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 14th, 2005 25
21 Appearances 2 Derry Millar ) Commission Counsel 3 Susan Vella ) 4 Donald Worme, Q. C ) 5 Katherine Hensel ) (np) 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 Verna George ) Student-at-law 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 Dave Jacklin ) 15 Trevor Hinnegan ) 16 17 Mark Sandler ) Ontario Provincial 18 Andrea Tuck-Jackson ) Ontario Provincial Police 19 Leslie Kaufman ) (np) 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 ) 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 ) (np) Christopher Hodgson 17 Craig Mills ) (np) 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 List of Exhibits 4 5 6 RONALD EVAN FOX, Resumed 7 8 Continued Cross-Examination by Ms. Anna Perschy 7 9 Cross-Examination by Mr. Julian Falconer 54 10 11 Discussion 80 12 13 Continued Cross-Examination by Mr. Julian Falconer 123 14 15 16 17 18 Certificate of Transcript 224 19 20 21 22 23 24 25
61 LIST OF EXHIBITS 2 Exhibit No. Description Page No. 3 P-530 Document 6000379 Answers to 4 Undertakings to Civil Litigation 5 Pages 3147 to 3151 220 6 P-531 Document 6000379 Follow-up 7 Questions and Answers Re: George et 8 Al V. Harris et al. 221 9 P-532 Merrian Webster Dictionaries Definition 10 of "Liaison" 222 11 P-533 Merrian Webster Dictionary Definition 12 of "Hawk" 222 13 P-534 Document 1000918 Letter to Honourable 14 Charles Harnick, Attorney General from 15 Marcel Beaubien MPP RE: Residents of 16 Ipperwash Beach Tension with Kettle 17 and Stony Point Community 223 18 19 20 21 22 23 24 25
71 --- Upon commencing at 9:03 a.m. 2 3 THE REGISTRAR: This Public Inquiry is 4 now in session, the Honourable Mr. Justice Linden 5 presiding. Please be seated. 6 COMMISSIONER SIDNEY LINDEN: Good 7 morning, everyone. Ms. Perschy's still on. 8 MS. SUSAN VELLA: Good morning, 9 Commissioner. 10 COMMISSIONER SIDNEY LINDEN: Good 11 morning. 12 MS. SUSAN VELLA: Good morning, 13 Superintendent. 14 THE WITNESS: Good morning, Ms. Vella. 15 16 RONALD EVAN FOX, Resumed: 17 18 MS. ANNA PERSCHY: Good morning, 19 Commissioner. 20 COMMISSIONER SIDNEY LINDEN: Good 21 morning. 22 23 CONTINUED CROSS-EXAMINATION BY MS. ANNA PERSCHY: 24 Q: Good morning, Mr. Fox. I wanted to 25 begin this morning by returning to a point that we
81 touched upon yesterday and that is the issue of the goal 2 of the Interministerial Committee in dealing with 3 Aboriginal emergencies. 4 You had testified that the goal in dealing 5 with blockades or occupations was, first of all, 6 obviously to prevent them from occurring or, if that 7 wasn't possible, to bring them to an end as quickly and 8 as safely as possible. 9 Do you recall giving that testimony, sir? 10 A: Correct. 11 Q: You'd agree with me, sir, that one 12 (1) of the reasons for that goal of trying to bring such 13 situations to an end as quickly and safely as possible 14 is, in fact, public safety; is that right? 15 Would you agree with me? 16 A: That's correct. 17 Q: Because these sorts of situations are 18 inherently unpredictable. You don't necessarily know 19 what those involved may do; you certainly can't predict 20 how others may react, right? 21 A: With any certainty, that's correct. 22 Q: And, that's true for any type of 23 blockade or occupation, for example, truckers blocking a 24 highway; that could cause commuters to get upset, tempers 25 to flare, especially if the situation is allowed to
91 fester. 2 So, safety is one (1) of the concerns; 3 that's -- that's the rationale or one (1) of the 4 rationales for wanting to end these sorts of situations 5 quickly? 6 A: Correct. 7 Q: Now, you also testified previously 8 about how the Interministerial Committee involves 9 different Ministries, different perspectives, people with 10 different kinds of experience, right? 11 A: With different kinds of experience 12 and different responsibilities, yes. 13 Q: Of course. Now, I take it that you'd 14 agree with me that it would be important for members of 15 the Interministerial Committee, in considering the 16 possible Government responses to any situation, to ensure 17 that they'd fully understood the -- the other 18 perspectives, the other points that are being put on the 19 table, but are being raised, at a meeting? 20 A: Correct. 21 Q: Because it wouldn't be prudent to 22 make assumptions about what another person is saying, 23 right? 24 A: Correct. 25 Q: If I could have you turn to the
101 conversation -- the telephone conversation that you had 2 with John Carson on September 5th, this is the one that 3 we were looking at yesterday. And again, I have it as 4 part of P-444(a), Tab 16 -- 5 MS. SUSAN VELLA: And that's Tab 24, 6 Superintendent, I believe. 7 THE WITNESS: Thank you. 8 MS. ANNA PERSCHY: Thank you, Ms. Vella. 9 10 CONTINUED BY MS. ANNA PERSCHY: 11 Q: And if I could ask you to turn to 12 page 121 of that transcript. Oh, there's no page 13 numbers? I'm sorry. 14 It's -- do you have -- is the copy that 15 you have with typewritten stuff on both pages? 16 A: Mine's pages 1 through 9. 17 Q: One (1) through nine (9). 18 MS. SUSAN VELLA: Just indicate the 19 passage and I'll -- 20 MS. ANNA PERSCHY: Okay. 21 MS. SUSAN VELLA: -- find it. 22 MS. ANNA PERSCHY: It's the passage that 23 is discussing the conversation about the effecting of 24 arrests. 25 At the top of the page:
111 "Okay, yeah. Oh, sorry." 2 And then down the page: 3 "Now it's a matter of effecting 4 arrests." 5 I have it as about four (4) pages in. 6 MS. SUSAN VELLA: Yes, I believe that is 7 at about page 5, Superintendent. 8 THE WITNESS: Thank you. 9 10 CONTINUED BY MS. ANNA PERSCHY: 11 Q: Now in this -- in this conversation, 12 you were relaying to Inspector Carson part of your 13 conversation at the Interministerial Committee Meeting 14 that you'd attended, and your were relaying how you were 15 providing your policing perspective, and you said, 16 halfway down the page: 17 "I said that I'm told there's between 18 thirty-five (35) and forty (40) people 19 there, right, and I said that means 20 men, women and children. 21 Carson: That's right." 22 And then you say: 23 "So I thought I wouldn't have to 24 explain anymore." 25 And Inspector Carson says, "Yes".
121 And I -- I take it that at the meeting 2 when you were making that point, you didn't fully spell 3 out all of the insights that you had at that time. 4 In fact, I'm going to suggest to you that 5 all that happened was that other people at the 6 Interministerial Committee pushed you a little bit, 7 simply to get you to explain, to fully articulate the -- 8 concerns that you had, based on some of the experience 9 that you had; isn't that right? 10 A: I'm familiar with the conversation, 11 but I'm having difficulty finding it from the Tab here, 12 and I would like to read it before I respond. 13 14 (BRIEF PAUSE) 15 16 A: I have it. 17 Q: So, it's the passage, as I said, that 18 -- that I've just referred to, and -- and I was 19 suggesting to your that -- that at the Committee Meeting, 20 when you were providing your policing perspective, you 21 started to make a point, and then as you indicated in 22 your conversation with Inspector Carson, you assumed that 23 you didn't have to explain anymore. 24 And that in point of fact, all that 25 happened at that meeting was that you were asked to more
131 fully articulate some of your insights based on your 2 perspective, based on your experience. 3 Isn't that all that happened? 4 A: I respond that when I provided the 5 information I thought that there was no need for further 6 explanation. When I identified that there were men, 7 women and children there, that would trigger, I would 8 think, most people to be on a higher -- to respond with a 9 higher level of concern, particularly with -- with 10 children there. 11 Q: I appreciate that. And all I'm 12 suggesting to you is that it would be prudent for members 13 on that Committee to ensure that they fully understand 14 the concerns that you would think of given that you were 15 a person with some policing experience and -- and you 16 might have a more fully developed sense of all of the 17 possible concerns that might arise in that sort of 18 situation? 19 A: It's certainly possible. I -- 20 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 21 Sandler...? 22 MR. MARK SANDLER: I must confess I don't 23 understand the question. And I think there's a -- 24 COMMISSIONER SIDNEY LINDEN: I'm not sure 25 I did either.
141 MR. MARK SANDLER: -- there's a mix of 2 submissions and -- and question and characterizations and 3 I'm -- I'm not suggesting that no questions in the area 4 can be asked -- 5 COMMISSIONER SIDNEY LINDEN: Yes. 6 MR. MARK SANDLER: -- but I didn't 7 understand the question, with great respect. 8 COMMISSIONER SIDNEY LINDEN: Do you want 9 to try to phrase it again? 10 MS. ANNA PERSCHY: Absolutely. 11 12 CONTINUED BY MS. ANNA PERSCHY: 13 Q: And I think you -- you've made the 14 point already, sir, you indicated, I think just a moment 15 ago, that in relaying your policing perspective, you 16 started to make the comment with respect to the fact that 17 there was information that there were men, women and 18 children present and you stopped there. 19 And, as you indicated to Inspector Carson, 20 you simply assumed that you wouldn't have to explain 21 anymore; and you've indicated that that -- that's your 22 recollection of what happened up to that point? 23 A: Correct. 24 Q: And I'm simply suggesting to you that 25 it's prudent to -- for members on the Committee, dealing
151 with an important issue, to ensure that they have the 2 benefit of a full understanding, a complete 3 understanding, of any concerns that you may have with 4 respect to any of the options that were on the table; 5 that would be prudent, would it not? 6 A: It would be prudent. My belief was 7 that what I was indicating at the time would be a matter 8 of common knowledge and I would think common sense for 9 anyone who was present at that Committee. 10 Q: I appreciate that, sir. I'm just 11 suggesting that it still would be prudent to ensure that 12 one -- that -- that one is not making assumptions in that 13 regard? 14 A: I -- I don't believe I left it at the 15 assumption. As I've indicated in the transcript 16 telephone recording with Inspector Carson, I did go on to 17 explain what my concerns were. 18 Q: Yes, you did. And you did that 19 because you were prompted to do so, because, as you've 20 indicated to Inspector Carson, you initially made one (1) 21 point and then you thought you didn't need to explain 22 anymore? 23 A: That's correct. 24 Q: Thank you. 25 Now, I'd like to go through a couple of
161 the more detailed sets of notes from the Interministerial 2 Committee meeting on the 6th. And, in order to do that, 3 I'm going to be making reference to the notes of Ms. 4 Hipfner. 5 And I understand that those are in the 6 brief of Commission Counsel, at Tab 30, and I believe 7 it's Document Inquiry -- Inquiry Document number 1011799 8 and also to the notes of -- what we anticipate will be 9 identified as the notes of Julie Jai, which are in Mr. 10 Downard's brief, at Tab 41. And for the benefit of My 11 Colleagues, that's Inquiry Document Number 1012579. 12 13 (BRIEF PAUSE) 14 15 Q: And if you could turn first to Ms. 16 Jai's notes, the first page is entitled, Agenda. And at 17 the bottom there's a notation, AG Direction. 18 A: Yes. 19 Q: And there's some notations, 20 something's crossed out, and then: 21 "Public safety key. We will apply for 22 civil injunction ASAP, will leave C- 23 Code charges up to police discretion as 24 a law enforcement public safety 25 matter."
171 And then there's a line around all of 2 those and there's the -- the comment: 3 "Agreed." 4 Now, do you know if -- well, let me put it 5 this way. Did you attend a meeting with Ms. Jai in 6 advance of the Interministerial Committee meeting? 7 A: No, I did not. 8 Q: Now if you could turn to the second 9 page, sir, the second page indicates: 10 "Ipperwash Emergency Committee meeting, 11 updates re the Park." 12 And then your name appears and there's 13 some references there to the interim spokesman being 14 appointed, et cetera. 15 "Meeting between OPP and group at noon 16 [a quote] "Park is their land and there 17 is a burial site there." [unquote] 18 "Thirty-five (35) to forty (40) on 19 site." 20 Et cetera. You see those notations? 21 "Chief Tom Bressette doesn't support 22 occup -- three (3) warrants for arrest 23 re minor damage and fire on road last 24 night, after police responded bottles 25 and stones hurled at them, Army Camp."
181 Do you see those notations? 2 A: I do. 3 Q: Now, I take it that you were 4 providing an update regarding the events of the previous 5 night, the fire on the road, the picnic tables incident, 6 you've testified to that; right? 7 A: Yes. 8 Q: And that's the information that you 9 were providing to the Interministerial Committee at the 10 outset of the meeting? 11 A: Yes. 12 Q: Now, you've testified that as of the 13 morning of the 6th, your sense, again from your policing 14 perspective, was that the situation was escalating, it 15 was getting worse. 16 I take it that you would have also 17 communicated that sense to the Committee at the meeting? 18 A: Yes, that would be obvious by the 19 report that I made. 20 Q: Now, just below that there's a 21 reference to the meeting at noon, and then there's a 22 comment: 23 "Premier doesn't want anyone involved 24 in discussions, other than OPP and 25 possible OM&R, (doesn't want Chief or
191 others involved) Doesn't want to get 2 into negotiations." 3 MS. SUSAN VELLA: Commissioner, I'm 4 rising because I have a concern with respect to the way 5 this cross-examination is continuing today. 6 The purpose of Superintendent Fox's 7 evidence is not to interpret notes and not to tediously 8 go through and read into the record the notes of someone 9 else, these aren't his notes. If there's a question to 10 be asked, perhaps the question can be asked. 11 But by simply reading these notes into the 12 record, and asking the Superintendent to confirm the 13 information, which he's already confirmed he gave in- 14 chief, in my respectful submission is not a helpful way 15 to proceed with this cross-examination. 16 MS. ANNA PERSCHY: I'm happy not to refer 17 in any detail to the notes, I'm simply trying to give the 18 Inspector an opportunity to look at the notes and I do 19 have a question. What I'm trying to do is establish the 20 flow of these meetings and to use these notes in an 21 attempt to assist the witness in his recollection. I 22 hadn't actually gotten to a point -- 23 COMMISSIONER SIDNEY LINDEN: Well, I -- 24 MS. ANNA PERSCHY: -- and I'd like to 25 object, Commissioner, to the objection.
201 There have been a number of objections to 2 this point to my cross-examination. I'm trying, as I 3 said, to -- to establish a flow of these discussions. 4 This witness gave evidence with respect to opinions and 5 conclusions and overall impressions with respect to this 6 meeting and I'm simply trying to get at the foundation 7 for some of those options -- some -- some of those 8 opinions -- and these are issues that are obviously of 9 great interest to my Client and I need some latitude in 10 my cross-examination in order to -- in order to be able 11 to fully explore all of this. 12 COMMISSIONER SIDNEY LINDEN: You've been 13 given some latitude, but I think it's important that you 14 ask questions and -- 15 MS. ANNA PERSCHY: And I will do that. 16 COMMISSIONER SIDNEY LINDEN: Some of the 17 background to the question has been quite extensive and, 18 perhaps, not as helpful as you may think. So, I think if 19 you get to the question, we'll move along. 20 MS. ANNA PERSCHY: I will do that, sir. 21 COMMISSIONER SIDNEY LINDEN: I mean, I 22 understand there has to be some context for a question, 23 but I urge you to get to the question. 24 MS. ANNA PERSCHY: And I can do that, 25 sir.
211 2 CONTINUED BY MS. ANNA PERSCHY: 3 Q: Now, you testified that this concept 4 was communicated by Ms. Jai at the meeting, but if I can 5 refer you to Ms. Hipfner's notes, you'll see that she's 6 referenced it as being a comment made by Ms. Hutton. 7 She -- in her notes, she has the reference 8 here, update, and then, "Hutton" and then a description 9 of essentially what I'd suggest is -- is -- is the same 10 comment and my -- my question is: 11 Would you agree that this comment, may in 12 fact, have been made by Ms. Hutton? 13 A: I'm having a little difficulty 14 reading Ms. Hipfner's notes. 15 Q: All right. Let me see if I can 16 assist you. 17 I suggest that the notes indicate: 18 "Hutton: Premier is firm that at no 19 time should anybody but OPP, MNR be 20 involved in the discussions despite any 21 offers that might be made by [I'm not 22 quite sure what the next word is] and 23 then chiefs --" 24 MS. SUSAN VELLA: Third parties -- 25 MS. ANNA PERSCHY: Third parties --
221 MS. SUSAN VELLA: -- bracket chiefs. 2 MS. ANNA PERSCHY: "Chief, et cetera, 3 because get into negotiations and we 4 don't want that." 5 6 CONTINUED BY MS. ANNA PERSCHY: 7 Q: And, that -- that's a similar 8 notation to the one that we've just looked at with 9 respect to Ms. Jai and -- and in this notation, it's 10 attributed to Ms. Hutton. 11 And my question simply is, sir, do you 12 recall if this comment does assist you in recalling that 13 this comment may have been made by Ms. Hutton? 14 A: Yes, I do. 15 Q: Now, you've testified that this 16 approach was consistent with the mandate of the 17 Interministerial Committee to open up some lines of 18 communication to assist in ending the blockade, but not 19 having any negotiations with regards to substantive 20 issues until the blockade or occupation ended? 21 A: I testified to that affect, yes. 22 Q: And you understand that the rationale 23 is to discourage anyone from engaging in occupations or 24 blockades? 25 A: Correct.
231 Q: Now, given that approach, it would 2 make sense not to involve others because that might cause 3 a misperception with respect to what the discussions 4 might be about? 5 A: I would disagree with that. 6 Q: All right. 7 8 (BRIEF PAUSE) 9 10 Q: If you can turn, then, to Ms. Jai's 11 notes... 12 13 (BRIEF PAUSE) 14 15 Q: You'll see that there's a reference 16 to MNR indicating that they view this as a police issue. 17 Just below the passage that we were looking at 18 previously. 19 "MNR now views this as a police issue." 20 A: Yes. 21 Q: Do you see that? And if you could 22 turn to Tab 31 of Commission Counsel's documents, it's 23 Inquiry document number 2003794. 24 25 (BRIEF PAUSE)
241 2 Q: And, again, in those notations it 3 appears that there's a reference to your providing the 4 update on the second half of the first page, sorry. 5 If you could go a few pages in, I believe 6 that -- that, with respect to this document, it starts 7 with the Will say that his notes or what I anticipate the 8 evidence will be, but they're his notes, from the 9 September 6th IMC meeting start at page 4. 10 A: Yes. 11 Q: You see that? With the heading 12 "Contentious issues Committee, Ipperwash incident, 13 September 6th"? 14 A: Correct. 15 Q: Right. And if you go down on the 16 first page, halfway down there's a reference to the 17 update that we were just reviewing. 18 19 (BRIEF PAUSE) 20 21 Q: And then on the second page of the 22 notes, there's a reference to Deb Hutton: 23 "Premier - last night - OPP only, maybe 24 MNR out of Park only - nothing else." 25 And then:
251 "Peter - MNR view this now as an OPP 2 issue." 3 A: Correct. 4 Q: Do you see that? 5 6 (BRIEF PAUSE) 7 8 Q: Now, if you compare the reference in 9 Mr. Scott Patrick's notes to the one in Julie Jai's 10 notes, it appears that they're both references to the 11 same comment. 12 Now, you didn't take those notes but you 13 were at the meeting and I take it you don't recall two 14 (2) separate comments being made at that point in the 15 meeting? 16 A: At that juncture? 17 Q: Yes. 18 A: There was comment on one (1) -- one 19 (1) aspect and that would be the comments from Ms. 20 Hutton, yes. 21 Q: Right. And those are the comments 22 that we've just reviewed in terms of adopting an approach 23 consistent with the mandate of the IMC? 24 Open up some lines of communication, but 25 don't get into substantive negotiations?
261 A: Substantive negotiations, yes. 2 Q: Now, if you could turn to Eileen 3 Hipfner's notes... 4 A: I have it in front of me. 5 Q: And we're still on the second page of 6 those notes, and again, just to assist you in terms of 7 deciphering the handwriting, at the top of the page was 8 the comment that we were reviewing a moment ago and then 9 lower down on the page, towards the bottom, on the left 10 hand side there's a reference to Peter Sturdy and several 11 points. 12 "Heavy equipment work being done in the 13 Park. Get more info with aerial 14 surveillance. Park buildings have been 15 broken into are being used. MNR staff 16 being peppered with calls from locals 17 concerned, fear, anger, ground swell of 18 anxiety concern." 19 And then the point: 20 "Somebody heard automatic gunfire." 21 And just below that it states: 22 "Hutton: And can we confirm that?" 23 Now, do you recall -- you've testified 24 that there -- that there were reports, there was a 25 comment made by MNR with respect to -- to the report of
271 automatic gunfire. Do you recall Ms. Hutton asking if 2 that information could be confirmed? 3 A: I don't recall that she did. I'm not 4 suggesting that she didn't. 5 Q: So, you're disagreeing with the 6 suggestion from these notes then, that she didn't request 7 the confirmation? 8 A: No, I -- 9 COMMISSIONER SIDNEY LINDEN: I think -- 10 MS. SUSAN VELLA: I think that's entirely 11 unfair. He -- 12 COMMISSIONER SIDNEY LINDEN: And he 13 didn't say that. 14 MS. SUSAN VELLA: The Superintendent said 15 he -- 16 COMMISSIONER SIDNEY LINDEN: He didn't 17 say that. 18 MS. SUSAN VELLA: -- didn't recall. 19 COMMISSIONER SIDNEY LINDEN: Yeah. 20 That's fine. 21 22 CONTINUED BY MS. ANNA PERSCHY: 23 Q: Do you recall if anyone asked for 24 confirmation at this point? 25 A: I -- I took it upon myself to confirm
281 that there were, and I've testified earlier that I left 2 the meeting and attempted to get that confirmation. 3 Your question was: Did I recall Ms. 4 Hutton making that request? 5 And, no, I don't remember her. I said I 6 qualify it by saying, but I'm not saying that she didn't. 7 Q: Fair enough. Sorry, I misunderstood 8 you on that point. 9 And you've testified that you went to 10 confirm this -- this report, and I take it you'd agree 11 with me that that's the prudent thing to do, to want to 12 confirm the report? 13 A: Correct. 14 Q: On the next page of the notes there's 15 then a reference to directions from various Ministries. 16 17 (BRIEF PAUSE) 18 19 Q: And if you turn, actually, to Ms. 20 Jai's notes on this point... 21 22 (BRIEF PAUSE) 23 24 Q: It's also apparent in Eileen 25 Hipfner's notes, but, that there's a discussion about who
291 should be the spokesperson on behalf of the Government, 2 and some references to Jeff Bangs, indicating that their 3 Minister doesn't want to carry it and feels that OPP 4 should be the spokespeople, while there's a reference to 5 Peter Allen, expressing some sentiment that the 6 spokesperson should be local. 7 Do you recall some discussion about 8 spokespersons? 9 A: I do. 10 Q: And, the last point on that page, 11 right after the reference to Peter Allen, there's a note, 12 and again, I'll decipher the -- the handwriting: 13 "Deb, but we want to be seen as having 14 control over this - so Ministers can't 15 duck if scrummed - and Premier not 16 adverse to this being a Provincial 17 Government action." 18 And if you turn to Ms. Hipfner's notes... 19 20 (BRIEF PAUSE) 21 22 Q: On the -- page 4 of her notes, about 23 a third of the way up the page, there's the reference: 24 "Hutton: Premier's office wants to be 25 seen as having control, moving
301 expeditiously. As a matter of 2 principle, generally agree but in this 3 situation, not adverse to this -- to 4 having this be seen as a political 5 issue." 6 And just to put some context around that, 7 the -- the previous notation above that is: 8 "Allen: One of the things this 9 Committee has done successfully in the 10 past is to keep issues local, NB, but 11 spokesperson is local. Before news 12 release go out, this Committee has 13 vetted them to ensure consistency 14 across the piece." 15 And do you recall such a comment being 16 made by Ms. Hutton at this point in time in -- in the 17 discussion? 18 A: I do. 19 Q: And I suggest that, viewed in 20 context, this is a comment about political optics, 21 communication, who's going to be seen as dealing with 22 this situation; that's your recollection of what was 23 being discussed, right, at this point in time? 24 A: My recollection of what was being 25 discussed was that it was an issue of control and who
311 would be seen to be in control. Whether that's political 2 or not, I can't comment -- 3 Q: But it -- it's a question of -- 4 MS. SUSAN VELLA: I'm sorry. Let -- it 5 is appropriate to allow the witness to finish his answer. 6 7 CONTINUED BY MS. ANNA PERSCHY: 8 Q: I'm sorry, sir. I didn't realize 9 that you hadn't finished. Please proceed. 10 A: The two (2) passages you referred me 11 to, a quote from Mr. Allen as written in Ms. Hipfner's 12 notes and a quote from Ms. Hutton as written in Ms. 13 Hipfner's notes, would seem to be at odds one with the 14 other, and I do recall that as part of the discussion. 15 It's difficult, and it was difficult for 16 me to understand an issue of local control when it would 17 seem that it was going to be centralized with respect to 18 positioning. It didn't make sense to me. 19 Q: Is it your recollection then that 20 there was a debate going on at -- at this meeting, and I 21 would suggest to you, in fact, that the debate was with 22 respect to where the spokesperson was going to be; that - 23 - that's the debate at this point? 24 A: That's one (1) of the debates, yes. 25 Q: And -- and I would suggest that that
321 was an issue that the political staffers at the meeting 2 had responsibility for and had to consider at the 3 meeting, the -- the issue of how and -- and who on behalf 4 of the Government was going to be communicating the 5 Government's position, correct? 6 That would be your expectation, at least, 7 with respect to the political staffers -- 8 A: My expectation -- 9 Q: -- sorry -- responsibility? 10 A: My expectation would be the 11 responsibilities of those who had involvement, and I 12 would example it this way: if it's with respect to the 13 activities that may be consistent with public safety and 14 law enforcement on the ground, it would fall to the local 15 police; in this case, the Ontario Provincial Police. 16 With respect to positioning for the 17 Government, that's something else entirely. 18 Q: Right. And -- and with respect to 19 the issue of -- of communicating the Government's 20 position and the issues surrounding that, the 21 communications issues surrounding that, that wouldn't be 22 your area of expertise, or in fact a responsibility that 23 you would have had? 24 A: No. I'm not a communications person. 25 Q: If you look again, sir, at Ms. Jai's
331 notes, there appears to be a recap of -- of some of the 2 goals from yesterday on the next page, "We are seeking -- 3 "this is page 3, "the injunction." 4 I'll just read it out to assist you with 5 the handwriting: 6 "We are seeking the injunction of the 7 matters within police discretion - OPP, 8 our goal is to get people out ASAP." 9 And then there's a reference to Tim and to 10 say: 11 "Ministers can say instructions have 12 been given to AG to seek injunction 13 ASAP." 14 Et cetera. This appears to be a reference 15 down at the bottom to: 16 "Other variable, getting our material 17 ready." 18 That's the fourth point, do you see that, 19 sir? 20 A: Who is the -- the quote attributed to 21 please? 22 Q: It's -- it's attributed to Tim, and 23 then -- and then the last point is: 24 "Best case Friday in Court." 25 And -- and my suggestion, sir, is that
341 that might have been Tim McCabe. Do you recall Tim 2 McCabe making such a comment at this point in the 3 meeting? He's talking about preparing the materials for 4 the affidavit for the injunction? 5 A: I recall I testified that Tim McCabe 6 was the responsible counsel for obtaining the injunction. 7 And, yes, I do recall discussions with respect to what he 8 felt were reasonable time lines to put the material 9 together. 10 Q: And -- and he indicates, according to 11 these notes: 12 "Best case Friday in Court." 13 Do you recall him making such a comment? 14 A: Generally I do, yes. 15 Q: And then below that, sir, there's a 16 notation: 17 "Deb - Premier - feels the longer they 18 occupy it, the more support they'll get 19 - he wants them out in a day or two 20 (2)." 21 And there's a similar point in Ms. 22 Hipfner's notes. 23 24 (BRIEF PAUSE) 25
351 Q: At the top of -- the top of page 5, 2 the second bullet, or the first bullet says: 3 "Leif has been working on the affidavit 4 since yesterday - best case scenario 5 Friday." 6 And then: 7 "Hutton. Premier's view that the 8 longer occupiers are there, the greater 9 the opportunity they have to garner 10 support, arm selves." 11 Now, do you recall Ms. Hutton making some 12 comment to this effect at this point in the meeting? 13 A: I do, with the added piece that 14 doesn't appear in Ms. Hipfner's articulation within her 15 notes. The Premier wanted the matter cleared in two (2) 16 days. I believe that's reflected in Ms. Jai's notes. 17 Q: That's -- that's reflected in -- in 18 Ms. Jai's notes. And the first part of a comment about 19 the longer they occupy, the more support they'll get. 20 This echos a comment that you had made the day before 21 from your policing perspective, about the longer the 22 occupiers staying, the more difficult it becomes to 23 remove them. 24 Didn't -- didn't you make that -- that 25 point the day before the meeting?
361 A: I did, with the qualification that as 2 people are in any spot, the more familiar they become 3 with the surroundings they find themselves in, the more 4 comfortable they become, ergo, it would make it more 5 difficult. 6 Q: And I'd suggest that viewed in 7 context, Ms. Hutton's -- Ms. Hutton is -- is simply 8 conveying some sense of urgency in response to the 9 comment that the best case scenario for applying for the 10 injunction was going to be Friday -- 11 A: I believe -- 12 Q: -- would -- would you agree with me? 13 A: -- I believe there was a sense of 14 urgency conveyed by Ms. Hutton, yes. 15 Q: And you don't have any information 16 with respect to how long it -- it would take to prepare 17 materials when applying for an injunction of this nature? 18 A: That's out of my scope of 19 understanding. 20 Q: Fair enough. But I take it you know 21 that, in fact, the injunction proceeded the next morning, 22 you're -- you're aware of that? 23 A: I understand that, yes. 24 Q: So, presumably the -- do you have any 25 information with respect to whether or not the necessary
371 materials were then prepared in advance of that 2 injunction the next morning? 3 A: I do not, no. 4 Q: You don't? Fair enough. 5 COMMISSIONER SIDNEY LINDEN: When we 6 finished yesterday, you indicated you might be another 7 half (1/2) hour; it's now been three-quarters (3/4s). 8 There have been some objections to slow you down, but I'm 9 just wondering how close you are to finishing your cross- 10 examination? 11 MS. ANNA PERSCHY: Yeah. No. I went 12 back yesterday with the intent of trying to shorten 13 things up and I'm not sure I was successful in that. My 14 -- my estimate now would -- would be that in -- in 15 totality, I -- I might be about another hour and a 16 quarter or so. 17 COMMISSIONER SIDNEY LINDEN: You mean 18 from the beginning of the day? 19 MS. ANNA PERSCHY: From the beginning. 20 COMMISSIONER SIDNEY LINDEN: Thank you. 21 Carry on. 22 23 CONTINUED BY MS. ANNA PERSCHY: 24 Q: Now, I'd suggest that given the long- 25 stated policy of resolving blockades and occupations
381 quickly and safely, it wasn't unreasonable to want to 2 proceed with the injunction more quickly, given the 3 developments over night, right? 4 A: My -- my belief and my response in 5 that area would be that it is necessary to move as 6 quickly as one can, providing all other matters that 7 might be germane to how one proceeds are taken into 8 consideration. 9 Q: And we'd heard from Inspector Carson 10 that he was in favour of the application for an 11 injunction being brought before a judge quickly and you 12 had spoken to Inspector Carson on September 5th. 13 So, as of the time of this meeting, you 14 were aware of -- of his views; he was in favour of -- of 15 an emergent form of injunction -- moving quickly with 16 respect to the injunction? 17 A: I was. 18 Q: And then, if you can just return to 19 Ms. Jai's notes below the comment we were just reviewing, 20 there's a reference to: 21 "Tim - that suggests we should proceed 22 under code." 23 And, do you recall, sir, that it was Tim 24 McCabe who then suggests that proceeding under the 25 Criminal Code might be a quicker way to resolve the
391 situation? 2 A: No, I don't recall him saying it in 3 that fashion. What I do recall is that when Ms. Hutton 4 made the comment with respect to the two (2) days, I 5 believe Mr. McCabe was responding and saying that it 6 would not be likely that the necessary material could be 7 put together and it would suggest then that the way to 8 proceed would be under the Criminal Code. 9 Q: And so then, you -- there -- there's 10 an exploration of that possibility and you provide your 11 perspective on that? 12 A: My sense is Mr. McCabe was 13 questioning rather than making a statement. 14 Q: My -- my point simply is that then 15 it's at that point in the meeting that -- that you, then, 16 provide your perspective on that? 17 A: I provided comments at that time, 18 yes. 19 Q: And if you go to the next page, sir-- 20 MS. SUSAN VELLA: Sorry. Isn't it 21 appropriate to allow the Superintendent to say what his 22 comments were? I think they're quite germane to this 23 part of the... 24 COMMISSIONER SIDNEY LINDEN: Well... 25 MS. ANNA PERSCHY: Well, it's cross-
401 examination, sir -- 2 COMMISSIONER SIDNEY LINDEN: Yes, I 3 think -- 4 MS. ANNA PERSCHY: -- and -- and that has 5 been covered and -- and, frankly, Commission Council has 6 been objecting throughout that I'm revisiting the -- the 7 -- the same testimony. 8 COMMISSIONER SIDNEY LINDEN: All right. 9 Did you want to say what your comments were? You didn't 10 seem to want to go on. If you did, then... 11 THE WITNESS: I wasn't asked for my 12 comments, sir. 13 COMMISSIONER SIDNEY LINDEN: That's fine. 14 That's fine. Carry on. You don't have to refer to the 15 notes to ask a question. I mean, I think that's what's 16 taking some time. 17 MS. ANNA PERSCHY: No, no. I appreciate 18 that, Commissioner. 19 COMMISSIONER SIDNEY LINDEN: Unless he 20 doesn't recall it and then to -- 21 MS. ANNA PERSCHY: Absolutely. 22 COMMISSIONER SIDNEY LINDEN: -- refresh 23 his memory. 24 MS. ANNA PERSCHY: All I'm trying to do 25 given -- given the passage of time, is to refer to the
411 notes so we have the flow of the conversation. 2 COMMISSIONER SIDNEY LINDEN: Yes, well, I 3 understand what you're doing, but sometimes he recalls it 4 and you can just ask the question. 5 6 (BRIEF PAUSE) 7 8 CONTINUED BY MS. ANNA PERSCHY: 9 Q: If you could turn to page 4 of Julie 10 Jai's notes, half way down the page there's reference to 11 Peter Sturdy states: 12 "Has confirmed reports of gunfire. 13 He's concerned about safety of his 14 staff who are accompanying the OPP." 15 COMMISSIONER SIDNEY LINDEN: Which page 16 is that? 17 MS. ANNA PERSCHY: Sorry, that's page 4. 18 COMMISSIONER SIDNEY LINDEN: There's two 19 (2) numbers on the pages. 20 MS. ANNA PERSCHY: The number's on the 21 page at the top of the page. 22 COMMISSIONER SIDNEY LINDEN: In the 23 middle of the page 4? 24 MS. ANNA PERSCHY: Yes. 25 COMMISSIONER SIDNEY LINDEN: Because I've
421 number 6 on it, also. Is that the -- 2 MS. ANNA PERSCHY: Yeah, it's -- it's the 3 page which at the top has the notation 4 "given as much support as possible." 5 COMMISSIONER SIDNEY LINDEN: I've got it, 6 thank you. 7 8 (BRIEF PAUSE) 9 10 CONTINUED BY MS. ANNA PERSCHY: 11 Q: And, did you recall, sir, Peter 12 Sturdy confirming the reports of gunfire and expressing 13 some concern for the safety of his staff, at the meeting? 14 A: I do. 15 Q: And then just below that there's the 16 -- the notation: 17 "Agreed. We will seek injunction asap 18 Friday - Criminal Code charges within 19 police discretion. They are trying to 20 remove people. All agree goal is to 21 remove people asap." 22 And I take that the consensus, then, was 23 to proceed with an injunction as soon as possible and -- 24 and the whole issue of charges was left to the police's 25 discretion?
431 A: Correct. 2 Q: And on the next page, there's a 3 reference: 4 "Re: possible burial ground". 5 And the first dash, it says: 6 "Doesn't affect ownership - Cemeteries 7 Act. Makes it a requirement that 8 police coroner be notified if there is 9 a burial site discovered - register of 10 cemeteries would be notified - have it 11 investigated - could declare the site 12 to be an unapproved Ab. cemetery then 13 notice given to local band council and 14 negotiation occurs, re. disposition of 15 the remains - arbitration possible." 16 Now, do you recall being advised of this 17 at the meeting? 18 A: Yes. 19 Q: So the IMC looked into what would be 20 the province's obligations if there were a burial site 21 discovered? 22 A: Yes. 23 Q: And that issue was then reviewed, and 24 at this meeting, the IMC's advised that the possible 25 existence of a burial ground doesn't affect ownership and
441 below the point that I've just read out, there's the 2 notation: 3 "Tim: unlikely to affect injunction." 4 Do you recall being advised that it would 5 be unlikely to affect the injunction? 6 A: Unlikely to affect the application 7 for the junction -- injunction. I took Mr. McCabe in 8 saying that, that it wouldn't dissuade him, as legal 9 Counsel, to advise that it was prudent to apply for an 10 injunction. 11 I don't believe he was suggesting it may - 12 - would impact whatever the decision of the Court would 13 be. 14 Q: Fair enough. And then there's a 15 reference to Marcel Beaubien being the MPP in the area, 16 and trying to diffuse tensions. 17 And again, discussion of who could be 18 spokesperson. Do you recall a discussion then, at that 19 point, about who could be a local spokesperson to calm 20 the situation? 21 A: I don't recall it as a discussion 22 about a spokesperson. I do recall a discussion that was 23 raised about Mr. Beaubien's efforts in the area to, as 24 you've indicated, calm the tensions. 25 Q: If you could look at Tab 21 of Mr.
451 Downard's brief, please. 2 3 (BRIEF PAUSE) 4 5 Q: For the benefit of My Friends, it's 6 Inquiry Document 1009983 and this is a press release from 7 the local township from the previous day entitled "Reign 8 of Terror Continues." 9 Did you know about this press release on 10 September 6th? 11 A: Yes. 12 Q: And you understood then that some 13 people might feel strongly about the Provincial Park 14 being occupied by a group and that there was a denial of 15 -- of access to the Park as a result? 16 A: Yes. 17 Q: And the -- some of the incidents that 18 were occurring? And there's a statement from the mayor: 19 "I've heard rumours that people are 20 buying guns to protect themselves and 21 their families." 22 This is a statement in the press release: 23 "Surely, this is not a recipe for 24 peace, order and good government." 25 And -- and there was a concern, I take it,
461 at the IMC that day that there was at least the 2 possibility of -- of people taking matters into their own 3 hands? 4 A: I would say there was a genuine 5 concern with respect to the concerns and issues that were 6 being identified daily by the non-Native community, yes. 7 Q: And at the meeting, just after the -- 8 the reference to Marcel Beaubien in Julie Jai's notes, 9 there's a comment from David Moran, the second bullet: 10 "Get a list of who needs to be calmed 11 down. Dave Moran's office to 12 communicate with key person on this." 13 And the next page: 14 "Local spokesperson to be OPP. 15 Ministerial spokesperson, MNR doesn't 16 want it to be them." 17 Does that assist in your recollection that 18 the IMC was dealing with the issue of a spokesperson to 19 try and diffuse tensions? 20 A: It does. 21 Q: And the next comment in Ms. Julie 22 Jai's notes is: 23 "DEB: Feels MNR, as property owner, 24 can ask OPP to remove people. 25 SCOTT: You can ask them to remove them,
471 you can't insist or demand that they be 2 removed. 3 DEB: Has MNR asked OPP to remove them? 4 They could be formally requested to do 5 so. 6 - But how and when they do it is up to 7 them. 8 - Could have that as communication 9 message. 10 - MNR has formally asked that they 11 remove them." 12 Now, do you recall that comment being 13 made -- 14 A: I recall -- 15 Q: -- at that point? 16 A: -- those comments, yes. 17 Q: And I suggest, viewed in context, Ms. 18 Hutton was just confirming that MNR can ask OPP to remove 19 occupiers and -- and I think you testified to this, that 20 Scott Hutchinson had confirmed that you can ask, you 21 just can't demand it, and that Ms. Hutton had been asked 22 if that had been done and indicated that that could be 23 part of a communication message. 24 Does that assist in your recollection of 25 the comment and the context of that comment?
481 A: It assists me in the recollection of 2 those comments. 3 Q: And I take it you'd agree with me 4 that it would be prudent to communicate to the general 5 public a sense that the government is aware of the 6 situation and is managing it? 7 A: I don't believe that positioning it 8 in that fashion would suggest any level of confidence to 9 the public that the matter was being managed. It would 10 seem to me, and I spoke to this at the meeting, that it 11 would tend to put one Ministry against another arm of a 12 Ministry. 13 Q: I'm sorry, the last point you made? 14 A: That it would tend to put -- 15 Q: I didn't -- 16 A: -- one Ministry against the 17 operational arm of another Ministry. 18 Q: But the comment in this context is 19 with respect to communication messages? 20 A: Correct. 21 Q: And there are some further references 22 to communications at this meeting. And, in fact, if you 23 look down the page, the last point is: 24 "Deb, the Premier is also prepared to 25 speak on this."
491 Do you see that point, so -- 2 A: I do. 3 Q: -- do you recall then that the tail 4 end of this meeting then was a discussion with respect to 5 communication messages? 6 A: Yes. 7 Q: Now, I gather from your evidence that 8 on September 5th, you thought that Ms. Hutton and others 9 had taken a simplistic view of the situation, and that 10 this perception of yours arose from the discussion at the 11 Inter-Ministerial Committee, regarding the available 12 legal options; right? 13 A: Yes. 14 Q: Now, I anticipate that Ms. Hutton's 15 evidence will be that she had noted that in considering 16 options, the IMC had immediately focussed on 17 consideration of an injunction, and that she had 18 attempted to get you and some of the other participants 19 to one (1), identify any other possible options, and two 20 (2), to fully articulate your thinking and that of 21 others, regarding the relative merits of all the options 22 and any related concerns with them. 23 Now, I appreciate you may not have 24 realized that at the time, what Ms. Hutton's thought 25 process -- processes or motivations were, but is it
501 possible, sir, looking back now, that you may have 2 misperceived or misunderstood what Ms. Hutton was doing? 3 A: No. 4 Q: There's been unconfirmed rumours 5 regarding certain comments being made. I take it that no 6 one at the IMC meeting on September 6th or the 5th, for 7 that matter, stated: 8 "Get the F'ing Indians out of the Park, 9 even if you have to use guns to do it." 10 Or words to that affect? 11 A: I don't recall those words being used 12 at that meeting. 13 Q: Well, sir, I suggest that if such a 14 comment, words like that had been used, you would 15 remember that? 16 A: I would. 17 Q: And no one at the meeting said that 18 they loved guns; right? 19 A: No. 20 Q: In fact, I'd suggest that the members 21 of the Inter-Ministerial Committee were concerned about 22 reports of guns, reports of gunfire? 23 A: Yes. 24 Q: You never spoke to Ms. Hutton outside 25 of these two (2) meetings on September 5th and 6th;
511 right? 2 A: No. 3 Q: Ms. Hutton never asked you to convey 4 any direction to Inspector Carson, or anyone within the 5 OPP; right? 6 A: She did not. 7 Q: She didn't request that you 8 communicate any message, either to Inspector Carson or to 9 anyone at the OPP; right? 10 A: She did not. 11 Q: And you didn't even tell her that you 12 were going to contact the OPP; right? You didn't tell 13 her that you were going to contact Inspector Carson? 14 A: The only warning she would have that 15 I would contact the OPP is I prefaced all my comments 16 with respect to updates, that I received them from either 17 Inspector Carson or Superintendent Parkin, or Chief 18 Superintendent Coles. 19 Q: Right. But you didn't tell her that 20 you were going to call him and convey information to him, 21 regarding what had transpired at the IMC meeting? 22 A: I did not. 23 Q: Now you've testified that Ms. Hutton 24 wasn't present at the diningroom meeting; right? 25 A: Correct.
521 Q: I anticipate that Ms. Hutton's 2 evidence will be that she did attend that meeting. 3 Does that assist in your -- in your 4 recollection? 5 A: I don't recall her being there. 6 Q: And I anticipate that Ms. Hutton's 7 evidence with respect to that meeting is that it was a 8 meeting to brief the Premier and the Ministers and the 9 Deputy Ministers with respect to recommendations of the 10 Inter-Ministerial Committee, and that there were no 11 comments about a holocaust or anything along those lines. 12 Does that assist in your recollection with 13 respect to that meeting? 14 A: I was an invitee to the meeting. I 15 had no idea it was occurring, until I received a page to 16 attend. What transpired in its entirety prior to my 17 attendance, I can't speak to. 18 Q: Fair enough. Now, I understand that 19 the meeting on September 5th, 1995 was what, about three 20 (3) hours? 21 A: Approximately. 22 Q: Now you've testified that prior to 23 that meeting you've never met Ms. Hutton, you didn't know 24 what her role was within the Premier's Office, you didn't 25 know what her experience was, you didn't know why a
531 representative of the Premier's Office was at the Meeting 2 at all. 3 I suggest that you simply misinterpreted 4 both her demeanour and her comments and made a quick 5 decision about her that simply wasn't warranted. 6 A: With respect to knowing Ms. Hutton 7 before, no I did not. With respect to knowing what her 8 position or her function was in the Premier's Office, no 9 I did not. 10 With respect to making a snap decision in 11 terms of -- of what I observed and what my opinion then 12 became, was not a snap decision, it was over, as you've 13 indicated, approximately three (3) hours. 14 Q: But it was limited to the comments 15 that were made at that Meeting, which we've been 16 reviewing through these notes for the last couple of 17 days, right? 18 A: Correct. 19 Q: Fairly limited information. 20 A: Correct. 21 Q: Thank you. No further questions, 22 Commissioner. 23 COMMISSIONER SIDNEY LINDEN: Thank you. 24 We will take a break now. 25 THE REGISTRAR: This Inquiry will recess
541 for fifteen (15) minutes. 2 3 --- Upon recessing at 10:07 a.m. 4 --- Upon resuming at 10:29 a.m. 5 6 THE REGISTRAR: This Inquiry is now 7 resumed. Please be seated. 8 COMMISSIONER SIDNEY LINDEN: Good 9 morning, Mr. Falconer. 10 MR. JULIAN FALCONER: Good morning, Mr. 11 Commissioner. 12 13 CROSS-EXAMINATION BY MR. JULIAN FALCONER: 14 Q: Superintendent Fox, my name is Julian 15 Falconer and I represent the Aboriginal Legal Services of 16 Toronto. Good morning. 17 A: Good morning. 18 Q: Superintendent Fox, I've placed 19 before you a blue-coloured binder, which for Counsel's 20 purposes represents the -- the list of additional 21 documents that ALST sent out mid to late last week, that 22 it would be relying upon. There is a second Volume that 23 I will place -- have placed in front of you at the right 24 time, but I -- I want to start with that. 25 And I want to apologize in advance if --
551 if this is in any way stuttered, Mr. Commissioner, I've - 2 - I try to do the best with the paper, and Mr. Eyolfson 3 does a lot more work than I do, but sometimes we get it 4 wrong. 5 Your predecessor -- Superintendent Fox, 6 your predecessor was an Inspector Doug Scott; is that 7 correct? 8 A: Not my immediate predecessor, sir, it 9 was Superintendent Currie. 10 Q: All right. Prior to Currie, it was 11 Inspector Doug Scott; is that fair? 12 A: Inspector Scott, yes. 13 Q: All right. The reason I ask that is, 14 among other days, and this is just a reference for the 15 lawyers, May 10th, 2005, page 259: 16 "Now Deputy Commissioner Carson 17 testified that he was briefed about the 18 Interministerial Meetings by 19 Superintendent Wall (phonetic), who is 20 in contact with the Liaison, Doug 21 Scott." 22 Does that sound like the kind of procedure 23 that you would have expected to occur? 24 A: Superintendent Wall was at one point 25 in his career, assigned to the then First Nations and
561 Municipal Policing Branch, and I would anticipate that 2 may have been part of his role. 3 Q: Deputy Commissioner Carson testified 4 that in and around 1993 he would get -- he would get 5 calls, and he would be providing information to Inspector 6 Scott, and he was requesting daily updates to assist the 7 Blockade Committee Meetings; does that sound about right? 8 And that can be found on May 11th, 9 pages 67 through 69 and 75 through 77. Does that sound 10 about right, that would be in keeping with the 11 procedures? 12 A: I would believe that it would be, 13 yes, sir. 14 Q: On a number of occasions, but, and 15 again, I can give references to My Friends, Deputy 16 Commissioner Carson referred to the role of, basically, 17 your predecessor and essentially yourself as a Liaison 18 Officer, with the Solicitor General's Office and with the 19 Interministerial Committee. 20 Is that a fair description among others? 21 A: Among others, yes, sir. 22 Q: All right. And it's fair to say you 23 wore a number of hats. 24 A: Correct. 25 Q: And your hats tended, like many
571 people, to change, depending on the situation. 2 A: That's correct. 3 Q: And you could on one hand be 4 negotiating policing agreements, on behalf of the 5 Government of Ontario, in respect of tripartite First 6 Nations policing agreements and that would be an entirely 7 different role than, for example, being liaison officer 8 with an incident commander involving a serious incident; 9 correct? 10 A: Yes, it would. 11 Q: And you had both responsibilities? 12 A: I did. 13 Q: And I heard Mr. Downard's cross- 14 examination and, of course, he's very -- very effective 15 Counsel and he put it to you in -- in -- in some words, 16 Mr. Downard's waved at me, and I'll collect my payment 17 later, but in some ways -- in some ways he was critical 18 of you that you gave too much information to -- to 19 incident commander Carson. 20 Do you remember that cross-examination? 21 A: I do. 22 Q: And I need to understand something. 23 Would you agree with me that the idea of a liaison 24 officer, and I'm not being facetious, but it's going to 25 sound like it, the idea of a liaison officer is to
581 liaise? 2 A: Correct. 3 Q: Now, of course, it was Mr. Eyolfson 4 that did all the work, but we actually downloaded a 5 Webster's dictionary definition of "liaison", you'll bear 6 with me and tell me if it means the same thing to you 7 that it does to Webster's. 8 And you don't have to agree with this; I'm 9 just putting a proposition to you. 10 Webster dictionary defines "liaison" as 11 follows: 12 "Communication for establishing and 13 maintaining mutual understanding and 14 co-operation (as between parts of an 15 armed force); one that establishes and 16 maintains liaison." 17 Does that sound about right? 18 A: It does. 19 Q: The second definition that I pulled 20 on "liaison" came from Webster's on-line dictionary, and 21 we're going to leave out the first definition, quote: 22 "A usually secretive or illicit sexual 23 relationship." 24 That -- we're leaving that out. 25 I just had to be complete for the record,
591 Mr. Commissioner. 2 COMMISSIONER SIDNEY LINDEN: Thank you. 3 4 CONTINUED BY MR. JULIAN FALCONER: 5 Q: Number 2: 6 "A channel for communication between 7 groups." 8 Bracket -- oh, sorry, quote: 9 "'He provided a liaison with the 10 guerrillas.'". 11 Close quote. 12 So a channel for communication between 13 groups. Again, would that be consistent with the kinds 14 of definitions you would -- you would apply to "liaison"? 15 A: I would say that it is, while 16 differing somewhat from Webster's, I think what you've 17 articulated there is more contemporary. 18 Q: And so between the two (2) 19 definitions, the bottom line is you understood your job 20 to be a person who facilitated the flow of information 21 between two (2) bodies, right? 22 A: Correct. 23 Q: And the facilitation of the flow of 24 information between two (2) bodies in this case, was on 25 the one hand the Ontario Provincial Police from the
601 Commissioner down to the relevant management officer on 2 the one hand, and on the other hand the Ministry of the 3 Solicitor General, correct? 4 A: Correct. 5 Q: And so when somebody criticizes you 6 for saying you liaised too much, it seems a little bit 7 ironic, doesn't it? 8 A: Yes. 9 Q: Now did anybody, prior to you taking 10 your job, sit you down and say, here's what you can 11 liaise on, and here's what you can't liaise on? 12 Did anybody say that to you? 13 A: No, sir. 14 Q: You were expected to use commonsense 15 and your understanding of your duties as a police 16 officer, correct? 17 A: Along with good judgement, yes, sir. 18 Q: All right, and that's what I meant by 19 commonsense, but hopefully they're the same. 20 And in terms of process, though, you never 21 received any formal training about how a liaison officer 22 in your position could keep, as you put it, the 23 politicians out of the operational guys hair, right? 24 A: I received no formal training, sir. 25 Q: But you did mention to Detective
611 Sergeant Mark Wright that you saw that as one of your 2 jobs? 3 A: Correct. 4 Q: And in fairness to you, what you were 5 trying to say in a rather colourful way, and you'll take 6 -- you'll appreciate I appreciate colourful language, you 7 were trying to say in a colourful way that it was your 8 job to be the go-between, between the politicians and the 9 police? 10 A: That's fair. 11 Q: Now, I have put a blue binder, and 12 I'm going to keep looking up, because I'm going to forget 13 blue from green. I have both, but I'm going to always 14 mix it up, and you'll -- you'll forgive me ahead of time. 15 In terms of the blue binder that's in 16 front of you, I have included at Tab 2 of the blue 17 binder, a Hansard selection dated May 29th, 1996. 18 Do you have that in front of you? 19 A: I do, sir. 20 MS. SUSAN VELLA: Just -- just for the 21 record, it appears that the Inquiry Document number is 22 6000025. 23 MR. JULIAN FALCONER: And, I'm very 24 grateful for that and I will try to make sure that I 25 don't make Ms. Vella work too hard today, Mr.
621 Commissioner, and I appreciate her help. 2 3 CONTINUED BY MR. JULIAN FALCONER: 4 Q: The passages that I have placed in 5 front of you from Hansard reflect questions being asked 6 of then-Premier Michael Harris on May 29th, 1996, by, 7 among others, MLA Michael Brown, Gerald Phillips, Marion 8 Boyd and Bud Wildman. And, I simply give you that by way 9 of introductory comment and there's a series of pages. 10 Now, for different purposes I'm going to 11 bring your attention to different parts of this and it's 12 to ask you a couple of questions about your -- your 13 understanding of your interactions with the Premier and 14 his government, all right? 15 A: Yes. 16 Q: The first thing I want to understand 17 is that, based on the questions and answers you've given 18 so far, page 2, second column, last five (5) lines is -- 19 is probably describing you, I'm assuming. 20 If you turn to page 2, and -- and when I 21 say, "page 2," if you look in the top left corner you'll 22 see, "3148." Do you see that, the top left corner? 23 A: I do. 24 Q: All right. If you go down the first 25 column and I apologize, this should be side barred to
631 make your lives easier, but I apologize, Mr. 2 Commissioner. 3 COMMISSIONER SIDNEY LINDEN: That's fine. 4 5 CONTINUED BY MR. JULIAN FALCONER: 6 Q: If you go down to the last five (5) 7 lines, there's a sentence that says -- it starts with, 8 "Invited from the OPP." Do you see that? If you go two 9 (2) lines above and it's the last two (2) lines, second- 10 to-last paragraph, "Invited from the OPP?" 11 See, it's the first column, I think you're 12 looking at the second column. So, you see, "Honourable 13 Michael Harris," second-to-last full paragraph? 14 A: I do. 15 Q: Right. And, he starts with the 16 words: 17 "First of all the meeting involved 18 twenty (20) people." 19 You'll see that the passage starts: 20 "First of all the meeting involved 21 twenty (20) people, Honourable Mr. 22 Harris." 23 Do you see that? 24 A: I do, sir. 25 Q: All right. If we go to the last
641 sentence of that paragraph, it says, quote: 2 "Invited from the OPP was the liaison 3 officer who was assigned to that 4 committee in these circumstances." 5 Now, what you will see if you browse back 6 a page is they're referring to a meeting of September 7 5th, the Inter-Ministerial Committee. 8 Was there any other officer -- aside from 9 your support staff such as Scott Patrick -- was there any 10 other officer from the OPP who was a liaison officer 11 assigned to the Inter-Ministerial Committee? 12 A: No, sir. 13 Q: So, you were gaining some fame, 14 though, not named, when -- when he's referring in Hansard 15 to you as: 16 "The OPP was the liaison officer who 17 was assigned to that committee in those 18 circumstances." 19 He's talking about you? 20 A: I would expect that to be correct. 21 Q: Right. And on May 20th, 1996, 22 there's no doubt that Michael Harris knew that you were a 23 police officer -- liaison officer -- with the OPP 24 assigned to the Committee, correct, from Hansard? 25 A: Certainly from reading Hansard it
651 would appear that way. 2 Q: And, he couldn't have -- and -- and 3 let me back up because I can anticipate Mr. Downard's 4 objection, so I want to re-frame the question. 5 MR. JULIAN FALCONER: Can I re-frame the 6 question? 7 COMMISSIONER SIDNEY LINDEN: Do you want 8 to wait and see if the question is -- 9 MR. JULIAN FALCONER: I'm sorry --. 10 COMMISSIONER SIDNEY LINDEN: -- 11 objectionable. 12 MR. JULIAN FALCONER: I like him so much, 13 I can help him. 14 COMMISSIONER SIDNEY LINDEN: All right. 15 Carry on. 16 MR. PETER DOWNARD: It's not -- it's not 17 the question I'm -- I'm concerned about; it's just the 18 area we're getting into -- it's just the area we're 19 getting into. 20 Sir, you -- you will, of course, 21 appreciate that there is a -- a parliamentary privilege 22 at -- at law that very clearly limits the purposes for 23 which legislative statements in the House by any Member 24 can be used outside of the House and that includes -- 25 that does trench upon the purposes for which they may be
661 used in a proceeding such as this. 2 I don't have any difficulty with the 3 questioning that I've heard so far, but I -- if we come 4 to a point where I do have to raise the parliamentary 5 privilege, I don't want an argument to say that, well, by 6 not objecting to this or not raising this now I've 7 somehow waived any parliamentary privilege that might 8 apply in the future. 9 I just thought it appropriate that I raise 10 that point, since it is a principle of law right now. 11 COMMISSIONER SIDNEY LINDEN: Thank you, 12 Mr. Downard. If and when it comes up, we will have to 13 deal with it. 14 MR. JULIAN FALCONER: That reserva -- 15 with that reservation of rights in hand, I don't think 16 you need to hear from me -- 17 COMMISSIONER SIDNEY LINDEN: No, no. 18 He's put it -- 19 MR. JULIAN FALCONER: -- about the 20 Supreme Court of Canada relying on Hansard routinely, and 21 the statements of Ministers routinely, you don't need to 22 hear from me about that. 23 COMMISSIONER SIDNEY LINDEN: Well, when 24 the time comes we will have this argument -- 25 MR. JULIAN FALCONER: Right.
671 COMMISSIONER SIDNEY LINDEN: -- if you 2 trench on the privilege. 3 MR. JULIAN FALCONER: We don't need to 4 get into it now. 5 6 CONTINUED BY MR. JULIAN FALCONER: 7 Q: In terms of reference here, we left 8 before Mr. Downard rose, and I have to candidly say, I 9 did not anticipate his objection, so I was wrong, 10 Commissioner, sorry about that. 11 Before Mr. Downard rose, we left the point 12 where you and I agreed that the only person, if -- if 13 Premier Harris is talking about a September 5th Meeting, 14 1995 the only person he could be talking about is you, 15 Ron Fox; right? 16 A: Yes, sir. 17 Q: Okay. And you'd agree with me, 18 however your look at what the Premier knows or doesn't 19 know, you'd agree with me as of May 20th, 1996 he knows 20 that Ron Fox is from the OPP and is a Liaison -- 21 MS. SUSAN VELLA: Sorry, it's -- 22 23 CONTINUED BY MR. JULIAN FALCONER: 24 Q: -- officer, right? 25 MS. SUSAN VELLA: That was May 29th, not
681 May 20th, I believe. 2 3 CONTINUED BY MR. JULIAN FALCONER: 4 Q: Sorry, as of May 29th, 1996. 5 Whatever anyone says, we do know that as of May 29th, 6 1996 Premier Michael Harris knows you, Ron Fox, are an 7 OPP Liaison "Officer;" right? 8 A: It would appear that way reading 9 Hansard. 10 Q: Yeah. And it's fair to say that in 11 terms of the Meeting that you attended on September 6th 12 in the -- it was the Premier's Dining Room? 13 A: It was the Dining Room, sir, yes. 14 Q: It was the Premier's Dining Room, 15 wasn't it? 16 A: I -- I can't say with certainty it 17 was the Premier's Dining Room, but it was -- was 18 certainly a Dining Room. 19 Q: Had you ever been in -- I heard other 20 counsel for the Government describe it as the Premier's 21 Dining Room, that's why I'm asking you. Have you ever 22 been in the Premier's Dining Room before? 23 A: No, I -- I hadn't. I had to seek 24 direction from one of the Security staff. 25 Q: And you -- it must have been quite a
691 significant moment for you to -- to walk into the 2 Premier's Dining Room, and -- and be presented with the 3 major Members of Cabinet. 4 A: It was unusual, yes, sir. 5 Q: Yeah, and to be fair, as important as 6 you are, you don't often get a chance to meet with 7 Cabinet or a good portion of Cabinet, seated right in 8 front of you without warning, that doesn't happen to you 9 every day. 10 A: That's correct. 11 Q: In fact it's never happened to you in 12 your life before that time on September 6th. 13 A: That's correct. 14 Q: And it's never happened to you again. 15 A: That's correct. 16 Q: So that moment, in those exchanges, 17 with the Premier of the Province at that time, we'd call 18 noteworthy between you and I. 19 A: Correct. 20 Q: I'm going to direct your attention 21 for a moment, we are going to come back to the Hansard, 22 but I'm going to direct your attention, if you will, for 23 a moment, to the next, I'm not sure it's the next tab, 24 but Tab 3 of the -- binder that's in front of you, sir. 25 Now these are answers to undertakings
701 provided by the Government of Ontario, to Counsel in the 2 civil litigation; all right? 3 A: Yes, sir. 4 Q: The -- they number about eighteen 5 (18) or nineteen (19) pages. There's some specific areas 6 I want to draw your attention to, and I'm going to start 7 with page 4, and it relates to this Meeting. 8 So, Mr. Commissioner, you know where I'm 9 going in terms of the circumstances of the Meeting? 10 MS. SUSAN VELLA: Just for the -- the 11 benefit of Counsel, the Inquiry Document Number 12 is 6000379. 13 MR. JULIAN FALCONER: I want to formally 14 apologize to Mr. Downard for ever being critical of him 15 yesterday, for not getting the Document Number right. 16 It's a tougher job than it looks. 17 COMMISSIONER SIDNEY LINDEN: All right. 18 We've got the Document. What page of the Document are 19 you on? 20 21 CONTINUED BY MR. JULIAN FALCONER: 22 Q: I'd ask you to turn to page 4, first. 23 There is a question directed to your Assistant, Scott 24 Patrick, about the September 6th, 1995 Meeting. At 25 Number 17, do you see Number 17 right after Number 6? At
711 Number 17: 2 "Why did he not keep notes (especially 3 since he took notes at the 4 Interministerial Committee Meeting 5 earlier that day)?" 6 Your Assistant, Scott Patrick, was asked 7 that; do you see that? 8 A: Sorry, sir, I don't. 9 Q: That's all right. If you go to page 10 4, under "S. Patrick," you'll see first number 6 and then 11 you'll see number 17. 12 Do you see that? 13 A: I was on the fourth page, this was on 14 the fifth, for question 17. 15 Q: Yes. Do you have that, Mr. 16 Commissioner? 17 COMMISSIONER SIDNEY LINDEN: Yes, I do. 18 MR. JULIAN FALCONER: All right. 19 20 CONTINUED BY MR. JULIAN FALCONER: 21 Q: So the question that was asked: 22 "Why did he not keep notes (especially 23 since he took notes at the 24 Interministerial Committee meeting 25 earlier that day)?"
721 Do you see that? I'll help you out. If 2 you look -- 3 A: Yes, I have it now. 4 Q: All right. The numbers I'm working 5 with appear above the word "answer" directly to the 6 right. When I say "4," do you see the word "answer" in 7 the top row that goes across? You see "answer" in block 8 letters to the right of that, and above it you see a 9 number? 10 A: Yes. 11 Q: Those are the numbers I'm working 12 with, so that's page 4 and then this is because we'll go 13 through this document later, and I want you to understand 14 the pagination. 15 Now going back to the first column under 16 number 6, you'll see number 17; do you see that? 17 A: I do. 18 Q: Question, "why" -- and we'll go 19 faster through this, I promise, Officer, I think ű- we're 20 just getting warmed up. 21 A: Fine. 22 Q: "Number 17: Why did he not keep 23 notes, (especially since he took notes 24 at the Interministerial Committee 25 meeting earlier that day)?"
731 And the answer you'll find in the second 2 paragraph under "answer": 3 "As I recall, the meeting appeared to 4 be a meeting of the Premier and cabinet 5 and I did not feel it was appropriate 6 to take notes." 7 First of all, can I ask you, did you -- do 8 you agree with Officer Patrick that the meeting appeared 9 to be a meeting of the Premier and cabinet? 10 A: I do. 11 Q: All right. And were you in the same 12 position Officer Patrick was, that it just didn't feel 13 appropriate to take notes?" 14 A: Didn't feel appropriate, correct. 15 Q: Now the following page, page 5, David 16 Moran -- and you'll see at page 4 his answers start, so 17 if you flip back to page 4, you'll see David Moran 18 advises. There's a number of questions directed to him 19 on the previous page 4. 20 But the one I'm trying to direct your 21 attention to are 10 and 15; all right? 22 A: Yes. 23 Q: And first the number 10, the question 24 appears at page 4: 25 "Approximately when did Mr. Harris
741 leave the meeting? (How long after the 2 beginning or how shortly before the end 3 of the meeting)? Did the Premier say 4 anything other than those comments 5 provided and the answers given? What 6 did Mr. Moran understand Mr. Harris' 7 comments to mean?" 8 The question I'm directing your attention 9 to, Superintendent Fox, is how long after the beginning 10 or how shortly before the end of the meeting did he 11 leave? 12 And, at number 10, you'll see: 13 "Mr. Harris left approximately twenty 14 (20) minutes after the meeting began. 15 The meeting concluded shortly after the 16 Premier left." 17 Do you see that? 18 A: I do. 19 Q: All right. So is it fair to say, and 20 then, sorry, to go down to question -- to answer 15 on 21 the same page: 22 "The duration of the meeting was under 23 a half hour." 24 Do you see that? 25 A: I do.
751 Q: All right. We now know, based on 2 this, that, in fact, when the Premier left -- and you saw 3 him leave, yes? 4 A: I did. 5 Q: The meeting actually ended shortly 6 thereafter, we now know that. 7 A: Yes. 8 Q: We also know that the meeting lasted 9 under a half hour; all right? 10 A: I can't comment on that. I -- I 11 appreciate it says that, sir. 12 Q: All right. And I'm simply putting to 13 you those propositions as premises for my question, all 14 right? Based on these answers, I'm going to ask you to 15 assume that the meeting lasted less than half an hour and 16 that the Premier left -- that shortly after the Premier 17 left, the meeting ended; all right? 18 A: Yes, sir. 19 Q: All right. At page 6 of the answers 20 to undertaking ű- at page 6, Ron Vrencart (phonetic) is 21 asked questions about this. Ron Vrencart at page 6, 22 number 4: 23 "Did Mr. Vrencart have an understanding 24 of the purpose or agenda of the 25 meeting, other than it was Ipperwash
761 related?" 2 Do you see that? 3 A: I do, sir. 4 Q: His answer: 5 "I do not recall there being an agenda, 6 and my recollection of the purpose of 7 the meeting was just that it was 8 Ipperwash related." 9 Again, I'm going to ask you to assume, 10 now, that this was a meeting of less than half an hour, 11 this is a meeting that ended shortly after the Premier 12 left and that the only reason for the meeting was 13 Ipperwash; all right? 14 A: Yes, sir. 15 Q: And that it was, as you put it, 16 appeared to be to you, a meeting of the Premier and his 17 Cabinet; all right? 18 A: Correct. 19 Q: I expect to put to other witnesses 20 that this was a meeting that was called at the instance 21 of the Premier's Office. Did you know that? 22 A: No, sir. 23 Q: I'm going to ask you to assume that 24 as well; all right? 25 A: Yes.
771 Q: Now would you agree with me that it 2 is of fundamental importance that the most politically 3 powerful man in the Province of Ontario do everything in 4 his power to avoid, even the appearance, that he's giving 5 direction to the Ontario Provincial Police? 6 A: Yes. 7 Q: And you started being a police 8 officer in 1970? 9 A: Correct. 10 Q: Thirty-five (35) years? 11 A: In September of this year, yes. 12 Q: And in that time, you've seen 13 different ways that directions can be given by superior 14 officers; yes? 15 A: Correct. 16 Q: Directions can be given expressly: 17 Go do this; expressly, yes? 18 A: Yes. 19 Q: But there are more subtle ways to 20 give directions, aren't there? 21 A: Yes. 22 Q: Directions can be given by an 23 expression of a view or opinion on someone's conduct in 24 what should happen; correct? 25 A: Possibly, yes.
781 Q: And in either scenario, the 2 subordinate is left to make assumptions about what 3 they're expected to do? 4 A: Would make assumptions about what 5 they received, yes. 6 Q: And it's fair to say that that's why 7 it's of crucial importance that the most powerful 8 political figure in the Province be very careful about 9 what he says and what he's perceived to say, in front of 10 the OPP; isn't that right? 11 A: That's reasonable. 12 Q: Now I'd ask you to turn back to 13 Hansard for a moment, and that's at Tab 2 of the same 14 binder you're in. At that same page we are looking at, 15 which is the second page into Hansard, second column, so 16 it's -- the top left shows the page number of 3148, but 17 we're now at the second column rather than the first. 18 Do you have that? 19 A: I do. 20 Q: In the second column it starts, third 21 paragraph, "Honourable Mr. Harris;" do you see that? 22 A: I do. 23 Q: "Honourable Mr. Harris," and I'm 24 going to quote the -- the full two (2) paragraphs, Mr. 25 Commissioner, to be -- to be fair to the former Premier
791 in terms of capturing his comments. Quote: 2 "When it came to an assessment of the 3 situation, it would have been reported 4 what the assessment was at the Park. I 5 think you can clearly get that from the 6 records of what I said to the media. 7 When it came to whatever might have 8 been the response to that, clearly my 9 understanding would have been that that 10 is a matter for the OPP to deal with. 11 That is not the business of the 12 Premier, of the Premier's staff, or of 13 any other staff. 14 It is now in the hands of the OPP. Any 15 negotiations are in the hands of the 16 OPP. They are the experts in this 17 field and, surely, nobody would presume 18 to think that the Premier or his 19 political staff would have expertise in 20 these areas. Therefore, we would not 21 have offered any opinion." 22 Those are the words of then Premier 23 Michael Harris; do you see that? 24 A: I do. 25 Q: In fact, notwithstanding what Premier
801 Harris said on May 29th, 1996 about that tragic September 2 period, in fact, the Premier, in front of you, expressed 3 the following opinions, please confirm this is true or 4 false. 5 He expressed the opinion that Natives have 6 been pandered to for far too long; true? 7 A: Correct. 8 COMMISSIONER SIDNEY LINDEN: Do you 9 want -- 10 11 CONTINUED BY MR. JULIAN FALCONER: 12 Q: He also expressed the opinion that 13 the OPP had made mistakes in relinquishing control of the 14 Park to the Natives; true? 15 COMMISSIONER SIDNEY LINDEN: Do you have 16 an Objection, Mr. Downard? 17 MR. PETER DOWNARD: Yes. This -- 18 COMMISSIONER SIDNEY LINDEN: You better-- 19 MR. PETER DOWNARD: -- this is the 20 Parliamentary privilege problem, if it's the purpose of 21 the questioning. I don't have -- obviously, I don't have 22 any difficulty with Mr. Harris being examined fully on 23 his recollections and on the relevant documents. 24 But the law is very clear, that no member 25 of the Legislature of this -- this country, in the
811 province, or Canada can -- can have statements they made 2 in the House used in other forms outside the House for 3 the purpose of attacking their credibility. 4 The law is very clear and we can get into 5 it, it takes a little bit of length, but that's what the 6 law is. I don't have instructions to waive that 7 privilege here today, but that's the law, and so I have 8 to object to a question which clearly appears to be 9 directed at alleging that Mr. Harris was not being 10 accurate in the House. 11 And Ican deal with it, but it's come up 12 very quickly. It's a little bit more of substantive 13 issue. 14 COMMISSIONER SIDNEY LINDEN: It's going 15 to take a bit of time for us to deal with this, I think. 16 MR. PETER DOWNARD: Right. 17 COMMISSIONER SIDNEY LINDEN: Do you want 18 to comment before I hear from my Counsel? 19 MR. JULIAN FALCONER: Yes, please. Could 20 I have a brief indulgence while I check with my colleague 21 who did all the work? 22 COMMISSIONER SIDNEY LINDEN: Yes. 23 Ms. Vella, do you want to comment on this 24 or wait? Not at this point? 25 MR. JULIAN FALCONER: The first point,
821 Mr. Commissioner, is that we're at Thursday and -- and -- 2 and four (4) or five (5) days ago My Friend had notice of 3 the intention of ALST to rely on Hansard. 4 Now having said that, that doesn't put an 5 end to it, I just want it to be clear that it couldn't 6 come as a shock that Hansard is coming up because we gave 7 notice to My Friends of an intention to raise it. 8 Secondly, with all due respect and without 9 meaning to get overly artificial, if Premier Harris 10 thought that his comments in the House about Ipperwash 11 were not going to become part of these proceedings, that 12 was a -- that was an extraordinarily ambitious hope and I 13 would have expected Counsel would have a whole brief 14 labelled, "Motion Hansard," because obviously this is 15 front and center and core to -- to issues that you have 16 to consider. It's not exclusive, but I say it's pretty 17 fundamental. So this can't come as a big -- big 18 surprise. 19 Now my third point is this, I am cross- 20 examining in an area that Mr. Downard opened. You see, 21 he suggested to this Witness -- he suggested to -- and 22 I'm not trying to do a speech, but he suggested to this 23 Witness that the Witness was exaggerating in terms of 24 what Premier Harris did or did not do with him and what 25 Premier Harris said or did not say to him; that was an
831 area of cross-examination. 2 He suggested -- he suggested to this 3 Witness that the Witness was stressed, irresponsible, 4 venting, and got it wrong in exaggerating. He suggested 5 all of those things because obviously the core of the 6 Witness' concern at the time was the Premier appeared to 7 be giving direction. 8 Now I'm entitled to take this Witness to 9 the statements of the Premier recognizing, that the 10 Premier knew who this witness was. I'm entitled to take 11 the Witness to what the Premier himself used as improper, 12 such as expressing opinions, and I'm entitled to examine 13 the Witness on whether, in fact, that happened in this 14 case. 15 It's all proper because it got opened up 16 by Mr. Downard's attack on the Witness, which was, 17 essentially, you've got it wrong about what the Premier 18 did and said. And so it is essential, certainly, to my 19 cross-examination. 20 So it's not as if I can simply skip and go 21 to somewhere else. I have a -- a theme that I'm going to 22 be pursuing. And -- and my respectful submission is Mr. 23 Downard, if he has an argument to make, should make it 24 now. 25 We should get it over with because I have
841 a whole stream of examination that flows from the 2 questions I am building up on. 3 And -- and I'm not trying to be overly 4 dramatic, but Mr. Harris, through is lawyer -- this isn't 5 about Mr. Downard, Mr. Harris, through his lawyer, chose 6 to attack the credibility of -- of Superintendent Fox on 7 what he did or didn't do, that is what Harris did or 8 didn't do. And he can't now be heard to say, Hey, I'm 9 insulated from scrutiny on this, and that's what he's 10 trying to say. 11 COMMISSIONER SIDNEY LINDEN: You didn't 12 mention the question of privilege in your comments just 13 now. 14 MR. JULIAN FALCONER: Fair enough. You - 15 - you want me to get to the point? 16 COMMISSIONER SIDNEY LINDEN: No, I don't. 17 No, I don't. 18 MR. JULIAN FALCONER: No, I know. 19 COMMISSIONER SIDNEY LINDEN: I'm saying, 20 is that point that -- 21 MR. JULIAN FALCONER: No. I -- I do -- I 22 contest the claim that there -- that the privilege could 23 exist in this context. I contest it for two (2) reasons. 24 First of all, this is a public document. 25 The Premier is speaking publicly and I am examining --
851 even if it could be argued somehow the Premier could be 2 insulated or shielded from cross-examination on his 3 statements in the House, that has nothing to with asking 4 this Witness about a public document and a public 5 statement by the Premier of the province. 6 Superintendent Fox isn't erecting a 7 privilege here. He's not saying, I don't want to be 8 asked about a public document like Hansard. 9 So in -- in my submission, even if there 10 is any merit to Mr. Downard's opposition, which I say 11 there isn't, with respect, it would only apply and the 12 discussion would only be interesting when Premier Harris 13 is sitting there and someone is cross-examining him on 14 the -- on the Hansard, but the -- the fact that Hansard 15 is raised, that's not privilege. 16 COMMISSIONER SIDNEY LINDEN: Well, it's 17 Harris' credibility that's the issue here, at this point. 18 MR. JULIAN FALCONER: Well, and -- and 19 Downard puts it an issue -- 20 COMMISSIONER SIDNEY LINDEN: That's fine. 21 MR. JULIAN FALCONER: -- when he asks the 22 questions, you're an exaggerator, you're the one that's 23 got it wrong. Harris is good to natives. Here's Harris' 24 -- here's Harris' agenda." 25 And my submission is that he's put it in
861 issue and, obviously, to some extent, Premier Harris' 2 credibility is on the line in these proceedings, but to 3 be fair, Deb Hutton's credibility, Ron Fox' credibility, 4 hopefully not Julian Falconer's credibility, but the 5 point is, a lot of people's credibility is on the line. 6 COMMISSIONER SIDNEY LINDEN: Fine. 7 MR. JULIAN FALCONER: And that's not 8 unusual. 9 COMMISSIONER SIDNEY LINDEN: I'll let you 10 respond to that. This is just a brief response at this 11 point. 12 MR. PETER DOWNARD: The only concern is 13 on the -- the only concern is on the legal point of 14 privilege. I received my -- notice of My Friend's 15 documents last week. It is only since then I have been 16 able to have this issue properly researched. 17 I can tell My Friend what the authorities 18 are; I haven't got them now. It's not reasonable to say 19 that I should make an argument now, because it's not fair 20 to everyone -- 21 COMMISSIONER SIDNEY LINDEN: That's fine. 22 MR. PETER DOWNARD: -- who haven't had a 23 chance to review -- 24 COMMISSIONER SIDNEY LINDEN: No, I 25 understand --
871 MR. PETER DOWNARD: -- the legal issue. 2 And my only concern is that this question that is being 3 advanced at this time is plainly advanced to the purpose 4 of using the statements in the house to attack the 5 credibility of the Premier and that, in my submission, 6 it's -- and I -- and we can argue fully at an appropriate 7 time, is -- is contrary to the parliamentary privilege 8 which simply, at this time, because I'm not in a position 9 to discuss it with my client because of his location 10 right now. 11 I don't have instructions to waive and 12 I've a duty, in case of any privilege not to waive unless 13 I have instructions. 14 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 15 Vella...? 16 MS. SUSAN VELLA: Clearly, if this is a 17 matter of privilege, if it actually applies to these 18 particular questions, then the Public Inquiries Act 19 states that we cannot compel privileged information 20 unless, of course, it's been waived. 21 There is an issue as to whether or not the 22 scope of parliamentary privilege would, in fact, apply to 23 firstly a Public Inquiry, which is a fact-finding 24 investigation, and secondly, where the Premier is not 25 being -- is not subject to liability or criminal
881 responsibility as a result of these particular 2 proceedings. 3 So, I think both Mr. Falconer and Mr. 4 Downard raise very serious issues. If I'm understanding 5 Mr. Falconer's submissions, this is going to affect his 6 cross-examination very substantially and before we make 7 any hasty decision, I think that we must have proper 8 submissions with the case law to make the right 9 determination. 10 So, the question is: does Mr. -- is Mr. 11 Falconer able to go on to a different part of his cross- 12 examination which would not involve the Hansard's line of 13 questionings? 14 If so, let's proceed with that. If not, 15 perhaps we could proceed with another cross-examination 16 as I'm loathe to -- to lose a full day with respect to 17 this matter. 18 COMMISSIONER SIDNEY LINDEN: Why don't we 19 take a short break and let you and Mr. Falconer and Mr. 20 Horton seems to have a contribution to make, and see if 21 you can -- 22 MR. WILLIAM HORTON: It's a very short 23 comment -- 24 COMMISSIONER SIDNEY LINDEN: Yes. 25 MR. WILLIAM HORTON: -- Commissioner, and
891 I just want to be crystal clear about this before we go 2 off and consider it. 3 But as I understand it, Mr. Downard is 4 considering taking the position that this Inquiry does 5 not have the ability to inquire into the truth of 6 statements made by former Premier Harris in the 7 legislature. 8 And that -- I just want to be very clear 9 that that is exactly the position under consideration. I 10 will submit, in due course, that just making that 11 statement is -- is enough to probably dispose of the 12 issue, but -- 13 COMMISSIONER SIDNEY LINDEN: Well, let's 14 take a -- 15 MR. WILLIAM HORTON: -- just to be very 16 clear that that is what he's -- what he's considering 17 doing. 18 COMMISSIONER SIDNEY LINDEN: Take a short 19 break and figure out what we do from here and we'll see 20 if we can come up with a procedure that allows us to 21 continue. 22 THE REGISTRAR: This Inquiry will recess. 23 24 --- Upon recessing at 11:06 a.m. 25 --- Upon resuming at 11:45 a.m.
901 THE REGISTRAR: This Inquiry is now 2 resumed, please be seated. 3 4 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 5 Downard...? 6 MR. PETER DOWNARD: Commissioner, if I 7 can briefly speak to this matter of parliamentary 8 privilege. If I can just premise -- preface my remarks 9 briefly by stating that the privilege in question is an 10 important one, and I would not want what I'm about to 11 say, to detract from the merit of -- of any position that 12 any other Member of Government may wish to raise at any 13 time on the point. 14 And so that everyone is familiar with the 15 relevant principles, I'm going to circulate to all 16 Counsel, a brief List of Authorities, so that they're 17 aware of them if this point should come up again with 18 respect to anyone else. 19 However, from the very beginning of this 20 matter, I have taken the position, on behalf of Mr. 21 Harris, that he wishes this matter to be fully and 22 thoroughly explored, and he is confident of his position. 23 And consistent with that purpose, to my 24 pleasant surprise, we were able to reach him this 25 morning, and he has specifically instructed me to waive a
911 Parliamentary privilege with respect to Cross-Examination 2 with -- regarding any statements he has made in the 3 Legislature, he would be pleased, as part of his 4 evidence, to come here and give his view and provide any 5 explanation that people may wish him to make. 6 So, the privilege may be taken as being 7 waived, on -- on his behalf, and I won't have any 8 objections today or in Mr. Falconer's Cross-Examination 9 on that basis. 10 COMMISSIONER SIDNEY LINDEN: Thank you, 11 Mr. Downard; that means I didn't have to read all these 12 cases - yet. 13 Okay. Let's carry on, Mr. Falconer. 14 MR. JULIAN FALCONER: And you'll forgive 15 me, Mr. Commissioner, I'm just going to catch up to where 16 I was. I know, absolutely not in any way intentionally, 17 Mr. Downard knocked me off pace a little bit. 18 COMMISSIONER SIDNEY LINDEN: I'd be 19 surprised if he could do that, Mr. Falconer. 20 21 CONTINUED BY MR. JULIAN FALCONER: 22 Q: As I recall it, Superintendent Fox, 23 what we were discussing was in reference to Tab 2 of the 24 blue binder, the Hansard reference. 25 Could you go back to that, please.
921 A: Yes. 2 MR. JULIAN FALCONER: And Mr. 3 Commissioner, you will forgive me, I'm going to go about 4 two (2) to three (3) questions backwards, in order to get 5 where I need to go. In other words, sometimes you don't 6 just stop -- start from the exact stop position. I am 7 going to go two (2) or three (3) questions back to -- to 8 get where I need to go. You'll forgive me? 9 COMMISSIONER SIDNEY LINDEN: We will try 10 to follow you. 11 MR. JULIAN FALCONER: Thank you. I'm 12 trying to focus the Witness, that's all, and make sure 13 that we're on the same wavelength in terms of my 14 questions. 15 16 CONTINUED BY MR. JULIAN FALCONER: 17 Q: Superintendent Fox, where I had taken 18 you in the Hansard reference, was to page 3148, which is 19 the second page of the Hansard; do you see that? 20 A: I do. 21 Q: And I had directed your attention to 22 the second column, the Honourable Michael Harris's 23 statement in the House. 24 A: Yes, sir. 25 Q: And I have read it in full, the two
931 (2) paragraphs, because I wanted to be fair to -- to 2 former Premier Harris, who we are going to hear from, but 3 now that I've done that, I'm going to take you just to 4 the main paragraph, "When it came to whatever." 5 Do you see -- you see that? 6 A: I do. 7 Q: Quote, it says: 8 "Premier Harris, on May 29th, 1996. 9 When it came to whatever might have 10 been the response to that, clearly my 11 understanding would have been that that 12 is a matter for the OPP to deal with. 13 That is not the business of the 14 Premier, of the Premier's staff, or of 15 any other staff. 16 It is now in the hands of the OPP. Any 17 negotiations are in the hands of the 18 OPP. They are the experts in this 19 field, and surely nobody would presume 20 to think that the Premier or his 21 political staff would have expertise in 22 these areas. Therefore, we would not 23 have offered any opinion." Close 24 quotes. 25 Now, the Premier of the Province at the
941 time, Premier Harris, says here that, in essence, there 2 was a clear bright line between the functions of the OPP 3 and the functions of the Government of the day; yes? 4 A: Yes, sir. 5 Q: And you would agree that that notion 6 that the Premier's advancing on May 29th, 1996, that 7 notion that the Government would have no expertise on 8 policing issues, is in actual fact, accurate? 9 A: I'm assuming the Hansard Report is 10 accurate, yes. 11 Q: But that notion, in other words, that 12 it's not the Government's place to interfere with 13 policing issues, they have no expertise in that area; 14 that's accurate? 15 A: I believe that to be. 16 Q: All right. And what I'm doing now 17 is, I'm taking you through what he says in this 18 paragraph, and asking if you agree with the -- the basic 19 underlying premise as to what he's saying, all right? 20 A: Yes. 21 Q: And secondly, it's fair to say that 22 your understanding of how police discretion is to be 23 exercised in a case by case basis, your understanding of 24 it is that it -- it is a matter of fundamental principle 25 in a democracy that politicians do not, and are not seen
951 to be, interfering with the exercise of police 2 discretion; isn't that right? 3 A: Yes. 4 Q: And that's one of the premises he's 5 stating here, isn't it? 6 A: Correct. 7 Q: And it's a fundamental principle, 8 because if - and you tell me if you agree with me or not 9 - if the government of the day was directing or be seen 10 to be directing the police, that would make the police a 11 private police force for the Government, correct? 12 A: It could be construed that way, yes. 13 Q: And that would make the scenario or 14 situation where a government had it's own private police 15 force, far more akin to a police state, isn't that right? 16 A: That's a possibility. 17 Q: And, in fact, you're trained as a 18 police officer to understand that it's of fundamental 19 importance not to allow undue influences to exercise -- 20 to influence your exercise of police discretion, yes? 21 A: Yes, it's enshrined in statute. 22 Q: I'm sorry? 23 A: It's enshrined in statute. 24 Q: And it's, in terms of process, 25 individual police officers just as officers of the law,
961 have a power to wield force, in some cases as serious as 2 lethal force, correct? 3 A: Yes. 4 Q: And we give them that power on the 5 premise that no one will seek to unduly influence them, 6 correct? 7 A: That would be one of the concepts, 8 yes. 9 Q: And the notion is, that when someone 10 has the power to exercise actually lethal force with 11 their gun, that we licence, that we make sure that what 12 doesn't happen is the government is the one directing 13 that; isn't that right? 14 A: I believe that to be correct. 15 Q: Now, when he states: 16 "They are the experts in this 17 field...", 18 And I'm quoting: 19 "...and surely nobody would presume to 20 think that the Premier or his political 21 staff would have expertise in these 22 areas. Therefore, we would not have 23 offered any opinion." 24 When he says "we would not have offered 25 any opinion", that's an important premise, isn't it?
971 Because a person in the position of the Premier, the 2 Premier of the province of Ontario, if he were to offer 3 an opinion to a police officer, that could be construed 4 as a direction; isn't that right? 5 A: It could be. 6 Q: And the fall out of a Premier 7 offering an opinion on the use of force to a police 8 officer would, in essence, erode the rule of law? Isn't 9 that right? 10 A: I don't know that I'm qualified to 11 comment on erosion of a rule of law. I believe that it 12 could influence a police officer, yes. 13 Q: And that, in essence, is more akin to 14 a police state than a democracy, isn't that right? 15 A: It could be construed that way, yes. 16 Q: And so the Premier was quite right 17 when he uses those words, when he says "we would not have 18 offered any opinion", that's the right way to go, isn't 19 it? 20 A: Yes. 21 Q: But you know that it didn't happen 22 that way, don't you? 23 A: Insofar as? 24 Q: The Premier offering opinions. It 25 didn't play out that way, did it?
981 A: He offered his opinion, yes. 2 Q: Yes. So when the Premier said in the 3 House, on May 29th, 1996 "we would not have offered any 4 opinion", that is not consistent with your memory of 5 exactly what he did with you, correct? 6 A: Correct. 7 Q: In fact, the Premier of the province 8 of Ontario, in September of 1995, offered you the opinion 9 that, for far too long, natives had been pandered to, 10 correct? 11 A: Yes. 12 Q: And on that same occasion, on 13 September 6th, 1995, in the Premier's dining room, he 14 offered you the opinion that the Ontario Provincial 15 Police had dropped the ball, correct? 16 A: Yes. 17 Q: That same Premier who says he has no 18 expertise in this area, offered you the opinion that in 19 addition to his view that the OPP had dropped the ball, 20 that all of the errors the OPP had made, would come out 21 in an Inquiry one day, right? 22 A: Yes. 23 Q: And it's fair to say that that same 24 Premier who claimed in this speech that he had no 25 expertise, stated to you that as far as he was concerned,
991 the way the OPP dropped the ball was relinquishing 2 control of the Ipperwash Provincial Park, correct? 3 A: Yes. 4 Q: And it's fair to say that what this 5 Premier did on September 6th, 1995 as far as you read 6 this Hansard, is fairly inconsistent with the Hansard, 7 isn't it? 8 A: It would be, yes. 9 Q: Now, you're a man of many years of 10 experience, so I take it the experience of walking into a 11 Premier and his cabinet and having the Premier express 12 this opinion to you, was a source of surprise? 13 A: Yes. 14 Q: And as a result, one of the things 15 not surprisingly you did, was to call -- to call 16 superiors at the OPP and express your concerns about the 17 Premier's comment, correct? 18 A: At that time I spoke with Inspector 19 Carson, who would be my -- my counterpart and colleague, 20 I did at a later time, yes, speak with Chief 21 Superintendent Coles, who would have been my superior. 22 Q: And at that time you expressed your 23 concern over the actions of the Premier, correct? 24 A: Yes, my concern and frustration. 25 Q: And your frustration was borne of the
1001 notion that the Premier would appear to be expressing 2 opinions on operational matters? 3 A: Correct. 4 Q: An area for which he had no 5 expertise? 6 A: To the best of my knowledge, he 7 wouldn't have. 8 MR. JULIAN FALCONER: I would ask, if 9 it's possible, and I apologize for not giving better 10 notice to this, and I will try at the breaks to -- to 11 give better notice to My Friends, is it possible to have 12 the tape of the conversation between John Carson and Ron 13 Fox, of September 5th, 1995, played, please? 14 And I'll give you the -- the transcript 15 site I'm looking for. 16 COMMISSIONER SIDNEY LINDEN: I'm not sure 17 that we're set up to do that. I don't know. 18 MR. JULIAN FALCONER: Is it something we 19 should do after the break? 20 COMMISSIONER SIDNEY LINDEN: I don't 21 know. 22 MS. SUSAN VELLA: Well, I think that I 23 can -- I can manage that. I'm just wondering whether 24 it's necessary to yet again play this tape, and what 25 benefit that will bring?
1011 COMMISSIONER SIDNEY LINDEN: Well 2 certainly not in its entirety. You weren't suggesting 3 that, were you, Mr. Falconer? 4 MR. JULIAN FALCONER: I was not. I was 5 not. 6 MS. SUSAN VELLA: I don't -- I don't know 7 if I can, to the way it's set up, if I can go to a 8 particular point. 9 COMMISSIONER SIDNEY LINDEN: That's what 10 I mean. That's what I mean. 11 MR. JULIAN FALCONER: Well, this is -- 12 this is my suggestion: I'm referring to the transcript 13 at Tab 37, so, -- 14 COMMISSIONER SIDNEY LINDEN: So thirty- 15 seven (37) of -- 16 MR. JULIAN FALCONER: -- first of all, of 17 the logger tapes, it's not your tabs. It's -- I'm 18 referring to the Tab Number of Exhibit P-444(a), which is 19 the Volume I of the logger tapes we have. 20 And I also know that if -- if you give me 21 a minute, I can give you a reference for Commission 22 Counsel's Binder on Cross-Examination. But I -- I want 23 to be specific on what I'm looking for. 24 I would like to play that portion of the 25 conversation where Superintendent Fox explains to first,
1021 Inspector Carson and Chief Coles, his experience in being 2 presented with Cabinet. 3 And this does go to my Cross-Examination, 4 and it does go to the issues of why he would have been 5 speaking in the fashion he was speaking, areas that you 6 will recall, Mr. Downard, on behalf of Premier Harris, 7 specifically Cross-Examined him on. 8 And so, I'm not trying to -- it goes 9 directly to the point of why he may have been speaking 10 that way, and -- and so I say that's important to play 11 it. 12 COMMISSIONER SIDNEY LINDEN: Do you mean 13 his manner and his tone, -- 14 MR. JULIAN FALCONER: Yes. 15 COMMISSIONER SIDNEY LINDEN: -- or things 16 like that? 17 MR. JULIAN FALCONER: Yes. 18 COMMISSIONER SIDNEY LINDEN: That's why 19 you want the actual tape, -- 20 MR. JULIAN FALCONER: Yes. And you've 21 heard Counsel -- 22 COMMISSIONER SIDNEY LINDEN: -- as 23 opposed to the transcript? 24 MR. JULIAN FALCONER: Yes. You've heard 25 Counsel do the -- their own tone, on transcripts. It is
1031 entertaining. It -- the problem with it is, I can't 2 believe it's a lot of help to you, Mr. Commissioner, -- 3 COMMISSIONER SIDNEY LINDEN: Well, -- 4 MR. JULIAN FALCONER: -- if -- if we all 5 sit and take our own tones to transcripts I know we can 6 all develop expertise, but that's why I need to play it. 7 COMMISSIONER SIDNEY LINDEN: Well, what 8 can we -- 9 MS. SUSAN VELLA: It may not be perfect-- 10 COMMISSIONER SIDNEY LINDEN: Let's -- 11 MS. SUSAN VELLA: It may not be perfect-- 12 COMMISSIONER SIDNEY LINDEN: Let's see -- 13 MS. SUSAN VELLA: -- because we don't 14 have it to the second here, but... 15 MR. JULIAN FALCONER: No, that's fine. 16 COMMISSIONER SIDNEY LINDEN: Let's see 17 what we can do. 18 MR. JULIAN FALCONER: So it -- it is this 19 portion of the conversation that I'm going to show My 20 Friend, and I appreciate her assistance. 21 22 (BRIEF PAUSE) 23 24 CONTINUED MR. JULIAN FALCONER: 25 Q: Now, while Ms. Vella is so
1041 courageously assisting me, and I appreciate it, I'm going 2 to ask you a few follow-up questions to this as we get to 3 this tape that's about to be played. 4 When Mr. Downard asked you about your 5 venting and your frustration, would you agree with me 6 that the very thing Mr. Downard was asking you about, on 7 behalf of Michael Harris, arose because of the conduct of 8 his client? 9 A: Correct. 10 Q: That you had never been presented 11 with the scenario where, as far as you were concerned, a 12 Premier of the Province of Ontario was attempting to 13 influence police operations? 14 A: Correct. 15 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 16 Downard...? 17 OBJ MR. PETER DOWNARD: The whole line of 18 questioning that My Friend's been pursuing is 19 entertaining and colourful, but it all is objectionable 20 as implying the fact that it's not in evidence and it's 21 certainly not this Witness' evidence. 22 This Witness has not testified that it was 23 communicated to Premier Harris at that meeting that he 24 was a police officer and that's the -- the implicit 25 foundation of the force of all these questions and this -
1051 - this officer has testified that he cannot recall 2 whether that happened. 3 And so all these questions are 4 objectionable. It's -- it's all very well and good to -- 5 to be making these relatively flamboyant statements, but 6 there's no foundation for it in the evidence and the 7 questions are objectionable. They're not fair because 8 they're not based on a fair understanding of what this 9 Witness' clear evidence is. 10 COMMISSIONER SIDNEY LINDEN: You -- 11 MR. JULIAN FALCONER: First of all, I 12 understand why Mr. Downard objects, it's the nature of 13 the advocacy, but -- 14 MR. PETER DOWNARD: No. No. 15 MR. JULIAN FALCONER: -- it comes down to 16 this. I -- I'm going to -- I can finish, I think, I let 17 Mr. Downard finish. 18 I think it's important we don't talk over 19 each other, but if he's going to interrupt me, then I -- 20 COMMISSIONER SIDNEY LINDEN: No, go 21 ahead, Mr. Falconer. 22 MR. JULIAN FALCONER: Thank you. 23 I understand why he's objecting, but Mr. 24 Downard crossed this Witness not on simply, Mr. Harris 25 might have been mistaken on who you were. You
1061 exaggerated, you gilded the lily. Your emotions took the 2 better of you and you miscast this -- this man who's been 3 victimized and misconstrued to the public; that was the 4 gist of the cross-examination in part. 5 Secondly, I notice the skilful way in 6 which Mr. Downard stepped around asking the obvious 7 question, which was: As far as you were concerned, were 8 you introduced to the Premier? He didn't -- he didn't 9 ask that question. 10 He didn't go there and the reason he 11 didn't go there is he didn't want to hear the answer, so 12 he asked different questions. He asked: Do you remember 13 who introduced you? 14 COMMISSIONER SIDNEY LINDEN: I think 15 somebody did ask the question, whether it was Mr. Downard 16 or not. 17 MS. SUSAN VELLA: In fairness, I did 18 ask -- 19 COMMISSIONER SIDNEY LINDEN: Yes, the 20 question was asked. 21 MS. SUSAN VELLA: -- whether he was 22 introduced in the presence of the Premier. 23 MR. JULIAN FALCONER: And -- and his 24 answer was that -- that he was uncertain and I'm going to 25 go to how that plays out in terms of the evidence --
1071 COMMISSIONER SIDNEY LINDEN: Well -- 2 MR. JULIAN FALCONER: -- but I don't have 3 to -- I -- the underlying premise for my questions will 4 be clear, but they're completely relevant. I don't have 5 to have the evidence play out the way Mr. Downard's 6 proposing for me to ask my questions. 7 COMMISSIONER SIDNEY LINDEN: Well -- 8 MR. JULIAN FALCONER: My questions are 9 premised on the state of mind of this Witness when he was 10 in the conversation. It's Mr. Downard's contention that 11 his state of mind related to his gilding the lily, et 12 cetera. I'm putting it, obviously -- 13 COMMISSIONER SIDNEY LINDEN: Yes. 14 MR. JULIAN FALCONER: And what I'm saying 15 to you, Mr. Commissioner, is I have -- with great 16 respect, this area, which is why he would have said what 17 he said and his state of mind is what I'm cross-examining 18 on. 19 You'll notice I said, As far as you were 20 concerned -- As far as you were concerned, the reason you 21 were frustrated was as, in your perception, the Premier 22 was trying to influence you. 23 COMMISSIONER SIDNEY LINDEN: Yes. 24 MR. JULIAN FALCONER: And that speaks to 25 his state of mind. Whether Mr. Downard can prove at the
1081 end of the day Mr. Harris did know or didn't know, that's 2 a different issue. We're not there yet. 3 COMMISSIONER SIDNEY LINDEN: Well I'm not 4 sure you've dealt with what Mr. Downard's objective is. 5 I'm not sure that you -- 6 MR. JULIAN FALCONER: I did or didn't? 7 COMMISSIONER SIDNEY LINDEN: I don't 8 think youĂve dealt with what his objection is. 9 Mr. Downard, do you want to state it 10 again? Your objection is that it's premised on knowledge 11 that the Premier knew that Mr. Fox was a police officer 12 at that time? 13 MR. JULIAN FALCONER: That's right, 14 right, but -- but not -- 15 COMMISSIONER SIDNEY LINDEN: And -- 16 MR. JULIAN FALCONER: -- but his 17 perception. Not -- not -- you see, I'm at -- I said, As 18 far as you were concerned, the reason you reacted and 19 were frustrated, that as far as you were concerned the 20 Premier was seeking to influence the police, and his 21 answer is, "Correct." And -- 22 COMMISSIONER SIDNEY LINDEN: Well -- 23 MR. JULIAN FALCONER: -- and the point 24 is, that's his state of mind. Mr. Downard points to the 25 colourful language used by Superintendent Fox to
1091 undermine his credibility. And what I'm trying to show 2 is that the language he used and the -- and the concern 3 he was expressing in these calls went to his state of 4 mind. 5 So we're not right -- it will become 6 relevant and I expect to be able to prove Mr. Harris knew 7 that Mr. Fox is a police officer, but I don't need to 8 prove that to go to his state of mind; that's my simple 9 point. In other words, I'm not asserting Harris knew and 10 therefore. I'm asking what he was thinking. 11 COMMISSIONER SIDNEY LINDEN: Yes? 12 MR. PETER DOWNARD: As -- as long as -- 13 as My Friend is being crystal clear -- 14 COMMISSIONER SIDNEY LINDEN: Yes. 15 MR. PETER DOWNARD: -- that he does not 16 mean to imply to the Witness that Premier Harris knew he 17 was speaking -- 18 COMMISSIONER SIDNEY LINDEN: Yes. 19 MR. PETER DOWNARD: -- to a police 20 officer, then I'm -- my objection is satisfied. 21 COMMISSIONER SIDNEY LINDEN: Fine. 22 That's fine. 23 24 CONTINUED BY MR. JULIAN FALCONER: 25 Q: So, going back to my question, when
1101 you expressed the frustration you did, it was in part, 2 because as far as you were concerned, the Premier was 3 seeking to improperly influence police operations, 4 correct? 5 A: Yes. 6 Q: All right. Now, I want to understand 7 something in terms of the facts here. 8 You have a meeting that lasts less than 9 half an hour according to the government witnesses, all 10 right? I've read you that. 11 A: Yes. 12 Q: You have a meeting that's convened by 13 the Premier's office, lasts less than half an hour and 14 after the Premier finishes speaking and leaves, the 15 meeting ends; right, you've seen that? 16 A: Yes. 17 Q: You say that the discussions that you 18 were part of, where the Premier was there, were three (3) 19 to five (5) minutes; right? 20 A: I did. 21 Q: And so three (3) to five (5) minutes 22 of that less than half an hour, has the Premier 23 addressing OPP issues directly; right? 24 A: Yes. 25 Q: Now you walk into the room, and is it
1111 your memory that you simply walked into the room and 2 stood there and the Premier just kept talking and no one 3 introduced you; is that your evidence? 4 A: No, it wasn't. 5 Q: No. You walked in to the room and 6 like any formal setting, when someone appears -- and you 7 appeared with an assistant, Scott Patrick? 8 A: I did. 9 Q: So when two (2) people walk into a 10 room courtesy usually dictates they get introduced? 11 A: Yes. 12 Q: This wasn't an exception? 13 A: No, sir. 14 Q: You were introduced when you walked 15 into the room? 16 A: I've testified to that, I was. 17 Q: Yes. Now you were introduced when 18 you walked into the room, in the same room that Premier 19 Harris sat in? 20 A: Correct. 21 Q: Premier Harris was sitting in the 22 room when you were walked in and introduced? 23 A: Yes. 24 Q: Now you have agreed, Premier Harris 25 has accurately described you, in May -- on May 29th,
1121 1996, as the OPP liaison officer. 2 On May 29th, 1996, to be fair, months 3 after this meeting, he accurately described your role, 4 yes? 5 A: Correct. 6 Q: So the simple question that Mr. 7 Downard is seeking to -- to basically have explored, the 8 simple question is whether Premier Harris knew what he 9 says he knew on May 29th, 1996; right? 10 A: Yes. 11 Q: And you walk into the room and you're 12 introduced as Ron Fox; right? 13 A: I believe I've testified I don't 14 recall how I was introduced, whether it was by title or 15 by rank in the OPP. 16 Q: And Scott Patrick was introduced? 17 A: I would assume that he was. I don't 18 recall that he was. 19 Q: And following the introduction of you 20 and Scott Patrick, there is a set of statements by the 21 Premier directed at the OPP; yes? 22 A: Correct. 23 Q: Extraordinary coincidence, if he 24 didn't know you were from the OPP, wouldn't you agree? 25 A: Could be taken that way, yes.
1131 Q: Extraordinary coincidence in that, 2 after uttering these statements about the OPP, he left 3 the room? 4 A: It could be taken that way, yes. 5 Q: Another way it could be taken is, 6 that when you were walked in and introduced, he talked to 7 you about how the OPP made mistakes and how natives were 8 pandered for too long; isn't that right? 9 A: That's what occurred. 10 Q: That's what occurred. And you 11 sensed, when he was speaking in that room, that he was 12 speaking to you; correct? 13 A: I certainly sensed that he was 14 speaking to the room and I was part of the room at that 15 time. 16 Q: And he commenced speaking after you 17 were introduced; correct? 18 A: In that context, yes. 19 Q: And I'm going to suggest to you, sir, 20 that the reason you expressed the frustration you did in 21 that tape, and again repeated it today when I asked you, 22 was that it was your perception at the time that he was 23 directing his OPP comments to someone who he knew was a 24 police liaison officer; isn't that true? 25 A: It's possible.
1141 Q: And when you say, "it's possible," 2 you're being put in somewhat of an awkward position; 3 aren't you? 4 A: No, sir, I don't believe so. 5 Q: Okay. 6 A: If I had a recollection that I was 7 introduced as then Inspector Fox of the Ontario 8 Provincial Police, I would say that to you, sir. 9 Q: No, that's fair. And by the way, I 10 think there's a bit of a dissonance here in the sense 11 that we're -- I like that word, so I use it every now and 12 then, if it's okay with you, the -- we may not be exactly 13 on the same line on what I'm asking. 14 I didn't -- I didn't mean that you were 15 saying it's possible that you were introduced as 16 Inspector Fox. I'm saying that the premise to why you 17 were frustrated and upset when you were on that tape 18 after talking to Carson and Coles, the premise to that 19 was that at the time you were in the room you felt he 20 knew you were OPP and he was talking to you in order to 21 send a message; isn't that right? 22 A: I can't speak to his state of mind as 23 to whether he -- he, at that time, knew. I can tell you 24 I knew that I was an OPP member and I can tell you that I 25 took some offence to the notion that the OPP had
1151 heretofore in this particular matter, dropped the ball. 2 Q: And you felt, at the time, you -- you 3 said it to Carson, I don't need to take you to the exact 4 passage, you said to Carson, This man feels like he can 5 direct the OPP, or words to that effect? 6 A: That was certainly my feeling. 7 Q: And the reason you had that feeling 8 in part, I'm going to suggest to you, from your brief 9 foray with this Premier at the time, was that you felt 10 that these comments were not being made coincident with 11 your appearance but that, in fact, upon your 12 introduction, he was making those comments because you 13 were in the room, in part; isn't that right? 14 A: It certainly a possibility. I -- I 15 can't, from what I know, tell you with certainty that it 16 -- that it was. 17 Q: Fair enough. But you'd agree with 18 me, leaving aside whether it actually happened, that was 19 your feeling, and that's what, in part, animated your 20 frustration? 21 A: It was certainly my feeling the OPP 22 were criticized, or being criticized, and I believed 23 wrongly so. 24 Q: All right. Now if Premier Harris 25 didn't know you were a Member of the OPP, it might become
1161 more understandable why, for example, that Cabinet 2 Minister Hodgson didn't know; right? 3 A: That's possible. 4 Q: There may have just been one big 5 misunderstanding about your role; right? 6 A: I suppose, yes. 7 Q: You -- ˘I am told÷ -- this is a quote 8 by Mr. Hodgson, I'm -- I'm trying not to turn up paper 9 when we don't have to, Commissioner, Hodgson, quote, 10 September 6th, Premier's Dining Room: 11 "I am told I can't be involved in 12 police business so you stay out of 13 politics." 14 Wasn't that directed at you by Cabinet 15 Minister Hodgson in that Dining Room Meeting? 16 A: I testified to that effect, yes. 17 Q: Can -- can I pose a sort of an absurd 18 theory? If Cabinet Minister Hodgson thought you were a 19 mailman, do you think he'd be saying to you: I'm told I 20 can't be involved in police business, so you, Mr. 21 Mailman, stay out of politics. Does that make any sense? 22 A: It wouldn't make sense. 23 Q: No. The only common sense inference 24 to be drawn from what Cabinet Minister Hodgson was saying 25 to you was: I'm told I can't go in your bailiwick, so
1171 you stay out of mine; correct? 2 A: It certainly could be taken that way, 3 yes. 4 Q: In fact, to be fair, that is how you 5 took it that day; correct? 6 A: It's certainly the way I took it, 7 yes. 8 Q: Yes. And you -- you speak the 9 English language proficiently? 10 A: I -- I believe so, yes. 11 Q: You had no disabilities in hearing or 12 articulation on September 6th, 1995. 13 A: No. 14 Q: You were seen as sufficiently 15 qualified to be a Special Advisor for the Solicitor 16 General on First Nations' issues? 17 A: I believe so, yes. 18 Q: You sat in a small Premier's Dining 19 Room, and the Minister of Natural Resources said to you: 20 You stay out of politics because I'm told I have to stay 21 out of police business; right? 22 A: That is correct. 23 Q: And you took from that that he was 24 telling you: If -- if I can't be in the business of 25 cops, cops can't be in the business of politicians;
1181 right? 2 A: Summarized, yes. 3 Q: And there is no way in your mind at 4 that time that you thought that that Cabinet Minister 5 didn't know you were a police officer; right? 6 A: Again, sir, I can't speak to what was 7 in his mind. 8 Q: Yes. But it's fair -- and that's 9 completely -- your right, you're right. It simply lends 10 credence to my point about your sophistication. 11 But it's fair to say, that as far as you 12 were concerned that day, he knew you were a police 13 officer? 14 A: It may well be that he did, based on 15 certainly what I heard. 16 Q: Yes. Now, -- 17 COMMISSIONER SIDNEY LINDEN: I don't want 18 to interrupt you in the middle of a point, Mr. Falconer, 19 but I do want to take a lunch break soon. So would you 20 keep that in mind and decide when a good time to break 21 would be. 22 MR. JULIAN FALCONER: Yes. And -- and 23 what I suggest, and I'm in your hands, Mr. Commissioner, 24 is that we go five (5) to ten (10) minutes on the -- the 25 tape portion that --
1191 COMMISSIONER SIDNEY LINDEN: That's fine. 2 MR. JULIAN FALCONER: -- Ms. Vella set 3 up -- 4 COMMISSIONER SIDNEY LINDEN: That's fine. 5 MR. JULIAN FALCONER: -- and then we can 6 break. 7 8 CONTINUED BY MR. JULIAN FALCONER: 9 Q: So it's in that context I'm now 10 asking to be played, your reaction to that entire 11 incident in terms of your call to -- to Carson and Coles; 12 all right? 13 A: Yes. 14 Q: Thank you. 15 16 (AUDIOTAPE PLAYED) 17 18 MR. JULIAN FALCONER: Mr. Commissioner, 19 we're going to stop this tape, we're just -- we're -- 20 because we're going to go to September 6th. I think 21 we're on the 5th? 22 And it's not Ms. Vella's fault; I landed 23 this on her, so I appreciate her assistance. Sorry. 24 25 (BRIEF PAUSE)
1201 2 COMMISSIONER SIDNEY LINDEN: This is the 3 September 5th tape? 4 MS. SUSAN VELLA: I'm just -- this is the 5 6th, but I'm going to start from the beginning and then 6 we'll cut it off where... 7 8 CONTINUED BY MR. JULIAN FALCONER: 9 Q: This is after you've met with the 10 Premier and his cabinet and now you're calling to Carson 11 and Coles; correct? 12 A: September 6th, yes, sir. 13 Q: Yes. 14 15 (AUDIOTAPE PLAYED) 16 17 MS. SUSAN VELLA: Sorry, we're on the 18 second page, now, of the transcript. 19 20 (AUDIOTAPE PLAYED) 21 22 MS. SUSAN VELLA: I've just -- I've 23 started it from the beginning. We're now on page 259 of 24 Exhibit 240 -- sorry 444(A). 25 COMMISSIONER SIDNEY LINDEN: I'm looking
1211 at the binder that -- 2 MS. SUSAN VELLA: Okay. The second page. 3 COMMISSIONER SIDNEY LINDEN: The second 4 page? 5 MS. SUSAN VELLA: All right. 6 7 (AUDIOTAPE PLAYED) 8 9 MR. JULIAN FALCONER: All right. Now 10 this is the start of the passage I wanted to bring to 11 your attention and ask you about, so I'm simply stopping 12 this for one (1) second. If you can focus, then, Mr. 13 Commissioner, on page 4 of the transcript -- 14 COMMISSIONER SIDNEY LINDEN: Okay. 15 MR. JULIAN FALCONER: -- which is at Tab 16 33 of your Commission binder, I'd appreciate it and if 17 you can please continue now? 18 19 (AUDIOTAPE PLAYED) 20 21 CONTINUED BY MR. JULIAN FALCONER: 22 Q: I'm going to suggest to you, 23 Superintendent Fox, that your impression as reflected in 24 this transcript was one of pure surprise that you would 25 have been presented to a Premier and his Cabinet and that
1221 you would have been presented with the Premier's opinions 2 on the actions of the OPP, true? 3 A: That's fair. 4 Q: I'm going to suggest to you that it 5 ran completely contrary to all understandings you had 6 about the important divisions that are supposed to happen 7 between government and police, true? 8 A: True. 9 Q: Thank you. This is a good time for a 10 break. 11 COMMISSIONER SIDNEY LINDEN: Thank you. 12 We'll take a break now for lunch. 13 THE REGISTRAR: This Inquiry stands 14 adjourned until 1:35 p.m. 15 16 --- Upon recessing at 12:20 a.m. 17 --- Upon resuming at 1:37 p.m. 18 19 THE REGISTRAR: This Inquiry is now 20 resumed. 21 COMMISSIONER SIDNEY LINDEN: Good 22 afternoon everybody. What I would plan, Mr. Falconer, go 23 for about an hour, take a short break and then adjourn 24 for the day at about half past 3:00, that's what we 25 usually do; is that all right?
1231 MR. JULIAN FALCONER: Yes. Thank you, 2 Mr. Commissioner. 3 COMMISSIONER SIDNEY LINDEN: Keep that in 4 mind there's a -- 5 MR. JULIAN FALCONER: So we'll go for an 6 hour, take a break and then -- 7 COMMISSIONER SIDNEY LINDEN: 8 Approximately an hour, a short break, and then we'll go 9 to 3:30. 10 MR. JULIAN FALCONER: Very good. Thank 11 you, Mr. Commissioner. 12 13 CONTINUED BY MR. JULIAN FALCONER: 14 Q: Superintendent Fox, where we were at 15 was Ms. Vella was assisting us with the tape, and she set 16 up the next portion that I want to take you to -- just to 17 direct your attention, I understand we have a couple of 18 things going at once. 19 You have before you the logger tape, long 20 transcript; is that right? 21 A: I have both, sir. 22 Q: You have both? All right. 23 A: Yes. 24 Q: So why don't you work with the non- 25 logger tape, the binder there, because that's what I
1241 believe Mr. Commissioner is working with; is that right? 2 COMMISSIONER SIDNEY LINDEN: No. I've 3 been working with the Commission binder. 4 MR. JULIAN FALCONER: That's right. 5 That's what I meant -- 6 COMMISSIONER SIDNEY LINDEN: Yes. That's 7 the one -- 8 MR. JULIAN FALCONER: -- the binder. 9 COMMISSIONER SIDNEY LINDEN: -- you're 10 talking about? 11 MR. JULIAN FALCONER: Right. 12 COMMISSIONER SIDNEY LINDEN: Okay. 13 MR. JULIAN FALCONER: All right. And 14 that's at Tab 33 of the Commission binder. I'm just 15 trying to make sure that both the Commissioner and the 16 witness have the right page references. 17 18 (BRIEF PAUSE) 19 20 MR. JULIAN FALCONER: I want to make sure 21 that you, Mr. Commissioner, and the witness have the same 22 page references so we can follow. 23 COMMISSIONER SIDNEY LINDEN: Okay. 24 MR. JULIAN FALCONER: And we are at page 25 11 of Tab 33. Page 11. We're skipping where we were. I
1251 took the witness to that section where he expressed his - 2 - what he described as frustration to -- to Carson. 3 I am now taking the witness to where he 4 expressed his views to Chief Coles. 5 COMMISSIONER SIDNEY LINDEN: That's fine. 6 MR. JULIAN FALCONER: In other words, 7 it's the two (2) sections of the tape in order not to 8 play the whole tape for you, Mr. Commissioner. 9 COMMISSIONER SIDNEY LINDEN: Okay. We're 10 with you. 11 MR. JULIAN FALCONER: So we're now at 12 page 11 of the transcript. 13 MS. SUSAN VELLA: Just for the record, 14 it's Exhibit 444(a), it's page 272 at Tab 37. 15 16 (BRIEF PAUSE) 17 18 (AUDIOTAPE PLAYED) 19 20 CONTINUED BY MR. JULIAN FALCONER: 21 Q: Thank you, Ms. Vella. 22 Superintendent Fox, with the transcript 23 you have in front of you, I'd ask you to turn back to 24 page 11, please? And I'm at page 11 of the Tab 33 of the 25 Commission binder, and I'm advised of the fact that at
1261 the same My Friends are working with a different 2 document, so I'll tell them it's page 272 of the logger 3 tape. I'll be back and forth to try to help My Friends 4 as much as possible in this. 5 Now, at page 11, there is a reference to 6 Chief Coles saying he's now going to start getting some 7 pressure. 8 Now, first of all, who did you understand 9 to be the heat? 10 A: The heat? 11 Q: Yes. 12 A: The Commissioner. 13 Q: So, the Commissioner of the Ontario 14 Provincial Police was going to get some pressure, and who 15 did you understand Chief Coles was referring to as the 16 source of the pressure? 17 A: I don't know that he was referring to 18 any source of pressure, other than to say there had been 19 an awful lot of correspondence generated either directly 20 to the OPP, or through the Ministry, requiring an OPP 21 response that indicated displeasure with the situation on 22 the part of -- of a number of people in the Forest area. 23 Q: And in terms of the manner in which 24 this information came to the attention of the OPP, it's 25 fair to say that, for example, this displeasure came
1271 from, in part, the local MLA, Marcel Beaubien? 2 A: I -- I have no knowledge that it came 3 from Marcel Beaubien. 4 Q: All right. In any event, when you 5 said in answer to Chris Coles' point, quote: 6 "He's already -- he's already got it, 7 Chris." 8 Do you see that? 9 A: I do. 10 Q: What did you mean by that? 11 A: As I've just testified to, the OPP 12 had received numerous pieces of correspondence, either 13 directly, or as a result of them being sent through the 14 government, in particular the Solicitor General, and then 15 over to the OPP for a response, and those correspondence 16 -- pieces of correspondence I would say, in a large part, 17 indicated displeasure on the part of many people in the 18 Forest area with what was happening, vis-a-vis Camp 19 Ipperwash and Ipperwash Provincial Park. 20 Q: Is it fair to say that in the normal 21 course as an individual involved with government in the 22 fashion you were, one (1) of the responses of government 23 officials to those kinds of letters is to take actions 24 themselves, to -- to inquire into the problem? 25 A: That would be correct, yes.
1281 Q: And in answer to a constituent 2 expressing concerns to the Ministry of the Solicitor 3 General, it wouldn't be unusual for a Ministry official 4 to then contact the OPP, correct? 5 A: That's true. 6 Q: And so, when you referred to, 7 "pressure," I take it the pressure could either come 8 directly from citizens in the Forest area, for example, 9 or come indirectly from politicians concerned about their 10 constituents, correct? 11 A: That's possible, yes. 12 Q: So, the pressure had both a political 13 and a non-political element, correct? 14 A: That's reasonable, yes. 15 Q: Now, on the following page, Chief 16 Coles, at page 12, says: 17 "You know -- [and this is the third 18 paragraph] you know I will call the 19 Commissioner. I don't know if he's 20 there, but I'll call Boose's office and 21 say, you'd better get to the Commission 22 to say be careful here, because that's 23 what's going to happen; we're going to 24 lose control of it." 25 Do you see that?
1291 A: I do. 2 Q: I'm going to suggest to you, sir, 3 that in terms of the context of the conversation, Chief 4 Coles is expressing to you that if operational matters 5 are being discussed at the Cabinet level, or akin to the 6 Cabinet level, he is concerned that the politicians are 7 going to get involved in operational matters, is that 8 true? 9 A: I believe that to be based on his 10 statements, and the statement was, as I recall, "The 11 matter will be run there as opposed to here", yes? 12 Q: His concern was that the government 13 of the day not cross the line into attempting, or be seen 14 to be attempting to control police operational matters, 15 correct? 16 A: I think that that is part of it, sir. 17 The second part that I would see is that making an 18 assumption someone was well-intended. It still makes it 19 problematic for the police to have this other superfluous 20 stuff -- no disrespect meant there -- to deal with. 21 Q: And it's fair to say that a person 22 can actually have no sinister intention; they may want to 23 control events for what they perceive is the public 24 interest, but they can still make mistakes? 25 A: I would agree with that.
1301 Q: And one (1) of the mistakes that 2 Chief Coles was concerned about was crossing the line 3 from political into operational arena, correct? 4 A: I think he would be better to answer 5 it, but I -- I could draw that assumption from what he 6 was saying to me, yes. 7 Q: Yeah. And that's all -- I'm -- I'm 8 not asking you to climb into his mind. You were in a 9 conversation with the Chief, yes? 10 A: Yes. 11 Q: One (1) of the highest ranking 12 officers you report to in the OPP, yes? 13 A: Correct. 14 Q: In -- in a very serious situation 15 where you'd just been called into the Premier's Cabinet, 16 yes? 17 A: Yes. 18 Q: And you're reporting to this high- 19 ranking officer? 20 A: Correct. 21 Q: So, this conversation is something 22 you would have been paying attention to, yes? 23 A: Correct. 24 Q: And you would have been drawing 25 conclusions from words he expressed to you?
1311 A: I -- I certainly received the 2 message. 3 Q: Yes. And the message he sent to you 4 is: We could lose control of the Ipperwash operational 5 incident to the politicians; that was the message he was 6 worried about and sent to you? 7 A: Again, sir, I think it's a question, 8 perhaps, best put to -- to Chris Coles. My take of 9 that -- 10 Q: That would be too easy, wouldn't it? 11 A: My -- my take of that is that, yes, 12 he did have a concern. Again, whether you call it 13 political interference or interest of someone who may be 14 well-intentioned, it's difficult, from a policing 15 perspective, to manage that as well. 16 What I think is also clear in the first 17 part of this conversation was -- is -- and I believe a 18 very legitimate concern for officer safety so that all 19 the information was correct, and it didn't cause our 20 Members to feel unnecessarily put upon in what was a very 21 difficult situation. 22 Q: Fair enough. And in that somewhere 23 is a reference by you to whether the politicians would 24 intentionally cross the line, or might inadvertently, for 25 well-intentioned reasons, cross the line. He was
1321 concerned that they would cross the line, correct? 2 A: In -- in re-reading his -- the 3 transcript of our conversation from his perspective 4 that's possible, yes. 5 Q: All right. Now, when he said to you 6 in the next paragraph: 7 "Do the best you can, that's all you 8 can do, and I have no problem with you 9 calling John because I know that that's 10 it. Just make him step back. If you 11 maybe -- what they might do is bring up 12 every rumour for you to substantiate -- 13 every rumour -- and then, in fact, what 14 you do is you..." 15 And you answer: 16 "But I don't fall into that trap." 17 Do you see that exchange? 18 A: I do. 19 Q: And you were listening to Chief Coles 20 when he was speaking to you? 21 A: I was doing a lot of listening, yes. 22 Q: That often happens with a superior, 23 doesn't it? 24 A: Yes. 25 COMMISSIONER SIDNEY LINDEN: Yes, Ms.
1331 Perschy? Yes, Ms. Perschy? 2 MS. ANNA PERSCHY: Yes. Commissioner, I 3 had understood that the evidence of this witness was that 4 in fact he was not reporting to Coles at this time, he 5 was on secondment to the Solicitor General, and so 6 therefore, he would have been reporting to the Ministry 7 of the Solicitor General and not a senior ranking police 8 officer at this time. That was my understanding of the 9 evidence. 10 And all of these questions seem to be 11 suggesting that at this point in time Fox was reporting 12 to Coles. And that -- that seems to be in error, and I 13 just thought I'd raise that. 14 COMMISSIONER SIDNEY LINDEN: Well, I 15 think there was a -- well, I don't want to answer the 16 question. Do you want to deal with that? 17 MR. JULIAN FALCONER: Yes. I'm -- I'm 18 questioning in a relevant area, and I'm putting 19 suggestions to the witness, and he'll agree with them or 20 disagree with them. He has agreed with my suggestion and 21 I'm moving on. I'm not misquoting evidence to him. 22 COMMISSIONER SIDNEY LINDEN: No. I know 23 that. But with respect to the reporting, I thought you 24 indicated -- 25 MR. JULIAN FALCONER: Well, but --
1341 COMMISSIONER SIDNEY LINDEN: -- that the 2 evidence was -- 3 MR. JULIAN FALCONER: Here's the problem, 4 Mr. Commissioner, with great respect, and I don't mean to 5 interrupt you. This is not black and white. And I'm -- 6 I am performing what -- might be viewed as delicate 7 surgery here. And I -- I really request a little 8 latitude here because I understand -- 9 COMMISSIONER SIDNEY LINDEN: I -- 10 MR. JULIAN FALCONER: -- I understand the 11 problem but -- 12 COMMISSIONER SIDNEY LINDEN: I wasn't 13 going to interrupt you. 14 MR. JULIAN FALCONER: All right. 15 COMMISSIONER SIDNEY LINDEN: I thought 16 your evidence was -- basically had a dual reporting 17 relationship. 18 THE WITNESS: Yes, Your Honour, it was. 19 I recall in my examination-in-chief being asked that 20 question. By virtue of a secondment, I was seconded to 21 the Ministry of the Solicitor General as a special 22 advisor, with a direct reporting relationship to the 23 Deputy Solicitor General. 24 I acknowledged, when asked by Ms. Vella, 25 that I also have a responsibility and a duty to report as
1351 a police officer to my superior ranks within the 2 organization. I viewed, certainly this, whether it was a 3 report, or as part of an information, as a -- a piece of 4 my liaison function. 5 COMMISSIONER SIDNEY LINDEN: That's what 6 I thought his evidence was. 7 MR. JULIAN FALCONER: Thank you, Mr. 8 Commissioner. And that did clarify it for me, so thank 9 you for that. 10 11 CONTINUED BY MR. JULIAN FALCONER: 12 Q: The way you put it was you were doing 13 a lot of listening, when we were talking about this 14 paragraph at page 12; do you have that? 15 A: Yes, sir. 16 Q: And in doing a lot of listening what 17 you heard was Chief Coles say to you, Just make -- Just 18 make them step back. And the "them" he was talking about 19 were the political people that you were dealing with on 20 the other side of the equation; correct? 21 A: I believe that to be correct. 22 Q: And when he said, "Just make them 23 step back", he was including in the equation, for 24 example, Deb Hutton, a member of the Interministerial 25 Committee and from the Premier's office; correct?
1361 A: I suppose he could be including that 2 person, yes. 3 Q: And that's how you understood it? 4 A: Agreed. 5 Q: And it's fair to say that when you 6 told Ms. Vella that Ms. Hutton, quote: "spoke as if she 7 were the voice of the Premier" close quotes, you weren't 8 mistaken when you said that, were you? 9 A: No, I was not. 10 Q: All right. So in telling them to 11 step back, he was basically telling you to tell your, and 12 his political masters to step back; fair? 13 A: I believe that's a fair assumption. 14 I would think -- I would also qualify it, sir, by saying 15 it would not only be the political arm, but bureaucratic 16 arm of government as well. 17 Q: Fair. Both of them? 18 A: Correct. 19 Q: And he goes on to say to you: "what 20 they might do is bring up every rumour for you to 21 substantiate." Every rumour. And then, in fact, what 22 you do is -- and it's fair to say he's saying you're 23 being lulled into, what you called a trap, to discuss 24 operational matters? 25 A: That's what he was saying, yes.
1371 Q: Fair enough. Now, right after that, 2 you -- you then move on to report to Chief Coles about, 3 quote: "some more of what's gone on here" do you see 4 that? 5 A: I do. 6 Q: Now, you itemized for Chief Coles who 7 you were expected to meet with -- or who you actually met 8 with in the Premier's dining room on September 6th, 1995; 9 correct? 10 A: I did. 11 Q: And that was part of your reporting 12 function; correct? 13 A: To a degree. What I was at this 14 point trying to do was qualify for Chief Superintendent 15 Coles. Ultimately, it would be a report. The reality of 16 it is, you asked me a question, and I said I did a lot of 17 listening, and obviously I would with senior staff. 18 I was doing a lot of listening because 19 Chief Coles was concerned about the information flow. 20 What I wanted to impart to him, and to put it in context 21 was, that I wasn't the source of the errant information 22 flow; that that came from elsewhere within the circles, 23 and I believe, sir, I testified to that earlier. 24 I only want to make that clear. I do 25 agree there's a superior officer, and it would be a
1381 report of sorts. Why I went into it, yet again, was to 2 put it in context for the Chief. 3 Q: And I -- I take from what you're 4 saying, your simple point is -- is that one of your 5 functions as a liaison officer, is to get it right? 6 A: Correct. 7 Q: And the unfortunate perception you 8 were worried might be created is whatever misinformation 9 is floating amongst government circles, it didn't come 10 from you? 11 A: Yes, I was. 12 Q: And I appreciate your point. But 13 going from there -- going from there, when you set about 14 reporting to Chief Coles about the meeting in the 15 Premier's dining room of September 6, 1995, you say: 16 "I want to tell you some more of what's 17 going on here." 18 Do you see that? 19 A: I do. 20 Q: And then you set about reporting to 21 him about what you experienced, correct? 22 A: I did. 23 Q: Now, was it what you experienced days 24 before? 25 A: It was a compilation. I would say my
1391 frustration probably surfaced on the 6th. My frustration 2 -- excuse me -- was there prior to the 6th, with respect 3 to meetings that had been of the IMC. 4 Q: And I'm going to get to that, but if 5 I can clarify my question to you, because it was a bit of 6 a -- I apologize, it was a broad question. 7 When you sought to convey to him what 8 occurred in the Premier's dining room, was it an event 9 that had happened days before, or were you recounting 10 something that had happened an hour or two before? 11 A: No, with respect to the specific as 12 recorded in the transcript, I was advising of something 13 that had just happened mere hours before. 14 Q: And you suffered at the time from no 15 memory difficulties, right? 16 A: No, sir. 17 Q: And your job was to be a flow of 18 information what happens at government to the highest 19 ranking officials in the OPP, right? 20 A: Correct. 21 Q: And -- 22 COMMISSIONER SIDNEY LINDEN: There was 23 just -- 24 MR. JULIAN FALCONER: -- literally less 25 than a hundred and twenty (120) minutes --
1401 COMMISSIONER SIDNEY LINDEN: I had the 2 impression the witness was trying to say something, Mr. 3 Falconer. 4 Were you about to say something? I didn't 5 want you to -- 6 THE WITNESS: I was, your Honour. 7 MR. JULIAN FALCONER: I apologize. I 8 didn't mean to cut him off. 9 COMMISSIONER SIDNEY LINDEN: Yes, I -- 10 THE WITNESS: I agree with the reporting 11 relationship, but relative to specific events. There 12 would be no requirement for me to report to, by way of 13 example, the -- the Chief Superintendent involved with 14 anti-rackets. 15 It would be specific to whatever matter 16 the OPP were working at and on the ground at that time. 17 18 CONTINUED BY MR. JULIAN FALCONER: 19 Q: So it would be incident specific, or 20 case by case? 21 A: Correct. 22 Q: So that my question and your 23 acknowledgement stands for the Ipperwash occupation? 24 A: Correct. 25 Q: And I appreciate that clarification,
1411 and I missed his -- I didn't see what you saw, Mr. 2 Commissioner. Thank you. 3 COMMISSIONER SIDNEY LINDEN: I know. 4 5 CONTINUED BY MR. JULIAN FALCONER: 6 Q: And in fulfilling that obligation, 7 you were relaying something that had happened 8 approximately in the last one hundred and twenty (120) 9 minutes, isn't that right? 10 A: That would be correct. 11 Q: And on the following page, you said 12 the following. After naming the people that were at the 13 meeting, at the top of page 13, you said, quote: 14 "The Premier was quite adamant that 15 this is not an issue of native rights, 16 and in his words, I mean, we've tried 17 to pacify and pander to these people 18 for too long. It's now time for swift, 19 affirmative action." 20 Now, when you said to your superior, 21 quote: "In his words", who's words were you referring to? 22 A: The Premier. 23 Q: And this was all a recollection of 24 something that had happened in the last one hundred and 25 twenty (120) minutes?
1421 A: Correct. 2 Q: And do you have any doubt as to the 3 accuracy of the words of the Premier of Ontario that you 4 were relaying to your superior? 5 A: I believe my response here is as 6 close to verbatim as it could be. 7 Q: It wasn't about venting and being 8 frustrated with a colleague, was it? 9 A: I don't follow your question. 10 Q: I apologize, it's poorly framed. 11 Generally, the only time you don't follow is when I get 12 it wrong, so it's a good -- good barometer. 13 This was -- you called and talked to 14 Carson, he is a colleague? 15 A: Correct. 16 Q: You vented with your colleague? 17 A: That's correct. 18 Q: But now you're not with your 19 colleague anymore, right? 20 A: Agreed. 21 Q: Now, you're reporting to a superior? 22 A: Agreed. 23 Q: You're not venting anymore, are you? 24 A: Well, I think I'm still venting, sir. 25 Q: All right. Would you agree with me
1431 that you're a lot more careful when you're talking to 2 Chief Coles? 3 A: I would. 4 Q: All right. And you say, "The words 5 are as close to verbatim as they could be" is that fair? 6 A: As I can recall, yes sir. 7 Q: You go to say: 8 "I walked in the tail end, Chris, of 9 him saying something like, well, I 10 think the OPP made mistakes in this. 11 They should have just gone in." 12 Again, those words -- whose words were 13 they? 14 A: The Premier. 15 Q: And again, your recollection was as 16 close to verbatim as it could be? 17 A: I believe so. 18 Q: "He views it as a simple trespass to 19 property; that's in his thinking. He's 20 not getting the right advice, or if 21 he's getting right advice, he sure is 22 not listening to it in any way, shape, 23 or form." 24 Now, leaving aside the conclusions you 25 drew, and that's part of your job, isn't it, to advise
1441 the Solicitor General, and to report back to your 2 superiors on what's going on; it's part of your job, 3 right? 4 A: Yes. 5 Q: And you actually tried to be fair to 6 his advisors. It's entirely possible they were giving 7 him the right advice and he was ignoring it, isn't that 8 right? 9 A: Correct. 10 Q: But whatever advice he was getting, 11 what you took away from a meeting you had been at a 12 hundred and twenty (120) minutes earlier -- what you took 13 away was that the Premier wanted swift, affirmative 14 action from the OPP, correct? 15 A: I would agree that he wanted swift 16 action. I think in the context that I've said it here 17 was with respect to where he felt the OPP erred, and 18 there should have been swift action, certainly at that 19 time, and I believe that's coined in "just go in". 20 Q: And it's fair to say that the one (1) 21 thing this Premier was doing, as you recalled verbatim, 22 was expressing an opinion, correct? 23 A: Correct. 24 Q: Now, I -- I want to understand what I 25 call the mistaken identity theory, all right?
1451 So, it goes, according to Mr. Downard's 2 objection of earlier today, and other statements, that 3 there is a possibility, maybe a wisp of reality, that 4 they didn't know who you were. Do you remember 5 references to that? 6 A: I do. 7 Q: Now, would you agree with me that 8 first and foremost a responsibility for any high-ranking 9 manager is to generally, when dealing with very sensitive 10 matters, to be conscious of the people for whom he is 11 expressing views and statements. 12 Would you agree that it's important to 13 know who's in the room when you're talking? 14 A: I agree. 15 Q: For example, Chief Coles, if he 16 didn't know when he sat in a room for an OPP briefing, 17 that the targets of an investigation, say a biker gang -- 18 members of a biker gang -- happened to be sitting in the 19 room when he's briefing the room, that'd be 20 irresponsible, agreed? 21 A: Agreed. 22 Q: And that's because part of his job is 23 if he's going to talk, he should know who's in the room 24 and who he's talking to, agreed? 25 A: Agreed.
1461 Q: Now, so the mistaken identity theory 2 goes, you were a police officer, but someone may not have 3 known it, right? 4 A: That's possible, yes. 5 Q: Now, do you recall Mr. Fredericks for 6 Cabinet Minister Hodgson asking you a series of 7 questions? 8 A: I do. 9 Q: And Mr. Fredericks, quite 10 appropriately -- he's not here today for me to suck up 11 to, but if he was I would. He -- he -- he put to you in 12 very sort of inventory-style fashion a number of 13 different things that the -- the former Minister of 14 Natural Resources was going to contest you on. 15 Do you remember him going through a whole 16 list? 17 A: I do. 18 Q: And he listed -- I -- I'd -- I'd say 19 he -- he was right down to turkeys from helicopters and 20 everything else. 21 He -- he had a whole inventory of Brown 22 and Dunn, do you remember that? 23 A: I do. 24 Q: The one thing he didn't challenge you 25 on was your memory of Hodgson's statement to you, I'm
1471 told I'm to stay out of police, you stay out of politics; 2 he didn't contest that, did he? 3 A: No, sir. 4 Q: No. If Counsel for Deb Hutton is 5 right, if Counsel for Deb Hutton is right, and Deb Hutton 6 was in the room, in the Premier's dining room, you'd 7 agree with me she knew who you were? 8 A: It would be my assumption, but I 9 don't know that. 10 Q: How many hours did you spend with 11 her? 12 A: Over the course of two (2) meetings 13 it would be shy of five (5) hours, I would suggest. 14 Q: Could you cast your attention please, 15 and as well Mr. Commissioner, to Tab 14 of the 16 Commission's binder. 17 18 (BRIEF PAUSE) 19 20 Q: The first page of Tab 14 in front of 21 you, Superintendent, should be Exhibit P-506, which is 22 document number 1012231, and it is a fax cover of August 23 2nd, 1995, although frankly, what it says on the fax 24 cover is -- refers to minutes of meeting of August 2nd. 25 I'm looking for the date on it, I'm still not seeing it.
1481 Do you have that document in front of you? 2 A: I do. 3 Q: The idea is that members of the 4 Interministerial Committee are actually sent the minutes 5 with an updated list of committee members for them to 6 review prior to the next meeting; isn't that right? 7 A: Correct. 8 Q: On the list are the people that you 9 work with at the interministerial level; correct? 10 A: That's correct. 11 Q: So that front page fax cover 12 basically gives us the membership list of who is on the 13 receiving end of the minutes, who's involved, and what 14 they do in life; right? 15 A: Correct. 16 Q: Would you please read out what it 17 says beside your name, under "Ministry"? 18 A: It says "OPP". 19 Q: And you were an OPP officer? 20 A: Was, yes. 21 Q: You still are an OPP officer? 22 A: Yes, sir. 23 Q: Now, four (4) names below that, whose 24 name do you see? 25 A: Deb Hutton.
1491 Q: It was your job as a member of the 2 Interministerial Committee to receive and review these 3 documents; correct? 4 A: Correct. 5 Q: You knew that the work you were doing 6 was of a highly sensitive nature? 7 A: I would agree. 8 Q: And so you carefully reviewed the 9 materials in preparation for meetings? 10 A: I did. 11 Q: When operational matters did come up 12 at these meetings, who was it who spoke to the issue? 13 A: Myself. 14 Q: When policing perspective was sought 15 at these meetings, from whom was it sought? 16 A: From me. 17 Q: Did Deb Hutton ever give you an 18 impression that she didn't know you were from the OPP? 19 A: She didn't give me an impression 20 either way, sir. 21 Q: All right. Did you have any basis to 22 believe that Deb Hutton didn't know you were from the 23 OPP? 24 A: No, sir. And after review of this 25 cover sheet, even less so.
1501 Q: Your responsibility was to report to 2 the Deputy Solicitor General, among others? 3 A: Correct. 4 Q: Would you assist me, please, on who 5 that would have been at the time? 6 A: At this particular snapshot in time? 7 Q: Yes. 8 A: Elaine Todres was the Deputy 9 Solicitor General. 10 Q: And Ms. Todres' name, am I 11 pronouncing it correctly, because I've struggled with it 12 before? 13 A: Todres, yes. 14 Q: All right. And was Ms. Todres the 15 Deputy Solicitor General on September 6th, 1995? 16 A: She was. 17 Q: And she would have been one of the 18 people in the room, in the Premier's dining room? 19 A: Correct. 20 Q: So can we -- can you and I agree on 21 one thing? How -- no matter how difficult this is going 22 to be for me, the one thing you're not going to tell me 23 is that Ms. Todres didn't know you were a police officer? 24 A: Well, she definitely knew I was. 25 Q: Good, all right. Now, Ms. Todres
1511 reports to who? 2 A: The Solicitor General. 3 Q: And that was Robert Runciman? 4 A: Correct. 5 Q: And you had occasion, on a few times 6 you've testified, to brief Robert Runciman directly? 7 A: Correct. 8 Q: At any time did Robert Runciman ever 9 indicate to you a misunderstanding as to who you were? 10 A: No, sir. 11 Q: All right. So now we have Ms. 12 Hutton, Ms. Todres, and Solicitor General Runciman who 13 all seem to give absolutely no indication that they 14 suffered from mistaken identity, would you agree with me? 15 A: Agreed. 16 Q: All right. Let's move now to the 17 deputy Attorney General, Larry Taman. A very thorough, 18 professional, competent man, yes? 19 A: I would agree. 20 Q: You'd had occasion through Ms. -- 21 COMMISSIONER SIDNEY LINDEN: Ms. Perschy 22 -- yes? 23 MS. ANNA PERSCHY: I'm sorry, 24 Commissioner. It's a bit delayed -- 25 COMMISSIONER SIDNEY LINDEN: I'm sorry, I
1521 can't hear you. You got to -- 2 OBJ MS. ANNA PERSCHY: I'm sorry. I've got 3 an objection to that last question. I was just slow 4 getting up here. My Friend's -- the assumption with 5 respect to My Friend's questioning appears to be based on 6 this fax sheet that was sent to Mr. Fox. He was asked if 7 he'd reviewed it, he indicated yes, and the assumption 8 there seems to be in respect of Ms. Hutton that she 9 received and reviewed the fax cover sheet along with the 10 minutes. 11 And -- but he -- there's no foundation for 12 whether or not Ms. Hutton actually reviewed the cover 13 sheet, and -- and that's my objection to that last 14 question that Mr. Falconer put. 15 COMMISSIONER SIDNEY LINDEN: That's fine. 16 17 (BRIEF PAUSE) 18 19 COMMISSIONER SIDNEY LINDEN: Mr. 20 Downard...? 21 MR. PETER DOWNARD: Just a small point. 22 For the sake of accuracy of the record and -- and anyone 23 taking the wrong inference, or premature inference, the 24 evidence to date is so far is that Deb Hutton was not at 25 the August 2nd meeting --
1531 COMMISSIONER SIDNEY LINDEN: No. 2 MR. PETER DOWNARD: It was Brett 3 Laschinger from the Premier's office. 4 COMMISSIONER SIDNEY LINDEN: Yes, yes. I 5 think that's clear from the minutes, but we're referring 6 to the fax cover sheet, I think, and whether or not she 7 got it, whether or not she read it. We don't know that. 8 MR. PETER DOWNARD: Sure. 9 COMMISSIONER SIDNEY LINDEN: Mr. 10 Falconer, do you want to speak to that? We don't know if 11 Ms. Hutton ever received a fax cover sheet or read it. 12 MR. JULIAN FALCONER: I'm developing. 13 COMMISSIONER SIDNEY LINDEN: Yes. 14 MR. JULIAN FALCONER: I'm developing my 15 mistaken identity theory, but I want to back up. This 16 fax cover sheet encloses the August 2nd minutes -- 17 COMMISSIONER SIDNEY LINDEN: Yes -- 18 MR. JULIAN FALCONER: -- but the 19 evidence, in anticipation of the next meeting, Ms. Hutton 20 did attend. So, in other words, there is a couple of 21 issues here. 22 First of all, Ms. Hutton's -- it was her 23 membership, her receipt of the paper. Ms. Hutton could 24 get up on the stand and expound on the mistaken identity 25 theory. They will all have an opportunity to do that,
1541 and we'll have an opportunity to cross-examine them. 2 COMMISSIONER SIDNEY LINDEN: Well -- 3 MR. JULIAN FALCONER: But my point is, I 4 am linking it up in a fair way to the witness -- 5 COMMISSIONER SIDNEY LINDEN: Well -- 6 MR. JULIAN FALCONER: I've asked the 7 witness his experience with the paper, I've asked the 8 witness his experience with the people involved, and I 9 think I'm being fair -- 10 COMMISSIONER SIDNEY LINDEN: And you 11 pointed out that in the cover sheet it says that he's an 12 OPP -- but you haven't said, because you can't, whether 13 or not Ms. Hutton received -- 14 MR. JULIAN FALCONER: No, that's right. 15 COMMISSIONER SIDNEY LINDEN: -- it or 16 read it at this point. 17 MR. JULIAN FALCONER: That's right. 18 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 19 Perschy. You're further objection? 20 MS. ANNA PERSCHY: Just one last point, 21 Commissioner. There's a distinction between the fax 22 cover sheet, which is what Mr. Falconer referred to, and 23 the minutes themselves. And in the minutes themselves, 24 the reference to Ron Fox is "SGC", Solicitor General's 25 office --
1551 COMMISSIONER SIDNEY LINDEN: Yes, I -- 2 MS. ANNA PERSCHY: -- and not to the OPP. 3 COMMISSIONER SIDNEY LINDEN: Yes, I -- 4 MS. ANNA PERSCHY: So there is a 5 distinction between the minutes on the one hand, and -- 6 and the fax cover sheet. 7 COMMISSIONER SIDNEY LINDEN: Well, 8 whether there is or not, your point was, we don't know 9 whether or not Ms. Hutton ever received this, or read it, 10 or the fax cover sheet. 11 MS. ANNA PERSCHY: Precisely, and that -- 12 and that last question that Mr. falconer had raised was 13 assuming that she had, in fact, received and reviewed -- 14 COMMISSIONER SIDNEY LINDEN: I'm not sure 15 that -- 16 MS. ANNA PERSCHY: -- the fax cover 17 sheet. 18 COMMISSIONER SIDNEY LINDEN: -- it was, 19 but in any event, your point is taken. 20 Yes, Mr. Falconer...? 21 MR. JULIAN FALCONER: I -- I want to 22 clarify that the time we're spending on this, Mr. 23 Commissioner, is fruitful. Is My Friend saying, much as 24 Mr. Fredericks has, is My Friend saying that she is going 25 to call her client to say that she spent hours with this
1561 man, and didn't know he was an OPP officer? 2 COMMISSIONER SIDNEY LINDEN: I don't know 3 what she's going to say -- 4 MR. JULIAN FALCONER: Well, no -- 5 COMMISSIONER SIDNEY LINDEN: But I don't 6 think that's the point. 7 MR. JULIAN FALCONER: -- because if she's 8 not saying that, Mr. Commissioner, we're wasting a lot of 9 time. 10 COMMISSIONER SIDNEY LINDEN: Well, we'll 11 say what that becomes -- 12 MR. JULIAN FALCONER: Well, I just say 13 that because if she's not going to say that, if -- if My 14 Friend actually knows that her client knew he was an OPP 15 officer, this is quite, with respect, a hollow objection 16 that wastes -- 17 COMMISSIONER SIDNEY LINDEN: Yes. 18 MR. JULIAN FALCONER: -- a lot of time. 19 COMMISSIONER SIDNEY LINDEN: I don't 20 know -- 21 MR. JULIAN FALCONER: On the other hand, 22 My Friend may well want to rise, because I invite her to, 23 and say that Ms. Hutton will testify -- 24 COMMISSIONER SIDNEY LINDEN: Well -- 25 MR. JULIAN FALCONER: -- under Oath that
1571 she spent hours with -- 2 COMMISSIONER SIDNEY LINDEN: I -- 3 MR. JULIAN FALCONER: -- the man who she 4 knew -- 5 COMMISSIONER SIDNEY LINDEN: I don't want 6 to -- 7 MR. JULIAN FALCONER: -- was a police 8 officer. 9 COMMISSIONER SIDNEY LINDEN: -- waste any 10 more time on this, Mr. Falconer. I don't think it's 11 necessary. 12 MR. JULIAN FALCONER: All right, fair 13 enough. 14 COMMISSIONER SIDNEY LINDEN: I think we 15 should just carry on. 16 MR. JULIAN FALCONER: All right. That 17 could be under the category of taunting. 18 19 CONTINUED BY MR. JULIAN FALCONER: 20 Q: Sir, do you have water? 21 A: I have. 22 Q: Good. I need some. We were at the 23 Solicitor General, Mr. Runciman, and we were moving onto 24 Larry Taman. 25 Had you met Mr. Taman before the meeting
1581 of September 6th, 1995, in the Premier's dining room? 2 A: I believe that I had. 3 Q: Is it fair to say that among other 4 times, and there's a note of it, and I can take you to 5 it. I'll be honest, I don't have it on the tip of my 6 fingers, but if you want to see it, I'll show it to you. 7 There's a note of a meeting in which Julie 8 Jai, and yourself, and Mr. Taman are in the same room 9 discussing the next steps on the Ipperwash matter. Does 10 that sound familiar? 11 A: I believe, sir, the "Ron" referred to 12 in Ms. Jai's notes was Ron -- Ron Vrancourt. 13 Q: All right. 14 A: But I -- I do believe that I met Mr. 15 Taman at ONAS, and I don't believe in the first throes it 16 was related to Ipperwash. 17 Q: All right. 18 A: But I did know or had met him. 19 Q: And it's fair to say that Mr. Taman 20 did not strike you as a person given lightly to 21 understanding what was going on around him? 22 A: No, I -- I didn't see him as that 23 type of person. 24 Q: Pretty sharp guy? 25 A: I would agree.
1591 Q: Was there any indication in your 2 mind, either on the date prior to September 6th, 1995, 3 before the meeting in the Premier's dining room, or on 4 September 6th, 1995, was there any indication that the 5 Deputy Attorney General of the day, Mr. Taman, was 6 mistaken about your identity? 7 A: I don't believe so. 8 Q: All right. So, we can add Mr. Taman 9 to the list. 10 Now, Mr. Taman, his responsibility was to 11 advise the Attorney General, yes? 12 A: Agreed. 13 Q: And Mr. Harnick was in that dining 14 room? 15 A: Correct. 16 Q: Did Mr. Harnick every say, stop, wait 17 a second, I -- I didn't catch who we're talking to, who's 18 in the room now? Did he stop anything, or ask for 19 clarifications to who you were? 20 A: No, sir. 21 Q: Did he whisper over to Mr. Runciman, 22 Who is that guy? 23 A: Not that I recall. 24 Q: All right. So, you've got no 25 indication from Mr. -- from Mr. Harnick, the Attorney
1601 General, that he suffered from the mistaken identity? 2 You got no indication that he suffered from the mistaken 3 identity theory? 4 A: No, sir. 5 Q: Who do we have left, the Premier. 6 You testified that Deb Hutton is the voice 7 of the Premier. Do you remember saying that? 8 A: I do. 9 Q: Mr. Downard vigorously cross-examined 10 you on many things over -- over a fair number of hours, 11 correct? 12 A: Yes. 13 Q: I don't remember him ever challenging 14 you on that proposition that Deb Hutton is the voice of 15 the Premier. Do you remember him challenging you on 16 that? 17 A: I do not. 18 Q: Let's assume, for the purposes of the 19 evidence before the Commissioner right now, that Deb 20 Hutton was the voice of the Premier, all right; let's 21 assume it for a moment. 22 A: Yes. 23 Q: Would you agree with me that one (1) 24 of the impressions Ms. Hutton conveyed to you at the 25 meetings of September 5th and 6th, 1995, was that she had
1611 direct access to the Premier? 2 A: Yes. 3 Q: And that in addition to being the 4 voice for the Premier, that she was going to take back 5 whatever happened at this meeting to the Premier? 6 A: I -- I would presume that would be 7 the case, yes. 8 Q: And so, if -- hypothetically, if Deb 9 Hutton knew who you were, then there is some logic that 10 the person whose voice she was knew who you were, would 11 you agree with that? 12 MS. SUSAN VELLA: I -- just hang on. 13 MR. JULIAN FALCONER: No, I can withdraw 14 it and move on. I can withdraw it and move on. 15 MS. SUSAN VELLA: Just let me -- 16 MR. JULIAN FALCONER: No, I've got it. 17 18 CONTINUED BY MR. JULIAN FALCONER: 19 Q: Mr. Downard did query or challenge 20 you on a number of propositions, and I want to explore 21 one (1) or two (2) of them that he did challenge you on. 22 One (1) of the suggestions made to you was 23 that you exaggerated the position being advanced by the 24 Premier, do you remember that? 25 A: I do.
1621 Q: Could you please direct your 2 attention to the blue binder? 3 4 (BRIEF PAUSE) 5 6 Q: Direct your attention, please, to Tab 7 3? 8 MS. SUSAN VELLA: And this is Inquiry 9 Document Number 6000379. 10 MR. JULIAN FALCONER: Thank you, Ms. 11 Vella. I'm going to be deep in debt by the end of this. 12 13 CONTINUED BY MR. JULIAN FALCONER: 14 Q: You testified that, as far as you 15 were concerned, the views being expressed by the 16 government of the day, and in particular the Premier, 17 were rednecked, aggressive, and showed a lack of 18 restraint. 19 That was the gist of your testimony; 20 correct? 21 A: Yes. I believe that was accurate. 22 Q: And you described Ms. Hutton in not 23 necessarily flattering terms; correct? 24 A: Correct. 25 Q: And some of the language, on
1631 reflexion, you probably would apologize for; correct? 2 A: That's true. 3 Q: But the bottom line is, as far as you 4 were concerned, you were accurate in describing the 5 political and human rights position that these people 6 were taking with respect to aboriginal interests? 7 A: I was accurate in the -- what I -- 8 what I put forward. I testified to it. I was asked, 9 language aside, would the message have been the same, or 10 words to that effect, and I agreed. 11 Q: Counsel for Ms. Hutton put to you 12 that you were perhaps unduly influenced by being faced 13 with a woman who wielded power, and that that might have 14 influenced you; do you remember her putting that to you? 15 A: I do. 16 Q: All right. I want to take you to 17 some of the other people at that meeting, women, and 18 their descriptions of Ms. Hutton's statements, and ask if 19 it rings a bell, and it's consistent with your memory; 20 all right? 21 Could you please direct your attention to 22 page 13 of the Answers to Undertakings. Actually, if you 23 could go to page 17. And -- and you'll recall the page 24 numbers appears above the row that says "Answer". 25 And to be fair, Mr. Commissioner, to the
1641 record, because I asked Mr. Downard for exactly this 2 clarification, if you have regard to page 13 you see a 3 question, and all of these answers are in answer to that 4 question. So I think it's important that I direct the 5 attention appropriately to page 13 first. 6 "Please make inquiries", do you see that, 7 Mr. Commissioner at page 13? 8 COMMISSIONER SIDNEY LINDEN: Yes, I do. 9 MR. JULIAN FALCONER: "Please make 10 inquiries and advise whether 11 individuals in attendance at the 12 meeting recall Ms. Hutton commenting 13 that the Premier was hawkish, and the 14 circumstances of such comments, 15 including Ms. Hutton's manner of 16 speaking, and other people's reactions. 17 Please note that because of the cross- 18 references in this and the series of 19 questions which follow." 20 Et cetera, et cetera. I can tell you that 21 reading Mr. Klippenstein's extensive work on this file, 22 it's extraordinary the level of detail he and his 23 colleagues have put into this. 24 The bottom line is, at page -- see, there 25 is my suck-up to Klippenstein -- at -- at page 17, I want
1651 to run the answer provided by one of the attendees at the 2 meeting, Ms. Anna Prodanou. Do you see that at 17? 3 A: I do, sir. 4 Q: All right. Now, do you -- I mean, is 5 Ms. Prodanou, in any way, work with you? 6 A: No. 7 Q: And Ms. Prodanou was a member of the 8 Interministerial Committee, and attended the meetings 9 where the Premier's views were discussed; correct? 10 A: Agreed. 11 Q: And Ms. Prodanou states as follows, 12 quote: 13 "Yes, I do recall Deb Hutton saying 14 that the Premier was hawkish. The 15 circumstances were as follows. 16 Ministry staff were advocating caution 17 and debating whether to proceed with an 18 injunction or to wait for the 19 occupiers' demands in order to enter 20 into negotiations with them [period]." 21 Stopping there. Sir, could you note the 22 usage of quotes by Counsel for Ms. Prodanou; do -- do you 23 see that? 24 A: I -- I don't follow your -- 25 Q: If you go back, do you see "Anna
1661 Prodanou advises" and then, open quotes, "Yes, I do" et 2 cetera; do you see that? 3 A: I do, yes. 4 Q: It is in the fist person and Counsel 5 is actually quoting Ms. Prodanou; do you see that? 6 A: Yes. 7 Q: All right. I'm going to continue 8 now: 9 "Someone said that if the Committee got 10 an injunction, it would have to act on 11 it, and this will escalate the issue. 12 Someone else said the Committee should 13 wait for their statement, i.e. the 14 occupiers' demands. The Court will 15 expect the Committee to act on the 16 injunction to -- and to execute it, and 17 remove the occupiers. 18 Someone stated that public safety was 19 not an issue. Someone asked, what was 20 the government's tolerance level, and 21 that there might be some potential 22 damage to park property. 23 There was a short discussion about 24 another First Nations' site, Serpent 25 Mounds, where there was a disturbance.
1671 Deb Hutton asked why this Committee, 2 the Interministerial Committee, did not 3 meet to deal with Serpent Mounds. 4 Deb Hutton said that the Premier was 5 hawkish, and that 'we're being 6 tested'." 7 Quotes around the words "we're being 8 tested". 9 "Someone said that the government had 10 not dealt with SPR's Statement of 11 Political Relationship. Deb Hutton 12 said that [quote] 'we have clear 13 ownership of the property, maybe we 14 should act?', [close quotes]. 15 Ms. Hutton interrogated members of the 16 Committee. She was impatient and 17 critical. her statement and the 18 statements of her colleagues showed 19 that she perceived the occupiers as 20 engaging in criminal activity, and that 21 the Committee was not willing to act. 22 The occupiers were compared to Hell's 23 Angels. 24 Many members of the Committee were 25 disturbed by these comments. There was
1681 a growing rift in the meeting with 2 Ministry staff trying to outline legal 3 options that would not escalate 4 matters." 5 Now, I appreciate you may not remember all 6 of the words expressed by Ms. Hutton, but is it fair to 7 say that when you sought to explain how the approach, or 8 the ideological approach with respect to native rights 9 was being pursued by the government of the day, it was 10 with a view to these kinds of comments? 11 A: Generally, yes. 12 Q: All right, now I want to take you -- 13 and by the way, Anna Prodanou, she's a woman, yes? 14 A: Correct. 15 Q: Yeah. I want to take you to the next 16 answer. I'm not going to go through every single one, 17 Mr. Commissioner. 18 COMMISSIONER SIDNEY LINDEN: Oh -- 19 MR. JULIAN FALCONER: But this is -- this 20 is with great respect, very important, so I'm begging 21 your patience -- 22 COMMISSIONER SIDNEY LINDEN: Well, with 23 respect, though, the witness indicated that Ms. Hutton's 24 gender was not a factor in his assessment of her. 25 MR. JULIAN FALCONER: But what --
1691 COMMISSIONER SIDNEY LINDEN: He did say 2 that in his answer. 3 MR. JULIAN FALCONER: Very understandable 4 questioning by council for Ms. Hutton -- 5 COMMISSIONER SIDNEY LINDEN: Yes. 6 MR. JULIAN FALCONER: I repeat, very 7 understandable questioning. 8 COMMISSIONER SIDNEY LINDEN: But the 9 answer was that it had no bearing on his assessment. 10 MR. JULIAN FALCONER: And that's 11 obviously for you to determine -- 12 COMMISSIONER SIDNEY LINDEN: Yes. 13 MR. JULIAN FALCONER: -- at the end of 14 the day, and I'm simply addressing -- 15 COMMISSIONER SIDNEY LINDEN: No, but 16 you -- 17 MR. JULIAN FALCONER: -- that. 18 COMMISSIONER SIDNEY LINDEN: -- you're 19 pointing out other women, and I'm not sure how -- 20 MR. JULIAN FALCONER: That's right. 21 COMMISSIONER SIDNEY LINDEN: -- important 22 that is -- 23 MR. JULIAN FALCONER: All right. 24 COMMISSIONER SIDNEY LINDEN: -- at this 25 point.
1701 2 CONTINUED BY MR. JULIAN FALCONER: 3 Q: Page 15, do you see the relevance or 4 the reference to Elizabeth Christie? Do you see that 5 "Elizabeth Christie advises..."? Page 15. 6 A: I do. 7 Q: Now, Elizabeth Christie, and I'm not 8 going to refer to her gender -- 9 COMMISSIONER SIDNEY LINDEN: Because 10 gender's not important, I don't think. 11 MR. JULIAN FALCONER: No, so I'm not 12 talking about it. 13 14 CONTINUED BY MR. JULIAN FALCONER: 15 Q: Elizabeth Christie, I won't make any 16 more efforts at humour, Elizabeth Christie is a Crown 17 Counsel with the Ministry of the Attorney General. You - 18 - you see again, she's being quoted that -- and she's 19 speaking in the first person. Do you see that? 20 A: I do. 21 Q: Quote: "Yes, I recall Deb Hutton 22 commenting that the Premier was 23 hawkish. Although I recall the 24 comment, it's difficult to place this 25 comment precisely without looking at my
1711 notes from the meeting. 2 My recollection without doing so is 3 that it was in the context of 4 discussions about what options were 5 available to the government to remove 6 the occupiers from the Park, and 7 whether we should allow the MNR and OPP 8 to continue their informal efforts to 9 communicate with the group and get them 10 to leave that way. 11 Ms. Hutton seemed somewhat agitated, 12 and exasperated when she made the 13 comment. I recall people being 14 somewhat puzzled by the comment, not 15 knowing what she really meant, but not 16 being too surprised given the ideology 17 of the administration, the knowledge 18 that the administration had only been 19 in Office since June, and had not had 20 to deal with this type of situation 21 yet, and that the stand off in 22 Gustafson Lake was still ongoing. 23 My recollection is that this was the 24 reaction to the comment by several 25 people, but I can't recall specific
1721 statements by other individuals." 2 Again, is that somewhat consistent with 3 your recollection of what you saw through Ms. Hutton? 4 A: Generally, yes. 5 Q: All right, now if I could direct your 6 attention to page 13. Eileen Hipfner, do you see that? 7 A: I do. 8 Q: Eileen Hipfner is, again Counsel, but 9 Counsel with ONAS, okay? Eileen Hipfner: 10 "According to my meeting notes, at the 11 September 5th meeting of the 12 Interministerial group, Deb Hutton 13 said, quote: 'The Premier is hawkish on 14 this issue'. 15 She added that the government's 16 response to the occupation of Ipperwash 17 Provincial Park would set the tone for 18 how it deals with these issues over the 19 next four (4) years; that is, it's 20 first term of office. 21 Even without reference to my meeting 22 notes, I recall Ms. Hutton making that 23 comment. I do not recall Ms. Hutton 24 employing the word 'hawkish' again 25 during the meeting of September 5th and
1731 6th. Ms. Hutton's statement followed a 2 discussion by the group about how to 3 deal with the occupiers in the Park. 4 An MNR employee, whose name is not 5 recorded in my notes, had observed that 6 the Stoney Pointers were occupying an 7 empty provincial park, and that the 8 government should not be too 9 precipitous about what it did, even 10 with respect to obtaining an 11 injunction. 12 The MNR employee questioned whether 13 there was really an argument that could 14 be made that the situation at the Park 15 was urgent. 16 Jeff Bangs suggested [and I'm at the 17 top of 14] -- Jeff Bangs suggested that 18 the government could afford to wait; 19 that if it obtained an injunction, we 20 will be expected to move into the Park, 21 and that the situation should not be 22 escalated. 23 He pointed out that public safety did 24 not seem to be an issue at that time, 25 and that the reduced urgency would
1741 diminish the likelihood of successfully 2 obtaining an injunction. It was at 3 that point Ms. Hutton made the comment 4 in question. Concerning Ms. Hutton's 5 manner of speaking, I recall only that 6 I found it imperious. 7 I was initially confused by Ms. 8 Hutton's statement. I did not 9 initially understand what she meant, 10 and when I had digested the meaning of 11 the word 'hawkish' I was taken aback in 12 anger. 13 There was no immediate reaction to this 14 comment from participants at the 15 meeting, most people were listening to 16 discussions and taking notes, but there 17 was subsequent discussion, certainly at 18 the meeting the next day, concerning 19 the requirement to leave police 20 operational matters to the OPP." 21 Again, is that consistent with your 22 recollection of how Ms. Hutton conducted herself at that 23 meeting? 24 A: Correct. 25 Q: Sir, do you know of any indication
1751 that any one (1) of these women, or people were venting 2 or angry or frustrated when they wrote this undertaking 3 answer? 4 A: I have no knowledge that they were. 5 Q: Reasonable people can differ, agreed? 6 A: Correct. 7 Q: So, there would be other people, and 8 to be fair to the record, and to be fair to you, Mr. 9 Commissioner, there are other people who have varying 10 recollections of that meeting, so I don't want to be seen 11 as simply cherry picking, but while reasonable people can 12 differ, it's quite extraordinary that that number of 13 people agree with your recollection, isn't it? 14 A: Correct. 15 Q: It's fair to say -- now, I -- I just 16 -- I need to understand something. They all remembered 17 the word "hawkish", do you remember that? 18 A: Correct. 19 Q: And that's consistent with your 20 memory? 21 A: Correct. 22 Q: I -- I have a fondness for the 23 dictionary so I'm going to read you a definition, a 24 dictionary definition of, "hawkish" and ask if you agree 25 with it or not.
1761 Under the Miriam Webster Dictionary, the 2 third definition, quote: 3 "One who takes a militant attitude and 4 advocates immediate, vigorous action, 5 especially a supporter of a war, or 6 war-like policy. Compare to a dove" 7 Close quotes. Is that your understanding 8 of the meaning of the word "hawkish"? 9 A: Yes, the analogy between the hawk and 10 the dove. 11 Q: I feel great justification in that 12 for a number of reasons. 13 And I'm going to suggest to you that in 14 the context of that meeting, it wasn't simply that Ms. 15 Hutton was hawkish, it was that she made a point of 16 making it clear -- verbatim clear -- that it was the 17 Premier who was hawkish, isn't that true? 18 A: Correct. 19 Q: She made a point of telling you what 20 the Premier's opinion was, isn't that true? 21 A: Not only me, the Committee, yes. 22 Q: It's fair to say that the one (1) 23 thing that you did not doubt for a minute by the end of 24 the meeting on September 5th, 1995, was that Premier Mike 25 Harris had a hawkish view in respect of native rights,
1771 and wanted those people out of there, isn't that right? 2 A: Correct. 3 Q: And when that opinion was expressed 4 to you by Deb Hutton, you operated under the theory that 5 you knew -- I'm sorry, I'm going to back it up, I -- I 6 misstated the question. 7 When Deb Hutton expressed the opinion of 8 the Premier to you, you knew who she was? 9 A: I did. 10 Q: And you had no indication from her 11 that she didn't know who you were, did you? 12 A: No, sir. 13 COMMISSIONER SIDNEY LINDEN: Would this 14 be a good point to take a short break? 15 MR. JULIAN FALCONER: It is. 16 THE REGISTRAR: This Inquiry will recess 17 for fifteen (15) minutes -- excuse me, ten (10) minutes. 18 19 --- Upon recessing at 2:36 p.m. 20 --- Upon resuming at 2:49 p.m. 21 22 THE REGISTRAR: This Inquiry is now 23 resumed. Please be seated. 24 25 CONTINUED BY MR. JULIAN FALCONER:
1781 Q: Could you direct your attention, 2 please, Superintendent Fox, to Tab 16 of the Commission's 3 cross-examination binder. 4 5 (BRIEF PAUSE) 6 7 Q: In front of you should be a -- a 8 handwritten single page which has August 29th, 1995 on 9 the top? 10 A: Correct. 11 COMMISSIONER SIDNEY LINDEN: I believe 12 it's Exhibit 508; is that right? 13 MR. JULIAN FALCONER: I was about to do 14 the document number. I don't have it as an exhibit 15 number. It's document number 1003740 and it's at Tab 16 16 of Commission Counsel's examination binder. 17 MS. SUSAN VELLA: And that is Exhibit P- 18 508, Commissioner. 19 MR. JULIAN FALCONER: Thank you, Mr. 20 Commissioner. 21 22 CONTINUED BY MR. JULIAN FALCONER: 23 Q: My understanding from the index of 24 Commission Counsel's binder, this is a note by one Mr. 25 David Carson of ONAS; does that sound familiar?
1791 A: Correct. 2 Q: It says, August 29th, 1995, that he 3 called you, Ron Rox; do you see that? 4 A: I do. 5 Q: It goes on to say: 6 "Since July 31st Beaubien has met with 7 Superintendent Parkin and Inspector 8 Carson to discuss policing matters 9 generally. Met on August 18th." 10 Do you see that? 11 A: I do. 12 Q: Now, this would have been information 13 being imparted to you, Ron Fox, by Mr. Dave Carson? 14 A: I believe what he is imparting is his 15 reflection of a conversation that he and I would have 16 had. My sense is the first bullet point is that I've 17 informed him that Mr. Beaubien had met with 18 Superintendent Parkin. 19 Q: So I simply got the information flow 20 backwards, it was you telling Mr. Carson this 21 information? 22 A: Correct. 23 Q: And then it goes on to say: "B," and 24 I'm taking "B" to be Beaubien: 25 "B says his July 31st letter sets out
1801 residents' concerns and not his 2 personal views, residents sorry for 3 police, who they perceive have their 4 hands tied." 5 Do you recall which direction that 6 information flow -- was this still information you were 7 imparting to Mr. Carson? 8 A: No. It -- it was not. My belief in 9 reading that bullet or paragraph is that I am aware Mr. 10 Beaubien wrote a letter, if memory serves me correctly, 11 to the Solicitor General outlining concerns of his 12 constituents in the Ipperwash beach area. 13 Q: All right. But in terms of who told 14 whom, are you saying Mr. Carson told you the second 15 paragraph? 16 A: That's correct. He would be telling 17 me. 18 Q: Okay. And so it's fair to say your 19 level of knowledge as of August 29th, 1995 was that 20 Marcel Beaubien, local MLA, member of the Harris 21 government, you knew that he had met with the -- 22 Superintendent Parkin and Inspector Carson to discuss 23 policing matters generally, you knew it and you had 24 conveyed that to Mr. Carson? 25 A: Correct.
1811 Q: And the record should reflect we are 2 dealing with two (2) Carsons here, so we're going to have 3 to be careful. 4 So my last question was directed to David 5 Carson; correct? 6 A: Understood. 7 Q: In the second paragraph you're 8 getting information about how to interpret Beaubien's 9 July 31st letter from David Carson? 10 A: Correct. 11 Q: Then the third paragraph says: 12 "Runciman's staff is also followed up. 13 Eileen can call them. I said Eileen 14 will co-ordinate with Ken Hogg 15 (phonetic). I told him recent Court 16 Decision may provide some relief for 17 [something 'residence', could be 11]." 18 Do you see that? 19 A: I do. 20 Q: Does that note refresh your memory of 21 that conversation? 22 A: It does. 23 Q: All right. First thing, it's fair to 24 say that you knew of Mr. Beaubien's July 31st, 1995 25 letter to the Attorney General?
1821 A: Correct. 2 Q: Because part of your job is to 3 understand what's going on between government and the 4 police? 5 A: That's correct, and correspondence 6 flow in the Ministry of the Solicitor General at that 7 time was that if it had an impact on First Nations or was 8 relevant to First Nations, I was generally copied on it. 9 This letter, I do recall, forms part of -- 10 of the special advisor's files. 11 Q: Mr. Eyolfson is bringing a copy of 12 the July 31st, 1995 letter before you and Mr. 13 Commissioner. It's located at document number 1000918 14 and I'd ask you to -- to review that letter, if you 15 would, for a moment. 1000918. 16 17 (BRIEF PAUSE) 18 19 Q: All right, the letter's now on 20 screen, thanks to the efforts of Ms. Vella. 21 MR. JULIAN FALCONER: I have to take the 22 witness in some detail through the letter, I apologise, 23 Mr. Commissioner, but there is a point to this. 24 25 CONTINUED BY MR. JULIAN FALCONER:
1831 Q: We have been discussing pressures, 2 correct? 3 A: Correct. 4 Q: And, now I put it to John Carson, he 5 was sure wearing a heck of a lot of hats. You -- you 6 were no slouch on this, either. There were a lot of 7 things going on, correct? 8 A: Agreed. 9 Q: And so in addition to all the other 10 things, you -- you are expected to, and you do attempt to 11 deal with the Beaubien letter, right? 12 A: And I wish to correct the record, 13 your Honour. I indicated, in the first throes, that 14 there was a letter that I recall, addressed to the 15 Solicitor General. 16 On review of this letter, and this is the 17 letter I had in mind, I see it addressed to the Attorney 18 General. 19 Q: All right. But you were called upon, 20 as part of your duties, to deal with this, correct? 21 A: At least as an information item, sir, 22 yes. 23 Q: And the important thing as an 24 information item, is that I don't -- I don't want to 25 diminish your work, sir.
1841 In fact, not only was it an information 2 item, here you have a politician raising direct concerns 3 about policing, right? 4 A: And that's where I would be drawn to 5 is -- is bullet 7 on the second page. 6 Q: And we'll get to there, don't jump 7 too fast. But the point is, is that in terms of your 8 job, it was your role to address this from both the 9 addressing being an advisor to the Solicitor General and 10 a liaison with management at the OPP, correct? 11 A: To either address it personally or 12 ensure that it was addressed, yes. 13 Q: Fair enough. 14 Q: Now, Mr. Harnick receives the 15 following letter from the MPP Mr. Beaubien: 16 "Dear Mr. Harnick, I met on July 30th, 17 1995, with a number of people 18 representing the West Ipperwash 19 Property Owners Association. 20 Before I proceed any further, let me 21 tell you that in Lambton Riding we have 22 two (2) First Nation communities; 23 Walpole Island and Kettle and Stony 24 Point. I am sure that you are familiar 25 with the Kettle and Stony Point
1851 community. 2 My concern is with the residents of 3 Ipperwash Beach that I have met with. 4 They have a unique situation to deal 5 with and honestly, Charles, I need 6 help, advice and direction as this is a 7 difficult and sensitive situation in 8 this Riding. 9 Tensions have again escalated over this 10 past weekend and my constituents have 11 the following concerns: 12 1. As of May 1995, the Association has 13 spent two hundred and fourteen thousand 14 dollars ($214,000) and the Town of 15 Bosanquet sixty-seven thousand dollars 16 ($67,000) in legal fees to defend the 17 civil action brought on by members of 18 the Kettle and Stony Point Band. The 19 residents are being sued individually, 20 a hundred and fourteen (114) for 21 trespassing, et cetera on native lands. 22 2. The province has apparently been 23 put on notice that it will also be 24 sued. 25 3. Residents are faced with a
1861 situation whereby they cannot sell 2 their property because of the legal 3 action taken. 4 4. Residents have to pay property 5 taxes while the ownership of their 6 property is in the hands of the court 7 system." 8 Going to page 2: 9 "5. Apparently, this is a unique 10 situation in Canada, as it is the only 11 case where third party action has been 12 taken by the First Nation. 13 6. There is a lot of intimidation 14 going on at the moment and the 15 residents feel threatened. 16 7. Law enforcement is basically non- 17 existent and the OPP does not seem too 18 keen in getting involved. 19 8. Residents are stressed out and the 20 situation is becoming unbearable. 21 Charles, we need to meet as soon as 22 possible with the residents before this 23 situation becomes even more complex. I 24 need advice on how the province wants 25 to proceed in this matter. There are
1871 many other issues which we have to 2 address. 3 Hoping to hear from you in the near 4 future." 5 Copied on this letter is the president of 6 the West Ipperwash Property Association, Mr. Daley 7 (phonetic), Mr. Thomas, the Mayor and the Honourable Bob 8 Runciman, the Solicitor General, is that correct? 9 A: Correct. 10 Q: Now, it's fair to say that this 11 basically simply lends credence to what we already heard 12 from Inspector Carson, that one (1) of the concerns was - 13 - was that tensions were rising to the point that 14 citizens, you were worried, might actually take the law 15 into their own hands, right? 16 A: That was certainly a possibility. 17 Q: It was a concern, wasn't it? 18 A: Clearly. 19 Q: And this letter simply added fuel to 20 that fire? 21 A: I don't know that the letter added 22 fuel to the fire with respect to the concerns the 23 citizens may have. 24 Q: I can re-phrase because you make a 25 fair point, so let me back up.
1881 It's fair to say that this letter simply 2 reinforced or confirmed those concerns? 3 A: Agreed. 4 Q: All right. Now, it's in the context 5 of this letter that you're brought into it and you -- you 6 pointed out before, specifically, paragraph 7, there's an 7 "NB" beside that. I don't know if it can be brought up 8 on screen. 9 Do you see that, "NB?" 10 A: I do. 11 Q: I'm trying to remember my Latin. I 12 think we're talking nota bene -- very -- it's important, 13 right? 14 A: Yes. 15 Q: Do you know who put the, "NB" beside 16 that? 17 A: I do not. 18 Q: All right. But in an any event, it's 19 quite accurate in terms of your work; that was the most 20 important paragraph? 21 A: Yes. And I suppose to a lesser 22 degree without qualification, the preceding paragraph, 23 number 6 that speaks to intimidation. 24 Q: The suggestion that law enforcement 25 is basically non-existent and the OPP does not seem too
1891 keen in getting involved basically ignores the work of, 2 for example, Inspector Carson and his team since 1993, 3 right? 4 A: It could suggest that. 5 Q: And the situation in terms of what 6 you were presented with is, it was important to create 7 communication lines with politician Beaubien in order to 8 bring home the various balancing of interests that had to 9 be done, correct? 10 A: That's correct. 11 MS. SUSAN VELLA: I'm sorry, 12 Commissioner, I am a little late in rising, but of course 13 Inspector Carson was not the incident commander with 14 respect to the West Ipperwash situation and, perhaps, the 15 record might be confused if we don't correct that. 16 MR. JULIAN FALCONER: That's fair. I 17 appreciate that clarification. 18 COMMISSIONER SIDNEY LINDEN: Thank you, 19 Ms. Vella. 20 21 CONTINUED BY MR. JULIAN FALCONER: 22 Q: The involvement of Mr. Beaubien was 23 one in which he wasn't a stranger to you before this 24 letter, correct? 25 A: I -- I don't recall having met Mr.
1901 Beaubien before, but I may have. 2 Q: All right. He was given access to 3 Superintendent Parkin and Inspector Carson, correct? 4 A: Yes, I would have done that. 5 Q: You would have facilitated that? 6 A: In saying, "facilitate," I would 7 have -- 8 Q: I'm sorry, you said, "I would have 9 done that." 10 A: I would have made contact with 11 Superintendent Parkin and Inspector Carson. 12 Q: Okay. I take away the word, 13 "facilitate." I just want to know what you meant by, "I 14 would have done that." 15 A: Yes. 16 Q: All right. You would have assisted 17 with that? 18 A: Correct. Standing alone, I couldn't 19 answer bullet 7. 20 Q: And the means of answering it was to 21 present both Superintendent Parkin and the Incident 22 Commander Carson on the rest of Ipperwash, correct? 23 A: That's correct. 24 Q: Now, what happens is that they meet 25 on August 18th, a mere eighteen (18) days after the
1911 letter; right? 2 A: Correct. 3 4 (BRIEF PAUSE) 5 6 Q: On August 14th, 1995, Marcel Beaubien 7 writes a further letter to Charles Harnick; are you 8 familiar with that letter? 9 MS. SUSAN VELLA: I believe this is 10 Exhibit P-418. 11 MR. JULIAN FALCONER: That's right. 12 Document 1012239. My apologies. Document 1012239. 13 MS. SUSAN VELLA: Perhaps the 14 Registrar -- 15 MR. JULIAN FALCONER: It's Exhibit P-418. 16 MS. SUSAN VELLA: -- could hand that to 17 the witness. Mr. Registrar...? 18 THE REGISTRAR: Could you -- 19 MS. SUSAN VELLA: Exhibit P-418. 20 THE REGISTRAR: Exhibit P-418. 21 COMMISSIONER SIDNEY LINDEN: Thank you. 22 23 (BRIEF PAUSE) 24 25 CONTINUED BY MR. JULIAN FALCONER:
1921 Q: Commission Counsel has very helpfully 2 attempted to try to sort out what looks like a -- an 3 inconsistency, not -- not in your evidence, but in some 4 of the facts before the Commission. 5 Exhibit P-410, the handwritten notes of 6 Deputy Commissioner Carson, at page -- looks like page 7 30, at Tab 3 -- it is page 30 -- refers to an August 8 11th, 1995 meeting between Superintendent Parkin, 9 Inspector Linton, Staff Sergeant Lacroix, and Marcel 10 Beaubien. 11 I'm looking -- and -- and John Carson -- 12 discuss Ipperwash. I don't think I need to have it 13 turned up. 14 Suffice it to say, if a meeting happened 15 on August 11th, 1995, that would not be inconsistent with 16 your recollection; would it be? 17 A: No, sir. 18 Q: All right. And the reason Commission 19 Counsel so helpfully brought that to my attention is the 20 letter of August 14th, 1995, reflects on that meeting, 21 and I have this August 18th reference in the note, which 22 will remain a bit of a mystery, but we'll deal with it. 23 Now, when -- it's possible, obviously, 24 that Mr. Beaubien met again. When Mr. Beaubien met with 25 these officers, he subsequently writes a letter to Mr.
1931 Harnick, and I want to take you through that letter now. 2 Would you have, first of all, received a 3 copy of this letter? 4 A: Having reviewed it in response to 5 your earlier question, I don't recall this piece of 6 correspondence. 7 Q: All right. It's copied, you'll see, 8 to Dan Newman (phonetic), Ministry of the Attorney 9 General; The Honourable Robert Runciman, Solicitor 10 General; Terry Simpson (phonetic), Ministry of the 11 Solicitor General; and Honourable Chris Hodgson, Minister 12 of Natural Resources. Do you see that? 13 A: I do. 14 Q: All right. Now, I -- I'm going to 15 take you through this letter; and again, there is a point 16 to this. 17 "On August 11th, 1995, I met with the 18 following individuals from the Ontario 19 Provincial Police: Acting -- [no] -- 20 A.G. Tony Parkin, Superintendent; D.R. 21 Dale Linton, Inspector; J.F. John 22 Carson, Inspector; Wade Lacroix, Staff 23 Sergeant. They were here to discuss 24 the issues at Ipperwash Provincial 25 Park, the West Ipperwash Property
1941 Owners Association, and the First 2 Nation of Kettle of Stony Point. 3 We are not concerned with the takeover 4 of the Camp Ipperwash Army Camp as this 5 is a Federal matter. What does concern 6 us is Ipperwash Provincial Park, a 7 campground owned and operated by the 8 Ministry of Natural Resources. 9 The OPP are providing twenty-four (24) 10 hour protection. And I am sure that 11 you are aware additional police 12 protection has been provided on the 13 site. 14 With regard to the West Ipperwash 15 Property Owners Association, I am 16 enclosing a copy of their writ." 17 And he sets out the steps they've taken in 18 terms of the property title concerns. Moving on to the 19 next paragraph: 20 "The representatives from the OPP and 21 myself have reached the following 22 consensus: 23 1) As the Ipperwash campground is 24 provincially owned, we should be in a 25 position to legally uphold the
1951 property. 2 2) [top of page 2] Enforcement is only 3 a short-term solution. 4 3) Ministries involved have to give the 5 OPP clear guidelines for law 6 enforcement. 7 4) The long-term solution is a 8 negotiated settlement, however, we need 9 to see a clear stand on what provincial 10 ownership of land means and if the laws 11 of the province will be upheld, this 12 needs to be made very clear without 13 delay. 14 Please note that the properly elected 15 First Nations officials are supportive 16 of upholding the laws of the land. 17 What we have is a small number of 18 dissidents making a mockery of the 19 system. 20 As detailed to Ministers Hodgson, 21 Harnick, and Runciman, we will take the 22 following position until further 23 instruction is received from the 24 Ministries. We will be legally 25 prepared to uphold Ipperwash Park.
1961 Enforcement is a short-term solution, 2 and we need the Ministries to give 3 clear guidelines to the OPP for 4 enforcement. 5 We would like a negotiated settlement. 6 Failing that, a clear stand on what are 7 provincial matters, and if the law will 8 be upheld. This is an opportune time 9 as election First Nation officials are 10 supportive in upholding the law." 11 Sir, you can correct me on this, but what 12 appears to have happened is that the local MPP, heart of 13 the Harris government, described by Inspector Carson as - 14 - or he agreed with this, as Harris's man on the ground 15 in the area, he says that ministries involved have to 16 give the OPP clear guidelines for law enforcement; do you 17 see that? 18 A: I've read that, yes. 19 Q: And he says: 20 "The representatives from the OPP and 21 myself have reached the following 22 consensus." 23 Do you see that? 24 A: I do. 25 Q: Does that cause you any concern?
1971 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 2 Sandler...? 3 MR. MARK SANDLER: The area is certainly 4 proper cross-examination, but in fairness, he had -- he 5 is not familiar with the letter, and he's also not 6 familiar with Deputy Commissioner's evidence -- Deputy 7 Commissioner Carson's evidence that this aspect that he's 8 now putting to him did not accurately reflect the 9 consensus of the meeting. 10 So if he had knowledge of the letter and 11 could respond as to what the consensus was, I wouldn't be 12 concerned. But we are now into a very difficult 13 situation because he's putting it: does this concern 14 you? Not knowing that Deputy Commissioner Carson has 15 said that that doesn't accurately represent the 16 consensus. 17 That's my only point. 18 MR. JULIAN FALCONER: Well, he knows now. 19 MR. MARK SANDLER: Yes. But that's -- 20 that's just -- 21 MR. JULIAN FALCONER: I'm not being 22 critical, I'm saying he knows now. 23 MR. MARK SANDLER: First of all, you are 24 being critical and it's -- 25 MR. JULIAN FALCONER: Well, --
1981 MR. MARK SANDLER: -- a snide comment and 2 I ask -- 3 MR. JULIAN FALCONER: -- My Friend is 4 being paranoid -- 5 MR. MARK SANDLER: -- My Friend to 6 withdraw it. 7 COMMISSIONER SIDNEY LINDEN: That's fine. 8 MR. JULIAN FALCONER: My Friend is being 9 paranoid. I said he know now -- 10 COMMISSIONER SIDNEY LINDEN: I -- 11 MR. JULIAN FALCONER: -- so it's been 12 stated and I -- I'd like to continue. 13 MS. SUSAN VELLA: And I think -- I 14 think, in fairness, it was a proper observation for -- 15 COMMISSIONER SIDNEY LINDEN: Yes. I 16 think it was too. 17 MS. SUSAN VELLA: -- Counsel for the OPP 18 to make so -- 19 COMMISSIONER SIDNEY LINDEN: It was a 20 proper observation. Do we have an accurate statement of 21 what -- what Carson's position was? 22 MR. JULIAN FALCONER: I don't have any 23 problem with what Mr. Sandler said. 24 COMMISSIONER SIDNEY LINDEN: Have you 25 given a sufficient summary, Mr. Sandler?
1991 MR. MARK SANDLER: I didn't give any 2 summary. 3 COMMISSIONER SIDNEY LINDEN: Okay. 4 MR. MARK SANDLER: I'd be happy to. 5 MR. JULIAN FALCONER: That's fine. So 6 let's continue. 7 COMMISSIONER SIDNEY LINDEN: That's fine. 8 9 CONTINUED BY MR. JULIAN FALCONER: 10 Q: Does that letter cause you any 11 concern? 12 A: The letter, in and unto itself, I 13 would see as problematic. But now I know there was a 14 different position taken, or at least a different view of 15 the meetings. Had I not known that, yes it would be of 16 concern. 17 Q: And why would it be of concern if you 18 had not known what Mr. Sandler told you? 19 A: Well, the -- the police wouldn't be 20 asking for some guidance from government with respect to 21 how to enforce the law. 22 Q: Because that would cross the very 23 line we discussed this morning; correct? 24 A: Agreed. 25 Q: But, are you -- you had some
2001 interaction with Mr. Beaubien? 2 A: I did. 3 Q: You know that Mr. Beaubien claimed 4 that the Premier was personally interested in this issue; 5 yes, you know that? 6 A: I can't attribute it -- those 7 statements to Mr. Beaubien, no. 8 Q: All right. 9 A: But I -- I can only assume. 10 Q: The Commission has heard evidence 11 that that's exactly what Mr. Beaubien said, that -- that 12 the Premier was personally interested in this issue, and 13 that Mr. Beaubien had access to the Premier's office on 14 this issue. 15 Work that into the premiss of my question; 16 all right? 17 A: Yes, sir. 18 Q: Would you agree with me that from the 19 point of view of the concerns you expressed earlier, this 20 letter by Mr. Beaubien is simply a further reflexion of 21 the concerns you expressed about the Premier's office 22 believing they can give direction to the OPP? 23 A: It would. And I would qualify that 24 if I had read the letter in 1995, without benefit -- 25 benefit of information now in 2005, I would agree, the
2011 letter is not appropriate. 2 Q: Apparently Mr. Beaubien didn't know 3 that, is that fair, just from the letter? Mr. Beaubien 4 does not reflect any concern in his mind that politicians 5 would be giving the OPP guidelines for law enforcement. 6 He does not reflect by this letter that 7 he's cognizant that that's a problem; does he? 8 A: Well, no. In reading the letter I -- 9 I would say that that wouldn't be apparent. But, again, 10 I don't know what was Mr. Beaubien's head when he wrote 11 it. 12 Q: Fair enough. Similarly, you didn't 13 hear any concern expressed by Ms. Hutton, the voice for 14 the Premier, when she said what the Premier wanted to see 15 happen in terms of the limits on what politicians can 16 tell OPP. 17 You never saw any restraint on her part 18 either, did you? 19 A: No. That's correct. And I could 20 have observed that first hand, sir. 21 Q: Right. And you didn't see any 22 restraint on the Premier -- leaving aside the mistaken 23 identity theory, assuming he knew who you were, you 24 didn't see any restraint on his part, on his belief of 25 what he was entitled to direct the OPP to do and not to
2021 do; correct? 2 A: Correct. That's my personal 3 observation. 4 Q: Are you familiar with whether any -- 5 you said you didn't see this letter, so this may be a -- 6 a bit of an unhelpful question here, Mr. Commissioner, I 7 still have to ask it. 8 Are you familiar with whether any 9 correspondence went out subsequent to August 14th, 1995, 10 correcting Mr. Beaubien's misunderstanding of the 11 functions of politicians and police in terms of guidance 12 on law enforcement. 13 Do you know of any correction to this? 14 A: I do not. 15 Q: And it's somewhat axiomatic since you 16 didn't know about the letter; right? 17 A: Correct. 18 Q: I still have to ask. Would you agree 19 with me that if Mr. Beaubien harboured the mis-impression 20 -- if, because -- could you leave the letter out for a 21 second? Thanks. It's okay -- page 2. 22 If Mr. Beaubien harboured the 23 misapprehension that ministries were entitled to give the 24 OPP guidelines for law enforcement, if they -- if he was 25 under the misapprehension that the -- that the ministries
2031 were entitled to do that, that that misapprehension would 2 not be assisted by his access to Incident Command at the 3 Ipperwash site on a regular basis; it wouldn't help it, 4 would it? 5 A: That's possible. 6 Q: You'd agree with me -- and -- and to 7 be fair to Deputy Commissioner Carson, you expressed that 8 one of the things that he probably regrets is the amount 9 of access some people had to Incident Command; all right? 10 To be fair to Deputy Commissioner Carson, on reflexion, I 11 think that captures. 12 You'd agree with me that that kind of 13 access, that politicians would be able to come into the 14 nerve centre of a police operation, would not assist the 15 misapprehension that they can give clear guidelines for 16 law enforcement, it wouldn't help? 17 A: Agreed. 18 Q: In fact, it runs the risk -- it runs 19 the risk of exacerbating the situation; doesn't it? 20 A: It's possible. 21 Q: Deputy Commissioner Carson testified 22 that he assigned Staff Sergeant Lacroix as an 23 intermediary to deal with Mr. Beaubien; all right? That 24 was the gist of this testimony. 25 Do you know Staff Sergeant Lacroix?
2041 A: I do. 2 Q: Apparently, Mr. Beaubien and Mr. 3 Lacroix both come from Petrolia, and I may be misstating 4 it, and -- and they knew each other from historical 5 circumstances, they just -- they go way back? 6 A: Staff Sergeant Lacroix was the 7 Detachment Commander at Petrolia in this time frame. He 8 now retired from the OPP. 9 Q: And so one of the means for political 10 information making its way, properly or improperly, to 11 officers at the operational level was through Staff 12 Sergeant Lacroix, based on the evidence we've heard; all 13 right; you accept that premiss? 14 A: Could you -- you repeat your 15 question. 16 Q: One of the means -- it was a bad 17 question, so it's not your fault. One of the means by 18 which information reached operations, concerning 19 political views, was through Staff Sergeant Lacroix. 20 Beaubien would express views of the Premier's office, and 21 his own, to Lacroix, who would in turn, internalize them 22 of himself, and pass them on to Carson at Incident 23 Command. 24 That was one of the means information 25 flowed; did you know that?
2051 A: I didn't know that for a fact, sir. 2 Q: All right. I'm going to ask if it's 3 possible for you to please turn to the logger tape, which 4 is Exhibit -- the logger tape volume, which is Exhibit P- 5 444(a), Tab 22, Volume 1 of that. 6 MR. JULIAN FALCONER: Now, I know you 7 don't have that, Mr. Commissioner. I'm a little bit -- 8 COMMISSIONER SIDNEY LINDEN: No, I don't. 9 MR. JULIAN FALCONER: -- concerned. 10 COMMISSIONER SIDNEY LINDEN: I'm not sure 11 it's in the binder I have. So I'd have to make -- is it 12 in the binder we have? 13 MS. SUSAN VELLA: No. 14 COMMISSIONER SIDNEY LINDEN: No. 15 MR. DERRY MILLAR: I'll get a copy. 16 17 (BRIEF PAUSE) 18 19 MR. JULIAN FALCONER: I've -- I've 20 implored Ms. Vella to help me and she's going to lend you 21 her copy. 22 COMMISSIONER SIDNEY LINDEN: Thank you. 23 MR. JULIAN FALCONER: And at the same 24 time, if you turn -- 25 COMMISSIONER SIDNEY LINDEN:Superintendent?
2061 Do you have a copy of it, Superintendent? 2 MR. JULIAN FALCONER: Yes. He's got a 3 logger -- 4 COMMISSIONER SIDNEY LINDEN: You've got 5 it. 6 MR. JULIAN FALCONER: -- tape volume. 7 COMMISSIONER SIDNEY LINDEN: Okay. 8 THE WITNESS: I do, Your Honour. 9 MR. JULIAN FALCONER: At Tab 22. 10 COMMISSIONER SIDNEY LINDEN: That's fine. 11 I've got it now. 12 13 CONTINUED BY MR. JULIAN FALCONER: 14 Q: And we don't have to play this tape, 15 it's -- I'm going to just take you through the words and 16 I'm going to try not to do the -- the voices. All right. 17 Now, this is page 1 and it says: "John 18 Carson and unknown male." 19 Do you see page 1 at the start of this 20 tab, sir? 21 A: Yes, I do. It's where it starts: 22 "September 5th, 1995, 16:24:04 hours." 23 Q: That's correct. Evidence has been 24 heard by this Commission that the unknown male is Wade 25 Lacroix; all right?
2071 A: Okay. 2 Q: Now, the phone call is initiated by 3 Inspector Carson, who finally, at the second page, 181, 4 gets Wade Lacroix on the phone; all right? Halfway down 5 page 181, do you see, it says: "Male: John?" 6 A: I do. 7 MR. JULIAN FALCONER: And I don't know if 8 you have that, Mr. Commissioner? 9 COMMISSIONER SIDNEY LINDEN: Yes, I do. 10 11 CONTINUED BY MR. JULIAN FALCONER: 12 Q: Thank you. 13 "Carson: Good day. 14 Male: How are you? 15 Carson: Very good. 16 Male: Did you get a call or anything 17 from the Ministry's side?" 18 That's Lacroix asking Carson. 19 "Carson: No. 20 Male: Okay. But Marcel got a brief a 21 half an hour ago." 22 Now, you know that Marcel Beaubien, his 23 first name is Marcel? 24 A: Yes. 25 Q: Pretty silly question. It's getting
2081 late, sir. Work with me. 2 "Carson: Okay. 3 Male: And he got -- he's going to get 4 briefed again in five (5). 5 Carson: Okay. 6 Male: Ah, this is not an Indian issue 7 but an MNR issue and a provincial 8 issue. Carson: Hmm hmm. 9 Male: Harris is involved himself and 10 quite uptight about it. 11 Carson: Okay. And the Ministry, I 12 guess, the Solicitor General, I 13 imagine, is to do a press release 14 momentarily or soon, saying law will be 15 upheld no matter who's involved. Okay. 16 So I would say the signal is that we're 17 going to end up..." 18 And that word should read "evicting" 19 according to the evidence. 20 "So I would say the signal is that 21 we're going to end up evicting." 22 Do you see that? 23 A: I do. 24 Q: Now, would you agree with me that 25 just on the base of this transcript, Staff Sergeant Wade
2091 Lacroix appears to be a vehicle for the passage of 2 information from the politicians to Incident Command? 3 A: Based on the transcript, yes. 4 Q: Would you agree with me that it is 5 apparent that one of the methods for Mr. Beaubien 6 communicating the political position was to actually 7 advise Staff Sergeant Lacroix that, quote: 8 "Harris is involved himself and quite 9 uptight about it." 10 Close quotes. Yes? 11 A: It's possible. 12 Q: Would you agree with me that being 13 uptight about something generally involves expressing an 14 opinion? 15 A: It could, yes. 16 Q: Now, backing up to the bottom of page 17 181, where it says, and this is Lacroix speaking about 18 Beaubien information: 19 "This is not an Indian issue but an MNR 20 issue and a provincial issue." 21 Would you agree with me that that's 22 precisely the theme Deb Hutton communicated to you on 23 September 5th and September 6th, 1995? 24 A: It's consistent, yes. 25 Q: Almost as if it's coming from the
2101 same person; isn't that true? 2 A: Well, I can't make comment on that 3 but it is consistent. 4 Q: The male, at the top of 182, the 5 fourth paragraph, says: 6 "The Ministry, I guess, the Solicitor 7 General, I imagine, is to do a press 8 release momentarily or soon, saying law 9 will be upheld no matter is involved." 10 "No matter who is involved." All people 11 will be treated the same; isn't that the message? 12 A: Yes. 13 Q: "So I would say [says the male] the 14 signal is that we're going to end up 15 evicting." 16 That's what he says. You -- you have to 17 understand the -- the evidence has come out correcting 18 that; all right? 19 A: Correct. 20 Q: Would you agree with me that if Staff 21 Sergeant Lacroix took Marcel Beaubien's -- the local 22 MPP's -- word seriously that Harris is involved, himself, 23 and uptight, that reflects the Premier's voice through 24 another mechanism other than Deb Hutton and other than 25 the Premier's dining room, would you agree with that?
2111 A: It's possible, yes. 2 Q: Would you agree with me that it also 3 reflects that Wade Lacroix viewed what he was being told 4 as a, quote, "signal," close quotes. 5 Would you agree with that? 6 A: That's what's stated here, yes. 7 Q: And that the signal was, we're going 8 to end up evicting, right? 9 A: Correct. 10 Q: Do you know who led the CMU team that 11 are referred at times as the, "arrest teams," marching on 12 the aboriginals? Do you know who led that team? 13 A: I didn't in 1995, I do now. 14 Q: Who? 15 A: Wade Lacroix. 16 Q: Would you agree with me that it is 17 extremely unfortunate that the person who would lead 18 thirty (30) to forty (40) police officers marching in 19 riot regalia on aboriginal occupiers -- it is unfortunate 20 that that same person would be the vehicle for the 21 politician's views, Premier Harris, himself, to Incident 22 Command? That's unfortunate. 23 Would you agree with that? 24 A: Whether I would indicate to you, sir, 25 it's unfortunate, it may be an unfortunate coincidence --
2121 Q: That's right. 2 A: -- that that occurred. In fairness, 3 when you speak of signal, I think that has to be 4 interpreted by the -- the author of this call. 5 Q: That's right. 6 A: I can't do that for you. 7 Q: No, and that's fair. And I'm asking 8 you, sir, if it's unfortunate, not because I factually 9 tell you this is what made Wade Lacroix do what he did, 10 that's between Wade Lacroix and the Commissioner. 11 It's because I ask you, would you agree 12 with me it creates an unfortunate perception? 13 A: I would agree with that. 14 Q: And that the last thing anyone would 15 want is to have the Premier, through his MPP, directing 16 the person that's leading the crowd management team; that 17 would be a bad thing, wouldn't it? 18 MS. SUSAN VELLA: I'm sorry, excuse me. 19 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 20 Vella? 21 MS. SUSAN VELLA: At this point we're -- 22 we're dealing with enormous speculation. Obviously it 23 was not known that the CMU was going to be deployed on 24 the night of September 6th at the time of this telephone 25 call and so I think in fairness, that's -- that's not a
2131 proper question. 2 MR. JULIAN FALCONER: I can deal with 3 that. 4 COMMISSIONER SIDNEY LINDEN: Well, that's 5 not a proper question. Try to deal with it. 6 MR. JULIAN FALCONER: I shall. 7 8 CONTINUED BY MR. JULIAN FALCONER: 9 Q: You have been a high-ranking officer 10 right up to superintendent, yes? 11 A: Correct. 12 Q: And you sometimes have to make 13 decisions and make changes depending on how circumstances 14 change, correct? 15 A: Situational leadership, yes. 16 Q: Right. And, depending on which 17 direction a situation goes, one (1) person may be right 18 for the job or somebody else may be right for the job as 19 the situation evolves, correct? 20 A: Correct. 21 Q: And that one (1) thing that is 22 certain is, it is always within an incident commander's 23 power to, for example, relieve someone of their duties 24 as, for example, head of the ERT if he believes he's 25 become a political vehicle for signals; that would be
2141 within his powers, wouldn't it? 2 A: It would certainly be within the 3 purview of the incident commander to make a determination 4 as to suitability of any member for any job on an 5 incident that he or she was commanding. 6 Q: So, on a pure management level, as of 7 4:25 p.m. on September 5th, 1995, the one (1) thing we 8 know is that the incident commander now knew that Wade 9 Lacroix thought that Harris is involved, is quite 10 uptight, and a signal is being sent that we're going to 11 evict? 12 Wade Lacroix would have known all of those 13 things as of September 5th, 1995 at 4:25 p.m., correct? 14 A: I would agree based on the time of 15 this call, yes. 16 Q: And there's nothing that you know 17 about in the management structure at the OPP that would 18 have precluded or prohibited Inspector John Carson from 19 relieving Wade Lacroix of his duties of marching at the 20 head of that team against those aboriginal people. 21 There would have been nothing to preclude 22 that, would there? 23 MS. SUSAN VELLA: Excuse me. 24 COMMISSIONER SIDNEY LINDEN: Okay. 25 Before you answer the question, let's hear the
2151 objections. 2 MS. SUSAN VELLA: The difficulty I have 3 is that I don't believe that this proposition was put to 4 Inspector -- or Deputy Commissioner Carson -- 5 COMMISSIONER SIDNEY LINDEN: No, I don't 6 think it was. 7 MS. SUSAN VELLA: -- at the time and if 8 there's going to be this type of a challenge, then I 9 think it should have been at least suggested to the 10 Deputy Commissioner. 11 COMMISSIONER SIDNEY LINDEN: I think 12 that's probably true. Yes, Mr...? 13 MR. MARK SANDLER: That was the exact 14 point that I was going to make. 15 COMMISSIONER SIDNEY LINDEN: The very 16 point? This was not raised. 17 MR. JULIAN FALCONER: May I address that? 18 COMMISSIONER SIDNEY LINDEN: Yes, yes. 19 MR. JULIAN FALCONER: I -- I, with great 20 respect, disagree with My Friends. 21 In fact, you'll recall in somewhat 22 annoyingly dramatic fashion how I raised with Inspector 23 Carson, the very man who was leading CMU that day had 24 been his contact person, his liaison, if you will, with 25 Beaubien. I raised that directly with Carson. I do not
2161 have to say, Here were all the things you could have done 2 to make it different; that's in Carson's expertise. 3 I raised with him the problem and gave him 4 an opportunity to deal with it; that is, he could have 5 said -- I can't conceive of how, but he could have said, 6 Well, there's -- I -- I couldn't -- I couldn't change 7 things at that point. He -- he -- not only -- he was 8 invited to say that because I challenged him on using 9 Lacroix, given Lacroix's role, so to be fair and -- and 10 it is not a trial, quote unquote, I -- I think I've gone 11 far enough so that this is proper. 12 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 13 Sandler, did you want to say something else? 14 MR. MARK SANDLER: I mean, My Friend can 15 make a clever argument about how -- 16 COMMISSIONER SIDNEY LINDEN: Yes. 17 MR. MARK SANDLER: -- by putting the 18 issue it's there, but the reality is that just as a 19 matter of fairness, if one wants to suggest that you 20 should have relieved Wade Lacroix because of what he knew 21 and his dealings with Beaubien, why wouldn't that be put 22 to Deputy Commissioner Carson so that he could respond 23 why, in his view, he should or should not have relieved 24 Wade Lacroix. 25 So instead, what we have is now being put
2171 to a witness who is completely uninvolved in the 2 incident, itself, that question and -- and I don't 3 understand why it would have to be done that way. My 4 Friend can make the arguments that it's not a trial and 5 so on, but it's basic fairness. 6 COMMISSIONER SIDNEY LINDEN: Yes. 7 MR. MARK SANDLER: That's all. 8 COMMISSIONER SIDNEY LINDEN: Yes. I 9 happen to agree with you, Mr. Sandler. I think this is 10 an unfair way to get this information out. 11 MR. JULIAN FALCONER: Well, I -- I have a 12 suggestion. 13 COMMISSIONER SIDNEY LINDEN: Yes? 14 MR. JULIAN FALCONER: We know that Deputy 15 Commissioner Carson is coming back and if -- if -- if My 16 Friend feels an unfairness has been occasioned -- 17 COMMISSIONER SIDNEY LINDEN: I don't want 18 to open up Deputy Commissioner Carson. 19 MR. JULIAN FALCONER: Well, not -- but to 20 be - to be fair, I definitely put to Carson -- 21 COMMISSIONER SIDNEY LINDEN: You've got 22 enough on the record now to make the argument. 23 MR. JULIAN FALCONER: No, I do, but I put 24 to -- and I -- and I don't need to pursue this question 25 with this Witness at this time.
2181 COMMISSIONER SIDNEY LINDEN: You don't? 2 MR. JULIAN FALCONER: So, I -- I agree 3 with that, but I do want to contest for the record, the 4 notion that I didn't give Deputy Commissioner Carson fair 5 warning of the concern of using Lacroix at the head of 6 that CMU team because to be fair, Mr. Commissioner -- 7 COMMISSIONER SIDNEY LINDEN: You -- 8 MR. JULIAN FALCONER: -- that is 9 precisely what I said to him. 10 COMMISSIONER SIDNEY LINDEN: You asked 11 him a question, I do remember it, but you didn't ask the 12 question in the form that Mr. Sandler just indicated. 13 MR. JULIAN FALCONER: No, but that's -- 14 COMMISSIONER SIDNEY LINDEN: You don't 15 have to. It's just a question of fairness -- 16 MR. JULIAN FALCONER: No, I agree. 17 COMMISSIONER SIDNEY LINDEN: -- and I 18 think there's enough on the record that you've made -- 19 MR. JULIAN FALCONER: That's fine. 20 COMMISSIONER SIDNEY LINDEN: -- the point 21 you need to and I think we should -- 22 MR. JULIAN FALCONER: No, that's -- 23 that's very fair. I -- this could well be the right 24 time. 25 COMMISSIONER SIDNEY LINDEN: This is a
2191 good time to end it I think. I see Mr. Eyolfson's trying 2 to get your attention, he's probably got some other 3 points. 4 MR. JULIAN FALCONER: Mr. Commissioner, 5 there's two (2) things and Mr. Eyolfson's doing a 6 fabulous job because I begged him to remind me. 7 There are a number of exhibits that need 8 to be filed and I wanted to take care of that paperwork 9 before the day closed. 10 COMMISSIONER SIDNEY LINDEN: We should do 11 that then. 12 MR. JULIAN FALCONER: And -- and then, 13 the second issue is, I wanted to sort of signal to you, 14 Mr. Commissioner, my anticipation is I will be between 15 two (2) and three (3) hours on Monday morning. I 16 certainly will not go past 12:00. 17 COMMISSIONER SIDNEY LINDEN: That's good 18 information. Thank you very much for reminding us. 19 So, let's put the exhibits in. 20 MR. JULIAN FALCONER: So, the exhibits 21 that need to be filed, I don't -- I'm concerned about 22 filing the whole binder simply because if I don't refer 23 to something we're going to create more havoc than -- 24 than necessary, so what I would respectfully suggest is 25 the first exhibit to be filed.
2201 And, what I would ask is, could we use the 2 Witness copy and then return it to the Witness? 3 If -- if the Witness version of the binder 4 could be placed with Mr. Registrar, I'd appreciate it, 5 it's the blue binder? 6 COMMISSIONER SIDNEY LINDEN: We'll return 7 that to you. Which tabs are exhibits? 8 MR. JULIAN FALCONER: Yes, I'm about to 9 do that. So, if I could ask for Tab 2, the Hansard 10 extract to be made the first exhibit? 11 MS. SUSAN VELLA: And just for the 12 record, that was Inquiry Document 600025. 13 COMMISSIONER SIDNEY LINDEN: And the 14 exhibit number? 15 THE REGISTRAR: P-530, Your Honour. 16 COMMISSIONER SIDNEY LINDEN: P-530. 17 18 --- EXHIBIT NO. P-530: Document 6000379 Answers to 19 Undertakings to Civil 20 Litigation Pages 3147 to 21 3151 22 23 MR. JULIAN FALCONER: If I could ask, 24 with respect, that the next exhibit be what is Tab 3 of 25 the binder, which is Inquiry Document Number 6000379
2211 being the answers to undertakings? 2 THE REGISTRAR: P-531, Your Honour. 3 4 --- EXHIBIT NO. P-531: Document 6000379 Follow-up 5 Questions and Answers Re: 6 George et Al V. Harris et al. 7 8 MR. JULIAN FALCONER: If I could ask that 9 the next exhibit be the definition of, "liaison." 10 COMMISSIONER SIDNEY LINDEN: Do you 11 really need that to be an exhibit? 12 MR. JULIAN FALCONER: For the record, I 13 think it's appropriate. 14 COMMISSIONER SIDNEY LINDEN: You've read 15 it into the record, do you really -- 16 MR. JULIAN FALCONER: I know, but for the 17 record, I think it's appropriate. 18 COMMISSIONER SIDNEY LINDEN: I'm not 19 going to argue with that. I don't think you need it, 20 but, I think... 21 MR. JULIAN FALCONER: So, there were two 22 (2) definitions that I -- I read. Could I ask that the 23 Witness copy be provided and make those two (2) liaison 24 definitions the next exhibit? 25
2221 (BRIEF PAUSE) 2 3 THE REGISTRAR: P-532, Your Honour. 4 COMMISSIONER SIDNEY LINDEN: Thank you. 5 6 --- EXHIBIT NO. P-532: Merrian Webster Dictionaries 7 Definition of "Liaison" 8 9 MR. JULIAN FALCONER: The next exhibit 10 would be, with respect, the dictionary definition of, 11 "hawkish." 12 13 (BRIEF PAUSE) 14 15 THE REGISTRAR: P-533. 16 COMMISSIONER SIDNEY LINDEN: Thank you. 17 18 --- EXHIBIT NO. P-533: Merrian Webster Dictionary 19 Definition of "Hawk" 20 21 MR. JULIAN FALCONER: Does Mr. Registrar 22 have that? 23 THE REGISTRAR: No, I don't have it. 24 25 (BRIEF PAUSE)
2231 MR. JULIAN FALCONER: The next dictionary 2 -- the next -- not the next dictionary definition, the 3 next exhibit, with respect, would be the July 31st, 1995, 4 letter from Mr. Beaubien to Attorney General Harnick, 5 Document Number 1000918 and I have a copy of that. I 6 believe the August 14th letter is already an exhibit, so 7 that won't be necessary. 8 COMMISSIONER SIDNEY LINDEN: Yes, it's 9 418. 10 THE REGISTRAR: P-534. 11 COMMISSIONER SIDNEY LINDEN: Exhibit 534 12 and the August 14th letter is Exhibit 418. 13 14 --- EXHIBIT NO. P-534: Document 1000918 Letter to 15 Honourable Charles Harnick, 16 Attorney General from Marcel 17 Beaubien MPP RE: Residents 18 of Ipperwash Beach Tension 19 with Kettle and Stony Point 20 Community 21 22 MR. JULIAN FALCONER: Thank you. Thank 23 you, Mr. Commissioner, and I appreciate your assistance, 24 Superintendent Fox. 25 COMMISSIONER SIDNEY LINDEN: We will
2241 adjourn now and reconvene on Monday at half past 10:00, 2 is that all right? 3 THE WITNESS: Thank you, Your Honour. 4 5 (WITNESS RETIRES) 6 7 COMMISSIONER SIDNEY LINDEN: We will 8 adjourn to Monday morning, half past 10:00 and some time, 9 I'm going to get to the motion. I don't know when, but 10 either Monday or Tuesday; as soon as we can. Thank you 11 very much. 12 THE REGISTRAR: This Public Inquiry is 13 adjourned until Monday, July 18th, at 10:30 a.m. 14 15 --- Upon adjourning at 3:35 p.m. 16 17 18 19 Certified Correct 20 21 22 _________________________ 23 Wendy Warnock 24 25