that we have, there is no further fruitful cross- 11 examination, at least on the contents of the Treaty, that 12 can be fairly put to this witness that doesn't call for a 13 conclusion of law. 14 COMMISSIONER SIDNEY LINDEN: So you think 15 the question that has been asked so far is fair and 16 appropriate and that's as far as it should go? 17 MS. SUSAN VELLA: That's right. 18 COMMISSIONER SIDNEY LINDEN: Is that your 19 view? 20 MS. SUSAN VELLA: With respect to the 21 contents of the Treaty -- 22 COMMISSIONER SIDNEY LINDEN: Yes. 23 MS. SUSAN VELLA: -- and how they might 24 apply to this situation, in retrospect. 25 COMMISSIONER SIDNEY LINDEN: Yes.
2471 MR. MURRAY KLIPPENSTEIN: My -- My Friend 2 may be misunderstanding what I -- and I've repeatedly 3 used the phrase, 'colour of right', which other witnesses 4 like Mr. McCabe and others have talked about the 5 importance of, that -- 6 COMMISSIONER SIDNEY LINDEN: Lawyers. 7 MR. MURRAY KLIPPENSTEIN: Lawyers. But 8 what this is -- it's not just about lawyers, certainly. 9 I mean the people in the Park, according to this 10 evidence, said it's their land, and in my submission, are 11 we going to -- am I required to treat that as a non fact, 12 as something that has no significance? 13 My -- what -- what I propose to do is 14 simply put before the witness a Treaty which it -- it 15 cannot be questioned. Many First Nations people put 16 enormous -- and there's testimony on this, weight. And 17 then if the Minister says -- 18 COMMISSIONER SIDNEY LINDEN: Yes. 19 MR. MURRAY KLIPPENSTEIN: -- I know 20 nothing about it, in this context in the Inquiry, in my 21 submission, I should be able to put, in an efficient way, 22 to him and say, Might this be significant and what about 23 this -- 24 COMMISSIONER SIDNEY LINDEN: I -- 25 MR. MURRAY KLIPPENSTEIN: -- for -- this
2481 is not a witness, in my -- in my submission, who's 2 testifying about a car accident who saw -- I saw this and 3 then I saw this. 4 This is the Minister of the Crown 5 administering in a policy and -- 6 COMMISSIONER SIDNEY LINDEN: But he 7 doesn't know anything about it. So, you know, Mr. 8 Klippenstein, I don't think that not being able to ask 9 him the questions you want to, in any way inhibits you 10 from making the argument that you want to make. 11 MR. MURRAY KLIPPENSTEIN: Well, 12 Commissioner, I am trying to be, if you -- if you can 13 believe it, constructive for purposes of this Inquiry in 14 the sense that -- 15 COMMISSIONER SIDNEY LINDEN: Then move 16 on. 17 MR. MURRAY KLIPPENSTEIN: Well, if -- 18 COMMISSIONER SIDNEY LINDEN: Thank you. 19 I really don't see how you're being in any way inhibited 20 from making your argument. If I did, I'd listen to you 21 some more. But I know you can make your argument on the 22 basis of the Treaty and you will make it, I'm sure. 23 MR. MURRAY KLIPPENSTEIN: Well, 24 Commissioner, I -- I -- if I -- if you rule that I must 25 move on, I, of course, will respectfully do so. But
2491 Commissioner, I -- I must say and I must request that I 2 am -- I will have difficulty being constructive, for 3 purposes of this Inquiry, if I am not able to describe 4 the interface between the Treaty and the knowledge and 5 actions of players at the time. 6 COMMISSIONER SIDNEY LINDEN: I'm not sure 7 how that plays out. I'm not sure that I understand that. 8 MR. MURRAY KLIPPENSTEIN: Well the -- 9 COMMISSIONER SIDNEY LINDEN: I think that 10 you've made -- 11 MR. MURRAY KLIPPENSTEIN: In my -- in my 12 submission the -- the terms of ref -- 13 COMMISSIONER SIDNEY LINDEN: I understand 14 that the Treaties are important; I certainly do. And we 15 spent considerable time discussing the Treaties in our 16 evidence months and months ago. 17 MR. MURRAY KLIPPENSTEIN: Well, the -- 18 the terms of reference of the Inquiry specify that the 19 Commissioner must strive to -- to understand what 20 happened and how to avoid violence in the future. And my 21 whole point is that this Treaty is precisely part of that 22 intersection. I mean -- 23 COMMISSIONER SIDNEY LINDEN: I'm not 24 preventing you from arguing that, in no way, shape or 25 form.
2501 (BRIEF PAUSE) 2 3 MR. KEVIN SCULLION: Sorry, Mr. 4 Commissioner, I just felt the need to arise. I thought 5 that there might be a potential for a ruling on whether 6 or not we can touch on treaties or the surrenders with 7 this witness. 8 Perhaps I'm just looking for some guidance 9 that we're -- 10 COMMISSIONER SIDNEY LINDEN: Well, I'm 11 not sure. You will ask a question, and if it's an 12 appropriate question, you will be able to ask it. 13 MR. KEVIN SCULLION: I just wanted to 14 make sure that we weren't being -- 15 COMMISSIONER SIDNEY LINDEN: Well, I'm 16 trying not to -- 17 MR. KEVIN SCULLION: -- a ruling made on 18 that particular issue. 19 COMMISSIONER SIDNEY LINDEN: I'm trying 20 not to be. Mr. Klippenstein asked him if he had any 21 knowledge of this Treaty, he said he did not. And now he 22 wants to go on and ask him questions about the Treaty 23 that he says he knows nothing about. 24 And I'm saying -- 25 MR. KEVIN SCULLION: Or any knowledge he
2511 might have with that respect. I -- I understand that a 2 ruling hasn't been made on the issue, it's simply with 3 respect to one (1) or two (2) questions that may have 4 been asked inadvertently or out of turn by Mr. 5 Klippenstein. 6 COMMISSIONER SIDNEY LINDEN: I'm not sure 7 what you're saying. 8 MR. MURRAY KLIPPENSTEIN: Commissioner, 9 if I -- if I can just, as part of the same discussion, 10 the -- the document brief prepared by the Commission 11 Counsel at page -- at Tab 27, has Exhibit P-659 which may 12 be -- may be helpful to this -- to this issue. 13 COMMISSIONER SIDNEY LINDEN: Which 14 document brief is that, the one that -- 15 MR. MURRAY KLIPPENSTEIN: That's the 16 Commission Counsel document brief. 17 18 (BRIEF PAUSE) 19 20 COMMISSIONER SIDNEY LINDEN: Yes. 21 MR. MURRAY KLIPPENSTEIN: It is -- is the 22 white -- the black binder prepared by -- 23 COMMISSIONER SIDNEY LINDEN: What tab 24 number? 25 MR. MURRAY KLIPPENSTEIN: It's at Tab 27.
2521 (BRIEF PAUSE) 2 3 MR. MURRAY KLIPPENSTEIN: And the -- that 4 document is dated September 7th, that again is Exhibit 5 659, document 1011845. 6 COMMISSIONER SIDNEY LINDEN: Yes. 7 MR. MURRAY KLIPPENSTEIN: At the bottom 8 of the first page, September 7th, 1995, Interministerial 9 group. 10 Material for Ron Vrancart, who I believe 11 was obviously Mr. Hodgson's deputy Minister and it's 12 called a background note -- the first interior page and 13 under the background, the first two (2) bullet points 14 say: 15 "The Chippewa Nation of Indians 16 surrendered their territories to the 17 Crown in 1825." 18 COMMISSIONER SIDNEY LINDEN: Yes. 19 MR. MURRAY KLIPPENSTEIN: And the second 20 one, 21 "Two (2) reserves, the Kettle Point 22 reserve and the Stoney Point reserve 23 were confirmed in 1827." 24 COMMISSIONER SIDNEY LINDEN: That's 25 already in evidence in this Inquiry.
2531 MR. MURRAY KLIPPENSTEIN: It -- it's in 2 evidence and it not only raises the issue of the treaty, 3 but it's in error. It's mistaken. 4 COMMISSIONER SIDNEY LINDEN: Well, I'm 5 not sure what the evidence of our expert witnesses on 6 this was at this point, but they spoke to these matters. 7 MR. MURRAY KLIPPENSTEIN: Well, in my 8 submission, I -- one moment, I might -- perhaps My Friend 9 has a question. 10 MR. PETER ROSENTHAL: I'd like to try to 11 make a useful suggestion. I hope it will be taken that 12 way by you, Mr. Commissioner, and by Mr. Klippenstein. 13 This person is not an expert on treaties; 14 he can't tell us how to interpret treaties but he could 15 answer questions of the following form. 16 If the treaties -- if you knew there was a 17 treaty that said this, would that have affected your 18 doing this and so on. There could be questions of that 19 type which might -- 20 COMMISSIONER SIDNEY LINDEN: There are 21 lots of -- 22 MR. PETER ROSENTHAL: -- be entirely 23 appropriate. 24 COMMISSIONER SIDNEY LINDEN: -- questions 25 that could be asked. I think there are lots of questions
2541 that could be asked. I haven't said -- 2 MR. PETER ROSENTHAL: No, no -- 3 COMMISSIONER SIDNEY LINDEN: -- that you 4 can't ask questions. 5 MR. PETER ROSENTHAL: No, no I do 6 appreciate that, Mr. Commissioner, and I was suggesting a 7 kind of question that might be appropriate for a witness 8 who knows nothing about a treaty. 9 But still it might be -- in light of this 10 in treaty excepting that that is in the treaty, which you 11 don't know about, would that mean this to you in your 12 role as Minister of Natural Resources? 13 MR. MURRAY KLIPPENSTEIN: Well, let me -- 14 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 15 Vella...? 16 MS. SUSAN VELLA: I mean, the 17 qualification, the caution that I indicated was that this 18 witness should not be asked a question which requires a 19 legal conclusion. That's -- that was the limits of the 20 objection I made. I don't disagree with what Mr. 21 Rosenthal has said. 22 MR. MURRAY KLIPPENSTEIN: I apologize if 23 my questions appeared to -- to sort of be directed to or 24 include a legal conclusion; that wasn't my intention and 25 I...
2551 Let me try and rephrase the questions. 2 COMMISSIONER SIDNEY LINDEN: Well, I'm 3 not sure where we're going to go now. It's quarter to 4 5:00. I'm not sure where we're going to go and how we're 5 going to proceed, but I don't want to cut you off, I 6 really don't, because I know that you're embarking on 7 what you consider an important part of your case. 8 So I don't want to, but I'm not sure how 9 much more you can do. So what do you suggest we do? 10 MR. MURRAY KLIPPENSTEIN: Well, I'm just 11 trying to reframe a question along the lines of what 12 Commission Counsel has just suggested. 13 COMMISSIONER SIDNEY LINDEN: Well, let's 14 see if you ask the question, if it raises an objection or 15 not. 16 17 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 18 Q: If I could refer you, Mr. Hodgson, to 19 the Commission Counsel's document brief and let me try 20 and take a step backwards, first, and turn your attention 21 to Tab -- Tab 65. 22 23 (BRIEF PAUSE) 24 25 COMMISSIONER SIDNEY LINDEN: Is this the
2561 document that we've put in as an exhibit today? 2 MR. MURRAY KLIPPENSTEIN: This was a -- 3 this is Exhibit P-1012 -- 4 COMMISSIONER SIDNEY LINDEN: Yes. 5 MR. MURRAY KLIPPENSTEIN: Inquiry 6 Document 1004052, which Commission Counsel reviewed 7 briefly in examination in-chief. 8 9 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 10 Q: And it's a letter from yourself, as 11 Ministry of Natural Resources and Northern Development 12 and Mines, Mr. Hodgson, to the Federal Minister of Indian 13 Affairs and the Federal Minister of National Defence. 14 Is that right? Do you recognize that? 15 A: Yes. 16 Q: And if I could turn your attention to 17 page 2 of that letter it says -- I believe this was not 18 gone into by Commission Counsel: 19 "Ontario is not aware of First Nation - 20 - of the First Nations' grievance 21 around the creation of the Park. It is 22 the position of Ontario that any 23 grievance that the First Nation may 24 have pertaining to the creation of the 25 Park would be cause for a grievance
2571 against Canada resulting from its 2 handling of the original surrender." 3 So this is talking about potential 4 grievance of First Nations people about the creation of 5 the Park back in the '30's. Have I got that right? 6 A: I assume so. 7 Q: Yeah. And continuing to the next 8 paragraph: 9 "Ontario is satisfied that the Province 10 has clear title to the property based 11 on property transfers subsequent to the 12 original surrender and based on the 13 original surrender itself." 14 So what this letter to the Federal 15 Ministers is saying is that Ontario is satisfied that it 16 has clear title based on the original surrender itself to 17 use your words, right? 18 A: Hmm hmm. 19 Q: And then continuing: 20 "If Canada is aware of any questions 21 arising from the original surrender I 22 would urge Canada to clarify and 23 rectify this situation immediately. I 24 believe that there is an urgent need to 25 have the historical record reviewed and
2581 confirmation made by Canada that the 2 lands in question pertaining to 3 Ipperwash Provincial Park were validly 4 surrendered." 5 So you say that you believe, and this is 6 written in April of 1996, you say that you believe there 7 is an urgent need to have the historical record reviewed 8 in relation to the surrender of land that became 9 Ipperwash Park, right? 10 A: Yes. 11 Q: Now, as I understand it you're asking 12 for more information about the surrender and the status 13 of the surrender; is that fair? 14 A: That's fair. 15 Q: And the reason you are asking for 16 this in this letter was because you or your advisors were 17 concerned that questions appear to be continuing about 18 the status of the Park, particularly arising from that 19 surrender. 20 Is that right? 21 A: That's an assumption that -- and I'm 22 assuming here that this came out of discussions with Mr. 23 Girman. It would have gone through the Legal Department 24 at ONAS and this was a letter that was generated to try 25 to clarify some of these issues.
2591 Q: So at -- 2 A: Let me just add this. Any time it 3 came to First Nation issues there were letters of a 4 technical nature. I always as Minister relied on the 5 expertise of the Ministry staff and the AG's department. 6 Q: All right. But I think you said -- 7 A: That's similar to treaties or -- or 8 any other facets of the law. 9 Q: Right. But you signed this letter 10 and it's -- it's a fairly important letter from one (1) 11 minister of the Crown provincially to the equivalent 12 Federal minister. It's pretty -- 13 A: That's right. I believe I got an 14 answer to that letter. 15 Q: Yes, and I'll get to that in a 16 minute, but you said this arose from the discussions that 17 Mr. Girman had? 18 A: My assumption is that this would 19 have -- 20 Q: Okay. 21 A: -- come out of that process. 22 Q: So am I right -- 23 A: I wasn't privy to what the actual 24 context is but that's my assumption. 25 Q: But your reading is that after the
2601 shooting Mr. Girman was commissioned to talk to people 2 and try and get a sense of what the issues were. 3 Is that right? 4 A: It was actually after I met with 5 Chief Bressette -- 6 Q: Okay. 7 A: -- that series of events took place. 8 Q: And -- 9 MS. SUSAN VELLA: I'm sorry, just -- just 10 in fairness to the Witness at Tab 70 it indicates that on 11 May the 17th you appointed Lloyd Girman so that just may 12 clarify the record as to what the source of your April 13 correspondence was. 14 THE WITNESS: Okay. So that was May that 15 Lloyd was appointed? 16 MS. SUSAN VELLA: Exhibit P-921. Yes, 17 May 17th. 18 MR. MURRAY KLIPPENSTEIN: Yes. 19 THE WITNESS: So it's the same time 20 period. Lloyd wasn't the -- the genesis for this letter 21 then? 22 23 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 24 Q: Right, but it was part of a time 25 period when actually I guess -- and that's the -- the
2611 Minister's note for Mr. Vrancart, you and your provincial 2 colleagues were looking for a step forward to understand 3 the issues and that was why Lloyd Girman was appointed to 4 talk to people and try and -- and drill -- 5 A: I believe so, yes. 6 Q: -- drill down to the issues, right? 7 A: I believe so, yes. 8 Q: Yeah. And is it fair to say that 9 your letter of April, though it came before the 10 appointment of -- of Girman, was of the same nature 11 because it's a fairly detailed letter which specifically 12 asks about the surrender. 13 So I take it you didn't sit down one 14 evening and write that letter, but it's a letter you 15 signed after your advisors based on the accumulating 16 evidence were trying to find a step forward, right? 17 A: That's my assumption. I can't recall 18 the specifics of when I signed it, but that's my 19 assumption. 20 COMMISSIONER SIDNEY LINDEN: Okay. 21 22 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 23 Q: But this is a high level, very 24 important letter between senior ministers and you chose 25 to be or your -- based on your advice chose to be very
2621 blunt about -- about what you wanted. And you wanted -- 2 you specifically asked if Canada is aware of any 3 questions arising from the original surrender, you urge 4 Canada to clarify and rectify this and you say, I believe 5 that there is an urgent need to have the historical 6 record reviewed. 7 And then you go on and -- and you want 8 confirmation from Canada that the lands that were 9 surrendered were valid, right? 10 So you focussed on the surrender that -- 11 that underlies the Park lands. Is that fair? 12 A: This would have probably been drafted 13 by the lawyers in the Government, though a caution around 14 the definition of 'urgent'; that probably means within 15 our lifetime when you're dealing with government. 16 Q: Well, I notice that the reply took 17 three (3) months or whatever but -- 18 A: Okay. I just wanted to caution you 19 on that. 20 Q: I am a lawyer, urgent is even longer 21 for us, but -- 22 MR. PETER LAUWERS: Do you want to be 23 here in three (3) months? 24 25 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
2631 Q: And -- and you received a response 2 back and that's at Tab 72, right? 3 4 (BRIEF PAUSE) 5 6 COMMISSIONER SIDNEY LINDEN: That's 7 Exhibit 1013. 8 MR. MURRAY KLIPPENSTEIN: I'm sorry. 9 Thank you, Commissioner 10 COMMISSIONER SIDNEY LINDEN: That's fine, 11 Exhibit 1013. 12 13 MR. MURRAY KLIPPENSTEIN: Yes. 14 15 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 16 Q: So that's the response you got back? 17 18 (BRIEF PAUSE) 19 20 Q: I -- I believe it is after carefully 21 looking at it and if -- 22 A: We had a couple of letters -- 23 Q: Right. 24 A: -- that went back and forth. 25 Q: Precisely. I'll -- I'll take you
2641 tentatively to the next step. After you received that 2 letter from your -- your Federal counterpart Mr. Irwin 3 you, I guess with your advisors, wrote back again and 4 that's at Tab 73. 5 A: 73? 6 Q: Yes, which is Exhibit 1014. 7 A: Okay. 8 Q: Do you see that? Let me just look at 9 that for a moment. And this is a letter, original signed 10 by yourself, and it's to Minister Irwin of Indian 11 Affairs. 12 And I note that it's CC'd to a large 13 number of ministers including the Attorney General of 14 Ontario, the Solicitor General of Ontario, Marcel 15 Beaubien, Chief Tom Bressette, a few mayors, some folks 16 in Ontario Parks, and so forth. 17 And -- and this is September 9th, 1996. 18 You thank the Federal Minister for the response of June 19 14th but then you say: 20 "I am concerned that your response did 21 not address a key issue which Ontario 22 believes is fundamental to the present 23 illegal occupation of the Park. That 24 issue revolves around any grievance the 25 First Nation may have about the
2651 original surrender of the lands and the 2 subsequent creation of the Park." 3 So you went to the trouble with your 4 advisors, with the assistance of your advisors, of 5 writing back to the Federal Minister -- 6 A: Right. 7 Q: -- because the specific point you 8 were interested in your view had not been squarely 9 answered so you said that is a fundamental issue, can I 10 have a response? 11 Is that fair? 12 A: That's fair. 13 Q: And that issue identified by yourself 14 with your advisors was the surrender of the Park lands... 15 A: And their grievance, potential 16 grievance with Canada, is there one? 17 Q: Right. Now, first of all let me go 18 back. You -- you say in your letter: 19 "Ontario believes the issue is 20 fundamental to the present illegal 21 occupation of the Park." 22 Now, is it fair to say when you -- you 23 said that as the Minister for Ontario that you were 24 referring to the relationship between the occupation 25 which you say is illegal and the question of the
2661 surrender which is the basis for Ontario's claim that 2 it's illegal? 3 Is that logical so far? I don't -- I 4 don't mean to -- to -- 5 A: Yeah. The way I looked at it at the 6 time, the lawyers could probably go into more technical 7 explanation, was that we were satisfied with a great 8 degree of certainty that Ontario's title and the chain of 9 title was secure for Ontario, how we came into ownership 10 of the Park. 11 The question is: Were there any files 12 similar to Ron Irwin's visit around the grave site that 13 we were unaware of, that they knew of? 14 Q: Yes. 15 A: That they could shed some light on 16 this for us. 17 Q: Yes. 18 A: So there wouldn't be surprises such 19 as Mr. Irwin showing up with a -- a file that we'd never 20 seen. 21 Q: Yes. 22 A: At that time and took three (3) 23 months to find it. 24 Q: Yes. And so that's why, in the 25 second last letter, you say,
2671 "Can you confirm at this time that the 2 lands at Ipperwash Provincial Park were 3 validly surrendered to Canada?". 4 Right? That's kind of the gist -- 5 A: Yeah. 6 Q: -- of your letter? 7 A: That's the gist of it, yeah. 8 Q: Yeah. And this is the second time 9 you've asked them, right? 10 A: Hmm hmm. I believe he responded as 11 well. 12 Q: I'm sorry? 13 A: I believe there's a response -- 14 Q: Yes. I was just going to turn to 15 that, that's at Tab 74, that's Exhibit 1015. 16 And that letter is -- is addressed to you 17 by the Federal Minister of Indian Affairs, and again cc'd 18 to several other Ministers; correct? 19 A: Yes. 20 Q: And the Federal Minister begins by 21 saying, 22 "This is in response to your letter of 23 September 9th, 1996, expressing 24 concerns about the occupation and any 25 grievance the Chippewas of Kettle and
2681 Stony Point First Nation may have about 2 the original surrender of the lands and 3 the subsequent creation of the Park." 4 Again, the focus now has -- has, as you 5 originally intended, come to the original surrender of 6 the lands as a potential major difference between the 7 Province and the Indians, right? 8 A: That may be too strong a word. We 9 wanted to make sure on the -- the title to the property-- 10 Q: Hmm hmm. 11 A: The issue that was sort of forefront 12 in my mind at the time was around the potential for a 13 grave site. 14 Q: Right. Now, this, however, seems to 15 be something in addition to the issue of grave sites. 16 Grave sites are not mentioned in this letter and the 17 surrender is, right? 18 A: Yeah, I see that but I'm just telling 19 you the context -- 20 Q: Sure. 21 A: -- when I was thinking about -- 22 Q: Fair enough. 23 A: -- it in terms of wanting to make 24 sure that -- that this wasn't the grave site issue in the 25 terms of the title.
2691 Q: Fair enough, understand. Now 2 continuing... 3 MR. MURRAY KLIPPENSTEIN: And 4 Commissioner, I'm looking at the time. If I may spend 5 another two (2) minutes on this, I may be able to finish 6 questions on this particular -- 7 COMMISSIONER SIDNEY LINDEN: Sure. 8 9 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 10 Q: In the next paragraph, the Federal 11 Minister says, 12 "It is Canada's position... 13 Let me skip to the next sentence. In the 14 middle of the second sentence: 15 "The government of Canada is of the 16 opinion that the surrender of the land 17 in 1928 was valid." 18 Do you see that? 19 A: Yes. 20 Q: And that, to a large extent, is the 21 issue you were hoping they would address, right, it would 22 appear? 23 A: That confirmed what I'd been told by 24 our legal staff as well. 25 Q: Right. Now, unfortunately, the next
2701 word is "however". And then if you drop a sentence and 2 the letter says: 3 "It is only after reviewing all the 4 facts, that Canada would be in a 5 position to accept or reject the 6 claim." 7 So -- 8 A: Well, there's a middle sentence you 9 missed. 10 Q: Okay, I'm sorry, I didn't mean to be 11 misleading. I don't think it is, but however, -- let me 12 read that. 13 "However, should the First Nation file 14 a claim against the current Provincial 15 Park, the grounds upon which the First 16 Nation files its claim would have to be 17 reviewed, as is the case in all claims. 18 It is only after reviewing all the 19 facts that Canada would be in a 20 position to accept or reject the claim. 21 As mentioned in my previous letter, the 22 funding for the research presently 23 being conducted is for burial sites in 24 Ipperwash Provincial Park only, not for 25 the support of a land claim or the
2711 research for such a claim following the 2 1928 surrender as you indicate." 3 So the Minister appears to be saying, 4 we've funded research on the burial ground issue, we have 5 not funded anything about a possible surrender of 1928 6 issue; is that fair? 7 A: Well, he might have been getting that 8 from other sources, the -- 9 Q: Sure. 10 A: My -- my concern and it's consistent 11 with the advice I received from the deputy Minister, the 12 AG's department, the legal branch of ONAS, "However, 13 should the First Nation file a claim," then that would be 14 all looked at. 15 Q: Right. 16 A: But it needs somebody to file the 17 claim, the First Nation have to file the claim, is my 18 understanding in that letter. 19 Q: So it would be useful for such bases 20 for -- for the occupation of the Park to be put forward 21 and looked at, is that right? 22 A: I've always felt that if the First 23 Nation felt they had a claim, they should file it. 24 Q: Right. 25 MR. MURRAY KLIPPENSTEIN: Now
2721 Commissioner, that may be a useful time to -- 2 COMMISSIONER SIDNEY LINDEN: Yes, that 3 sounds like a good point to break. 4 MR. MURRAY KLIPPENSTEIN: Thank you. 5 COMMISSIONER SIDNEY LINDEN: Do you know 6 how much longer you may be? 7 MR. MURRAY KLIPPENSTEIN: I don't know. 8 Probably a couple of hours, which I think is roughly in 9 line with my estimate and I'll review it over the -- over 10 the evening. 11 COMMISSIONER SIDNEY LINDEN: Thank you. 12 We'll adjourn now and reconvene tomorrow morning at nine 13 o'clock. 14 15 (WITNESS RETIRES) 16 17 THE REGISTRAR: This Inquiry stands 18 adjourned until tomorrow, Tuesday January 17th, at 9:00 19 a.m. 20 21 --- Upon adjourning at 5:01 p.m. 22 23 24 25
2731 2 3 4 Certified Correct, 5 6 7 8 9 _________________ 10 Carol Geehan, Ms. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25