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 18th, 2005 25
21 Appearances 2 Derry Millar ) Commission Counsel 3 Susan Vella ) (np) 4 Donald Worme, Q. C ) (np) 5 Katherine Hensel ) 6 Megan Ferrier ) 7 Murray Klippenstein ) 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 ) (np) Family Group 14 15 Anthony Ross ) (np) Residents of 16 Cameron Neil ) (np) Aazhoodena (Army Camp) 17 Kevin Scullion ) 18 William Henderson ) Kettle Point & Stony 19 Jonathon George ) Point First Nation 20 Colleen Johnson ) (np) 21 22 Kim Twohig ) Government of Ontario 23 Walter Myrka ) (np) 24 Susan Freeborn ) (np) 25 Michelle Pong ) (np)
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 ) (np) Robert Runciman 10 Alice Mrozek ) (np) 11 Harvey Stosberg ) (np) Charles Harnick 12 Jacqueline Horvat ) 13 Douglas Sulman, Q.C. ) Marcel Beaubien 14 Dave Jacklin ) (np) 15 Trevor Hinnegan ) (np) 16 17 Mark Sandler ) Ontario Provincial 18 Andrea Tuck-Jackson ) (np) 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 ) (np) 24 Annie Leeks ) (np) 25 Jennifer Gleitman )
41 APPEARANCES (cont'd) 2 Julian Falconer ) Aboriginal Legal 3 Brian Eyolfson ) Services of Toronto 4 Julian Roy ) (np) 5 Clem Nabigon ) (np) 6 Adriel Weaver ) (np) Student-at-Law 7 8 Al J.C. O'Marra ) Office of the Chief 9 Robert Ash, Q.C. ) (np) Coroner 10 11 William Horton ) Chiefs of Ontario 12 Matthew Horner ) 13 Kathleen Lickers ) (np) 14 15 Mark Frederick ) (np) Christopher Hodgson 16 Craig Mills ) (np) 17 Megan Mackey ) (np) 18 Erin Tully ) (np) 19 20 David Roebuck ) (np) Debbie Hutton 21 Anna Perschy ) 22 Melissa Panjer ) (np) 23 Danya Cohen-Nehemia ) (np) 24 25
51 TABLE OF CONTENTS 2 PAGE NO. 3 4 RONALD EVAN FOX, Resumed 5 6 Continued Cross-Examination by Ms. Julian Falconer 9 7 Cross-Examination by Mr. William Horton 161 8 Cross-Examination by Mr. Peter Rosenthal 188 9 Cross-Examination by Mr. Jonathon George 201 10 Cross-Examination by Mr. Murray Klippenstein 216 11 12 13 14 15 16 Certificate of Transcript 250 17 18 19 20 21 22 23 24 25
61 EXHIBITS 2 No. Description Page No 3 P-535 Document No. 1000908 September 12/95 4 Press Release from Mike Harris MPP, 5 Premier Re. Seizure and Illegal 6 Occupation on Ipperwash Provincial Park. 46 7 P-536 Document No. 1012579 Handwritten Note of 8 Julie Jai, September 06/95. 48 9 P-537 Document No. 1003662 Background of 10 Ipperwash from Julie Jai to Ron 11 Fox, Peter Allen February 23/96 and 12 February 26/96. Fax to Julie Jai from 13 Ron Fox. 49 14 P-538 Document No. 1000948 Minutes of I.M.C. 15 Meeting October 03/95. 55 16 P-539 Document No. 1002419 September 11/95 17 Scribe Notes. 92 18 P-540 Document No. 1003819 E-Mail from Eileen 19 Hipfner to A.Karakatsanis April 29/96. 98 20 P-541 Document No. 2000040 September 08/96 21 Event/Incident summary, Ipperwash 22 Provincial Park Occupation. 103 23 P-542 Document No. 1001046 October 26/95 24 Minutes of ONAS Meeting Re. Ipperwash 25 Occupation. 110
71 P-543 Document No. 1001059 October 26/95. 2 Memorandum to Elaine Todres from 3 Ron Fox. 113 4 P-544 Document No. 1004157 Email from 5 Eileen Hipfner to Yan Lazor, Merike 6 Por, December 04/95. 124 7 P-545 Document No. 1004164 E-Mail from 8 Eileen Hipfner to A-Karakatsanis, 9 Yan Lazor, December 07/95. 125 10 P-546 Document No. 1004155 Memorandum 11 of Understanding between the First 12 Nations People at Stoney Point and 13 the O.P.P. December 04/95. 125 14 P-547 Document No. 1001626 E-Mail from 15 Ron Fox to Elaine Todres, Kathryn Hunt, 16 September 06/95. 155 17 P-548 Document No. 1011763 September 06/95 18 Handwritten notes. 236 19 P-549 Document No. 1011745 September 05/95 20 Minister's Briefing form with Yan 21 Lazor's handwritten Notes in Marein. 236 22 P-550 Document No. 3000776 Handwritten Notes 23 by Larry Taman at Premiers meeting 24 September 06/95. 245 25
81 --- Upon commencing at 10:32 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 morning 7 everybody. Good morning, Superintendent. 8 9 RONALD EVAN FOX, Resumed: 10 11 THE WITNESS: Good morning, Your Honour. 12 MR. JULIAN FALCONER: Good morning, Mr. 13 Commissioner. 14 COMMISSIONER SIDNEY LINDEN: Good 15 morning, Mr. Falconer. 16 MR. JULIAN FALCONER: Mr. Commissioner, I 17 recall when you asked me how long I would be that I had 18 indicated that I would be two (2) to three (3) hours and 19 then I indicated that I'd be finished at 12:00. 20 COMMISSIONER SIDNEY LINDEN: Yes. 21 MR. JULIAN FALCONER: At the time, I -- 22 COMMISSIONER SIDNEY LINDEN: You mean two 23 (2) to three (3) hours from the time we begin. 24 MR. JULIAN FALCONER: That's right. I -- 25 I just -- I forgot about the 10:30 start. I just wanted
91 to clarify. 2 COMMISSIONER SIDNEY LINDEN: But the two 3 (2) or three (3) hours hasn't changed. 4 MR. JULIAN FALCONER: Unfortunately. 5 COMMISSIONER SIDNEY LINDEN: Thank you. 6 MR. JULIAN FALCONER: Thank you. 7 COMMISSIONER SIDNEY LINDEN: Okay, carry 8 on. 9 MR. JULIAN FALCONER: Counsel often say 10 if I've given more time, then I'll be able to tighten it 11 up. It's, of course, one (1) of the white lies Counsel 12 are allowed to tell. 13 14 CONTINUED CROSS-EXAMINATION BY MR. JULIAN FALCONER: 15 Q: Good morning, Superintendent Fox. 16 A: Good morning, sir. 17 Q: Superintendent Fox, I want to start 18 by asking you a number of questions related to the burial 19 site issue. 20 In the blue binder, at Tab 8 there are a 21 set of handwritten notes belonging to Julie Jai. Do you 22 see those? 23 A: Yes, sir. 24 Q: Could you turn to page 8 of those? 25
101 (BRIEF PAUSE) 2 3 Q: Now, you should note that the way the 4 notes appear, and I apologize for this, if you flip 5 through the first sets of notes, they would be seven (7) 6 pages in number and then they start again and so you go 7 to a set -- a page 8 at the back of the passage, sort of 8 the second or third to last page; do you see that? 9 A: Correct, sir. The page starts, "He 10 will not mention"? 11 Q: That's correct. Now, if you go to 12 the front, you'll see this relates to the IMC meeting and 13 are notes belonging to Julie Jai dated September 5th, 14 1995. 15 And, by the way, I believe it's Julie Jai; 16 is that correct, Superintendent Fox? 17 A: Yes. 18 Q: And my apologies to Ms. Jai because I 19 sometimes get it wrong. In any event, at the top of page 20 8 do you see, quote, "We will not mention burial 21 grounds", close quotes? 22 A: I do. 23 Q: All right, do you recall the 24 conversation that surrounded the decision, quote, "Not to 25 mention burial grounds"?
111 A: I do. 2 Q: Could you assist the Commissioner, 3 please? 4 A: It's my recollection that the 5 conversation was with respect to a press release or at 6 least, a communication, that was to be provided. 7 And the -- the -- with respect to not 8 mentioning the burial ground, it's my understanding that 9 it was the view of those who would be in position to know 10 the innards -- the ins and outs of -- of certain claims 11 that First Nations may have had; that there was some 12 belief this had been addressed two (2) years earlier. 13 Q: I understood the first part of your 14 answer, but I -- I found the second part of your answer 15 more difficult to understand. 16 Could you explain? You said there was a 17 belief by some and could you put some meat on the bones 18 on that? 19 A: That's correct. In my recollection 20 of the discussion and refreshing my memory from Ms. Jai's 21 notes, if one goes to -- towards the bottom of page 7 on 22 her notes, it indicates that two (2) years previous, 23 Stoney Point people were informed of the Province's 24 position with respect to the Park. 25 I can only assume that that was with
121 reference to the burial ground as well. 2 Q: But it -- it -- at the end of the 3 day, what you're saying is that the Government of the day 4 issued a press release contemporaneous or sub -- shortly 5 thereafter and there was a decision not to mention the 6 burial grounds; is that right? 7 A: It was either a release or a 8 communication or it was part of a communication strategy. 9 Q: And the communication strategy would 10 surround the notion that the issue of there being a 11 sacred site or the belief that there is a sacred site 12 would simply be left out; is that right? 13 A: Remain silent? Yes. 14 Q: And did you, first of all, suggest 15 that strategy in the first place? 16 A: No, sir. 17 Q: All right. Did you actively support 18 that strategy? 19 A: No, sir. 20 Q: And would you agree with me that 21 whether a burial site is referred to formally, by way of 22 a potential notice to government, or informally through 23 oral history, and I shouldn't even use the word 24 "informally", but through oral history, if there is a 25 legitimate or potentially valid concern, that should not
131 be, in essence, hidden should it? 2 A: It should be considered, sir. 3 Q: All right. And would you agree with 4 me that in addition to it being considered, it would be 5 something the should not simply go unmentioned or be the 6 subject of silence? 7 Would you agree with that? 8 A: I would. 9 Q: So, this strategy, not to mention 10 potential burial grounds at Ipperwash Provincial Park was 11 not a strategy that you agreed with? 12 A: Personally, I did not. 13 Q: All right. Now, I have a press 14 release dated September 12th, 1995; it's -- it's Document 15 number 1000908, it's not part of the blue or green book. 16 17 (BRIEF PAUSE) 18 19 COMMISSIONER SIDNEY LINDEN: Thank you. 20 21 (BRIEF PAUSE) 22 23 CONTINUED BY MR. JULIAN FALCONER: 24 Q: What I wanted to know, Superintendent 25 Fox, do you have the press release in front of you?
141 A: I do, sir. 2 Q: All right. This press release is 3 referred to in Hansard at Tab 2 and I'll -- we'll go 4 there in a little while in terms of the Premier's 5 official position. He actually refers, in the May 1996 6 Hansard we saw previously, that this was the official 7 position of government. But specifically, on September 8 12th, 1995, there is a statement made by Mike Harris, MPP 9 Premier and I'm going to go over this with you in some 10 detail and I have some questions for you, quote: 11 "Just over a week ago a group of 12 individuals illegally seized and 13 occupied Ipperwash Provincial Park. At 14 that time I said the issue was a police 15 matter; that position has not changed. 16 Earlier today, representatives of the 17 First Nations came to Queen's Park to 18 specifically discuss the situation at 19 Ipperwash. I believe First Nations 20 leaders should be treated with courtesy 21 and respect, therefore, I personally 22 delivered the government's message that 23 we will not discuss the illegal 24 occupation of Ipperwash Provincial 25 Park.
151 As I have said on several occasions 2 since the Provincial Park was seized, 3 and I repeat today, these matters are 4 in the hands of the Ontario Provincial 5 Police and the Special Investigations 6 Unit. That having been said, there are 7 a great many issues other than the 8 illegal occupation of Ipperwash 9 Provincial Park between the Government 10 of Ontario and the First Nations 11 People. 12 The process over the last many years 13 has not resolved the mutual concerns of 14 natives and non-natives. Our 15 government is committed to restoring 16 hope, economic opportunity and jobs for 17 the First Nations people of Ontario. 18 The Minister responsible for Native 19 Affairs and his officials will continue 20 to work with First Nations to address 21 these issues. It is my hope that the 22 illegal occupation of the Ipperwash 23 Provincial Park will end quickly and 24 peacefully so that the two hundred and 25 fifty (250) residents evacuated from
161 the area can return to their homes. I 2 have called upon the chiefs to use 3 their offices to assist the OPP in 4 peacefully achieving that goal." 5 Now, this press release certainly appears 6 to be, from what I can find, the first press release by 7 Premier Harris on the Ipperwash occupation as of 8 September 4th, 1995; is that also your recollection? 9 A: I can't speak to that with any degree 10 of certainly, sir. 11 Q: All right. Do you know of an earlier 12 one? 13 A: I do not. 14 Q: All right. And this press release, 15 when it says, quote, "We will not discuss the illegal 16 occupation" when he's talking about discussions with 17 leaders of -- of the First Nations communities, that was 18 consistent with the message you were told? 19 A: Correct. 20 Q: Secondly, when it refers to an 21 illegal occupation, do you see any reference in this 22 press release at any point to the burial site concerns? 23 A: I do not. 24 Q: Now, this press release dated 25 September 12, 1995, it refers to -- at some point you'll
171 see it on the second paragraph, it says, "Earlier today"; 2 do you see that, second paragraph? 3 A: I do. 4 Q: So, it -- it was issued at some point 5 in the day, but it was certainly issued after First 6 Nations leaders came to Queen's Park, do you see that? 7 A: I do. 8 Q: Right. I'm going to ask you, while 9 holding that in your hand, to turn to Tab 26 of the green 10 binder that should be now in front of you and it should 11 be labelled, "Aboriginal Legal Services Documents -- List 12 of Documents." 13 Do you have that? 14 A: I have the binder. 15 Q: All right. If you could turn, 16 please, to Tab 26? It says, "ALST Book of Documents"; 17 for the record, the green binder. 18 Now, at Tab 26 you should see a fax cover 19 from Julie Jai, do you see that, dated -- 20 A: I do. 21 Q: -- dated February 23rd, '96? 22 A: Correct. 23 Q: And on the face of the fax cover, 24 it's to both yourself and Peter Allen, and it says in the 25 comments:
181 "Attached is a draft backgrounder on 2 Ipperwash prepared at Deb Hutton's 3 request. Please review ASAP and advise 4 me of any additions or changes. This 5 has to go to PO on Monday, February 6 26th." 7 Would you agree that "PO" means Premier's 8 office? 9 A: I would assume it does, yes. 10 Q: And you recall being involved in this 11 kind of process? 12 A: I do. 13 Q: And you recall reviewing 14 backgrounders that go to the Premier? 15 A: I recall reviewing backgrounders. I 16 -- I believe this would have been the first occasion that 17 I reviewed one that would go to the Premier's office, 18 yes. 19 Q: So, you actually have a specific 20 recollection of this? 21 A: I do. 22 Q: All right. Now, what I wanted to ask 23 you about, and this relates to the -- the burial ground 24 issue we were discussing a moment ago, I'd ask you to 25 turn to page 2 of this background.
191 COMMISSIONER SIDNEY LINDEN: The document 2 has a number, I think. We should put it on the record. 3 Is that -- 4 MR. JULIAN FALCONER: Yes. My apologies. 5 I'm at Tab 26 of the -- 6 COMMISSIONER SIDNEY LINDEN: Yes. But I 7 mean a document number. 8 MR. JULIAN FALCONER: Yes. 9 COMMISSIONER SIDNEY LINDEN: Yes. Okay. 10 MR. JULIAN FALCONER: Tab 26 of the ALST 11 documents, and it's Document number 1003662. 12 COMMISSIONER SIDNEY LINDEN: Thank you. 13 MR. JULIAN FALCONER: And I thank you for 14 that, Mr. Commissioner. 15 COMMISSIONER SIDNEY LINDEN: Thank you. 16 17 18 CONTINUED BY MR. JULIAN FALCONER: 19 Q: 1003662. At page 2 of the 20 backgrounder, could you turn to that for a moment? 21 22 (BRIEF PAUSE) 23 24 Q: Mr. Millar has successfully brought 25 up the cover page. I'm wondering, is -- in the same
201 document number he should find the attachments. There 2 were are. And if you go to the second page of that. I'm 3 grateful. Yes, please. Thank you. Right there is fine. 4 Thank you. 5 If you look at the bullet that says: "On 6 September 12th,": 7 "On September 12th, 1995," -- 8 And I'm quoting from page 2 of the 9 backgrounder: 10 "On September 12th, 1995, the Federal 11 Government advised the Province that 12 they had just found some archival 13 material indicating that the First 14 Nation had advised the Provincial 15 Deputy Minister of Lands and Forests 16 [bracket] (the predecessor to the 17 current Ministry of Natural Resources) 18 [bracket] in 1937 that there was 19 [quote]'An Indian burial ground' [close 20 quote] on the proposed site of the Park 21 and requesting the burial ground be 22 preserved, marked off and fenced. 23 The Province is investigating the 24 burial site issue as a result of this 25 new information."
211 And, for the record, there is a slash 2 through that sentence with asterisks on both sides. 3 "Recently [bracket] (January 1996) 4 [close brackets] the daughter of a 5 former Park Superintendent has 6 indicated that she knows where the 7 burial ground is located. If human 8 remains are found and a burial site is 9 determined to exist, the Province will 10 comply with the provisions of the 11 correct -- [I'm sorry] provisions of 12 the Cemeteries Act and protect the 13 site." 14 And then there is a -- a handwritten 15 notation: 16 "Is this statement correct [question 17 marks]?" 18 And I -- and is that your handwriting, 19 sir? 20 A: It is. 21 Q: All right. And the, "Is this 22 statement correct?", what does it refer to? 23 A: It refers to the asterisks and the 24 struck out piece within that paragraph: "The Park is" -- 25 I'm sorry -- "The Province is investigating the burial
221 site issue as a result of this new information." 2 Q: All right. I'd like to back up a 3 step. There's a number of questions I have from this but 4 the first one is: Would you agree with me though that 5 the part you didn't correct is that on September 20 -- 6 12th, 1995 -- I ate my words -- on September 12th, 1995, 7 the Federal Government advised the Province that they had 8 just found some archival material indicating that the 9 First Nation had advised the Provincial Deputy Minister 10 of Lands and Forests in 1937 that there was an Indian 11 burial ground; that part was correct? 12 A: Correct. 13 Q: So, it's fair to say on the very day 14 that Premier Mike Harris issued a press release 15 indicating the legal occupation, and indicating -- and 16 concerned for the plight of the two hundred and fifty 17 (250) residents evacuated from the area, and indicating 18 that he would not discuss the illegal occupation of 19 Ipperwash Provincial Park with their leaders, on the very 20 same day the Ontario Provincial Government was advised by 21 the Federal Government that, indeed, there was a history 22 to the claim of the burial ground; is that right? 23 A: Correct. 24 Q: Would you agree with me, though, that 25 the decision not to mention the burial ground in the
231 press release of September 12th, 1995, is entirely 2 consistent with the meeting you had on September 5th, 3 1995 when Julie Jai recorded the reference that there 4 would be no mention of the burial grounds? 5 MR. DERRY MILLAR: I'm not -- the Witness 6 can't -- can't talk to the decision made with respect to 7 the press release. If My Friend re-words the question, 8 perhaps, he can do a proper question, but -- 9 MR. JULIAN FALCONER: That's fine, I can 10 -- I understand the concern. 11 COMMISSIONER SIDNEY LINDEN: Fine, thank 12 you. 13 14 CONTINUED BY MR. JULIAN FALCONER: 15 Q: Would you agree with me that on 16 September 5th, 1995, if one were discuss, quote "being on 17 message," close quotes, the message was to simply remain 18 silent on the issue of a potential burial ground? 19 A: Correct. 20 Q: Would you agree with me that simply 21 reading the press release of September 12th, 1995 being 22 document 1000908, that that remaining on message was the 23 same message; remain silent on the burial ground? 24 A: Correct. 25 Q: And would you agree with me that on
241 September 12th, 1995 the very day that Premier Mike 2 Harris issued this press release remaining silent on the 3 burial ground, he was informed or his government was 4 informed by the federal government of an actual history 5 of a claim of an Indian burial ground? 6 A: As I understand it, yes. 7 Q: In reference to the -- the 8 communications that occurred on September 12th, 1995... 9 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 10 Downard...? 11 MR. PETER DOWNARD: The last question was 12 a compound question. Is this Witness saying that he knew 13 that Premier Harris was informed of this 1937 14 correspondence before he issued this press release? 15 That last question was, Are you saying 16 that he knew or his government knew about this, and the 17 answer, it was affirmative. 18 Now, I don't want -- I'd like to have the 19 point clear. 20 COMMISSIONER SIDNEY LINDEN: Perhaps that 21 should be clarified. 22 MR. JULIAN FALCONER: Mr. Commissioner, I 23 asked a series of questions. You, at the end of the day, 24 Mr. Commissioner, will have to make a determination. 25 COMMISSIONER SIDNEY LINDEN: Well, but
251 Mr. Down -- 2 MR. JULIAN FALCONER: But -- 3 COMMISSIONER SIDNEY LINDEN: I'm sorry. 4 Carry on. 5 MR. JULIAN FALCONER: I'm sorry, I don't 6 want to interrupt you, Mr. Commissioner. 7 COMMISSIONER SIDNEY LINDEN: No, go 8 ahead. I'm sorry, Mr. Falconer. 9 MR. JULIAN FALCONER: You, at the end of 10 the day, will have to draw a series of inferences. The 11 way the question was framed, I deliberately did not 12 create a premise that this witness could climb into the 13 mind of Premier Harris when he issued the press release. 14 I deliberately did not frame the question 15 that way. I simply pointed out the coincidence of 16 timing. Now, I understand Mr. Downard's concern that it 17 certainly makes his client look problematic, but he's not 18 entitled to try to clean that up through an objection, 19 because there was nothing objectionable about the 20 question. 21 There is an overhanging inference that I 22 assume he'll be allowed to call his client to address, 23 but when you look at September 5th, 1995 and the decision 24 not to mention burial grounds, and I'm about to actually 25 ask this witness about the communications around the
261 12th, so I'm not going to leave this simply hanging. 2 I'm -- my next question, and I started it, 3 was can you tell me about the communications you know 4 about on the 12th? 5 In other words, he may know something, a 6 little bit or a lot. He may be able to tell us that he 7 met with Premier Harris on the 12th. I don't think he's 8 going to tell us that, but my point is I'm going to ask 9 him everything he knows about it. 10 COMMISSIONER SIDNEY LINDEN: All right. 11 Yes, Mr. Downard...? 12 MR. PETER DOWNARD: First of all, when I 13 object to questions, it's not because I think Mr. 14 Falconer is causing problems for my client. Apart from 15 what I view as being rather weightless character 16 assassination, repeatedly, in his cross-examinations, he 17 doesn't cause me any problems at all. 18 All I am concerned about is that he's 19 unfairly rolling into a question, a question of this 20 witness as to the personal knowledge of the premier, and 21 if he wants to know whether this witness can say the 22 Premier had personal knowledge of this matter or not, I'd 23 appreciate it if he'd just ask him that straight up, in a 24 clear fashion, so the record's clear. 25 That's my only concern.
271 COMMISSIONER SIDNEY LINDEN: You're going 2 to carry on and clarify what this Witness knows or what 3 this witness -- 4 MR. JULIAN FALCONER: That was the next 5 question -- 6 COMMISSIONER SIDNEY LINDEN: Okay. 7 MR. JULIAN FALCONER: And, of course, I'm 8 not going to address My Friend's personal criticism of 9 me. I'm trying to avoid getting into personal attacks 10 between us, so I'm simply going to leave the references 11 aside, and it can be assumed, obviously, I couldn't 12 agree -- 13 COMMISSIONER SIDNEY LINDEN: Carry on. 14 MR. JULIAN FALCONER: -- with anything he 15 said. 16 17 CONTINUED BY MR. JULIAN FALCONER: 18 Q: Could -- could you assist me, 19 Superintendent Fox, in respect of the 12th of September 20 1995, you'd agree with me that the information imparted 21 by the Federal Government concerning the burial grounds 22 would have been significant information in respect of the 23 Ipperwash occupation? 24 A: I would agree. 25 Q: Can you assist me on when that
281 information came to your attention? 2 A: As I recall, it came to my attention 3 by virtue of either a press release or a conference and 4 as I recall, it was the Minister with responsibility for 5 Northern Affairs and -- or Indian Affairs and Northern 6 Development Canada, Mr. Irwin, who provided that 7 information that there was something from the Federal 8 Archives that spoke to a burial ground or at least the 9 possible existence of a burial ground and that that 10 information had been communicated to the Province many 11 years previous. 12 Q: All right. And, when you say, 13 "It came to your attention by virtue of 14 a conference or a -- a press release" 15 Can you be more specific? 16 Can you nail this down at all? 17 A: I can't other than to say that's how 18 I came to know of it. I recall at this period of time I 19 was on the road engaged in other duties and as I recall, 20 it was -- it was either a radio station or a media outlet 21 and I believe, but I'm not certain, from the Sarnia area 22 that provided that information. 23 Q: You remained a member of the 24 Interministerial Committee, correct? 25 A: I did.
291 Q: And so, as of September 12th, 1995 -- 2 I'm asking you to focus on that date because you've so 3 far told us you eventually became aware of this 4 information, but I'm now talking about September 12th, 5 1995. 6 In your capacity as a member of that 7 Interministerial Committee, when did you find out as a 8 member of that committee? 9 A: I -- I think I've -- I've provided 10 you with when I found out. With respect to officially 11 being informed as a member of the committee, it would 12 have been at one (1) of the next meetings and I'm 13 uncertain as to which one it would be. 14 Q: All right. Would you agree with me 15 that this information in terms of your job in providing 16 advice to the Solicitor General is very significant 17 information? 18 A: It is. 19 Q: And, by "this information" of course 20 I'm referring to the information provided by the Federal 21 Government as to the 1937 notice, all right? 22 A: I understood that to be what you were 23 asking. 24 Q: Okay. And, would you agree with me 25 that it certainly changed, radically, the suggestion that
301 there was simply no merit -- merit to the notion of a 2 burial site, it changed radically that notion, didn't it? 3 A: I believe so, yes. 4 Q: As far as you were concerned, though, 5 historically, prior to September 12th, 1995, you weren't 6 of the view there was absolutely no merit to the burial 7 site claim, were you? 8 A: I was of the view that there could be 9 merit to the burial site claim. 10 Q: And, you were of the view that it was 11 important to make haste slowly in order to determine the 12 validity of such a claim? 13 A: I said those words, yes. 14 Q: And, you were of the view that one 15 should not rush to judgment about the illegality or the 16 lack of validity to the concerns of the occupiers, 17 correct? 18 A: Correct. 19 Q: But the Government of the day as 20 represented by Deb Hutton, the voice of the Premier, at 21 the September 5th and 6th, 1995, meetings made clear to 22 you that they didn't agree with that approach, correct? 23 A: What was clear to me is there was 24 significant difference in approaches. 25 Q: And, the differences included:
311 1. remaining silent on the issue of a 2 potential merit of a burial ground concern, correct? 3 A: Correct. 4 Q: You and the Government of the day did 5 not agree on that, correct? 6 A: I can't say at that point in time 7 whether the government and I may have agreed or 8 disagreed, I certainly disagreed with it in the context 9 of the meeting. 10 Q: All right. 11 COMMISSIONER SIDNEY LINDEN: Do you... 12 Obj MR. PETER DOWNARD: I -- I have an 13 objection. My -- My Friend is -- is not fairly treating 14 this subject as it is presented in Julie Jai's own notes. 15 This whole matter of a burial ground and 16 Interministerial Committee is covered in those notes and 17 there are very important things in those notes about the 18 issue. 19 And, in these very notes, at the page 20 numbered "5", Julie Jai's note reads, quote: 21 "Re: Poss [presumably meaning, 22 "possible"] burial grounds. 23 COMMISSIONER SIDNEY LINDEN: Just one (1) 24 minute, I want to go back to that and see where that is. 25 MR. JULIAN FALCONER: I -- I'm assuming,
321 Mr. Commissioner, this is an objection to a question -- 2 COMMISSIONER SIDNEY LINDEN: It is an 3 objection, but it's an objection indicating that the 4 premise of the question is inaccurate, so let's see what 5 it is. 6 MR. PETER DOWNARD: The note at page 5 7 says, "Re: Possible burial ground." It doesn't affect 8 ownership -- 9 COMMISSIONER SIDNEY LINDEN: I'm at page 10 5 and I don't see that. 11 MR. PETER DOWNARD: It says, at the top, 12 "Friday, if injunction obtained," is at the top? 13 COMMISSIONER SIDNEY LINDEN: They have 14 the names of some of the occupiers. Maybe it's, like Mr. 15 Falconer said, the page numbers repeat themselves. 16 MR. JULIAN FALCONER: Oh, I'm sorry. 17 MR. DERRY MILLAR: Mr. Falconer was 18 referring to September 5th when he asked his question, 19 which is at the latter part of the -- of -- 20 COMMISSIONER SIDNEY LINDEN: There's two 21 (2) sets of notes, are there? 22 MR. DERRY MILLAR: There are two (2) sets 23 of notes. 24 MR. DERRY MILLAR: There's a note from 25 September 5th, and -- and Mr. Falconer was referring to
331 the September 5th notes when he made his first reference 2 with respect to burial ground. There's a -- also a 3 reference to burial ground in the September 6th notes, 4 which are at the beginning of the series of notes. 5 MR. PETER DOWNARD: Indeed. And my -- my 6 points is that in the September 6th notes of Julie Jai -- 7 COMMISSIONER SIDNEY LINDEN: But do the 8 September 6th notes come before the September 5th notes 9 in this binder? 10 MR. JULIAN FALCONER: They do. 11 COMMISSIONER SIDNEY LINDEN: All right. 12 MR. PETER DOWNARD: There -- there's very 13 substantial notes indicating that there's very 14 substantial discussion of the burial site issue, there's 15 discussion about how it does not affect ownership, 16 discussion about -- it reads: 17 "Cemeteries Act makes it a requirement 18 that police coroner be notified when 19 there's a burial site discovered, 20 Registrar of Cemeteries be notified, 21 have it investigated, [something] 22 declared a site to be an unapproved 23 Aboriginal cemetery, then notice given 24 to local Band Council, and negotiation 25 occurs of disposition of the remains,
341 arbitration possible. Tim [which is 2 presumably a reference to Tim McCabe] 3 unlikely to affect injunction." 4 So, my -- my only point is that the 5 proposition that seems to be put to the Witness expressly 6 and implicitly in My Friend's cross-examination is that 7 the meeting takes the view that, Well we're just not 8 going to say anything about this and it doesn't affect 9 title. 10 There's a much more substantial discussion 11 of the burial site issue in these meetings, and it's 12 important that the full context be put on the subject. 13 COMMISSIONER SIDNEY LINDEN: Both these 14 meetings occurred before the September 12th statement. 15 MR. JULIAN FALCONER: That's right. 16 COMMISSIONER SIDNEY LINDEN: That's fine. 17 MR. JULIAN FALCONER: I -- I'm surprised 18 that My -- My Friend is suggestive that this is 19 inconsistent with my concerns expressed through cross- 20 examination. In fact, this simply makes it worse. But, 21 I want to go back a step, Mr. Commissioner, so there's 22 context to this. 23 Your Counsel, Ms. Vella, asked the 24 question why in the minutes, formal minutes, is there an 25 absence of a mention of the burial ground issue. And the
351 Witness said he was quite certain that it was discussed. 2 I don't know if you remember that exchange. 3 COMMISSIONER SIDNEY LINDEN: Yes. Yes. 4 MR. JULIAN FALCONER: Superintendent Fox, 5 do you recall that? 6 THE WITNESS: I do. 7 MR. JULIAN FALCONER: Well, the point is 8 the theory and issues that, certainly Aboriginal Legal 9 Services of Toronto is going to be advancing to you at 10 the end of the day is, there was a deliberate decision 11 not to communicate the legitimacy of the burial ground 12 concerns by the Government of the day, decision not 13 agreed to by Superintendent Fox, and far from the 14 September 6th note that Mr. Downard read to you, 15 assisting. 16 It simply makes the point again that they 17 were alive to the issue and chose not to mention it in 18 formal minutes, chose not to mention it in a press 19 release, and chose to simply act like it wasn't there. 20 But, on September 12th, when the Federal Government told 21 them that, historically, there was an issue of formal 22 notice, it becomes, obviously, with great respect, 23 unforgivable. 24 And -- and all I say is that in terms of 25 my cross-examination of this Witness I'm being fair
361 because I'm pursuing a theory, it's borne on facts and -- 2 and it's in no way misrepresenting the information. 3 COMMISSIONER SIDNEY LINDEN: All right. 4 I don't want you to make your argument now, Mr. Falconer. 5 MR. JULIAN FALCONER: Well, but he -- 6 he's asking me to. 7 MR. PETER DOWNARD: But -- but My Friend 8 is -- is misstating the evidence. We put -- we put to 9 the -- the Witness last week evidence of inquiries by -- 10 by an MNR government official, of Elizabeth Thunder of 11 the Kettle and Stony Point Band, Do you know about this 12 burial ground issue? Her saying, Well the Elders have 13 said they don't know there is one. 14 So, to say that the -- the decision that 15 was made by the Government was to act as if this issue 16 was not there is just plainly false. It misstates the 17 evidence that's been before -- 18 COMMISSIONER SIDNEY LINDEN: Okay. I 19 don't want to hear the argument now. I just want to hear 20 the evidence. 21 MR. JULIAN FALCONER: This isn't an 22 objection -- this is argument. 23 COMMISSIONER SIDNEY LINDEN: That's fine. 24 Where are you now? 25 MR. JULIAN FALCONER: I -- I'd like to
371 continue. 2 COMMISSIONER SIDNEY LINDEN: All right. 3 What's your next question? 4 5 CONTINUED BY MR. JULIAN FALCONER: 6 Q: My next question, that I was in mid- 7 question about was: Superintendent Fox, you had answered 8 a series of questions where I put it to you that as of 9 September 5th and 6th, 1995, you did not agree with the 10 Government of the day on a number of matters. 11 And the first point I put to you was that 12 you didn't agree with the decision not to mention the 13 issue of the burial grounds. And you responded -- and 14 I'm trying to bring us -- you responded that you can't 15 really speak to the issue of disagreeing with the 16 Government of the day, you disagreed with committee 17 members, correct? 18 A: Yes. And I'll qualify that by not -- 19 by saying I wasn't in disagreement with all committee 20 members. 21 Q: But, you disagreed with an initiative 22 or a recommendation or indeed a direction not to mention 23 the issue of burial grounds; you disagreed with that? 24 A: A premiss, yes, sir. 25 Q: And would you agree with the press
381 release about the September 12th occupation that made no 2 mention of the burial grounds as of September 12th, 1995; 3 would you agree with that? 4 A: Personally, I wouldn't agree with it, 5 no. 6 Q: Because that would leave a 7 significant piece of the puzzle out of the story, 8 wouldn't it? 9 A: It leaves information that I believe 10 should have been looked at out, yes. 11 Q: Would you agree with me, and if I 12 could have that September 12th, 1995 reference in the 13 bullets that appears in document -- the backgrounder that 14 appears in document 1003662 reproduced again, please, on 15 the screen. 16 Would you agree with me that the reference 17 to formal notice, going in 1937 from the aboriginal 18 community to the Ministry of Natural Resources, 19 represents more than simply oral history, it actually 20 represents formal notice to the government? 21 A: Correct. 22 Q: And would you agree with me that in 23 circumstances where, having received formal notice, a 24 government subsequently, for it's own reasons, determines 25 to simply permit Provincial Park camping and recreational
391 activities on those grounds, would you agree with me that 2 that would be a legitimate cause for concern for an 3 aboriginal community? 4 A: I can't speak to what the government 5 in 1937's position would have been or what their 6 understanding was. 7 If I can relate it to 1995, if that 8 information were available, I would think it imprudent. 9 Q: And it's your -- you took on the 10 position as advisor on First Nations issues to the 11 Solicitor General on the premise that you developed an 12 interest and background on First Nations concerns, 13 correct? 14 A: Certainly, yes. 15 Q: And you have a probably higher 16 sensitivity than your average police officer, even your 17 average management officer, to aboriginal concerns, 18 correct? 19 A: I would say I certainly have a 20 sensitivity. I can't speak to whether it's greater than 21 anyone else's. 22 Q: And would you, with that sensitivity, 23 and the background that you bring with you as a special 24 advisor on aboriginal issues, agree that it would be an 25 extraordinary insult to an aboriginal community to have
401 recreational camping on their burial ground? 2 A: Yes. 3 4 (BRIEF PAUSE) 5 6 Q: Can you assist me as to what your 7 knowledge is as to the first time either the OPP or the 8 provincial government actually acknowledged the formal 9 notice received in 1937 by the Ministry of Natural 10 Resources? 11 I mean, acknowledged it publically. 12 A: I stand to be corrected, but I'm not 13 certain that it has been. 14 Q: So -- and you're not -- in terms of 15 persons that have been involved in the Ipperwash 16 occupation, you're far from a lightweight in terms of 17 your extensive involvement; would you agree? 18 A: Correct. 19 Q: Your involvement didn't just span 20 1995, it went through 1996 as well? 21 A: Correct. 22 Q: And so you sit and testify today that 23 almost ten (10) years later, as far as you know, the 24 Ontario Provincial government and/or the Ontario 25 Provincial Police have yet to formally acknowledge the
411 formal notice provided to the Minister of Natural 2 Resources in 1937; is that correct? 3 A: Let me qualify that by referring 4 back, as I answer, to the page of notes titled number 2, 5 or page 2, and where I've put the double asterisks, the 6 beginning and end of a particular sentence and drew the 7 line through it and added -- added the commentary, "is 8 the statement correct??" with two (2) question marks, I'm 9 really responding to Ms. Jai and answering what might be 10 considered a rhetorical question and that is, is the 11 station -- is the statement correct given what we know at 12 this point. 13 As indicated in previous notes from Ms. 14 Jai, if there was a burial ground identified, there are 15 certain procedures that existed in 1995 that would have 16 to be followed, certainly by the police as an 17 investigative arm, and by the Government with respect to 18 the application to the Cemeteries Act. 19 I can't speak to what might have been 20 available in 1937 and whether that examination was done. 21 To your question, sir, with respect to 22 what the provincial government has articulated, relative 23 to a burial site and I think more particular in an area 24 that I can answer with respect to the OPP, the OPP from 25 the beginning has never discounted the fact that there
421 may well have been a burial site in that area and I 2 believe in my read of some previous witness testimony, 3 that was acknowledged. 4 Q: And I appreciate the clarification 5 and -- and you're very fairly answering my question, but 6 you'd agree with me that there is a distinction between 7 what you've just said and formally acknowledging that 8 formal notice of 1937 to the Minister of Natural 9 Resources? You'd agree with me that there's a 10 difference? 11 A: Yes, sir, with -- in -- in terms of 12 acknowledging what was made available back in 1937, but 13 with respect -- and, as I understand your question -- in 14 -- in terms of what the Ontario Provincial Police would 15 know and respond to, again, I fall back to my, "Is the 16 statement correct." 17 If the due diligence was done by the 18 Coroner's office and under the Cemetery's Act, involving 19 anthropologists and historians, then I think it would be 20 germane and within the purview of the OPP to respond and 21 say, Yes, we the Ontario Provincial Police acknowledge a 22 burial site. 23 We've never, in my view, said there 24 wasn't. With respect to conclusive proof, and I do stand 25 to be corrected, I don't believe the Ontario Provincial
431 Police was ever provided that. 2 Q: Now, you've spoken just now in 3 relation to the positions taken by the Ontario Provincial 4 Police in and around September to October 1995, correct? 5 A: Yes, sir. 6 Q: But, in fact, you were an advisor to 7 the Solicitor General, seconded to the Ministry of the 8 Solicitor General in that time period, weren't you? 9 A: Yes, sir. 10 Q: So who were you speaking on behalf 11 of, the Ontario Provincial Police or the Ministry of the 12 Solicitor General? 13 A: In 1995 I would be speaking for the 14 Deputy Solicitor General. 15 Q: So, the Ministry of the Solicitor 16 General? 17 A: Correct. 18 Q: But it is a little bit grey, isn't 19 it? 20 A: No, sir, I don't believe it is. In 21 looking at and -- and going back to the question you 22 asked me, it was a two (2) parter. 23 Did or has the Government of Ontario 24 acknowledged this information from 1937 and I can't speak 25 to that. I can say that when I left that position I
441 don't believe there was an acknowledgement. 2 Q: All right. That's -- thank you. And 3 that's what I'm trying to -- so you can speak to the OPP, 4 but when it comes to the Solicitor General you 5 acknowledge that your role, in fact, was to be a special 6 advisor on these very issues in that time period, yes? 7 A: Correct. And that terminated in 8 February of '96, yes. 9 Q: Right. And as far as you know, and 10 you maintain today, the Ministry of the Solicitor General 11 of the day while you were involved never made the 12 acknowledgement of the formal notice of 1937, correct? 13 A: No, the Ministry of the Solicitor 14 General did not. 15 Q: All right. Could you direct your 16 attention, please, to Tab 16 of the same binder, the 17 green binder, ALST's book of documents? 18 MR. DERRY MILLAR: If I might, before we 19 go on too much farther, if My Friend is going to mark any 20 of these documents as exhibits, it would be helpful to do 21 it as we go along. For example, the press release -- 22 MR. JULIAN FALCONER: That's fine. 23 MR. DERRY MILLAR: -- the notes of Ms. 24 Jai, and -- 25 MR. JULIAN FALCONER: We do an inventory
451 cleanup just before break, Mr. Eyolfson and I -- 2 COMMISSIONER SIDNEY LINDEN: Well -- 3 MR. JULIAN FALCONER: -- but I'm happy to 4 do it either way, so we can do it now. 5 MR. DERRY MILLAR: It doesn't -- yeah, it 6 helps the -- it helps the record and -- 7 MR. JULIAN FALCONER: That's fine. 8 MR. DERRY MILLAR: -- and those who are 9 reading the record to do it as it goes along and not have 10 an inventory of, at break. 11 COMMISSIONER SIDNEY LINDEN: Let's put 12 the documents in as exhibits now. 13 MR. JULIAN FALCONER: Yeah. If -- if Mr. 14 Millar helps me to remember, I'll -- I'll keep doing it 15 as we go. 16 So what I would respectfully propose, 17 firstly, is the press release of September 12th, 1995 be 18 made the next exhibit? 19 COMMISSIONER SIDNEY LINDEN: It's a 20 statement; it's titled, "Statement." Is that -- 21 MR. JULIAN FALCONER: That's correct. 22 COMMISSIONER SIDNEY LINDEN: It's a news 23 release entitled, "Statement -- 24 MR. JULIAN FALCONER: Statement of -- 25 that's correct --
461 COMMISSIONER SIDNEY LINDEN: Okay? 2 MR. JULIAN FALCONER: -- Statement of -- 3 COMMISSIONER SIDNEY LINDEN: September 4 12th. 5 MR. JULIAN FALCONER: -- Michael Harris-- 6 COMMISSIONER SIDNEY LINDEN: Premier 7 Harris. 8 MR. JULIAN FALCONER: -- Premier. 9 THE REGISTRAR: P-535, Your Honour. 10 MR. JULIAN FALCONER: Could the Registrar 11 mark the Witness copy, if that's all right with the 12 Registrar? Thank you. 13 14 --- EXHIBIT NO. P-535: Document No. 1000908 15 September 12/95 Press Release 16 from Mike Harris MPP, Premier 17 Re. Seizure and Illegal 18 Occupation on Ipperwash 19 Provincial Park. 20 21 MR. JULIAN FALCONER: The next exhibit 22 would be the Julie Jai Notes of September 5th, 1995, that 23 appear at Tab -- 24 COMMISSIONER SIDNEY LINDEN: Are they 25 already an exhibit?
471 MR. JULIAN FALCONER: No they're not, 2 apparently. These notes are not an exhibit, they appear 3 as Tab 8 of the blue binder. 4 COMMISSIONER SIDNEY LINDEN: Yes. I have 5 them. I thought they were already an exhibit but if 6 they're not, let's mark them. 7 MR. JULIAN FALCONER: The document number 8 is 1012574. 9 COMMISSIONER SIDNEY LINDEN: It looks 10 like 2579. 11 MR. DERRY MILLAR: I think it's 9 12 actually. 13 COMMISSIONER SIDNEY LINDEN: 2579. 14 MR. JULIAN FALCONER: My apologies. 15 MR. DERRY MILLAR: And -- 16 MR. JULIAN FALCONER: 1012579. 17 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 18 Millar...? 19 MR. DERRY MILLAR: And there -- that 20 document is the -- includes a cover sheet dated January 21 23rd, '97, an agenda for the September 6th, '95 meeting, 22 and her handwritten notes for that, and her handwritten 23 notes for the September 5th meeting. 24 COMMISSIONER SIDNEY LINDEN: And that -- 25 THE REGISTRAR: That would be under P-
481 536, Your Honour. 2 3 --- EXHIBIT NO. P-536: Document No. 1012579 4 Handwritten Note of Julie 5 Jai, September 06/95. 6 7 MR. JULIAN FALCONER: Thank you. And 8 then the -- at Tab 26 of the green binder, the fax with 9 attachments with the backgrounder would be the next 10 exhibit, subject to your approval, Mr. Commissioner. 11 COMMISSIONER SIDNEY LINDEN: That's fine. 12 MR. JULIAN FALCONER: Which is document 13 number 1003662. 14 COMMISSIONER SIDNEY LINDEN: Yes. 15 MR. JULIAN FALCONER: And that attaches 16 the backgrounder. 17 MR. DERRY MILLAR: And perhaps the actual 18 exhibit, 100 -- document -- 3662 has, as its first page, 19 a fax cover sheet from Mr. Fox to Julie Jai at ONAS, and 20 it's dated February 26th, '96. So I think it should be 21 made part of this exhibit as well. 22 MR. JULIAN FALCONER: Yes. 23 MR. DERRY MILLAR: And what it looks like 24 is Mr. -- Superintendent Fox sent back a fax to Ms. Jai. 25 THE REGISTRAR: P-537, Your Honour.
491 --- EXHIBIT NO. P-537: Document No. 1003662 2 Background of Ipperwash from 3 Julie Jai to Ron Fox, Peter 4 Allen February 23/96 and 5 February 26/96. Fax to Julie 6 Jai from Ron Fox. 7 8 CONTINUED BY MR. JULIAN FALCONER: 9 Q: I thank, Mr. Millar. 10 The green book of documents marked, ˘ALST 11 Book of Documents,÷ if you could direct your attention, 12 please, to Tab 16 of that book, Superintendent Fox. 13 A: Yes, sir. 14 Q: At it is document number 1000948 -- 15 COMMISSIONER SIDNEY LINDEN: Just two (2) 16 zeros, 100948, I think. 17 MR. JULIAN FALCONER: There's three (3) 18 zeroĂs, 1 -- 19 COMMISSIONER SIDNEY LINDEN: Three (3) 20 zeroĂs? 21 MR. JULIAN FALCONER: -- triple zero 22 (000), 948. 23 COMMISSIONER SIDNEY LINDEN: Is that 24 right? Okay. The one I've got has only got two (2) 25 zeros on it. ThatĂs fine.
501 2 CONTINUED BY MR. JULIAN FALCONER: 3 Q: It is a -- apparently a formal minute 4 of the support group which is the off shooter or 5 branching out of the Interministerial Committee, dated 6 October 3rd, 1995; do you see that? 7 A: I do. 8 Q: You were in attendance at that 9 meeting? 10 A: I was. 11 Q: The second page of that minute refers 12 to, paragraph 2: "MNR, Peter Allen and Barry Jones." 13 Third bullet: 14 "Research regarding the alleged burial 15 site is currently being done. Victor" 16 [and I'm going to certainly ruin this 17 man's name, Galewitsch] Gulewitsch ű- 18 COMMISSIONER SIDNEY LINDEN: Gulewitsch I 19 think it is. 20 21 CONTINUED BY MR. JULIAN FALCONER: 22 Q: -- a consultant for the Chippewas of 23 Kettle and Stony Point First Nations, 24 requested MNR to provide him with the 25 opportunity to review MNR's research
511 material." 2 Do you see that? 3 A: I do. 4 Q: Can you assist Mr. Commissioner with 5 what your knowledge was in and around the relevant time 6 as a member of this support group, as of October 3rd, 7 1995? 8 A: Assist -- 9 Q: With the -- 10 A: -- assist the Commissioner in doing 11 what, sir? 12 Q: The status of the research. In other 13 words, you -- you were a member of the committee being 14 reported to about the existence of research; right? 15 A: That is correct. 16 Q: And so what I'm trying to probe, sir, 17 is your recollection of what you were advised, as to the 18 activities or steps being taken, in -- in relation to the 19 information concerning the burial site. 20 A: Simply as stated, sir, in these 21 minutes. It was ongoing. I don't recall that there was 22 a progress report that would have suggested any 23 particular findings as of that moment. 24 Q: And do you see anywhere in the 25 October 3rd, 1995 minutes, referring to the formal 1937
521 notice to the Minister of Natural Resources? 2 A: No, sir. 3 Q: And this notion that the research is 4 ongoing, do you know if it's the same research that Mr. 5 Downard drew your attention to? 6 A: I don't know. 7 Q: Because the notion that research is 8 ongoing suggests to me, and you can agree or disagree 9 with me, that no ones actually looked into this and come 10 up with a conclusion. Would you agree with that? 11 A: Well ongoing research, in my 12 understanding of that, would be that historical 13 documents, references, perhaps the taking of oral history 14 would be part of that function. 15 I think with respect to a conclusion being 16 drawn, that would only be done once the research was 17 completed by the researcher. 18 Q: So, certainly, as of October 3rd, 19 1995, we know two (2) things. We know that the 20 Government of the day has formal notice of a 1937 formal 21 notice as to the existence of burial grounds in the 22 Provincial Park, right? 23 A: Correct. 24 Q: And we know that they have not, by 25 any stretch, completed their research into the issue,
531 correct? 2 A: That would seem reasonable to me, 3 yes. 4 Q: In the circumstances, was it ever 5 discussed and concluded or decided that given the 6 information at hand, that it would be appropriate to 7 correct the public record that there indeed may be a 8 valid claim out there? 9 A: Not that I recall, sir. 10 Q: Now, I don't want to keep returning 11 to documents. There is an unrelated point I just want to 12 confirm with you on the same page, and I apologize about 13 jumping issues, but I'm on a document I'll try to deal 14 with it in its entirety. 15 At tab 16, the October 3rd, 1995 minute, 16 there's a reference at page 2 above the paragraph we've 17 been discussing under: 18 "SIU. Ron Fox indicated that the 19 investigation is ongoing." 20 Do you see that? 21 A: Correct. 22 Q: Do you recall briefing the support 23 group as to the status of the SIU investigation? 24 A: To that end that is reported, yes. 25 Q: And how would you make that
541 determination? 2 Who would you contact to know the status 3 of the SIU investigation? 4 A: As I recall, I would have -- would 5 have spoken to either Chief Superintendent Coles or to 6 Superintendent Parkin. 7 Q: You wouldn't speak to SIU? 8 A: No, sir. 9 Q: All right. So, part of your tasks, 10 among other things, was to keep the political side 11 informed as to the status of the SIU investigation? 12 A: I don't know that it was so much a 13 task, but it seemed to me to be germane for the Committee 14 to know that that was an ongoing process. 15 Q: Right. But, you saw it as part of 16 your functions to advise the Committee as to the status 17 of the SIU investigation? 18 A: I hadn't heard it from anybody else, 19 so I took that on, yes. 20 Q: The answer to my question is yes? 21 A: Yes. 22 Q: All right. 23 COMMISSIONER SIDNEY LINDEN: Is that 24 document already an exhibit? 25 MR. JULIAN FALCONER: I'm going to ask
551 that this document being Document number 1000948, the 2 October 3rd 1995 IMC support group minute, be the next 3 exhibit. 4 THE REGISTRAR: P-538, your Honour. 5 6 --- EXHIBIT NO. P-538: Document No. 1000948 Minutes 7 of I.M.C. Meeting October 8 03/95. 9 10 11 CONTINUED BY MR. JULIAN FALCONER: 12 Q: Could Exhibit P-424, the report 13 entitled "Project Maple" be placed before the Witness, 14 please? 15 16 (BRIEF PAUSE) 17 18 Q: Under the objective of Project Maple, 19 and I just want you to confirm this for Mr. Commissioner, 20 the objective of Project Maple was, quote: 21 "To contain and negotiate a peaceful 22 resolution." 23 Can your confirm that? 24 A: I'm reading that, yes. 25 Q: All right. That was your
561 understanding of the objective? 2 A: Yes, sir. 3 Q: Then-Inspector Carson, now Deputy 4 Commissioner Carson, took Mr. Commissioner through what 5 was or was not done with the view to negotiating, but my 6 questions to you are about the issue of negotiation and - 7 - and the information going several different ways about 8 it. 9 On May 12th, 2005, Deputy Commissioner 10 Carson testified or clarified a minute of a meeting of 11 the town of Bosanquet in answers to questions from Mr. 12 Millar. 13 He -- and -- and I'm going to take you to 14 the document, but in the minute, Deputy Commissioner 15 Carson is quoted as saying, quote: 16 "It's not the role of the police to act 17 as negotiators." Close quotes 18 And, that is what Deputy Commissioner 19 Carson acknowledged he said on May 12th when he testified 20 in relation to a November 18th, 1994, meeting. 21 Do you agree with that, it's not the role 22 of the police to act as negotiators? 23 A: I do and I don't. I would have to 24 explain my answer. 25 Q: All right. And, by the way, so did
571 Deputy Commissioner Carson and I'd be happy to share his 2 explanation with you first or let you explain first. I 3 don't want to -- I -- I want to be fair, but I -- I would 4 rather hear what you have to say, but if Mr. Commissioner 5 wants me to go over... 6 COMMISSIONER SIDNEY LINDEN: Which ever 7 way -- 8 MR. JULIAN FALCONER: That's fine, you go 9 ahead. 10 COMMISSIONER SIDNEY LINDEN: You should 11 explain what your -- 12 MR. JULIAN FALCONER: Yes. 13 THE WITNESS: To be fair, Your Honour, my 14 understanding of -- of the concept is -- is this: The 15 police ought not to be engaged in negotiations that 16 involve substantive change to policy with respect to the 17 broader government. 18 Police, by the very nature of our 19 business, are in negotiations each and every day. I 20 think there is a confusion and I would like to try as 21 best I can to explain it. 22 Negotiations that police would be 23 involved in are to resolve a particular issue. The 24 negotiations that police are not involved in are those 25 that, perhaps, speak to why the issue came to be in the
581 first place. 2 3 CONTINUED BY MR. JULIAN FALCONER: 4 Q: All right. And, we heard from 5 Commission -- Deputy Commissioner Carson -- along similar 6 lines and, suffice it to say that what I'm trying to get 7 to in terms of my focus with my questioning of you, 8 Superintendent Fox, is what you said on July 12th. 9 You said on July 12th, and I'm quoting 10 because I want to give you the full -- fullness of -- of 11 your words: 12 "Answer: The representative of the 13 Premier's office, Deb Hutton, indicated 14 again that it was the position of -- of 15 the Government that the occupiers were 16 to be removed, there would be no 17 negotiation. 18 There was concern that the police would 19 enter into negotiations with the 20 occupiers and I recall explaining that 21 that was two (2) different things and 22 that's why I'd mentioned the difference 23 between negotiations and front end 24 communication. 25 It was that type of atmosphere, you
591 could tell from the body language this 2 was the position that was to be taken." 3 And, I'm at -- I apologize, I don't have a 4 page number for My Friend; I'm at page 57, page 58 of the 5 July 12th transcript. 6 And, you go on to say: 7 My view, again is, as I've testified 8 yesterday. It wasn't a simple trespass 9 matter, there was a greater complexity 10 to it that one had to move slowly as we 11 went through this understanding that 12 the police were not to negotiate a land 13 claim per se or burial site, but they 14 needed to negotiate with the people 15 there to affect the purpose required 16 and that was to ensure public safety." 17 Now, taking that, right and this is a 18 little bit awkward and I apologize. I'm trying to draw 19 out from you your -- what you had to deal with in 20 September/October of 1995 and what Inspector Carson had 21 to deal with. 22 Taking that and comparing it to Exhibit P- 23 498, it's Document number 1012232, which is at Tab 12 of 24 the Commissioner's documents; it's the guidelines for 25 responding to Aboriginal emergencies?
601 "While the Committee will be able to 2 authorize the Ontario Government to 3 enter into negotiations, it is 4 understood that the committee can only 5 agree to processes which may lead to 6 the removal of the blockade. Any 7 proposed solution must be brought back 8 to the appropriate policy makers for 9 decision if it is substantive or sets 10 new policy." 11 And, you testified, sir, quote: 12 "My understanding was the negotiation 13 in the first instance, the primary 14 focus would be to remove the issue at 15 hand, be the blockade." 16 Would you agree with me that it's putting 17 it mildly to say that the issue of negotiation was a 18 matter for which the OPP was receiving mixed signals on? 19 A: I think there were mixed signals 20 given, yes. 21 Q: And the difficulty was, in and around 22 August and September 1995, while on the one hand the 23 Incident Commander was expected to negotiate a peaceful 24 resolution, on the other hand the directions you were 25 receiving from the voice of the Premier, Debra Hutton,
611 was that they didn't want to see any negotiation, 2 correct? 3 MR. PETER DOWNARD: That's -- 4 MR. JULIAN FALCONER: Well, I'm allowed 5 to make a suggestion to the Witness. The fact that Mr. 6 Downard is uncomfortable -- 7 COMMISSIONER SIDNEY LINDEN: Mr. Downard 8 is allowed to make an objection. 9 MR. JULIAN FALCONER: That's true. 10 COMMISSIONER SIDNEY LINDEN: Let's hear 11 what it is. 12 MR. PETER DOWNARD: I'm not 13 uncomfortable, I just don't think it's appropriate that 14 Counsel misstate the evidence in a blatant fashion. We 15 had documentary evidence last week of the Premier's 16 office representative Ms. Hutton stating at the 17 Interministerial Committee meeting of -- of the 6th that 18 negotiations and discussions between the OPP and the MNR 19 and the occupiers would be appropriate. This -- that was 20 this witness's evidence, he -- confirmed that it 21 happened, as I recall. 22 And -- and My Friend is simply misstating 23 the evidence. 24 COMMISSIONER SIDNEY LINDEN: No. I don't 25 want him to misstate the evidence. So let's get it
621 straight. 2 MR. JULIAN FALCONER: I -- I did not 3 misstate any evidence. I would like to repeat my 4 question because, to be fair, this is simply not a -- a 5 meritorious objection. My question was, difficulty faced 6 by the OPP -- 7 COMMISSIONER SIDNEY LINDEN: If the 8 question is based on factual incorrect information, then 9 it is a valid objection. So -- 10 MR. JULIAN FALCONER: But I didn't -- but 11 I didn't -- 12 COMMISSIONER SIDNEY LINDEN: You didn't. 13 So what -- you say you didn't, what's the question again? 14 MR. JULIAN FALCONER: That's what I'm 15 trying to say. 16 COMMISSIONER SIDNEY LINDEN: That's fine. 17 MR. JULIAN FALCONER: My question, I 18 first prefaced it, you were getting mixed signals, the 19 OPP was, and the witness indicated that mixed signals 20 were coming in on negotiation; he said that. 21 COMMISSIONER SIDNEY LINDEN: Yes. 22 MR. JULIAN FALCONER: And number 2, I 23 said the difficulty was, on the one hand, and it's a 24 suggestion to him, on the one hand, Project Maple and the 25 initiative by the OPP implied a peaceful resolution
631 achieved by negotiation. And on the other hand, he was 2 receiving instructions, I'm going to suggest to him, from 3 the voice of the Premier, Deb Hutton, that there was to 4 be no negotiation. 5 And with great respect -- 6 COMMISSIONER SIDNEY LINDEN: Okay. 7 MR. JULIAN FALCONER: -- given the 8 evidence I just read out -- given the evidence -- 9 COMMISSIONER SIDNEY LINDEN: Stop there, 10 that's the question. 11 MR. JULIAN FALCONER: That's right. 12 COMMISSIONER SIDNEY LINDEN: He can 13 answer it. 14 MR. JULIAN FALCONER: Okay. 15 COMMISSIONER SIDNEY LINDEN: It's a 16 legitimate question -- 17 MR. JULIAN FALCONER: Thank you. 18 THE WITNESS: My response to your 19 question, sir, is that, were there mixed signals 20 provided, yes, I believe there were. I believe, 21 certainly, I had an understanding of what was meant by 22 negotiation as is referenced in the charter of the 23 committee. 24 I don't know what evidence then 25 Inspector/now Deputy Commissioner Carson gave with
641 respect to his understanding or what he did. 2 3 CONTINUED BY MR. JULIAN FALCONER: 4 Q: Fair. You'd agree with me though 5 that the words you used on July 12th in answer to Ms. 6 Vella's questions, quote: 7 "There would be no negotiation." 8 Close quote. You said, quote: 9 "The representative of the Premier's 10 office, Deb Hutton, indicated again 11 that it was the position of -- of the 12 government that the occupiers were to 13 be removed. There would be no 14 negotiation. There was concern that 15 the police would enter into 16 negotiations with the occupiers. And I 17 recall explaining that that was two (2) 18 different things, and that's why I'd 19 mentioned the difference between 20 negotiation and front-end 21 communication." 22 COMMISSIONER SIDNEY LINDEN: Now just a 23 minute. 24 Mr. Downard, is there anything incorrect 25 or factually incorrect of that reading?
651 MR. PETER DOWNARD: Well, I'm not -- 2 COMMISSIONER SIDNEY LINDEN: That's -- 3 MR. PETER DOWNARD: There's -- there's no 4 doubt that the -- the position of the government was that 5 there was not to be negotiation of the substantive 6 claim -- 7 COMMISSIONER SIDNEY LINDEN: Of the land 8 claim. 9 MR. PETER DOWNARD: -- over -- over a 10 barricade, right. 11 COMMISSIONER SIDNEY LINDEN: That's fine. 12 MR. PETER DOWNARD: And there's no -- no 13 doubt about that. 14 COMMISSIONER SIDNEY LINDEN: That's the 15 point. 16 MR. PETER DOWNARD: But the suggestion 17 that -- 18 COMMISSIONER SIDNEY LINDEN: There would 19 be no negotiations. 20 MR. PETER DOWNARD: Yeah, no -- no 21 negotiation, i.e., of getting out of the Park, that's -- 22 that misstates the evidence. 23 COMMISSIONER SIDNEY LINDEN: I think 24 that's fair. I think it's always been understood that 25 there wasn't any suggestion that there be no negotiations
661 regarding the occupation as opposed to the land claim. 2 3 CONTINUED BY MR. JULIAN FALCONER: 4 Q: You drew a distinction in your 5 evidence between negotiation and front-end communication; 6 do you remember that? 7 A: I do. 8 Q: And you drew that distinction because 9 you were explaining to Mr. Commissioner, on July 12th, 10 what you had tried to explain to Deb Hutton in that 11 September 5th and September 6th, 1995 set of meetings? 12 A: That's correct. 13 Q: And you explained to Mr. Commissioner 14 that Deb Hutton, the representative of the Premier's 15 office, was concerned that the OPP not engage in 16 negotiation, correct? 17 A: That's correct. 18 Q: And you went on to explain how you 19 dealt with the government's concern that you not enter 20 into negotiation; you drew this distinction between 21 negotiation on the one hand which you weren't going to 22 do, and front end communication on the other hand, which 23 you were going to do, correct? 24 A: I believe that was my intent, yes. 25 Q: Do you see anything about front end
671 communication, those words, in Project Maple? 2 A: No, I do not. 3 Q: All right. Did you ever discuss with 4 Deputy Commissioner Carson, then Inspector Carson, the 5 concept of front end communication? 6 A: No, I did not. 7 Q: Would you agree with me that being 8 restricted in the fashion that the OPP was, the message 9 was loud and clear: The OPP, as far as the Premier was 10 concerned, was not to enter into negotiations with the 11 occupiers concerning either the legitimacy of their 12 claims or a process for working out their claims; you 13 were not to do that, correct? 14 A: I don't believe that was the mandate 15 of the OPP, yes. 16 Q: In fact, it was made clear to you, 17 you weren't to do that, correct? 18 A: Correct. 19 Q: And it's fair to say that the only 20 thing you were allowed to negotiate was that they leave, 21 correct? 22 A: I think that was the belief of some, 23 yes. 24 Q: But more importantly, and this is why 25 I'm taking you to the words of your answers, sir, because
681 I'm trying to be fair to the tone and gist of your 2 evidence on July 12th, more importantly the some that you 3 talk about, quote, unquotes around "some" is Deb Hutton, 4 the voice of the Premier; isn't that right? 5 A: Correct. 6 Q: So the most powerful -- powerful 7 political figure in the province made clear that they did 8 not want to see you either negotiating the legitimacy of 9 the concerns of the occupiers or even negotiating with 10 them as to a process to address their concerns, correct? 11 A: With respect to the mandate of the 12 Committee, I would agree with that, yes. 13 Q: You refer to, "there would be no 14 negotiations," and you were talking about the OPP on July 15 12th, correct? 16 A: I was. 17 Q: All right. And you're not telling me 18 that the OPP enjoyed a broader mandate than the 19 Interministerial Committee, are you? 20 A: With respect to public safety 21 matters, yes. 22 Q: But not with respect to negotiating 23 issues with the occupiers, correct? 24 A: No. As would be exampled in the 25 mandate of the Committee.
691 Q: Right. And what I'm trying to draw 2 out from you and get your views on, is that in -- in -- 3 if one looks back on this in any kind of remedial way, 4 the advantage to 20/20 hindsight, you'd agree with me 5 that it made it very difficult for the OPP to be working 6 the front end of this matter with the kinds of very 7 strict pronouncements on it from the voice of the Premier 8 that they were simply not to negotiate. 9 You'd agree with me that made it 10 difficult? 11 A: If it were to -- 12 COMMISSIONER SIDNEY LINDEN: That's fine. 13 Yes, Mr. Downard...? 14 MR. PETER DOWNARD: There's been no 15 evidence of any direction from the Premier or Ms. Hutton 16 or anyone in government to John Carson on the ground at 17 Ipperwash as to what he was to do regarding negotiations. 18 The only information John Carson got about 19 what was going on in -- in Toronto was through this 20 witness, so there was no direction, there was no 21 constraint placed upon incident commander Carson by 22 Premier Harris or any member of the government. 23 COMMISSIONER SIDNEY LINDEN: I think 24 that's correct. That's -- 25 MR. JULIAN FALCONER: Yes. I never
701 suggested otherwise. 2 COMMISSIONER SIDNEY LINDEN: No. But I 3 mean that's an important point to make. 4 MR. JULIAN FALCONER: That's a very 5 important point. 6 COMMISSIONER SIDNEY LINDEN: Yes. 7 8 CONTINUED BY MR. JULIAN FALCONER: 9 Q: Sir, do you remember the definition 10 of the word "liaison" we went over last day? 11 A: I do. 12 Q: If my memory were as good as it 13 should be, I'd give you an exhibit number et cetera. The 14 idea of a liaison is to, among other things, be a flow 15 through of information between two (2) bodies, right? 16 A: Yes, sir. 17 Q: Deb Hutton saw you as a liaison for 18 the OPP; right? 19 COMMISSIONER SIDNEY LINDEN: I don't see 20 how he can answer -- 21 MR. DERRY MILLAR: I think -- 22 MR. JULIAN FALCONER: From -- I can 23 rephrase, no problem, I can rephrase. 24 25 CONTINUED BY MR. JULIAN FALCONER:
711 Q: When Deb Hutton expressed a concern 2 about the OPP simply getting the occupiers out and not 3 negotiating, she expressed the concern to you, correct? 4 A: The concern was expressed to the 5 broader Committee. 6 Q: And who addressed it? 7 A: I did. 8 Q: And who was seen at the Committee, as 9 far as you, your perceptions of the people around you, 10 who was seen as representing the OPP at the Committee? 11 A: I would say it would be me. 12 Q: And so when the voice of the Premier 13 said to you, There's not to be negotiation and I want 14 them out, you understood as a liaison officer, part of 15 your job was to take that information and move it to the 16 OPP, correct? 17 A: Correct. 18 Q: In terms of your role, it's fair to 19 say that anyone who criticizes you for moving that 20 information isn't criticizing you, they're criticizing 21 the job of liaison; isn't that right? 22 A: It could be taken that way, yes. 23 Q: That's where I'm going next, so 24 perhaps this is an appropriate time for a break, Mr. 25 Commissioner?
721 COMMISSIONER SIDNEY LINDEN: Thank you. 2 Now would be a good time. 3 THE REGISTRAR: This Inquiry will recess 4 for fifteen (15) minutes. 5 6 --- Upon recessing at 11:39 a.m. 7 --- Upon resuming at 12:03 p.m. 8 9 THE REGISTRAR: This Inquiry is now 10 resumed, please be seated. 11 12 CONTINUED BY MR. JULIAN FALCONER: 13 Q: Firstly, Superintendent Fox, if I 14 could ask you to turn to Tab 2 of the blue binder, which 15 is the additional documents binder? It should say, "ALST 16 Supplementary Book of Documents." 17 This is the Hansard extract, which is now 18 an Exhibit P-530 and is document number 60000 -- I think 19 it's 25, Mr. Commissioner, but mine's cut off. 20 A: Mr. Falconer? 21 Q: Yes? 22 A: Tab 2 in the blue binder has nothing 23 in it in mine. 24 Q: That would be probably because it 25 ended up as an exhibit. So if that Exhibit P-530 could
731 be placed in front of the Witness, please? 2 3 (BRIEF PAUSE) 4 5 Q: In part, this is a bit of 6 housekeeping, Mr. Commissioner. On the record I had 7 referred to the September 12th statement that's now been 8 made an exhibit, having been referred to in the May 29th, 9 1996 statements of the then-premier Harris at page -- the 10 second page of the Hansard you have in front of you, page 11 3148, second column? 12 In the last three (3) paragraphs of the 13 second column: 14 "Honourable Mr. Harris, let me say a 15 few things?" 16 The next paragraph: 17 "We knew nothing of any OPP buildup. 18 It was not our business, it is the 19 business of the OPP to deal with it. 20 Any briefing that I got would have been 21 in there. You saw there's a statement 22 of September 12th that we made on the 23 issue, so it is an OPP matter, it's not 24 a political matter." 25 I -- I simply wanted to reference that for
741 you, Mr. Commissioner, because of my questions I had made 2 reference. 3 Now, at page 3 of the Hansard, so the 4 third page of the Hansard, which is page 3149. 5 6 (BRIEF PAUSE) 7 8 Q: Actually, I apologize, Superintendent 9 Fox, if you back up a page, I first want to take you to 10 the bottom paragraph of page 3148, if you back up a page, 11 second column? Quote -- and this is Premier Harris. 12 Quote: 13 "Quite frankly, you get through your 14 interventions now to the very heart of 15 parliamentary democracy, the separation 16 of police and politicians. I want to 17 tell you that is something that we 18 treat very seriously and something we 19 think is very, very important." 20 And then, to the same effect on the 21 following page, which is where I was going to take you, 22 second column fourth paragraph, again then Premier 23 Harris, quote: 24 "I clearly understand the role of the 25 separation between politicians and the
751 police, and at no time did I give 2 direction to staff to give direction or 3 did any of my staff give direction, to 4 the best of my knowledge, to any member 5 of the police, the OPP, at any level of 6 any category as to how they should 7 carry out their job. That is not our 8 role and I can assure you that that did 9 not take place." 10 When Deb Hutton, the voice of the Premier, 11 was speaking to the committee members, it's your evidence 12 that it was apparent you were answering on behalf of the 13 OPP, correct? 14 A: Yes. 15 Q: And she didn't in any way back up and 16 say, Well wait a minute, if you're from the OPP I 17 shouldn't be directing these comments in -- in your 18 presence; that never happened? 19 A: No, sir. 20 Q: In fact, you would discuss police 21 issues or police perspectives and you would hear from Deb 22 Hutton reactions or responses to that, correct? 23 A: Correct. 24 Q: I'm going to suggest to you that the 25 entire point -- the entire point of your presence on the
761 Interministerial Committee was so that the OPP had a 2 presence on that committee, correct? 3 A: In this particular circumstance, the 4 OPP, I think and others, policing generally. 5 Q: All right. I think that was correct; 6 was it correct? 7 A: Yes. 8 Q: Thank you. And if one has regard to 9 the guidelines for the make-up of the IMC, and -- and 10 you'll forgive my awkwardness, I'm simply going to track 11 this down quickly. 12 13 (BRIEF PAUSE) 14 15 Q: There is a briefing note to Attorney 16 General Harnick, or what appears to be a briefing note to 17 Attorney General Harnick, on the make-up and point of the 18 committee. I'm going to direct your attention to it to 19 confirm for me the intention of this document. 20 It's the document that contains the 21 guidelines for the committee. 22 MR. DERRY MILLAR: That's Tab 12 of the - 23 - the Commission's documents. 24 MR. JULIAN FALCONER: I'm sorry. It's 25 also in my green binder, and there's a -- a different
771 draft there, that's why I was looking for it. But if you 2 could turn to Tab 12 of the Commission's documents first, 3 if we can work from that for now. 4 MR. DERRY MILLAR: And I believe it's the 5 guidelines. 6 MR. JULIAN FALCONER: Yes. 7 MR. DERRY MILLAR: And it's the appendix, 8 it's Exhibit P-498. 9 MR. JULIAN FALCONER: And I'm grateful, 10 Mr. Millar. 11 12 (BRIEF PAUSE) 13 14 MR. DERRY MILLAR: And it's Document 15 1012232. 16 MR. JULIAN FALCONER: If I sit here long 17 enough Mr. Millar will actually frame my question for me. 18 He's that helpful. 19 COMMISSIONER SIDNEY LINDEN: Is the 20 appendix in the same -- under Tab 12 of the 21 Commissioner's brief? 22 MR. JULIAN FALCONER: Yes. 23 COMMISSIONER SIDNEY LINDEN: Or is the 24 appendix in a different place? 25 MR. DERRY MILLAR: No. It's Tab 12. And
781 you have to just flip through and you'll get to Appendix 2 -- just -- it's about five (5) pages or six (6) pages in, 3 it's got at the top "Appendix." 4 MR. JULIAN FALCONER: And it's Exhibit P- 5 498. If that could be put in front of the witness, P- 6 498, please. 7 MR. DERRY MILLAR: I think he has it 8 actually. 9 10 CONTINUED BY MR. JULIAN FALCONER: 11 Q: All right. 12 A: I have it in the binder, sir. 13 Q: All right. Do you have the appendix 14 in front of you? 15 A: I do. 16 Q: The statement is: "The Committee 17 will be composed of the following Ministries," at number 18 7; do you see that? 19 COMMISSIONER SIDNEY LINDEN: Yes, I see 20 it. 21 THE WITNESS: I do. 22 23 CONTINUED BY MR. JULIAN FALCONER: 24 Q: And under, "Ministry of the Solicitor 25 General," it says, bracket:
791 "Including Ontario Provincial Police." 2 Do you see that? 3 A: I do. 4 Q: And that was you? 5 A: It was. 6 Q: All right. So there was no issue 7 that the whole point was to have a police officer on the 8 committee, correct? 9 A: Correct. 10 Q: And that's what you did, you advanced 11 the police perspective and received views from others 12 about what the police should and shouldn't do, correct? 13 A: I advanced the views of -- of what 14 was occurring in this particular situation. I advanced, 15 certainly, my views in response to some suggestions, yes. 16 Q: But, in essence, and -- and I don't 17 want to oversimplify it, so I have great respect for the 18 complexity of the problem but, in essence, you did 19 advance the police perspective at the meetings? 20 A: That's correct. 21 Q: And you received views at the 22 meetings of what the police should and shouldn't do? 23 A: Yes. I received opinions and views, 24 yes. 25 Q: All right. It's the last part that I
801 want to make sure you and I agree on. Among other 2 things, what the police should and shouldn't do. 3 A: Correct. 4 Q: All right. Now you'd agree with me 5 that in the circumstances of Ms. Hutton's role on 6 September 5th and 6th, 1995, there was, beyond a shadow 7 of a doubt, that she wanted you to know that she spoke 8 directly for the Premier, correct? 9 MR. DERRY MILLAR: Well he can't -- he 10 can't say -- 11 MR. JULIAN FALCONER: I'm sorry, I will 12 rephrase that -- 13 MR. DERRY MILLAR: He can't -- 14 MR. JULIAN FALCONER: I'll simply 15 rephrase -- 16 MR. DERRY MILLAR: -- say that Ms. 17 Hutton -- 18 MR. JULIAN FALCONER: No, no. I have no 19 problem -- 20 COMMISSIONER SIDNEY LINDEN: Yes, okay -- 21 MR. JULIAN FALCONER: I understand, My 22 Friend is right. 23 COMMISSIONER SIDNEY LINDEN: Yes. 24 25 CONTINUED BY MR. JULIAN FALCONER:
811 Q: There is no doubt, based on the 2 evidence you've given us so far, that it was your 3 perception that Ms. Hutton wanted you to know that she 4 spoke for the Premier, correct? 5 MR. DERRY MILLAR: Same thing. 6 MR. JULIAN FALCONER: It is not the same 7 thing. 8 MR. DERRY MILLAR: It is. 9 MR. JULIAN FALCONER: It is not the same 10 thing, no it's not. 11 MR. DERRY MILLAR: The question, "Ms. 12 Hutton wanted you to know," cannot be answered by this 13 witness. 14 COMMISSIONER SIDNEY LINDEN: He can't say 15 what's in her -- 16 MR. DERRY MILLAR: He cannot say -- 17 COMMISSIONER SIDNEY LINDEN: ű- what's in 18 her head. 19 MR. DERRY MILLAR: -- what Ms. Hutton -- 20 MR. JULIAN FALCONER: I cannot, but what 21 I can say is what his perception was. 22 COMMISSIONER SIDNEY LINDEN: Well just 23 ask him what his perception was. 24 MR. JULIAN FALCONER: Well, I am and I 25 keep --
821 COMMISSIONER SIDNEY LINDEN: Well, you're 2 not, you're going beyond it. 3 MR. JULIAN FALCONER: No, no, I'm 4 entitled -- 5 COMMISSIONER SIDNEY LINDEN: Well -- 6 MR. JULIAN FALCONER: Unless you say I'm 7 not entitled, Mr. Commissioner. 8 COMMISSIONER SIDNEY LINDEN: Ask him the 9 question again. 10 MR. JULIAN FALCONER: All right. 11 COMMISSIONER SIDNEY LINDEN: If you're 12 not trying to find out what's in her head -- 13 MR. JULIAN FALCONER: That's right. 14 COMMISSIONER SIDNEY LINDEN: -- your 15 entitled, so let's see how you ask him. 16 MR. JULIAN FALCONER: Okay. And so I 17 asked the witness what is your perception of (a), and I'm 18 suggesting a perception and that's where I'm at. 19 20 CONTINUED BY MR. JULIAN FALCONER: 21 Q: Again, I put it to you, sir, that it 22 was your perception of the meetings of September 5th and 23 6th, 1995, your perception, that Ms. Hutton, among other 24 things, wanted to you know that she spoke for the 25 Premier; that was your perception?
831 COMMISSIONER SIDNEY LINDEN: You see, I - 2 - it was your -- well, I think that's -- 3 MR. DERRY MILLAR: He can say -- 4 COMMISSIONER SIDNEY LINDEN: That's right 5 on the -- 6 MR. DERRY MILLAR: What Ms. -- the 7 question is being asked, this -- Superintendent Fox is 8 being asked what Deb Hutton wanted him to know. 9 Well, Deb Hutton is the one who can answer 10 that question. He can answer what she said, what he 11 understood from what -- 12 COMMISSIONER SIDNEY LINDEN: What his 13 perception was. 14 MR. DERRY MILLAR: -- she said. 15 COMMISSIONER SIDNEY LINDEN: But not what 16 she wanted his perception to be -- 17 MR. DERRY MILLAR: Yeah, he can't answer 18 what her -- 19 COMMISSIONER SIDNEY LINDEN: -- that was 20 the question. 21 MR. DERRY MILLAR: -- what she wanted as 22 his perception to be. 23 COMMISSIONER SIDNEY LINDEN: Yes, I think 24 that's the distinction here. 25 MR. JULIAN FALCONER: It's the beauty of
841 the law, Mr. Commissioner. Only lawyers and judges could 2 understand what we're doing right now. 3 But I'm going to back up a step, and I'm 4 going to try to get it so that we can move forward. 5 6 CONTINUED BY MR. JULIAN FALCONER: 7 Q: The words used by Deb Hutton conveyed 8 to you an impression that she was the voice of the 9 Premier, as far as you were concerned, correct? 10 A: I have testified to that, yes. 11 Q: All right. And she was not keeping 12 that a secret from what you could tell, correct? 13 A: Correct. 14 Q: She actually used the word "Premier" 15 on a number of different occasions to voice certain 16 views, correct? 17 A: Correct. 18 Q: And as a result of her usage of the 19 word "Premier," in a rather adamant fashion, you 20 determined she, from your perspective, wanted to make 21 clear to you that she spoke for the Premier, correct? 22 23 (BRIEF PAUSE) 24 25 Q: That's fine, I'll move on.
851 COMMISSIONER SIDNEY LINDEN: No itĂs -- 2 MR. JULIAN FALCONER: That's fine, it's 3 done. It's done -- 4 COMMISSIONER SIDNEY LINDEN: ű- it's the 5 same question -- 6 MR. JULIAN FALCONER: It doesn't -- 7 COMMISSIONER SIDNEY LINDEN: -- dressed 8 up a little differently. 9 MR. JULIAN FALCONER: They describe, 10 sometimes, cross-examination as making furniture and 11 every now and then I've been accused of destroying that 12 furniture and I'll move on. 13 14 CONTINUED BY MR. JULIAN FALCONER: 15 Q: The bottom line, from where you and I 16 -- our discussions is, is that on the one hand I've 17 showed you passages by the Premier -- then Premier of the 18 province that it goes to the heart of democracy, that 19 there be a separation between politicians on the one hand 20 and the police on the other. 21 Did you see those comments by Mr. Harris 22 of May 29th, 1996? 23 A: I did. 24 Q: Right. On the other hand, his voice, 25 Deb Hutton, is making very clear to you what he wants,
861 correct? 2 A: I think what was made very clear to 3 me and to the Committee at large, is the expectations and 4 that was to remove the occupiers from the Park. 5 Q: And when you say "expectations" you 6 mean the expectations of then Premier Michael Harris? 7 A: I believe that I've testified to 8 that, yes. 9 Q: All right. I want to review with you 10 how it is that you came to do the different functions, 11 just by a -- a glossing of the -- a function I've picked 12 up from the different documents. 13 You can confirm or -- or explain that I'm 14 wrong in the different functions you were carrying out in 15 this particular brief relating to Ipperwash; all right? 16 A: All right. 17 Q: First of all, it's fair to say that - 18 - and you made a very good point, this is incident 19 specific, so I'm specific to Ipperwash; all right? 20 A: Yes, sir. 21 Q: All right. It's fair to say that you 22 reported to -- and you used term "political masters" in - 23 - in taped conversations, correct? 24 A: I believe that I did, yes. 25 Q: Yes. You reported to political
871 matters -- I'm sorry -- I -- I rephrase. You reported 2 to political masters on the steps the police were taking 3 on Ipperwash, yes? 4 A: Correct. 5 Q: Secondly, you reported to police 6 management of the OPP on the political steps your 7 political masters were taking, correct? 8 A: I reported to some degree on that, 9 but primarily on what the bureaucratic arm of -- of the 10 Government was doing, vis-a-vis the work of the 11 Interministerial Committee. 12 Q: But, it's fair to say that when we go 13 to those -- those tapes, the incendiary potentially 14 explosive tapes -- when we go to those tapes, we hear you 15 reporting among other things on the political steps of 16 your political masters? 17 A: I would agree. 18 Q: All right. And then, you also worked 19 between the various relevant parties when MLA Beaubien 20 raised his concerns July 29th, 1995, right? 21 Well, let me refresh your memory. July 22 29th, 1995, Marcel Beaubien writes a letter to you -- I'm 23 sorry -- writes a letter to either -- to Charles Harnick, 24 Attorney General, and it comes to your attention, 25 correct?
881 A: That's correct. 2 Q: And, you've testified on the previous 3 day that you assisted with bringing the various parties 4 together, right? 5 A: Yes. 6 Q: All right. So, that was another role 7 you played, yes? 8 A: Correct. 9 Q: You were, of course, the 10 representative on the Interministerial Committee that 11 became, quote, "a support group.", close quotes. 12 A: Correct. 13 Q: You, actually -- in addition to the 14 July 29th incident -- you actually liaised with citizens 15 expressing concerns to political masters over the conduct 16 of the police, correct? 17 A: I did. 18 Q: All right. 19 A: I -- I wouldn't say, sir, it was 20 entirely with respect to the conduct of the police, I 21 think it would be broadly with respect to the situation 22 at hand. 23 Q: Well, could I direct your attention 24 to the green binder and -- and I'm not really challenging 25 you on this. I'm not saying that what you're saying
891 isn't accurate, I just want some -- some -- some, if you 2 don't mind, meat on the bones -- the green binder, the 3 ALST Book of Documents Tab 13, it's a scribe note of 4 September 11th, 1995? 5 It's the fourth paragraph, the entry for 6 13:10? Do you see that? 7 A: I do. 8 Q: Superintendent Pelau receives a call 9 from Inspector Ron Fox, the Minister's Office, advising 10 the Minister had a meeting with concerned citizens of the 11 area. There are some concerns about communications and 12 that the citizens would really like their OPP to enter 13 into dialogues with them. This has been passed on to 14 Chief Coles by Inspector Fox. 15 So, you're passing on concerns of citizens 16 expressed to political masters about the conduct of the 17 OPP? 18 A: Passing on concerns, whether you 19 could call it specifically conduct, by way of example, 20 sir, one (1) of the concerns was duality of patrols 21 between the Anishnaabeg Police Service and the OPP. 22 Q: Right. And then, Tab 29 to the same 23 effect, if you could stay in the same binder for a moment 24 and go to Tab 29? 25 Now, the scribe notes have already been
901 made an exhibit, they're Document number 1000140 and so 2 I'm not going to make that an exhibit. 3 MR. DERRY MILLAR: Well, just a second. 4 The -- the scribe notes that are -- are 1002419 and what 5 was made an -- is part of 426, Exhibit 426, goes up to 6 page 158. 7 MR. JULIAN FALCONER: Oh, all right. I 8 appreciate Mr. Millar's clarification, I'm very grateful. 9 So, if we could make the Tab 13 an 10 exhibit, please? 11 And, may I respectfully suggest that I 12 request the Witness to simply sidebar the 13:10 entry and 13 write, "September 11th, 1995," at the top of that page so 14 that there is a clear indication that it's -- why it's 15 there and that it's -- it's obviously the scribe note? 16 THE REGISTRAR: Tab... 17 MR. JULIAN FALCONER: Tab 13 of the green 18 binder. 19 THE REGISTRAR: Is there a document 20 number for that, sir? 21 MR. JULIAN FALCONER: Document number 22 1000140. And, if you could sidebar, please, 23 Superintendent Fox, the fourth paragraph with 13:10 24 beside it that we've just discussed? 25 THE WITNESS: Yes.
911 MR. JULIAN FALCONER: And, could you put 2 at the top of it, please, September 11th, 1995? 3 MR. DERRY MILLAR: Commissioner, if I 4 might, and we can provide this at the break, given that 5 we viewed 1002419 up to now, the relevant page from 6 1002419 should be marked as this exhibit. It should be - 7 - it's the same entry for 13:10 -- 8 COMMISSIONER SIDNEY LINDEN: So, it's the 9 same exhibit number with -- 10 MR. DERRY MILLAR: Well, no. It will 11 have a different exhibit number but I would like to keep 12 the same scribe note -- the same set of scribe notes as 13 the scribe notes that we're using. There are many 14 different -- 15 COMMISSIONER SIDNEY LINDEN: Okay. 16 That's fine. So, what does this -- 17 MR. DERRY MILLAR: -- document numbers. 18 COMMISSIONER SIDNEY LINDEN: -- what does 19 this page become? 20 MR. JULIAN FALCONER: Well, whatever Mr. 21 Millar says. I know that he's keeping it organized. 22 COMMISSIONER SIDNEY LINDEN: What does 23 this page become, this page, this -- 24 MR. DERRY MILLAR: It will become -- 25 COMMISSIONER SIDNEY LINDEN: -- page?
921 MR. DERRY MILLAR: -- Exhibit -- whatever 2 the exhibit is. 3 THE REGISTRAR: P-539, Your Honour. 4 5 --- EXHIBIT NO. P-539: Document No. 1002419 6 September 11/95 Scribe Notes. 7 8 MR. DERRY MILLAR: But I'll provide one 9 from 1002419. 10 COMMISSIONER SIDNEY LINDEN: Thank you. 11 MR. JULIAN FALCONER: Which I don't think 12 affects the pagination 259, so I think we're going to 13 be -- 14 MR. DERRY MILLAR: Yeah, I think it'll -- 15 MR. JULIAN FALCONER: All right. And -- 16 and, therefore, if that page is being provided, might I 17 ask administratively that the sidebar and the reference 18 to September 11th, '95 that the Witness has just placed 19 on the document be transposed to the new exhibit copy, 20 please. 21 22 CONTINUED BY MR. JULIAN FALCONER: 23 Q: Now, if you could turn to Tab 29, and 24 it's the same point about the citizen involvement in 25 policing issues. If -- if you look at the e-mail from --
931 and how do you pronounce this Counsel's name, please? 2 A: Hipfner. 3 Q: Hipfer. Ms. Eileen Hipfner is 4 Counsel with the Ministry of the Attorney General at the 5 time; is that right? 6 A: Correct. 7 Q: She's reporting in an e-mail of April 8 29th, 1996, on, among other things, a citizens' meeting 9 that included local MPP Marcel Beaubien on the Ipperwash 10 issue, correct? 11 A: Correct. 12 Q: Now, the three (3) paragraphs -- the 13 three (3) paragraphs underneath that all, in essence, 14 relate to yourself and your assistant; is that right? 15 A: Correct. 16 Q: And who is the person Karakatsanis -- 17 and I apolize -- 18 COMMISSIONER SIDNEY LINDEN: Andromache 19 Karakatsanis; is that the name you're reading? 20 21 CONTINUED BY MR. JULIAN FALCONER: 22 Q: I'm referring to the 2; who's the 2? 23 A: The -- the 2 line Andromache was the 24 secretary of ONAS -- 25
941 CONTINUED BY MR. JULIAN FALCONER: 2 Q: Thank you. 3 A: -- at the time. 4 COMMISSIONER SIDNEY LINDEN: Not Mr. 5 Justice Karakatsanis. 6 MR. JULIAN FALCONER: Yes. 7 COMMISSIONER SIDNEY LINDEN: Madam 8 Justice. 9 MR. JULIAN FALCONER: I just -- 10 COMMISSIONER SIDNEY LINDEN: Madam 11 Justice. 12 MR. JULIAN FALCONER: -- I just can't 13 possibly get it right each time. I -- so I'm now -- I 14 don't even venture into it, Your Honour. 15 16 CONTINUED BY MR. JULIAN FALCONER: 17 Q: All right. And as she then was, 18 correct? 19 A: She was at that time, yes. 20 Q: Yes. And the -- in reporting, she 21 reports on a citizens' meeting where she quotes your 22 assistant, Scott Patrick, on the -- the meeting on 23 Sunday, the previous Sunday, in late April 1996, yes? 24 A: Correct. 25 Q: And then the fourth paragraph, after
951 your assistant has reported: 2 "OPP Superintendent Ron Fox attended 3 the meeting and feels that the 4 Government has a short window of 5 opportunity to get things underway. He 6 feels that we pretty much have to make 7 our announcement this week, as another 8 On Fire meeting has been scheduled for 9 Sunday, May 5th, that's next weekend, 10 and there is an expectation that 11 Ontario will have moved by then. He 12 also feels that any process we put in 13 place will have to include a formal 14 consultation process." 15 So, you were moving between the citizens' 16 concerns, government and the police, correct? 17 A: And I think it's important to 18 understand the vehicle chosen there. At that time, I was 19 an operational police officer, having been re-assigned to 20 Western Region. I provided that information on request 21 of Scott Patrick, who was now filling the role that I had 22 held as Special Advisor. 23 Q: I understand. And I was going to ask 24 you about the timing but suffice to say, whether or not 25 by that point Scott Patrick had taken over for you, Scott
961 Patrick was still doing it, right? 2 A: Correct. 3 Q: And there was a concern, presumably, 4 about continuity, so you attended, correct? 5 A: Attended? 6 Q: The meeting. It says: "OPP 7 Superintendent Ron Fox attended the meeting." 8 A: I did, clearly, sir, not as the 9 Special Advisor based on that time period. I would have 10 attended then as -- as a member of Western Region. 11 Q: You mean an OPP officer? 12 A: That's correct. I don't know that it 13 -- it changes particularly, I just want the Commissioner 14 to be aware of that. 15 COMMISSIONER SIDNEY LINDEN: No, I 16 understand that. 17 18 CONTINUED BY MR. JULIAN FALCONER: 19 Q: Fair enough. And I -- and I take 20 your point and I appreciate the clarification. You'd 21 agree with me that if you retained the title Special 22 Advisor to the Solicitor General on Aboriginal Issues, 23 paragraph 4 of that e-mail would probably be in the 24 identical words? 25 A: I would agree, sir.
971 Q: All right. And so suffice to say 2 this e-mail aptly describes one of the functions you and 3 Mr. Patrick were performing in the role of Special 4 Advisor to the Solicitor General? 5 A: It speaks directly to advice, yes, 6 sir. 7 Q: Well, I'm sorry for being so picky, 8 it speaks to the functions you and Scott Patrick were 9 performing in your roles as Special Advisor to the 10 Solicitor General, yes? 11 MR. DERRY MILLAR: Well, he said at this 12 point in time that he was not the -- a special advisor. 13 He was an operational police officer. 14 COMMISSIONER SIDNEY LINDEN: He's made 15 the distinction. 16 MR. JULIAN FALCONER: I'll rephrase. 17 COMMISSIONER SIDNEY LINDEN: And you're 18 joining them together. 19 MR. JULIAN FALCONER: I'll rephrase. 20 COMMISSIONER SIDNEY LINDEN: He's made 21 the distinction between the roles that -- 22 MR. JULIAN FALCONER: I'll be happy to 23 rephrase -- 24 COMMISSIONER SIDNEY LINDEN: -- either of 25 them are playing.
981 2 CONTINUED BY MR. JULIAN FALCONER: 3 Q: You recall testifying that if you had 4 been special advisor to the Solicitor General on April 5 29th, 1996, paragraph 4 would have been in the identical 6 words? 7 You remember saying that? 8 A: I do. 9 Q: All right, so it's fair to say that 10 this e-mail, located at tab 29 aptly describes the 11 functions at -- in that time period of the special 12 advisor to the Solicitor General in terms of the 13 activities being carried out. 14 It's not exclusive. I'm just saying it's 15 one of the functions that that job entailed? 16 A: And I answered yes, sir, and that the 17 function was the provision of advice. 18 Q: Right, thank you. If that could be 19 made the next exhibit? It's an e-mail dated April 29th, 20 1996, located at Tab 29 of the green binder. 21 THE REGISTRAR: P-540, your Honour. 22 23 --- EXHIBIT NO. P-540: Document No. 1003819 E-Mail 24 from Eileen Hipfner to 25 A.Karakatsanis April 29/96.
991 2 MR. DERRY MILLAR: And that's Inquiry 3 Document number 1003819. 4 MR. JULIAN FALCONER: Thank you. 5 6 CONTINUED BY MR. JULIAN FALCONER: 7 Q: So, I take it you and I are agreed 8 that one of the things -- you were talking about the 9 different roles you had, one of the things, whether we 10 look at the Beaubien scenario or the -- what we've just 11 seen now, in the April 1996 meeting, one of your jobs was 12 to liaise between citizens, politicians and the police, 13 correct? 14 A: Correct. 15 Q: Then if I could ask you to turn to 16 Tab 15 of the green binder for a moment. 17 18 (BRIEF PAUSE) 19 20 Q: Now, the third entry in incident 21 numbers, this appears to be a DND document. It's 22 Document number 20000, so as if I'm saying twenty 23 thousand (20,000), 2000040 and could you assist me? 24 It's a document entitled, Event/Incident 25 Summary. It says at the top left corner "printed
1001 September 19th, 1995". but it's the third entry that I'm 2 interested in. 3 Under incident number 60009, start time 4 13:07, re: military assistance/federal Solicitor General 5 legal services. Reported by Ron Fox. 6 And it's got notes: 7 "Re: military vehicles, Federal 8 Solicitor General legal services 9 without weapons, recovery and 10 protection, we will provide our own 11 crew." 12 Do you see that? 13 A: I do. 14 Q: And is it fair to say that you were 15 having communications with Federal officials about the 16 issue of securing military vehicles or military vehicle 17 assistance? 18 A: No, it is not. 19 Q: All right. Could you explain this -- 20 this memo and how -- what your involvement was in it? 21 A: I was generally aware there was 22 discussions between the Ministry of the Solicitor General 23 and the Federal Solicitor General with respect to the 24 acquisition of military support vehicles. 25 That was not an area that I was tasked
1011 with doing. I recall that to have been one assigned to 2 the policing advisor, which was a different role than 3 mine as First Nations advisor. 4 I ended up the recipient of the 5 information, only because that individual was away or 6 otherwise engaged and I passed it on to the incident 7 support centre. 8 Q: All right. And backing up a step, 9 because that person wasn't there, you filled in and 10 passed on the information? 11 A: My belief is I was in the office and 12 the phone call was directed to me 13 Q: All right. And it involved the issue 14 of weapons assistance or weapons procurement, whether 15 we're talking military vehicles or actual weapons, it 16 involved the issue of support vehicles and weapons as 17 they related to the operations at the Ipperwash 18 occupation? 19 A: No. It's -- it -- I think you will 20 find this entry reflects directly support vehicles and I 21 think the first bullet is the support vehicles would be 22 provided without weapons if they were provided. 23 The second speaks to what the use would 24 be, which is recovery and protection. The third bullet 25 indicates that they would have to be crewed and I'm going
1021 to -- I'm assuming the "we" here would mean by OPP 2 members. 3 Q: And, these would be the same vehicles 4 that then-Inspector Carson was seeking to obtain through 5 private channels as well? 6 A: I would assume that to be correct, 7 yes. 8 Q: And -- and, those vehicles are called 9 -- and I'm sorry, the name slips my mind... 10 MR. DERRY MILLAR: I think they were 11 bisons they were looking for. 12 13 CONTINUED BY MR. JULIAN FALCONER: 14 Q: That's right, bisons; does that sound 15 familiar? 16 A: It's possible. 17 Q: And, these vehicles are sometimes 18 even referred to as, "tanks"; is that right? 19 A: If -- if it's a bison, as my 20 understanding of it is, an armoured personnel carrier. 21 Q: Thank you. That's the words that the 22 dumb lawyer couldn't remember, armoured personnel 23 carrier? Is that...? 24 A: Correct. 25 Q: Thank you. So, that's what we're
1031 talking about here at -- at Tab -- 2 COMMISSIONER SIDNEY LINDEN: I'm sorry, 3 go ahead. 4 5 CONTINUED BY MR. JULIAN FALCONER: 6 Q: That's what we're talking about here 7 at Tab 15, armoured personnel carriers? 8 A: I would presume that it is, yes. 9 Q: To the best of your recollection? 10 A: Correct. 11 Q: All right. 12 COMMISSIONER SIDNEY LINDEN: And, the 13 date of the document is September the 8th. I just want 14 to get that straight because I can't -- 15 MR. JULIAN FALCONER: Thank you. 16 COMMISSIONER SIDNEY LINDEN: Is it 17 September the 8th? The date... 18 MR. JULIAN FALCONER: At the top it says, 19 September 19th, but then if you go down... 20 COMMISSIONER SIDNEY LINDEN: I'm not sure 21 what the date of -- 22 MR. DERRY MILLAR: It says it's -- 23 COMMISSIONER SIDNEY LINDEN: -- that 24 entry is. 25 MR. DERRY MILLAR: I believe the document
1041 -- the entry is at September 8th. This is a document 2 that is a report of sixty-four (64) pages and this is 3 page 19 and I believe the entry on this page is on 4 September the 8th, 1995. This is an OPP document. 5 COMMISSIONER SIDNEY LINDEN: Mr. Falconer 6 mentioned that it was an OPP document. 7 MR. JULIAN FALCONER: No, very fair. 8 Thank you, Mr. Commissioner. 9 COMMISSIONER SIDNEY LINDEN: That's fine. 10 MR. JULIAN FALCONER: I appreciate the 11 clarification. 12 COMMISSIONER SIDNEY LINDEN: Okay. 13 MR. JULIAN FALCONER: Apparently they 14 didn't teach us in law school to differentiate between 15 the various vehicles. 16 17 CONTINUED BY MR. JULIAN FALCONER: 18 Q: So, Superintendent Fox, you were 19 standing in for somebody else in your same office when it 20 came to negotiating or discussing issues around armoured 21 personnel vehicles, right? 22 A: Correct. 23 Q: And then, you also fulfilled a 24 function of retaining counsel for the OPP when the United 25 Nations complaints came up, is that also true?
1051 A: I'm -- I'm a little unclear as to 2 whether that's -- I can tell you what I did when the 3 complaint in if I retained counsel and that would be how 4 the activity is best described. 5 Q: All right. 6 A: The answer would be, "yes." 7 Q: Well, I might be able to assist you. 8 If you turn to Tab 17 and -- and by the way, I should 9 have made 16 an exhibit. 10 Was it made an exhibit? No, not -- I'm 11 sorry. I should have made the last September 8th, 1995, 12 reference an exhibit, which -- 13 THE REGISTRAR: It is Tab 15. 14 MR. JULIAN FALCONER: -- is Tab 15. 15 THE REGISTRAR: P-541, Your Honour. 16 MR. JULIAN FALCONER: Thank you. 17 COMMISSIONER SIDNEY LINDEN: P-541. 18 19 --- EXHIBIT NO. P-541: Document No. 2000040 20 September 08/96 21 Event/Incident summary, 22 Ipperwash Provincial Park 23 Occupation. 24 25 CONTINUED BY MR. JULIAN FALCONER:
1061 Q: So, if you could now turn to Tab 17, 2 it's a support group meeting of October 26th, 1995? 3 A: I have it, yes. 4 Q: And, it was stated -- if you want to 5 review this document, you'll see that the October 26th, 6 1995, minute, which is Document number 1001046 -- you'll 7 see that this October 26th, 1995, meeting of the support 8 group starts with reference to the United Nations 9 correspondence, do you see that? 10 A: I do. 11 Q: And, you were in attendance at that 12 meeting? 13 A: I was. 14 Q: And, in essence, the United Nations 15 correspondence is basically a query of a complaint of an 16 extra-judicial execution, correct? 17 A: Correct. 18 Q: All right. And so, the government of 19 the day in the form of the Attorney General's office and 20 Solicitor General's office received the extra-judicial 21 execution complaint and this meeting, in part, addresses 22 how to deal with it, correct? 23 A: Correct. 24 Q: And, at page 2 -- I'm sorry, page 3, 25 if you could look at page 3 paragraph 5 under the title,
1071 "Other?" 2 "At the support group's last meeting it 3 was suggested that the OPP may wish to 4 consider retaining counsel to provide 5 advice concerning the Ipperwash Park 6 issue. It was also decided this person 7 should not be a government employee or 8 high profile." 9 Obviously, they hadn't retained Mr. 10 Sandler at the time. 11 "This cast still needs to be completed. 12 Julie Jai and Jan Lazor have prepared a 13 list of potential people, however, the 14 list needs to be narrowed. Once the 15 list is finalized, it will be forwarded 16 to Ron Fox." 17 Under "Action taken": 18 "Ron Fox will talk to the OPP about the 19 entry of MNR staff to winterize. ONAS 20 will forward a list of potential 21 candidates to Ron Fox with respect to 22 the OPP retaining counsel." 23 So, you fulfilled that function as well? 24 A: Correct. 25 Q: In addition, that same tab reflects a
1081 discussion and negotiation in essence you were having 2 with MNR about the best way to winterize the Park; is 3 that correct? 4 A: My discussion wasn't in terms of the 5 best way and what to do exactly -- 6 Q: Can I rephrase? Can I rephrase? 7 Because you're quite right, I -- I got it wrong. 8 You had a -- I'm cutting you off just to 9 try to -- to show you you're quite right, I got it wrong, 10 so I'd like to rephrase; is that all right with you? 11 A: Yes, sir. 12 Q: Thank you. You had discussions and 13 negotiations with MNR about who should accompany 14 individuals who were going to take steps in respect of 15 winterizing? 16 A: That's correct. 17 Q: And it was your position, in essence, 18 as reflected in these minutes, I don't have to read every 19 line to you, that an appropriate step would be to have 20 First Nations officers, First Nations Ontario officers 21 accompany the MNR people into the Park, correct? 22 A: That's correct. 23 Q: And it was the response of MNR that 24 that wasn't, from their perspective, enough, they wanted 25 both First Nations and OPP officers, correct?
1091 A: I believe that to be correct, yes. 2 Q: And so you keep emphasize, at page 3, 3 top of page 3 of the minute: 4 "Ron Fox indicated that he feels that 5 it may be safer for MNR staff if only 6 the Anishnaabek Police were on site 7 while the work was being done." 8 Correct? 9 A: I said that, yes. 10 Q: And that's, again, reflective of the 11 efforts you took to be sensitive to the aboriginal issues 12 going on, correct? 13 A: Yes. 14 Q: And MNR didn't agree with you? 15 A: I would say they didn't agree, they 16 had their concerns. 17 Q: Now, so again, if we're talking about 18 your functions, this is a further function you were 19 performing, which was you were actually doing the 20 negotiations from a police perspective of who would be 21 the best policing escort to enable and facilitate the 22 winterization? 23 A: That's correct, yes. 24 Q: At Tab -- and I'd like to make that 25 document the next exhibit, that would be document number
1101 1001046, the ONAS meeting notes of October 26th, 1995, 2 it's Tab 17 of the green binder. 3 THE REGISTRAR: P-542, Your Honour. 4 COMMISSIONER SIDNEY LINDEN: P-542. 5 6 --- EXHIBIT NO. P-542: Document No. 1001046 October 7 26/95 Minutes of ONAS Meeting 8 Re. Ipperwash Occupation. 9 10 CONTINUED BY MR. JULIAN FALCONER: 11 Q: At Tab 18 of the green binder there 12 is a memo from you to Deputy Solicitor General -- then 13 Deputy Solicitor General Todres; do you see that? 14 A: Yes, I do. 15 Q: Am I pronouncing the name correctly? 16 A: Todres, yes. 17 Q: Okay. And it's dated October 26th, 18 1995? 19 A: Correct. 20 Q: And you're actually basically co- 21 ordinating the response to the United Nations Special 22 Rapporteur on Extrajudicial Summary or Arbitrary 23 Executions, correct? 24 A: Correct. 25 Q: You've indicated in the last
1111 paragraph of that correspondence, which is document 2 number 1001059: 3 "To this end, I've provided a copy to 4 Mr. Paul Ceyssens, Counsel, who advised 5 that he and Mr. David Burnside would 6 conduct a preliminary examination of 7 the material and meet with me on 8 Monday, October 30th, 1995." 9 Would those be the Counsel you retained on 10 behalf of the OPP? 11 A: No, sir. 12 Q: All right. What was their role? 13 A: When the -- the minutes of the 14 support group that we've just reviewed, it was a 15 suggestion that it should probably be outside and 16 independent Counsel. And I think that it was probably 17 very well intended but a step ahead. 18 It's my understanding, although I -- I 19 can't be certain on the mechanics of it, but when this 20 type of material is received, it should be reviewed 21 internally by Counsel assigned to the Ministry of the 22 Attorney General and then sub-assigned to, in this case, 23 the Solicitor General. 24 So that's what I've done, is -- is two (2) 25 -- two (2) things, advise the Deputy Solicitor General
1121 that this has been received and provided copies, as I 2 understood the correct procedure to be, to legal services 3 in the persons of Mr. Paul Sissons and Mr. David 4 Burnside. 5 Q: And whose decision was it not to 6 retain outside Counsel? 7 A: I -- I think it was probably a 8 collective one. As I indicated before, it was likely one 9 of those that made sense at the time but there were wrote 10 processes that should have been followed before it moved 11 to that. 12 Q: And you were involved in the circle 13 that made that decision? 14 A: I was involved in the circle that 15 discussed it, yes. 16 Q: Well, and you made a decision, didn't 17 you? You made a decision not to -- 18 A: That's correct. 19 Q: Okay. 20 A: Yes. 21 Q: Okay, good. And I can be rather 22 stubborn sometimes, can't I? I'm sorry. 23 In terms of the next -- I'm actually being 24 disingenuous. I'm not that sorry, but sorry. 25 Tab 23, green binder.
1131 (BRIEF PAUSE) 2 3 Q: If you could have regard and -- I'm 4 sorry, I've skipped over it. Could you make that last 5 document an exhibit please, tab 18? 6 THE REGISTRAR: P-543. 7 MR. JULIAN FALCONER: And that's document 8 number 1001059. 9 10 11 --- EXHIBIT NO. P-543: Document No. 1001059 October 12 26/95. Memorandum to Elaine 13 Todres from Ron Fox. 14 15 CONTINUED BY MR. JULIAN FALCONER: 16 Q: Now, I've now directed your attention 17 to Tab 23. 18 19 (BRIEF PAUSE) 20 21 Q: Then Ms. Karakatsanis, what was your 22 evidence as to her position at the time? 23 A: The secretary of ONAS, sir. 24 Q: All right. Then secretary of ONAS, 25 it receives an e-mail from Ms. Hipfner. The second
1141 paragraph says, and I'm at document 1004164, 1004164. 2 The second paragraph of that says: 3 "Ron Fox confirms that the MOU was 4 never executed. It was an early effort 5 by the OPP, the ones on the ground at 6 Ipperwash, and the Stoney Pointers to 7 hammer out a protocol, shortly after 8 the occupation began. 9 Ron was provided with a copy of it at 10 the time and conveyed his very serious 11 concerns about the document to the OPP 12 at Ipperwash. 13 Never went anywhere after that and has 14 never been relied on by anybody in any 15 way." 16 Do you -- does this bring back any 17 memories about a potential MOU that was unsigned? 18 A: It does. 19 Q: All right. Now if you go back a tab 20 to first 22, if you go back one tab, and all these 21 documents relate and then I'll file them together. 22 If you go back a tab, and you'll see an e- 23 mail dated December 4th, 1995, document number 1004157. 24 So it pre-dates the last e-mail by three (3) days, and 25 it's an e-mail from Ms. Hipfner to Yan Lazor, Merike Por,
1151 cc to Julie Jai. 2 "I spoke with Peter Allen, Ron Fox and 3 Scott Patrick about the document that 4 Peter sent to Yan this morning and a 5 copy of an unsigned agreement between 6 the OPP and the Stoney Pointers. 7 Ron and Scott were both somewhat 8 surprised by this. They had seen a 9 copy of the agreement in early 10 September, shortly after the occupation 11 began and conveyed their very serious 12 concerns about it to the OPP at 13 Ipperwash. 14 Among other things, they were very 15 concerned that this agreement purported 16 to commit the government to a number of 17 things to resolve the dispute. 18 Ron and Scott's understanding is that 19 no such document was ever signed by the 20 OPP and the Stoney Pointers." 21 Now, if you could please flip back to 22 tab... 23 24 (BRIEF PAUSE) 25
1161 Q: If you could now flip back to tab 21, 2 does that look like the draft MOU that was being 3 discussed over which you expressed your concerns? 4 A: No, sir, I -- I recall a document 5 that had some greater complexity to it than this one. 6 Q: I'm just directing your attention, 7 briefly, if you don't mind. This is why I went sort of 8 in backwards order, so -- so that you could get a feel 9 for this, given how far back we're going. 10 If you look at the top on that tab 21, if 11 you look at the top of the fax transmission, from MNR 12 deputy minister, December 4th, '95. 13 A: Correct. 14 Q: It seems to be the document that's 15 moving between the ministries at the time, that's why I'm 16 asking. 17 It seems to -- and then if you go through 18 this, perhaps you can refresh your memory. The last 19 page. 20 21 (BRIEF PAUSE) 22 23 A: Yes. 24 Q: Could this have been the document 25 that you were asked about?
1171 A: No, I don't believe that it is, sir. 2 Q: All right. 3 A: This one -- 4 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 5 Millar, do you have an observation to make to -- 6 MR. DERRY MILLAR: Well, no, I -- 7 COMMISSIONER SIDNEY LINDEN: -- help us, 8 sir? 9 MR. DERRY MILLAR: -- won't want to 10 interrupt the Witness. 11 COMMISSIONER SIDNEY LINDEN : No, that's 12 fine. 13 MR. DERRY MILLAR: Assign -- well, 14 perhaps the witness could answer -- finish his answer and 15 then I'll make a comment -- 16 COMMISSIONER SIDNEY LINDEN: All right -- 17 MR. DERRY MILLAR: -- Commissioner. 18 COMMISSIONER SIDNEY LINDEN: All right. 19 I thought you were going to be helpful, but let's wait 20 until he answers and then you can be helpful. 21 22 CONTINUED BY MR. JULIAN FALCONER: 23 Q: Go ahead, sir. 24 A: I'll try, sir. This document would 25 have been dated post-September 6th.
1181 Q: Yes? 2 A: The document that I believe that was 3 reverred -- referred to as a document that spoke to an 4 MOU, if you will, would have been dated earlier than 5 that, in other words, pre-September 6th. 6 This document is -- is -- and I haven't 7 done a complete read of it yet, sir, but it would seem to 8 suggest it speaks to facilitating the investigation which 9 would have been after the fact. 10 Q: Yes. But if you have regard to Tabs 11 -- and -- and I just -- I need Mr. Millar to know, it's 12 not the existence of the signed document at this stage. 13 I'm working on Officer Fox's -- I'm working on Officer 14 Fox's functions at the time. 15 COMMISSIONER SIDNEY LINDEN: Yes, I 16 understand. 17 MR. JULIAN FALCONER: I know there's a 18 signed memorandum out there. 19 COMMISSIONER SIDNEY LINDEN: But I think 20 it's not -- 21 MR. JULIAN FALCONER: Fine. 22 COMMISSIONER SIDNEY LINDEN: -- whether 23 it's signed or not, it's whether it's a different 24 document. 25 MR. DERRY MILLAR: Well, Exhibit P-47
1191 Inquiry Document 1010496 is a signed copy signed by Chris 2 Coles on behalf of the OPP of the Memorandum of 3 Understanding and it's dated September 9th -- September 4 17th/95 and it's this document that My Friend's referring 5 to. 6 COMMISSIONER SIDNEY LINDEN: That's fine. 7 But he's referring to a different document, I think, 8 that's pre -- 9 MR. DERRY MILLAR: Mr. -- Mr. Fox is -- 10 COMMISSIONER SIDNEY LINDEN: The Witness 11 is, yes. 12 MR. DERRY MILLAR: -- but the document 13 that My Friend, at Tab 21 -- 14 COMMISSIONER SIDNEY LINDEN: Is a 15 different document, apparently. 16 MR. DERRY MILLAR: Well, this document is 17 signed. 18 COMMISSIONER SIDNEY LINDEN: Yes. 19 MR. DERRY MILLAR: It's Exhibit P-47. 20 COMMISSIONER SIDNEY LINDEN: I understand 21 that. 22 MR. DERRY MILLAR: And the Inquiry 23 document -- 24 COMMISSIONER SIDNEY LINDEN: I remember 25 this --
1201 MR. DERRY MILLAR: -- I gave and it was 2 signed on September 17th, 1995, by then-Chief 3 Superintendent Coles on behalf of the OPP. 4 COMMISSIONER SIDNEY LINDEN: Yes. What 5 Mr. Falconer's looking for is the role or the function of 6 Superintendent then-Inspector Fox. 7 8 CONTINUED BY MR. JULIAN FALCONER: 9 Q: That's right. And it may be that 10 Superintendent Fox just can't help us on this, but it 11 certainly appears from the timing and the contents of the 12 memos that refer to your concerns, sir, that there's no 13 suggestion that -- that the document you're discussing in 14 the December 4th and 7th, 1995, e-mails and correct me if 15 I'm wrong, that it necessarily pre-dates September 6th, 16 1995, is there? 17 A: I believe there is, sir. 18 Q: Oh, Okay. 19 A: And as I read at Tab 23 an e-mail 20 developed by Ms. Hipfner, the third paragraph: 21 "Gord Peters' letter was the result of 22 being completely misinformed by an 23 individual about MNR's wanting to go 24 into the Park and carry out the 25 winterization of."
1211 Q: Yes. What that is, is Mr. Peters has 2 forwarded you an MOU. He's now writing, in his capacity 3 I think as either mediator or fact finder, he's writing 4 and he's attaching a previous agreement, which is 5 unsigned, that sparked these concerns. And it appears 6 from the dates that that previous agreement is to be 7 found, but you can disagree with me, at Tab 21? 8 In other words, he's writing to you about 9 the issues around winterization and one (1) of the things 10 he's including in his letter is this past draft MOU. Not 11 a lot turns on it because many of my questions can move 12 on even if you can't remember. It's -- you just have to 13 tell the truth, if you don't remember, you don't 14 remember. 15 A: What I don't want to do is confuse 16 the Commission. 17 Q: All right. 18 A: And I was -- I was drawing from the 19 wrong paragraph of that. 20 Q: All right. 21 A: If one goes to paragraph 2: 22 "It was an early effort by the OPP [in 23 parentheses] the ones on the ground at 24 Ipperwash, and the Stoney Pointers to 25 hammer out a protocol shortly after the
1221 occupation began. 2 Ron [referring to myself] was provided 3 with a copy at the time and conveyed 4 his serious concerns about the document 5 to the OPP. It never went anywhere and 6 -- after that and has never been relied 7 upon by anybody in any way." 8 It -- it was a document that was, in my 9 view, part of that front end conversation and/or 10 negotiation that I spoke to. I don't want to mislead the 11 Commission, I believe the -- the second document that was 12 subsequently signed and dated the 18th of September was 13 after September the 6th. 14 Q: Do you know what document you're 15 talking about? In other words, could Exhibit P-47 be 16 placed before the Witness first so you can eliminate that 17 document and then we can see if we can find the document 18 you're talking about? 19 Sorry, Mr. Commissioner, but it may -- 20 COMMISSIONER SIDNEY LINDEN: All right. 21 MR. JULIAN FALCONER: -- well be helpful 22 to you; I hope so, I don't want to be wasting your time. 23 24 (BRIEF PAUSE) 25
1231 CONTINUED BY MR. JULIAN FALCONER: 2 Q: Do you have P-47 in front of you? 3 A: Yes, sir. 4 Q: And is that the document that was the 5 subject of the e-mails of December 4th and December 7th, 6 1995, as reflected in Tabs 22 and 23 of the green 7 document binder? 8 A: I believe it to be. 9 Q: P-47 is? 10 A: Yes. P -- Exhibit P-47 would be the 11 document that I would believe is being referred to in the 12 e-mail. 13 Q: Could you compare that to the draft 14 that's at Tab 21, please? 15 A: Yes, sir. 16 Q: They're -- they're very similar, 17 aren't they? 18 A: They -- they are similar -- 19 Q: Right. 20 A: -- but if one looks at the other 21 bullets here -- 22 Q: And when you say, "here," you're 23 pointing to? 24 A: I'm sorry. To Exhibit P-47. 25 Q: Yes.
1241 A: That I believe there was earlier 2 iterations of this material and it was likely -- and, 3 again, I can't comment on that, I wasn't the author, but 4 it would seem to me it would be likely there were other 5 iterations of this. 6 Q: And it was in respect of the drafts 7 of P-47 that you gave advice as reflected in the December 8 4th and December 7th, 1995 minutes? 9 A: I believe so, yes. 10 Q: All right. So I'm going to ask, 11 first of all, that the e-mail dated December 4th, 1995, 12 which is at Tab 22 of the green binder, document number 13 1004157, be filed as the next exhibit. 14 THE REGISTRAR: P-544, Your Honour. 15 16 --- EXHIBIT NO. P-544: Document No. 1004157 Email 17 from Eileen Hipfner to Yan 18 Lazor, Merike Por, December 19 04/95. 20 21 MR. JULIAN FALCONER: And I'm going to 22 ask that document -- that the next tab, Tab 23, which is 23 the e-mail of December 7th, 1995, which is document 24 number 1004164, be filed as the next exhibit. 25 THE REGISTRAR: P-545, Your Honour.
1251 COMMISSIONER SIDNEY LINDEN: Thank you. 2 3 --- EXHIBIT NO. P-545: Document No. 1004164 E-Mail 4 from Eileen Hipfner to A- 5 Karakatsanis, Yan Lazor, 6 December 07/95. 7 8 MR. JULIAN FALCONER: And finally, with 9 all of the qualifiers in the discussions and leaving it 10 for you, Mr. Commissioner, to compare the documents, I'm 11 going to ask that the draft of the MOU at Tab 21, being 12 document number 1004155, be filed as the next exhibit. 13 THE REGISTRAR: P-4 -- 546, Your Honour. 14 COMMISSIONER SIDNEY LINDEN: 546. 15 16 --- EXHIBIT NO. P-546: Document No. 1004155 17 Memorandum of Understanding 18 between the First Nations 19 People at Stoney Point and 20 the O.P.P. December 04/95. 21 22 CONTINUED BY MR. JULIAN FALCONER: 23 Q: Now, looking at Exhibit P-544, which 24 is Tab 23, and looking at Exhibit P-545, which is Tab 22, 25 you --
1261 THE REGISTRAR: You got that reversed. 2 MR. JULIAN FALCONER: I'm sorry? 3 THE REGISTRAR: P-544 is at Tab 22, P-545 4 is Tab 23. 5 6 CONTINUED BY MR. JULIAN FALCONER: 7 Q: This is what happens when I go 8 through our lunch hour, Mr. Commissioner. 9 Looking at those two (2) tabs, the two (2) 10 e-mails, that ordinary people would just call e-mail 11 messages, looking at those two (2) e-mail messages, would 12 you agree with me, sir, that one of your functions at the 13 time, in early September 1995, was to give advice to the 14 OPP and the government of the day as to any memorandum of 15 understanding that would be arrived at between the 16 occupiers and the OPP? 17 A: Correct. 18 Q: At Tab 31 of the green binder, on 19 March 18th, 1996, you received a copy of the Federal 20 Negotiations' minutes in respect of negotiations or 21 meetings between the Government of Canada and Kettle and 22 Stony Point First Nations by cover of March 18th, 1996, 23 being document number 1001067, you received that from 24 Superintendent Parkin, correct? 25 A: Correct.
1271 Q: In what capacity did you receive this 2 document? 3 A: My capacity? 4 Q: Yeah. At the time, on March 18th, 5 1996? 6 A: As the First Nations advisor. 7 Q: All right. And I'm simply drawing -- 8 I'm simply trying to draw out from you, because in April 9 1996 you're at that meeting but you're not in the 10 capacity as advisor? 11 A: Correct. 12 Q: All right. In the previous month 13 though you are advisor? 14 A: Correct. 15 Q: Okay. And it's -- it's fair to say 16 then that one of your jobs included keeping tabs of what 17 the Federal Government was negotiating with Kettle and 18 Stony Point First Nations, yes? 19 A: Correct. 20 Q: I discussed with Deputy Commissioner 21 Carson the many hats that he wore. You'd agree with me 22 that you somewhat rivalled him in the extraordinary 23 number of functions you were carrying out over the course 24 of the occupation? 25 A: To a degree sir, yes.
1281 Q: And in respect of almost each and 2 every one of these functions that we've gone over, you 3 understood that it was your job to be an information flow 4 between the police and government? 5 A: Correct. 6 Q: And no one, no one talked to you in 7 terms of, well, with the exception of Chris Coles on 8 September 6th, 1995 in that tape recording, no one talked 9 to you about how much information was too much 10 information or how much information was too little 11 information, correct? 12 A: That's correct, sir. 13 Q: Now just before the lunch break, I 14 want to take you to the Police Services Act, very 15 briefly, and then we'll -- subject to Mr. Commissioner's 16 patience with me, deal with it after lunch, and I want to 17 briefly take you to a passage and I want to ask you about 18 it. 19 COMMISSIONER SIDNEY LINDEN: I was hoping 20 we might complete your cross-examination before lunch, 21 but that's not possible? 22 MR. JULIAN FALCONER: I apologize, it's-- 23 COMMISSIONER SIDNEY LINDEN: You're 24 getting close, I presume? 25 MR. JULIAN FALCONER: I believe I have
1291 about an hour left. 2 I -- this morning was quite a -- quite an 3 exchange between Mr. Downard and myself -- 4 COMMISSIONER SIDNEY LINDEN: Well, it 5 really didn't take up that much time. You -- 6 MR. JULIAN FALCONER: It was all Mr. 7 Downard's fault for everything. 8 COMMISSIONER SIDNEY LINDEN: Let's carry 9 on. I don't want to take up more time by arguing with 10 you. 11 MR. JULIAN FALCONER: Thank you. 12 13 CONTINUED BY MR. JULIAN FALCONER: 14 Q: In terms of what I've put in front of 15 you, first of all could you have regard to Section 31 of 16 the Police Services Act, which talks about the 17 responsibilities of municipal police services boards; do 18 you see that? 19 A: I do. 20 Q: Okay. Can I have the Police Services 21 Act? 22 23 (BRIEF PAUSE) 24 25 Q: Under Section 31(3), do you see under
1301 "restriction?" 2 A: Yes. 3 Q: Now you know that a Police Services 4 Board is a civilian oversight body that acts as the 5 oversight body, in essence, a buffer between government 6 and municipal police services; you know that? 7 A: I do. 8 Q: All right. 9 Under (3): 10 "The Board may give orders and 11 directions to the Chief of Police but 12 not to other members of the police 13 force and no individual member of the 14 Board shall give orders or directions 15 to any member of the police force." 16 Do you see that? 17 A: I do. 18 Q: Under (4): 19 "The Board shall not direct the Chief 20 of Police with respect to specific 21 operational decisions or with respect 22 to the day to day operation of the 23 police force." 24 Do you see that? 25 A: I do.
1311 Q: All right. You'd agree with me -- I 2 mean, you've been a member of the OPP for thirty-five 3 (35) years, you'd agree with me that there is no such 4 mirror provision, whether a Police Services Boards or 5 otherwise in the Police Services Act, as it pertains to 6 relationships between oversight bodies or any ministry 7 official and the police? 8 There's no such statutory safeguard in the 9 Police Services Act as it pertains to the Ontario 10 Provincial Police; are we agreed? 11 A: As it relates to the Ontario 12 Provincial Police -- 13 Q: That's right. 14 A: -- and? 15 Q: And their task masters. The 16 Solicitor General, Deputy Solicitor General, or anyone in 17 government. There is no bar, there is no restriction in 18 the Police Services Act on the Solicitor General giving 19 operational, direction or otherwise, or any government 20 official giving operational direction or otherwise to 21 members of the OPP, correct? 22 A: I would say that that's correct, but, 23 sir, I need to qualify that. 24 Q: Yes. I am talking statutory, just 25 before you go on.
1321 A: Yes. And I'm not going to get into 2 practice but just so there's -- there's no confusion, I 3 don't want to confuse the matter. 4 There is, and that's why I asked, between 5 the OPP, or the OPP and between, because under Section 10 6 of the Act there is a reporting requirement for the 7 Commissioner to report to a Police Services Board, and I 8 know that the Commissioner has, in practical purposes, 9 delegated that to Detachment Commanders of the OPP who 10 find themselves beyond what contractual arrangement of 11 the municipality. 12 Q: And you're talking about the unique 13 reporting expectations, borne out of the Police Services 14 Act, when there are agreements between municipal Police 15 Services and the OPP? 16 A: Between municipalities and the OPP 17 for -- 18 Q: Fair enough. But that -- I'm talking 19 about the -- and that's a fair clarification. With the 20 exception of that, there is no other safeguard, correct? 21 A: Correct. 22 Q: All right. And then if I could ask 23 you this, in fact, could you direct your attention to 24 Section 17(2) ű- well Section 17 deals with the existence 25 of the office of the Commissioner of the Ontario
1331 Provincial Police; do you see that? 2 A: I do. 3 Q: 17(1): 4 "There shall be a Commissioner of the 5 Ontario Provincial Police who shall be 6 appointed by the Lieutenant Governor in 7 Council.÷ 8 And that's Cabinet, correct? 9 A: Agreed. 10 Q: And then, Sub 2: 11 "Subject to the Solicitor General's 12 direction, the Commissioner has the 13 general control and administration of 14 the Ontario Provincial Police and the 15 employees connected with it.÷ 16 Correct? 17 A: Correct. 18 Q: So there's an actual reservation to a 19 directed power by the Solicitor General over the 20 Commissioner, correct? 21 A: If you mean by, "reservation," is 22 there a limit placed on the Solicitor General? 23 Q: No. I'm saying that wording in this 24 section -- I know you're not a lawyer, but you're -- 25 you're a senior manager and ultimately you were the
1341 liaison with government at the key time. 2 As far as you know, the only legislative 3 provision that exists in the creation of the Commissioner 4 of Office, actually reserves, to the Solicitor General, a 5 right of direction to the Commissioner; isn't that right? 6 A: Correct. By virtue of this, yes. 7 Q: All right. And now, having said 8 that, you're aware of, there is a practice and an 9 underlying theory or philosophy that there is to be kept 10 a separation between government on the one (1) hand and 11 police on the other, correct? 12 A: Agreed. 13 Q: But that simply has not found its way 14 into any piece of legislation, agreed? 15 A: I'm really only aware of the Police 16 Services Act, but I agree on read of this; that's exactly 17 what it says. 18 Q: And that might have been a key place, 19 that might have been a key place to find out what the 20 limits on you -- what you could or could not do as a 21 person moving between government and police. Would you 22 agree with me that could have helped if there were some 23 safeguards listed? 24 A: I -- I think that it would have been 25 of benefit to me or any -- anyone else who found
1351 themselves in that position, yes. 2 Q: Thank you. This would be a good 3 time. 4 COMMISSIONER SIDNEY LINDEN: Thank you, 5 Mr. Falconer. 6 We'll break for lunch now. 7 THE REGISTRAR: This Inquiry stands 8 adjourned until 2:15. 9 10 --- Upon recessing at 1:03 p.m. 11 --- Upon resuming at 2:18 p.m. 12 13 THE REGISTRAR: This Inquiry is now 14 resumed. Please be seated. 15 16 (BRIEF PAUSE) 17 18 COMMISSIONER SIDNEY LINDEN: Good 19 afternoon. 20 MR. JULIAN FALCONER: Good afternoon, 21 Commissioner. 22 23 CONTINUED BY MR. JULIAN FALCONER: 24 Q: Good afternoon Superintendent Fox. 25 Superintendent Fox, during your examination-in-chief, at
1361 one stage you made reference to the Commissioner of the 2 OPP's membership on a Committee and, to be honest, I had 3 attempted to canvass the transcripts and had been 4 unsuccessful in finding it. 5 Can -- do you recall testifying to that 6 effect? 7 A: I do. 8 Q: And what were you -- what Committee 9 were you referring to, please? 10 A: At that point in time, the 11 Commissioner was a member of a Senior Management 12 Committee. 13 Q: All right, and what is a Senior 14 Management Committee? 15 A: A Senior Management Committee was 16 within government at that time. It would be the senior 17 bureaucrats at the deputy at ADM level of various 18 Ministries. 19 Q: And it's -- do you know if it's still 20 called the management Committee? 21 A: I don't know that, sir. 22 Q: All right, at the time as far as you 23 recall, it was? 24 A: It was. 25 Q: Did you sit on that Committee?
1371 A: No, I did not. 2 Q: All right. And am I correct in 3 inferring that, basically, the highest level of the 4 Solicitor General's office plus the highest level of the 5 OPP sat on the Committee together? 6 A: That is correct. 7 Q: Right. And that Committee was called 8 the Management Committee? 9 A: SMC, Senior Management Committee. 10 Q: And it included Deputy Solicitor 11 General, sir? 12 A: Correct. 13 Q: Did it include the Solicitor General? 14 A: No, sir. 15 Q: Do you know what the function of the 16 Senior Management Committee was? 17 A: Not in its entirety. The -- the 18 Committee, I would -- I would presume was in place as a 19 communication vehicle, I suppose much similar to the 20 Interministerial Committee but for broader issues that 21 would have impacted upon the Government. 22 Q: Broader issues that would have 23 impacted on? 24 A: The government. 25 Q: And I take it, broader issues it
1381 would have impacted on the police? 2 A: That's entirely possible, yes. 3 Q: All right, and as I understand it, in 4 terms of the chain of command, the Commissioner reports 5 to the Deputy Solicitor General; is that correct? 6 A: Correct. 7 Q: And it's fair to say that you know of 8 no -- we dealt with the issue of the equivalents in the 9 Police Services Act in terms of safeguards on directions 10 about operational matters, but I'm now moving beyond 11 that. 12 You know of no restriction on information 13 that could be exchanged between the Commissioner and the 14 -- the Commissioner on the one hand and the Deputy 15 Solicitor General or the Solicitor General on the other? 16 You know of no such restriction, do you? 17 A: Other than self-imposed, none that 18 I'm aware by statute. 19 Q: All right. And by self-imposed you 20 mean each of their best judgment? 21 A: Again, in a similar to fashion to the 22 -- in my response to the question that I was asked about 23 my role. It was my judgment what I would and wouldn't 24 release. 25 Q: And I'm glad you raised it that way,
1391 because I'd like to ask you about the -- the cabinet 2 meeting of September 6th, 1995, in this -- in a 3 completely different sense than what we discussed it 4 before. 5 At the cabinet meeting of September 6th, 6 1995, a number of different Counsel asked you as to what 7 -- 8 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 9 Downard...? 10 MR. PETER DOWNARD: My Friend is 11 referring to the meeting at which this Witness attended. 12 It was not a cabinet meeting -- 13 COMMISSIONER SIDNEY LINDEN: Yes, it was 14 -- it wasn't a cabinet meeting. It was a meeting of 15 various cabinet officials, but there's a technical term 16 for cabinet meeting, it's a term of art. 17 Well, it's -- 18 MR. JULIAN FALCONER: I can rephrase. 19 COMMISSIONER SIDNEY LINDEN: -- it's an 20 important distinction. 21 MR. JULIAN FALCONER: I can rephrase. 22 COMMISSIONER SIDNEY LINDEN: Yes. 23 24 CONTINUED BY MR. JULIAN FALCONER: 25 Q: At the meeting of the Premier and his
1401 cabinet members that were present -- 2 COMMISSIONER SIDNEY LINDEN: Some of his 3 cabinet members. 4 MR. JULIAN FALCONER: That's right. 5 6 CONTINUED BY MR. JULIAN FALCONER: 7 Q: At the meeting of the Premier and his 8 cabinet members that were present -- 9 COMMISSIONER SIDNEY LINDEN: Oh, I'm 10 sorry. 11 12 CONTINUED BY MR. JULIAN FALCONER: 13 Q: At that meeting, some of the 14 Counsels, specifically the Counsel, for example, for 15 Robert Runciman, the Counsel for Solicitor General -- 16 sorry, for Minister of Natural Resources Hodgson, those 17 Counsel made a point of raising with you that none of 18 them sought to give an opinion in the fashion that Harris 19 did. They were silent. Harnick's lawyer; they were 20 silent. Do you remember that questioning of you? 21 A: I do and I believe my response was 22 the Solicitor General did not comment. 23 Q: Similarly, the Attorney General 24 didn't comment? 25 A: Correct.
1411 Q: During the time you were at the 2 meeting did you see or perceive anything that would have 3 prohibited the Solicitor General from saying to the 4 premier, Premier, there's a police officer here, what 5 you're saying may be best said somewhere else at another 6 time? 7 Was there anything you saw or perceived 8 that would have prohibited or restricted the Solicitor 9 General from doing that? 10 A: Not that I'm aware of. 11 Q: Yet he remained silent? 12 A: He did. 13 Q: Was there anything you saw or 14 perceived in respect of the Attorney General that would 15 have precluded him, as the ultimate minister of justice 16 in the province of Ontario, that would have precluded him 17 from saying to the premier, Premier, there's a police 18 officer here, there may be a better time and place to say 19 this? 20 Did you see anything that precluded him? 21 A: Not that I'm aware of. 22 Q: And, isn't it fair to say there was 23 absolutely nothing going on in that room in front of you 24 that would have, from -- as far as you were concerned -- 25 prohibited anybody in that room from raising the issue
1421 with the premier at the time to the extent they knew who 2 you were 3 A: No, sir. 4 Q: All right. And, I promised, Mr. 5 Commissioner, I'm not going to go back to issues of 6 mistaken identity beyond this one (1) more question I 7 have and then I promise the book's closed for this 8 Witness. 9 Could you stand for a minute, sir? 10 With the greatest of respect and only in a 11 flattering way, I'm going to suggest to you, you look 12 like a police officer. 13 Do you agree with me? 14 A: Yes, sir. 15 Q: Thank you. You can sit down. 16 COMMISSIONER SIDNEY LINDEN: You take 17 that as a compliment, I presume? 18 MR. JULIAN FALCONER: It was. 19 THE WITNESS: I will, Your Honour. 20 21 (BRIEF PAUSE) 22 23 CONTINUED BY MR. JULIAN FALCONER: 24 Q: I don't mean to embarrass you, I do 25 want to ask you this, though. As a result of the
1431 disclosure in 2003 you -- you had a meeting as a result 2 of the disclosure of the taped conversations; you had a 3 meeting with -- with senior management; is that correct? 4 A: I did. 5 Q: All right. When I say the 6 disclosure -- 7 MR. MARK SANDLER: I just want to 8 indicate, Commissioner, that -- that I have spoken to 9 Superintendent Fox about this and that it could, in 10 theory, infringe upon the same kinds of issues that are 11 being discussed on the discipline records. He waives any 12 issue in relation to it and he's happy to have Mr. 13 Falconer ask him the questions. 14 So, yes, and I should say that Mr. 15 Falconer advised me that -- that he wanted to -- to ask 16 the question and that was the basis upon which I spoke to 17 Superintendent Fox. 18 COMMISSIONER SIDNEY LINDEN: And you 19 don't have any objection to the question? 20 MR. MARK SANDLER: And, I do not. 21 COMMISSIONER SIDNEY LINDEN: That's fine. 22 MR. JULIAN FALCONER: It is possible for 23 Counsel to talk productively, amazingly. 24 COMMISSIONER SIDNEY LINDEN: I'd like to 25 see a little more of that.
1441 2 CONTINUED BY MR. JULIAN FALCONER: 3 Q: The -- the taped conversations, of 4 course, I refer to are at Tabs 16 and -- and 37 of 5 Exhibit P-444(a), the audio logger transcripts Volume I. 6 I don't need to remind you of them, I'm -- I'm simply 7 asking, first of all, could you advise Mr. Commissioner 8 of the circumstances in which it came to your attention 9 that there was a tape of those telephone calls? 10 A: I received a -- a page on my annual 11 leave from the Regional Commander of the day for West 12 Region asking me to meet him and then subsequently to 13 meet Deputy Commissioner Maurice Pelau of the Ontario 14 Provincial Police. 15 I did so and at our meeting I was played 16 the two (2) tapes in question that I had theretofore had 17 no recollection. I had no idea they were being taped. 18 Q: Right. Just stopping you there. The 19 timing of that, and I -- I do believe you testified to it 20 before, but the timing of that was...? 21 A: July 21, sir. 22 Q: Thank you. 2003? 23 A: Correct. 24 Q: Thank you. Please continue. 25 A: Met, the tapes were played. I can
1451 certainly acknowledge and I did then and now that that is 2 my voice on those tape recordings. I could confirm that 3 I was having a conversation with the then-Inspector 4 Carson, now Deputy Commissioner Carson. 5 When it was complete, obviously I was 6 embarrassed, certainly for my organization. And the -- 7 the Deputy had a meaningful non-disciplinary discussion 8 with me with respect to my use of -- of language, that 9 certainly wasn't in keeping with the expectations of a 10 commissioned officer of the Ontario Provincial Police. 11 Q: And the Deputy that had that 12 conversation with you was Deputy Commissioner Pilon 13 (phonetic)? 14 A: Correct. 15 Q: And when did he have that 16 conversation with you; the same day? 17 A: The same day, sir. 18 Q: And was anyone else present for that 19 conversation? 20 A: Yes. Then Chief Superintendent/now 21 retired Tony Parkin. 22 Q: Did -- and I apologize, I'm going to 23 mess these ranks up -- then Chief Superintendent Parkin 24 participate in the conversation as -- and also give you 25 his views?
1461 A: He did. 2 Q: All right. I'd like to start with 3 Chief Superintendent Parkin's views; can you tell me what 4 views he relayed to you? 5 A: I can. 6 Q: Go ahead. 7 A: His -- his views were, as was Deputy 8 Commissioner Carson's, that the language that I had used 9 was inappropriate. 10 Q: Now when you said "Deputy 11 Commissioner Carson," did you mean -- 12 A: I'm sorry. 13 Q: -- Deputy Commissioner Pilon? 14 A: Pilon. 15 Q: All right. Let's back up. His views 16 were that the language was inappropriate? 17 A: That's correct. 18 Q: All right. Accepting for a moment 19 that this must have been somewhat of a notable meeting? 20 A: It was. 21 Q: How long did it last? 22 A: I'm going to say approximately forty- 23 five (45) minutes to an hour, by the time the tapes were 24 played and we had the discussion. 25 Q: All right. And did you have any
1471 subsequent meetings after that about this issue? 2 A: No, sir. 3 Q: All right. And in the forty-five 4 (45) minutes to an hour, let's say fifteen (15), twenty 5 (20) minutes was taken up with tape? 6 A: Correct. 7 Q: That leaves twenty-five (25) minutes? 8 A: Correct. 9 Q: All right. The twenty-five (25) 10 minutes presumably consisted of more than that it was 11 inappropriate language? 12 A: Well, it certainly did. 13 Q: All right. 14 A: And I think to try and do it moment 15 by moment would be very impractical and I think very 16 difficult for me in terms of recollection. You can 17 appreciate that playing the tapes, we went through it and 18 stopped, and went through it again. 19 The -- the meeting, when it turned to my 20 particular conduct and the discussions we had, it's not 21 simply the Deputy Commissioner said, This is 22 inappropriate, shouldn't happen again. He wanted to get 23 my feelings on it, obviously, for it to be a -- a 24 discussion. And I candidly agreed that it was 25 inappropriate for me to -- to use that language.
1481 Q: Did anyone contest the validity or 2 legitimacy of the perceptions you expressed about the 3 views and positions of the government of the day at the 4 time? Did anyone contest what you said on the tapes at 5 the meeting? 6 A: Neither did, no. 7 Q: Pardon me? 8 A: Neither did. 9 Q: Neither did. All right. 10 Subsequent to the date of that meeting, 11 and -- and let me preface this properly. When I say "the 12 views you expressed," I'm referring to how you described 13 the opinions expressed by the Premier and his -- and his 14 circle. And, you know, there were unflattering, 15 colourful language but you obviously sent a message, as 16 far as you were concerned, on their views and their 17 opinions as expressed to the OPP. 18 And what I want to know is, first of all, 19 you're saying no one at the meeting with you, that is 20 neither Deputy Commissioner Pilon nor Chief 21 Superintendent Parkin, contested your statement of your 22 perceptions of the views, correct? 23 A: They didn't. 24 Q: All right. Subsequent to that 25 meeting, did anyone within the OPP contest or challenge
1491 your statement of your perceptions of the views held by 2 the Premier and his circle? 3 A: No, sir. 4 Q: Right up until this day, July 2005, 5 again, has anyone in the OPP contested your statements of 6 the views and opinions of Premier Harris and his circle, 7 as reflected in those tapes? 8 A: No, sir. 9 Q: Would you agree with me that you've 10 hardly chosen the path of least resistance in terms of 11 your recollections and your sticking to what you viewed 12 as having actually happened; it's hardly the path of 13 least resistance for you; agreed? 14 A: I agree. 15 Q: You will have undergone some 16 embarrassment and some difficulty because you're in an 17 awkward position with members of the government of the 18 day in that time period; agreed? 19 A: Agree. 20 Q: And yet you maintain you heard what 21 you heard and you were told what you were told, correct? 22 A: I do. 23 24 (BRIEF PAUSE) 25
1501 Q: Your expertise, in terms of advising 2 on aboriginal issues, has meant and meant at the time 3 spending a great deal of time with this Interministerial 4 Committee and a lot of problem solving surrounding issues 5 around the occupation, correct? 6 A: Yes, sir. 7 Q: One of the issues that the 8 Commissioner is going to respectfully be asked to grapple 9 with, is the role of intelligence gathering around the 10 occupation; all right? 11 A: Yes. 12 Q: And similarly a report by the OPP of 13 1996 also deals with this issue. This is what I want to 14 ask you: Would you agree with me that decisions have to 15 be made on the basis of reliable information? 16 A: Yes, sir. 17 Q: All right. And if, for example, I 18 could take you to your e-mail, to what I'll call your 19 political masters of September 6th, 1995, and it's 20 reproduced at Tab 10 of the green binder. 21 22 (BRIEF PAUSE) 23 24 Q: It's document number 1001626, it's an 25 e-mail from you to Deputy Solicitor General Todres and
1511 Kathryn Hunt, who was then the EA at the Solicitor 2 General's office, correct? 3 A: Yes, EA to the Solicitor General. 4 Q: Now I'm going to do this in detail, 5 Mr. Commissioner, because there is a point to this and I 6 apologize for having to go slow, but it's not too long. 7 "Elaine, Kathryn. The following is an 8 update on the Ipperwash Provincial Park 9 situation which may be useful for our 10 meeting or meetings today. 11 1. The Stoney Pointers have identified 12 a spokesperson, Bert Manning, brother 13 to Rose Manning who was -- is the 14 spokesperson relative to the takeover 15 of CFB Ipperwash. 16 2. The Stoney Pointers have made no 17 demands as yet. They have, through 18 Manning, stated to the OPP the Park is 19 their land and is burial site. This 20 claim has been reported by the media 21 and was attributed to the occupiers. 22 3. The Stoney Pointers have not 23 captured an OPP cruiser as reported by, 24 quote ˘informed sources,÷ close quotes 25 from MNR.
1521 4. The number of occupiers continues 2 to be estimated by the OPP as thirty- 3 five (35) to forty (40) persons, 4 comprised of men, women and children, 5 rather than seven (7) again reported 6 by, quote, unquote, "informed sources 7 from the MNR." 8 It must be noted that there is 9 unrestricted access by the occupiers of 10 the military base to the Park. I am 11 advised the OPP will have a 12 surveillance helicopter in the air 13 today. 14 5. Chief Tom Bressette of the Kettle 15 and Stony Point First Nations has 16 probably stated that he and his Counsel 17 do not support the actions of the 18 Stoney Pointers as they relate to the 19 Park. 20 6. OPP investigation has identified 21 three (3) persons responsible for 22 incidents of damage and minor assault 23 which occurred during the takeover. 24 Warrants have been obtained for three 25 (3) male persons.
1531 7. The occupiers started a fire in the 2 Army Camp Road, south-east of the Park 3 overnight. Police responding the 4 incident were pelted with rocks. No 5 injuries, minor damage to police 6 vehicles. 7 8. The OPP inspector, John Carson, has 8 attempted to arrange a meeting with the 9 Stoney Pointers, scheduled for noon 10 today." 11 Now those are facts, correct? 12 A: I believe they are, yes. 13 Q: Yes. And you were very careful that 14 you provided facts, correct? 15 A: Yes, sir. 16 Q: Because you know that decisions that 17 involve very sensitive issues such as major concerns of 18 aboriginal communities that have ramifications across the 19 board, have to be based on facts, correct? 20 A: Correct. 21 Q: And that's why you kept putting in 22 quotation marks the number of times you did, the so- 23 called quote, unquote, "informed sources;" correct? 24 A: Yes, sir. 25 Q: You were sending a signal to the
1541 Deputy Solicitor General, as well as the executive 2 assistant to the Solicitor General, that the information 3 that they may be operating on, may be questionable, 4 correct? 5 A: Whether they were operating on or 6 they could be in receipt of information that may not be 7 correct, yes, sir. 8 Q: And you were expressing through the 9 Ron Fox way, that you were concerned that they may well 10 view these people as informed sources and they're not; 11 that was your concern? 12 A: I think that's reasonable and my e- 13 mail was a cautioner in that regard. 14 Q: Would you agree with me that the same 15 goes for how this matter continued to proceed, that -- 16 that facts had to be: a) ascertained and b) verified? 17 A: Correct. 18 Q: And would you agree with me that in 19 both ascertaining facts and verifying facts, that one (1) 20 of the components for doing that is intelligence 21 gathering? 22 A: That would be a component. 23 Q: And there was nothing about the 24 occupation at Ipperwash Park that made it special to 25 exempt it from intelligence gathering was there?
1551 A: No, sir. 2 Q: In fact, it would be one (1) of the 3 ways that you'd ascertain and verify facts? 4 A: Yes, sir. 5 Q: Can you think of anything about the 6 occupation at Ipperwash Park that made intelligence 7 gathering inappropriate? 8 A: No, sir. 9 Q: So you and I can agree that you don't 10 only gather intelligence on motorcycle gangs or criminal 11 enterprises; that's not the only thing intelligence 12 people do? 13 A: That's correct, sir. 14 Q: All right. 15 16 (BRIEF PAUSE) 17 18 Q: Could I ask that the e-mail that's 19 dated September 6th, 1995, that's Document Number 1001626 20 be filed as the next exhibit, Mr. Commissioner? 21 THE REGISTRAR: P-547, Your Honour. 22 COMMISSIONER SIDNEY LINDEN: P-547. 23 24 --- EXHIBIT NO. P-547: Document No. 1001626 E-Mail 25 from Ron Fox to Elaine
1561 Todres, Kathryn Hunt, 2 September 06/95. 3 4 CONTINUED BY MR. JULIAN FALCONER: 5 Q: And -- and, by the way, 6 Superintendent Fox, I noticed that this e-mail was sent 7 September 6th at 7:55 a.m.; is that right? 8 A: Yes, sir. 9 Q: You actually started your day by 10 giving them every fact you knew was right and by raising 11 the concerns you thought were fair to raise right off the 12 top of the day, correct? 13 A: For the most part, sir, yes. 14 Q: All right. 15 16 (BRIEF PAUSE) 17 18 Q: I asked Deputy Commissioner Carson 19 about this and I'm going to ask you as well, and I'm very 20 alive to the issue of the hour, Mr. Commissioner; that 21 is, I asked for an hour and that's what I -- where I 22 think I'm at if it's any relief, to you as well 23 Superintendent Fox. 24 In policing, often perceptions can be as 25 important as reality; would you agree?
1571 A: I do. 2 Q: And that fostering confidence from 3 the community -- all communities in policing, engenders 4 and involves being very guarded and protective about how 5 police are perceived; would you agree with that? 6 A: I would agree that police have to be 7 very -- very cognizant of -- of how they're perceived in 8 the community, yes. 9 Q: And thus, it not only becomes 10 important -- and let met preface this -- as the person 11 that was the liaison, you are intimately involved in any 12 suggestions or -- or allegations that there was undue 13 influence by the premier because you relayed information 14 back and forth; right? 15 A: I did. 16 Q: Yeah. And so it -- it impacts on you 17 as a person whether or not this actually happened 18 because, in all candour, you were a major vehicle of 19 information flow, correct? 20 A: I was. 21 Q: But even if, hypothetically -- even 22 if, hypothetically, the police staved off this effort to 23 influence, all right, you would agree with me that the 24 perception problem remains there; that there would be a 25 premier expressing these kinds of opinions in the
1581 presence of the OPP and the OPP being subjected to this 2 kind of political pressure, that's a perception problem; 3 isn't it? 4 A: It is a perception issue, sir, yes. 5 Q: All right. And you can speak for Ron 6 Fox about how it affected you; right? 7 A: I believe I have. 8 Q: And your tape certainly does, doesn't 9 it? 10 A: Yes, sir. 11 Q: Can anyone doubt, from Tabs 16 and 37 12 of those tapes of September 5th and 6th, 1995, that Ron 13 Fox did not think it was -- I apologize -- can anyone 14 doubt that Ron Fox thought it was a bad thing that the 15 Premier be seen to be directing the OPP; is there any 16 doubt of that? 17 A: I don't believe so. 18 Q: No. So you can speak for Ron Fox; 19 yes? 20 A: I can. 21 Q: You might even be able to speak for 22 John Carson? 23 A: To a degree. 24 Q: All right. Now we move down the 25 officers. Can you speak for the whole command group? Do
1591 you know that each one of the members of the command 2 group, to the extent they received information that you 3 passed on, not -- not deliberately to influence somebody, 4 but passed on, can you speak for each one of them that 5 they weren't influenced? 6 A: That would be impossible, sir. 7 Q: And thus we have the perception 8 problem you and I discussed before, correct? 9 A: It is -- it is a problem of 10 perception, yes. 11 Q: And I hope you'll bear with me but 12 many, many moons ago, it's actually the twelfth century, 13 King Henry the Second, in relation to Tomas Beckett 14 (phonetic), once made the magic utterance, Will no one 15 rid me of this meddlesome priest. And low and behold, 16 his knights went out and Thomas Beckett was ultimately 17 killed. 18 Now throughout history it's always been a 19 question, Did in fact Henry the Second give an order, 20 give a direction, but he expressed an opinion; didn't he? 21 A: He did. 22 Q: And no one will ever know if the 23 knights followed that opinion; will they? 24 A: No, sir. 25 Q: Thank you for your assistance,
1601 Superintendent. 2 COMMISSIONER SIDNEY LINDEN: Thank you, 3 Mr. Falconer. 4 I'm not sure what the order is now. 5 MR. DERRY MILLAR: I think it's you 6 next. 7 MR. PETER ROSENTHAL: I think Mr. Horton 8 I think will explain that he cannot be here tomorrow, so 9 he is -- 10 COMMISSIONER SIDNEY LINDEN: Oh. To 11 accommodate, that's fine. The ordinary order would have 12 been you next. 13 MR. PETER ROSENTHAL: The ordinary order 14 is me but -- 15 COMMISSIONER SIDNEY LINDEN: That's fine. 16 MR. PETER ROSENTHAL: -- extraordinarily 17 allow him to -- 18 COMMISSIONER SIDNEY LINDEN: That's fine. 19 MR. PETER ROSENTHAL: -- take my place in 20 the order. 21 COMMISSIONER SIDNEY LINDEN: Thank you. 22 Mr. Horton, how long do you estimate you 23 might be? 24 MR. WILLIAM HORTON: Commissioner, I 25 estimated an hour and I'm going to try and stick to that.
1611 COMMISSIONER SIDNEY LINDEN: But not more 2 than an hour, you estimate not more than an hour? 3 MR. WILLIAM HORTON: Not more than an 4 hour. 5 COMMISSIONER SIDNEY LINDEN: Thank you. 6 7 CROSS-EXAMINATION BY MR. WILLIAM HORTON: 8 Q: Superintendent Fox, my name is Bill 9 Horton and I represent Chiefs of Ontario at this Inquiry. 10 And I'll try not to take up too much of your time 11 because you've already answered most of the questions I 12 have and just about most questions anyone might think of 13 asking in this situation. 14 But start with the -- back to that, and 15 I'm not going to go into it but, clearly, on at least one 16 (1) occasion and perhaps more than one (1) occasion in 17 this situation, you used strong language but you used it 18 to express strong feelings, and that's already been 19 covered amply; is that correct? 20 A: Yes, sir. 21 Q: And it has been covered amply that 22 these were feelings that you held, you were not using 23 strong language for the purpose of entertaining or -- or 24 any purpose other than to fully express how you actually 25 felt about what you were -- what you were saying?
1621 A: Correct. 2 Q: What I want to turn to is some of the 3 simple language that you used to express what I would 4 suggest are rather profound thoughts that apply to our 5 situation. And I just don't want us to lose sight of 6 some of those other points, so bear with me. 7 The first thing that you said that -- that 8 struck me was the need for -- for trust in the 9 relationship between the police and First Nations; do you 10 recall testifying on that? 11 A: I do. 12 Q: And beyond testifying on the need for 13 trust, you actually, in the course of your evidence, 14 mentioned a number of components of what was necessary in 15 order to actually build that relationship of trust. And 16 I want to break that down into two (2) categories of 17 things you said. 18 One that could be applied to building 19 trust with anybody, and you mentioned communication as 20 being a very important component of building trust; isn't 21 that right? 22 A: I did. 23 Q: And one of the points you made about 24 the September 6th Interministerial meeting, for example, 25 which I just want to give you a chance to elaborate on,
1631 because I'm not sure we quite heard your explanation on 2 that. 3 I think you said that when some of the 4 people at that meeting were talking about communication 5 and negotiation, you felt that they weren't necessarily 6 making the right distinctions between the two; do you 7 recall testifying to that? 8 A: I do, sir. 9 Q: Could -- could you just elaborate on 10 that a little bit, as to what you meant in terms of the 11 people at that particular meeting, not making the right 12 distinctions between communication and negotiation? 13 A: In my mind, sir, the -- the confusion 14 between communication, atypically, and negotiation, was 15 there were those who thought negotiation could only be 16 limited to the sanction of the government and took, very 17 literally, the mandate of -- of the Interministerial 18 Committee to heart. 19 I think the other aspect of communication 20 is was as identified and provided to me in a plan 21 entitled "Project Maple." 22 The police, on a regular basis, negotiate 23 with people -- 24 Q: Right. 25 A: ű- for a multitude of reasons. And I
1641 think it was that differential and that's why I tried to 2 use and make it an explanation that if you don't want to 3 call it negotiation, that's fine. It's front end 4 communication that the police would employ. 5 Q: Right. And your point simply is that 6 it's always a good policy to keep the lines of 7 communication open in any kind of conflict situation, 8 correct? 9 A: Yes, sir, both speaking and 10 listening. 11 Q: Right. And the manner of 12 communication also relates to that, and that is that if 13 you're trying to build trust, you communicate with words; 14 you say what you mean, you mean what you say. You don't 15 try and send signals indirectly. 16 Would that be a fair statement? 17 A: Correct. 18 Q: Another way of building trust, 19 generally, is to demonstrate some kind of concern about 20 the interests of the other party, legitimate, genuine 21 concern; isn't that right? 22 A: I believe that to be correct. 23 Q: And that's a point you made here in 24 relation to, Let's find out more about what's more on the 25 minds of the occupiers, correct?
1651 A: Correct. 2 Q: Another aspect of building trust is 3 patience, taking the time to let events unfold, correct? 4 A: Yes, sir. 5 Q: And that certainly was something you 6 advocated in this situation, was patience? 7 A: I believe that I did, yes. 8 Q: And certainly in the context of the 9 First Nations issues, when we consider the patience that 10 First Nations have had in dealing with society at large, 11 in terms of their claims and their rights and their 12 grievances, it sets a pretty high standard in terms of 13 the patience that might be expected of us, in dealing 14 with such situations; isn't that something you'd agree 15 with? 16 A: I agree. 17 Q: And certainly in terms of building 18 trust, trust is not enhanced by the use of threats or the 19 use of force to get what you want, if your objective is 20 to build trust. 21 Would you agree with that? 22 A: I would agree, sir. 23 Q: You might use force and threats for 24 other purposes, but certainly not to build trust; right? 25 A: Correct.
1661 Q: Now I want to apply that specifically 2 to First Nations, again highlighting, I think, many 3 things that -- that you have said or implied but I just 4 want to bring them out. 5 The need for trust in the relationship 6 between the police and First Nations is particularly 7 acute because, would you agree with me, there is the 8 possibility of encountering a distrust of authority, when 9 dealing with First Nations persons? 10 A: I agree. 11 Q: And that distrust of authority is 12 based on generations of perceived injustice, whether you 13 agree that it is or not; isn't that correct? 14 A: I would -- 15 Q: Perceived injustice, perceived by the 16 First Nations people. 17 A: I would agree and I think European or 18 what we would know as conventional policing is something 19 that's generally foreign to First Nation people. 20 Q: And if one looks at the history, 21 locally here, in terms of these particular lands and the 22 difficulties that the First Nations people in this area 23 have had in having their issues addressed with respect to 24 the Army Camp and so on, one can, perhaps, understand 25 that. And that's part of what you took into account;
1671 that you felt others in those -- in those discussions 2 were not taking into account; isn't that right? 3 A: That's a fair assessment, sir. 4 Q: Now you said another thing that, 5 again, I thought we shouldn't pass by too quickly because 6 it was worth just hearing you say a bit more about it. 7 You said that presence was the first 8 component of force; do you recall giving that evidence? 9 A: I do, sir. 10 Q: And I wonder if you could just 11 explain a little bit what you meant by that? 12 A: I draw that from the Ontario Police 13 Services use of force model and police officers in 14 responding to a situation, by virtue of their presence, 15 that is the first piece. Frequently, it's -- it's been 16 our experience that matters that may require police 17 intervention resolve themselves almost immediately on the 18 arrival of an officer or officers. 19 Q: And -- but the point being that the 20 fact that there's an officer there with the capability of 21 using force is, in itself, an implied suggestion that 22 force would be used if the matter cannot be resolved in 23 some other way? 24 A: That -- that point I -- I would 25 believe, sir, is -- is arguable. Certainly my take on it
1681 and my understanding of -- of what was contemplated when 2 this model was brought into play in Ontario, and I think 3 elsewhere in North America, was the fact that police 4 officers are a representation of the State, they are a 5 representation of what might be considered law and order 6 and that when they arrive at a situation, if it is 7 somewhat agitated or could be, by virtue of them being 8 there that, sometimes, not always, in fact many times 9 resolves it. 10 Q: And that will -- and the reaction of 11 the people to that presence, as the first use of force, 12 will depend on what their motives are, in relation to the 13 -- in -- in relation to the situation; isn't that 14 correct? 15 A: Correct. 16 Q: So if you are confronting people who 17 have a belief in the rightness of their cause, they're 18 going to react potentially differently to somebody whose 19 involved in a matrimonial dispute; isn't that a fair 20 comment? 21 A: It's a reasonable analogy, yes, sir. 22 Q: Right. And indeed, in terms of any 23 use of force, particularly if you are dealing with people 24 who believe in the rightness of their cause, you could 25 anticipate that there may be a reaction to that that is
1691 not simply acceptance of the fact that the wishes of the 2 law enforcement authorities should be complied with, 3 correct? 4 A: It's possible, sir, entirely 5 possible. 6 Q: Now I just want to turn to a slightly 7 different topic. 8 Mr. Downard examined you at length about 9 whether or not the occupiers in this particular situation 10 had the support of the local community; do you recall 11 that line of questioning? 12 A: I do. 13 Q: And in your experience in dealing 14 with policing issues relating to whether it's dissidents 15 or minority groups or whatever, you will agree with me 16 that the rights of individuals, in terms of how they're 17 treated by the police, does not depend on how popular 18 they are within the local community, correct? 19 A: Correct. 20 Q: And indeed, it doesn't depend on 21 whether or not they have the support of the local 22 community? 23 A: Correct. 24 Q: And you're aware because you are 25 involved, you, personally, and the OPP in enforcement
1701 scenarios, that quite often civil rights are established 2 by unpopular groups, are you -- you're familiar with that 3 as a dynamic; are you not? 4 A: I agree. 5 Q: Whether we talk about the -- the 6 bathhouse raids of twenty (20) years ago or whether we 7 talk about Jehovah's Witnesses in Quebec or any number of 8 other situation that we can think of where civil rights 9 were really established or rights of particular groups 10 were established at a time when they were -- they did not 11 necessarily enjoy the support of the local community; 12 isn't that correct? 13 A: Correct. 14 Q: And you were questioned by Mr. 15 Downard, if you'll recall, about some political material 16 and statements that were made about First Nations people 17 being treated the same as everybody else, with the 18 suggestion perhaps that you misunderstood that comment, 19 that that was meant to be a pro First Nation comment. 20 Do you recall that line of questioning? 21 A: I do. 22 Q: And you, again, will agree with me 23 that in terms of a statement like, Such and such a group 24 should be treated the same as everybody else, that could 25 either be a favourable comment towards that group or a
1711 very unfavourable comment towards that group depending on 2 context, correct? 3 A: I agree. 4 Q: And just so that everyone understands 5 what we're talking about, it's nothing whatever to do 6 with First Nations, but if you and I were driving around 7 a parking lot, having trouble finding a spot to park, and 8 I said to you, I think handicapped people should be 9 treated the same as everybody else, you would understand 10 that not to be a comment favourable to handicapped 11 people's rights, correct? 12 A: Agreed. 13 Q: And you were in a meeting where these 14 kinds of comments were made and in that -- in the context 15 of that meeting you had no doubt that these comments were 16 not being made in favour of rights of First Nations 17 People, these were being made in favour of curtailing the 18 rights of First Nations People, correct? 19 A: That was my take on it, sir. 20 Q: And that was elaborated on by 21 comments such as the stop-pandering comment and so on, 22 correct? 23 A: Yes, sir. 24 Q: And, sir, you're a citizen of this 25 province and, no doubt, you were aware that there had
1721 been an election conducted a few -- a short period 2 earlier than these events, and did you stop at any point 3 in that meeting and say, You know, I -- I didn't -- maybe 4 I'm misunderstanding what I'm hearing because during the 5 campaign I thought the Progressive Conservatives were in 6 favour of the rights of First Nations; that thought never 7 crossed you mind, did it? 8 A: No, sir. 9 Q: Then the next topic that somewhat 10 flows from that, you made some comments about simplicity 11 versus complexity that I found very interesting; do you 12 recall your comments along those lines? 13 A: I do. 14 Q: And if I may try to summarize what I 15 understood you to be saying, Superintendent Fox, you were 16 talking about the fact that if decisions are made without 17 a full understanding of the facts, they can very easily 18 be the wrong decisions, correct? 19 A: Correct. 20 Q: And to simply apply what may appear 21 to be common sense to a situation which one doesn't 22 really understand doesn't necessarily lead to good 23 results; would you agree with that? 24 A: Agreed. 25 Q: And, in fact, simplicity, very often
1731 and when it's in disregard of important facts, can lead 2 to stereotyping and dealing with people in a stereotyped 3 way, rather than in -- in an appropriate fashion? 4 A: That's possible. And I do want to 5 qualify, sir, when I say "simplicity," there's certainly 6 many times we should employ a tactic of simplicity in 7 dealing with situations. I think what I'm really saying 8 is to ignore the complexity. 9 Q: Right. Right. And -- and we're not 10 talking at this point about implementation, we're talking 11 about making decisions based on a full knowledge and 12 appreciation of the facts? 13 A: Yes, sir. 14 Q: And especially about making decisions 15 without ignoring facts that are unpleasant or don't fit 16 your particular theory? 17 A: Correct. 18 Q: And you were dealing with an 19 Interministerial group, Superintendent Fox, which is, I 20 would suggest, a very important group in terms of 21 exercising leadership in this difficult situation; wasn't 22 -- isn't that correct? 23 A: I would say the Committee would take 24 on that mantle, sir. 25 Q: Right. Certainly very informative in
1741 terms of the decisions that political actors are likely 2 to make, it was a -- it played a key role in that. 3 A: It should, yes, sir. 4 Q: And, if anything, a Committee such as 5 that, one would hope take an interest in exploring the 6 facts rather than coming up with simplistic analyses of 7 what the problem might be, correct? 8 A: Yes, sir, but in responding, too, I 9 do not want to leave the Commissioner or the Commission 10 with the notion that everyone on this Committee -- 11 Q: Understand -- 12 A: -- was taking that view. 13 Q: I understand completely and you've 14 been very fair in making that comment and if I may say 15 so, I -- it just adds to the -- adds to your evidence. 16 Now, I want to focus briefly on the dining 17 room meeting, if I may, and just make sure that I've got 18 certain facts about that meeting correct. 19 Some of this is -- is a bit repetitive, 20 but bear with me. 21 You were called to the meeting, correct? 22 A: That is correct. 23 Q: You had just recently been at an 24 Interministerial meeting, correct? 25 A: Correct, sir.
1751 Q: You did not have anything new to 2 report beyond what you had reported at the 3 Interministerial meeting; is that correct? 4 A: That's correct. 5 Q: You assumed that everything you said 6 at the Interministerial meeting had been or would be 7 reported back to the cabinet members who were represented 8 at that meeting, correct? 9 A: That was my assumption sir, yes. 10 Q: And in addition to the information 11 you provided to that meeting, which everyone at the IMC 12 would have heard, everyone at the IMC was also aware of 13 some fairly strong views that you expressed at that 14 meeting, correct? 15 A: I believe they were. 16 Q: And they were aware that in 17 expressing those views, you had strongly disagreed with 18 views expressed by the representative of the Premier at 19 that meeting, correct? 20 A: Yes, sir. 21 Q: And just to be clear, the word 22 'empowered' means that you understood and it seems clear 23 that others understood that Ms. Hutton was representing 24 the premier at the meeting; that's what you meant by 25 that?
1761 A: That's my use of the word, sir, yes. 2 Q: Yeah. And so in effect, when you 3 were at the IMC and you were vigorously and openly 4 disagreeing with Ms. Hutton, you were also implicitly 5 challenging what everyone would have understood were the 6 views of the Premier? 7 A: Yes, sir, I suppose I would have 8 been. 9 Q: Okay. Now, then you were called to 10 the dining room and the first thing that happened when 11 you got to the dining room is the Premier told you 12 directly, pretty much what -- 13 MR. PETER DOWNARD: No. 14 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 15 Downard? 16 MR. PETER DOWNARD: No evidence that the 17 Premier ever spoke to this man directly. His own 18 evidence was he spoke to the meeting. His evidence was 19 he walked in on the tail end of the Premier speaking and 20 he was there in the presence of the Premier for three (3) 21 to five (5) minutes on him. 22 MR. WILLIAM HORTON: Oh no. 23 COMMISSIONER SIDNEY LINDEN: All right, 24 Mr. Downard. 25 MR. WILLIAM HORTON: Commissioner --
1771 COMMISSIONER SIDNEY LINDEN: He repeats 2 the evidence correctly. Yes, Mr. Horton...? 3 MR. WILLIAM HORTON: No, Commissioner. I 4 think it's much more nuance than that, the evidence, but 5 I don't want to engage in this game of going over what 6 the evidence does and does not say. 7 The evidence will speak for itself on this 8 point. 9 10 CONTINUED BY MR. WILLIAM HORTON: 11 Q: The first thing that happened when 12 you walked into the room, the first thing you remember 13 happening when you walked into the room in terms of 14 anybody saying anything other than introducing you was 15 the Premier telling you his views or telling the -- let's 16 put it this way, the Premier expressing his views on the 17 OPP's handling of this matter, correct? 18 A: Correct. 19 Q: Okay. 20 COMMISSIONER SIDNEY LINDEN: That's a 21 more accurate way to put it -- 22 MR. WILLIAM HORTON: Okay. 23 COMMISSIONER SIDNEY LINDEN: Thank you, 24 Mr. Horton. 25
1781 CONTINUED BY MR. WILLIAM HORTON: 2 Q: And -- and what the Premier had to 3 say to you -- what the Premier had to say to you and 4 everyone else who was in that room was confirmatory of 5 what Ms. Hutton had said to you in -- in a representative 6 capacity, only a few -- only a couple of hours earlier, 7 correct? 8 A: Correct. 9 Q: So, you heard from the Premier 10 directly what his representative had previously told you, 11 correct? 12 A: Correct. 13 Q: All right. And, having done that, 14 having said that, the premier left the meeting, correct? 15 A: Yes, sir. 16 Q: The premier did not wait to hear any 17 report from you or hear any views from you on the subject 18 whatsoever, correct? 19 A: No, sir. 20 Q: No, sir, meaning you agree with me? 21 A: Yes. 22 Q: So, if there was any doubt in 23 anybody's mind that Deb Hutton correctly represented the 24 views of the Premier at the Interministerial meeting, it 25 was certainly put to rest by the Premier, himself, a
1791 couple of hours later and he let everyone know that his 2 views were the same, correct? 3 A: It was in my mind, sir. 4 Q: Now, Superintendent Fox, you were not 5 personally involved in the events that led to the crowd 6 management unit going down the road; am I right? 7 A: No, sir. 8 Q: And, you cannot speak to what 9 happened in that regard from your personal knowledge? 10 A: No, I cannot. 11 Q: And, you cannot express any opinions 12 in that regard based on your personal knowledge, correct? 13 A: No, sir. 14 Q: Meaning you agree with me? 15 A: Yes. 16 Q: But, Superintendent Fox, you -- you 17 did know then-Inspector Carson who commanded the 18 incident, correct? 19 A: I did, yes. 20 Q: And, you knew him quite well? 21 A: I would say so, sir, yes. 22 Q: And, you commended him to the IMC 23 meeting. You said good things about him and his policing 24 abilities and so on to the IMC, correct? 25 A: I did.
1801 Q: And so, you certainly had a high 2 opinion of Inspector Carson? 3 A: That would be correct, sir. 4 Q: All right. And, based on what you 5 knew of Inspector Carson, I suggest to you that you did 6 not think of him as someone who would take actions with 7 serious consequences without first checking the facts 8 assuming he had the time to do so; is that a fair 9 statement? 10 A: Certainly it's been my experience 11 with Inspector Carson, now Deputy Commissioner Carson, 12 that he took into consideration all that he could 13 possibly take into consideration -- 14 Q: All right. 15 A: -- in making his decisions -- 16 Q: All right. 17 A: -- be they incident-related or day- 18 to-day. 19 Q: All right. So, you did not think of 20 him as someone who would take serious action if he had 21 the ability to find out the facts and didn't do so? 22 A: No, I wouldn't agree that he was that 23 way inclined. 24 Q: He was not that kind of person. You 25 would not think of him as someone who would send his
1811 officers into harm's way without briefing them on 2 reasonably foreseeable risks to themselves or to others? 3 A: I would agree with that statement. 4 Q: Or seeing that they were briefed, 5 obviously, he may not do it directly, correct? 6 A: Yes. 7 Q: You would not see him as an 8 individual who would overreact to a situation that he 9 might be presented with? 10 A: I have not found him to be that way, 11 sir. 12 Q: Now, as a commander, Superintendent - 13 - Superintendent Fox, you've been involved in commanding 14 many men, many women, officers of the OPP, correct? 15 A: Yes, sir. 16 Q: In you current situation you 17 commanded incident commanders; is that right? 18 A: I am a Level 2 incident commander, 19 yes. 20 Q: All right. And, is it your 21 experience that when people make simple but serious 22 errors of judgment, that often it's because they're 23 acting under pressures they're not used to dealing with? 24 A: There are other causatives, but 25 that's certainly one (1) of them, yes, sir.
1821 Q: And, that's what training is all 2 about, isn't it? 3 A: Yes, it is, skills based training, 4 yes. 5 Q: Right. It's to -- it's to subject 6 people to pressure in a training situation that they 7 might encounter in real life, correct? 8 A: Yes, sir. 9 Q: And then, they're less likely to make 10 serious errors in judgment, at least for that reason? 11 A: That's the concept, yes, sir. 12 Q: Okay. And, certainly, there was 13 nothing in 1995, and we'll hear whether there was 14 anything more recently, to prepare senior officers of the 15 OPP for dealing with situations where the Premier himself 16 expressed views as to how they had conducted themselves 17 or were conducting themselves; is that a fair comment? 18 A: There's nothing, sir, in policy and 19 there is no training that I am aware of that we provide 20 organizationally to prepare members, senior level or 21 otherwise for that, no. 22 Q: No. And, certainly, in your 23 experience, Inspector Carson has already told us in his 24 experience, it was an unprecedented matter to be involved 25 in a situation where the Premier was expressing views
1831 directly on the adequacy and in particular the inadequacy 2 of OPP operations and response; is that fair? 3 A: I -- I don't recall in my time words 4 happened -- coming forth. 5 Q: So, there was nothing -- 6 COMMISSIONER SIDNEY LINDEN: Excuse me. 7 MR. WILLIAM HORTON: -- to prepare -- 8 COMMISSIONER SIDNEY LINDEN: Just a 9 minute, Mr. Horton. 10 Mr. Downard -- Yes, Mr. Downard...? 11 MR. PETER DOWNARD: My Friend is not -- 12 not fairly putting the evidence -- 13 COMMISSIONER SIDNEY LINDEN: I'm sorry, I 14 can't hear you, Mr. Downard. 15 MR. PETER DOWNARD: My -- My Friend is 16 not fairly describing the events of the dining room 17 meeting. This Witness's own evidence is that the clear 18 conclusion of the meeting was that anything that police 19 were going to do was going to be up to the police and not 20 politicians. His evidence was crystal clear. 21 And it is -- in my submission, it is 22 intellectually dishonest and inappropriate. I'm not 23 attacking character. It is inappropriate for Mr. Horton 24 and Mr. Falconer to be seeking to -- to distort and 25 present an inaccurate depiction of what that meeting
1841 said. 2 The only way an inaccurate reflection of 3 that -- of that result could have gotten to Incident 4 Commander Carson is through this Witness. But that -- 5 that meeting concluded clearly, this Witness has said it 6 time and again, that decisions that police were to take 7 would be for the police, not for politicians. 8 MR. WILLIAM HORTON: Commissioner -- 9 COMMISSIONER SIDNEY LINDEN: I'm not sure 10 what the objection is specifically. 11 MR. PETER DOWNARD: The objection is that 12 My Friend is -- is misstating the facts in an immaterial 13 and incomplete fashion and is misleading the public, 14 although I'm sure he does not intend to, but in this 15 context where arguments get translated into news as if 16 they were a fact, it is important, in my submission, 17 where one is dealing with the reputation and character of 18 individuals, that Counsel conduct themselves in a 19 scrupulous and responsible fashion. 20 COMMISSIONER SIDNEY LINDEN: Yes. All 21 right. 22 MR. WILLIAM HORTON: Commissioner, we are 23 -- I don't know what percentage of the way we are through 24 the Inquiry, but we've not heard all the evidence, number 25 1.
1851 Number 2, the evidence that you have heard 2 suggests many different conclusions and many different 3 interpretations, including some that are not nearly so 4 favourable to Mr. Downard's plans, as he may wish to 5 think they are. 6 COMMISSIONER SIDNEY LINDEN: But this is 7 for argument. 8 MR. WILLIAM HORTON: This is for 9 argument. 10 COMMISSIONER SIDNEY LINDEN: Yes. 11 MR. WILLIAM HORTON: This is absolutely 12 for argument. And, in my submission, it is an abuse of 13 the process of this Inquiry for Mr. Downard to say, and 14 I'm -- I'm not attacking character either, to -- to 15 simply use the objections as a soapbox for repeating his 16 interpretation of the evidence. 17 The evidence is quite capable of a 18 completely different interpretation and, frankly, the 19 thrust of this witness's evidence is -- speaks to a 20 different interpretation. 21 COMMISSIONER SIDNEY LINDEN: Well, I 22 don't want to hear the arguments now. And he did mention 23 you, Mr. Falconer -- 24 MR. JULIAN FALCONER: Yes. 25 COMMISSIONER SIDNEY LINDEN: -- so I
1861 should give you a chance to say something. 2 MR. JULIAN FALCONER: Thank you. Mr. 3 Commissioner, Counsel does have to be scrupulous and 4 responsible when asking questions and when making 5 submissions. So my name was raised, so I'm going to be 6 scrupulous and responsible. 7 I asked this Witness whether Premier 8 Harris's account on May 29th, 1996, when he said he did 9 not express an opinion in front of the OPP was accurate, 10 and this Witness, in a scrupulous and responsible 11 fashion, testified no, he was not. 12 Now, Premier Harris, according to the 13 evidence we've heard so far, didn't tell the truth. 14 That's Mr. Downard's problem to deal with when his client 15 testifies. But for him to rise as he did and personally 16 criticize Counsel -- because this lawyerly way we have of 17 talking where, I'm not being critical of you but by the 18 way I'm going to call you a whole host of names -- 19 COMMISSIONER SIDNEY LINDEN: Yes. 20 MR. JULIAN FALCONER: -- it doesn't 21 actually fly. With respect, if Mr. Downard is going to 22 attack us, do it on a valid basis. Premier Harris has 23 been called by this Witness someone who doesn't set the 24 record straight in the House of the Province of Ontario. 25 And before he gets up and suggests
1871 otherwise, he should maybe make sure his client is 2 subjected to cross-examination, because we all have 3 questions for him. 4 COMMISSIONER SIDNEY LINDEN: I don't want 5 to hear the argument now. I really don't. I do not want 6 to hear the argument. I just want to have questions and 7 answers, appropriate questions. 8 I'd ask you to carry on, be careful with 9 your questions. If you're repeating evidence, make sure 10 you repeat it as accurately as you can, as I believe you 11 have. 12 But let's carry on. 13 MR. WILLIAM HORTON: Commissioner, I'll 14 take all of that to heart and not ask any more questions, 15 thank you. 16 COMMISSIONER SIDNEY LINDEN: Oh, well, 17 that's even better then. 18 MR. WILLIAM HORTON: Thank you very much 19 -- thank you very much, Superintendent Fox. 20 COMMISSIONER SIDNEY LINDEN: Thank you 21 very much. 22 We are now up to Mr. Rosenthal. 23 I just keep saying that. I hope with each 24 successive questioner, some of the questions that you had 25 in mind may have already been asked.
1881 MR. PETER ROSENTHAL: A great deal of 2 them have, sir, and I'm going to be quite brief. 3 COMMISSIONER SIDNEY LINDEN: Thank you 4 very much, Mr. Rosenthal. 5 MR. PETER ROSENTHAL: And, in fact, I'm 6 going to try and just fill in a few facts, basically. 7 8 CROSS-EXAMINATION BY MR. PETER ROSENTHAL: 9 Q: Afternoon, sir. 10 A: Sir. 11 Q: My name is Peter Rosenthal, I'm one 12 of the Counsel on behalf of a group of Stoney Point 13 people under the name Aazhoodena and George Family Group. 14 And given previous questioning of you, I will be quite 15 brief. 16 A: Thank you. 17 Q: One question, just briefly, on 18 colourful language. I'm familiar with all the colourful 19 language you used, except for the question of barrel 20 suckers, and before you came here, there was -- a lot of 21 us were talking about it; what does that possibly mean. 22 But apparently it is a -- a fairly 23 standard phrase among people who know about guns and so 24 on, meaning -- meaning somebody who really is in love 25 with guns; is that right?
1891 A: Yes, sir. 2 Q: So it's not such an unusual phrase in 3 policing and military circles as it is in legal circles, 4 apparently? 5 A: I suppose that to be correct, yes. 6 Q: Now there's another phrase that you 7 used, "redneck," and that is a phrase I think I'm 8 familiar with and I just wanted to make sure that you 9 used it in the same way as I would understand it, namely, 10 as a phrase that emanated from the American south meaning 11 a person who is racist and very aggressively so; is that 12 roughly what you had in mind, sir? 13 A: Could be taken that way, sir. As I 14 testified earlier, what my belief was in using the term 15 "redneck" is it's to have one specific focus and point of 16 view, and not considering others. 17 Q: But does it include an element of 18 racism in your view and your use of the word? 19 A: I wasn't using it in that context 20 here, sir. 21 Q: I see. 22 A: Could it be used that way? Yes, it 23 could. 24 Q: I see, okay, thank you. 25 Now, I would like to just fill out a few
1901 additional facts with respect to the September 6th 2 Interministerial Committee meeting, and I think the 3 easiest way to do that is -- would be if we could look at 4 Tab 31 of the Commission's brief. 5 6 (BRIEF PAUSE) 7 8 Q: Tab 31 has been made Exhibit P-517 to 9 these proceedings. It's document number 2003794, and it 10 consists of notes of your colleague Scott Patrick. 11 A: Yes, sir. 12 Q: You can see on the first handwritten 13 page that it begins with notes from 6th September, 1995. 14 A: I see that, sir. 15 Q: And then if you return to the second 16 handwritten page, I'd just like to highlight a couple 17 extracts from these notes and find out if it's consistent 18 with your memory as to what happened at that meeting on 19 September 6th. 20 At the top of the... 21 22 (BRIEF PAUSE) 23 24 COMMISSIONER SIDNEY LINDEN: These are 25 the handwritten notes?
1911 MR. PETER ROSENTHAL: These are the 2 handwritten notes, yes. 3 4 CONTINUED BY MR. PETER ROSENTHAL: 5 Q: The top of the second handwritten 6 page reads: 7 "D. Hutton, Premier last night, OPP 8 only maybe MNR out of Park only, 9 nothing else." 10 Now that appears to be a summary that your 11 colleague wrote of remarks that Ms. Hutton said towards 12 the beginning of this meeting; is that correct? 13 A: Correct. 14 Q: So she was reporting that she had 15 spoken to or gotten information from the Premier just the 16 night before and she was reporting on that information to 17 the meeting? 18 A: It's the way I took it, sir. 19 Q: And so that was information she would 20 have gotten after the September 5th meeting and prior to 21 the September 6th meeting of the Interministerial 22 Committee? 23 A: I can only assume that to be correct, 24 yes. 25 Q: And in particular, that included, she
1921 transmitted what the Premier wanted was, "out of Park 2 only, nothing else," right? 3 A: Yes, sir. 4 Q: And then if we turn the page, please. 5 On the next handwritten page, approximately a third of 6 the way down, again it says: 7 "D. Hutton, [something], re-releases.÷ 8 And then the third line there is: 9 "Want to be seen as actioning." 10 Is that correct? 11 A: Yes, sir. 12 Q: And just to refresh your memory that 13 Ms. Hutton indicated that they wanted to be seen as, 14 "actioning?÷ 15 A: Yes, sir. 16 Q: And you -- you took that, did you 17 not, as they wanted something to be done, something 18 visible to be done; right? 19 A: I -- I took that, sir, that they 20 wanted something to be done and as I recall, from the 21 context of others' notes that I've referred to and been 22 referred to, that it spoke to the first term of new 23 government and they had to be seen to be actioning or 24 taking action on a given issue. 25 Q: Right. Thank you. And then, at the
1931 bottom of the -- that page, it says, "PMO," that would 2 have stood for Prime Minister's Office; would it? 3 A: I'm assuming so, yes. 4 Q: "And the longer they occupy a major 5 crisis, what about Criminal Code?" 6 Now, am I correct in understanding that 7 you would have taken that as meaning that the Prime 8 Minister's Office was saying, We don't want this to go on 9 very long, what about just using the Criminal Code to 10 deal with this? 11 A: And I believe that was being said, 12 yes. 13 Q: And that -- and that's what was said, 14 in fact? 15 A: Yes. 16 Q: And on the next page, in the middle 17 of the page, it says -- well, first at the top of the 18 page it says, "Ron," that's -- that's you? 19 A: Yes. 20 Q: And this is a fairly accurate 21 although incomplete summary of what you said; is that 22 correct? 23 A: Yes, sir. 24 Q: And in particular, you said, among 25 other things, that you appreciate the premier's concern,
1941 but -- but should we rush in -- I -- I presume you meant 2 that we should not rush in, we should take it step by 3 step, or something to that effect; is that correct? 4 A: That's correct. 5 Q: And there's an indication there was a 6 discussion of opposing views and then, if we continue 7 towards the next page, the next page appears to be the 8 last notes from this meeting and presumably therefore 9 towards the very end of the meeting, a few lines down it 10 reads: 11 "Discussion re -- re removal of 12 trespass." 13 Right? See that, sir? 14 A: Yes, sir. 15 Q: That was, again, a discussion about 16 removal based on the Trespass to Property Act as opposed 17 to an injunction? 18 A: Yes, it circled back to that, sir, 19 yes. 20 Q: I'm sorry? 21 A: The meeting circled back to that, 22 yes. 23 Q: Yes. And then, at the end of the 24 notes, it says: 25 "Seeking injunction. [And then} OPP
1951 asked to remove trespassers." 2 Correct? 3 A: Yes, correct. 4 Q: So that's the way the meeting ended, 5 more or less, on September 6th just before you -- or a 6 couple of hours before you went to the dining room 7 meeting? 8 A: Correct. 9 Q: Now it appears that at the September 10 5th and September 6th meetings there was much discussion 11 about the propriety of using only the Criminal Code and 12 Trespass Act versus an -- waiting for an injunction; much 13 discussion about whether the OPP could be directed by 14 politicians or only asked to do things by politicians and 15 so on; right? 16 A: That's -- that's fair, a fair 17 assessment. 18 Q: And I -- I gather that you were of 19 the view that there should have been other things 20 discussed such as what possible real negotiations could 21 be entered into to solve this problem in a more 22 meaningful way; isn't that fair? 23 A: That's reasonable. 24 Q: And you mentioned, for example, I 25 believe in your testimony the possibility of offering co-
1961 management of the Park or considering something like 2 that; right? 3 A: Yes, I did. 4 Q: And it seems that because there was 5 such an insistence by the prime minister's office, in 6 particular on actioning, there was no time left for 7 serious consideration of a reasonable negotiated position 8 that might have ended this thing in a more reasonably 9 way; is that a fair comment? 10 A: I think, sir, to be fair to those who 11 were there and on the committee -- 12 Q: Yes. 13 A: -- there -- there was considerable 14 discussion. I don't believe that it was ever one (1) of 15 those things that was agreed to -- 16 Q: Yes. 17 A: -- as being entirely necessary. 18 Q: And even if there had been an 19 injunction granted, it would still be necessary to 20 consider how to deal with the people beyond removing them 21 by force; right? 22 A: Oh, absolutely. And I -- and I have 23 considered this, Your Honour, in -- in terms of past 24 responses and I spoke to a court of competent 25 jurisdiction in terms of hearing the injunction, not for
1971 a minute did I see that as an imposition on the presiding 2 judge to make a decision that would be that impactful to 3 the problem at hand. 4 Q: Yes. So you were concerned about 5 finding some more meaningful solution, such as co- 6 management or whatever would be appropriate, would apply 7 whether you're seeking an injunction or not; right? 8 A: Yes, sir. 9 Q: Now the -- just briefly with respect 10 to when there arose the information that there might have 11 been a burial ground in the Park and that should be 12 considered, if you could please turn to Tab 13 of the 13 Commissioner's brief, which is Inquiry Document Number 14 3001086 and Exhibit P-505, and appear to be the notes of 15 Ms. Jai of a conversation on August 2nd, 1995; do you 16 have that in front of you, sir? 17 A: I do, sir. 18 Q: Approximately in the middle of that 19 page we find: 20 "They now allege there was a burial 21 ground in the Park, also the Kettle 22 Point." 23 Now is that information that you conveyed 24 to Ms. Jai on this occasion, sir? 25 A: I believe that I -- I believe that I
1981 did, but I think, in fairness, it was also a matter that 2 was in the media -- 3 Q: I see. 4 A: -- that others would be reading at 5 that point in time. 6 Q: I see. So already by August 2nd, 7 1995, a month before the occupation of the Park, it was 8 known in the circles of the Interministerial Committee, 9 that there was at least an allegation of the burial 10 ground in the Park; is that correct? 11 A: That's reasonable. 12 Q: Now just to amplify a bit on 13 something raised by Mr. Horton about what true equality 14 is or what treating people equally means. I gather, sir, 15 that you're a person whose sensitivity and knowledge of 16 First Nations People has led you to understand that 17 they've been treated rather badly in many ways in Canada 18 for several hundred years; is that a fair summary? 19 A: I would agree. 20 Q: In fact, quite the opposite of what 21 Mr. Harris maintained, they haven't pandered to, they've 22 been discriminated against and treated very poorly with 23 respect to all sorts of rights; isn't that fair? 24 A: In my mind, yes. 25 Q: And so, given that understanding,
1991 sir, am I correct in characterizing that Mr. Harris -- 2 Mr. Harris's position you might view or it might be a 3 reasonable view of his position, that, Okay, well, we've 4 treated you that badly, we've destroyed your way of 5 living, we've taken all your lands and so on, but from 6 now on let's start the same, you with your disadvantage 7 and me with my advantage; that's the notion of equality 8 that he seemed to be talking about, isn't that right? 9 MR. DERRY MILLAR: Well, I don't -- 10 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 11 Millar...? 12 MR. DERRY MILLAR: -- think that this 13 Witness can answer that on behalf of Mr. Harris. 14 15 CONTINUED BY MR. PETER ROSENTHAL: 16 Q: No. That would be a reasonable 17 interpretation from the point of view of a person who is 18 sensitive to what has really happened to First Nations 19 People of his position; isn't that fair? 20 A: If I can answer it this way, sir, it 21 -- it's my opinion that to treat everybody exactly the 22 same is in fact a demonstration of inequality. 23 Q: Yes. Especially with respect to 24 people who have been mistreated in the past and are very 25 disadvantaged by that mistreatment; isn't that fair?
2001 A: I think even more so for people in 2 that position, but I think for all people, sir. 3 Q: Yes. Thank you. And in fact, as you 4 are aware, our equality section in our Charter of Rights 5 and Freedoms recognizes that with the affirmative action 6 section of the Charter that indicates that you can have 7 programs to try to deal with past disadvantage and a true 8 notion of equality has to include that; isn't that fair? 9 A: I agree with that. 10 Q: Thank you very much, sir. Thank you, 11 Mr. Commissioner. 12 COMMISSIONER SIDNEY LINDEN: Thank you, 13 Mr. Rosenthal. 14 Yes, Mr. Scullion...? 15 16 (BRIEF PAUSE) 17 18 MR. KEVIN SCULLION: Mr. Commissioner, 19 we've taken your comments to heart and I can advise that 20 the areas of issue for my clients have been sufficiently 21 covered that we don't have any additional questions for 22 Mr. Fox. 23 COMMISSIONER SIDNEY LINDEN: Thank you, 24 Mr. Scullion. 25 Mr. Henderson, I think -- oh, yes, Mr.
2011 George. 2 MR. JONATHON GEORGE: Good afternoon, 3 Commissioner. I think I originally estimated about a 4 half hour. I'll be much shorter than that; I'll be quite 5 brief, actually. 6 7 CROSS-EXAMINATION BY MR. JONATHON GEORGE: 8 Q: Good afternoon, Superintendent Fox. 9 A: Good afternoon. 10 Q: My name is Jonathon George and, along 11 with Mr. Henderson who's seated behind me, we represent 12 the Chippewas of Kettle and Stony Point and several 13 individual witnesses who have already testified at this 14 Inquiry, including Chief Tom Bressette and an individual 15 by the name of Bob Watts who was employed by the Ontario 16 Government at ONAS between 1991 to 1994. 17 Now you've obviously heard of Chief 18 Bressette and back -- going back to 1995 we're well aware 19 of his position vis-a-vis the occupation of the 20 Provincial Park; is that fair? 21 A: Correct. 22 Q: Okay. And do you know Chief 23 Bressette; had you ever met him? 24 A: In 1995, I had not, sir. 25 Q: Okay. You have since then.
2021 A: I have, yes. 2 Q: Okay. Now, I think it's clear from 3 your testimony as I just indicated, that you were aware 4 of Chief Bressette's position respecting the occupiers 5 and I take it, sir, that that was based on a couple of 6 things including, perhaps, media reports you saw and on 7 information you had gained from others, including John 8 Carson? 9 A: That's correct, sir. 10 Q: Okay. And do you recall on perhaps 11 how many occasions you spoke to Mr. Carson as to -- then 12 Inspector Carson as to the views of Chief Bressette? 13 A: I think probably the maximum would 14 have been on two (2) occasions. 15 Q: Okay. And were you aware, 16 Superintendent Fox, of -- of John Carson himself being in 17 contact with Chief Bressette prior to and immediately 18 after the events of September the 6th? 19 A: I was. 20 Q: And that was part of the discussions 21 you've just spoke about? 22 A: It was. 23 Q: Okay. And I take it it was during 24 these conversations that John Carson shared with you the 25 information he got from Chief Bressette with respect to
2031 that issue? 2 A: With respect to what -- what the 3 Chief's position was prior to, yes. 4 Q: Okay. And did John Carson or any 5 other representative of the Ontario Provincial Police at 6 any point share with you, if anything, any information he 7 got from Chief Bressette as to what -- let me start 8 again. 9 Did -- did John Carson or any other 10 representative of the Ontario Provincial Police indicate 11 to you what, if any, information was conveyed to Chief 12 Bressette with respect to OPP intentions? 13 A: No, sir. 14 Q: Okay. Now, Bob Watts, as I 15 indicated, was employed at ONAS between 1991 to 1994, and 16 do you know Bob Watts? 17 A: I don't, but by reputation. 18 Q: Okay. You've never met Bob Watts? 19 A: Not to the best of my knowledge. 20 Q: Okay. And did you know him or had 21 you heard of him by reputation back in 1995? 22 A: Yes. In fact, he was identified to 23 me and I'm going to say by a member of ONAS staff, as 24 someone who may or perhaps could have been identified to 25 act in a fact finding fashion or manner.
2041 Q: Okay. And beyond that did you know 2 anything else about Bob Watts? 3 A: No, I did not. 4 Q: Okay. Now did you, in preparation 5 for your testimony here, become aware of Bob Watts as a 6 witness here at the Inquiry? 7 A: I became aware of him in looking at 8 the internet site and reviewing the transcripts, yes. 9 Q: So I take it you're aware of the 10 testimony he gave back on March 8th of this year? 11 A: Generally, yes. 12 Q: Okay. Now just to refresh your 13 memory, Superintendent Fox, I'm just going to read a very 14 brief portion of that testimony which, for My Friends, is 15 found at page 41 of the transcript of March 8th. 16 Now Bob Watts was asked about September 17 the 6th and a phone call he received on the morning of 18 September the 6th, and the answer Bob Watts gave was: 19 "Well, late morning I think it was 20 probably around eleven o'clock or so, I 21 received a phone call from -- from 22 someone who works for the government of 23 Ontario who told me that there had just 24 been a meeting of the Blockade 25 Committee and that that person had been
2051 informed that at the Blockade 2 Committee, a statement was made to get 3 those f-ing Indians out of the Park and 4 use guns if you have to." 5 And he -- he went on to speak about him 6 relaying that information to Chief Bressette and he 7 ultimately disclosed that the person who conveyed that 8 information to him was a person by the name of Leslie 9 Currie. 10 Do you know Leslie Currie? 11 A: I have met Leslie Currie, yes. 12 Q: Okay. And did you know Leslie Currie 13 back in September of 1995? 14 A: Yes, I would have met her then. 15 Q: Okay. And you knew her as who? 16 A: I believe Leslie Currie. 17 Q: Was -- was she a staff member at 18 ONAS? 19 A: Worked for ONAS, yes. 20 Q: Okay. And was she at any point a 21 part of the IMC meetings you attended? 22 A: If I recall correctly, I think her 23 involvement came afterwards when it went from an IMC into 24 a support group, but I can't be certain of that. 25 Q: Okay. And Bob Watts further
2061 testified that -- and you'll have to appreciate that we 2 haven't heard from Leslie Currie or Julie Jai or Deb 3 Hutton to this point, but the -- the testimony of Bob 4 Watts was that Leslie Currie gained that information from 5 Julie Jai who attributes the statement to Deb Hutton. 6 Now, Julie Jai and Deb Hutton were both at 7 the IMC meetings of September 5th and September 6th? 8 A: Correct. 9 Q: Okay. And I -- I just set that as a 10 background, Superintendent Fox, because I -- I wanted to 11 canvass with you a little bit, Ms. Perschy's questions to 12 you of -- of last Thursday morning, I believe, July 14th. 13 Do you recall Ms. Perschy on behalf of Debra -- Deb 14 Hutton asking you questions? 15 A: I do. 16 Q: Okay. And she spoke to you a little 17 bit about and -- and this will be somewhat repetitive, 18 Commissioner, but -- but I am getting somewhere other 19 than to simply repeat previous examinations. 20 Now we all know that, in the September 6th 21 conversation with John Carson, you -- you told him and 22 we've -- we've dealt with this several times that we're 23 dealing with a real redneck government, they just love 24 guns. 25 Do you recall saying -- making the comment
2071 about loving guns? 2 A: I do. 3 Q: Okay. And you confirmed with Ms. 4 Perschy that no one at the meeting had actually said they 5 loved guns? 6 A: That's correct. 7 Q: Okay. You gave that testimony last 8 Thursday morning and you -- you were quite certain when 9 you answered Ms. Perschy's questions that clearly no one 10 had said that at the meeting, but you conveyed that to 11 John Carson, nonetheless? 12 A: I conveyed that, yes and I qualified 13 it in terms of what I meant. 14 Q: Sure. And -- but I take it from your 15 testimony and you've indicated this several times before 16 that you stand by your comments to John Carson. In -- in 17 retrospect you'd wished you had chosen different words, 18 but the impression you gained and conveyed to him, you -- 19 you stand by that? 20 A: Correct. 21 Q: Okay. And clearly, although not a 22 verbatim quote, that was an impression you gained? 23 A: That's correct. 24 Q: Okay. And another impression you 25 gained and I'll deal with just the IMC meetings of both
2081 September 5th and 6th, was that Deb Hutton, on behalf of 2 the premier, was advocating a forceful approach to 3 removing the occupiers from the Park? 4 A: I would -- I would say that you were 5 correct that the -- the approach would be one of -- of 6 being forceful in terms of immediate, yes. 7 Q: Okay. Was the word, "force," 8 actually used or was that, again, your impression which 9 was, in turn, conveyed to John Carson? 10 A: No, the term, "forceful," was used as 11 I recall and I think it was in the context of it being a 12 new government and that the government would be measured, 13 if you will, by the activities that they undertook with 14 respect to this matter. 15 Q: Okay. And Superintendent Fox, it was 16 this reference to force and the attitude that you've 17 already talked to us about that was exhibited by Ms. 18 Hutton and later from Mr. Harris himself, which led you 19 to use that phrase, "they love guns;" that's what led you 20 to form that impression and convey that information to 21 John Carson? 22 A: That's -- that's correct. 23 Q: Okay. Is there anything else you'd 24 like to add to that? 25 A: No.
2091 Q: Okay. And again, notwithstanding the 2 poor choice of words, you stand by that impression and 3 you stand by the information you conveyed to John Carson? 4 A: That's correct. 5 Q: Okay. And -- and there's just one 6 (1) other matter I'd like to get straightened out with 7 respect to -- to that issue. Just so we're all clear. 8 The impression you gained of the 9 government and Premier Harris and Deb Hutton and -- and 10 others in the Cabinet, just so we're clear, that wasn't 11 an impression you gained simply from being in the 12 presence of Premier Harris for the three (3) or four (4) 13 minutes you were at -- at the dining room meeting? 14 A: No. I've -- I've testified 15 previously that it was a culmination of my experiences to 16 date. 17 Q: Okay. 18 A: To date, meaning up until the 6th. 19 Q: And -- and just dealing with 20 September 5th and 6th, you had spent three (3) hours with 21 Deb Hutton on the 5th, in that meeting? 22 A: Yes. 23 Q: And I can't recall specifically how 24 long you were in the meeting on the 6th but, again, it 25 was a significant period of time; correct?
2101 A: Correct. 2 Q: Okay. Now on -- staying on July 14th 3 and the questions that Ms. Perschy asked you, in -- in 4 addition to asking about the comments of -- of the 5 government loving guns, she asked you about whether or 6 not anyone at the meeting said, Get the f'ing Indians out 7 of the Park even if you have to use guns to do it, and I 8 -- I noted when I listened to your answer to that 9 question, Superintendent Fox, and as I read the 10 transcript, you weren't so certain in response to that. 11 And my characterization of your -- your 12 answer to that question was you don't recall those words 13 being used; do you recall giving that answer? 14 A: I do. 15 Q: Okay. And do I take from that, 16 Superintendent Fox, that youĂre a little less certain 17 about that, as opposed to the, "they love guns," comment? 18 A: No. 19 Q: Okay. Now you've described Deb 20 Hutton as being adamant at both meetings; right? 21 A: I'm sorry, I didn't hear you. Being 22 which? 23 Q: Adamant. She was adamant in her view 24 that she was -- 25 A: Yes.
2111 Q: Okay. You described her as being 2 confident and cocky? 3 A: I did. 4 Q: Okay. And you described there being 5 polarized views in the room, and I think it was clear, 6 and you can correct me if I'm wrong, that Deb Hutton 7 clearly represented that one extreme view? 8 A: It's reasonable. 9 Q: Okay. And the extreme view being 10 that, We don't consider the things you are suggesting but 11 that simply the occupiers be removed from the Park? 12 MR. PETER DOWNARD: Mr. Commissioner, I - 13 - I don't want to be on my feet so much -- 14 COMMISSIONER SIDNEY LINDEN: You don't 15 have to apologise -- 16 MR. PETER DOWNARD: My Friend is 17 misstating -- 18 COMMISSIONER SIDNEY LINDEN: -- make your 19 point. 20 MR. PETER DOWNARD: -- the evidence. The 21 evidence was that at the end of the first 22 Interministerial Committee meeting Ms. Hutton supported 23 an injunction. The witness was very clear on that. 24 COMMISSIONER SIDNEY LINDEN: Yes. At the 25 end of the meeting everybody, including Ms. Hutton --
2121 MR. JONATHON GEORGE: Okay. 2 COMMISSIONER SIDNEY LINDEN: -- supported 3 the notion of an injunction. 4 5 CONTINUED BY MR. JONATHON GEORGE: 6 Q: Okay. My point being we had these 7 extreme polarized views, Deb Hutton represented the one 8 extreme; you agree with that? 9 A: Yes. 10 Q: Okay. Now when Deb Hutton spoke, and 11 we can speak to Deb Hutton and we can speak to the others 12 in the room as well, was the term "Indians" used or was 13 the term "First Nation" or "aboriginal" or "Native" used; 14 do you recall? 15 A: I would say that all of those terms 16 were used. 17 Q: Okay. 18 A: If you want me to source them to an 19 individual, I can't. 20 Q: Okay. You don't recall whether or 21 not Deb Hutton used the word, "Indians?" 22 A: I can't, no. 23 Q: Were people swearing, was any 24 colourful language used, was the F word used? 25 A: No, sir.
2131 Q: Okay. 2 3 (BRIEF PAUSE) 4 5 Q: Now Superintendent Fox, in -- in 6 light of all the things we -- we just spent the last few 7 minutes talking about and keeping in mind the -- the 8 impression you gained from the meetings, all the meetings 9 you attended, and how you conveyed that to John Carson, 10 in light of all that, I take it it's not surprising to 11 you to hear the characterization that was relayed, not 12 speaking to the contents or the truth, or the accuracy of 13 the statement itself, but I take it it's not surprising 14 to you that words to that effect, "get the fucking 15 Indians out of the Park and use guns if you have to." 16 I take it that's not surprising to you 17 that there is that -- that characterization out there? 18 A: Could be somebody's interpretation 19 of -- 20 Q: Sure. 21 A: -- of what they know. I wouldn't 22 think it would be interpreted solely on what this 23 Inquiry's heard thus far. 24 Q: Sure. And in all fairness, when you 25 spoke to John Carson, you used the reference to guns,
2141 right? 2 A: I did. 3 Q: And when you spoke to John Carson, 4 you used the F word? 5 A: I did. 6 Q: Okay. 7 8 (BRIEF PAUSE) 9 10 MR. JONATHON GEORGE: Those are my 11 questions, Commissioner, thank you. 12 COMMISSIONER SIDNEY LINDEN: Thank you 13 very much, Mr. George. I think we'll take an afternoon 14 break now. I think just Mr. Klippenstein and Mr. Sandler 15 are left, I think that's it. 16 MR. DERRY MILLAR: That's correct. 17 COMMISSIONER SIDNEY LINDEN: Thank you. 18 THE REGISTRAR: This Inquiry will recess 19 for fifteen (15) minutes. 20 21 --- Upon recessing at 3:49 p.m. 22 --- Upon resuming at 4:07 p.m. 23 24 THE REGISTRAR: This Inquiry is now 25 resumed, please be seated.
2151 COMMISSIONER SIDNEY LINDEN: Good 2 afternoon, Mr. Klippenstein. Has your time estimate 3 changed at all or what is your current time estimate of 4 what you might be in terms of -- 5 MR. MURRAY KLIPPENSTEIN: I originally 6 estimated two (2) to three (3) hours and I have been 7 knocking some off as Counsel have -- 8 COMMISSIONER SIDNEY LINDEN: But it won't 9 be longer than that? 10 MR. MURRAY KLIPPENSTEIN I won't -- I 11 don't expect to be longer than two (2) or three (3) hours 12 unless something dramatic happens. I don't expect to 13 finish today, but I -- hopefully it'll go faster than 14 that. 15 COMMISSIONER SIDNEY LINDEN: Thank you 16 very much, Mr. Klippenstein. 17 MR. MURRAY KLIPPENSTEIN Thank you, 18 Commissioner. 19 COMMISSIONER SIDNEY LINDEN: We're going 20 to stop at five oĂclock so whatever -- 21 MR. MURRAY KLIPPENSTEIN Okay. 22 COMMISSIONER SIDNEY LINDEN: We'll stop 23 at 5:00. 24 25 CROSS-EXAMINATION BY MR. MURRAY KLIPPENSTEIN:
2161 Q: Good afternoon, Superintendent Fox. 2 As you probably know, I am one of the legal Counsel for 3 the Dudley George Estate and the family of Dudley George. 4 And I would like to ask you questions in a number of 5 areas which I think have not -- have been touched on but 6 not in a great deal of detail. 7 And the first topic I'd like to ask you 8 questions on relate to the obtaining of the injunction 9 and specifically how the Premier's views may have 10 affected the obtaining of the injunction. 11 And -- and my questions, I think, as I 12 say, are not repetitive of what's been going -- gone on 13 before. 14 We've heard a lot of evidence about an 15 injunction and how the OPP, in many ways and over a long 16 time, had viewed that as an important aspect of a 17 possible solution in situations of blockades and protests 18 on lands in general and in First Nations situations in 19 particular, and I won't go over that. 20 But I'd like to start by looking at how 21 the discussion of an injunction proceeded from the 22 September 6th Interministerial Committee meeting. And to 23 start I'd like to refer you to handwritten notes of that 24 meeting of September 6th by Julie Jai and those notes 25 have been referred to several times.
2171 They're Exhibit P-536 and I wonder if 2 you'd be able to retrieve them in your binder, and they 3 are -- I'm making sure I have the right tab in your 4 binder. Unfortunately -- I should have, but I don't. 5 Perhaps you know already by now. 6 7 (BRIEF PAUSE) 8 9 COMMISSIONER SIDNEY LINDEN: Is it 34? 10 MR. MURRAY KLIPPENSTEIN I'm testing all 11 Counsel here as well. 12 COMMISSIONER SIDNEY LINDEN: Is it Tab 13 34, Mr. Millar? 14 MR. DERRY MILLAR: It's Tab 8 -- 15 COMMISSIONER SIDNEY LINDEN: Tab 8? 16 MR. DERRY MILLAR: -- of the blue book, 17 Superintendent Fox. It's the last one, and Exhibit 536. 18 MR. MURRAY KLIPPENSTEIN: Thank you, Mr. 19 Millar. 20 THE WITNESS: I'm sorry, sir, there's 21 nothing at Tab 8 of this blue binder. 22 MR. MURRAY KLIPPENSTEIN: Perhaps the -- 23 that has been made an exhibit and I think the Registrar's 24 bring that over. Thank you very much. 25
2181 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 2 Q: Does that look like those notes? 3 A: Yes, sir. 4 Q: Now, if you could turn to the first 5 part of those notes which are for September 6th and as 6 we've discussed before, the September 5th notes are 7 actually in -- subsequent to that, but page 3, 8 handwritten number 3? 9 A: Yes, sir. 10 Q: And, I'd like to start several lines 11 down where there's a reference to 'Tim'. Do you see 12 that? 13 A: I do. 14 Q: And, I'd just like to go through 15 those and, with apologies, Commissioner, for -- I don't 16 want to re-plow the ground. Some of this has been gone 17 through, I -- I just - I'll tell you where I'm going, I 18 want to see how the question of an ex parte injunction or 19 not is dealt with in the flow of these notes. And you 20 certainly heard these discussions, I believe, I'll ask 21 you that as we go along. 22 So, if I can just begin with the word, 23 "Tim," that would be Tim McCabe, is that right? 24 A: I would believe that to be correct, 25 yes.
2191 Q: Yeah. And, do you recall Tim McCabe 2 at all? 3 A: Yes, he was legal counsel in the 4 Attorney General's Ministry. 5 Q: And, is it fair to say he was quite a 6 senior legal counsel? 7 A: My belief is he'd be senior counsel, 8 yes. 9 Q: Yeah. And, in fact, do you know, did 10 he appear to be the most senior counsel in the -- legal 11 counsel in the -- in the meeting; is that -- is that 12 fair? 13 A: I -- I really can't comment on that 14 not knowing intimately all the players. 15 Q: But he -- 16 A: It -- certainly I got the sense in 17 hearing him that he'd had experience with injunction 18 matters. 19 Q: Is it fair to say he seemed to be one 20 (1) of the more senior counsel? 21 A: That would be fair, yes. 22 Q: Now, he says: 23 "The ministers can say instructions 24 have been given to AG to seek an 25 injunction ASAP."
2201 Is that -- is that a fair reading of that? 2 A: It could be, either as Ministries -- 3 Q: Right. 4 A: -- as opposed to Ministers. 5 Q: Sure. Thank you. 6 And then, the next line is potentially 7 significant in the -- because it says, "not a case for ex 8 parte injunction,"; is that a fair reading of that? 9 A: That's correct. 10 Q: And, that may be significant and 11 we'll get into it because, in fact, it would appear that 12 an ex parte injunction was what was sought later on; is 13 that right so far more or less? 14 A: That's correct and I -- I previously 15 testified -- 16 Q: Yes. 17 A: -- there was -- I wouldn't say it was 18 a debate, but certainly there was discussion amongst 19 counsel as to which form of injunction would be more 20 appropriate. 21 Q: And, there'd been such discussion. 22 In fact, previously in these meetings, there'd been 23 discussions about emergency injunction or not and that 24 had -- that had happened the previous day as well, right? 25 A: Correct.
2211 Q: Yeah. So, this wasn't the first time 2 this issue had come up about whether an injunction could 3 be done in a hurry without notice or whether it would 4 take longer? 5 A: That's right. 6 Q: Now, so, Tim McCabe seems to say that 7 this is not a case for an ex parte injunction. 8 First of all, do you have any recollection 9 of him saying that or do you -- or -- or -- well, do you? 10 A: I do. 11 Q: Okay. And, is this an accurate 12 paraphrase or quote of what you recall he said? 13 A: Yes, I believe he said, "in my 14 opinion." 15 Q: Right. Now, the next line says, 16 "Should give notice," right? 17 A: Correct. 18 Q: Now, the difference between and ex 19 parte motion and another standard motion is that an ex 20 parte is without notice. So, when he says, "should give 21 notice," he's basically reiterating the fact that this 22 isn't an appropriate case for an ex parte motion, is that 23 a fair reading of what you heard? 24 A: I'd agree. 25 Q: Then he goes on to say:
2221 "But we could go into court to seek an 2 abridgment of the three (3) days' 3 notice." 4 Is that a fair reading of those notes and 5 -- and is that a fair -- is that more or less accurate in 6 your recollection? 7 A: I believe it to be, yes. 8 Q: Yeah. Now, the -- the three (3) days 9 notice he refers to there was at that time the standard 10 notice period for a motion, and there's enough litigation 11 lawyers in this room to correct me if I say anything 12 wrong, but the -- the three (3) days, and I'll mention 13 this because it explains a line a little bit down, he's - 14 - and this line, he says that -- he refers to an 15 abridgment of the three (3) days' notice. 16 Now, three (3) days' notice generally 17 refers to non-holiday days and you don't count the day on 18 which notice is served and filed. And if notice is given 19 in the evening, that day doesn't count. 20 So -- and I'm sure I'll be corrected if 21 I'm mistaken, but that probably means that the normal 22 three (3) days's notice he's referring to would have, 23 even if the service had been on this day, which -- or the 24 filing was on this day, which it was, you would -- you 25 would not count the Thursday and you'd count Friday,
2231 Monday, Tuesday. 2 So, I think that the ordinary notice would 3 have been on the -- Tuesday of the following week. Now, 4 I stand to be corrected on all that, but the reason I 5 raise that is it -- it's possible that that's what he had 6 in mind. 7 He then goes on to say: 8 "We are checking with Sarnia Court to 9 find out when a judge is available." 10 Is that what it says and does that concord 11 with your recollection? 12 A: I believe that to be correct, yes. 13 Q: Right. Then he talks about the other 14 variables, getting our material ready; is that right? 15 A: Yes. 16 Q: And then he says: 17 "The best case is Friday in Court." 18 Is that your recollection of what he said 19 as well? 20 A: Yes. 21 Q: So, what he seems to have been 22 communicating, and tell me if this is correct, is that, 23 as he says, it wasn't a -- an appropriate case for an ex 24 parte injunction in his opinion, that notice should be 25 given but the normal three (3) days could be abridged and
2241 you might be in court on Friday; is that a fair summary 2 of -- 3 A: I think that's a fair summary, yes. 4 Q: Right. Then these notes seem to 5 suggest that Deb Hutton spoke up because the word "Deb" 6 appears there; is that right? 7 A: Correct. 8 Q: And then it says, and correct me if 9 you think I'm not reading these notes right: 10 "Premier feels the longer they occupy 11 it, the more support they'll get. He 12 wants them out in a day or two (2)." 13 Is that fair? 14 A: Yes. 15 Q: Now, let me focus on the second part 16 there; "He wants them out in a day or two (2)." That's 17 what Ms. Jai's notes say. Do you recall Ms. Hutton 18 making that statement? 19 A: Yes. 20 Q: Now, these notes say: "Ms. Hutton 21 says he wants them out." The word "out" appears, which 22 may be different from the date of a hearing in court, but 23 did you understand her, when she said this, to say, The 24 Premier wants the protestors out of the Park in a day or 25 two (2)?
2251 A: Yes. 2 Q: All right. Now, this comes just 3 after Tim McCabe says: 4 "We probably should give notice, and 5 the best case scenario is Friday, in 6 court." 7 And Ms. Hutton comes back and says: 8 "The Premier wants them out in a day or 9 two (2)." 10 Right? 11 A: Yes. 12 Q: Okay. Then these notes seem to 13 suggest that Tim McCabe says: 14 "That suggests we should proceed under 15 the Code." 16 Right? Is that fair? 17 A: Correct. 18 Q: So, am I right in understanding these 19 notes and what happened at the meeting, is that Tim 20 McCabe gave his opinion and then Ms. Hutton stated what 21 she held forth as the Premier's views, and those did not 22 accord with what Tim McCabe was suggesting. 23 So Tim said: "Well, then, that change" -- 24 Tim said words to the effect that, That changes things 25 and we need to proceed under the Code instead of by way
2261 of injunction; was that what was happening? 2 A: I responded to a similar question, 3 Mr. Klippenstein, and in my response I said, I think that 4 Mr. McCabe's -- the notation here of his conversation, it 5 would be more of a rhetorical question on his part. When 6 the statement is made by Ms. Hutton, he is saying, Well 7 then that suggests we proceed under the Code, or, 8 Suggests proceeding under the Code. That's how I 9 answered that previously. 10 So, I'm not sure that Mr. McCabe was 11 making that suggestion or saying, That's a viable, or, 12 That's the best suggestion. 13 Q: Right. But when you say it was a 14 rhetorical point, do you mean you understood it to be him 15 sort of saying, Well I've given you my opinion, you've 16 rejected it, try something else? 17 A: I think along with that, Mr. McCabe, 18 as I recall, spoke to what I would call the actualities 19 of using the criminal law to proceed in this. 20 Q: Hmm hmm. And when he did so, he 21 wasn't -- was he, in fact, saying, well, fine, then I 22 recommend the Criminal Code. 23 A: No, he was certainly identifying that 24 that was an area that could be pursued. What he was very 25 careful on, and I do recall, not to offer up was that
2271 criminal prosecution wasn't a solution to a problem, it 2 wasn't a remedy. 3 Q: Right. But what he did -- but he 4 basically changed the topic to the Criminal Code because 5 it was clear and you perceived it, that Ms. Hutton had 6 essentially said your injunction on notice solution isn't 7 good enough? 8 A: I would say that, yes. 9 Q: Yeah, okay. Now, if you could -- if 10 I could ask My Friend, Mr. Millar, to turn up on the 11 screen another set of notes on that -- that part, and 12 that's Inquiry Document number 1011763, that's 1011763 13 which appear to be notes of the September 6th meeting and 14 that's 1011763. 15 And if -- if I can just ask you, 16 Superintendent Fox, to -- to glance at the screen, and 17 Mr. Millar, if you can turn it to handwritten paragraph - 18 - the handwritten page, excuse me, number 3. 19 20 (BRIEF PAUSE) 21 22 Q: Thank you. And part way down, 23 there's a bullet point that begins with the written word 24 "instructions". Can you make that out? "Instructions 25 have been given".
2281 A: I can see it, yes. 2 Q: Okay. I've looked at these enough to 3 give a pretty good guess at the writing and, 4 Commissioner, I'm not repeating this just to take up 5 time, but I want to suggest that this is a quite close 6 tracking of what we've just looked at, just in case 7 there's any question about what I'm going to submit is a 8 fairly important point. 9 Now, I'm going to suggest that these notes 10 record Mr. McCabe speaking at the word "with 11 instructions" in the first line, which I'll read, is 12 actually very close to what we just looked at in Ms. 13 Jai's notes. That says: 14 "Instructions have been given to 15 Attorney General, to seek an 16 injunction." 17 Which is almost word for word a tracking 18 of what Mr. McCabe said in Ms. Jai's notes. 19 Then he says in the next line, it would 20 appear: 21 "Notice should be served on people in 22 Park that injunction being sought. We 23 would go to Court [that word I don't 24 make out] rules provide for three (3) 25 day notice. We ask for that to be
2291 abridged." 2 Is that a fair reading of those notes as 3 far as you can make out? 4 A: Yes. 5 Q: And that is very close to what Julie 6 Jai records Mr. McCabe as saying, namely, 7 "Notice should be served on people in 8 the Park and we can seek to have the 9 formal three (3) day notice period 10 abridged." 11 Is that right? 12 A: Yes. 13 Q: And so again, Mr. McCabe was 14 recommending a motion on notice, that's pretty clear; is 15 that right? 16 A: Yes. 17 Q: And then we see lower in the page, 18 "best [something] Friday", and that mirrors Ms. Jai's 19 reference to best case on Friday; is that fair? 20 A: Yes. 21 Q: Okay. And then if we go to the next 22 page, at the very top we see: 23 "Tim: that suggests two (2) criminal 24 charges." 25 And then it switches to you,; is that
2301 right? Is that fair? 2 A: Yes 3 Q: And that's a close tracking of the 4 notes of Julie Jai we just looked at; is that right? 5 A: I'm sorry, your Honour. I'm having 6 an awful difficulty reading this. 7 Q: Okay. Well, that's -- that's all 8 right. If -- I don't need to ask that final question and 9 the reason I -- I have asked you these questions, 10 Superintendent Fox, is because I now want to see what 11 occurs with the expression of opinion regarding whether 12 the injunction should be on notice or not. 13 If you could -- if I could ask My Friend 14 Mr. Miller to turn up Inquiry Document 1011745 and that 15 is similar to a document we looked at earlier. This is a 16 September 5th minister's briefing form which you reviewed 17 earlier, I believe, with Ms. Vella and which was given 18 Exhibit Number P-512. 19 This is a briefing note about the 20 occupation and an injunction. Does this look somewhat 21 familiar to you? 22 A: Yes. 23 Q: Yeah. Now the difference with this 24 document is that it has handwritten notes on the side and 25 I -- the -- the evidence I anticipate will be that those
2311 notes are the notes of Mr. Yan Lazor as he described at 2 discovery. 3 Now do you know who Yan Lazor is? 4 A: I do. 5 Q: Was -- he wasn't in the IMC meetings, 6 I take it? 7 A: Not as a matter of course, no, sir. 8 Q: But did you have occasion to speak 9 with him on matters? 10 A: Yes. And more frequently when the 11 IMC, after September 6th, became the support group. 12 Q: Right. If I could direct your 13 attention to the lower part of that page, which is 14 entitled, "Summary of Advice?" Thank you. The 15 Registrar's providing a copy of that. 16 17 (BRIEF PAUSE) 18 19 Q: Now the copy I believe you have is an 20 exhibit, but that one is the copy without the handwritten 21 notations, so it will be useful for the typed material. 22 A: Right. 23 Q: The summary of advice says, quote: 24 "It is recommended that a civil 25 injunction be sought to provide court
2321 authority for removing the occupiers of 2 the Park." 3 Let me just stop there. That appears to 4 say that one (1) of the purposes of the injunction is to 5 authorize and give extra weight or backing to the removal 6 of the occupiers; right? 7 A: Correct. 8 Q: And then, the -- the summary goes on: 9 "The injunction could be sought either 10 on an emergency ex parte basis or an 11 interim less urgent basis." 12 Do you see that? 13 A: I do. 14 Q: Now if I could direct your attention 15 to what's on the screen, the version of that document but 16 with handwritten notes, and I will have to summarize for 17 you what those say, based on the anticipated evidence 18 from discoveries. So you'll have to somewhat take my 19 word from it anyway. 20 And if I could ask Mr. Millar just to move 21 it down the screen a little bit. The -- the notation on 22 the lower left is, as are the rest of those notations 23 made, according to the evidence I anticipate of Yan 24 Lazor, matching his evidence from discovery, that those 25 notes are his writing.
2331 They're made on the September 5th briefing 2 note obviously and I'm going to ask you... 3 4 (BRIEF PAUSE) 5 6 Q: If I could provide to you a copy of 7 the -- of that document so you can have a better look at 8 the -- the handwritten notation and that notation, as I 9 say, was according to the anticipated evidence made by 10 Yan Lazor. 11 And if you could turn to the second or 12 third page of that document -- and, Mr. Millar, I wonder 13 if you could move it a couple of -- there. 14 We have some further notes and they appear 15 to refer to you. I'm going to ask you if you can 16 enlighten us on this at all in terms of timing. Yan 17 Lazore seems to be writing: 18 "Agreed, Julie to call OPP Fox. We 19 want to support them." 20 Then a little lower there's a note that 21 says: 22 "Larry wants to speak to Elaine Todres 23 and Ron Fox." 24 And the last line says: 25 "Julie and Larry went over to Ledge to
2341 brief the Minister." 2 Now, I'm -- I'm wondering if you can tell 3 me, from those notations, I'm not sure you can, where 4 these handwritten notes fit on the 6th? 5 It's a bit of a puzzle. We have several 6 things happening. We have Yan Lazore making notes on 7 this briefing note and he's talking about Julie to call 8 you, and Larry, which I presume is Larry Taman, wanting 9 to speak with Elaine Todres and Ron Fox, and Julie and 10 Larry going over to the Legislature to brief the 11 Minister. 12 Do you have any recollection of this? 13 A: No, I don't -- 14 Q: Okay. 15 A: -- sir. 16 Q: Okay. That's fine. I anticipate we 17 -- we may hear possibly the evidence of -- of Julie Jai 18 and Larry Taman who may be able to enlighten, and perhaps 19 -- perhaps Yan Lazore, I don't know. 20 But then going back to the first page of 21 that, is it possible that -- that there were discussions 22 on the morning of the 6th, either before the IMC meeting 23 or after the IMC meeting and before the Premier's 24 meeting, that involved Julie Jai and Larry Taman and Yan 25 Lazore, to your knowledge?
2351 A: It's possible, sir. I have no 2 knowledge of that. 3 Q: Okay. In any case, if I look at the 4 notation on the first page, in the lower left hand, we 5 see Yan Lazore, who testified in discovery, that that 6 note says, in his handwriting: 7 "Tim, no case for ex parte because no 8 urgency." 9 Can you see that that's possibly what that 10 says? 11 A: Yes. 12 Q: And that is pretty much the same 13 thing that you heard Tim say in the meeting on the 14 morning of the 6th; is that fair? 15 A: Correct. 16 Q: Okay. 17 18 (BRIEF PAUSE) 19 20 Q: And I wonder if I could, 21 Commissioner, have that marked as an exhibit. 22 COMMISSIONER SIDNEY LINDEN: The copy 23 with the notes on it? 24 MR. MURRAY KLIPPENSTEIN: Copy of the 25 September 5th ministerial briefing note with the
2361 handwritten notes of Yan Lazore. 2 THE REGISTRAR: P-548, Your Honour. 3 4 (BRIEF PAUSE) 5 6 MR. MURRAY KLIPPENSTEIN: I'm creating 7 confusion here because I failed to have the previous set 8 of notes marked as an exhibit, and I'm wondering if I 9 could request that the previous notes of Inquiry of 10 September 6th, being Inquiry Document 1011763 be marked 11 as an exhibit and maybe that should be 548, and then the 12 September 5th briefing note. 13 THE REGISTRAR: P-549. 14 MR. MURRAY KLIPPENSTEIN: Thank you very 15 much. 16 17 --- EXHIBIT NO. P-548: Document No. 1011763 18 September 06/95 Handwritten 19 notes. 20 21 --- EXHIBIT NO. P-549: Document No. 1011745 22 September 05/95 Minister's 23 Briefing form with Yan 24 Lazor's handwritten Notes in 25 Marein.
2371 THE REGISTRAR: Those handwritten notes 2 are by whom? 3 MR. MURRAY KLIPPENSTEIN: Yan Lazore, 4 spelt Y-A-N, L -- 5 THE REGISTRAR: P-548. 6 MR. MURRAY KLIPPENSTEIN: No. That's P- 7 549. 8 THE REGISTRAR: P-548, who wrote those 9 notes? 10 MR. MURRAY KLIPPENSTEIN: I do not know 11 who wrote those notes. 12 THE REGISTRAR: Will we find out? 13 MR. MURRAY KLIPPENSTEIN: Yes. I 14 anticipate we will find that out with evidence. 15 16 (BRIEF PAUSE) 17 18 COMMISSIONER SIDNEY LINDEN: The briefing 19 note was Yan Lazore's comments, as 549. 20 THE REGISTRAR: 549, yes, sir. 21 COMMISSIONER SIDNEY LINDEN: 9. That's 22 fine. 23 24 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 25 Q: So you -- you know whether or do you
2381 recall whether, in the September 6th meeting, Tim McCabe 2 ever expressed a change in his opinion that this was not 3 a case for an ex parte injunction? 4 A: No, I don't recall that he did. 5 Q: So to the best of your recollection, 6 when you -- when that meeting finished, you hadn't heard 7 Tim McCabe change his view on the ex parte motion issue? 8 A: No, I can't say that I have. 9 Q: Yeah okay. Now after that meeting, 10 you've testified and described how you left and then 11 eventually, not too long after, were called to the 12 Premier's dining room meeting; is that fair? 13 A: Yes. 14 Q: And I believe Commission Counsel, Ms. 15 Vella, took you through a note that apparently Julie Jai 16 had written after discussing that meeting with you, and 17 this is Exhibit P-515 and I -- it's not a long note. 18 Perhaps you can -- I'll just read you one (1) sentence 19 from it, I'm sure you're recall. 20 The note says, and this is dated September 21 6th, a handwritten note that says: 22 "The decision to go ex parte appeared 23 to have already been made." 24 Do you recall that part of the note 25 about --
2391 A: Yes. 2 Q: Yeah. Now I know you discussed this 3 a little bit, but can you explain what you said to or may 4 have said to Ms. Jai in that regard, namely on the issue 5 of when you left the meeting, did you think that the 6 decision to go ex parte had already been made when you 7 arrived in the meeting? 8 A: Correct. 9 Q: And can you tell me anything about 10 what the basis for that belief was? Namely, the basis 11 that, when you arrived in the Premier's meeting, the 12 decision to go ex parte had already been made? 13 A: I believe that it was being spoken to 14 by Mr. Taman at that time. 15 Q: Okay. 16 17 (BRIEF PAUSE) 18 19 Q: I don't think I need to refer to that 20 document anymore, but it's Tab 34 in the Commission 21 binder if that's something you want to just double check. 22 Now when you say that Mr. Taman was 23 discussing that, do you recall whether that was as you 24 arrived in the meeting? 25 A: Correct.
2401 Q: And is -- is it that the way Mr. 2 Taman was discussing it, your understanding was that -- 3 in some way, that you didn't fully understand it was 4 clear that they were deciding or had decided to go ex 5 parte? 6 A: I testified that on my arrival, I had 7 indicated Mr. Taman was discussing the injunction and I 8 testified that it was my impression that the meeting had 9 been, or at least part of the substance of the meeting 10 had been surrounding an injunction; that a decision to go 11 ex parte had been made. 12 Q: Okay. So that impression that you 13 had at that point in the meeting, that the decision had 14 been made to go ex parte, was in contrast to, for 15 example, the views that Mr. McCabe appeared to have 16 during and at the end of the meeting that morning? 17 A: It would have been, but in fairness, 18 I think there were some changes in circumstances from the 19 days previous. 20 Q: Okay. Now I'm specifically referring 21 to the -- to the description you've made now how -- this 22 is on September 6th in the IMC meeting in the morning. 23 We've seen the notes record Mr. McCabe at 24 that point saying not a case for ex parte and then 25 perhaps an hour or two (2) later when you went into the
2411 Premier's meeting, it was your impression that a decision 2 to ex -- go ex parte had been made, and that appeared to 3 be different from the view of Mr. McCabe just an hour or 4 two (2) earlier; is that right? 5 A: As I recall, yes. 6 Q: Yeah, okay. And if you could turn to 7 counsel -- Commission Counsel Tab 19. 8 9 (BRIEF PAUSE) 10 11 Q: And these were earlier -- these are 12 typed meeting notes of September 5th and September 6th, 13 which were previously made Exhibit P-509; do you recall 14 seeing these? 15 A: Yes, I do. 16 Q: And I will just direct your attention 17 to the last page of that set, which is the last page of 18 the meeting notes of the Interministerial Committee for 19 September 6th. 20 And under heading number 5 on page 3 21 there's a note in square brackets; do you see that? 22 A: Yes. 23 Q: Now you attended this meeting I 24 believe; correct? 25 A: Correct.
2421 Q: And do you know if you were sent a 2 copy of this particular version of the meeting notes that 3 had this entry? 4 A: I would have been, yes. 5 Q: Okay. And that square bracket note 6 follows the heading number 5, "Next Steps," and the 7 bullet point says it was agreed that an injunction should 8 be sought asap and then, the square bracket note says: 9 "Note. [Quote] Following the meeting 10 cabinet directed MAG lawyers to apply 11 immediately for an ex parte injunction. 12 Tim McCabe, Elizabeth Christie and 13 Leith Hunter are preparing the 14 application and compiling the 15 supporting documentation. [Close square 16 brackets.] 17 And a little lower it says: 18 "Prepared by Nathalie Nepton 19 (phonetic).÷ Do you see that? 20 A: Correct. 21 Q: Do you recall getting any information 22 about this note or how it was entered into these meeting 23 notes? 24 A: I think this particular note, in 25 square brackets, was a change to the original minute
2431 prepared by Nathalie Nepton. 2 Q: I see. Do you happen to recall 3 whether Nathalie Nepton circulated revised meeting notes 4 that now had this in it? 5 A: I believe she would have, that was -- 6 Q: Okay. 7 A: -- standard practice. 8 Q: Okay. And the contents of that note 9 is consistent with your impression of the premier's 10 meeting in the sense that you believed that decision had 11 been made to go ex parte; is that right? 12 A: Correct. 13 Q: And was it your impression that the 14 decision to go ex parte had been made in that meeting? 15 Did you have any information or understanding in that 16 regard? 17 A: In the meeting at the cabinet -- 18 Q: Yes. 19 A: ű- dining room? 20 Q: Yes. 21 A: Yes. 22 Q: That was your understanding? Okay. 23 And... 24 25 (BRIEF PAUSE)
2441 2 Q: ...in the Commission Counsel book at 3 Tab 32, if you'd turn to that, please, there's a 4 handwritten note, which I'm not sure was referred to in 5 examination-in-chief and if My Friend Mr. Millar can turn 6 that up, which is Inquiry Document 3000776, that's 7 3000776 and I want to ask you if you have seen that 8 document or know anything about it. 9 I anticipate the evidence will be that the 10 portion near the top of that page which is headed, 11 "Wednesday, September 6," is the handwriting of Larry 12 Taman and the heading says, "ONAS Meeting re Ipperwash" 13 and then there's four (4) short lines, which I think the 14 evidence will say, say: 15 "AG instructed by P that he desires 16 removal within twenty-four (24) hours - 17 - instructions to seek injunction." 18 It's a little hard to read, isn't it? 19 A: It is, yes. 20 Q: Okay. I can tell you that the 21 evidence from Discovery suggests that that will be what 22 this will be testified to say, if I -- if that's a 23 correct sentence that I've just said. 24 Now, first of all, have you seen this note 25 before these Inquiry proceedings?
2451 A: No, I have not. 2 Q: Okay. And this appears to talk about 3 instructions from somebody or something named P to, 4 somebody or something or something called AG, about 5 removal within twenty-four (24) hours and instructions to 6 seek an injunction, and that Larry Taman wrote this. 7 Can you, from your series of events on 8 September 6th, tell us anything about any discussion that 9 Larry Taman had, that you either saw or heard or became 10 aware of, that could fit this description? 11 A: I'm only going by what you referred 12 me to and the comments of -- of Yan Lazore on the -- on 13 the briefing note to the Minister. I noted at the bottom 14 of that it says: 15 "Larry, public safety is a test." 16 I can't say whether Mr. Lazore was 17 speaking with Larry and if Larry was in fact Larry 18 Taman -- 19 Q: Right. 20 A: -- but it would seem reasonable that 21 there's been a meeting perhaps late in the day on the 5th 22 or the early hours of the 6th, at ONAS or elsewhere -- 23 Q: Okay. 24 A: -- where they've met and discussed 25 it.
2461 Q: Okay. Now you don't -- but you don't 2 really know, you're just extrapolating from those notes? 3 A: Just from what you've provided me 4 right now. 5 Q: Okay. Thank you. Now however, if 6 these note -- handwritten notes, at Tab 32, talk about 7 removal within twenty-four (24) hours, that is consistent 8 with the comment made by Deb Hutton, in the meeting that 9 you heard, in which she said, The Premier wants them out 10 in a day or two (2); is that fair? 11 A: Twenty-four (24) to forty-eight (48) 12 hours, yes, that would be correct. 13 Q: Right. That has not been marked as 14 an exhibit, so I wonder if that could be given an exhibit 15 number, that being Inquiry Document Number 3000776. 16 THE REGISTRAR: P-550, Your Honour. 17 MR. MURRAY KLIPPENSTEIN: Thank you. 18 COMMISSIONER SIDNEY LINDEN: 550. 19 20 --- EXHIBIT NO. P-550: Document No. 3000776 21 Handwritten Notes by Larry 22 Taman at Premiers meeting 23 September 06/95. 24 25 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
2471 Q: And I anticipate the evidence will be 2 that, in fact, attempts were made -- well, let me -- let 3 me go back a step. 4 I believe Mr. Downard referred you to some 5 motion materials, I believe, and that's Inquiry Document 6 1003364. 7 8 (BRIEF PAUSE) 9 10 Q: Now, just for purposes right now, I'm 11 just first wanting to see if you recall that reference to 12 that motion record, being a motion record for the 13 Attorney General and the Minister of Natural Resources, 14 against Roderick George and others; does that look 15 familiar to you? 16 A: Yes. 17 Q: Yeah. Okay. Now that includes a 18 notice of motion and an affidavit by Mr. Kobayashi, and I 19 think the evidence will be that those materials were sent 20 to the court in Sarnia that evening on the 6th around 21 eight o'clock, by fax. 22 Did you have any knowledge of that 23 happening? 24 A: I -- I can't speak to that, sir, no. 25 Q: Okay. And I think there will be
2481 evidence that, in fact, calls were made to the court to 2 attempt to arrange a hearing of the injunction on the 3 evening of September 6th based on this motion record. 4 I'm just wondering if you have any 5 personal knowledge or recollection or understanding of 6 that? 7 A: Not of any calls being made or an 8 understanding of that, but I -- I did reference to 9 Inspector Carson in one of my telephone conversations 10 that -- and I think words to the effect, They're lining 11 up a judge in Sarnia and perhaps this evening or words to 12 that effect. 13 Q: Right. And at that point, you 14 clearly anticipated or had been told by somebody, had 15 heard somebody say they were working on a possible 16 injunction for that very evening; is that right? 17 A: Correct. 18 Q: Right. And that would have been the 19 injunction to order the occupants to leave the Park; is 20 that your understanding? 21 A: That would be the injunction, yes. 22 Q: Right. And when you spoke with 23 Inspector Carson in the phone call, you were actually 24 suggesting or enquiring with him whether he'd be 25 available to give evidence that very evening?
2491 A: Well, there was two (2) things. I 2 was passing on to him some information. It could have 3 come from any number of these meetings, but the gist of 4 it was, would the police, in particular himself, be in a 5 position to say that there had been an increase in 6 activity, that it was increasing on an exponential basis. 7 Q: Right. 8 A: And if so, could he provide that, 9 either as an affiant or in first person give evidence. 10 Q: And that call was made after the 11 Premier's meeting; is that right? 12 A: Correct, it was. 13 Q: Okay. And do you have any evidence 14 to fill in what I'm suggesting might be a gap in, or a 15 change, from the time that you heard a senior Crown 16 Counsel, Mr. McCabe, say this is not a case for an ex 17 parte injunction, we should give notice, to the point you 18 went into the Premier's meeting and concluded that the 19 decision to go ex parte had been made? 20 Can you -- do you have any information 21 about what -- what -- what caused that apparent change? 22 A: No, I do not. 23 Q: Okay. 24 25 (BRIEF PAUSE)
2501 Q: Commissioner, I'm going to go into a 2 new topic which I'm happy to start and I don't think I'll 3 finish today on that topic but -- 4 COMMISSIONER SIDNEY LINDEN: If this is a 5 good time to break, it's just ten (10) minutes to 5:00, I 6 think we'll break now. Does anybody have anything else 7 to add now? No, we'll break now until nine o'clock 8 tomorrow morning. 9 Thank you, Mr. Klippenstein. 10 11 (WITNESS RETIRES) 12 13 THE REGISTRAR: This Public Inquiry is 14 adjourned until tomorrow, Tuesday July 19th, at 9:00 a.m. 15 16 --- Upon adjourning at 4:53 p.m. 17 18 19 20 Certified Correct, 21 22 23 ____________________ 24 Dustin Warnock 25