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 July 13th, 2005 25
21 Appearances 2 Derry Millar ) Commission Counsel 3 Susan Vella ) 4 Donald Worme, Q. C ) 5 Katherine Hensel ) 6 7 Murray Klippenstein ) (np) The Estate of Dudley 8 Vilko Zbogar ) (np) George and George 9 Andrew Orkin ) (np) Family Group 10 Basil Alexander ) Student-at-Law 11 12 Peter Rosenthal ) Aazhoodena and George 13 Jackie Esmonde ) Family Group 14 15 Anthony Ross ) (np) Residents of 16 Cameron Neil ) Aazhoodena (Army Camp) 17 Kevin Scullion ) (np) 18 William Henderson ) (np) Kettle Point & Stony 19 Jonathon George ) Point First Nation 20 Colleen Johnson ) (np) 21 22 Kim Twohig ) (np) Government of Ontario 23 Walter Myrka ) (np) 24 Susan Freeborn ) (np) 25 Michelle Pong )
31 APPEARANCES (cont'd) 2 Janet Clermont ) Municipality of 3 David Nash ) (np) Lambton Shores 4 5 Peter Downard ) The Honourable Michael 6 Bill Hourigan ) (np) Harris 7 Jennifer McAleer ) 8 9 Ian Smith ) Robert Runciman 10 Alice Mrozek ) (np) 11 Harvey Stosberg ) (np) Charles Harnick 12 Jacqueline Horvat ) 13 Douglas Sulman, Q.C. ) (np) Marcel Beaubien 14 Trevor Hinnegan ) 15 16 Mark Sandler ) Ontario Provincial 17 Andrea Tuck-Jackson ) Ontario Provincial Police 18 Leslie Kaufman ) (np) 19 20 Ian Roland ) (np) Ontario Provincial 21 Karen Jones ) (np) Police Association & 22 Debra Newell ) (np) K. Deane 23 Ian McGilp ) 24 Annie Leeks ) (np) 25 Jennifer Gleitman ) (np)
41 APPEARANCES (cont'd) 2 3 Julian Falconer ) Aboriginal Legal 4 Brian Eyolfson ) (np) Services of Toronto 5 Julian Roy ) (np) 6 Clem Nabigon ) (np) 7 Adriel Weaver ) (np) Student-at-Law 8 9 Al J.C. O'Marra ) Office of the Chief 10 Robert Ash, Q.C. ) (np) Coroner 11 12 William Horton ) Chiefs of Ontario 13 Matthew Horner ) (np) 14 Kathleen Lickers ) (np) 15 16 Mark Frederick ) Christopher Hodgson 17 Craig Mills ) 18 Megan Mackey ) 19 Erin Tully ) (np) 20 21 David Roebuck ) (np) Debbie Hutton 22 Anna Perschy ) 23 Melissa Panjer ) (np) 24 Danya Cohen-Nehemia ) 25
51 TABLE OF CONTENTS 2 PAGE NO. 3 4 5 RONALD EVAN FOX, Resumed 6 7 Continued Cross-Examination by Mr. Peter Downard 6 8 Cross-Examination by Ms. Jacqueline Horvat 113 9 Cross-Examination by Mr. Ian Smith 116 10 Cross-Examination by Mr. Mark Frederick 132 11 Cross-Examination by Ms. Anna Perschy 203 12 13 14 15 16 Certificate of Transcript 280 17 18 19 20 21 22 23 24 25
61 --- Upon commencing at 9:02 a.m. 2 3 THE REGISTRAR: This Inquiry is now in 4 session, the Honourable Mr. Justice Linden presiding. 5 Please be seated. 6 COMMISSIONER SIDNEY LINDEN: Good 7 morning. 8 MR. PETER DOWNARD: Good morning, 9 Commissioner. 10 COMMISSIONER SIDNEY LINDEN: Good 11 morning. 12 PETER DOWNARD: Good morning, 13 Superintendent Fox. 14 THE WITNESS: Good morning, Mr. Downard. 15 16 RONALD EVAN FOX, Resumed: 17 18 CONTINUED CROSS-EXAMINATION BY MR. PETER DOWNARD: 19 Q: Sir, if I could just briefly refer 20 you, to start, to Volume I of the Cross-Examination 21 Brief, Tab 13 -- 22 MR. PETER ROSENTHAL: I have to remind 23 you, just to give us all -- 24 MR. PETER DOWNARD: Yes. Yes. I know. 25
71 CONTINUED BY MR. PETER DOWNARD: 2 Q: It's Exhibit P-416, and Commission 3 Document 1000923. And, sir, youĂll see this is an e-mail 4 from Mr. Parkin to Nancy Mansell, and it's a copy to you, 5 right? 6 A: Yes, sir. 7 Q: All right. And this reflects the 8 information that there had been criminal charges laid 9 with respect to the July 29th events? 10 A: Yes, sir. 11 Q: Yes. And the MNR officials were of 12 the firm view that there was no land-claim dispute 13 regarding the Ipperwash Provincial Park, right? 14 A: Yes, sir. 15 Q: And that was your understanding as at 16 this date, right? 17 A: Yes, sir. 18 Q: And if I can refer you to Tab 14 of 19 the Brief, there's another e-mail among the same parties, 20 dated August 4. This is not an exhibit to date. I's 21 Commission Document 1000921. 22 And this is an e-mail that you received on 23 August 4 at about noon? 24 A: Yes, sir. 25 Q: And, you'll see that there's a
81 paragraph saying -- the second paragraph reading: 2 "For information only. We are told by 3 the Military that a high level meeting 4 will be held on Wednesday, 9th 5 August/'95 which will include the Prime 6 Minister, Indian Affairs and Military 7 chiefs of staff." 8 And then, on the 10th of August, 1995: 9 "The Military will attempt to meet with 10 Chief Tom Bressette." 11 Now, did you overhear anything further 12 about this high level meeting that was to be held 13 including the Prime Minister of Canada? 14 A: Not that I recall. 15 Q: And, in this e-mail you'll see and 16 the -- the fourth paragraph reads, and I quote: 17 "At 17:30 hours last night Tom 18 Bressette and council attended at the 19 Military Base gatehouse to deliver a 20 letter which we're told outlined 21 negotiating proposals for the land. 22 Rose Manning refused to accept the 23 letter and Glenn George did not appear. 24 We'll be getting a copy of that letter 25 later today." Unquote
91 So, that's information that you received 2 at this time, right? 3 A: That's correct. 4 Q: And, you said yesterday you 5 understood that Rose Manning was a -- an elder among the 6 Stoney Point people? 7 A: That's correct. 8 Q: And, again, I take it this would have 9 reinforced your understanding that the Stoney Point 10 people didn't have a great interest in discussing issues 11 with the Kettle and Stony Point band, fair? 12 A: I don't know that to be correct, sir. 13 Q: Okay. 14 15 (BRIEF PAUSE) 16 17 Q: But, in any event, that had 18 previously been your understanding as you said yesterday, 19 right? 20 A: My understanding of that, sir? 21 Q: As I understood you to say yesterday, 22 you understood that the Stoney Point people did not have 23 a great deal of interest in negotiating their issues with 24 the Kettle of Stony Point First Nation? 25 A: I don't recall saying that, sir.
101 Q: Okay. Well, I'll -- I'll come back 2 and check it later if it's a concern. 3 4 (BRIEF PAUSE) 5 6 Q: Now, sir, if you could look at Tab 19 7 of this volume, here is an e-mail to -- from Nancy 8 Mansell to Thomas O'Grady who was the Commissioner of the 9 OPP; is that right? 10 A: That's correct, sir. 11 Q: On September 1, 1995 at about 1:53 12 p.m.? You received this e-mail at about that time? 13 COMMISSIONER SIDNEY LINDEN: You have to 14 mention the Inquiry Document number -- 15 MR. PETER DOWNARD: Yes. 16 COMMISSIONER SIDNEY LINDEN: -- and/or 17 exhibit number. 18 MR. PETER DOWNARD: It's not marked as 19 an exhibit, it's Inquiry Document number 3000768. 20 COMMISSIONER SIDNEY LINDEN: Thank you. 21 22 CONTINUED BY MR. PETER DOWNARD: 23 Q: And, this document, sir, is an e-mail 24 that you were copied on and received at around this time? 25 A: That's correct.
111 Q: Now, if we can look at Tab 17 of the 2 Commission's brief. 3 4 (BRIEF PAUSE) 5 6 Q: Which is Inquiry Document 1002419, 7 and Exhibit P-426. 8 9 (BRIEF PAUSE) 10 11 Q: Now, do you recall being examined, 12 and if you can look at the second page of these scribe 13 notes, do you recall being examined on this matter by Ms. 14 Vella? 15 In -- in particular, there's the reference 16 at 23:01, to John Carson calling Chief Superintendent 17 Coles. And then you'll see below, it said, "Advised she 18 spoke to Rose-Marie Ur," at 23:02; do you see that? 19 A: I do. 20 Q: And then there are a number of points 21 that are made about the situation, and then down towards 22 the bottom, there -- there's a reference to Mr. -- 23 Incident Commander Carson having advised Ron Fox of the 24 situation; do you see that? 25 A: I do.
121 Q: Now, I was a little bit unclear about 2 -- in listening to your evidence, if you can just help 3 me, as to whether you were saying that you thought these 4 notes above the words "advised Ron Fox of situation," 5 documented a call that John Carson had made to you; is 6 that -- was that your evidence? 7 A: I -- I don't follow your... 8 Q: Okay. What I took from your evidence 9 in-chief was that you were saying that these various 10 points, at 23:02, constituted information that was 11 conveyed to you by Incident Commander Carson on the phone 12 at or around this time. Was that your evidence? 13 A: My evidence was, going to the 14 preceding page -- 15 Q: Right. 16 A: -- at 22:18 I received a call from 17 Inspector Carson, and at that time he provided me 18 information with respect to the activities that had 19 transpired. 20 Q: So, just to tell you the -- the 21 evidence of Deputy Commissioner Carson, when he was here, 22 was that this information at 23:01 and 23:02 on the next 23 page, refer to a call and a conversation he had with 24 Superintendent Coles, not you. 25 Do you have any reason to dispute that?
131 A: No. 2 Q: Fine. Thank you. That clarifies it 3 for me. Thank you very much. So -- 4 MS. SUSAN VELLA: Just -- I don't want 5 the record to be confused at this point. I believe the 6 evidence was that the 23:02 information with the basis of 7 a briefing by Inspector Carson to Chief Superintendent 8 Coles, and he's reporting that he advised Superintendent 9 Fox of the situation. 10 Superintendent Fox testified that he 11 received that information a little bit earlier. 12 MR. PETER DOWNARD: Well, that -- that 13 wasn't -- I was a little bit unclear. That -- that was 14 my concern. My -- my concern was that in-chief, the 15 Witness was saying that the -- essentially that the 16 bullet points at 23:02 were the content of a discussion 17 between himself and Deputy Commissioner Carson. 18 And that's what I'm trying to get clear 19 on. 20 COMMISSIONER SIDNEY LINDEN: Have you 21 made it clearer or less clear? 22 MR. PETER DOWNARD: Well, I thought the 23 Witness had made it clear, but let me just put a point on 24 it to respond to Commission Counsel. 25
141 CONTINUED BY MR. PETER DOWNARD: 2 Q: Sir, was -- was any of the 3 information at the 23:02 passage specifically conveyed to 4 you by Incident Commander Carson at an earlier time? 5 Do you recall that? 6 A: Generally, yes. 7 Q: Okay. Well, so was -- was all of the 8 information at the 23:02 passage previously conveyed to 9 you by Incident Commander Carson? 10 A: I wouldn't expect all of it was, sir, 11 but generally this is the substance of what he would have 12 advised me, at 22:08. 13 Q: Okay. Do you -- do you recall him 14 advising you that -- to look on the list, that Judas 15 George is a problem? 16 A: He may well have done that, yes. 17 Q: But, do you recall that? 18 A: No, I don't. 19 Q: All right. Well let's go on to the 20 September 5th Interministerial Committee Meeting. And if 21 you can go to the cross-examination brief at Tab 31 in 22 the second volume. 23 And, sir, these are notes with -- 24 MR. PETER ROSENTHAL: Excuse me. 25 MR. PETER DOWNARD: Yes, yes, yes, yes.
151 MR. PETER ROSENTHAL: Could you give us 2 the document number in the beginning so we have time to 3 look it up. 4 MR. PETER DOWNARD: If we were starting 5 at nine o'clock in the morning I would be doing that 6 every time, for sure. 7 It's -- it's Document 1012564, and it's 8 not yet been marked as an exhibit. 9 10 CONTINUED BY MR. PETER DOWNARD: 11 Q: And, sir, I anticipate we'll hear 12 evidence that these are handwritten notes of discussions 13 at the September 5th, Interministerial Committee meeting, 14 made by one Leith Hunter. 15 A: Could you refer me to which tab this 16 is -- 17 Q: Yes, Tab 31 in this -- Tab 31 in 18 Volume II of the cross-examination brief. 19 A: Thank you. 20 21 (BRIEF PAUSE) 22 23 Q: Now, if you look at page 5, you'll 24 see that there is a -- a note about a third of the way 25 down the page which expresses a concern at a roughly,
161 early phase of the discussion that, quote: 2 "If we get an injunction, we would have 3 to act on it." 4 You see that? 5 A: Yes, sir. 6 Q: All right. And would you agree with 7 me that, if a person was saying that at this point in the 8 meeting, they were raising a consideration that would 9 weigh in favour of delaying getting an injunction, right? 10 A: Not necessarily. 11 Q: Isn't it possible that -- that you 12 would take that, if someone's saying, if we get an 13 injunction, we would have to act on it, and then it's 14 followed -- look, you can -- it's followed by the words, 15 "we could afford to wait". 16 Okay, does that help you? 17 A: I agree that it says that, yes. 18 Q: Right. And so the thrust of those 19 words would appear to indicate that the person saying 20 them is expressing a concern that perhaps one should 21 defer getting an injunction, right, that that's a 22 consideration to be weighed? 23 A: That could well be the position taken 24 by the author of these notes. 25 Q: Right. And do you have any
171 recollection of anyone saying anything like that at the 2 meeting? 3 A: Not specifically in those terms. 4 There was discussion and I think were of the mind that if 5 an injunction was sought, applied for and ultimately 6 granted at some point in time, it would need to be 7 executed. 8 Q: Sure, but what I'm -- what I'm asking 9 you is whether you recall any discussion in the September 10 5th meeting or the notion being -- being raised, that 11 because one might have to act on an injunction if one 12 gets it, perhaps the government could afford to wait? 13 Do you recall that -- that notion being 14 raised in the meeting? 15 A: I recall there was discussion with 16 respect to obtaining an injunction and, as I've 17 indicated, it was fairly clear to me that once it was 18 applied for, if granted by a Court, it would have to be 19 acted on at some point in time. 20 Q: Okay. But to come back to my 21 question, do you recall words to the substantial effect 22 of those that I've read to you in this passage being 23 raised in September 5th Interministerial Committee 24 meeting? 25 A: There were discussions with respect
181 to obtaining an injunction, working with substantive 2 offences under statute, be it provincial or be it 3 criminal and the pros and cons of those. 4 And in the course of the discussion it was 5 certainly determined that with criminal or trespass under 6 the provincial statute, that even if there was evidence 7 to support criminal charges, at some time, either an 8 arrest would have to be made or a process, not unlike the 9 process with an injunction. 10 Q: Okay. But -- and, I don't mean to 11 belabour the point, but I still don't understand whether 12 you recall words to the effect of those that I've read to 13 you in these notes being said at this meeting. 14 A: There were words to the effect that 15 we could wait on a number of counts, whether it was the - 16 - the use of criminal process, criminal charges, or an 17 injunction. 18 Q: All right. So, the consideration of 19 -- of waiting before proceeding in whatever fashion one 20 could regarding charges or regarding an injunction was 21 put forward? 22 A: Yes, it was. 23 Q: And, if I say to you that I 24 anticipate that -- that Jeff Banks of the MNR political 25 staff put forward this suggestion at this early stage of
191 the discussion, that perhaps the Government could afford 2 to wait because if they got an injunction they might have 3 to act on it. 4 You wouldn't have any reason to dispute 5 that, would you? 6 A: No, sir. 7 Q: Okay. Thank you. 8 COMMISSIONER SIDNEY LINDEN: Mr. Downard, 9 I may have missed it, do we know who the author of these 10 notes is? 11 MR. PETER DOWNARD: The author is Leith 12 Hunter, L-E-I-T-H H-U-N-T-E-R. That's my understanding 13 from the discovery material -- 14 COMMISSIONER SIDNEY LINDEN: Thank you. 15 MR. PETER DOWNARD: -- in the civil 16 litigation. Now... 17 18 (BRIEF PAUSE) 19 20 CONTINUED BY MR. PETER DOWNARD: 21 Q: And, if we can look at Tab 24 of 22 Volume I of the cross-examination brief. 23 24 (BRIEF PAUSE) 25
201 Q: Just bear with me for a moment, sir. 2 COMMISSIONER SIDNEY LINDEN: Is this 3 Document 1012562? 4 MR. PETER DOWNARD: Yes, thank you. 5 COMMISSIONER SIDNEY LINDEN: 1012562. 6 7 (BRIEF PAUSE) 8 9 CONTINUED BY MR. PETER DOWNARD: 10 Q: Now, sir, if you can look at the 11 page here of this document and these -- I anticipate 12 we'll hear evidence that these are notes of the September 13 5th Interministerial Committee meeting by one Elizabeth 14 Christie. 15 Did you know who Elizabeth Christie was? 16 A: I recall the name, but I can't put a 17 face to that individual. 18 Q: I believe we'll evidence that she was 19 one (1) of the lawyers in the meeting? 20 A: Entirely possible, sir. 21 Q: All right. And now, if you look at 22 the page of these notes with the number "8" circled in 23 the upper left-hand corner -- have you got the page, sir? 24 A: Yes, I do. 25 Q: All right. And, you'll see there's a
211 reference to Ron Baldwin at around the middle of the page 2 on the left? 3 A: Yes, sir? 4 Q: And then, there's an indentation? 5 A: Yes, sir? 6 Q: Okay. And, as I understand it, Ron 7 Baldwin was one of the -- the MR -- MNR people who was 8 strong on the position, according to your evidence, that 9 the -- the Province had clear title to Ipperwash 10 Provincial Park, right? 11 A: Yes, sir. 12 Q: Right. And, you'll see the -- the 13 note beside the name, Ron Baldwin, says, quote: 14 "The Park is closed. Adjacent to the 15 Park there are permanent homes. 16 Consider our relationship with Kettle 17 and Stony Point First Nation who will 18 be frustrated [I'm suggesting that 19 says.] 20 Contingency plan on ground. Negotiate. 21 Here we have clear ownership of the 22 Park recognized. If we get an 23 Injunction must we immediately serve 24 it?" 25 Now, first of all, do you recall Mr.
221 Baldwin, in the September 5th Meeting, referring to a 2 contingency plan on the ground involving a plan to 3 negotiate? 4 A: I can't say that I recall these 5 specific words, but there was, at that meeting, general 6 discussion in that regard, yes, sir. 7 Q: All right. And then you'll see 8 towards the end of the note, the words that I read to 9 you, quote: 10 "If we get an injunction must we 11 immediately serve it?" Unquote. 12 Do you know probably Mr. Baldwin raising 13 that consideration at the meeting? 14 A: I don't recall it specifically. He 15 may well have. 16 Q: Well, would you agree with me that if 17 -- if Mr. Baldwin comes here and gives evidence that he 18 did raise that concern, in the September 5th Meeting, 19 that that would be a consideration that would be weighing 20 in favour of restraint, rather than action? 21 A: I don't necessarily see it that way. 22 Again, as I've indicated, it was certainly uppermost in 23 the minds of all that were at that meeting. In terms of 24 the options, no matter which option may have been 25 selected, there would have been a course of action
231 required, at some future time. 2 Q: Sure. Sure. But, wouldn't you agree 3 with me, just a matter of common sense, that if somebody 4 in this situation was raising the question, Well, if we 5 get this Injunction must we immediate serve it, that 6 that's going to be taken as raising a question, Well, 7 okay, well shall we get the Court Order and not -- and 8 not act on it, so as to move more slowly, allow more time 9 for discussions if possible; is that fair? 10 A: It -- it could be interpreted that 11 way, yes. 12 13 (BRIEF PAUSE) 14 15 Q: Now, if you look over at the next 16 page, you'll see, there's a reference in the middle of 17 the page, after the -- the bullet points on Options, it 18 says, quote: 19 "No evidence of weapons. Naive to 20 presume there won't be." Unquote. 21 Now does that ring a bell with you? 22 A: The specific entry in the notes does 23 not, but in general terms, yes. 24 Q: All right. Is it possible that 25 that's something you said at the meeting?
241 A: It's possible. 2 3 (BRIEF PAUSE) 4 5 Q: Sorry. Now, is it correct, sir, that 6 during these discussions at this meeting, there was a 7 discussion on the basis that, well this Park is just an 8 empty park for most of the season, and if that's a 9 relative consideration, right? 10 A: There was discussions with respect to 11 the closing of the Park, yes, sir. 12 Q: And there was -- but there was 13 discussion as well that, at the time of the occupation, 14 or at least after the Labour Day weekend, this was an 15 empty Park and -- 16 A: It's my understanding the Park closed 17 at Labour Day and would be empty, yes. 18 Q: Right. But were you aware that the 19 Park stayed open for day use? 20 A: It -- it was mentioned, yes, that it 21 was open for day use. 22 Q: So, it's -- it's a little bit -- it 23 would be a little bit inaccurate if somebody said that, 24 well, it's just an empty park, or it's just a closed 25 park, without qualification, right?
251 A: Yes. I think the qualification would 2 be a partial functionality as opposed to full 3 functionality. 4 Q: Sure. And I want to refer you to the 5 text of an affidavit of Les Kobayashi which is Commission 6 Document 3000535, and this was the affidavit Mr. 7 Kobayashi filed on the Injunction Application on 8 September 7th. 9 The only copy we have is an unsworn copy, 10 but it was confirmed on discovery that this was the text 11 filed with the Court and sworn. 12 And it's at Tab 54 of the cross brief, and 13 I'd like to refer to you to part -- or paragraph 11. 14 COMMISSIONER SIDNEY LINDEN: I'm sorry, 15 what Tab of the brief? 16 MR. PETER DOWNARD: It's Tab 54 of the 17 cross brief. 18 COMMISSIONER SIDNEY LINDEN: Tab 54. 19 MR. PETER DOWNARD: In the second volume. 20 COMMISSIONER SIDNEY LINDEN: Yes. 21 22 (BRIEF PAUSE) 23 24 COMMISSIONER SIDNEY LINDEN: Yes. 25
261 CONTINUED BY MR. PETER DOWNARD: 2 Q: And, sir, have you got paragraph 11? 3 A: I do. 4 Q: Okay, and I'll just read that. It 5 says, quote: 6 "The Park is intensively developed. 7 The camping season ends in the Park at 8 2:00 p.m. on Labour Day. Following 9 Labour Day, permits for day use are no 10 longer sold by the Park. 11 However, it is still extensively used 12 by the public on a casual basis. On a 13 fine, Fall weekend up to three hundred 14 (300) people may use the Park and 15 approximately five thousand (5,000) 16 people use it between Labour Day and 17 the end of November. 18 There is an extensive cottage community 19 near the Park." 20 Now, prior to September 7th, were you 21 aware of that information? 22 A: I was aware the Park was used; 23 certainly not to the degree identified by Mr. Kobayashi. 24 Q: Thank you. 25
271 (BRIEF PAUSE) 2 3 Q: Now, if we can go back to Tab 24 of 4 the cross brief and the Elizabeth Christie notes that are 5 Document 1012562 and back to page 8. 6 I want to just direct you to a few notes 7 that bear upon the position of Chief Tom Bressette of the 8 Kettle and Stony Point First Nation regarding the Stoney 9 Point occupation. 10 And I already touched upon this first one, 11 but at page 8 under the heading, Ron Baldwin, you'll see 12 there's the note that I've read before saying, quote: 13 "Consider our relationship, Kettle and 14 Stony Point First Nation who will be 15 frustrated." Unquote. 16 Now, do you recall concern to that effect 17 being conveyed at the September 5th, meeting? 18 A: Again, sir, I can't say that I recall 19 Mr. Baldwin or these specific notes, but yes, certainly, 20 there was a concern raised generally in the meeting with 21 respect to ongoing relations with the Kettle and Stony 22 Point First Nation. 23 Q: Okay, well, if you look over two (2) 24 pages, you'll see -- and there's a doodled triangle in 25 the lower left margin, you see that?
281 A: I see two (2) triangles -- 2 Q: Right, right. 3 A: One cross hatched and one darkened. 4 Q: Right. And just to the right of the 5 cross hatched triangle, there's a note of Ms. Christie 6 saying, quote: 7 "The Chief wants the government to take 8 no steps to recognize them." Unquote. 9 Do you recall that concern being expressed 10 in the September 5th meeting? 11 A: I do, generally. 12 Q: And if you could turn to Tab 25, 13 these are more notes which I anticipate we will be -- 14 proven to be notes of the Interministerial Committee 15 meeting on the -- on the 5th, Commission Document number 16 3000994, and unfortunately I don't know who the author of 17 these notes is. 18 But, you'll see if you look at the page 19 numbered, page 7, in the upper right. 20 21 (BRIEF PAUSE) 22 23 Q: Do you see that? There's a -- 24 A: I have page 7 and it would be in 25 "landscape?"
291 Q: Right. And, in the upper -- at the 2 top of page 7, there's a note, quote: 3 "Chief doesn't want to confer status to 4 Stoney Pointers." Unquote. 5 Do you see that? 6 A: That's correct. 7 Q: And, that's consistent with your 8 recollection of a general subject discussed at the 9 meeting? 10 A: Yes, sir. 11 Q: And... 12 13 (BRIEF PAUSE) 14 15 Q: And, I could take you to some other 16 notes to the same effect, but the -- the point I -- I 17 want to -- want to make is -- is that I take it it's -- 18 it's fair to say that there was a concern in this meeting 19 that the view of the chief of the established Indian Act 20 band in the area be known? 21 A: That was identified, yes, sir. 22 Q: And, if we can look at Tab 26 of the 23 cross-examination brief, and this is Commission Document 24 1011724 and again, I -- I don't have any information as 25 to the author at this time, but it's a note headed,
301 "September 5/95 Emergency Plan Committee Camp Ipperwash." 2 You'll see on the -- the second page of 3 that note, it's the -- the third point on the page. Are 4 you with me, sir? 5 A: Yes, sir. 6 Q: There's a note that reads, quote: 7 "Kettle Stony Point FN Chief will be 8 upset if action not taken." 9 And, I'll stop with quote -- the quote 10 there. 11 Do you recall that concern being conveyed 12 at the meeting? 13 A: I do, sir. 14 Q: And, similarly, there are notes at 15 Tab 30 of Volume 1 and Inquiry Document 1012575 and I 16 anticipate that these will be notes of Dan Elliott of MNR 17 -- will be shown to be. And if you look at the second 18 page of the notes, there's what appears to be a post-it 19 over it saying, "notes from meeting." And then, after a 20 few lines, there's a note saying, quote: 21 "Kettle and Stony Point frustration if 22 no action." Unquote 23 It's the second page. 24 A: Yes, sir, I see that. 25 Q: Right.
311 A: At the bottom. 2 Q: And -- 3 MR. JULIAN FALCONER: Can I get that 4 Inquiry Document number? 5 6 CONTINUED BY MR. PETER DOWNARD: 7 Q: Yeah. 1012575. And so, again, that 8 -- that's -- that's consistent with your -- your general 9 recollection that a concern about -- of the local formal 10 First Nation being concerned if action was not taken, 11 right? 12 A: That's correct, that was one (1) 13 position discussed. 14 15 (BRIEF PAUSE) 16 17 Q: And, if we can go back for a moment 18 to the Christie notes at Tab 24 Document 1012562. And in 19 a fairly early point in the notes on the second page, you 20 see there's a note, sort of the second dash point on the 21 page reads, quote: 22 "MNR was unable to serve written Notice 23 of Trespass or the Trespass to Property 24 Act. Refused to accept it." Unquote 25 A: Correct.
321 Q: So, do you recall it being conveyed 2 at this meeting that the Stoney -- there had been an 3 attempt to serve a written Notice of Trespass on the 4 occupiers, but that they had refused to accept it? 5 A: I recall that, yes. 6 Q: And, did you take from that that the 7 occupiers may be reluctant to communicate with the 8 authorities about their occupation? 9 A: What I took from that is that there 10 may have been a reluctance on the part of the occupiers. 11 It may be that they were unsure as to what they were 12 accepting. 13 I also spoke to this matter and indicated 14 that despite someone not receiving the Notice, that the 15 MNR personnel and the OPP personnel who were there and 16 attempted service, would have noted what they said and 17 what they did at the time, which might amount to 18 alternative service, and I believe that was the words 19 they used. 20 Q: Right. And at -- and at this stage, 21 it's fair to say that Commission, or Committee rather, is 22 getting basically fragmentary information and trying to 23 place a reasonable interpretation on all the facts 24 they're getting, to -- to get a sense of what's going on 25 right?
331 A: That's reasonable. 2 Q: And further down on this page, 3 there's a reference to "One (1) back window of OPP 4 cruiser broken;" that's almost toward the bottom of the 5 page. 6 Do you see that? 7 A: I see that, yes. 8 Q: Yeah. So, do you recall that that 9 was information that was conveyed at the meeting? 10 A: That's correct. 11 Q: And that was probably conveyed by 12 you, right? Or not? 13 A: Quite frankly it wasn't, no. 14 Q: Oh, okay. This -- this was the back 15 channel stuff? 16 A: Correct. 17 Q: This was from -- from MNR people? 18 A: Yes. 19 Q: And did they say anything to the 20 meeting about how it was that that cruiser window became 21 to be broken, because we've heard evidence about an 22 incident involving a Roderick George, also known as Judas 23 George, on the evening the incident commenced, which 24 involved him smashing the back of a cruiser and using 25 profanity to the police officers, and demanding them to
341 leave the Park and so on. 2 Was -- was that general scenario conveyed 3 to the meeting, or described at the Meeting, that you 4 recall, sir? 5 A: Not that I recall, sir, no. 6 Q: Okay. Now, I take it that at the 7 time of this Meeting you understood you were dealing with 8 a newly-elected Government, right? 9 A: That's correct. 10 Q: And that you knew that it was likely 11 that the people in that Government did not have a lot of 12 experience with blockades? 13 A: That's a fair assumption. 14 Q: All right. And that's another reason 15 why, isn't it, that discussion within the 16 Interministerial Committee, full and frank discussion, is 17 going to be, or should be useful, right? 18 A: That's correct. 19 Q: And, sir, isn't it the case that -- 20 if you'll bear with me for a moment -- isn't it the case 21 that in the September 5th Meeting, or by the conclusion 22 of the September 5th Meeting, Debbie Hutton spoke in 23 support of getting an injunction, now an Emergency 24 Injunction, but nevertheless, an injunction; isn't that 25 right?
351 A: By the end of the meeting, that is 2 correct, sir. 3 Q: And if I could turn you, please, to 4 Tab 31 of the cross brief. 5 6 (BRIEF PAUSE) 7 8 Q: Now, this is Document Number -- 9 COMMISSIONER SIDNEY LINDEN: This is 10 101 -- 11 MR. PETER DOWNARD: Sorry...? 12 COMMISSIONER SIDNEY LINDEN: The number? 13 14 CONTINUED BY MR. PETER DOWNARD: 15 Q: Yes. 1012564. And if you can look 16 at the bottom of page 5, please. 17 18 (BRIEF PAUSE) 19 20 Q: There's a note there, and it looks 21 like a -- a reference to P. Fox. I suspect it's a 22 reference to you, but I'll ask you to confirm that in a 23 minute, but it reads: 24 "P. Fox. No evidence of weapons yet. 25 This is hard for police to secure beach
361 access. Neighbours on each side. Every 2 day they stay there we have a problem." 3 Now, does this note record the substance 4 of words that you conveyed to the meeting? 5 A: I have no recollection of saying, 6 "Every day they stay there we have a problem." 7 I do recall indicating there was no 8 evidence of weapons at that time. 9 Q: Well, if I can refer you to the notes 10 of Eileen Hipfner which are in the Commission brief. 11 12 (BRIEF PAUSE) 13 14 Q: Right. These are notes of Eileen 15 Hipfner, Commission document 1011739 and it -- at page 5, 16 there's a note that reads, and I quote -- quote: 17 "Ron: People from throughout the 18 Province may be here [more occupiers 19 than there are Stoney Pointers]. 20 Difficult police to secure (Forest 21 beach access)" -- 22 A: Sir, could I have the Tab number. 23 Q: Oh, I thought I'd given it to you, 24 sir. 25 MS. SUSAN VELLA: Tab 23.
371 MR. PETER DOWNARD: I'm sorry, Tab 23. I 2 beg your pardon. 3 THE WITNESS: My apologies, page again? 4 MR. PETER DOWNARD: No problem, page 5. 5 6 (BRIEF PAUSE) 7 8 CONTINUED BY MR. PETER DOWNARD: 9 Q: Yes, see the note that starts with 10 the word "Ron" at the top of the page? 11 A: Yes, sir. 12 Q: Okay, now, I'll start again. It 13 says, quote: 14 "Ron: People from throughout the 15 Province may be here [more occupiers 16 than there are Stoney Pointers]. 17 Difficult police to secure (Forest 18 beach access). 19 The longer they are there, the more 20 familiar they become with surroundings, 21 the more difficult it becomes to remove 22 them." Unquote. 23 Now, did you convey these words or the 24 substance of these words to the meeting? 25 A: This is somewhat different than the -
381 - the first reference, but it's similar, and it's 2 entirely possible that I did. 3 Q: Well, I believe that you refer to 4 something to -- having told the meeting in one of your 5 calls with incident commander Carson, there are, you 6 know, more occupiers than there are Stoney Pointers or 7 words to that effect, right? 8 Do you recall that? 9 A: I do. 10 Q: Yeah. And, sir, I suggest to you 11 that it's not only possible but it's probable, and also 12 given the configuration of these notes, that it's 13 probable that you told the meeting that the longer the 14 occupiers were there, the more familiar they become with 15 the surroundings, and the more difficult it becomes to 16 remove them. 17 Do you accept that or not? 18 A: It's possible, sir, yes. 19 Q: Well, I'm asking you, is it probable 20 that you said that? 21 A: It's entirely possible I said that, 22 sir. 23 Q: All right. But, will you accept that 24 it's probable you said that? 25 A: It could be probable, yes.
391 2 (BRIEF PAUSE) 3 4 Q: Now, at the end of this meeting, as I 5 understand it, there's a summary and there's a looking at 6 the legal options, right? 7 And one (1) of the decisions that the 8 Committee reached was to get legal advice on the legal 9 options being discussed, right? 10 A: Correct. 11 Q: And -- and I'd take it you'd agree 12 that's an entirely reasonable thing to do, right? 13 A: It is. 14 Q: All right. And there was a 15 recommendation of an injunction at the end of the 16 meeting, right? 17 A: Yes, sir. 18 Q: And, as I understand it, and I think 19 we both understand it, that by proceeding with an 20 injunction, there's going to be the interposition between 21 the Government and the occupiers of an independent Court 22 to determine whether the government has a right to an 23 injunction, right? 24 A: Correct. 25 Q: Right. And the Court could grant the
401 injunction or decline the injunction? 2 A: Yes, sir. 3 Q: And, that -- among the options to be 4 considered, that was the least drastic measure at the 5 time, right? 6 A: I would say so. 7 Q: Okay. And, if we look at Tab 19 of 8 the Commission's brief, Exhibit 509, and Document 9 1012252, and the last page of the minute notes -- or 10 meeting notes proper -- page 3, you'll see under the 11 heading, Next Steps? 12 A: I do. 13 Q: All right. And, there's the passage 14 that says: 15 "MNR will act as the spokesman 16 regarding this matter in the short 17 term. It will inform the public that: 18 1. The public has valid title to the 19 Park. 20 2. The occupiers have been told 21 they're trespassing and have been asked 22 to leave. 23 3. The Province will take the steps to 24 remove the occupier ASAP." 25 Now, just as it says here, these are being
411 formulated as messages that are going to be provided to 2 the public at large, right? 3 A: Correct. 4 Q: So, there was no intention that there 5 would be any secret about these points, right? 6 A: No, sir. 7 Q: Now, I want to come to your first 8 telephone call with Incident Commander Carson after the 9 September 5th meeting. 10 And, as -- as I understand it in your 11 evidence here, you have accepted that it is appropriate 12 for there to be a separation between the police officers 13 engaged in operational matters and the functions of 14 government that may have a connection or relation to 15 those operations, right? 16 A: Correct. 17 Q: So, I take it you were never 18 instructed to tell Incident Commander Carson what the 19 debate was at the Interministerial Committee, were you? 20 A: No, sir. 21 Q: Or of any political views of anyone 22 on the Interministerial Committee? 23 A: No, sir. 24 Q: Or you were never instructed to tell 25 Incident Commander Carson what Debbie Hutton had said at
421 the meeting? 2 A: No, sir. 3 Q: Or, what you thought Premier Harris 4 thought? 5 A: No, sir. 6 Q: And, isn't it the case, sir, that all 7 Incident Commander Carson needed to know from you was 8 whether the Government was proceeding with an injunction 9 or not; is that right? 10 A: That's reasonable. 11 Q: Is it that you said, that's 12 reasonable? 13 A: That's right. 14 Q: I only repeat it because I spoke over 15 you, sorry. 16 17 (BRIEF PAUSE) 18 19 Q: Now, if we look at the transcript of 20 the conversation that's at Tab 24 of the Commission's 21 brief and it was distributed electronically; I don't 22 believe it has a document number. 23 MS. SUSAN VELLA: No, it doesn't. 24 25 CONTINUED BY MR. PETER DOWNARD:
431 Q: Now, do you have that, sir, in your 2 brief? 3 A: I do. 4 Q: Okay. At Tab 24? 5 A: Yes, sir. 6 Q: All right. And so, at the bottom of 7 the first page, you're talking about the -- the issue 8 about property and -- and treaties and you were -- you're 9 saying that in -- in this meeting, you're conveying some 10 of your -- your knowledge and expertise on First Nations 11 issues to the meeting and, quite -- quote properly. I'm 12 not suggesting that wasn't a good idea. 13 But, then you go on and then at the end of 14 the paragraph at the top of the next page you say: 15 "So, I said I'm not suggesting for a 16 minute that the course of action is a 17 course of non-action." 18 Do you see that? 19 A: Yes, sir. 20 Q: And, is -- is that what you said at 21 the meeting? 22 A: It was. 23 Q: And -- and on this transcript, 24 further down the page, it's about the 4th paragraph down, 25 it's indicated that you said, quote:
441 "So, the bottom line is, I said, you 2 know, I'm not suggesting a course of 3 non-action, but I said, my theory has 4 always been [it says] to make hay 5 slowly." 6 I think that what you're saying was "to 7 make haste slowly", right? 8 A: It was. 9 Q: To -- to move forward with all 10 deliberate speed, correct? 11 A: Correct. 12 Q: And, if you look over the next page, 13 page 3, towards the bottom half of the page, there's a 14 few lines of Incident Commander Carson, where Incident 15 Commander Carson says, quote: 16 "And I -- he -- he asked that our 17 roadblocks be taken down and we said, 18 'That's not going to happen and, you 19 know that they are trespassers and that 20 as far as we're concerned they are 21 breaking the law and we will continue 22 to proceed in that direction." 23 And then you replied: 24 "Hmm hmm. Yeah. We'll take action 25 that may be appropriate."
451 Do you see that, sir? 2 A: I do. 3 Q: All right. And so, clearly, you 4 didn't express any disagreement with Incident Commander 5 Carson in this conversation, when he said to you that the 6 police's view was that the occupiers were trespassers and 7 that as far as the police were concerned they were 8 breaking the law and police would continue to proceed in 9 that direction, right? 10 A: Correct. 11 Q: In fact, you expressed agreement with 12 that, right? 13 A: Yes, I agree that the occupation of 14 the Park was illegal. 15 16 (BRIEF PAUSE) 17 18 Q: All right. So, go back to page 2 for 19 a moment. And page 2, towards the bottom, words are 20 attributed to you as follows, quote: 21 "So they finally agreed. The consensus 22 is they'll get an Adjoining Order. And 23 the MNR provide -- provide a large part 24 of the Affidavit, but they wondered who 25 they might speak to if they needed some
461 protection for the police, and I 2 suggested yourself." Unquote. 3 So, you're reporting to Incident Commander 4 Carson that the Committee, on the 5th, has a consensus 5 that the way to proceed is with an Adjoining Order in the 6 Courts, right? 7 A: Yes, sir. 8 Q: And -- and then if we go to the very 9 last page, page 9, of this transcript, you refer to 10 getting an Adjoining Order and you say at the top, quote: 11 "And it sounds like they'll do the 12 emergent form." Unquote. 13 Do you see that? It's on page 9 of the 14 transcript before you. 15 A: Yes, I do. 16 Q: And you didn't express any concern to 17 Incident Commander Carson about the Government proceeding 18 to obtain an injunction on an emergent basis? 19 A: No, I did not. 20 Q: And Incident Commander Carson's 21 response was, quote, "Good", twice, right? 22 A: Correct. 23 Q: And so I take it you understood that 24 -- that he had no difficulty with an injunction 25 proceeding on that basis either, right?
471 A: Correct. 2 Q: Now, before I get into the next 3 subject, let -- let me just tell you, sir, that I 4 understand that when colleagues who are also friends, 5 speak in circumstances about matters that concern them, 6 when they think it's private they sometimes don't use, I 7 think Mr. Sandler called it, boardroom language. 8 But what I'm concerned is about -- more, 9 is about the accuracy of some of the language that's -- 10 in which you express thoughts in these tapes. 11 And I want to refer you to page 5, and you 12 say, about three-quarters (3/4) of the way down page 5, 13 you say in speaking to incident commander Carson about 14 the September 5th meeting and I quote: 15 "Well, I'll tell you, this whole 16 fucking group is on some sort of 17 testosterone or testosterone high." 18 Unquote. 19 Now, sir, would you accept that that 20 statement was a great exaggeration of what the discussion 21 of the Committee had actually been? 22 A: I testified that the language I used, 23 in hindsight, was perhaps not appropriate. What I also 24 testified to is that it was the forceful removal of the 25 occupiers or the immediate removal of the occupiers.
481 Q: I see. And, so you're saying this 2 whole group was, to use your interpretation, you're 3 saying this whole group interpreted the immediate and 4 forceful removal of the occupiers? 5 Is that what you're saying? 6 A: Yes, that's what I said. 7 Q: Well, that's not right, is it? 8 A: In hindsight, all aspects of that are 9 -- are not correct. There were those who spoke to 10 moderation at Committee meetings, and there were those 11 who did not. 12 Q: Right. So, this statement was an 13 exaggeration? 14 A: It was certainly not a completely 15 accurate reflection; that's correct. 16 Q: Well it was -- it was seriously 17 inaccurate -- 18 A: No -- 19 Q: Yes -- 20 A: -- I disagree. It wasn't seriously 21 inaccurate. The inaccuracy that I've identified here is 22 that there were competing positions, certainly, at the 23 table. 24 Q: Well, I know you conveyed that -- 25 that here, but -- no, let me go at it a different way.
491 Did incident commander Carson have any 2 need, to do his job, to know that you had the view that, 3 quote: 4 "This whole fucking group on the 5 Interministerial Committee is on some 6 sort of testosterone or testosterone 7 high." Unquote. 8 Did he need to know that? 9 A: No. No, he did not need to know 10 that. 11 Q: And wouldn't it be more consistent 12 with the separation of operational police and government, 13 if you had just kept quiet with your opinions on this 14 issue? 15 A: It could be certainly considered that 16 way. I was venting at the time, my personal frustration. 17 Q: You were venting at the time? 18 A: That's right. 19 Q: And don't -- don't you think that 20 it's -- well, first of all, I take it you -- you agree 21 that it's not appropriate for someone on this Committee, 22 be it yourself or anybody else, to be phoning up incident 23 commander Carson and saying what the political views of 24 the Committee are on his work, or what -- or what the 25 general views of the Committee are on his work, right?
501 A: It's possible, yes. 2 Q: Well, isn't that the more -- the 3 thing that's consistent with the separation of government 4 and police? 5 A: That would be a part of it, yes. 6 Q: And it's not only -- I suggest to 7 you, it's not only wrong for you to have done it at all, 8 I suggest to you that it's wrong for you to have given 9 him a plainly inaccurate information about what the 10 discussion was at the Interministerial Committee. 11 Would you agree with me that was 12 inappropriate? 13 A: I take exception to that. It's not 14 that I gave him an entirely inaccurate bit of information 15 with respect to discussions at all. I provided, 16 certainly, some commentary and it may have been 17 colourful. 18 To say it was entirely inaccurate, is 19 incorrect, sir, and I disagree. 20 Q: Well, it -- it's -- either 21 somebody's, you know, pregnant, or they're not, right? 22 I mean, either this whole group is on this 23 high of -- of force, or they're not. And you've admitted 24 to me that they're not, right? 25 A: I have indicated to you that there
511 were competing positions with respect to that, yes. 2 Q: All right. And, sir, I -- 3 suggesting, you said you were venting, and I suggest that 4 when somebody vents, they tend to speak quite loosely, 5 right? 6 A: Correct. 7 Q: And, somebody vents if they're pretty 8 worked up about a situation, right? 9 A: Correct. 10 Q: And, I take it you'd agree with me 11 that speaking loosely and being worked up about a matter 12 doesn't really help to deal with things in a calm and 13 rational fashion, right? 14 A: That's possible, yes. 15 Q: And, it -- it may not help in 16 recounting things in a strictly accurate fashion, right, 17 if one is emotionally engaged in the talk? 18 A: I -- I don't believe that I was so 19 emotional that I had an inability to recount things 20 action -- actually, no, sir. 21 Q: Okay. All right. Well, I've made my 22 suggestion to you on that point. 23 Now, in these September 5th call notes, if 24 we look at the top of page 3, we get into the bit about 25 the service of the trespass notice?
521 A: Yes, sir. 2 Q: And, you say to Incident Commander 3 Carson, quote: 4 "And, these people, you know -- you 5 know, I mean, they just get right into 6 the minutiae and I said, Well, I mean 7 these people have been told, I'm sure 8 that you're trespassing. 9 He says, "Yeah, yeah." 10 And, you say: 11 And, I say, where they actually took 12 the paper doesn't matter. I'm sure 13 whoever the officers were that did it, 14 that's been well-noted." 15 And -- and Incident Commander Carson says: 16 "Yeah, and the thing is, in the 17 Trespass to Property Act, it's up to 18 the trespasser to get permission to be 19 on property, not vice versa, anyway." 20 And, you say that, "That's right." 21 And -- and, so, you and Incident Commander 22 Carson are sort of engaging some legal opinions there, 23 right? 24 A: We're -- 25 Q: About -- about --
531 A: -- exchanging information, yes, sir. 2 Q: -- yeah. About -- about the law of 3 the Trespass to Property Act, right? 4 A: Correct. 5 Q: And, you were -- it's fair to say you 6 were complaining that at the meeting there were -- were 7 people who were getting right into the minutiae of 8 whether there'd been a technically correct service of a 9 trespassing notice, right? 10 You were complaining about that, right? 11 A: I -- I was indicating to him that the 12 minutiae seemed to be more important so some than the 13 broader issues. 14 Q: And -- okay. Well, I didn't see any 15 reference to broader issues in this passage, but in any 16 event, you're complaining about people getting into the - 17 - the legal details, right? 18 A: Correct. 19 Q: Right. But it wouldn't it be 20 entirely reasonable for the lawyers in this meeting to be 21 concerned about legal details? I mean that's their 22 matter of expertise. 23 You want to do -- you want to do the job 24 right, correct? 25 A: The lawyers weren't concerned about
541 that. I -- I believe they had a good understanding of 2 service. 3 Q: Well, okay. Let's look at Elizabeth 4 Christie's notes; she's a lawyer. 5 At -- just a moment, please. 6 7 (BRIEF PAUSE) 8 9 Q: Okay. Now, if you look at page 6 of 10 these notes, which are Inquiry Document 1012562 at Tab 24 11 of the cross-examination brief you'll see there's a note 12 there that says, quote: 13 "The fact that they refused service, 14 probably nothing. You might want to 15 make another attempt very clear and 16 leave the paper." Unquote 17 Do you recall that being raised? 18 A: What page is that, sir? 19 Q: Oh, I'm sorry, it's page 6. I 20 thought I told you, I'm sorry. 21 A: Correct. 22 Q: And so, you recall that being raised? 23 A: A discussion of that nature, yes. 24 Q: All right. And so, that's the sort 25 of minutiae that you're referring to?
551 A: That's correct. 2 Q: All right. 3 A: But, I think when one reads what Ms. 4 Christie has identified, whether she articulated it or 5 not, that could be a note to herself with respect to the 6 notice having been left. 7 I think I covered that off in the call to 8 Inspector Carson, where the officer would have provided 9 those, the MNR, either the Conservation Officers, the OPP 10 would have provided the information with respect to 11 trespass, and noted what they had done. 12 Q: Okay. Well, on the question of 13 whether it's a note to herself, let's look at Tab 26, 14 Inquiry Brief 1011724, it's a handwritten note of the -- 15 the Meeting, on the first page of that note. 16 And you'll see that it's the note at 17 September 5, 1995, Emergency Planning Committee Camp 18 Ipperwash, and the third passage reads, quote: 19 "Have been verbally served with 20 Trespass Notice, should do it again and 21 leave paper at their feet." Unquote. 22 So, do you recall that that -- words to 23 that effect were conveyed in this meeting? 24 A: I don't have any recollection of 25 these exact words were conveyed. I can tell you there
561 was discussion around the service of the Notice, and the 2 fact that people failed to accept. 3 Q: Okay. And there was -- there were 4 discussions of technical details of service, right, 5 whether they'd be satisfied? 6 A: Technical details, yes. 7 Q: Right. Okay. And I take it you'd 8 agree with me it's perfectly reasonable for lawyers to be 9 concerned about that; right? 10 A: I -- I believe that it is, and as 11 I've indicated, I don't think the lawyers were concerned 12 about it. I think they had a very good understanding of 13 what alternate service might be. 14 Q: Okay. All right. Well, we'll ask 15 the lawyers. 16 17 (BRIEF PAUSE) 18 19 Q: Okay. Well, let's come back to the 20 September 5th call. 21 COMMISSIONER SIDNEY LINDEN: We can take 22 a break whenever you think it's appropriate, Mr. Downard. 23 MR. PETER DOWNARD: Okay. Why don't I 24 just deal with this next subject and then we will stop. 25 COMMISSIONER SIDNEY LINDEN: That's fine.
571 2 CONTINUED BY MR. PETER DOWNARD: 3 Q: All right. Now this is the, at 4 page 5, Tab 24 of the Commission Brief, and this is the 5 passage where you say, quote: 6 "Now how I prefix my remarks in terms 7 of a little briefing to them," 8 Incident Commander Carson says: 9 " Yes. Is that I said I've been told 10 there's between thirty-five and forty 11 people there." 12 And he says, "Right." 13 And you say: 14 "And I said that means men, women and 15 children." 16 And he says: "That's right." 17 And you say: "So I thought I wouldn't 18 have to explain anymore." 19 And he says, "Yes." 20 And then you do your testosterone line, 21 and then you say, quote: 22 "Then I finally had to get right out 23 and say Look. I mean, here's the 24 strategy those folk will employ. The 25 women and children will be at the
581 forefront." 2 He says, "ThatĂs right." 3 You say: 4 "The police are going to be faced 5 with..." 6 He says, "ThatĂs right." 7 And you say: 8 "And I said you got to understand the 9 Provincial Police will never shirk 10 their responsibility, but read -- their 11 hands will get dirty -- read -- so 12 will the Government's. And as long as 13 we're prepared for that." 14 And then Incident Commander Carson says: 15 "That's right, but I doubt if they 16 are." 17 And there's some more back and forth, and 18 he says: 19 "I mean, if we are going to do that 20 over a trespassing?" 21 And you say: 22 "That's exactly right. And I said you 23 know you just can't do that." 24 And he says: 25 "That's right. I mean, if we're going
591 to do that, I -- we have to have the 2 force of the law behind us to provide 3 some recognition by a Court in this 4 land." 5 And you say: 6 "Hmm Hmm. And let's not lose sight of 7 the fact this is a civil matter." 8 And Incident Commander Carson says, 9 "ThatĂs right." 10 Now, after the conclusion of the 11 September 5th Inter-ministerial Committee Meeting, the 12 recommendation of the Committee was exactly to proceed in 13 a fashion to have the force of law, to provide some 14 recognition by a Court in this land, right? 15 A: Certainly, using the Injunction 16 process, would give force of law; that's quite correct. 17 Q: Right, and that was the conclusion 18 and the recommendation of the Committee? 19 A: That's correct. 20 Q: And Debbie Hutton, herself, as you've 21 previously accepted, was supportive of getting an 22 emergency injunction at the end of the September 5th 23 meeting, right? 24 A: That's right. 25 Q: Did Incident Commander Carson have
601 any need to do his job to know this information that you 2 set forth in this little passage about this scenario of 3 the women and children being out front? 4 A: Whether he needed to know or not, I 5 identified that to him. It was certainly not a concept 6 that he was unfamiliar with, based on his experience. 7 Q: Did he need to know this information 8 in this passage about what you're conveying about events 9 at the government Committee, in order to do his job? 10 A: No, sir. 11 Q: And you know that, in this case, the 12 Ontario Provincial Police never attempted to end the 13 occupation of Ipperwash Provincial Park by marching on 14 women and children, right? 15 A: That's correct. 16 Q: So, all right -- in -- and whatever 17 state of mind you're in when saying this, 'cause you're a 18 bit -- a bit emotionally engaged when you're saying this 19 to Carson, right, Incident Commander Carson? 20 A: I was frustrated, yes. 21 Q: Okay. And you made the judgement 22 that even though he's the operational incident commander, 23 you were going to say all this to him, right, these words 24 that I've just reviewed with you? 25 A: Correct.
611 Q: Wouldn't you agree with me in 2 retrospect that that was a mis-judgment on your part? 3 A: I agree with you, in retrospect, that 4 he did not need to know that to function in his position 5 or at least, all of that in its entirety. 6 Whether I should or shouldn't have, I will 7 agree with you that I didn't need to provide much of 8 that. What I was expressing to him was my frustration 9 that while there was a good understanding at the end of 10 the day at the Inter-ministerial Committee meeting that 11 an injunction was, perhaps, the best way to go, it was 12 not solely for the purposes of removing people. 13 It would also give those people who were 14 occupying an opportunity, in a Court of competent 15 jurisdiction, to provide other information that, in my 16 view, was well germane to this particular matter. 17 Q: I see. You didn't say that to 18 Incident Commander Carson in any of these tape 19 recordings, did you? 20 A: I didn't so -- say those exact words, 21 but I -- 22 Q: You didn't -- 23 A: -- I don't believe, sir, you can 24 focus on one conversation. You have to look at the 25 totality of -- of our interaction.
621 Q: Can you tell me if there's a document 2 in which you -- which records you saying to Incident 3 commander Carson that we should get an injunction so that 4 we can hear evidence from the other side? 5 A: I -- I believe that that is intrinsic 6 in part of conversation when we speak about the issue of 7 burial grounds and territorial -- or believe territorial 8 rights to the Provincial Park, sir. 9 Q: Oh, so you -- so you say that's 10 intrinsic? So then we can just argue that back and 11 forth, right, on the words, right? 12 A: You could. 13 Q: Okay. And, sir, in your evidence in- 14 chief, you really haven't hesitated to express your 15 judgments in retrospect on the conduct of others in this 16 matter, have you? 17 A: Correct. 18 Q: Right. 19 MR. PETER DOWNARD: That would be a 20 convenient time, Commissioner. 21 COMMISSIONER SIDNEY LINDEN: Thank you, 22 Mr. Downward. We'll break now. 23 THE REGISTRAR: This Inquiry will recess 24 for fifteen (15) minutes. 25
631 --- Upon recessing at 10:18 a.m. 2 --- Upon resuming at 10:45 a.m. 3 4 THE REGISTRAR: This Inquiry is now 5 resumed, please be seated. 6 7 CONTINUED BY MR. PETER DOWNARD: 8 Q: Sir, just to come back to something 9 we touched upon before we -- we broke, I had been making 10 a suggestion to you as to what your evidence had been 11 yesterday regarding the state of communications in August 12 of 1995 between the Stoney Point people in the sense of 13 the people at the Army Camp and the Kettle and Stony 14 Point First Nation. 15 And maybe I -- I didn't put it to you as 16 precisely as I should have, but looking at the transcript 17 it -- it records your saying at page 256 of yesterday's 18 transcript at the bottom, I asked you: 19 "Okay. You also stated there had been 20 a Kettle Point community meeting held 21 last evening, August 1st, to attempt a 22 resolution to the band of the Stoney 23 Pointers, which was unsuccessful and 24 that the Stoney Pointers didn't attend, 25 right?"
641 You recall: 2 "A: Correct. 3 Q: Attending that? 4 A: Right. 5 Q: All right. And so, I take it you 6 understand that at least the Kettle 7 and Stony Point First Nation was 8 having difficulty communicating with 9 the Stoney Point group, right? 10 A: That's correct." 11 And, I take it you'd agree that was your 12 evidence yesterday? 13 A: Yes, sir. 14 Q: Thank you. Now, sir, if I can refer 15 you to Tab 22 of Exhibit 529, which is the cross- 16 examination brief, and it's Inquiry Document Number 17 3000575. 18 And you will see that it is a transcript 19 of a media conference held by Minister Hodgson as 20 Minister of Natural Resources regarding Ipperwash Park on 21 September 5th, 1995. 22 And have you ever seen this document 23 before, sir? 24 A: Yes, I have. 25 Q: And did you see this at or about the
651 -- the time of these events in early September of 1995? 2 A: I believe I've seen it since then. 3 Q: Would that be in preparation for this 4 Inquiry? 5 A: Yes. 6 Q: All right. And you'll see that in 7 this media conference, the minister says, and this is 8 after the -- the first of the heading question on the 9 first page: 10 "What is the remedy that you're looking 11 at? 12 Minister: Well, we are going to 13 examine, for example, the use of 14 injunctions, other possible 15 measures..." 16 This is Tab 22, by the way. Carrying on: 17 "I don't want to limit the scope of 18 that, but the bottom line here is that 19 it is our Park, we paid for it and they 20 are illegally trespassing upon it." 21 And then, it goes on to say -- the 22 question is: 23 "It doesn't sound like you're looking 24 at a consultation at this point. 25 Minister: Well, there's not much to
661 consult about; they're illegally 2 trespassing. 3 Question: Minister, the mayor and the 4 others called it, basically, a reign of 5 terror. He says that people are being 6 assaulted on the beach, buildings being 7 burned to the ground and basically 8 lawlessness in the area and that the 9 provincial and federal governments 10 should step in and impose the law. 11 Minister: I don't want to deal in 12 rhetoric. I understand that the 13 mayor's got concerns; the whole 14 township would. We have concerns as 15 well. We're trying to do our best to 16 make sure we rectify the situation in a 17 manner that's legal." 18 Now, sir, were you aware at or around 19 September 5th that that was the position that Minister 20 Hodgson had taken with the media? 21 A: Generally, yes, sir. 22 23 (BRIEF PAUSE) 24 25 MS. SUSAN VELLA: Just -- just to clarify
671 for the record, that last Document was from 2 Exhibit P-528, not 529. 3 And just for the record we marked 4 yesterday, Volume I, Tabs 1 to 30 as Exhibit P-528 and 5 Volume II, Tabs 31 to 59 of the Cross-Examination Brief 6 as Exhibit P-529, so that the public and the record will 7 be clear. Thank you. 8 9 CONTINUED BY MR. PETER DOWNARD: 10 Q: Sir, if you could please turn to 11 Exhibit 529 of the Cross Brief, Volume II, and Tab 36, 12 which is Inquiry Document 1011571. 13 Now youĂll see that this is an Issue Note 14 of the Ministry of the Solicitor General dated 15 September 5, 1995, with a time of 4:39 p.m. 16 Do you see that, sir? 17 A: I do. 18 Q: All right. And youĂll see that it's 19 a review in bold of the current factual position and then 20 there's a Summary, and at the bottom there's a bullet 21 point, quote: 22 "The Ministry of Natural Resources is 23 seeking an Injunction, ordering the 24 occupiers to vacate the Park. 25 Enforcement action in relation to an
681 Injunction will be considered if and 2 when an Injunction is granted." 3 Unquote. 4 Do you see that, sir? 5 A: Yes, sir. 6 Q: All right. And did you, as someone 7 who was within the Ministry of the Solicitor General, did 8 you receive this Issue Note at or around September 5th? 9 A: I did. 10 Q: And I take it that you regarded that 11 last point on the page as being an accurate reflection of 12 the current position? 13 A: I did. 14 Q: Thank you. And if I can refer you 15 now to Exhibit 528, Tab 30, which is Inquiry 16 Document 1012575. These are the notes of Dan Elliott, of 17 the MNR that I referred to previously, or I anticipate 18 they will be proven to be that, and if you look at the 19 4th page of notes it has the name Ian and a phone number 20 at the top, if that helps you? 21 A: I have that, sir. 22 Q: All right. Now youĂll see that these 23 notes are dated September 6th, 1995; do you see that? 24 A: I do. 25 Q: Okay. And I anticipate we're going
691 to hear evidence that these notes document a phone call 2 that Mr. Elliott had with Elizabeth Thunder, who at the 3 time was the Band Administrator of the Kettle and Stony 4 Point First Nation. 5 And I just want to direct you to these -- 6 some of these notes. YouĂll see that at about a third of 7 the way down the page there's a note that reads, quote: 8 "Advise that Tom does not support 9 occupation of Ipperwash Park." 10 Unquote. 11 And then just skipping down to the -- 12 skipping a bullet point there, on the next one it reads, 13 quote: 14 "The occupants will not talk to Tom and 15 Counsel." Unquote. 16 Now do you recall receiving information at 17 around September -- September 5th or 6th that the 18 occupants of Ipperwash Provincial Park will not talk to 19 Tom Bressette and the Counsel. 20 A: I was aware of that, sir. 21 Q: Thank you. And skipping over the 22 next point it then reads, quote: 23 "Liz stated that there is no land claim 24 on Ipperwash Provincial Park." 25 Unquote.
701 Going to the next point, quote: 2 "Past discussions with elders indicate 3 that, to the best of their knowledge, 4 no burial sites exist in the Park. 5 This will again be discussed at a 6 council meeting this evening." 7 Unquote. 8 Now, did it come to your attention, at or 9 around this time or on September 6th in particular, that 10 Mr. Elliott of the Ministry of Natural Resources had made 11 enquiries of the Kettle and Stony Point Band as to 12 information in the community or information from the 13 elders regarding the existence of burial sites in the 14 Park? 15 A: I was unaware that Mr. Elliott had 16 made enquiries. 17 18 (BRIEF PAUSE) 19 20 Q: Now, sir, if I can refer you for 21 moment -- just bear with me for a second. 22 23 (BRIEF PAUSE) 24 25 Q: To Exhibit 529. Actually, it would
711 be better if we used the Commission's brief for 2 pagination purposes. 3 Tab 19 of the -- of Commission's brief, 4 which is Exhibit P-509, and in particular the meeting 5 notes of the September 6th Interministerial Committee 6 meeting. Those are towards the back of the Tab, the last 7 three (3) pages of the Tab. 8 A: Yes. 9 Q: Okay. And you'll see that on the 10 second page is the heading, Minister's Directives; do you 11 see that? 12 13 (BRIEF PAUSE) 14 15 Q: A heading with the number 3 beside 16 it? 17 18 (BRIEF PAUSE) 19 20 Q: The third -- the three (3) last 21 pages. It's the second last page under the Tab, the Tab 22 19. 23 A: If it's Tab 19 of the Commission's -- 24 Q: Yeah, yes. 25 A: -- binder, under 3 I have options.
721 Q: You may be looking at September 5th. 2 The meeting notes for both the 5th and 6th are under this 3 tab. 4 5 (BRIEF PAUSE) 6 7 A: I have it now, sir. 8 Q: All right. And you'll see, sir, that 9 under the heading, "Minister's Directives," there's a 10 reference to the MNR and it states, quote: 11 "The Minister wants to act as quickly 12 as possible to avoid further damage and 13 to curtail any escalation of the 14 situation." Unquote. 15 Do you recall being aware of this 16 minister's directive, from the Minister of Natural 17 Resources as a result of your attendance at this meeting? 18 A: I do. 19 Q: And so I take it you understood, 20 then, that the Minister of Natural Resources was desiring 21 quick action, for the purpose of de-escalating the 22 situation, rather than escalating it, right? 23 A: And preventing damage, yes, sir. 24 Q: And now, sir, I'd like to refer you 25 to some handwritten notes of the September 6th
731 Interministerial Committee meeting. 2 I'm going to have to start calling it the 3 IMC. 4 Exhibit 529, Volume II of the cross- 5 examination brief and at Tab 41, which is Inquiry 6 Document 1012579. 7 And I anticipate the Commission will hear 8 evidence that these are handwritten notes of the 9 September 6th IMC meeting done by Julie Jai. This is Tab 10 41 of Exhibit 529 Volume 2 of the cross brief. 11 And I want to refer you first to the -- 12 the second handwritten page, which has the date at the 13 top and it says, "Updates re: the Park" and then there's 14 a reference to your name; do you see that? 15 A: I do. 16 Q: Okay. And then further down the page 17 there is a -- a note which reads, quote: 18 "Prem [which I presume is short for 19 premier] doesn't want anyone involved 20 in discussions other than OPP or 21 possibly MNR." Unquote. 22 And it goes on to say, Doesn't want chief 23 or others involved, doesn't want to get into 24 negotiations. 25 Now do you recall this information being
741 conveyed at the meeting? 2 A: I do. 3 Q: And so I take it you understood, when 4 this information was conveyed at the meeting, that the 5 premier was entirely content that there would be 6 discussions by -- with the occupiers by the OPP or 7 possibly by the MNR; right? 8 A: Correct. 9 Q: And I referred you to the note -- or 10 portion of the note -- I just read to you, which says, 11 quote: 12 "Doesn't want chief or others 13 involved." Unquote. Then over the top of 14 the page there -- which has a circled "2" 15 at the top -- there's a note that reads, 16 quote: 17 "PO" [and I -- I presume this refers to 18 the premier's office] would like chief 19 to support us, but do this 20 independently. He doesn't want to go 21 into land claims." Unquote. 22 Do you recall that information being 23 conveyed by Ms. Hutton at the meeting? 24 A: I recall that and I disagreed with 25 it.
751 Q: Well do you disagree that it was said 2 or do you disagree with the -- the content of the thought 3 it contains? 4 A: Disagreed with the content, sir, 5 don't disagree that it was said. 6 7 (BRIEF PAUSE) 8 9 Q: Okay. And if you can look over to 10 the page that has the number "5" at the top, do you have 11 that? It -- it -- the words at the top are, "Friday, if 12 injunction obtained." 13 A: Yes. 14 Q: Okay. And then towards the bottom 15 there's a reference to Marcel Beaubien and a note saying, 16 quote, "Try to reduce tensions," unquote. 17 A: Yes. 18 Q: Okay. And then at the bottom there's 19 the heading, quote: 20 "David Moran. Marcel not an 21 appropriate person to do this. Get a 22 list of who needs to be calmed down." 23 Unquote. 24 Now, I anticipate we'll hear evidence that 25 David Moran was a political staffer and do you recall him
761 or his discussing these -- these matters at this meeting 2 and his requesting a list of people who need to be calmed 3 down in the area? 4 A: Generally, yes. 5 Q: And so you -- I take it you 6 understood that his intention was that he would be making 7 efforts to calm people down and reduce tensions? 8 A: In the non-native community, yes, 9 sir. 10 Q: And then at page 8 there's a 11 dialogue, pardon me, it's my page 8, it's page 6 in the 12 hand -- in the handwriting at the top. The top -- top 13 words on the page are: 14 "Local spokesperson to be OPP." 15 Do you have that? 16 A: Yes I have. 17 Q: Okay. And youĂll see, some words 18 that, quote: 19 "Deb: Feels MNR, as property owner, 20 can ask OPP to remove people. 21 Scott: You can ask them to remove 22 them, you can't insist or demand that 23 they be removed. 24 Deb: Has MNR asked OPP to remove them? 25 They could be formally requested to do
771 so, but how and when they do it is up 2 to them." 3 Do you see that? 4 A: I do. 5 Q: And that would be a discussion -- do 6 you recall if it's a discussion between Deb Hutton and 7 Scott Patrick, your colleague? 8 A: I don't believe that was Scott 9 Patrick. 10 Q: Well, who do you think that was? 11 A: I believe it was Scott, and I'm at a 12 loss for his last name, from the -- Scott Hutchinson 13 from the Ministry of the Attorney General, Crown Law, 14 Criminal. 15 Q: Okay. But, in any event, you -- you 16 recall that the substance of this dialogue took place at 17 this meeting? 18 A: Correct. 19 20 (BRIEF PAUSE) 21 22 Q: And sir, if I can refer you to 23 Exhibit P-517, it's Tab 31 in the Commission's Brief and 24 Inquiry Document Number 2003794. This is material 25 regarding your colleague, Scott Patrick, and there are
781 handwritten notes. 2 What I wanted to refer you to is at the 3 third page of his notes, headed 6 September '95, which I 4 expect we'll hear evidence, or his notes of events, it's 5 September 6 in the Ministerial Committee Meeting. 6 And so you see at the third page, it has 7 the words on top, "Minister Last Night Runciman"? 8 A: Yes, sir. 9 Q: And it reads, quote: 10 "Long-standing protocol arm's length 11 [something] police services want to 12 maintain it." Unquote. 13 Now, do you recall words to that effect 14 being conveyed at this meeting? 15 A: I do. 16 Q: And you understood that it was 17 conveyed from Minister Runciman to the meeting, that he 18 has the -- the Solicitor General of the Province wanted 19 to maintain the arm's-length relationship between the 20 Government and police services? 21 A: I did. 22 Q: Thank you. And just, while we're at 23 this Tab, if we can step back -- right. 24 The second page of the document refers to 25 your -- your meeting on May 12th in Aurora, which, it was
791 May 12th, 1997, and you were there and Scott Patrick was 2 there, and I -- I believe you were being interviewed by 3 another Member of the OPP, right? 4 A: That's correct. 5 Q: And you are being interviewed with 6 respect to the events of this matter, right? 7 A: No, sir. It was with respect to an 8 assignment. The author of this -- of this material had - 9 - it was Inspector Greg Connolly, and he was assigned to 10 put together all the information material on Ipperwash. 11 Q: Right. Well, by this matter, I mean 12 the Ipperwash matter, generally. 13 A: Okay. 14 Q: Okay. And I take it that when you 15 spoke to him on this occasion, you had every intention of 16 telling him the truth about things you were asked about, 17 and you did tell the truth, right? 18 A: Yes, sir. 19 Q: Right. And at the top of the second 20 page, the second line, says, in a bracket, it says: 21 "(Asked..." Quote: 22 "(Asked Fox questions re political 23 direction). I got no direction for 24 anything there." Unquote. 25 And do you recall a question to that
801 effect, that subject being asked and your providing that 2 response? 3 A: That's correct, in relation to 4 Kathryn Hunt. 5 Q: Sorry, what do mean in relation to 6 Kathryn Hunt? 7 A: It starts off, 8 "Kathryn Hunt, Minister's EA [was the 9 EA to the Solicitor General] meetings 10 with summary of events, asked Fox 11 questions re: political directions. I 12 got no direction for anything there." 13 Q: Okay. 14 A: What he would be, I'm assuming 15 paraphrasing, is that I received no direction from the 16 Minister of the Solicitor General with respect to police 17 operations. 18 Q: All right. 19 20 (BRIEF PAUSE) 21 22 MS. SUSAN VELLA: Just for the record, 23 that was Exhibit P-517. 24 COMMISSIONER SIDNEY LINDEN: I'm sorry, 25 5...?
811 MS. SUSAN VELLA: Seventeen (17). 2 COMMISSIONER SIDNEY LINDEN: Yes. 3 4 (BRIEF PAUSE) 5 6 CONTINUED BY MR. PETER DOWNARD: 7 Q: Now, sir, if I can refer you to 8 Exhibit 529, Volume II of the cross brief, and this is a 9 document at Tab 50 -- pardon me, sorry. 10 11 (BRIEF PAUSE) 12 13 Q: Tab 51, rather. It's Inquiry 14 Document 3000701 and you'll see, sir, there are two (2) 15 copies of this document here. It would easier to refer 16 to the -- the copy that's at the last page, which is also 17 Inquiry Document 1011585. 18 But you'll see it's headed, "Ministry of 19 Solicitor General and Correctional Services Issue Notes 20 September 6, 1995 at 10:30 a.m." 21 Do you have that? 22 A: I do. 23 Q: All right. And you will see that 24 it's headed, "Ministerial Role re: OPP operational 25 matters."
821 A: Correct. 2 Q: Right. And -- and it's a very -- 3 from my perspective, from my clients' perspective, it's a 4 very important document, so I'm going to read it at some 5 length. 6 I won't ask that it be read twice, but I'm 7 going to read it at some length. Quote: 8 "The Commissioner of the OPP is aware 9 of the events at Ipperwash Provincial 10 Park and OPP are monitoring the 11 situation." 12 Next point, quote: 13 "It is up to the OPP to determine what 14 action, if any, is to be taken in any 15 particular case." Unquote. 16 Next point, quote: 17 "Although the police have the duty to 18 enforce the law, the police have the 19 discretion to determine what action, if 20 any, will be taken in any particular 21 case after having carefully considered 22 all the circumstances." 23 And then the summary, and the first point 24 of the summary is, quote: 25 "Policy making is properly the
831 responsibility of the executive arm of 2 government, while operational decisions 3 pertaining to the enforcing of the law 4 are the responsibility of the police. 5 Accordingly, the Minister should not 6 intervene in operational decisions made 7 by OPP members when exercising their 8 powers as peace officers." Unquote. 9 And then skipping the next bullet, quote: 10 "Although the police have the duty to 11 enforce the law, police officers must 12 exercise a discretion when deciding the 13 appropriate action to be taken in any 14 particular case." 15 And I'll leave it at that. Now, sir, do 16 you recall seeing this document on or about September 6th 17 of 1995? 18 A: I do. 19 Q: Can this be the next exhibit, please. 20 Or actually this -- it is an exhibit, well it will be an 21 exhibit on record. Fine. I just want it to be a public 22 document, that's my -- my point. 23 THE REGISTRAR: It is. 24 25 CONTINUED BY MR. PETER DOWNARD:
841 Q: Now, let's come to the -- the dining 2 room meeting in the afternoon of September 6th. 3 Now, as I understand your evidence you 4 came into the meeting when it was in progress, right? 5 A: Correct, sir. 6 Q: And, you said, I -- I believe, in 7 your evidence yesterday, that you could not recall 8 whether you made your report before or after Premier 9 Harris left the room, right? 10 A: That's correct. 11 Q: And, you said you were introduced at 12 the meeting. Do you recall whether you were introduced 13 before or after the Premier left? 14 A: Before the Premier left. 15 Q: And, as I understand it, you never 16 met with the Premier apart from attendance at that 17 meeting, right? 18 A: That's correct. 19 Q: And, you never met with Debbie Hutton 20 apart from your attendance at Interministerial Committee 21 meetings and this meeting in the dining room? 22 Oh, sorry, you -- you didn't recall her 23 being there apart from the Interministerial Committee 24 meetings, right? 25 A: Correct.
851 Q: Okay. Now, you gave some evidence 2 that you heard the -- the Premier criticize the approach 3 that had been taken at the outset of the occupation by 4 police; that was your evidence, right? 5 A: It was. 6 Q: Okay. And, I understand that -- that 7 David Moran, who I expect will be a -- a witness here, 8 that he will give evidence that in this meeting the 9 Premier expressed the opinion that the longer the 10 occupiers were in the Park, the more difficult it would 11 be to secure their removal and that the Premier said he 12 was leaving it to those responsible to exercise their 13 best judgment. 14 Now, do you disagree with that? 15 A: I don't disagree. I have no 16 recollection of those particular words, sir. 17 Q: Okay. And, I anticipate that 18 Minister Harnick will testify that the -- in this meeting 19 the Premier remarked that once the Park had been occupied 20 there'd be no way to remove the occupiers. And he agreed 21 based on the recommendations that other people had made 22 that the best way to proceed would be to seek civil 23 injunction. 24 Do you disagree with that? 25 A: I don't disagree with that -- that
861 premise. I can't tell with certainty that he said those 2 words. 3 Q: Now, I understand that Elaine Todres, 4 the Deputy Solicitor General, was at this meeting and I 5 anticipate that she is going to say that it was made 6 clear at this meeting that politicians could not 7 interfere in the operational decisions of the OPP and 8 that the group as a whole understood those ground rules. 9 Do you disagree with that? 10 A: I wasn't there for the entire 11 meeting, sir, I don't recall Deputy Todres saying that 12 while I was there. 13 Q: All right. It's possible that she 14 said that before you were there, right? 15 A: It is possible, sir, yes. 16 Q: My battery ran out before I could 17 refer you to a portion of your evidence, so I'm going to 18 have to turn it back on again. 19 20 (BRIEF PAUSE) 21 22 Q: Well you said yesterday that, and 23 this is at page 115 of yesterday's transcript, in the 24 Examination by Ms. Vella, that you believe that the 25 meeting in the dining room came to the conclusion that
871 what the police should do next was to remain only in the 2 prevue of the police; correct? 3 A: That's correct. 4 Q: Now I want to ask you about this 5 Holocaust thing. I take it youĂll agree with me that 6 there's nothing on the tape of your conversation with 7 Incident Commander Carson, following the -- the Meeting 8 in -- in the Dining Room on the 6th, about this Holocaust 9 comment; right? 10 A: The only reference on the tape was to 11 wild-ass comments, sir. 12 Q: Wild-ass comments. Okay. But 13 there's nothing on the tape about the word -- that refers 14 to the word "Holocaust;" right? 15 A: That is correct, sir. 16 Q: Right. And you made no notes at this 17 meeting; right? 18 A: I did not. 19 Q: And have you ever seen any document 20 that contains any reference to Premier Harris making any 21 reference to the Holocaust in this Meeting? 22 A: No, sir, I have not. 23 24 (BRIEF PAUSE) 25
881 Q: I want to refer you to a -- a 2 document, it's Inquiry Document 3000837... 3 4 (BRIEF PAUSE) 5 6 Q: No, it was -- now, on the Examination 7 for Discovery of the Province's Representative, in the 8 civil litigation related to this matter, an undertaking 9 was given by the Provincial Government to ask a number of 10 specific questions to persons who were present at the -- 11 the Dining Room Meeting on the 6th, and one of those 12 questions was a question which was number 10 on a list, 13 and the question was, because it's -- unfortunately, it's 14 not set out in this -- in this letter. 15 The question was: 16 ˘What did the Premier say at the 17 meeting, if anything? Please provide 18 your best recollection of what he said 19 in as much detail as possible.÷ 20 Now I've referred -- I've put before you a 21 letter dated September 15, 2003 written to Mr. 22 Klippenstein and others by Dennis W. Brown, Q.C., who is 23 general counsel for the government in the case and, as 24 you'll see, this letter says, and it opens on the first 25 page with the words, quote:
891 "Please be advised that Ron Fox has 2 returned from vacation and has provided 3 his answers to the twenty (20) 4 questions pursuant to the undertaking 5 and question 3293 to the examination of 6 Yan Lazor." 7 Now, and this letter is September 15, 8 2003. Do you recall meeting with government counsel 9 around this time to provide answers to these questions? 10 Yes Mr. Commissioner? 11 COMMISSIONER SIDNEY LINDEN: Yes. 12 Yes, Mr. Falconer...? 13 MR. JULIAN FALCONER: Commissioner, I'm 14 not being critical of My Friend. I don't think we're 15 going to have a debate over this, it's just that I don't 16 have access to the question and My Friend read it out but 17 I need some access to the question to follow this, to be 18 fair and it probably should be filed or something so that 19 at least it goes on the transcripts. I appreciate it. 20 MR. PETER DOWNARD: Well I can -- I can 21 do that now. It'll take a minute but I can do that. 22 COMMISSIONER SIDNEY LINDEN: All right. 23 If you can do it now and it'll take a minute, then let's 24 do it. 25
901 (BRIEF PAUSE) 2 3 CONTINUED BY MR. PETER DOWNARD: 4 Q: The -- the question is, as I 5 described it, the -- the reference -- this is in the 6 examination for discovery of the province's 7 representative and it -- this -- this is toward the end 8 of the transcripts. 9 There's a lot of them and, at this point, 10 in the later stages, Mr. Lazor was replaced by one David 11 Carson as the government's representative. And this 12 transcript has previously been circulated to all counsel 13 and at page 1638 of the transcript, the question that was 14 to be put to various people was, quote: 15 "What did the Premier say at that 16 meeting, if anything? Please provide 17 your best recollection of what he said 18 in as much detail as possible." 19 Unquote. Now what I would propose to do 20 is undertake to file a portion of the transcript for the 21 record, subsequently, if that's satisfactory to all 22 parties? 23 COMMISSIONER SIDNEY LINDEN: That's fine. 24 I think you reading it in at this point may be 25 sufficient, but if you're prepared to file it as well,
911 that's fine. 2 MR. PETER DOWNARD: Now -- 3 MS. SUSAN VELLA: The only -- the only 4 difficulty that I have is -- is that I don't believe that 5 this document was on the list of documents supplied by 6 Mr. Downard, so I don't know if this witness has been 7 given an opportunity to refresh his memory with respect 8 to it. 9 COMMISSIONER SIDNEY LINDEN: Okay. 10 MR. PETER DOWNARD: Well, my apologies. 11 This is a latter -- a latter discovery on -- on my point. 12 I've usually tried to very strictly comply with all of 13 those -- 14 COMMISSIONER SIDNEY LINDEN: Yes, you 15 have. 16 MR. PETER DOWNARD: -- and all the 17 practices. 18 COMMISSIONER SIDNEY LINDEN: Let's see if 19 the witness has a problem -- 20 MR. PETER DOWNARD: Sure. 21 COMMISSIONER SIDNEY LINDEN: ű- if he 22 needs time, let's just see. 23 MR. PETER DOWNARD: Sure. 24 COMMISSIONER SIDNEY LINDEN: If you -- 25 THE WITNESS: Your Honour, I've -- I've
921 read the document and I'm prepared to answer any of Mr. 2 Downward's questions. 3 COMMISSIONER SIDNEY LINDEN: Thank you. 4 MR. PETER DOWNARD: Okay. Great. Thank 5 you very much. 6 7 CONTINUED BY MR. PETER DOWNARD: 8 Q: Now, sir, I understand that -- that 9 at or around early September or late August of 2003, you 10 met with government counsel to provide them with your 11 answers to these questions; right? 12 A: Correct. 13 Q: And when you met with them, you 14 intended to tell them the truth; right? 15 A: Yes, sir. 16 Q: All right. And the answer to 17 question 10, set out in the -- were you ever provided 18 with a copy of this letter? Did you ever see this letter 19 before? 20 A: I believe that I have, yes, sir. 21 Q: Okay. And did you -- did you ever 22 make a -- a complaint to Mr. Brown that it contained 23 inaccuracies? 24 A: No, I did not. 25 Q: Okay. And the answer to question 10
931 that appears in this record is -- and this is the 2 question 10 about recollection of what the Premier said 3 at the dining room meeting, quote: 4 "He cannot recall any specific words 5 being used at the meeting. His 6 impression was that the Premier was 7 displeased because the matter had not 8 yet been resolved." 9 Unquote. Now, so I -- I take it, then, 10 that you -- you gave that answer to government counsel 11 for the purpose of these Inquiries; right? Is that 12 correct? 13 A: In response to a civil suit. 14 Q: Right. 15 A: Yes. 16 Q: All right. So when did it come to 17 you that the Premier had said something about the 18 holocaust in particular? 19 A: In July of -- of 2003 I became aware 20 that I had a taped conversation with Inspector Carson. 21 Prior to that I had no specific recollection of the 22 substance of my conversation with Carson, it served to 23 refresh my memory. 24 Q: Okay. 25 A: That was in July of 2003.
941 Q: Okay. 2 A: This response was made in September 3 of 2003. 4 Q: Right. 5 A: And at that time, I had no 6 recollection of the comment with respect to the 7 holocaust. 8 Q: So that -- that's a recollection you 9 say that -- that you've acquired some time in the last 10 three (3) years? 11 A: That is correct, sir. 12 Q: Eight (8) years after the event? 13 A: Nine (9), sir. 14 Q: Nine (9) years after the event. I 15 see. So it -- it's something that's come to you quite 16 recently; correct? 17 A: That's correct, sir. 18 Q: And is it -- is it possible that your 19 recollection may be in error at this point? 20 A: I don't believe that it is, sir. 21 Q: All right. 22 COMMISSIONER SIDNEY LINDEN: Excuse me, 23 Mr. Downard, Mr. Horton is up. 24 MR. WILLIAM HORTON: Commissioner, I just 25 wanted to clarify that what is being read to this Witness
951 is the answer that went from counsel to the opposing 2 side -- 3 COMMISSIONER SIDNEY LINDEN: Yes. 4 MR. WILLIAM HORTON: -- and those of us 5 who practice in this area are aware that there's a fair 6 bit of editing that goes on in the responses as compared 7 to the raw information that is -- I'm not saying it's 8 inaccurate, but there is -- it is certainly an edited 9 version. 10 What I would like to know is that Mr. 11 Downard is prepared to produce Counsel's notes from the 12 actual interview with Mr. Fox on this point because 13 clearly there can't be privilege in the discussion if he 14 is putting to this Witness a summary of what was said. 15 So I'm asking -- I'm asking that Mr. 16 Downard produce the actual notes and put -- of the 17 conversation -- and put those to the Witness. 18 MR. PETER DOWNARD: Number 1, they're not 19 my notes. Number 2, they may be subject -- the -- the 20 underlying notes may be subject to a litigation privilege 21 that's not my privilege to waive or not. 22 COMMISSIONER SIDNEY LINDEN: No. 23 MR. PETER DOWNARD: Number 3, in my 24 submission, I've asked the question -- the proper 25 questions for him to adopt the answer and give the proper
961 foundational answers to the questioning that I've made of 2 him on this point. 3 COMMISSIONER SIDNEY LINDEN: That's fine. 4 MR. WILLIAM HORTON: Commissioner, first 5 of all, I think Mr. Downard would know that litigation 6 privilege ends when the litigation ends. It no longer 7 exists after the litigation for which it came into 8 existence is over. We can certainly brief that point if 9 necessary. 10 Secondly, if the privilege exists, it 11 belongs to the client. Mr. Downard's client is -- 12 MR. PETER DOWNARD: This is not Mr. 13 Harris' lawyer. 14 MR. WILLIAM HORTON: Well, this 15 information -- 16 COMMISSIONER SIDNEY LINDEN: You've 17 qualified your question now, Mr. Downard. We know that 18 it's not a verbatim answer, it's a summary. I -- 19 MR. WILLIAM HORTON: That -- that may be, 20 Commissioner, but it is a summary of specific words that 21 were used by the Witness on a particular occasion. 22 COMMISSIONER SIDNEY LINDEN: Or not used. 23 MR. WILLIAM HORTON: That -- that -- it 24 is -- it is a summary of what Mr. Fox said to a lawyer on 25 a particular occasion and what I'm suggesting is that the
971 actual record of that conversation should be produced so 2 that it can be compared to the edited version. 3 And if -- if Mr. -- if Mr. Downard is 4 saying it's not his document, then we'll await for the 5 appropriate time, because clearly litigation privilege is 6 waived at this point, Commissioner, and I'll -- I'll 7 simply then put the government on notice then that we 8 would ask that that document be produced. If they object 9 to it, then we'll bring the appropriate motion. 10 MR. PETER DOWNARD: Commissioner, my -- 11 my submissions, I have asked the appropriate questions to 12 have this Witness adopt the accuracy of the statement, 13 itĂs a statement that he made at the time and -- or -- or 14 an accurate record of -- of it and -- and I'm -- I'm 15 done. I've made my point with the Witness on this. 16 COMMISSIONER SIDNEY LINDEN: That's fine. 17 Carry on, Mr. Downard. 18 19 CONTINUED BY MR. PETER DOWNARD: 20 Q: And, sir, I take it that you don't 21 recall any discussion in the Dining Room Meeting as to 22 what would happen if an Injunction was in fact granted in 23 this matter by the Courts; is that fair? 24 A: No, sir. 25 Q: It's not fair?
981 A: There was no discussion that I'm 2 aware of. 3 Q: Thank you, sir. Now let's come to 4 the explosive tape, and this is at the Commission's 5 Brief, Tab 33. Okay. Now at the second page of the 6 transcript you talk to Incident Commander Carson about 7 getting an ex-parte injunction and you say, quote, it's 8 at the top of the page, quote: 9 "They are making moves towards getting 10 an ex-parte injunction, in other words, 11 one that doesn't have to be served." 12 Are you with me? 13 A: Yes, sir. 14 Q: Thank you, sir. He says: 15 "Okay." 16 And you say: 17 "What they have to do is show emergent 18 circumstances." 19 He says: 20 "Right." 21 And you say: 22 "And the exigency of the situation are 23 kind and increasing exponentially." 24 He says: 25 "Okay."
991 Now, so I take it that there's nothing in 2 this recorded conversation which shows you expressing any 3 reservations to Incident Commander Carson about the 4 Government proceeding to obtain and Ex-Parte Injunction; 5 right? 6 A: No. 7 Q: And you, on page 3 say, and it starts 8 at the middle of the page, quote: 9 "But I mean they're pushing to get this 10 done quick." 11 And he says: 12 "Yes, okay, I hear you." 13 And you say: 14 "They're lining up a Judge, he is from 15 Lambton County." 16 And then you two go on and you talk about 17 whether you know the Judge or not; right? 18 A: Correct. 19 Q: Right. And so when you said to 20 Incident Commander Carson: 21 "They're pushing to get this done 22 quick." 23 What you -- what you were referring to was 24 the Government wanting to get a Court Hearing promptly; 25 right?
1001 A: Correct. 2 Q: Thank you. Okay. Now, and then on 3 page 4, you say, it's around the middle of the page: 4 "Okay. Well then, let me just give you 5 the -- I went to this meeting, John. 6 We're dealing with a real redneck 7 Government. They are fucking barrel- 8 suckers. They just are in love with 9 guns." 10 And he says: 11 "Okay." 12 And you say: 13 "There's no question, they don't give a 14 shit less about Indians." 15 Now youĂll see, if you look at -- if 16 you'll bear with me for a second, in the Exhibit 528, the 17 Cross-Examination Brief, Tab 5, youĂll see there's a 18 document that has previously been circulated 19 electronically to all counsel, it's a document dated 20 January, 1995 and it's called, "A Voice for the North." 21 It's a document produced in -- in, as I 22 say, in early January 1995 by the provincial progressive 23 conservatives under Mr. Harris' leadership at the time, 24 and it's a report on what's called a northern focus tour, 25 which is a tour to obtain information and views from
1011 people in northern Ontario. 2 And you'll see, if you look at two (2) 3 pages over, there's a page number 11, and it -- I want to 4 read to you the three (3) paragraphs at the bottom of 5 page 11. 6 COMMISSIONER SIDNEY LINDEN: I'm sorry, 7 Mr. Downard, I'm not with you. What document is that? 8 MR. PETER DOWNARD: This is Exhibit 528, 9 the cross brief, Volume I. 10 COMMISSIONER SIDNEY LINDEN: All right. 11 MR. PETER DOWNARD: Tab 5. 12 COMMISSIONER SIDNEY LINDEN: Thank you. 13 Okay. 14 MR. PETER DOWNARD: And it's a page with 15 the number 11, it's the third page under the tab. 16 COMMISSIONER SIDNEY LINDEN: Thank you. 17 MR. PETER DOWNARD: Okay. 18 COMMISSIONER SIDNEY LINDEN: That's fine. 19 20 CONTINUED BY MR. PETER DOWNARD: 21 Q: And the paragraphs read, and I quote: 22 "The result of continuing economic 23 hardships and the difficulty of 24 maintaining their traditional 25 lifestyles, value and culture are well
1021 known. Native peoples in the north 2 suffer from higher rates of 3 unemployment, disease and depression 4 than non-Natives. 5 Many First Nation communities are now 6 taking action to forge their own 7 economic destinies. 8 During a visit to the Rainy River First 9 Nations at Manitou Rapids we discovered 10 first hand the impressive innovation 11 and entrepreneurship that's now taking 12 place on reserves. 13 Natives at Rainy River are running a 14 sturgeon hatchery which general manager 15 Russ Fortier told us is the only one of 16 its kind in North America. 17 It's a business with huge potential. 18 This kind of initiative and 19 entrepreneurship among the First 20 Nations will be the key to their 21 economic independence. 22 The opportunities created for increased 23 tourism will benefit not only native 24 peoples, but nearby non-Native 25 communities."
1031 And then, over the page, there are two (2) 2 paragraphs above the heading, "Municipal Government." And 3 -- and you'll see from the top that this -- this page is 4 referring to commitments of a Mike Harris Government, and 5 two (2) paragraphs to the middle of the page above the 6 heading "Municipal Government" read: 7 "We believe that many of the social 8 problems being suffered by native 9 communities can be directly linked to 10 the lack of economic and community 11 development on reserve lands. We will 12 work closely with native leaders to 13 promote and encourage this development 14 so that native Canadians can use their 15 creative and entrepreneurial talents to 16 the fullest. 17 Ontario's native population has been 18 marginalised in many ways, leading to 19 tensions and social problems in both 20 native and non-native communities. 21 We hope to break this cycle through 22 fair and inclusive treatment that 23 recognizes those communities as equal." 24 Unquote. 25 Now, sir, does that sound to you like
1041 something that is said by people who couldn't care less 2 about First Nations people? 3 A: No, it does not. 4 COMMISSIONER SIDNEY LINDEN: Yes, just 5 before you carry on. 6 Yes, Mr. Falconer...? 7 MR. JULIAN FALCONER: The only concern or 8 reservation I put on the record, Mr. Commissioner, is 9 that there has to be an entitlement to be able to cross- 10 examine on this document. The unique nature of the 11 document is such that it's not a statement that Mr. 12 Downward is actually attributing to anyone. 13 And what I want to put My Friend on notice 14 is that I assume he is saying that by reading this 15 document to the witness and asking the questions he is, 16 when the government of Ontario witnesses take the stand 17 that either Mr. Downard or others represented, that 18 government of the day, we will be entitled to cross- 19 examine on this document as if it's their statement, 20 because, of course, he's cross-examining premised on it 21 being their statement. 22 MR. PETER DOWNARD: That would -- 23 MR. JULIAN FALCONER: Thank you. 24 MR. PETER DOWNARD: That would fall as a 25 matter of course and I would expect this document to be
1051 going in as part of Premier Harris' evidence, the former 2 Premier Harris's evidence. 3 COMMISSIONER SIDNEY LINDEN: That's fine. 4 5 CONTINUED BY MR. PETER DOWNARD: 6 Q: Now, do you agree with me that those 7 could not reasonably be characterized as red neck 8 comments? 9 A: These comments -- 10 Q: Right -- 11 A: -- in this document -- 12 Q: Right. 13 A: -- would not be. 14 Q: Right. Now, I want to also refer you 15 to a document at tab 6 of this brief and I -- the 16 Commissioner will hear evidence that this is an internal 17 document of the Provincial Progressive Conservative Party 18 that was prepared regarding party policy during the 1995 19 election. 20 And if you look at -- and -- and these are 21 extracts from a larger document dealing with the notion 22 of community development, generally, and it's at Tab 6 of 23 Exhibit 528. 24 And -- and, you'll see if you look at the 25 third page, which is number 15, the document states,
1061 quote: 2 "Native Canadians are a special group 3 in our society with unique recognition 4 in the Constitution and specific needs 5 and concerns. As the federal 6 government moves closer to recognizing 7 self-government among native peoples, 8 aboriginals' relationship with the 9 Ontario government will continue to 10 change. 11 It would take thousands of pages to 12 deal with all of the issues that 13 changing relationship will raise. 14 Here, were are only discussing some of 15 the most of the important of the 16 current issues facing Ontario's native 17 population. 18 Native Canadians have told us they want 19 to resolve the ongoing conflicts over 20 land claims and resource rights, but 21 what's more important, they want to 22 break the poverty cycle that traps so 23 many aboriginal people in despair and 24 bad health. 25 Our plan to provide new opportunities
1071 for native Canadian communities is 2 explained in this section." 3 And, there's a heading: 4 "Working with Native Peoples. [It 5 reads] That means helping aboriginal 6 groups become economically independent 7 and cooperating with all interested 8 groups in resolving land claim and 9 resource disputes." 10 It carries on: 11 "While Canadian history and law both 12 mark this group as unique, we are 13 committed to integrating the rights and 14 needs of all Ontarians in our policies 15 in this area." 16 And then there's further specific 17 addressing of the subject of economic development, land 18 claims, hunting and fishing and political involvement and 19 so on. 20 And I take it, sir, that you would agree 21 that what I've read to you from this document is not the 22 sort of policy statement you would expect from people who 23 couldn't care less about native people; right? 24 A: The words on paper would not indicate 25 that and if applied, I would agree.
1081 Q: Right. 2 A: I would agree. 3 Q: Beg your pardon? 4 A: And, if applied, I would agree. 5 Q: Thank you. And then you were -- you 6 were saying -- and I just didn't understand this at all - 7 - but anyway, you were saying that they're, "fucking 8 barrel suckers." 9 That's what you said to Inspector Carson, 10 right? 11 A: Correct. 12 Q: Right. And that's a sexual 13 reference; right? 14 A: No, sir. 15 Q: It's not. Well if they're sucking 16 barrels because -- well you said because they're in love 17 with guns; right? 18 A: That's right, sir. 19 Q: Okay. So that's just fondness. It's 20 not a sexual thing, it's just a fondness for guns, makes 21 you want to suck them; right? 22 A: Correct. 23 Q: I see. All right. Well that's a 24 very inappropriate statement; right? 25 A: It is, sir.
1091 Q: Right. And you were speaking 2 recklessly; right? 3 A: I'm sorry. 4 Q: You were speaking recklessly. 5 A: I was speaking emotionally, yes, sir. 6 Q: You were speaking recklessly. 7 A: I was speaking emotionally, sir. 8 Q: You were speaking without regard for 9 the accurate and careful facts; right? 10 A: I don't believe so. 11 Q: Okay. All right. And you told me 12 you never spent any time discussing anything with the 13 Premier apart from what you described in the dining room, 14 right, if -- if he was there for your report? 15 A: Correct. 16 Q: Okay. And so -- so you never 17 discussed First Nations issues with him; right? 18 A: Not with him, personally. 19 Q: No, never with him. You didn't know 20 this man at all; right? 21 A: That's correct. 22 Q: Right. You just thought you'd call 23 him a "fucking barrel sucker", right? 24 A: I don't believe I referred to him 25 exclusively in that fashion.
1101 Q: Oh, you -- you didn't mean to refer 2 to the Premier when you said that? 3 A: I didn't -- I said I didn't refer to 4 him exclusively in that fashion. 5 Q: Oh, so you were referring to him. 6 Were you referring to him or not because I'd like the 7 media to know that? 8 A: I was referring to the government of 9 the day, which obviously would include the Premier. 10 Q: Okay. All right. So you were 11 calling him a "fucking barrel sucker;" right? 12 A: I was calling the government of the 13 day, yes. 14 Q: Let's not -- I'm just trying to get 15 you to answer the question straight up. Were you calling 16 the Premier of the province this or not? 17 A: By virtue of my -- my statement, he 18 being the leader of the government, yes. 19 Q: Right. Right. But you didn't know 20 this man at all; right? 21 A: That's correct. 22 Q: And you didn't hesitate to pass 23 judgment on him; right? 24 A: I wasn't passing judgment on him per 25 se, as an individual.
1111 Q: Oh, Okay. So it's a good thing to be 2 saying that somebody is a, quote, "fucking barrel 3 sucker?" That's not passing judgment on somebody, is it? 4 A: I believe that I've already told you 5 that it's not a good thing to say. 6 Q: Now -- now, sir, were you aware that 7 in early September, there was an occupation at, I believe 8 it's Serpent Mounds Provincial Park, early September 9 1995? 10 A: I was. 11 Q: Okay. And I anticipate that Mr. 12 Lazor, well I'm sure My Friends are anxious to call, will 13 give evidence that on the September-1 weekend, there was 14 a First Nations protest that was authorized by the local 15 First Nation Government, and there was informational 16 activity involved, distribution of literature, and it was 17 a peaceful occupation over the weekend at Serpent Mounds 18 Provincial Park, which ended without incident. 19 And are you aware that all those facts are 20 correct? 21 A: Yes, sir. 22 Q: And as I understand it, in the case 23 of Serpent Mounds, that was in -- in fact land that the 24 local established First Nation owned and leased in whole, 25 or at least in part, to the Government, right?
1121 A: Correct. 2 Q: All right. And so that was a -- a 3 peaceful First Nations occupation of a Provincial Park; 4 right? 5 A: It was. 6 Q: In September of 1995; right? 7 A: Correct. 8 Q: While Premier Harris was the Premier 9 of Ontario; right? 10 A: Correct. 11 Q: Just bear with me for a minute, 12 please. 13 14 (BRIEF PAUSE) 15 16 Q: Just bear with me for a minute, sir, 17 I'm trying to make haste slowly. 18 MR. JULIAN FALCONER: Excuse me, did he 19 say make hay slowly? 20 COMMISSIONER SIDNEY LINDEN: Sorry, make 21 haste slowly. 22 23 (BRIEF PAUSE) 24 25 MR. PETER DOWNARD: Speaking of making
1131 haste, thanks very much, sir, those are my questions. 2 COMMISSIONER SIDNEY LINDEN: You made 3 haste quickly. Thank you, Mr. Downard. 4 It's just about twelve o'clock, should we 5 go on to our next Cross-Examiner or take a break? The 6 next Cross-Examiner is on behalf of Mr. Harnick; you 7 indicated not very long. Perhaps we can get you in 8 before lunch. 9 MS. JACQUELINE HORVAT: I will be about 10 five (5) minutes. 11 COMMISSIONER SIDNEY LINDEN: Thank you. 12 13 CROSS-EXAMINATION BY MS. JACQUELINE HORVAT: 14 Q: Good morning. My name is Jacqueline 15 Horvat. I represent Charles Harnick. I'm just going to 16 focus on the Meeting held on the afternoon of 17 September 6, that you were just discussing with Mr. 18 Downard. 19 A: Yes. 20 Q: Now do you recall Mr. Harnick being 21 at that Meeting? 22 A: I do. 23 Q: Do you recall him making any 24 comments? 25 A: I do not.
1141 Q: Is it fair to say that the Deputy 2 Attorney General, Larry Taman, spoke on behalf of Mr. 3 Harnick? 4 A: As I indicated, I wasn't there for 5 the first part of the Meeting, Mr. Taman was speaking and 6 did speak while I was in attendance. 7 Q: Now, but the was the Deputy Attorney 8 General. 9 A: That's correct. 10 Q: So would it be fair to say that he 11 represented the views of the Attorney General's Office? 12 A: I would believe that to be a 13 reasonable assumption. 14 Q: And did you agree with Mr. Taman's 15 position? 16 A: I did. 17 Q: So the various comments, the 18 unflattering comments that you made about Michael Harris' 19 government, Mr. Harris' government, would that apply to 20 Mr. Taman? 21 A: I would say not. 22 Q: The Attorney General's office? 23 A: I would say not. 24 Q: What about Mr. Harnick? 25 A: I would say not.
1151 Q: Thank you. 2 COMMISSIONER SIDNEY LINDEN: Thank you. 3 MS. SUSAN VELLA: Commissioner, just 4 before we break, I wonder if we might have the status of 5 Ms. Twohig? I understood that she was going to follow 6 Mr. Downard today. 7 COMMISSIONER SIDNEY LINDEN: Oh, that's 8 right. 9 MS. MICHELLE PONG: Ms. Twohig has 10 consulted with our clients and we have decided that we do 11 not need to cross-examine. 12 COMMISSIONER SIDNEY LINDEN: Oh, thank 13 you. We'll take a lunch break now. We are making 14 haste. Thank you. 15 THE REGISTRAR: This Inquiry stands 16 adjourned until 1:10 p.m. 17 18 --- Upon recessing at 11:55 a.m. 19 --- Upon resuming at 1:10 p.m. 20 21 THE REGISTRAR: This Inquiry is now 22 resumed. 23 COMMISSIONER SIDNEY LINDEN: Yes...? 24 MR. IAN SMITH: Ian Smith, Commissioner, 25 for Mr. Runciman.
1161 COMMISSIONER SIDNEY LINDEN: Good 2 afternoon. 3 MR. IAN SMITH: Good afternoon. 4 5 CROSS-EXAMINATION BY MR. IAN SMITH: 6 Q: Superintendent Fox, I just want to 7 cover -- first, I act for Robert Runciman by the way, who 8 was Solicitor General at the -- at relevant time. 9 And I want to start by covering off your 10 communication with Mr. Runciman in -- in 1995. And in 11 particular, I'd like to start by focussing on whatever 12 communication you might have had with him prior to 13 September 4th, 1995, at the beginning of the occupation 14 of the Park, bearing in mind that he becomes Solicitor 15 General, I believe it's on June 26th, in the summer. 16 So can you tell us, in that period after 17 Mr. Runciman is sworn in and before the occupation, did 18 you have any meetings with him? 19 A: I did, sir. 20 Q: And did any of those meetings have to 21 do with Ipperwash? 22 A: They did not. 23 Q: Did you ever brief Mr. Runciman 24 during that period on Ipperwash? 25 A: Not at that point in time, sir.
1171 Q: Or any informal conversations with 2 him about that topic? 3 A: There may have been informal 4 conversations. 5 Q: Okay. Do you -- do you recollect any 6 of those, or what the -- the content of those 7 conversations might have been? 8 A: They would be very general, asking, 9 more or less, how are things going, that type of thing. 10 Q: Okay. Do you recollect any telephone 11 calls with Mr. Runciman with respect to that issue; that 12 is Ipperwash? 13 A: No, sir. 14 Q: Or any written communications with 15 him directly? 16 A: No direct communications, sir. 17 Q: Okay. Do you remember any indirect 18 communication with him during that period, in other -- in 19 other words, people relaying messages from him, to you, 20 about Ipperwash? 21 A: He was not relaying messages to me. 22 I do recall developing a piece of correspondence I 23 believe I sent by e-mail through the Deputy Minister with 24 a cc line to the Minister's EA as an update. 25 Q: Quite right. And -- and if he was
1181 briefed on that, it would have been by someone else other 2 than you? 3 A: By his EA, yes, sir. 4 Q: And during that period did Mr. 5 Runciman at any time convey to you any order, or 6 direction, or instruction with respect to Ipperwash? 7 A: No, sir. 8 Q: Either directly or indirectly? 9 A: Neither way, sir. 10 Q: And do you recollect, did he, at any 11 time, use you as a conduit for any order, direction, or 12 instruction with respect to Ipperwash to the OPP? 13 A: He did not. 14 Q: And to your knowledge, did he use 15 anyone else for that purpose? 16 A: Not to my knowledge. 17 Q: Now, during the period September 4th 18 to 6th, I'd like to cover off that period. Now, we know 19 for sure that you were at one (1) meeting that Mr. 20 Runciman attended, and that's the meeting in the 21 Premier's dining room; correct? 22 A: That is correct. 23 Q: And do you recollect, were you in any 24 other meetings with him during those three (3) days? 25 A: No, sir.
1191 Q: Did you brief him at all? 2 A: I did not, sir. 3 Q: Did you have any conversations with 4 him? 5 A: Not during that period. 6 Q: And any written communications with 7 him during that period? 8 A: Other than I have indicated through 9 the medium of his Executive Assistant. 10 Q: Thank you. And during that period 11 did Mr. Runciman convey to you, at anytime any order, 12 direction, or instruction at any point, with respect to 13 Ipperwash? 14 A: He did not. 15 Q: By any means, direct or indirect? 16 A: Neither way, sir. 17 Q: And did Mr. Runciman ever ask you to 18 convey any order, direction, or instruction during those 19 three (3) days, with respect to Ipperwash, to the OPP, 20 especially Commissioner Carson -- Deputy Commissioner 21 Carson? 22 A: He did not. 23 Q: And to your knowledge, did he use 24 anyone else for that purpose? 25 A: Not that I'm aware of.
1201 Q: And in any of your conversations with 2 John Carson, did you think that you were conveying any 3 instruction, direction, or order from the Solicitor 4 General to the OPP? 5 A: I did not. 6 Q: Did -- did you ever convey any order 7 from any of his political staff? 8 A: I did not. I did not receive one. 9 Q: Thank you. And that includes Kathryn 10 Hunt? 11 A: That's correct. 12 Q: Now, I think you've testified that 13 you didn't know about Project Maple at the time, but 14 you've come to know what Project Maple is now? 15 A: That's correct. 16 Q: And to your knowledge, did Mr. 17 Runciman have anything to do with the operation of plan 18 Project Maple at any time? 19 A: Not that I'm aware of. 20 Q: Did he comment on it at any time, to 21 your knowledge, or offer any criticism of it? 22 A: Not to me personally. 23 Q: Did his staff ever comment on it to 24 you, or offer any criticism of it? 25 A: Not to me, sir.
1211 Q: Now it was an important part of the 2 plan that the OPP had that an injunction would be sought; 3 do you agree with me on that? 4 A: The Project Maple plan? 5 Q: Yes. 6 A: It may well have been. I was not 7 aware of it at that time. 8 Q: In any event, you were aware that 9 with respect to blockade situations, generally, it was 10 OPP policy that whoever was the title owner of the land, 11 should get an -- an injunction so that the police could 12 decide when and how to enforce it? 13 A: The party with interest, yes sir. 14 Q: Okay. And in this case, that was the 15 Ministry of Natural Resources, correct? 16 A: Correct. 17 Q: And it was the OPP's position that 18 MNR should get an injunction, and then they would deal 19 with how to enforce it; that is, the OPP would deal with 20 it? 21 A: Correct. 22 Q: And that policy pre-dated Mr. 23 Runciman's -- Mr. Runciman's appointment as Solicitor 24 General? 25 A: It did.
1221 Q: And it was at least a few years old 2 by the time he became Solicitor General? 3 A: It would have been. 4 Q: To your knowledge, did Mr. Runciman 5 ever criticize that policy? 6 A: Not to my knowledge, sir. 7 Q: Did he ever depart from it, to your 8 knowledge? 9 A: Not to my knowledge. 10 Q: Or express any opinion about it at 11 all? 12 A: Not that I'm aware of. 13 Q: Did his political staff offer any 14 criticism, or opinion about that policy? 15 A: They did not to me. 16 Q: And apart from your role in assisting 17 the -- in getting the affidavit evidence together, did 18 the Ministry of the Solicitor General have anything to do 19 with the application for an injunction, whatsoever? 20 A: No, sir. 21 Q: Was Mr. Runciman involved in it at 22 all? 23 A: In the preparation? 24 Q: In the application for an injunction? 25 A: No, sir.
1231 Q: Now, I'm going to suggest to you that 2 there are -- there are two (2) reasons why Mr. Runciman 3 said little on this matter, and took no positions on it, 4 and one of those is the Solicitor General -- the Ministry 5 of the Solicitor General was not really the lead Ministry 6 on this file, would you agree with that? 7 A: That's correct. 8 Q: And would you agree with me that -- 9 COMMISSIONER SIDNEY LINDEN: Just a 10 minute -- 11 MR. IAN SMITH: I'm sorry? 12 COMMISSIONER SIDNEY LINDEN: I can see 13 Mr. Falconer is... 14 MR. JULIAN FALCONER: It's the preface to 15 the question I'm objecting to, Mr. Commissioner. This 16 witness cannot testify as to what was in Mr. Runciman's 17 mind. It's -- the rest of the question -- 18 COMMISSIONER SIDNEY LINDEN: Yes. 19 MR. JULIAN FALCONER: -- I don't object 20 to. 21 COMMISSIONER SIDNEY LINDEN: That's fine. 22 I think you're right about that. 23 MR. IAN SMITH: All right. 24 COMMISSIONER SIDNEY LINDEN: Just put the 25 question in --
1241 MR. IAN SMITH: Yes, thank you, 2 Commissioner. 3 4 CONTINUED BY MR. IAN SMITH: 5 Q: I'm going to suggest to you that the 6 Ministry of the Natural Resources had -- or at least 7 believed it had title to the Park in this case. 8 A: Correct. 9 Q: And it was going to be the applicant 10 for an injunction? 11 A: Yes, sir. 12 Q: And it was the Ministry of the 13 Attorney General that was going to be facilitating that 14 application, isn't that correct? 15 A: Correct. 16 Q: And the Solicitor General had no role 17 in that -- in that at all? 18 A: No, sir. 19 20 (BRIEF PAUSE) 21 22 Q: Now, the other factor -- I won't ask 23 you to draw the conclusion, but another factor in this 24 case and -- I'm going to suggest is that it was well 25 understood by Mr. Runciman, to your knowledge, that he
1251 should not interfere in the operational matters of the 2 OPP? 3 A: I can't, sir, speak to what Mr. 4 Runciman understood. I can speak to the fact that he 5 didn't interfere, to the best of my knowledge, in the 6 operation of the OPP. 7 Q: So, in -- I'm going to suggest to 8 you, and if you don't know this that's fine, but I'm 9 going to suggest to you that it was well known to 10 everyone, to your knowledge, in the offices of the Deputy 11 Solicitor General and the Solicitor General, that there 12 was policy that the Solicitor General should not 13 interfere with operational policy -- operational matters 14 of the OPP. 15 A: I believe that would be correct. 16 Q: And that, to your knowledge, people 17 in those offices tried to be careful with respect to that 18 policy? 19 A: I would agree with that. 20 Q: And in particular, with respect to 21 the sharing of information? 22 A: I think that that was understood by 23 staff, yes. 24 Q: And that's precisely why we have, in 25 the Interministerial meeting on September 6th, Kathryn
1261 Hunt emphasizing that point to the group, would you agree 2 with that? 3 A: She certainly emphasized the point at 4 that meeting, sir. 5 Q: Okay. And we also saw it emphasized 6 in the issue note that Mr. Downard took you to this 7 morning? 8 A: Correct. 9 Q: And to your knowledge, Mr. Runciman, 10 and his staff never departed from that policy? 11 A: To the best of my knowledge, yes. 12 Q: And I think you testified in chief 13 that the approach at the Ministry of the Solicitor 14 General, to this particular file, was to leave it to the 15 police and to the Ministry of the -- of Natural 16 Resources? 17 A: With respect to the ongoing matter, 18 from an enforcement perspective, or an act of policing 19 perspective, I certainly testified that it fell to the 20 Ontario Provincial Police. In terms of the injunction, I 21 appreciate that that was in the purview of MNR. 22 Q: Right. But with respect to the OPP, 23 it was sort of a hands-off relationship, isn't that 24 correct? 25 A: With the Solicitor General?
1271 Q: Yes. 2 A: Correct. 3 Q: Now, just going to those IMC or 4 Interministerial meetings, the first one, on September 5 5th, do you recollect that Kathryn Hunt was at that 6 meeting with you? 7 A: I believe that she was. 8 Q: And do you recollect that she 9 expressed any opinions at all at that meeting? 10 A: If I -- if my recollection is 11 correct, without referring to the minutes, she had made a 12 presentation with respect to the position of the 13 Solicitor General, as it related to the police. 14 Q: Okay. And did you think, at that 15 time, that she was exhibiting any testosterone on behalf 16 of Mr. Runciman, or herself, or the Ministry of the 17 Solicitor General? 18 A: No, sir. 19 Q: And at that meeting did she disagree 20 with the wisdom of getting an injunction? 21 A: Not that I recall. 22 Q: So, when you indicated in your 23 telephone call with John Carson that the whole group was 24 on a testosterone high, that certainly wouldn't apply to 25 Mr. Runciman's Executive Assistant, Kathryn Hunt?
1281 A: Correct. 2 Q: Now, with respect to the meeting of 3 the same group the next day, September 6th, the involve - 4 - I think the minutes reflect the involvement of Kathryn 5 Hunt as to indicate this policy on the part of the 6 Solicitor General, that they don't get involved in the 7 day-to-day affairs of the OPP; do you remember that? 8 A: It was the 6th, sir, I'm in error on 9 my previous answer. 10 Q: That's fine. And would you agree 11 with me that Kathryn Hunt is a -- is a very professional 12 person with a -- a very competent bearing? 13 A: I would agree with that. 14 Q: And she would have expressed this 15 opinion quite clearly to the group, is that fair? 16 A: Yes, sir. 17 Q: And is she the kind of person who, 18 when she talks, people listen? 19 MS. SUSAN VELLA: I'm sorry. 20 COMMISSIONER SIDNEY LINDEN: I'm not sure 21 that's... 22 MS. SUSAN VELLA: With all due respect, I 23 -- I don't believe that that's an appropriate question. 24 COMMISSIONER SIDNEY LINDEN: I don't 25 think that's a good question.
1291 MR. IAN SMITH: I'll abandon that. Thank 2 you. 3 4 CONTINUED BY MR. IAN SMITH: 5 Q: And at that meeting did, apart from 6 the expression of this policy about not getting involved 7 in the day-to-day affairs of the OPP, did she? 8 Do you recollect, she expressed any other 9 opinions? 10 A: I don't recall that she did. 11 Q: And did she oppose the idea of 12 seeking -- seeking an injunction? 13 A: Not that I recall. 14 Q: And in any event, that was the bottom 15 line at the end of the meeting, that that was what was 16 going to be done or recommended? 17 A: I think I've testified that it was a 18 consensus, yes. 19 Q: Now, turning then to the -- the 20 dining room meeting, if I can call it that, you testified 21 Mr. Runciman was present, and that he may have been the 22 person to introduce you? 23 A: It was either he or the Deputy 24 Solicitor General, is what I believe I testified to, sir. 25 Q: And it appears that at one point he
1301 asked for a briefing? 2 A: Correct. 3 Q: And did you -- was that, in your 4 view, an -- an appropriate request he made; there was 5 nothing inappropriate about that request? 6 A: Correct. 7 Q: And as I understand your evidence, 8 otherwise, he didn't say anything else in your presence, 9 at that meeting? 10 A: Not while I was there, sir. 11 Q: And I think in your evidence in-chief 12 you also said that none of the Executive Assistants to 13 the ministers said anything either? 14 A: Correct. 15 Q: And that would include Kathryn Hunt? 16 A: It would, sir. 17 Q: And yet, what confuses me is that in 18 your telephone call with John Carson you refer to the -- 19 basically the whole of the Government as barrel suckers 20 and rednecks, and you agree with Mr. Carson -- or Deputy 21 Commissioner Carson when he says, 22 "they just want us to kick ass", 23 you say that, 24 "they don't give a shit about Indians". 25 Now, I'm going to suggest to you that
1311 nothing Mr. Runciman did or said at that meeting could 2 possibly have led you to those conclusions on -- with 3 respect to him? 4 A: That's correct. 5 Q: And that would also apply to Kathryn 6 Hunt? 7 A: That's correct. 8 Q: Now, another thing that confuses me a 9 bit about your evidence, and hopefully we can clear this 10 up, is you indicate in your telephone call with John 11 Carson that Mr. Harris, I think you used the word "he", 12 actually, he thinks he has the authority to direct the 13 OPP; do you recollect that? 14 A: I recall that. 15 Q: And I believe you said, in-chief, 16 that that expression of opinion applied to the government 17 as a whole, not just to Mr. Harris? 18 A: I don't believe I did. 19 Q: Okay. If I'm mistaken, that's great. 20 Is it fair to say that nothing Mr. Runciman said or did 21 led you to believe that he thought he could do that, in 22 other words, direct the operational affairs of the OPP? 23 A: That's correct. In the telephone 24 conversation, the "he" I was referring to, at that point, 25 was the Premier.
1321 Q: Okay. Thank you. 2 3 (BRIEF PAUSE) 4 5 Q: And in any event, bottom line at the 6 end of that meeting is that an injunction would be 7 sought? 8 A: Correct. 9 Q: And that was what the OPP had advised 10 from the beginning? 11 A: That is correct. 12 Q: Thank you. I have no other 13 questions. 14 COMMISSIONER SIDNEY LINDEN: Thank you 15 very much. Counsel on behalf of Mr. Hodgson...? 16 17 (BRIEF PAUSE) 18 19 CROSS-EXAMINATION BY MR. MARK FREDERICK: 20 Q: Good afternoon Superintendent Fox. I 21 represent Chris Hodgson, who's the Minister of Natural 22 Resources at the time of the Ipperwash Incident, and I 23 have a few questions for you today, so bear with me. I 24 know you've had a lot. I'll try not to repeat any that 25 have already been given to you.
1331 COMMISSIONER SIDNEY LINDEN: Just before 2 you start, you weren't here when the time estimate was 3 made yesterday. An estimate of time of an hour, do you 4 agree with that? 5 MR. MARK FREDERICK: Oh, I think it will 6 be less than that -- 7 COMMISSIONER SIDNEY LINDEN: Less? 8 That's fine -- 9 MR. MARK FREDERICK: -- since I've 10 managed to cut -- 11 COMMISSIONER SIDNEY LINDEN: Carry on. 12 MR. MARK FREDERICK: -- a bit. 13 COMMISSIONER SIDNEY LINDEN: Thank you. 14 15 CONTINUED BY MR. MARK FREDERICK: 16 Q: I just want to recount a few 17 background facts. The MNR, of course, held title to the 18 Provincial Park on behalf of the Crown, is that correct? 19 A: As I understand it, yes. 20 Q: And at the relevant time frame, you 21 were seconded to the Ministry of the Solicitor General as 22 his special advisor, I think that's what you had told My 23 Friends earlier on; is that correct? 24 A: Special Advisor First Nations, yes. 25 Q: And during that time, did you wear a
1341 uniform in the office? 2 A: I did not. 3 Q: And I take it in the office, at that 4 time, you would have been addressed as Ron, or Mr. Fox 5 and generally not as Inspector Fox, would that be 6 correct? 7 A: That is correct. 8 Q: And would you agree with me that it 9 would be possible for a casual observer not to know that 10 you were an OPP officer? 11 A: It's possible. 12 Q: Is it -- it's possible that some 13 thought, meeting with you in meetings, when you were 14 there with the Solicitor General folk, that you, perhaps, 15 were just part of the Solicitor General crowd; is that 16 possible? 17 A: In some meetings. I wouldn't say 18 that would be correct for the Interministerial Committee 19 meeting. 20 Q: My client says he met you on two (2) 21 occasions, and he didn't know that you were with the OPP; 22 that's certainly possible? 23 A: It's possible. 24 Q: In reviewing the documents that are 25 listed for you, that were provided by the Commission, it
1351 seems in the first couple of days in August of 1995, it 2 came to your attention that the occupiers of the Military 3 Base might be intending to occupy the Park; is that 4 correct? 5 A: It was a possibility, yes. 6 Q: And the rumours at that time, did 7 they lead to a convening of the blockade committee? 8 A: They did. 9 Q: So you -- you, yourself, saw the 10 prospect of an occupation as being unlikely, is that 11 right? 12 A: Personally, yes. 13 Q: And in an e-mail of August 2nd, and I 14 think this is at Tab 7 of the documents brief, I don't 15 need to take -- take you through it, but I think you said 16 the concerns raised by the MNR about the occupation of 17 the Park were to a greater degree than probably 18 warranted. 19 I think I'm quoting from you at that 20 point. And is it fair to say, given that being the case, 21 that you wanted to lower the temperature on the 22 discussion? 23 A: What I wanted to do was give a 24 balanced report on it, sir. The notion that a takeover 25 of the park was imminent, was not, in my opinion.
1361 Ultimately, I was shown to be wrong; there 2 was a takeover. I based that on my anticipation there 3 may be a similar protest as was seen September 1st with 4 the Serpent Mounds Park, vis-a-vis the Hiawatha First 5 Nation. 6 Q: So, in fact, if people -- some people 7 were thinking that something bad was going to happen 8 right away, you wanted to lower the temperature on that, 9 based upon your assessment that an occupation wasn't 10 going to take place at that time, is that fair? 11 A: That's reasonable, sir. I didn't 12 want to be in a position to increase any anxiety or -- 13 MS. SUSAN VELLA: Commissioner, that was 14 -- Tab 8 was Exhibit P-414, just for the record. 15 MR. MARK FREDERICK: Thank you. I 16 understand there were some tab changes that I may not be 17 fully aware of, so I appreciate being corrected. 18 19 CONTINUED BY MR. MARK FREDERICK: 20 Q: In any event, you were doubtful an 21 occupation would take place, but you were not prepared to 22 discount it fully, it was still a possibility? 23 A: That's correct. 24 25 (BRIEF PAUSE)
1371 Q: I understand the protocol at that 2 time was, in the case of an occupation, or a blockade, or 3 something of that nature, was -- was first to take 4 appropriate steps to avert an emergency, if possible, and 5 if that didn't work, then to take steps to try and remedy 6 the situation. 7 A: That would be correct, yes. 8 Q: Now, Mr. Hodgson says, and I 9 mentioned before, he says he believes he met you on two 10 (2) occasions, the first being a meeting on September 6th 11 at the Solicitor General's office, and the second being a 12 meeting at a dining room connected with the main cabinet 13 room, later in the day on the 6th of -- 6th of September, 14 1995. 15 Do you have recollection of two (2) 16 meetings? 17 A: I have a recollection of one (1) 18 meeting in the dining room, sir. 19 Q: I want to go over the events 20 chronologically, on the critical days of September 4th 21 through the 7th. 22 Now, as I understand it, on September 4th, 23 1995, the Park closed for the season at 6:00 p.m., and 24 the occupiers entered around 7:30 p.m. 25 A: That would be approximately correct,
1381 yes. 2 Q: And at 9:30 in the evening, the MNR 3 and the OPP were told to leave the Park? 4 A: Correct. 5 Q: And you were told of the occupation, 6 I believe, at 10:18 p.m., somewhere thereabouts? 7 A: 22:18, yes, sir. 8 Q: Now, on September 5th, obviously that 9 event, the Park being occupied, caused a meeting of the 10 barricades committee on September 5th, which lasted from 11 about 11:00 in the morning 'til 2 o'clock in the 12 afternoon? 13 A: Correct. 14 Q: And Mr. Hodgson didn't attend at that 15 meeting, correct? 16 A: No, sir. 17 Q: Mr. Bangs was -- at that time Jeff 18 Bangs, do you recall meeting him? 19 A: I recall meeting him, yes. 20 Q: And he was Mr. Hodgson's Executive 21 Assistant, and I take it you understood that that was his 22 role? 23 A: Yes, sir. 24 Q: And he was at the meeting on 25 September 5th, along with some civil servants from the
1391 MNR, is that correct? 2 A: Correct. 3 Q: And as far as you understood, he 4 represented the views of Mr. Hodgson at this -- at this 5 meeting? 6 A: I would assume that to be correct. 7 Q: Now, according to the meeting notes, 8 and they're in the materials at -- at Tabs 18 and 22, the 9 sense was that an injunction, even on September 5th, the 10 sense was that an injunction should be obtained; is that 11 your recollection? 12 A: Yes, sir. 13 Q: If I look at the notes of E. Hipfner 14 at Tab 23, I believe... 15 MS. SUSAN VELLA: It's Exhibit P-510 and 16 it is Tab 23. 17 18 CONTINUED BY MR. MARK FREDERICK: 19 Q: I'm grateful to My Friend for that. 20 If I look at what's going on, and recorded 21 in these notes, the representative of the MNR advocates a 22 restrained approach, and would you agree with that? I 23 can take you to the specifics. 24 A: If you would, please, sir. 25 Q: Sure. On page 3 there's a -- down
1401 midway in the page, there's a note, "MNR". 2 Do you see that? 3 A: Yes, sir. 4 Q: "Need to have a talk with their..." 5 I'm sorry, I can't make that out. 6 MR. MARK SANDLER: "With them." 7 8 CONTINUED BY MR. MARK FREDERICK: 9 Q: "With them about what they're trying 10 to accomplish. Occupying empty 11 Provincial Park. Shouldn't be too 12 precipitous about what we do, even with 13 obtaining an injunction." 14 So I would call that a restrained 15 approach, would you agree with that? 16 A: Yes, sir. 17 Q: Now, at around 2:47 in the afternoon, 18 according to the records, you had a telephone 19 conversation with John Carson, and I think in the 20 beginning of the transcript of that telephone 21 conversation you began with a recitation of what happened 22 at the Blockades meeting in the morning; would that be 23 correct? 24 A: Correct. 25 Q: And you said -- and you told
1411 Inspector Carson that time, that the MNR was initially 2 against getting an enjoining order, and -- actually, 3 maybe why don't we just go to that; that's probably the 4 best way. 5 MS. SUSAN VELLA: It's Exhibit P-444(a) 6 and in your book of documents, Superintendent, it's Tab 7 24, I believe. And it's Tab 16 in Exhibit P-444(a). 8 9 (BRIEF PAUSE) 10 11 CONTINUED BY MR. MARK FREDERICK: 12 Q: Give me just a second to turn it up 13 here. 14 15 (BRIEF PAUSE) 16 17 Q: If you go to page 117 it says here: 18 "MN -- MN [do you see this in the 19 middle of the page?] MNR, by the way, 20 were kind of against getting an -- an 21 enjoining order." 22 A: I have it as page 2 of mine, yes, 23 sir. 24 Q: Okay. Thank you. So, effectively, 25 the -- what I'm going to suggest is the MNR wasn't really
1421 against doing that, they just didn't want to rush off 2 into it, is that a fair characterization? 3 A: No. It was my sense that there was 4 opposition, on their part, to obtaining the injunction. 5 As I recall the discussions, sir, it was 6 fairly clear to me their preference would be to hand the 7 situation off to the OPP, to take the necessary action, 8 in -- in their minds, using the Criminal Code or 9 Provincial Statues. 10 Q: Okay. And you gave them an 11 explanation. This phone call goes on about how that 12 process would work -- give the MNR an explanation and you 13 relayed that to Inspector Carson, correct? 14 A: Correct. 15 Q: And basically, the message was it was 16 better to give the police whatever authority they needed 17 in order to carry out whatever action needed to be taken? 18 A: Not so much the authority, sir, but 19 rather to make application for the injunction, to have 20 the matter brought before a Court of competent 21 jurisdiction, so that all the aspects that might relate 22 to this matter could be examined. 23 Q: Okay. And... 24 25 (BRIEF PAUSE)
1431 Q: Later on, at page -- I have it as 2 page 121. Sorry, I'll just tell you what page. Maybe 3 page 5 for you. You make a comment about everyone being 4 on a testosterone high; do you recall that? 5 MS. SUSAN VELLA: That's correct, that's 6 page 5. 7 COMMISSIONER SIDNEY LINDEN: Top of page 8 5. 9 10 CONTINUED BY MR. MARK FREDERICK: 11 Q: Do you see that? 12 A: Yes, sir. I have it in front of me. 13 Q: I take it, at that point, you didn't 14 mean Mr. Hodgson, is that right, he had -- he wasn't -- 15 A: Mr. Hodgson wasn't there, sir. 16 Q: That's right. If I go back to Mr. -- 17 pardon me, the Hipfner notes, at Tab 23 -- 18 MS. SUSAN VELLA: Exhibit 510. 19 20 CONTINUED BY MR. MARK FREDERICK: 21 Q: At -- if you go to page 4... 22 23 (BRIEF PAUSE) 24 25 Q: The top of the page, you see, there's
1441 a reference from Mr. Bangs; do you see that? Mr. Bangs 2 is recorded in these notes -- 3 A: "We can afford to wait", is that how 4 it starts out? 5 Q: It's right at the very top of the 6 page. He says -- I think it's one (1) page earlier than 7 that, page 3. Mr. Bangs is recorded as saying that: 8 "We should consider an injunction 9 first." 10 Do you see that? 11 A: I do. 12 Q: And of course, that was based upon 13 some of the advice you'd given him; is that correct? 14 A: I would assume, at that point, yes. 15 Q: Okay. 16 A: And others. 17 Q: And of course, what follows from that 18 is that comment we looked on earlier on about not being 19 too precipitous in order -- about what is to be done, 20 even with obtaining an injunction. 21 Now, if we look over at page 4, there's 22 some more comments attributed to Mr. Bangs, Mr. Hodgson's 23 EA. Mr. Bangs says: 24 "We can afford to wait. If we get 25 injunction, we'll be expected to move
1451 in, and we don't want to escalate the 2 situation." 3 Do you see that? 4 A: I do. 5 Q: And that would be the recollection 6 you had of Mr. Bangs' comments at the meeting? 7 A: I can't attribute them to him, but I 8 am aware of those comments, yes. 9 Q: Okay. So you'll agree with me that 10 the message coming from the MNR, not being precipitous, 11 and the message coming from Mr. Bangs is not to push 12 things; would that be correct? 13 A: In the two (2) lines -- or the two 14 (2) excerpts, rather, from these notes, yes, that was 15 what was said by two (2) members of the MNR. 16 Q: Right. And certainly the one 17 representing Mr. Hodgson; correct? 18 A: Fair enough. 19 Q: And the balance of this conversation, 20 the balance of what is being discussed at this meeting, 21 is essentially a discussion of the relative merits of an 22 injunction as a legal basis for intervention in the Park; 23 that would be correct? 24 A: Correct. 25
1461 (BRIEF PAUSE) 2 3 Q: And effectively, if we turn over to 4 Tab 21, we see a briefing note done for the Minister. 5 And it would be fair to say that the result of that 6 meeting, that blockades meeting on the 5th of September, 7 is fairly summarized in the briefing note that goes to 8 the Minister. 9 Would that be correct? 10 A: I would say the conclusions and 11 recommendations from the -- the meeting are reasonably 12 summarized, yes. 13 14 (BRIEF PAUSE) 15 16 MS. SUSAN VELLA: And that was Exhibit P- 17 512. 18 MR. MARK FREDERICK: I'm once again, as 19 always, grateful to Ms. Vella. 20 21 CONTINUED BY MR. MARK FREDERICK: 22 Q: Now, did you have anything to do with 23 the preparation of this document we see at Tab 21? 24 A: No, sir, that was developed by ONAS. 25 Q: And I understand Mr. Hodgson's
1471 evidence will be that this briefing note was the one that 2 he was given on the 5th of September, immediately before 3 the press conference he went to. 4 Does that make sense to you? 5 A: It's possible, sir, yes. 6 Q: Well, you've been -- you've been up 7 there in government, and typically briefing notes are 8 given to Ministers so they can have something to talk 9 about when they meet the press; is that fair? 10 A: Yes, that's true. 11 Q: And you wouldn't expect it to be 12 different in this case? 13 A: No, sir. 14 Q: And I want to move on to September 15 6th. As I understand it, there was a meeting of the 16 blockades committee at 9:30 a.m. and that was held at the 17 ONAS Green Boardroom at 595 Bay Street? 18 A: Yes, sir. 19 Q: And Mr. Hodgson was not initially at 20 that meeting; is that correct? 21 A: He was not. 22 Q: And the meeting went to about 11:45 23 in the morning, according to the meeting notes. 24 Does that match your recall? 25 A: Thereabouts, yes, sir.
1481 Q: And, effectively, I had some 2 puzzlement about the meeting going that long and you 3 being out of it, but I understand you've testified that 4 you broke out of the meeting on an occasion to telephone 5 Inspector Carson, around 11:12 in the morning; is that 6 right? 7 A: I did. 8 Q: And we know that the next time you 9 had a telephone call, at least recorded, it was at 12:50 10 with you and Mark Wright, is that correct? 11 A: Correct. 12 Q: Now, is it Ms. Hipfner or Mr. 13 Hipfner? It's -- Ms. Hipfner has handwritten notes about 14 this meeting at Tab 28, I believe. 15 16 (BRIEF PAUSE) 17 18 MS. SUSAN VELLA: It's tab -- I believe 19 it's tab 30. 20 MR. MARK FREDERICK: Okay. 21 22 (BRIEF PAUSE) 23 24 MR. MARK FREDERICK: I think that's 25 right. It's -- I have it as 28, but it's Tab 30. I
1491 apologize for that. 2 3 (BRIEF PAUSE) 4 5 CONTINUED BY MR. MARK FREDERICK: 6 Q: What I see in -- at page 2 at the 7 top, there's a comment attributed to Ms. Hutton: 8 "Ms. Hutton is firm that at no time 9 should anybody but the OPP, MNR be 10 involved in discussions, despite any 11 offers that might be made by third 12 parties (chief, et cetera) because to 13 get in negotiations, you don't want 14 that." 15 And then there's a comment attributed to 16 Mr. Allen. First of all, I want to -- you -- Mr. Allen 17 says: 18 "Allen: MNR views this as a police 19 issue. MNR would prefer to take a back 20 seat at this point." 21 Do you see that? 22 A: I do. 23 Q: And Mr. Allen was a -- was he a 24 deputy Minister or I can't recall exactly what he was -- 25 A: An EA to the deputy Minister of MNR.
1501 Q: That's right, so he's -- he's there 2 representing the Ministry as well, then? 3 A: Yes. 4 Q: So it's clear that -- it's clear that 5 the MNR was taking a view that this was a police issue, 6 no doubt about it, fair? 7 A: They were, yes. 8 Q: Right. And they certainly didn't 9 want to be at the forefront, running this issue. 10 Would that also be correct? 11 A: That's correct. 12 Q: They had to give evidence, obviously, 13 to get an injunction, because they were the owner of the 14 -- the owner of the Park or held title to the Park, but 15 that's the limit of the position they wanted to take; is 16 that correct? 17 A: That's the limit of the position they 18 wanted to take, yes. 19 Q: Now, further on down the line at the 20 very bottom, there's an attribution to somebody named 21 Peter Sturdy, who I understand is with the Ministry as 22 well, and at the very second last line of the page, he 23 says: 24 "Somebody heard automatic gunfire." 25 Do you see that down at the bottom?
1511 A: I do. 2 Q: Okay. And if we go up to the page 3, 3 first of all, do you recall that being discussed at the 4 meeting? 5 A: I do. 6 Q: If we go up to page 3 at the top, 7 there are some more comments from Mr. Bangs who was also 8 at the meetings, again representing the Minister, is that 9 correct? 10 A: I have it in front of me, yes. 11 Q: And what Mr. Bangs says is the way -- 12 I'm just -- the second line down in his -- in his 13 excerpt, the notes: 14 "The way things are escalating the 15 Minister", [which I understand to be 16 capital M] "doesn't want to carry this" 17 Do you see that? 18 A: I do. 19 Q: And he says at the very bottom of 20 that paragraph, "this is a spiralling out of MNR's 21 hands"; do you see that? 22 MS. SUSAN VELLA: It actually says, "this 23 is quickly spiralling out of MNR's hands". 24 MR. MARK FREDERICK: I'm grateful for her 25 tab ability and her reading ability, Commissioner. I
1521 thank her again. 2 3 CONTINUED BY MR. MARK FREDERICK: 4 Q: So, do you see that? 5 A: I see that, yes. 6 Q: And you take from that that -- that 7 that would be a -- an appropriate recollection on your 8 part what Mr. Bangs is having to say at that meeting? 9 A: I believe that's what he -- he would 10 have -- was saying, yes. 11 Q: Now, there's a quote down below 12 attributed to, is it Ms. Hunt, I believe; do you see that 13 down -- about half way down the page: 14 "Runciman's reservation comes from fact 15 that Sol. Gen.'s protocol is not to be 16 involved. Day-to-day operations and 17 police/ political arms should be 18 divorced." 19 Do you see that? 20 A: I do. 21 Q: And of course, that was said at the 22 meeting? 23 A: It was. 24 Q: And there's a comment attributed down 25 to Julie, who I understand would be Julie Jai, and the
1531 comment is: 2 "Direction from AG is to apply for a 3 civil injunction ASAP." 4 And you -- do you recall that being the 5 case? 6 A: I do. 7 Q: And you talked about your role. It 8 says right at the very bottom of the page: 9 "Here to provide general direction but 10 not to direct how instructions to 11 police are operationalized." 12 Is that correct? 13 A: That's correct. 14 Q: And, if we go over onto page 4, 15 there's a couple of comments attributed to Ms. Hutton, 16 and it's: 17 "The Premier's office wants to be seen 18 as having control in moving 19 expeditiously as a matter of principle 20 can only agree but in this situation 21 not adverse to having this be seen as a 22 political issue' 23 And further down on page 5, at the top, 24 the attribution is: 25 "The Premier's view that the longer
1541 occupiers are there, the greater the 2 opportunity they have to garnish 3 support." 4 And of course, that was discussed at the 5 meeting? 6 A: Yes, sir. 7 Q: Now, at this meeting as well Peter 8 Sturdy -- I think it's at page 7, if we go on a little -- 9 or pardon me, page 6 about a third way down, Peter Sturdy 10 noted the rumours of gunfire were confirmed; do you 11 recall that? 12 13 (BRIEF PAUSE) 14 15 Q: And if we go to page 7, there's an 16 attribution to Chris who I -- I understand may be Chris 17 Beaubien from the ONAS; he notes the critical issue will 18 be diffusing tensions; do you recall that being 19 discussed? 20 A: That was part of the discussions, 21 yes. 22 Q: And Ms. Hutton is -- thereafter 23 follows saying: 24 "My difficulty is not wanting to give 25 political direction to the OPP."
1551 Do you see that? 2 A: I do. 3 Q: If we go down a little bit further to 4 Mr. Bangs, he says: 5 "The MNR may withdraw its staff from 6 the area, not to have them participate 7 any longer, later on." 8 Do you see that -- "participate any 9 longer", I'm sorry. Do you see that? 10 A: I do. 11 Q: So, the MNR clearly didn't want to 12 get involved with any escalating situation, to get its 13 staff out of there, correct? 14 A: I think the MNR clearly didn't want 15 to be involved with the matter, yes. 16 Q: Now there's a notation down here from 17 Mr. Moran, about a third (1/3) of the way up: 18 "Hodgson will continue to take the lead 19 as property owner." 20 And that's what the role was being 21 suggested for the Minister; is that correct? 22 A: The role of the MNR is property 23 owner, yes. 24 Q: And Mr. Allen notes: 25 "But he won't touch issues around
1561 injunction." 2 Correct? 3 A: Correct. 4 Q: Because that was something the 5 Attorney General's office was going to do in pursuit of 6 the strategy that you and the OPP had been giving them; 7 correct? 8 A: Yes. To develop the injunction, yes. 9 Q: And Ms. Hutton notes at the bottom: 10 "Premier will take lead, take this back 11 to Cabinet, but suspect the Premier 12 will be pleased to take the lead." 13 And that's lead in relaying things to the 14 public on behalf of government; correct? 15 A: I don't know what that means. 16 Q: Okay. That -- 17 A: It could be. 18 Q: -- that's fair. Now these notes 19 we've been through, on the points that we've been 20 through, they are accurate according to your 21 recollection? 22 A: The -- the points that you've raised, 23 yes. 24 25 (BRIEF PAUSE)
1571 Q: Pardon me. I'm trying to skip some 2 things that My Friend has already covered. So pardon me 3 for just a second. 4 5 (BRIEF PAUSE) 6 7 Q: If I can take you to Tab 19 of your 8 brief, there are some formal meeting notes of September 9 6th, 1995. 10 A: I have it. 11 Q: And that's Exhibit -- that's Exhibit 12 509 I'm informed. 13 The formal meeting notes state, if we go 14 on the second page, it's at Point Number 3, "Minister's 15 Directives;" do you see that? 16 A: I do. 17 Q: It says: 18 "MNR. The Minister wants to act as 19 quickly as possible to avoid further 20 damage and to curtail any escalation of 21 the situation." 22 Do you see that? 23 A: I do. 24 Q: And that impression came from the MNR 25 representatives who were at the earlier meetings with
1581 you? 2 A: As I recall, yes. 3 Q: And of course at that meeting as 4 well? 5 A: Correct. 6 Q: I'm going to suggest that after this 7 formal meeting, the one that's referred to in these notes 8 at Tab 19, there was another meeting that took place 9 directly afterwards with the Minister and some EA's at 10 the same Solicitor General's office. 11 I put that to you before and you say you 12 don't recall that? 13 A: I do not, sir. 14 Q: Okay. But I'm going to suggest to 15 you that that meeting took place in the same office as 16 the Blockades Committee meeting and that that meeting 17 followed the meeting that we see this formal record of; 18 you don't recall that, is that correct? 19 A: I do not, sir. 20 Q: And Mr. Hodgson attended at that 21 meeting and he's going to say that the meeting was held 22 to provide an update on recommendations to the Blockades 23 Committee and some background as to legal steps involved 24 in dealing with an illegal occupation on Crown land. 25 Do you have any recollection of that
1591 taking place? 2 A: I do not, sir. 3 Q: Mr. Hodgson's evidence will be that 4 the Blockades Committee had apparently been involved in 5 contingency planning leading up to the long weekend; 6 would that have been correct? 7 A: Correct, yes. 8 Q: Okay. So he got that information 9 some someplace, we're not sure where -- or you're not 10 sure where. 11 Mr. Hodgson will say that he learned that 12 planning had been directed at removing occupiers from the 13 Park, not preventing occupiers from entering it. 14 Do you ever recall any discussion about 15 that? 16 A: No, sir. 17 Q: His evidence will be that the 18 recommended strategy was for representatives of the 19 Attorney General to get an injunction against the 20 occupiers using an affidavit to be sworn by a 21 representative of the Ministry of Natural Resources. 22 Do you recall discussion about that? 23 A: I certainly do, at the 24 Interministerial Committee meeting. 25 Q: You don't recall any discussion after
1601 that Interministerial meeting; correct? 2 A: I don't. 3 Q: Mr. Hodgson will say that his 4 position was that the MNR should not be lead and he 5 didn't want to be the spokesperson. 6 Certainly we heard that from Mr. Bangs in 7 the meeting -- at the morning meeting of September 6th, 8 Mr. Hodgson said he reiterated that at the meeting that 9 followed that meeting; you don't recall that, is that 10 correct? 11 A: I don't recall the meeting, sir. 12 Q: And I'm suggesting these things, 13 because maybe one of them might ring a bell and bring 14 back a memory that you've, for some reason or another, 15 not been able to -- to recall. 16 So if you remember, that's fine; if you 17 don't remember, that's the way it is, okay? 18 There's no doubt, though, that Mr. Hodgson 19 saying that he discussed that sort of thing, that 20 certainly would attract the language that Mr. Bangs was 21 using at the meeting on the morning of September 6th, 22 that the minister didn't want to be lead on it; is that 23 correct? 24 A: I -- I can't give reference to a 25 second meeting that I -- I have no recollection of.
1611 Q: I understand that, sir -- 2 A: I can certainly read -- 3 Q: I understand that. I think it's -- 4 it's a little different what I'm asking here. 5 There's no doubt Mr. Hodgson says he said 6 that, and there's no doubt that that certainly, if he 7 said that, would attract the language that Mr. Bangs was 8 expressing to you in the earlier meeting. 9 You'd agree with me on that point? 10 A: Yes. But wouldn't Mr. Bangs have had 11 that information before as opposed to -- 12 Q: Well, I think Mr. -- 13 A: -- learning it at a meeting that was 14 after the one he was at? 15 Q: Well I think the time frame goes, Mr. 16 Bangs was at the meeting and then Mr. Hodgson came in 17 with him and they were all discussing a little bit about 18 what had happened at the earlier meeting and he 19 reiterating his position. 20 That's going to be his evidence; I 21 understand it's going to be Mr. Bangs' evidence as well. 22 So you don't recall that? I'm just suggesting it to you 23 to see if you do. 24 A: Okay. 25 Q: Mr. Hodgson's evidence will be that
1621 there was a discussion about how the injunction would be 2 served, and he indicates that somebody in the room, and 3 believes it was you, raised the prospect that injunctions 4 could be served on occupiers by dropping them from a 5 helicopter so that the helicopter would be out of rifle 6 range. 7 Do you recall any discussion to that 8 effect? 9 A: I recall no discussion to that 10 effect. I think if one reads the -- the injunction Order 11 provided by the presiding Judge, he suggested that. 12 That would have been on the 7th of 13 September, I believe. 14 Q: I understand, but I understand as 15 well, though, that there had been some discussion about 16 that with you as well and -- because you'd had some 17 experience in these sort of things, and it was a concern, 18 was it not, that a helicopter might have been shot at or 19 something of that nature? 20 Did you ever have that concern or -- 21 A: I -- I -- I would certainly have a 22 concern about dropping notices from a helicopter. I 23 wasn't the one who would have said that, I -- 24 Q: But there had been a discussion about 25 gunfire in the morning meeting; is that correct?
1631 A: That's correct. 2 Q: And certainly no one wanted to go 3 near a situation where there was gunfire; is that fair? 4 A: Fair. 5 Q: So in talking about how an injunction 6 would be served, it's one thing to get an injunction but 7 it's not much force and effect unless you serve it; 8 correct? 9 A: Correct. 10 Q: So the idea was there was a 11 discussion about how this injunction would be served in 12 an environment where there had been gunfire reported. 13 What I'm suggesting to you is there was 14 discussion about doing that by dropping it from a 15 helicopter. 16 You -- does that ring a bell for you? 17 A: No, it doesn't. 18 Q: Okay. That certainly is one of the 19 ways you could serve an injunction though if, in fact, 20 you had trouble getting access to the site on the ground 21 for safety reasons; fair? 22 A: It would depend on what form the 23 notice took. 24 Q: Sure. 25 A: If it was a stone tablet, perhaps,
1641 but if it were paper the prop wash would blow it away. 2 Q: Sure. Mr. Hodgson will give evidence 3 that on discussion about how this injunction would be 4 served, that he had some concern and it was based upon 5 him having seen a telephone show at one point. I think 6 the television show was called WKRP in Cincinnati. 7 Did you ever recall any discussion about 8 that? 9 A: No, I don't. 10 Q: Well I'm not the biggest TV fan, 11 Superintendent, but I understand in the episode, the 12 radio -- 13 MS. SUSAN VELLA: I'm -- with all due 14 respect, I -- you know, I've let My Friend go on with 15 this -- 16 COMMISSIONER SIDNEY LINDEN: I wonder how 17 far you can go with a meeting -- 18 MS. SUSAN VELLA: -- for a long time. 19 COMMISSIONER SIDNEY LINDEN: -- that he 20 doesn't remember -- 21 MR. MARK FREDERICK: I have to Brown and 22 Dunn this, sir. 23 COMMISSIONER SIDNEY LINDEN: Pardon me? 24 MR. MARK FREDERICK: I have to Brown and 25 Dunn this.
1651 COMMISSIONER SIDNEY LINDEN: Oh, all 2 right. 3 MR. MARK FREDERICK: The evidence of Mr. 4 Hodgson is going to be, and I have to put it to this 5 witness. 6 COMMISSIONER SIDNEY LINDEN: All right. 7 MR. MARK FREDERICK: And it's quite 8 material. 9 MS. SUSAN VELLA: And with all due 10 respect, he has put it to this witness and I think 11 talking about a television show now, is not necessary for 12 Brown vs. Dunn. 13 The allegation has been put to the 14 witness; he denies it and I think that he's satisfied his 15 obligations under that case. 16 MR. MARK FREDERICK: What I understand is 17 that in this show and what was discussed, that -- 18 COMMISSIONER SIDNEY LINDEN: The show was 19 discussed at this meeting that he -- 20 MR. MARK FREDERICK: Yes. 21 COMMISSIONER SIDNEY LINDEN: -- can't 22 recall? 23 24 CONTINUED BY MR. MARK FREDERICK: 25 Q: And that a television station had
1661 done promotions, and they dropped turkeys out of a 2 helicopter, and they didn't know that turkeys couldn't 3 fly, and as a result somebody had been hurt. 4 Have you ever heard of that show, or that 5 premise? 6 A: I am sorry, no I haven't. 7 Q: And what I understand is Mr. Hodgeson 8 made light of this method of serving injunctions because 9 he didn't want to see anybody get hurt by having anything 10 dropped on top of anybody. 11 Do you recall any discussion that effect? 12 A: No sir, I do not. 13 Q: That will be his evidence. 14 Certainly, if you didn't want anybody to be hurt by the 15 service of injunctions, it's probably fair to say you 16 wouldn't want anybody to be hurt at all; you don't 17 believe anybody wanted any -- anybody to be hurt at 18 Ipperwash, is that correct? 19 A: I don't think that was anybody's 20 intention. 21 Q: Mr. Hodgeson is going to say as well 22 that you raised -- he's going to say as well that he 23 didn't understand you were with the Solicitor General's 24 office, I think I pointed that out to you before. 25 But he says that you raised questions
1671 about the political optics of various actions being 2 discussed, such as doing an injunction, using the 3 trespass notice, things of that nature. 4 Do you recall raising optics at any 5 meeting with Mr. Hodgeson? 6 A: I do, sir. 7 Q: And they were the political -- 8 political issues, is that correct? 9 A: Not political issues. I raised 10 reality issues, in my mind, with Minister Hodgeson at the 11 dining room meeting. 12 Q: Okay well, we'll come back -- we'll 13 come to that in a moment, but certainly the reality 14 issues had a political effect, fair? 15 A: They may well have, yes. 16 Q: Mr. Hodgeson will say that one point 17 in this meeting, he responded to your suggestions by 18 telling you that just as it was not up to the politicians 19 to direct the police, it wasn't up to the Civil Service 20 to provide politicians with political advise. 21 Do you recall a discussion with Mr. 22 Hodgeson to that effect? 23 A: I do, sir. At the dining room 24 meeting. 25 Q: So, the difference is -- he says it
1681 took place prior to the dining room meeting, and you say 2 it took place after -- sorry, you say it took place at 3 the dining room meeting, he said it took place after the 4 meeting of the Blockades Committee -- Emergency Planning 5 Committee on the morning of September 6, but there's no 6 doubt some discussion between you went to that effect? 7 A: There was. 8 Q: Mr. Hodgeson will say, and give 9 evidence that at no time, during any meeting with you did 10 he indicate anything that would suggest he had a love of 11 guns; do you agree with that statement? 12 A: He never suggested that to me, that's 13 correct. 14 Q: And Mr. Hodgeson will also say that 15 at no time did he in any way urge a confrontation; would 16 you agree with that statement? 17 A: I would say that he never used the 18 words that he wanted to engage in a confrontation, that's 19 correct. 20 Q: That's right. And in fact he -- no 21 one ever gave you -- he never told you to tell the OPP 22 anything, is that correct? 23 A: That's correct. 24 Q: Nobody in his staff ever told you to 25 tell the OPP to do anything, is that correct?
1691 A: That's correct. 2 Q: As far as you know, he was leaving 3 matters to the police to carry on with them, correct? 4 A: That's correct. 5 Q: And certainly that's consistent with 6 the position taken by the MNR people because it's 7 consistent with the advise given by the Attorney 8 General's office, correct? 9 A: It eventually became that way, yes, 10 sir. 11 Q: Now, I want to go back to your 12 telephone call to Inspector Carson. The purpose for 13 calling him was to advise that somebody, and we're back 14 to the morning of September 6th, the purpose of calling 15 him was to advise that somebody from legal services would 16 be calling in reference to an affidavit in support of the 17 injunction application, correct? 18 A: Correct. 19 Q: Now, some time in the early afternoon 20 of September 6, 1995, there was a meeting in the dining 21 room off of the cabinet room. 22 Do you recall being at that meeting? 23 A: I do. 24 Q: And that meeting took place some time 25 after the morning meeting that had been at the Solicitor
1701 General's office, correct? 2 A: Correct. 3 Q: And do you recall how long it -- how 4 long afterwards this meeting had taken place? 5 A: It was in and around the 12:25, 6 12:30. 7 Q: Do you recall how long that meeting 8 took place? 9 A: I can tell you how long I was there, 10 if that's your question, sir. 11 Q: That's -- that's a better way to put 12 it, Superintendent. 13 A: Between ten (10) and fifteen (15) 14 minutes. 15 Q: And you had a call to Inspector 16 Carson, I think another call to Inspector Carson; that 17 would have been at around 12:50, is that right? 18 A: Correct. 19 Q: And that call took place after the -- 20 your attendance in the Cabinet dining room? 21 A: It did. 22 Q: And Premier Harris was at that 23 meeting? 24 A: Correct. 25 Q: Along with the Attorney General, Mr.
1711 Harnick, and Solicitor General Mr. Runciman, Mr. Hodgson 2 and a number of their officials, including Mr. Bangs; 3 correct? 4 A: Correct. 5 Q: And Mr. Hodgson will give evidence 6 that the meeting didn't start until Premier Harris 7 arrived; is that your recollection? 8 A: I wasn't there when it started, sir. 9 Q: So you were there only part of the 10 time that Premier Harris was present? 11 A: I was there for a short period of 12 time, yes. 13 Q: Mr. Hodgson will give evidence that 14 when he joined the meeting, Mr. Taman, the Deputy 15 Attorney General and you reported on what was occurring 16 at Ipperwash. 17 Do you recall that? 18 A: I recall giving an update of what was 19 going on at Ipperwash, yes. 20 Q: And did Mr. Taman make a report as 21 well? 22 A: Mr. Taman, when I arrived, had been 23 discussing matters surrounding an injunction. 24 Q: And I understand at the meeting you 25 went through a chronology of the events and then moved on
1721 to next steps, which involved the recommendation that an 2 injunction be obtained as soon as possible; correct? 3 A: I gave an update of what was 4 occurring on the ground. Any discussions with respect to 5 the injunction were done prior to my arrival. 6 Q: So you -- 7 A: And all I overheard was Mr. Taman 8 speaking to that matter. 9 Q: Okay. So you made no recommendation 10 to that meeting that an injunction be obtained? 11 A: It was always the position of the 12 Ontario Provincial Police that an -- an injunction was 13 the way to proceed. 14 Q: So it was likely you said that? 15 A: I could have reaffirmed that, yes, 16 sir. 17 Q: Sure. And did you hear, when you 18 attended, a discussion that an injunction would be 19 pursued by the Attorney General's office in the name of 20 the MNR? 21 A: I did. 22 Q: Now Mr. Hodgson's evidence will be 23 that he said nothing at this meeting; do you agree with 24 that? 25 A: No, sir.
1731 Q: Okay. And... 2 3 (BRIEF PAUSE) 4 5 Q: Sorry about that, Superintendent. 6 At Tab 34 of your material there's a 7 handwritten note from Julie Jai, and I understand that 8 she wasn't at the meeting at the Cabinet dining room; is 9 that right? 10 A: Correct. 11 Q: And she makes a note here of a 12 conversation with you. Do you recall speaking with Julie 13 Jai? 14 A: I do recall speaking with her. 15 Q: And how long after the meeting did 16 you recall speaking with Julie Jai? 17 A: I believe it was after I spoke to 18 Inspector Carson. 19 Q: Okay. And the note -- this 20 information obviously comes from you, the note says: 21 "Larry Taman was also there and was 22 eloquently cautioned about rushing in 23 with ex parte injunction, can't 24 interfere at police discretion, but 25 Premier Hodgson -- Premier and Hodgson
1741 came out strong." 2 Is that right? 3 A: That's what I'm reading, yes, sir. 4 Q: Yeah, that's what it says. But of 5 course they weren't coming out strong in favour of, in 6 any way, interfering with police discretion; correct? 7 A: No. I've previously testified the 8 Premier was coming out strong insofar as the police 9 hadnĂt, in his view, taken the appropriate steps in the 10 first instance. 11 Q: Thank you. 12 13 (BRIEF PAUSE) 14 15 Q: It's Exhibit 515. Why -- I've heard 16 you attribute that to the Premier, why did you attribute 17 Mr. Hodgson coming out strong or -- or did you actually 18 attribute Mr. Hodgson coming out strong. 19 Could that just be a mistake in 20 transcriptions? 21 A: No, it's not a mistake. I indicated 22 that when you indicated to me there was a meeting after 23 the Inter-ministerial Committee meeting, that I had no 24 recollection of, you gave me information that Minister 25 Hodgson would give evidence to -- with respect to a
1751 conversation he and I had. 2 I do recall the conversation. I recall 3 pointing out to the Minister that it was a dispute over 4 land, it was a -- rather a civil matter; that it was a 5 closed Provincial Park and that's what we were seeing 6 now, and that the -- that the -- it might be wise to 7 consider other alternatives with respect to that 8 Provincial Park. 9 And I exampled co-management and I do 10 recall mentioning Cape Croaker First Nation and Serpent 11 Mounds, and it was then that the Minister told me, well, 12 that's a political decision. 13 I've been told I can't interfere with the 14 police, don't you be bothered worrying about political 15 matters. 16 Q: So, in effect, it wasn't taking any 17 specific action, it was just a discussion on how 18 negotiations might be carried out and -- 19 A: It was an animated discussion on his 20 part, sir. 21 Q: Right. And how a solution might be 22 arrived at, at a later date. That's what you were 23 discussing? 24 A: I was offering up a solution, yes. 25 Q: Nothing about how the police were
1761 going to go about their proper business in discharging 2 their duties and carrying on with the injunction bit -- 3 A: No, sir. 4 Q: -- correct? And you're agreeing with 5 me on that? 6 A: I'm agreeing that he did not give me 7 direction as to what the police should do. He told me 8 that he was told he could not direct the police. 9 Q: And certainly when we saw Mr. Bangs' 10 comments earlier on, on his behalf. He certainly didn't 11 want to have really anything to do with this issue; is 12 that fair? 13 A: I would say that that's reasonably 14 correct, yes. 15 Q: Now, Mr. Hodgson will give evidence 16 that at that meeting in the dining room, Premier Harris 17 was blunt in his comments and expressed disappointment in 18 the way things had been handled and said something along 19 the following lines that he understood that this was a 20 police matter and this is attributed to Premier Harris. 21 The government is not directing the police 22 and the government is taking direction on the injunction. 23 Would that be a fair statement? 24 A: There are some similarities to that. 25 Q: So is that recollection of Mr.
1771 Hodgson's more or less accurate, then? 2 A: It's reasonably accurate, sir, yes. 3 Q: Mr. Hodgson's evidence will be that 4 the meeting was over when the Premier stood up. 5 Do you agree with that? 6 A: No, sir, I do not. 7 Q: And Mr. Hodgson will give evidence 8 that he was not at a meeting -- in a meeting at which you 9 were present after that time. 10 Do you agree with that? 11 A: I did not meet with him after that. 12 13 (BRIEF PAUSE) 14 15 MR. MARK FREDERICK: Commissioner, I 16 wonder if we might take a few minutes and -- 17 COMMISSIONER SIDNEY LINDEN: Well, I 18 would like to finish your examination, if you might. 19 MR. MARK FREDERICK: I'm trying to see if 20 I could take some more -- 21 COMMISSIONER SIDNEY LINDEN: Yes, I think 22 you should finish it, if you can, within a reasonable 23 time. 24 MR. MARK FREDERICK: I think I can. 25
1781 CONTINUED BY MR. MARK FREDERICK: 2 Q: Now you had your discussion with 3 Inspector Carson and that took place at two o'clock, do 4 you see that? I'm -- I'm taking you to... 5 6 (BRIEF PAUSE) 7 8 Q: I've got the transcript of September 9 6th, telephone call. It would be in a different booklet. 10 11 (BRIEF PAUSE) 12 13 Q: I'm told it's tab 33 in the 14 transcript -- 15 A: Tab 33, sir. 16 Q: And that took place, that 17 conversation took place at two o'clock in the afternoon? 18 A: Correct. 19 Q: And certainly that took place after 20 your meeting in the cabinet dining room? 21 A: It did. 22 Q: And by your reckoning, that took 23 place roughly an hour, an hour and ten (10) minutes after 24 the meeting in the cabinet dining room, correct? 25 A: Approximately.
1791 Q: You didn't take any notes at the 2 meeting in the cabinet dining room, correct? 3 A: I did not. 4 Q: Now, you were not a front-line police 5 officer or in any way assigned to Inspector Carson, 6 correct? 7 A: Correct. 8 Q: And you were not involved in any of 9 the planning that Inspector Carson was overseeing at the 10 site dealing with police presence and actions; correct? 11 A: Correct. 12 Q: You had no authority to direct 13 Inspector Carson in his work? 14 A: That is correct. 15 Q: And as I understand, Inspector Carson 16 testified he would go to you for information about land 17 claims issues or agreements; correct? 18 A: Correct. 19 Q: And later, Inspector Carson went to 20 you when he was looking for information from you on how 21 the process was going in getting that injunction? 22 A: Yes, sir. 23 Q: And you were to pass back information 24 from Inspector Carson so that the injunction application 25 could proceed; fair?
1801 A: I was a conduit to ensure that the 2 right people in the OPP could be contacted, yes. 3 Q: And I take it because right from -- 4 when you considered the possibility of this occupation 5 right back in August, it was always in the cards that if 6 that should have to happen, the OPP would want to move 7 for an injunction in those circumstances; correct? 8 A: That's OPP policy sir, yes. 9 Q: Now Inspector Carson would need that 10 injunction then to carry on with that policy, implement a 11 police plan for dealing with the occupation; correct? 12 A: I -- I couldn't hear you, sir. 13 Q: Sorry. Inspector Carson would need 14 to get that injunction then so he could fulfill that 15 policy, the policy the OPP has with these sorts of 16 affairs? 17 A: That's correct, sir. 18 Q: And if we look at this transcript, on 19 September 6th at 2:00 in the afternoon, I have it at tab 20 37. 21 MS. SUSAN VELLA: My Friend's referring 22 to tab 37 in Exhibit 444A, which was the booklet that was 23 filed during the course of -- of Deputy Commissioner 24 Carson's testimony but the witness has it at tab 33 of 25 the Commission Document Brief.
1811 2 CONTINUED BY MR. MARK FREDERICK: 3 Q: I take it from this transcript, it -- 4 it was you who called Inspector Carson; is that correct? 5 A: Correct. 6 Q: In fact, if I look at the beginning 7 of it, half way down the page, in you calling him you 8 didn't really want to bug him; do you see that? 9 A: That's correct. 10 Q: This would mean at the time that 11 Inspector Carson was not at that time expecting a call 12 from you. Why did you call him? 13 A: That's not correct. 14 Q: Okay? 15 A: Inspector Carson had left a voice 16 mail earlier for me, and I had returned that call and I 17 believe he would have anticipated I was going to call 18 again and provide further information with respect to the 19 injunction. 20 Q: So you didn't want to bug him because 21 he was probably busy at that -- 22 A: That's correct. 23 Q: Okay. Well that's fair. And the 24 reason you called Inspector Carson was to get someone to 25 agree to give -- to consider giving vive voce evidence on
1821 the ex parte motion; is that right? 2 A: That's right. 3 Q: And you thought that would be more 4 effective for the Judge than an affidavit? 5 A: Correct. 6 Q: And as it turns out, Inspector Carson 7 assigned Detective Sergeant Wright to give that evidence 8 on September 7th; is that right? 9 A: Correct. 10 Q: I want to go to the transcript very 11 briefly. You're in Toronto, Inspector Carson is at the 12 command post in Ipperwash? 13 A: In Forest, yes. 14 Q: Sorry, Forest. You attended -- you 15 had been at that blockade meeting in the morning and you 16 confirmed that to him? 17 A: Correct. 18 Q: And then you confirmed your meeting 19 in the dining room of the cabinet; is that right? 20 A: Yes. 21 Q: Now Inspector Carson, he may not 22 necessarily have had that time sequence in mind. Would 23 that be fair; you didn't tell him everything that 24 happened that day, correct? 25 A: Correct.
1831 Q: I'll take you to the page number 264; 2 you make some comments about -- about the Premier making 3 "wild ass comments, getting up and leaving the room;" do 4 you recall that? 5 A: I'm -- I'm sorry, I don't have a 264 6 in this one. 7 COMMISSIONER SIDNEY LINDEN: Well, 8 there's different paging -- 9 MS. SUSAN VELLA: It's page -- it's page 10 5 at the bottom. 11 COMMISSIONER SIDNEY LINDEN: Page 5, at 12 the bottom. 13 MR. MARK FREDERICK: Thank you, I have 14 them. 15 16 CONTINUED BY MR. MARK FREDERICK: 17 Q: When you're talking about those -- 18 making those comments and getting up and leaving the 19 room, you're talking about the Premier; is that right? 20 A: Yes, sir. 21 Q: And that refers to that meeting with 22 the Premier in the dining room outside the cabinet room; 23 correct? 24 A: Correct. 25 Q: And then he leaves the room and then
1841 the Solicitor General asks you to brief them as to what 2 changes in the status of the situation; do you see that? 3 A: I do. 4 Q: I'm going to suggest to you that, 5 really, what you were talking about was the briefing that 6 had happened earlier that morning or after the -- after 7 the morning meeting, that Mr. Hodgson says he attended, 8 that briefing took place at that time, not after the 9 meeting with the Premier? 10 A: I don't recall being at any meeting 11 with Mr. Hodgson -- 12 Q: That's fair. 13 A: -- in between the Interministerial 14 Committee meeting and -- that I attended, and the meeting 15 in the Cabinet office dining room. 16 Q: Okay. And if I continue on in this 17 paragraph, there's a discussion about -- you say, I 18 believe here, I said somewhere -- sorry. You said you'd 19 been talking to the Incident Commander and that you were 20 able to confirm that there were shots overnight. And to 21 quote you: 22 "I said somewhere between fifty (50) 23 and a hundred (100), and this is 24 automatic weapon, is what machine guns, 25 is what this Chris" --
1851 And I take it that's Chris Beaubien; is 2 that right? 3 A: Chris? 4 Q: It's Chris Beaubien from the ONAS? 5 MS. SUSAN VELLA: No, no, no. I think - 6 - let -- let the -- perhaps -- perhaps you werenĂt here 7 for my examination but perhaps we could let the 8 Superintendent speak to what this paragraph is about. 9 THE WITNESS: My assumption is I'm 10 referring to Chris Hodgson -- 11 MR. MARK FREDERICK: Okay. 12 THE WITNESS: -- the Minister. 13 14 CONTINUED BY MR. MARK FREDERICK: 15 Q: And you said: 16 "It's possible, it could be, but 17 there's certainly no evidence to 18 support that I said between fifty (50) 19 and a hundred (100) rounds, I said it 20 could have been a semi-automatic." 21 A: Correct. 22 Q: That's what you say after the meeting 23 that -- after the meeting with the Premier in the Cabinet 24 dining room; correct? 25 A: At the meeting in the Cabinet dining
1861 room, yes. 2 Q: And in fact, that was information 3 that you -- that had already been conveyed to the 4 Blockades Committee earlier in the day; isn't that 5 correct? 6 A: Yes. 7 8 (BRIEF PAUSE) 9 10 Q: Mr. Hodgson will say that during his 11 meetings with you there was no discussion of gunfire and 12 guns. So obviously there's a dispute between your -- 13 your recollection and Mr. Hodgson's recollection; 14 correct? 15 A: I -- I stand by what I've said here, 16 sir. 17 Q: And then you have a discussion about 18 what you were talking about earlier on, about the 19 disagreement with Mr. Hodgson, about he can have no 20 influence over -- over the police doing their job and he 21 was to worry about the politics, remember you and I were 22 talking about that. 23 Mr. Hodgson says that there was no such 24 discussion at the meeting in the Cabinet dining room. He 25 wasn't present after the Premier left the meeting. So
1871 obviously there's another discrepancy between you and Mr. 2 Hodgson's recollection; correct? 3 A: That's my recollection. 4 5 (BRIEF PAUSE) 6 7 Q: If I go to the top of that page -- 8 let's get a page number here -- you start out by saying: 9 "You know and I said with all due 10 respect." 11 Do you see that? 12 COMMISSIONER SIDNEY LINDEN: I'm not sure 13 what page you're on. 14 15 CONTINUED BY MR. MARK FREDERICK: 16 Q: Okay. This might be page 6 of yours. 17 It says: 18 "You know and I said with all due 19 respect, I said, Here's the reality, 20 that's the way it's viewed, and I said, 21 Perhaps we can survive the political 22 backlash." 23 Do you see that? 24 A: I've got it. Top of page 7, yes, 25 sir.
1881 Q: And then you continue on -- just to 2 make a note, page 7 -- continue on: 3 "I said it may be that John Carson and 4 his people will be able to work magic 5 and these people will simply walk away 6 and abandon our position." 7 Do you see that? 8 A: "And abandon their position" yes, 9 sir. 10 Q: And you said, below that, "I said I 11 doubt it", after Inspector Carson says "yes". 12 And Mr. Hodgson says he recalls, certainly 13 in the earlier meeting, a discussion that the first part, 14 with all due respect, here is the reality, that's the way 15 it's viewed, and I said perhaps he can survive the 16 political backlash. 17 He recalls that, but he doesn't recall any 18 discussion about John Carson. 19 Is it possible that you made the first 20 comment, but you didn't make the second comment? 21 A: Which are we referring to? 22 Q: I said that it may be that John 23 Carson and his people be able to work magic. 24 A: No, I recall making that comment. 25 Q: You must admit, it'd be a touch
1891 flattering to Inspector Carson that you're bringing his 2 name up in a meeting with all these government officials. 3 I'm going to suggest that's the reason why you made that 4 statement. 5 A: That wouldn't be correct. 6 Q: Okay. 7 A: When I gave my briefing, I identified 8 my sources of information as being the incident commander 9 and identified it as Inspector Carson, when I gave my 10 briefings. It wouldn't be uncommon for anybody in 11 attendance at these meetings, including Mr. Bangs, to be 12 well aware that Inspector Carson was the incident 13 commander. 14 Q: Well, I'm just -- I've made a 15 suggestion to you, so that's all I can do. We talked 16 about, and you've given evidence, about some intemperate 17 language that you used in this telephone conversation. 18 I don't intend to take you through all of 19 them, but there were a number of strong languages and 20 terms you used towards people and My Friends have been 21 through you -- through with you about them already. 22 Do you recall that? 23 A: I do. 24 Q: And you did all that when you relayed 25 this to Inspector Carson. You were using those terms and
1901 in relying the impression you got from being at the 2 meetings with these people, not that anybody had said 3 these things, but that was your impression of their 4 attitude; is that correct? 5 A: I got the impression and I used the 6 language to describe how I was feeling. I've already 7 identified to the Inquiry in my view, now, it was 8 inappropriate language. With that said -- 9 Q: I'm going to suggest -- I'm sorry, 10 have you finished? 11 A: No. 12 Q: Okay, please -- please go ahead. 13 A: With that said, I'm not suggesting 14 for a moment that I used this language in any of the 15 meetings that I was at. 16 Q: No, I'm -- 17 A: And I believe that's the question you 18 asked me. 19 Q: Okay, I actually don't think I did, 20 but I don't want to suggest that to you. What I'm going 21 to suggest, though, you're using all that language, I 22 suggest you were calculating it to make it look like you 23 were a bit under siege. 24 Would that be a fair view of your 25 language?
1911 A: I don't believe so. 2 Q: It certainly was your intention to 3 convey to the -- Inspector Carson what a difficult job 4 you had being down there at Queen's Park, as opposed to 5 doing anything else; isn't that fair? 6 A: There's no question I was venting. 7 Q: And I'm going to suggest that you 8 wanted to look like you were doing your -- the -- an 9 important job, a heroic job to Inspector Carson, because 10 it was your job, and I quote: 11 "To keep the political bullshit from 12 starting up here." 13 Is that fair? 14 A: I said that, yes. 15 Q: Okay. Because those were the words 16 you used on the telephone conversation with Mark Wright 17 on September 6th at -- 18 A: I recall that. 19 Q: But at this point of the day, when 20 you're having this conversation with Inspector Carson, 21 the decision had already been made to go for the 22 injunction, correct? 23 A: It had. 24 Q: And this was the approach that you'd 25 been advocating for all along, and the advice of Mr.
1921 Taman and others had already been accepted to that 2 effect, isn't that correct? 3 A: It had. 4 Q: So the issues you're discussing with 5 Inspector Carson had already been resolved, right? 6 A: That's not necessarily true. The 7 injunction, certainly, was one part of it. The other 8 aspect that has never been raised was the fact of 9 negotiation with the people there and the position was 10 that the police weren't to negotiate, they were simply to 11 speak. 12 Q: Right, but at this point in time, all 13 the meetings had been about getting the legal means to 14 get people out of the Park, that's what the discussion 15 was about, correct? 16 A: They -- it was certainly about 17 getting occupiers out of the Park, yes. 18 Q: And that decision had been reached in 19 terms of proceeding with the injunction -- 20 A: Correct. 21 Q: -- by the time you had this 22 discussion with Inspector Carson, correct? 23 A: They had been reached, yes. 24 Q: And no one in the government was 25 telling the police what to do, the matter was firmly in
1931 the hands of the Attorney General and the police, where 2 it should be, correct? 3 A: It was. 4 Q: So what I'm suggesting is all this 5 big talk, and this language that I see in here -- that we 6 see in here, was just a show for Inspector Carson, wasn't 7 it? 8 A: Not in my perspective. 9 Q: Well, I wouldn't expect it to be in 10 your perspective, but certainly to a third party looking 11 at all of this, it could be a reasonable interpretation, 12 fair? 13 A: I suppose it could. 14 MS. SUSAN VELLA: I -- 15 MR. MARK FREDERICK: No, I like that 16 answer, I -- I -- 17 MS. SUSAN VELLA: Well, in -- in all 18 fairness -- 19 MR. MARK SANDLER: It's an unfair 20 question. It's -- it's not a question if they answer or 21 not, how could he speculate as to that, with great 22 respect. 23 MS. SUSAN VELLA: I agree with that, 24 Commissioner. 25 COMMISSIONER SIDNEY LINDEN: That's fine.
1941 MR. MARK FREDERICK: I want to just talk 2 about the -- 3 COMMISSIONER SIDNEY LINDEN: You -- you 4 indicated that you would be less than an hour. You have 5 now been more than an hour. That is why when you asked 6 for a break I thought if we continued -- 7 MR. MARK FREDERICK: I apologize. 8 COMMISSIONER SIDNEY LINDEN: -- you might 9 finish. And do you still have a long ways to go? 10 MR. MARK FREDERICK: No, I don't actually, 11 I'm almost done. I'm just -- 12 COMMISSIONER SIDNEY LINDEN: All right 13 then, let's -- okay. 14 MR. MARK FREDERICK: -- I want to review - 15 - I'll tell you exactly where I want to go. I want to 16 review the issues with Chief Coles, and then I'm done. 17 COMMISSIONER SIDNEY LINDEN: That is fine 18 then. I think -- do you want to go until you are 19 finished now? 20 MR. MARK FREDERICK: Yeah, I can do that. 21 COMMISSIONER SIDNEY LINDEN: That's fine. 22 MR. MARK FREDERICK: I'm here. 23 COMMISSIONER SIDNEY LINDEN: Okay. 24 25 CONTINUED BY MR. MARK FREDERICK:
1951 Q: Now, at some point during your 2 discussion with Superintendent Carson, Chief Coles gets 3 on the call, and it's page 9 -- page 9 of your 4 transcript? 5 A: Yes, sir. 6 Q: And Chief Coles says, midway through 7 the page: 8 "Yeah um, I guess just sitting here, 9 just listening, I haven't heard what 10 John has got to tell me now. I've got 11 a concern that we want to be careful 12 what we're doing here, that we don't 13 give them, the people that you're 14 talking to, that we don't give them the 15 information too fast." 16 And you say: 17 "Ummmm" 18 And the Chief says: 19 "The problem is that -- Ron, is that if 20 you're not careful you're going to run 21 the issue there, as opposed to myself 22 and the Commissioner running it here, 23 so we'd better be careful. I have no 24 objection to it because I know you have 25 no objection to you phoning John, but
1961 the only trouble is -- the only 2 trouble, if not you're going to be the 3 fastest source of information they've 4 got." 5 And the Chief says: 6 "And now, with them, we're going to end 7 up with it, we're going to end up 8 running it politically." 9 And he says: 10 "I don't want that." 11 And he continues on, on the next page he 12 says: 13 "It's dangerous if you think about it." 14 You answered: 15 "Yeah, well --" 16 And the Chief says to you: 17 "Because they're going to -- they're 18 going to ask you questions, you're 19 going to find the answer, and the 20 quickest way for you to do it is to 21 come here to John, John's going to give 22 you an honest answer." 23 And he says: 24 "The trouble is now that all that we're 25 doing, sometimes two information is a
1971 dangerous thing." 2 And you respond: 3 "Well clearly it is Chris, and you know 4 I don't; if you've heard somebody else, 5 maybe you have, and that's why you and 6 I are having this conversation." 7 So is it fair, in looking back on that 8 discussion with Chief Coles that he was giving you a bit 9 of a warning about your conduct with respect to the 10 information being relayed back and forward? 11 A: He was passing on his view, that's 12 quite correct. 13 Q: And his view was a warning, fair? 14 A: His view was that yes, I should 15 exercise caution. 16 Q: So, what I take from that is that 17 your position is a delicate position, being up there at - 18 - in the Government offices, correct? 19 A: I would say that it is, yes. 20 Q: And the risk really was that everyone 21 in Toronto could get all worked up a little bit, because 22 of informations being passed onto them, fair? 23 A: I think what could happen is 24 inappropriate or improper assessments of certain things 25 could be made as a result of either improper or poor
1981 information, sure. 2 Q: And that Inspector Carson who was 3 going to deal with the issue on the ground, he'd lose 4 control of the issue. 5 If you leaked the information, could do 6 that generally, and that wouldn't be in the public 7 interest, is that fair? 8 A: Reasonably, yes. 9 Q: And what Chief Coles means is that 10 there's too much fanning of the flames to the people's 11 representatives, and this matter is going to end up being 12 run politically, which is what he didn't want, correct? 13 A: Correct. 14 Q: And that's certainly not what anybody 15 in the Government wanted either, is that also correct? 16 A: I would hope so, yes. 17 Q: And certainly when Mr. Bangs went to 18 those meetings with you, he certainly said the Minister 19 didn't want to run and carry this issue, is that correct? 20 A: I couldn't hear you there, sir. 21 Q: We reviewed that earlier on. And in 22 fact, what the Chief says, he says don't -- don't get 23 involved in anything else, I'm going to give you a call 24 back. 25 And then he called you back on a line that
1991 wasn't taped, is that correct? 2 A: I have no idea. 3 Q: You can't recall if that happened or 4 not? 5 A: No. I -- in my evidence I couldn't 6 recall whether I had received a call from Superintendent 7 Coles or I had not. 8 Q: And I'm just almost done here, 9 Superintendent, bear with me. 10 All right. If I -- if I go a little bit 11 further along, you say to Superintendent Coles -- or 12 Chief Coles: 13 "And, of course, it came up at the 14 meeting..." 15 Do you see that? 16 "And, of course, it came up at the 17 meeting about the automatic weapon 18 fire." 19 A: Yes. 20 Q: And -- and you say: 21 "And you know they're doing damage, 22 there's heavy equipment running around 23 at night, and they're." 24 And then the Chief cuts you off, he says: 25 "That's the trouble. And they're going
2001 to react to that kind of stuff. And 2 it's the same thing I just told them 3 here." 4 Do you see that? 5 A: I do. 6 Q: And Chief Coles says quite 7 deliberately, goes on a little bit, he says: 8 "You play down all the heavy 9 weaponry." 10 Okay. Do you see that? 11 A: I do. 12 Q: "Because I'll have an f'ing safety 13 and back -- back up the issue myself 14 here." 15 Et cetera, et cetera. Do you see that? 16 A: I do. 17 Q: And you say: 18 "Certainly, there was no sound of 19 gunfire and that's a qualified 20 observation but it could be semi- 21 automatic, but there's no indication 22 that weapons were pointed at anybody." 23 So you -- you're having a little bit of a 24 debate with him about that discussion about the weapons; 25 do you see that?
2011 A: It wasn't a debate, it was reiterated 2 what he had said to me. 3 Q: And the Chief makes the point and he 4 says -- about -- about two thirds (2/3) of the way down: 5 "Yeah but, you see, there's 6 conversation, as far as I'm concerned, 7 there's conversation going there that's 8 operational." 9 Do you see that? 10 A: I do. 11 Q: And your response is -- and he -- he 12 tells you, he says: 13 "That's dangerous because it's a 14 dangerous thing to have that happen." 15 Do you see that? 16 A: Correct. 17 Q: And your response is: 18 "You're right. But, you see, then what 19 do I do, Chris? Sit there and say, 20 Well I don't know." 21 That's exactly what Chief Coles wanted you 22 to do, sit there and say you don't know; correct? 23 A: I think you have to read the entire 24 transcript, sir. 25 Q: Okay. You want to give him the best
2021 information you can and the Chief says: 2 "Well, stall them to the -- to the 3 amount. I know that the Commissioner is 4 resurrecting the old -- what has always 5 been our approach because he feels he's 6 now going to start getting some 7 pressure." 8 Do you see that? 9 A: I do. 10 Q: So what he's really telling you to do 11 is to keep a lid on it; is that fair? 12 A: I believe that that's what he is 13 telling me to do, yes. 14 Q: And as Inspector Carson told My 15 Friend Mr. Millar, he never got another call from you 16 after this call; is that fair? 17 A: That would be correct. I dealt after 18 that mainly with Superintendent Parkin. But after that 19 it was certainly an after-the-fact incident. 20 Q: Okay. Well, thank you very much, 21 Superintendent. 22 A: You're welcome. 23 Q: Thank you very much, Commissioner. 24 COMMISSIONER SIDNEY LINDEN: Thank you. 25 We'll take a break now. Thank you.
2031 THE REGISTRAR: This Inquiry will recess 2 for fifteen (15) minutes. 3 4 --- Upon recessing at 2:45 p.m. 5 --- Upon resuming at 3:06 p.m. 6 7 THE REGISTRAR: This Inquiry is now 8 resumed, please be seated. 9 COMMISSIONER SIDNEY LINDEN: Counsel, on 10 behalf of Deb Hutton? 11 MS. ANNA PERSCHY: Good afternoon, 12 Commissioner. 13 COMMISSIONER SIDNEY LINDEN: Good 14 afternoon. 15 16 CROSS-EXAMINATION BY MS. ANNA PERSCHY: 17 Q: Superintendent Fox, my name is Anna 18 Perschy. I'm here today on behalf of Deb Hutton, and as 19 you can expect I have just a few questions for you. 20 You testified that as Special Advisor 21 First Nations to the Ministry of the Solicitor General, 22 your main responsibilities were negotiating First Nation 23 policing agreements, and liaising with the IMC on 24 Aboriginal emergencies. Do I have that right? 25 A: You do.
2041 Q: Now, this Interministerial Committee, 2 as I understand it, it was responsible for developing 3 recommendations and ensuring that there was an adequate 4 information for all the affected groups, both internally 5 within the Government, and the general public with 6 respect to Aboriginal emergencies. 7 Do I understand that correctly? 8 A: That's a reasonable articulation, 9 yes. 10 Q: I think you described the IMC as a 11 clearing house of information? 12 A: I did. 13 Q: Now, let me deal with your 14 understanding -- your role in regards to this committee. 15 You indicated that because of your experience, you were 16 able to interpret information that was made available to 17 the IMC, and provide a policing perspective? 18 A: As a Police Officer, yes. 19 Q: And with regards to the Ipperwash 20 matter in the summer of 1995, nearly Fall, you testified 21 that you obtained information from the operational police 22 officers and provided updates to the IMC in that regard? 23 A: That is correct. 24 Q: Because it was -- you were not 25 functioning at that point as an operational police
2051 officer; you were on secondment to the Solicitor General? 2 A: That is correct. 3 Q: While there are general principles 4 regarding how to approach an Aboriginal emergency, a 5 blockade, an occupation, in each case the IMC is 6 responding to a particular situation. 7 You'd agree with me that context is very 8 important? 9 A: I would agree with you that all 10 Aboriginal situations are not alike, that they're all, to 11 some degree, unique. 12 Q: Fair enough, and that was certainly 13 true with respect to the Ipperwash situation? 14 A: I believe that to be correct. 15 Q: So, the IMC required up-to-date and 16 accurate information regarding that particular situation 17 in order for all the representatives of the various 18 effected Ministries to fulfill their responsibilities, 19 whatever they might be; is that fair? 20 A: Yes. 21 Q: Now, you made reference in your 22 testimony sir, to a distinction between what you 23 describe, I believe, as operational information versus 24 field information. 25 And as I -- if I understood your evidence
2061 correctly, you indicated that field information is 2 information about an incident, what had occurred, what 3 might occur whereas operational information would relate 4 to how the police would or should react. 5 Do -- do I have that right? 6 A: Yes, and I believe the term I used 7 was in the operational event -- or venue rather, 8 tactical. 9 Q: And you indicated in your testimony 10 that operational, tactical information should not be 11 shared with people who are not police officers, and you 12 were careful to avoid receiving or divulging such 13 information when you were seconded to the Ministry of the 14 Solicitor General and were a member of the IMC? 15 A: Correct. 16 Q: So, the IMC then in fulfilling its 17 functions required up-to-date and accurate field 18 information. It was the operational, tactical information 19 that they didn't need and shouldn't have, in your view? 20 A: Yes. 21 Q: You indicated that you were given an 22 opportunity, during the examination in-chief, to review 23 Julie Jai's notes of the IMC meeting on August 2nd, 1995. 24 And in the course of your review, if I recall correctly, 25 you indicated that there were references in those notes
2071 to operational or tactical information which should not 2 have been shared. 3 And I'm trying to get a better 4 understanding, a more complete understanding of what you 5 understood as operational or tactical information which 6 should not have been shared. 7 And I was wondering if you could actually 8 turn to Commission Counsel's brief, I believe it's Tab 9 15. And for the benefit of My Friends, that's document 10 number 1011695. And those are, I believe, the -- the 11 notes of Julie Jai. 12 MS. SUSAN VELLA: Exhibit P-507. 13 14 CONTINUED BY MS. ANNA PERSCHY: 15 Q: And if you could just take a look at 16 those notes and let me know what you regard as 17 operational or tactical information? 18 A: Yes, I -- I can. On the first page 19 of the -- the notes dated August 2/'95 -- 20 Q: Yes. 21 A: -- if one goes to the midpoint in the 22 page, there's "last night" and then if you go down from 23 that, there's a "2", not in the margin but indented 24 somewhat. 25 Q: Yes.
2081 A: And it says: 2 "Two (2) district emergency response 3 teams stationed nearby plus the TRU 4 Team" -- 5 Q: Yes, I see that. 6 A: -- "Forest, Grand Bend, OPP 7 Detachments." 8 What that is indicating is police 9 resources and personnel that may have been available. 10 The numbers and types of police resource and personnel, 11 in my opinion are tactical in nature. They would speak 12 to how an operation the police might undertake may be 13 carried out and shouldn't be there. 14 A general statement like this should be 15 that the police have resources sufficient in place to 16 manage the matter as it stands down or words to that 17 effect. 18 Q: I understand. Not particulars then? 19 A: Correct. 20 Q: Because it relates to the police 21 resources, police tactics? 22 A: That's correct. 23 Q: Any other references in the notes to 24 operational information? 25 A: I'd have to read through.
2091 (BRIEF PAUSE) 2 3 A: I'm not finding it in these notes. 4 There was previous reference in notes referred to me by 5 Commission Counsel, authored by Ms. Jai, that spoke to 6 the OPP having undercover campers in place prior to the 7 takeover of the Park; that would be operation and of a 8 tactical nature, in my view. 9 Q: I understand. Thank you, sir. 10 I believe that you also indicated, when 11 you reviewed the minutes of the IMC meeting on September 12 5th, that you thought there was some operational 13 information contained in those minutes; am I correct in 14 that regard? 15 A: You may well be. Can you refer me 16 to -- 17 Q: Well, why -- why don't I give you an 18 opportunity to review them again. If you could turn to 19 Commission Counsel's brief. It's tab 18, I believe. 20 MS. SUSAN VELLA: Tab 19. 21 22 CONTINUED BY MS. ANNA PERSCHY: 23 Q: Sorry, tab 19. and the document 24 number for the benefit of my colleagues is 1012252 and I 25 believe it's the first -- third page in.
2101 A: Correct. 2 MS. SUSAN VELLA: This is Exhibit P-509. 3 4 CONTINUED BY MS. ANNA PERSCHY: 5 Q: The document entitled -- thank you, 6 Counsel. The document entitled Emergency Planning for 7 Group Aboriginal Issues, Interministerial Committee 8 Meeting Notes, dated September 5, 1995? 9 A: September 5? 10 Q: Five (5) -- five (5), please? 11 A: I have it, yes. 12 Q: And if you could just quickly review 13 those notes, and advise me if, in your view, there's any 14 operational or tactical information referred to in those 15 -- in those meeting notes? 16 17 (BRIEF PAUSE) 18 19 A: Not that I can see. 20 Q: All right. And if you would be so 21 kind as to do the same thing with the September 6th 22 meeting notes, which are in the same document a few pages 23 in? 24 25 (BRIEF PAUSE)
2111 A: The only one (1) piece that might be 2 considered would be the last bullet under the Solicitor 3 General update. 4 It speaks to aerial surveillance. As I 5 recall, that was predominantly to be undertaken by MNR 6 with respect to determining to what extent there had been 7 damage to the Park. 8 The last line refers to and whether the 9 Stoney Pointers may have any weapons. One would assume 10 that if there was an aerial flyover, that would -- that 11 would be something people would be looking at, but I 12 believe it was MNR who were going to do that. 13 Q: So, just so that I can understand 14 that, is it the -- the reference to aerial surveillance 15 that you've got as being tactical or is it the -- the 16 reference to whether the Stoney Pointers have any 17 weapons? 18 A: I would say that this is on the edge. 19 If it were something the Ontario Provincial Police were 20 to undertake as part of either their investigation or 21 response to an incident, it would be -- it would be 22 information that I would consider, in my opinion, to be 23 tactical in nature. 24 Q: The -- this is the reference to the 25 weapons?
2121 A: To aerial surveillance if it -- it 2 involved a police activity. 3 Q: Well -- 4 A: This one is aerial surveillance to 5 determine what damage may have occurred to MNR property. 6 Q: Yes, no I appreciate the -- the first 7 couple of lines in -- in this bullet refer to the aerial 8 surveillance. 9 My question was with respect to the -- the 10 last part of the sentence, and the query regarding 11 whether or not the Stoney Pointers have any weapons. 12 Is -- is that last part of the sentence 13 tactical? 14 A: To a degree -- yeah, to a degree it 15 would be if -- if we, the Ontario Provincial Police were 16 to undertake a particular flyover operation to either 17 assist in investigating or managing a given incident. 18 This one (1) was an add to, and I don't 19 recall bringing this update forward. I believe, from my 20 recollection, this was an initiative to be undertaken by 21 MNR to determine the status of their part. 22 Q: I see. All right, fair enough. 23 Thank you very much, sir. 24 25 (BRIEF PAUSE)
2131 Q: If I could ask you to continue 2 looking at Commission Counsel's brief of documents, now 3 I'd ask you to look at Tab 11, I believe I've got that 4 right, it's the fax from Julie Jai which contains the 5 briefing note. And for the benefit of my colleagues, 6 that's document number 1012232. 7 MS. SUSAN VELLA: If it -- if it's Tab 8 11, it's 1011681. 9 MS. ANNA PERSCHY: No, well, I have the 10 document number right, so maybe I have the tab number 11 wrong. 12 13 (BRIEF PAUSE) 14 15 CONTINUED BY MS. ANNA PERSCHY: 16 Q: Tab 12, my apologies. Three (3) 17 pages in, there's the July 10th briefing note for the 18 Honourable Charles Harnick, Minister Responsible for 19 Native Affairs. 20 A: I have it, yes. 21 Q: And you've already described that 22 this briefing note is something that you received and 23 reviewed, and it describes the procedures for dealing 24 with aboriginal emergencies. 25 And I'd like to draw your attention to the
2141 paragraph next to the word "issue". And it states that 2 the -- the topic, just above that, is: "The Procedures 3 for Dealing with Aboriginal Emergencies" and then it 4 states: 5 "Issue: How to ensure that adequate 6 processes are in place so that 7 aboriginal emergencies, including 8 blockades and other forms of direct 9 action, can be prevented or, if not 10 prevented, resolved as quickly and as 11 safely as possible." 12 Do you see that? 13 A: I do. 14 Q: So in the event of a blockade or some 15 other direct action, some other emergency, the 16 government's stated goal, the assumption there is that 17 the goal is to resolve that situation, to end it as 18 quickly and safely as possible; is that fair? 19 A: To prevent or, if unable to prevent-- 20 Q: Absolutely. The -- the first -- 21 A: -- resolution, yes. 22 Q: -- the first goal will be to prevent, 23 but in the event that it can't be prevented -- 24 A: Yes. 25 Q: And I take it that that was the
2151 objective for those sorts of situations, to your 2 knowledge, in the start of your secondment up to and 3 including September 6th, 1995? 4 A: Correct. 5 Q: And this briefing note, I think 6 you've already described, refers to the IMC, the 7 Interministerial Committee, as the main mechanism for 8 coordinating the government's response to such 9 situations? 10 A: Correct. 11 Q: The Interministerial Committee, I 12 believe, met three (3) times in regards to the Ipperwash 13 matter, up to and including September 6th, the August 14 2nd, 1995 meeting, the meeting on September 5th, and the 15 meeting on September 6th? 16 A: Correct. 17 Q: In regards to the Park? 18 A: Correct. 19 Q: Now, going into the September the 20 5th, 1995 meeting, the attendees -- the participants of 21 that meeting, they weren't coming into this issue cold. 22 You and the others had received some background from 23 having attended the -- the previous -- the previous 24 meeting of August 2nd, and having received the minutes to 25 -- from the August 2nd, 1995 meeting, and also having
2161 received some -- some written materials at the August 2nd 2 meeting? 3 A: Yeah. I -- the air conditioner 4 kicked in just at that moment -- did you say new members 5 were coming in cold? 6 Q: I'm sorry. I'm just -- I'm just 7 saying that going in to the September 5th, 1995 meeting, 8 the -- most of the people who had attended the August 2nd 9 meeting also attended the September 5th meeting. 10 So they weren't coming in cold, they 11 already had all the background information that they had 12 received prior to that date? 13 A: That's correct. 14 MS. SUSAN VELLA: Well, in fairness, I 15 think it would be fair to compare the attendee list. 16 There were certainly fewer people at the August 2nd 17 meeting. And I don't know if this witness can speak to 18 everybody's particular background on the issue. 19 20 CONTINUED BY MS. ANNA PERSCHY: 21 Q: That -- that -- that's fair enough. 22 I appreciate that. Certainly from your own perspective, 23 you had that information from -- from the August 2nd 24 meeting when you attended the September 5th, 1995 25 meeting?
2171 A: I did. 2 Q: And you don't have any information 3 with respect to what Ms. Hutton may or may not have known 4 as she walked into the September 5th, 1995 meeting, but I 5 take it that you are aware of the fact that Brett 6 Laschinger attended on her behalf at the August 2nd, 1995 7 meeting? 8 A: I'm aware he attended. I wouldn't 9 know what Ms. Hutton had in terms of knowledge of past 10 meetings. 11 Q: Fair enough. And I -- I anticipate 12 that her evidence will be was that she was briefed by Mr. 13 Laschinger, and had -- had that information from that 14 briefing when she attended the September 5, 1995 meeting, 15 and -- and you don't have any evidence to the contrary? 16 A: I do not. 17 Q: Fair enough. So, just to recap 18 briefly, in summary fashion what information was 19 available coming into the September 5th, 1995 meeting, 20 from the August 2nd, 1995 meeting, you knew, for example, 21 the following; that there were two (2) distinct 22 properties: the camp, on the one hand, which had been 23 expropriated in 1942, and on the other hand, the park. 24 Is that right, you -- you were aware of 25 that?
2181 A: Correct. 2 Q: You were also aware of the -- the 3 fact that some of the descendants of the families that 4 had been expropriated had occupied the camp in May of 5 1993, and then taken over the built up area of the camp 6 in July of 1995, and that there had been a confrontation 7 in that regard; you were aware of that? 8 A: I was aware there were two (2) 9 distinct First Nations peoples in the area, and that the 10 Stoney Pointers of former number 43 did, in fact, occupy 11 the Army Camp, and subsequently, at a later time, the 12 Park. 13 Q: Well, were you under the impression 14 that all of the Stoney Pointers were in occupation at the 15 Camp, all of the descendants of the families? 16 A: I -- I wasn't aware that all of them 17 were. 18 Q: And did you have any information as 19 to whether or not others may have been in occupation in 20 the Camp who were not direct descendants of the families? 21 A: I do. 22 Q: And I take it that you were also 23 aware going into the September 5th, 1995 meeting, that 24 these occupiers were not a recognized Band, and that 25 their activities in occupying the Camp, the -- the built-
2191 up area of the Camp, were not supported by the duly 2 elected Chief and the Counsel of the Kettle and Stoney 3 Point Band? 4 A: I was aware that the Stoney Point 5 people were assimilated into a new First Nation 6 identified by the Department of Indian Affairs and 7 Northern Development as the Kettle and Stoney Point First 8 Nation. 9 MR. JONATHON GEORGE: Commissioner, I 10 don't know that it's appropriate, and I'm not -- 11 certainly not objecting to My Friend's question that the 12 witness give his opinion on the status of the two (2) 13 First Nations at -- at or prior to 1942. 14 I think, certainly, he can answer the 15 question as to perhaps divisions, and whether or not he 16 had that information in September of '95, but I think 17 it's kind of dangerous to proceed down that path any 18 further. 19 MS. ANNA PERSCHY: Commissioner, I'm 20 simply trying to understand what information was 21 available to -- to Mr. Fox going -- going into this 22 meeting, what -- what he had learned from -- from 23 attending the August 2, 1995 meeting as he walked into 24 the September 5, 1995 meeting. 25 It's clearly to his knowledge.
2201 COMMISSIONER SIDNEY LINDEN: I think you 2 could ask him what his understanding was. 3 4 CONTINUED BY ANNA PERSCHY: 5 Q: And that -- that's my intention. If 6 I didn't do that... What was your understanding, sir, 7 with respect to the -- the creation of the Kettle and 8 Stoney Point Band, and who might have been included 9 within that Band? 10 A: My understanding is based on -- 11 MR. JONATHAN GEORGE: I don't know how 12 that's relevant. 13 COMMISSIONER SIDNEY LINDEN: Well, I'm 14 not sure at the moment either, but it could be. So, I 15 think it's a legitimate question to ask him what his 16 understanding is at that point in time. I mean, he may 17 be right; he may be wrong, but I mean, he's being just 18 being asked for his understanding. 19 MS. ANNA PERSCHY: Absolutely. It's a -- 20 it's a small point, Commissioner. 21 22 CONTINUED BY MS. ANNA PERSCHY: 23 Q: Suffice it to say, sir, you -- you 24 were aware of the fact that there was a duly elected 25 Chief and Council of the Kettle and Stony Point Band and
2211 however that band may have been created, and you're aware 2 of the fact that that duly elected Chief and Council 3 didn't support the activities of the occupiers at 4 Ipperwash. 5 A: I was. 6 Q: And in fact, at the August 2nd 7 meeting, in discussing the possible takeover of the Park, 8 you had been advised that -- not you, but all of the 9 attendees at the meeting, that Chief Bressette would be 10 upset if the Province were to close the Park because it 11 would be recognizing the validity of what they regarded 12 as a dissident group? 13 A: Correct. 14 Q: You were told of that. And I believe 15 you indicated in your testimony, previously, that you had 16 stated a concern at that meeting about the risk of an 17 altercation between the dissidents and the Band? 18 A: Correct. 19 Q: And again, going into the September 20 5th meeting, having attended the August 2nd meeting, 21 having received materials from that meeting, you were 22 aware that Legal Services ONAS -- of ONAS had advised 23 that following a review of its files, there were no 24 outstanding legal actions or land claims by either the 25 Band, or the Stoney Pointers Group claiming an interest,
2221 or right with respect to the Park? 2 A: That is correct. 3 Q: So, I've touched on some of the main 4 points, but you'd agree with me that going into the 5 meeting on September 5th, the -- you had all of that -- 6 the information that was provided at the August 2nd 7 meeting? 8 A: I did. 9 Q: And again, you have no reason to -- 10 you have no evidence that Ms. Hutton wouldn't have had 11 that information as she walked into that meeting as well? 12 A: I don't. 13 Q: You've testified as to your 14 impressions of the September 5th IMC meeting, and I'd 15 like to focus, not on your impressions, but on your 16 recollections of some of what was actually said at that 17 meeting, and just before I do that I have just a 18 couple of general questions about the meeting on the 5th. 19 You indicated that you were dressed in 20 civilian clothes on September 5th and 6th? 21 A: Correct. 22 Q: And you did that throughout your 23 secondment as I understand it, you weren't an operational 24 Police Officer, you were Special Advisor to the Solicitor 25 General, you were in civilian clothes?
2231 A: I was. 2 Q: And you had never met Ms. Hutton 3 before September 5th? 4 A: No, I had not. 5 Q: You didn't know her, and you had no 6 evidence that she knew -- that she knew anything about 7 you? 8 A: Correct. 9 Q: And at the outset of the meeting, as 10 Ms. Vella pointed out, some of the participants at the 11 meeting were new. I take it that people introduced 12 themselves at that meeting, at the outset? 13 A: That's correct. 14 Q: And I take it that when you 15 introduced yourself at that meeting, you simply 16 introduced yourself as, Ron Fox or Ron Fox, First Nations 17 Special Advisor to the Ministry of the Solicitor General, 18 something along those lines? 19 A: That's correct. 20 Q: You didn't get into the details of 21 your secondment from the OPP at that -- at that point? 22 A: No, I did not. 23 Q: And I anticipate that Ms. Hutton will 24 testify that she didn't know that you were a police 25 officer on secondment, and I take it that you don't have
2241 any evidence to the contrary? 2 A: I do not. 3 Q: And I take it that that was the case 4 also at the dining room meeting on September 6th? You 5 were simply introduced as Special Advisor to -- to the 6 Ministry of -- to -- sorry, the Ministry of the Solicitor 7 General? 8 A: I don't recall the exact 9 introduction, but I would assume it was that, yes. 10 Q: Fair enough. Now, you indicated that 11 you didn't take notes of the September 5th meeting, but 12 others did. 13 I'm not going to review all of the notes 14 of all of the note-takers, there -- there are many note- 15 takers, but I would like to turn your attention to three 16 (3) of the most detailed to see if we can use them to 17 assist your recollection. 18 So if you could pull out Mr. Downard's 19 brief along with Commission Counsel's brief, I -- I'll be 20 making reference to some of the documents from both. 21 For the assistance of Counsel, I'm going 22 to be referring to Tabs -- I believe it's Tabs 23 and 24 23 of Mr. Downard's brief, which I believe are Document 24 Inquiry Number 1012576 and -- and I believe the evidence 25 is going to be that those are the notes of Ms. Julie Jai.
2251 And document number 1012562, and I anticipate that the 2 evidence will be that those are the notes of Elizabeth 3 Christie. 4 I'm also going to refer to Eileen Hipfner' 5 notes -- or I anticipate will be -- will be found to be 6 her notes, and those are, I believe, in Commission 7 Counsel's documents, their brief, at Tab 23, and that's 8 document number 1011739. 9 So I'll start with the -- the notes of Ms. 10 Julie Jai. So if you could pull those up first, please. 11 Again, that's Tab 23. 12 13 (BRIEF PAUSE) 14 15 Q: Have you had an opportunity to refer 16 to those notes? 17 A: Yes. 18 Q: Now, Ms. Jai's note begin, on the 19 first page, with a reference to a Mr. Brennan, apparently 20 of Intergovernmental Affairs, and it appears that he had 21 spoken with two (2) DND individuals. 22 I take it that's a reference to Department 23 of National Defence; that's what you'd understand? 24 A: I would understand it to be, yes. 25 Q: And that he had spoken to two (2) DND
2261 individuals who were monitoring Camp Ipperwash. The 2 notes then refer to the individuals' names and contact 3 numbers. And just below that the notes state: 4 "No claims filed as far as they know on 5 the Park." 6 Now, do you recall being advised at the 7 IMC meeting that that sort of contact had been made and 8 information provided to that effect? 9 A: I don't recall this information 10 coming up, it may well have. I would be surprised if DND 11 would have an understanding of land claims with respect 12 to the Park. 13 Q: But, sir, you have no evidence that 14 they may not have made inquiries of others within the 15 federal government in that regard? 16 A: Correct. 17 Q: And I believe that you recall -- I 18 recall that you had testified previously that you had 19 thought that it would be a good thing to have the 20 involvement of representatives of the federal government 21 at the IMC? 22 A: Yes. I believe I testified to DIAND. 23 Q: And I take it even though there was 24 no such representation, it appears that contact was in 25 fact made with the Federal Government, and -- and you
2271 don't have any information to the contrary? 2 A: That's correct. 3 MS. SUSAN VELLA: Well -- well in 4 fairness, he just indicated that his recommendation was 5 that someone from Indian and Northern Affairs be present, 6 and I believe this note refers to the Department of 7 National Defence. 8 9 CONTINUED BY MS. ANNA PERSCHY: 10 Q: Now, I appreciate that, but you had - 11 - you just indicated, I believe, that you have no 12 information that the -- as to what may have been the 13 source of the knowledge of the two (2) individuals at the 14 Department of National Defence? 15 A: That's correct. 16 Q: If you could turn now to Ms. 17 Hipfner's notes -- am I pronouncing her name correctly, 18 at tab 23. Again, this is Mr. Downard's brief -- 19 MS. SUSAN VELLA: No, I think you mean 20 Commission Counsel's brief, and it's exhibit P-510. 21 MS. ANNA PERSCHY: You're -- you're quite 22 right. Thank you very much, Ms. Vella. 23 24 (BRIEF PAUSE) 25
2281 COMMISSIONER SIDNEY LINDEN: Which notes 2 are we referring to now, I am sorry. Not -- not tab 23 3 of Mr. -- 4 MS. ANNA PERSCHY: It's tab 23 of 5 Commission Counsel's volume unfortunately I misspoke. 6 It's tabs 23 for both, and Ms. Hipfner's notes are in 7 Commission Counsel's brief. 8 COMMISSIONER SIDNEY LINDEN: Okay, I have 9 got it. 10 11 CONTINUED BY MS. ANNA PERSCHY: 12 Q: Do you -- do you have that in front 13 of you, sir? 14 A: I do. 15 Q: You'll see at the top of the page 16 there's the date, and then Aboriginal Emergencies 17 Committee, and then there's a reference to the -- the 18 previous meeting on August the 2nd. 19 And then if -- there's the reference to -- 20 or, the comment made: 21 "Last night, 7:30 p.m., Stoney Pointers 22 occupied the park." 23 Do -- do you see that, sir? 24 A: I do. 25 Q: And just below that, there's a number
2291 two (2), and I can't quite make out the first -- the 2 first word but then there's the -- the -- the notation: 3 "Court decision, Eliz.", [assumably 4 Elizabeth], "decision affects Ipperwash 5 Provincial Park, part 1927 surrender." 6 And then there's a line above that and 7 there's the notation: 8 "Has affect of confirming Ontario's 9 title to the park lands". 10 Do you see that notation, sir? 11 A: I do. 12 Q: And I take it that you'd agree with 13 me that the reference to Eliz. is a reference to 14 Elizabeth Christie, who was a lawyer with the Ministry of 15 the Attorney General? 16 A: That's possible, yes. 17 Q: Well, you would assume so, sir, 18 wouldn't you? I mean, she was the only person at that 19 meeting with the first name of -- of Elizabeth: am I 20 wrong in that? 21 MS. SUSAN VELLA: Well, but -- but in 22 fairness, he can only speak to his recollection and it -- 23 it is what it is. 24 MS. ANNA PERSCHY: Fair enough. 25
2301 CONTINUED BY MS. ANNA PERSCHY: 2 Q: So, you don't have a recollection of 3 Ms. Christie making this comment? 4 A: I don't. 5 Q: Fair enough. Then below that, 6 there's a reference to an MNR guy on the telephone, and 7 there's the comment: 8 "New archaeological evidence that 9 there may be a burial site [I think it 10 says] in the park." 11 Do you see that comment, sir? 12 A: I do. 13 Q: And if you could turn to Ms. Jai's 14 notes for just a moment, half way down the page there's a 15 reference to Dan Elliot, and there's a similar notation 16 with respect to archeological evidence. 17 It says: 18 "No previous archeological evidence of 19 burial ground, but some new evidence 20 recently [and then the qualifier] has 21 not been evaluated." 22 Do you see that? 23 A: That's correct. 24 Q: All right, and then finally if you 25 could turn to Ms. Christie's notes, and she has the same
2311 notation on the first page about halfway down? It 2 states: 3 "New archeological evidence may have 4 been obtained." 5 And then, underneath that, there's an 6 asterisk and it says: 7 "Burial ground doesn't give them 8 title." 9 Now, do you recall being advised at the 10 IMC meeting that there may be new archeological evidence, 11 but that it hadn't been evaluated and that, in any event, 12 the -- from a legal standpoint, the existence of a burial 13 site didn't give the occupied -- occupiers title to the 14 land? 15 A: In those general terms, yes, I have 16 recollection of that. 17 Q: Now, all three (3) sets of notes then 18 refer to the update that you provided and it's apparent 19 also that Peter Sturdy of MNR also provided some 20 information with respect to the events of the previous 21 night; is that your recollection? 22 A: Correct. 23 Q: Now, I'm not going to review, in the 24 interest of time, all of the notes in that regard, but in 25 summary, if I can focus on, for the sake of argument,
2321 Elizabeth Christie's notes, the updated included some of 2 the following information: 3 There was the information provided that 4 thirty-five (35) to forty (40) people had moved into the 5 Park and set up camp. 6 The information that MNR and OPP had told 7 the group that they were trespassing and had tried to 8 serve a written Notice of Trespass, but the group had 9 refused to accept it. 10 OPP and MNR had been told to leave. 11 The back of the OPP cruiser or a OPP 12 cruiser had been broken. 13 The Park had been closed to everyone 14 including day trippers under the Parks Act and that had 15 the effect that, legally, anyone there was trespassing. 16 Stoney Point Number 43 had been written on 17 the maintenance building, which seemed to suggest that 18 the occupiers were claiming ownership and the group 19 wouldn't identify a spokesperson. 20 And were you also advised at the time 21 that one (1) -- one and a half (1 1/2) to two (2) years 22 ago, MNR had allowed the First Nations to set up a site 23 for ceremonial purposes and visited, but this year there 24 had been no visits for ceremonial purposes? 25 MS. SUSAN VELLA: Now --
2331 MS. ANNA PERSCHY: Now, do you recall 2 getting that information? 3 MS. SUSAN VELLA: I have an objection. 4 First of all, many, many things have been 5 to this Witness and he hasn't been given an opportunity 6 to answer each of the subcomponents, but more to the 7 point, this meeting has been reviewed quite extensively 8 by counsel. 9 These very facts have been put to this 10 Witness already at least on a couple of occasions. I'm 11 wondering if there isn't a -- a different point that's 12 being made here and, if not, I would suggest that -- that 13 the Cross-examiner move on. 14 MS. ANNA PERSCHY: I'm about to make 15 another point, which is why I -- I went through this 16 rather quickly because I -- I was conscious of the fact 17 that this area's been covered, but I needed to -- to put 18 it forward in order to make another point. 19 COMMISSIONER SIDNEY LINDEN: All right. 20 You're going to get to the point now, I presume? 21 22 CONTINUED BY MS. ANNA PERSCHY: 23 Q: And -- and, that point is this, the 24 Inter-ministerial Committee then was given fairly 25 detailed information with respect to what had occurred?
2341 A: They were given overview information, 2 yes. 3 Q: But there was a fair amount of detail 4 to it? 5 A: There was detail, yes. 6 Q: And then, if you continue to review 7 these notes there's a consideration of the government's 8 options and, if you turn to, for the sake of example, 9 Julie Jai's notes... 10 11 (BRIEF PAUSE) 12 13 MS. SUSAN VELLA: And for the record, 14 that's Tab 23 of Exhibit P-528. 15 MS. ANNA PERSCHY: Thank you. Thank you, 16 Ms. Vella. 17 18 (BRIEF PAUSE) 19 20 CONTINUED BY MS. ANNA PERSCHY: 21 Q: On the second page of those notes, 22 right after the notation written on chalkboard number 43, 23 i.e. -- IR, sorry number 43 -- former number of reserve, 24 there's a reference to "options" and a reference to 25 "injunction.
2351 And then what precedes is some notations 2 with respect to a discussion among the MNR 3 representatives regarding some of the relative 4 considerations -- excuse me -- with respect to applying 5 for an injunction or waiting to get more information. 6 Now, do you recall that exchange? 7 A: Yes. 8 Q: Now, if you can keep going through 9 the notes and if you turn to page 4 of the notes, that of 10 Ms. Jai, it's in the context of that discussion regarding 11 the relative considerations with respect to applying for 12 an injunction awaiting that someone, it's not identified 13 in these notes, asks, What is the tolerance level of the 14 government? And it's at that point, according to these 15 notes, that Ms. Hutton makes a comment at this Inter- 16 Ministerial Committee. 17 Now, do you recall -- or let me do it this 18 way. To this point, from the notes we've just reviewed, 19 Ms. Hutton had made no comment and now, when she speaks 20 up, she's only speaking up in response to a question 21 regarding the government's tolerance level in regards to 22 perhaps a prolonged standoff; is -- is that your 23 recollection? 24 A: I think her question was why the 25 Committee had not met with respect to Serpent Mounds.
2361 Q: Fair enough. There is a reference to 2 Serpent Mounds but just below that -- or, sorry, just 3 above that, there's the inquiry: 4 "What is the level of tolerance -- 5 level -- what is the level of tolerance 6 level of the government?" 7 I think "level" is repeated twice. And 8 then below that there's the line: 9 "Premier is hawkish on this issue - 10 feels we're being tested on this 11 issue." 12 Now, with respect to the question 13 regarding the government's tolerance level, would you 14 agree with me that as the representative of the Premier's 15 office at this meeting, Ms. Hutton would be the likely 16 person to respond to -- to such a question -- 17 A: That -- 18 Q: -- that wouldn't surprise you? 19 A: That -- that wouldn't surprise me if 20 in fact it was a question. Looking at someone else's 21 notes, is this a way they would write a question to 22 themselves to be answered at a further time or to be 23 followed up on, I don't now. 24 Q: So you -- you don't have a 25 recollection if in fact this question was asked?
2371 A: I do not. 2 Q: And equally, you don't have a 3 recollection that it wasn't asked? 4 A: That's correct. 5 Q: Fair enough. Now -- 6 MS. SUSAN VELLA: The difficulty -- I'm 7 sorry, Ms. Perschy -- the difficulty I have with this 8 form of questioning is that we appear to be using the 9 minutes or the notes as almost a transcript -- 10 COMMISSIONER SIDNEY LINDEN: Yes. 11 MS. SUSAN VELLA: -- of proceedings and 12 then we're asking the witness whether he can recall that 13 that -- that occurred in fact. And it might be more 14 helpful if we stuck to his recollection and then use the 15 minutes to refresh it if there's a gap. 16 MS. ANNA PERSCHY: Well, I think that's 17 essentially what I'm attempting to do. These -- these 18 are not a transcript. However, I think the evidence is 19 going to be that they are contemporaneous notes. 20 And I'm simply reading out the passages so 21 that the question is clear and then asking this witness 22 what his recollection is. And of course, the -- the 23 evidence is with respect to his recollection, not the 24 notes. 25 COMMISSIONER SIDNEY LINDEN: That's fine.
2381 2 CONTINUED BY MS. ANNA PERSCHY: 3 Q: I don't want to get wrapped up in the 4 semantics of any particular wording that may have been 5 attributed to Ms. Hutton but I'd suggest that in the 6 context, what -- what's being communicated is a sense of 7 the need to recognize a broader perspective, that the 8 government's response to this, whatever that response may 9 be, will be a response that is perceived not only by the 10 people directly involved but is also going to be 11 something that's perceived by people who are not directly 12 involved in this situation, Native or non-Native? 13 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 14 Sandler...? 15 MR. MARK SANDLER: I'd hate to impose an 16 answer on any witness, leave alone my client, in -- I'm - 17 - with all due respect -- 18 COMMISSIONER SIDNEY LINDEN: Yes, they've 19 answered that question. 20 MR. MARK SANDLER: -- that's very, very 21 difficult to answer. There are a lot of concepts in 22 there and I'd have some difficult knowing what the 23 response would be too. 24 MS. ANNA PERSCHY: Well, Commissioner, 25 this witness has testified at considerable length as to
2391 various opinions and conclusions that he drew from his 2 attendance at the Meeting, and -- 3 COMMISSIONER SIDNEY LINDEN: But that was 4 his testimony, that was his testimony. 5 MS. ANNA PERSCHY: That -- that was his 6 testimony, -- 7 COMMISSIONER SIDNEY LINDEN: You can ask 8 him-- 9 MS. ANNA PERSCHY: -- but -- but his 10 testimony was with respect to his opinions and 11 conclusions as to what others had said at the Meeting, in 12 particular with respect to my client, Ms. Hutton, and I'm 13 simply trying to refer him back to the notes that are 14 available, which were written contemporaneously, and 15 which I can ask him if he recalls whether or not the 16 statement was made, -- 17 COMMISSIONER SIDNEY LINDEN: Yes. 18 MS. ANNA PERSCHY: -- and perhaps should 19 do that first. 20 COMMISSIONER SIDNEY LINDEN: Up to that 21 point you're fine. It's from that point on that you've 22 parted company. 23 MS. ANNA PERSCHY: Well, what -- why 24 don't I do that first, and then -- and then I'll deal 25 with -- with the next -- the next question, sir.
2401 2 CONTINUED BY MS. ANNA PERSCHY: 3 Q: Do you recall Ms. Hutton making this 4 comment at this meeting, or words to that effect? 5 A: That is the Premier being hawkish? 6 That --that comment? 7 Q: Yeah, the -- the entire comment that 8 I read out that there's a feeling that they're being 9 tested on this issue. 10 A: Yes, I have a general recollection of 11 that. 12 Q: And I had -- was -- 13 COMMISSIONER SIDNEY LINDEN: Ask him what 14 he thought that that meant. 15 MS. ANNA PERSCHY: I was just about to do 16 that. I was actually going to suggest what that might 17 have meant, and then ask him whether or not he agrees 18 with my suggestion. 19 20 CONTINUED BY MS. ANNA PERSCHY: 21 Q: And -- and my suggestion, sir, -- 22 COMMISSIONER SIDNEY LINDEN: I think 23 that's where we're having some difficulty. I mean, your 24 suggestion is quite philosophical. Is that the 25 suggestion you made a few moments ago?
2411 MS. ANNA PERSCHY: Yes, precisely, sir. 2 And -- and he -- he may not have understood that, but in 3 -- in fairness I can put the suggestion to him and he can 4 -- he can state whether or not he thought about it at the 5 time, and -- and obviously I'll simply accept whatever 6 his answer may be. 7 COMMISSIONER SIDNEY LINDEN: All right. 8 Okay. 9 MS. ANNA PERSCHY: But, I would like to - 10 - to suggest the -- the question to him. 11 COMMISSIONER SIDNEY LINDEN: Yes. You're 12 going to suggest to him what is a possible interpretation 13 of her comments, something that he may inferred or 14 interpreted from -- 15 MS. ANNA PERSCHY: Well I'm going to 16 suggest that -- that it may be a reasonable 17 interpretation of her comments in the context, -- 18 COMMISSIONER SIDNEY LINDEN: All right. 19 MS. ANNA PERSCHY: -- and he -- he can 20 agree or disagree with me in that regard. 21 COMMISSIONER SIDNEY LINDEN: Okay. Let's 22 see what it is. 23 MS. ANNA PERSCHY: Sure. 24 25 CONTINUED BY MS. ANNA PERSCHY:
2421 Q: So, I'd suggest to you then, that 2 this comment with respect to the feeling that the 3 Government's being tested on this issue, may be a 4 communication that, or a recognition I should say, that 5 the Government's response to this issue, is -- is 6 something that is -- it's a public response and others 7 are going to beware of it, not just people directly 8 involved in the situation. 9 It's a test, not just with respect to 10 these people, but with respect to others as well, anybody 11 who becomes aware of it. Had you thought of it in those 12 terms? 13 A: No, I -- I had not. 14 Q: Fair enough. But I'd suggest to you, 15 sir, that you were the Special Advisor to the Solicitor 16 General with respect to First Nation issues, so of 17 course, you would be focussing on those issues on the 18 First Nations people, but I take it you'd agree with me 19 that First Nations people are not the only ones who may 20 engage in -- in blockades or occupations or other forms 21 of protest? 22 A: That would be correct. 23 Q: And that I'd suggest to you that, 24 from the point of view of the Government at large, that 25 it would not be an unreasonable issue to consider,
2431 namely, the -- the effect that the Government's response 2 in this situation, the effect that it might have on other 3 Native or non-Native people, some of whom may be 4 contemplating taking some form of blockade or occupation 5 action. There's a precedent aspect to this? 6 A: I didn't view it in the terms for 7 precedent. I -- I would say that any action obviously 8 will have some reaction, and that must be considered not 9 only in First Nations communities but in the broader non- 10 First Nations communities. 11 I took this to be a rather narrow focus as 12 opposed to a broad focus. 13 Q: Fair enough. Now, if you could turn 14 to Ms. Hipfner's notes for a moment -- 15 MS. SUSAN VELLA: Exhibit P-510 and it's 16 Tab 23 of the Commission Counsel brief. 17 MS. ANNA PERSCHY: Thank you. 18 19 (BRIEF PAUSE) 20 21 CONTINUED BY MS. ANNA PERSCHY: 22 Q: And I think it's -- it's about four 23 (4) pages in, and it's the same -- the same comment in 24 the middle of the page, and the notation is: 25 "Deb, Premier is hawkish on this issue,
2441 will set tone for how we deal with 2 these issues over the next four (4) 3 years." 4 Do -- do you see that, sir? 5 A: I do. 6 Q: And in this notation there's no 7 indication as to what "these issues" are, and do you have 8 a recollection of the -- Ms. -- Ms. Hutton's comment in 9 this regard, beyond what's on this page? 10 A: I do. 11 Q: And -- and what's your recollection, 12 sir? 13 A: The issues referred to were, and -- 14 and -- in this case only the issue surrounding Ipperwash 15 Provincial Park, so it was a First Nations issue. 16 Q: But, you'd agree with me that there 17 may be broader issues in -- at play as well, the ones we 18 -- we just spoke about a moment ago? 19 A: I would if I had no recollection of 20 the second line down attributed to Ms. Hutton. 21 Q: I see, so your -- your recollection 22 is that that comment was specific to First Nation issues? 23 A: My recollection is that I needed to 24 read her comment here to be refreshed, in terms of the 25 Premier being hawkish, and it will set the tone, meaning
2451 the Government, how we will deal with these issues which 2 I could only take to mean First Nations issues, over the 3 next four (4) years. 4 Q: Fair enough. That -- that's 5 something you assumed then, sir? 6 A: That would be my assumption based on 7 what I heard, yes. 8 Q: Fair enough. Fair enough. And in 9 just going -- going on with these notes, there's a 10 reference to Mr. Baines making a comment: 11 "SPR is the bigger umbrella issue." 12 I take it that's a reference to the 13 statement of political relationship, or would you know -- 14 do you recall? 15 A: I have heard that term used before, 16 if that's what he was referring to, I'm unsure. 17 Q: Okay. And -- and did you know what 18 that was in reference to? 19 A: The statement of political 20 relationship is the relationship between inter- 21 governments and First Nations. 22 Q: Right, it -- it's the -- the broad 23 police framework for First Nation issues? 24 A: Correct. 25 Q: Fair enough. And then there's
2461 another comment from Ms. Hutton, just below that, 2 according to Ms. Hipfner's notes and the comment is: 3 "Clear cut issue of Ontario's ownership 4 of property." 5 And then something about how this may be 6 the time and place to move decisively. 7 Do you recall that comment being made? 8 A: I do. 9 Q: Now, you testified, I believe, that 10 you provided a clear statement to the Interministerial 11 Committee at some point during these meetings as to how, 12 generally, the OPP should respond, but that you didn't 13 advise as to how the Government should respond? 14 A: I didn't advise as to how the 15 Government should respond, no. 16 Q: And you testified that the general 17 OPP practice of requesting a property owner -- or you 18 testified, sorry, that the general OPP practice is to 19 request the property owner to seek an injunction in all 20 instances involving any First Nation land claims? 21 A: And that was to determine if the 22 issue is in fact clear-cut. 23 Q: Fair enough. Because the OPP 24 wouldn't know whether a property owner has lawful title. 25 It's not the OPP's role to try and assess the relative
2471 merits of land claims, right? 2 A: That's correct. 3 Q: And with your many years of 4 experience as a police officer, you brought that -- that 5 OPP perspective to this meeting, right? 6 A: I tried to. 7 Q: And that, in fairness to you, that 8 was the purpose of -- of your being at this meeting, was 9 to provide that -- that sort of perspective? 10 A: To provide a perspective from a 11 policing position and an advised perspective, yes. 12 Q: Yeah. However, this meeting, this 13 IMC meeting was not to determine the OPP response, of 14 course, but to consider the possible responses of the 15 Government, the property owner, on behalf of the people 16 of Ontario; that's right? 17 A: The proper responses of government, 18 which would include the property owner, and other 19 ministries who had direct responsibility for First 20 Nations matters. 21 Q: You're making reference to the fact, 22 of course, that the Ministry of Natural Resources was -- 23 was the property owner, but they're holding it on -- on 24 behalf of -- of the people of Ontario essentially, are 25 they not?
2481 A: Correct. And it wasn't only a 2 meeting with -- with MNR. Certainly, there was -- ONAS 3 was the Chair of -- of the meeting, if you will, to look 4 after the First Nation interest. 5 Q: Who could all provide, sort of, their 6 perspective on it based on their own experience? 7 A: That's correct. 8 Q: And also enable them to fulfill their 9 own responsibilities? 10 A: Yes. 11 Q: Now, you testified previously that 12 you had access to the files of your predecessors in this 13 position as Special Advisor and that you were aware in 14 1995, in the general sense, that back in 1993 Maynard 15 George and others had made a claim regarding the Park and 16 -- but were -- I believe that Mr. Downard put this 17 question to you, were you aware that under the previous 18 NDP government, the Government had reviewed its title and 19 Maynard George's claim and determined that the Province 20 had clear title? 21 You weren't aware of that, were you? 22 A: Well, I believe what Mr. Downard's 23 question was to me; had I seen the letter before, had I 24 seen the governmental response, and my answer was no, 25 that I hadn't seen the letter or the response.
2491 Q: And then you didn't have the 2 paperwork but you were aware in general terms? 3 A: I was. 4 Q: Okay. Yeah. Now, you testified that 5 you thought that there might -- might be colour of right 6 issues in this instance, and that the Government 7 shouldn't just rely on the lack of formal claims being 8 filed. 9 Do -- do you remember giving that 10 testimony? 11 A: I do. 12 Q: And I believe it was in regards to 13 some of the materials that had been provided at the 14 August 2nd, 1995 IMC meeting, the reference to the review 15 by ONAS in regards to the question of title? 16 A: In part, yes. 17 Q: And however, you don't know what work 18 was done by the Government back in 1993 before it came to 19 its determination with respect to the question of title? 20 A: At that point in time, I did not. 21 Q: Fair enough. And you were aware that 22 -- again, you may not have seen the paperwork, but you 23 were aware of the history, I take it, that the previous 24 government, the NDP Government, had not only made this 25 determination with respect to the issue of title, they
2501 had actually communicated that to Mr. George. 2 Were you aware of that? 3 A: Not at 1995. 4 Q: Okay. Now, I noted at the beginning 5 of -- of review of, I believe it was Ms. Hipfner's notes, 6 the reference to Elizabeth Christie, confirming that the 7 Province had good title, and you'd indicated that you 8 didn't recall that particular comment being made. 9 A: No, I think you asked me if I could 10 recall who Liz was and if Liz was, in fact, Elizabeth 11 Christie and I said that I couldn't. 12 Q: So, you recall the -- you recall that 13 the statement was made, but not who made it? 14 Do I understand that correctly? 15 A: There were a number of people who 16 made the statement that as a result of research, the 17 province had clear title to Ipperwash Provincial Park; 18 which one, I can't attribute it to at this point. 19 Q: Okay, fair enough. But, if you look 20 at the notes that we referred to previously, I believe 21 that the comment was a reference a recent Court decision 22 and that that recent Court decision had the effect of -- 23 of confirming Ontario's good title in -- in -- with 24 respect to the Ipperwash Park. 25 COMMISSIONER SIDNEY LINDEN: There is?
2511 2 CONTINUED BY MS. ANNA PERSCHY: 3 Q: Would you like me to -- to refer you 4 back to -- to -- to the notation? 5 Would that be of assistance? 6 A: I have the notes in front of me and 7 it does identify a Court decision. 8 "Decision affects Ipperwash PP - Park, 9 I believe - 1927 surrender and also an 10 action relating to [and it's, I 11 believe] the 'beach' and waters of Lake 12 Huron." 13 Q: And do you recall, sir, that the 14 discussion -- that the Decision that was being discussed 15 was a Decision with respect to a --a different claim, I 16 believe it was West Ipperwash Beach, but there was a 17 comment made at this meeting that that Decision with 18 respect to that other land claim, the legal effect of 19 that decision, the advice was being given at this 20 meeting, but the legal effect of that Decision was to 21 further confirm Ontario's title to the Ipperwash 22 Provincial Park. 23 Do you recall that? 24 A: I recall the -- the Ipperwash Beach 25 West Decision being referenced, the decision of -- of the
2521 Court. I have no recollection that there was a great 2 deal of discussion in terms of how it would impact 3 Ontario's title. 4 In fact, if I recall, there were some 5 views that may have been other than that, that it may not 6 have supported Ontario's title. 7 Q: All right. But, with respect to the 8 -- the notes that we've reviewed, you'd agree with me 9 that -- that the notes simply -- simply referred to the 10 effect that it does, in fact, confirm title? 11 MS. SUSAN VELLA: Well, with all due 12 respect, the Witness has indicated what his recollection 13 of the discussion was. Obviously different points of 14 views were reflected. 15 The fact that one of the points of views 16 is reflected in one of the parts of the notes, really, I 17 think that this -- this has been gone through quite 18 thoroughly enough and should be moved on. 19 MS. ANNA PERSCHY: I'll move on, I just 20 wanted to make one more point in an attempt to refresh 21 this -- this Witness' recollection. 22 23 (BRIEF PAUSE) 24 25 COMMISSIONER SIDNEY LINDEN: You're
2531 making one (1) more attempt to refresh his recollection? 2 MS. ANNA PERSCHY: I will, and then -- 3 and then I'll move on, sir. 4 COMMISSIONER SIDNEY LINDEN: Thank you. 5 MS. SUSAN VELLA: I don't know that his 6 memory needs refreshing. 7 COMMISSIONER SIDNEY LINDEN: Well, he -- 8 MS. SUSAN VELLA: What he testified was 9 that he heard both points of view at the meeting. 10 COMMISSIONER SIDNEY LINDEN: I'm not sure 11 what refreshment Counsel is looking for, but let's see 12 what the question is. 13 14 CONTINUED BY MS. ANNA PERSCHY: 15 Q: If you, sir, could just refer to 16 Elizabeth Christie's notes. On the first page there's 17 the reference: 18 "Action against Feds and landowners. 19 Fed motion for summary judgment equals 20 surrender good and private [I think 21 it's] patent valid. That decision 22 should mean Provincial Park title is 23 good." 24 You -- you see that comment, sir? 25 A: I do.
2541 Q: And I'm going to suggest to you that 2 Ms. Christie -- or, I'm going to ask you rather -- if you 3 recall having seen her notes whether it was, in fact, Ms. 4 Christie, a lawyer for the Ministry of the Attorney 5 General, who made a comment to that effect, or do you 6 recall? 7 A: It could well have been, I have no 8 specific recollection. 9 Q: Fair enough. And coming back, then, 10 to the comment made by Ms. Hutton in Ms. Hipfner's notes 11 that we looked at previously that there was a clear-cut 12 issue of Ontario's ownership of property. 13 I'm going to suggest to you that Ms. 14 Hutton was simply repeating the advice that had 15 previously been given; isn't that possible? 16 A: The -- the comment that it's a clear- 17 cut issue, I -- I don't believe there's any dispute that 18 there's a clear-cut -- it's clear-cut that Ontario had 19 valid title. I think what's missing from the discussion 20 that I've testified to is that there were those who felt 21 they had a right to be there by virtue of their history 22 and their hereditary and the notion that there may be 23 burial grounds in the Park. 24 Q: And this is -- this is you reference 25 to what I'll -- what I'll refer to as the colour-of-right
2551 issue? 2 A: That's right. 3 Q: And I just want to make sure that -- 4 that I understood you, when you say that the Province had 5 good title, but that there were those who might, in good 6 faith have a belief that they had some rights, what I'm 7 trying to understand is, from your perspective, did that 8 create a question in your mind as to whether or not, in 9 fact, the Province had good title or was it simply a 10 matter that these people might have a mistaken belief in 11 regards to their rights? 12 COMMISSIONER SIDNEY LINDEN: I believe 13 he's already given this evidence in some other place. 14 I'm pretty certain he said that. 15 MS. ANNA PERSCHY: And I'm sorry, 16 Commissioner, I hadn't understood which of the two (2) it 17 was, which is why I'm -- I'm asking the question. 18 COMMISSIONER SIDNEY LINDEN: Well, I 19 think it's on the record. I don't think there -- I'd be 20 surprised if it isn't clear on the record. 21 MS. ANNA PERSCHY: All right. Well, if 22 it's -- if it's been covered -- 23 COMMISSIONER SIDNEY LINDEN: All right. 24 MS. ANNA PERSCHY: -- I -- I won't -- 25 COMMISSIONER SIDNEY LINDEN: Has this
2561 been covered as far as you're concerned? 2 Do you recall answering this question? 3 THE WITNESS: I believe that I have, Your 4 Honour. 5 COMMISSIONER SIDNEY LINDEN: I think you 6 have. 7 MS. ANNA PERSCHY: All right. I'll -- 8 I'll move on, then, and -- and we'll -- we'll address the 9 issue of colour of right later on. Just -- 10 COMMISSIONER SIDNEY LINDEN: For the 11 record, I think he said he thought the Province had good 12 title, but others believed they had a colour of right. 13 Somewhere along the way he said that in one (1) way or 14 another in one (1) form or another. 15 MS. ANNA PERSCHY: Thank you, 16 Commissioner, for -- for enlightening me on that -- on 17 that point. 18 19 CONTINUED BY MS. ANNA PERSCHY: 20 Q: I'd like to just keep reviewing these 21 notes. I'm looking at Ms. Hipfner's notes of September 22 5th, just below the comment that we just reviewed. 23 And the -- the next comment is one which 24 appears to be attributed to Ron Baldwin who indicates, 25 according to these notes, that there are permanent homes
2571 and cottages in the area and he goes on to point out -- 2 and I'll just refer to it directly, quote: 3 "Think about [and the next word is 4 illegible, at least to me] Kettle and 5 Stony Point First Nation - likely to 6 get frustrated if we don't take some 7 sort of action." 8 MS. SUSAN VELLA: It says: 9 "Think about relationship with Kettle 10 and Stony Point First Nation." 11 COMMISSIONER SIDNEY LINDEN: I'm sorry, 12 what page is that on? 13 I haven't got that page. What page are 14 you -- 15 MS. SUSAN VELLA: It's at page 4. 16 MS. ANNA PERSCHY: Thank you, Ms. Vella. 17 COMMISSIONER SIDNEY LINDEN: Page 4? 18 MS. SUSAN VELLA: Of Tab 23 -- 19 COMMISSIONER SIDNEY LINDEN: Yes, I've 20 got -- 21 MS. SUSAN VELLA: -- of the Commission 22 Counsel brief, Exhibit P-510. 23 COMMISSIONER SIDNEY LINDEN: I have it 24 now. 25
2581 CONTINUED BY MS. ANNA PERSCHY: 2 Q: And do you recall such a comment 3 being made, sir, at this meeting? 4 A: I do. 5 Q: And I think you've previously 6 testified that the reaction of the Kettle and Stony Point 7 Band in -- in regards to these issues, generally, was 8 also a consideration that needed to be taken into 9 account. Do I have that right? 10 A: Correct. 11 Q: Now, we've heard evidence at this 12 Inquiry as to Chief Tom Bressette's views, this is the 13 Chief, of course, of the Kettle and Stony Point Band, his 14 views regarding the occupation of the Park. 15 Now, I understand that you spoke with 16 Inspector Carson by telephone on a number of occasions, 17 between September 4th and 6th. 18 And I'm wondering, did Inspector Carson 19 tell you at the time, on the 5th or the 6th, that he had 20 spoken with Chief Tom Bressette on the morning of 21 September 5th, and that Inspector had -- Inspector Carson 22 had indicated to Chief Tom Bressette that the occupiers 23 of the Park were trespassing, and that the Chief hadn't 24 disagreed that it was a trespassing issue, and that he 25 had indicated to Inspector Carson that you're going to
2591 continue to have problems with our group, until somebody 2 enforces a law against them, or words to that effect? 3 Do you recall if Inspector Carson ever -- 4 ever advised you of that conversation? 5 A: I don't recall that he advised me of 6 a conversation that he personally had with Chief 7 Bressette in general terms. I have heard from Inspector 8 Carson, the Chief of the Kettle and Stony Point First 9 Nation was upset with the occupation, yes. 10 Q: And in fact that -- that was part of 11 the background material that had been made available to 12 the participants of the IMC Meetings, is it not? 13 A: Yes, including the press releases 14 that spoke to that. 15 Q: Now, I suggest that the Chief -- the 16 Chief of the Kettle and Stony Point Band and the Council, 17 that -- that you understood that they -- they would 18 likely be upset at any action by the Government which 19 conferred legitimacy on the occupying group. 20 You -- you understood that that was a 21 concern? 22 A: I had an understanding of that, yes. 23 Q: And that was one of the complicating 24 factors in this situation, was it not? 25 A: It was.
2601 Q: Now, if we just keep reviewing these 2 notes, the -- following this comment, the discussion -- 3 the discussion appeared to turn to alternatives to the 4 Injunction and just before some options are listed, 5 there's a reference on page 5, and again I'm looking at 6 Eileen Hipfner's notes, there's a notation, "Ron," and 7 the -- it states: 8 "People from throughout province may be 9 here, more occupiers than there are 10 Stoney Pointers, difficult for police 11 to secure (Forest Beach access)." 12 Then the next point: 13 "The longer they're there, the more 14 familiar they become with surroundings 15 and the more difficult it becomes to 16 remove them." 17 And I believe you testified that you 18 raised those issues at -- at the meeting? 19 A: Correct. 20 Q: And then from the notes, it -- it 21 appears then that the IMC went on to consider 22 alternatives to an Injunction and that Liz, suggesting it 23 might be Elizabeth Christie, outlined five (5) options. 24 And those options were: The charges under 25 the Criminal Code, Trespass to Property Act, Public Lands
2611 Act, Provincial Parks Act, and the Injunction. 2 And then there's a discussion of -- of 3 those various options. 4 Do you recall that that was the flow of -- 5 of the meeting? 6 A: Correct. 7 Q: And you testified that Ms. Hutton 8 made a comment about treating Aboriginal and non- 9 Aboriginal people the same, and I believe that you 10 testified that you felt that Ms. Hutton's view of the 11 situation was too simplistic and so you provided her with 12 a couple of examples of situations where there was no 13 colour of right. 14 A: Correct. 15 Q: Now, I believe that the evidence will 16 be that, from Ms. Hutton, that she was the one who, in 17 fact, referred to a couple of hypothetical examples of 18 trespass which did not involve colour of right and had 19 asked at this meeting what would be the response in those 20 circumstances. 21 Now, you wouldn't know what her thought 22 process was, or her motivation in raising these 23 hypotheticals, but do you recall that, in fact, it may 24 have been Ms. Hutton who raised those examples? 25 A: I recall raising the examples.
2621 Q: You recall that you raised the 2 examples? 3 A: Yes, ma'am. 4 Q: Now, if you could turn to Elizabeth 5 Christie's notes... 6 7 (BRIEF PAUSE) 8 9 MS. SUSAN VELLA: I take it we're still 10 at Tab 24, are we? Or -- 11 MS. ANNA PERSCHY: Yes. Yes, Tab 24 of 12 Mr. Downard's brief. 13 COMMISSIONER SIDNEY LINDEN: What page 14 are going to be referring to? 15 MS. ANNA PERSCHY: I'm just going to 16 provide you with the page. I just wanted to pull it up. 17 18 (BRIEF PAUSE) 19 20 CONTINUED BY MS. ANNA PERSCHY: 21 Q: I believe it's at the bottom of page 22 11. In the middle of the page there's the notation "what 23 MNR should say" and there's a number -- a number of 24 points under that comment, and it's below that at the 25 bottom of the page.
2631 A: I have it before me. 2 Q: And -- and there's an asterisk and it 3 says: 4 "Strategic imperative = this 5 government treats non-aboriginal people 6 and aboriginal people the same". 7 Now, do you recall the issue of equal 8 treatment coming up in that context, the context of 9 communications at this meeting? 10 A: I recall it coming up on a number of 11 occasions throughout the meeting. 12 Q: Now, I take it you've never acted in 13 the role of a media or communications person for the 14 government? 15 A: No, I have not. 16 Q: But would you agree with me that it's 17 important that there not just be equality in a democracy, 18 that there be equality before the law, but that there's 19 also -- it would be important for the government that 20 there be a perception of equality and fairness? 21 A: I believe that I've testified that -- 22 to that, but I agree with the concept. 23 Q: Right. I believe that's what -- 24 A: There also had to be a realization of 25 unique differences.
2641 Q: I appreciate that, and we'll -- we'll 2 come to some of those -- some of those issues in a 3 moment. 4 Now, you were aware that there had been 5 concerns raised among non-native people that the First 6 Nations people were not being held subject to the law in 7 the same way that non-natives had been? 8 This issue had come up within this local 9 community? 10 A: Correct. 11 Q: And I take it that you would agree 12 with me that communicating with the public and reassuring 13 them that there was equality and also fairness, that that 14 would be something that's important? 15 A: It would be important if that were 16 the message, yes. 17 18 (BRIEF PAUSE) 19 20 Q: Now, you can review these notes; 21 we're almost at the end. There's another couple of pages 22 and you -- you've testified previously that Ms. Hutton 23 had indicated at the IMC meeting on September 5th, that 24 the situation could have simply been resolved from the 25 outset by removing the occupiers immediately.
2651 But I would suggest to you that there's no 2 comment in either Ms. Hipfner's notes or the notes of -- 3 the other two (2) notes, Ms. Jai's or Ms. Christie's, to 4 that affect and, if you want to take the time to review 5 them, by -- by all means do so. 6 A: I have reviewed them. I don't see 7 any indication in either of those three (3) -- three (3) 8 authors' notes. 9 Q: And I -- I anticipate that Ms. 10 Hutton's evidence is going to be that, in fact, she never 11 made such a comment. Does that assist in terms of your 12 recollection in regards to that issue? 13 A: I recall the comment being made. 14 Q: But you're not aware of -- because 15 there were a number of notes that were taken at the time 16 from the documents that you reviewed, you're not aware of 17 any documents that would help to evidence that 18 recollection of yours? 19 A: There may be. I would -- 20 Q: You're not aware of them? 21 A: Not at this point in time, no. 22 Q: Fair enough. Now, you've testified 23 that you felt that Ms. Hutton wasn't inclined to an 24 injunction; she didn't accept it and you based that on 25 your recollection that she -- she hadn't -- she hadn't
2661 nodded her head? Is -- is that what you testified to? 2 A: I based my recollection on -- and I 3 qualify it by saying -- at the end of the 4 Interministerial Committee meeting there was a consensus 5 there would be an injunction. Ms. Hutton did not take 6 that position early on in the discussions. 7 Q: So by the end of the meeting, though, 8 she was part of that consensus; that's your recollection? 9 A: Correct. 10 Q: Okay. So, she may have not accepted 11 it initially, but over the course of the meeting through 12 an exchange of information, your sense was that she did 13 accept it? 14 A: Correct. 15 Q: And in fact, if you could turn to Ms. 16 Jai's notes, which are at Tab 23 of Mr. Downard's brief, 17 I believe it's the second-last page? It's page 8. 18 There's a comment at the bottom... 19 20 (BRIEF PAUSE) 21 22 Q: And that comment is: 23 "Deb - wants an emergency injunction; 24 doesn't want to wait two (2) weeks." 25 Do you recall her making such a comment?
2671 A: I do. 2 Q: And in regards to the timing of the 3 injunction, I believe you testified that you didn't have 4 any views on that, but Inspector Carson has testified as 5 to his concerns that an application be made for an 6 injunction quickly and that he was quite concerned at any 7 suggestion that it might take as long as two (2) weeks. 8 Were you aware of that, sir? 9 A: Not in 1995. 10 Q: All right. Fair enough. But I take 11 it that you'd agree with me that as the Incident 12 Commander on the scene, he would be in a better position 13 than you to -- to assess the situation locally, right? 14 A: Certainly. 15 Q: And just finishing off with Ms. Jai's 16 notes on the last page, they -- they reflect how the 17 meeting ended. There's a reference: 18 "1. We will seek an injunction. 19 2. We well try to peaceably remove the 20 dissidents -- up to OPP discretion." 21 And then, there's a line and it says: 22 "We will recommend this to our 23 political masters." 24 And below that: 25 "A small group will work out legal
2681 mechanism." 2 Do you recall comments to that effect 3 being made at the meeting? 4 A: In general terms, yes. 5 Q: And -- and, I take it the reference 6 to "legal mechanism," did you understand that to be a 7 reference to the injunction? 8 A: I did. 9 Q: And I take it that that's your 10 recollection as to the outcome of that meeting at that 11 point, those -- those two (2) issues; that was the 12 consensus? 13 A: Correct. 14 Q: Now, on September 5th, following the 15 takeover of the Park and the OPP's withdrawal from the 16 Park, I take it that you would have assumed that 17 Inspector Carson, as the Incident Commander, would be 18 quite busy dealing with the situation; right? 19 A: Correct. 20 Q: And in fact, if you could turn to the 21 transcript of your conversation with Inspector Carson on 22 September 5th, I have it as P-444(A). I don't know if 23 you have that entire transcript. If you do, it's Tab 16. 24 MS. SUSAN VELLA: It's Tab 16 in the 25 exhibit but, Superintendent, if you might look at Tab 24.
2691 THE WITNESS: Thank you, Ms. Vella. 2 MS. ANNA PERSCHY: Thank you, Ms. Vella. 3 4 (BRIEF PAUSE) 5 6 CONTINUED BY MS. ANNA PERSCHY: 7 Q: And you see, in -- in the middle of 8 the page, that there's a reference to Inspector Carson 9 and he indicates: "Sorry, I just -- inundated with calls 10 and things." You say: "No. I can well imagine." And 11 then you say: "I don't want to hold you up." Right? 12 You see that? 13 A: Yes. 14 Q: And as you've just testified, you 15 were aware of the demands on him in view of his position 16 as Incident Commander, but I suggest you were contacting 17 him, despite the fact that he was very busy, because you 18 wanted to update him regarding the IMC meeting; is that 19 right? 20 A: And to provide information with 21 respect to the injunction and who from the Attorney 22 General's -- 23 Q: I -- 24 A: -- so I go down to the next line to 25 respond to your question, Inspector Carson responds:
2701 "No. No problem." If he felt that it was an 2 inappropriate time and that he couldn't handle my 3 telephone call, he would have told me. 4 Q: No. I appreciate that. And -- and 5 of course, you can't speak to Inspector Carson's interest 6 but -- but I take it you assumed that he wanted to know 7 what was -- what was the status of the injunction? 8 MS. SUSAN VELLA: Commissioner -- 9 THE WITNESS: Wanted and needed to know. 10 MS. SUSAN VELLA: -- with all due 11 respect, this transcript has been reviewed extensively. 12 All of the questions of the last few -- several minutes 13 have already been answered. It's clear that he was busy. 14 We -- we've already gone through why it was this call was 15 made, what the assumptions were. I don't know how this 16 is advancing the Inquiry. 17 MS. ANNA PERSCHY: Well, I'm just -- 18 COMMISSIONER SIDNEY LINDEN: Do you have 19 some -- 20 MS. ANNA PERSCHY: I do have something -- 21 COMMISSIONER SIDNEY LINDEN: -- some 22 perspective regarding Ms. Hutton or something? 23 MS. SUSAN VELLA: But -- 24 MS. ANNA PERSCHY: Absolutely. 25 MS. SUSAN VELLA: -- but perhaps
2711 without, you know, going through the points that have 2 already been established, and let's -- 3 COMMISSIONER SIDNEY LINDEN: Well, that's 4 what I'm -- 5 MS. SUSAN VELLA: -- just get right to 6 the point. 7 COMMISSIONER SIDNEY LINDEN: -- I'm 8 assuming that's what you're going to do. Is that what 9 you're going to do? 10 MS. ANNA PERSCHY: That's precisely what 11 I'm going to do. Commissioner, I -- I'm not going 12 through this just for the sake of going through it. I -- 13 I do have a point to make, and that's what I'm leading up 14 to. 15 COMMISSIONER SIDNEY LINDEN: It isn't 16 obvious to me. 17 MS. ANNA PERSCHY: No. I appreciate 18 that. 19 COMMISSIONER SIDNEY LINDEN: All right. 20 MS. ANNA PERSCHY: I appreciate that. 21 But it will be in a moment, sir. 22 23 CONTINUED BY MS. ANNA PERSCHY: 24 Q: Sir, I can't help but notice that the 25 very first thing that you conveyed to Inspector Carson
2721 regarding your attendance at the IMC meeting was not with 2 respect to the status of the injunction but with respect 3 to Ms. Hutton's physical appearance. 4 And that the second point that you 5 conveyed to him was that she was, quote: "Very much 6 empowered," to use your words. I take it you recall that 7 those were the first two (2) things that you indicated to 8 Inspector Carson when you called him? 9 A: I do. 10 Q: Now, I take it that dealing with a 11 woman in a position of authority, that that's something 12 that -- that's still novel enough, that it was the first 13 piece of information that you conveyed to Inspector 14 Carson? 15 A: No. 16 Q: Well, I'll suggest that you've never 17 used the phrase "very much empowered" to describe a man; 18 right? 19 MS. SUSAN VELLA: Wait a minute. 20 COMMISSIONER SIDNEY LINDEN: I'm not 21 sure -- 22 MS. SUSAN VELLA: I -- I don't know how 23 this advances this Inquiry -- 24 COMMISSIONER SIDNEY LINDEN: Neither do 25 I.
2731 MS. SUSAN VELLA: -- one bit. 2 MS. ANNA PERSCHY: Commissioner -- 3 COMMISSIONER SIDNEY LINDEN: Perhaps you 4 would explain how this -- 5 MS. ANNA PERSCHY: I'm absolutely -- I 6 would not be going down this unless I thought it was 7 relevant. 8 This witness gave evidence as to his 9 impressions of others at this Interministerial Committee 10 meeting, the two (2) meetings, and specifically with 11 respect to Ms. Hutton. 12 He didn't just give evidence as to what he 13 recalled was actually said, but he gave opinions 14 regarding Ms. Hutton's demeanour, "she was cocky"; her 15 views; her reactions to what he had said, et cetera, and 16 you have to consider all of the evidence and what weight 17 to give to it and, in my respectful submission, sir, what 18 may have formed a basis for this witness' opinions is 19 relevant. 20 And actually, I don't intend to belabour 21 this but under the circumstances, this area of 22 questioning is relevant and proper. I'd also point out 23 that this witness shared his opinions with others, 24 including the incident commander in real time. 25 For that reason, I'd suggest it's relevant
2741 as well. 2 COMMISSIONER SIDNEY LINDEN: How much 3 longer do you think you're going to be? 4 MS. ANNA PERSCHY: On this particular 5 point? Very brief. 6 COMMISSIONER SIDNEY LINDEN: In general? 7 MS. ANNA PERSCHY: In general? 8 COMMISSIONER SIDNEY LINDEN: You 9 indicated you might be two (2) hours before you began. 10 You're approaching at that time line. 11 Not quite, but -- 12 MS. ANNA PERSCHY: Not quite. 13 COMMISSIONER SIDNEY LINDEN: -- 14 approaching it. I'm just curious to know how long you 15 think you might be. 16 MS. ANNA PERSCHY: I will probably be -- 17 when did I start? 18 COMMISSIONER SIDNEY LINDEN: Just after 19 3:00. 20 MS. ANNA PERSCHY: Just after 3:00. I 21 won't -- unless we -- we sit for at least another half an 22 hour, I'm not going to finish today. 23 But if I just finish this point, it may be 24 a convenient time for us to break right after this point. 25 COMMISSIONER SIDNEY LINDEN: Well, I'm
2751 not sure I want a break. I may want to finish your 2 evidence -- your questions -- 3 MS. ANNA PERSCHY: I'm in your hands, 4 Commissioner. 5 COMMISSIONER SIDNEY LINDEN: -- today. 6 MS. ANNA PERSCHY: I'm happy to continue 7 if -- 8 COMMISSIONER SIDNEY LINDEN: But you're 9 just about to finish the point -- 10 MS. ANNA PERSCHY: -- that's what you'd 11 like me to do. 12 COMMISSIONER SIDNEY LINDEN: -- that 13 you're making now? The point -- 14 MS. ANNA PERSCHY: Yes, I'll -- 15 COMMISSIONER SIDNEY LINDEN: -- that 16 you're making -- 17 MS. ANNA PERSCHY: I'll continue with 18 this point. 19 COMMISSIONER SIDNEY LINDEN: But you're 20 just about finished the point that you're about to make? 21 MS. ANNA PERSCHY: This particular point, 22 yes. I'll be very brief on this particular point. 23 COMMISSIONER SIDNEY LINDEN: Oh, all 24 right. 25
2761 CONTINUED BY MS. ANNA PERSCHY: 2 Q: I suggest that the fact that a 3 younger woman, speaking on behalf of the Premier's 4 office, the most powerful office within the government, 5 the fact that it was a younger woman, that took you aback 6 a little bit and I'm suggesting that it may -- it may 7 have been a factor in affecting your impression of her 8 and of what she said. 9 A: That's not correct. 10 COMMISSIONER SIDNEY LINDEN: Well, it's a 11 fair question, he gave you an answer. I think you should 12 move on. 13 MS. ANNA PERSCHY: Absolutely. 14 15 CONTINUED BY MS. ANNA PERSCHY: 16 Q: The fact is, sir, you'd never met Ms. 17 Hutton before the IMC meeting on September 5th? 18 A: Correct. 19 Q: And other than the fact that she was 20 a representative of the Premier's office, you didn't know 21 what her specific role was in the Premier's office? 22 A: No, I did not. 23 Q: And you didn't know what her 24 experience was? 25 A: No, I did not.
2771 Q: I'm going to turn now, sir, to the 2 meeting of the Interministerial Committee on September 3 6th. 4 COMMISSIONER SIDNEY LINDEN: And you 5 estimate that you will be finished within a half hour or 6 approximately half hour? 7 MS. ANNA PERSCHY: Yes, I will make my 8 efforts to do that. 9 COMMISSIONER SIDNEY LINDEN: Well, I 10 don't want to cut you short. I would like to give you an 11 opportunity to finish, but -- 12 MS. ANNA PERSCHY: Yeah, no, I'm just -- 13 COMMISSIONER SIDNEY LINDEN: -- we 14 normally quit at half past 4:00 when we start at nine 15 o'clock -- 16 MS. ANNA PERSCHY: You know, I appreciate 17 that -- 18 COMMISSIONER SIDNEY LINDEN: -- in the 19 morning -- 20 MS. ANNA PERSCHY: -- when -- 21 COMMISSIONER SIDNEY LINDEN: Are you all 22 right, or would you like to adjourn now for the day and 23 finish tomorrow? 24 THE WITNESS: No, I'll certainly go on. 25 I'm in your hands, your Honour.
2781 COMMISSIONER SIDNEY LINDEN: Well -- 2 MS. ANNA PERSCHY: I'm more than -- I'm 3 about, I'd say, more than two-thirds (2/3) of the way 4 through, but I still have some ways to go. 5 COMMISSIONER SIDNEY LINDEN: Well, what I 6 don't want to do is carry on and get to 5:15 and have you 7 say that you still have a lot more to go and not finish. 8 So if there's a chance that you can finish 9 today, within a half hour or so, then I think we should 10 finish. 11 MS. ANNA PERSCHY: Well, there's a 12 chance, but I can't assure you that it will only take me 13 half an hour. 14 COMMISSIONER SIDNEY LINDEN: The 15 indication I'm getting from all Counsel is that they've 16 had enough for today. 17 MS. ANNA PERSCHY: Fair enough. 18 MR. MARK SANDLER: You know what I'm 19 going to say before I say it. 20 COMMISSIONER SIDNEY LINDEN: No, I'm not 21 sure. 22 MR. MARK SANDLER: The witness, as was 23 Deputy Commissioner Carson, always prepared to be 24 obliging to the Commission and I know that you're 25 anxious, and he's anxious to finish his evidence as
2791 quickly as possible -- 2 COMMISSIONER SIDNEY LINDEN: You -- 3 MR. MARK SANDLER: -- but he's got 9:00 4 to possible five o'clock days and -- and this is yet 5 another day and I -- 6 COMMISSIONER SIDNEY LINDEN: Your 7 instinct is this would be a good point to break for the 8 day? 9 MR. MARK SANDLER: Exactly right. 10 MS. ANNA PERSCHY: I'm in your hands, 11 Commissioner. 12 COMMISSIONER SIDNEY LINDEN: I'm going to 13 take your advice and let's adjourn now. It's a quarter 14 to 5:00 and we'll reconvene tomorrow morning at nine 15 o'clock. 16 MS. ANNA PERSCHY: Very good, sir. 17 COMMISSIONER SIDNEY LINDEN: Thank you 18 very much. 19 THE REGISTRAR: This public Inquiry is 20 adjourned until tomorrow, Thursday July 14th, at 9:00 21 a.m. 22 23 --- Upon adjourning at 4:46 p.m. 24 25
2801 2 Certified Correct 3 4 5 6 7 8 ________________________ 9 Wendy Warnock 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25