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 19th, 2005 25
21 Appearances 2 Derry Millar ) Commission Counsel 3 Susan Vella ) (np) 4 Donald Worme, Q. C ) 5 Katherine Hensel ) 6 Megan Ferrier ) 7 Murray Klippenstein ) The Estate of Dudley 8 Vilko Zbogar ) (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 ) (np) 8 9 Ian Smith ) (np) Robert Runciman 10 Alice Mrozek ) (np) 11 Harvey Stosberg ) (np) Charles Harnick 12 Jacqueline Horvat ) (np) 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 ) 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 ) 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 ) (np) 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 ) 19 20 David Roebuck ) (np) Debbie Hutton 21 Anna Perschy ) (np) 22 Melissa Panjer ) 23 Danya Cohen-Nehemia ) (np) 24 25
51 TABLE OF CONTENTS 2 PAGE NO. 3 4 RONALD EVAN FOX, Resumed 5 Continued Cross-Examination by Ms. Murray Klippenstein 8 6 Cross-Examination by Mr. Mark Sandler 66 7 8 Submissions on Motion 9 10 Submissions by Mr. Mark Sandler 143 11 Submissions by Mr. Ian Roland 202 12 Submissions by Ms. Jennifer Gleitman 227 13 Submissions by Ms. Kim Twohig 243 14 15 16 17 18 Certificate of Transcript 275 19 20 21 22 23 24 25
61 EXHIBITS 2 No. Description Page No 3 P-551 Motion record: Ontario Court(General 4 Division) between the Attorney for the 5 Province of Ontario and The Minister of 6 Natural Resources (Plaintiffs) and Mr. 7 Roderick George, et al, occupiers of 8 Ipperwash Provincial Park September '95. 11 9 P-552 "The Reburial of Native American Skeletal 10 Remains and Approaches to the Resolution 11 of a Conflict" by Margaret B. Bowman, 12 Harvard Environmental Law Review. 30 13 P-553 Ontario Court(General Division)proceeding 14 between Roxanne Griffin(Applicant) and 15 Jack Klassen(Respondent). 35 16 17 18 19 20 21 22 23 24 25
71 --- Upon commencing at 9:08 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 MR. DERRY MILLAR: Good morning, 7 Commissioner. Before -- 8 COMMISSIONER SIDNEY LINDEN: Good 9 morning. 10 MR. DERRY MILLAR: Good morning, 11 Superintendent Fox. Before we begin, I just wanted to do 12 one small housekeeping matter from yesterday. 13 During the examination of Mr. Falconer, he 14 referred to a scribe note which was marked as P-539, from 15 September 11th. And it was from -- I can't remember the 16 number but, at any rate, I had said yesterday -- 17 actually, it was from Document 1000140, and I said that 18 we should really use the Document number from 1002419. 19 I just wanted to let everyone know that 20 the two (2) pages are identical so that there's no 21 difference between the two (2) sets of scribe notes so 22 that the one that's marked as P-539, is the same as in 23 1002419. 24 COMMISSIONER SIDNEY LINDEN: Thank you. 25 MR. DERRY MILLAR: Thank you.
81 COMMISSIONER SIDNEY LINDEN: Mr. 2 Klippenstein...? 3 MR. MURRAY KLIPPENSTEIN: Good morning, 4 Commissioner. 5 COMMISSIONER SIDNEY LINDEN: Good 6 morning. 7 8 RONALD EVAN FOX, Resumed: 9 10 CONTINUED CROSS-EXAMINATION BY MR. MURRAY KLIPPENSTEIN: 11 Q: Good morning, Superintendent Fox. 12 A: Good morning, sir. 13 Q: I wanted to ask you questions this 14 morning, Superintendent Fox, on a number of areas and the 15 first area that I'd like to explore with you relates, 16 again, to the injunction which we've heard so much about, 17 but this time I'd like to ask you some questions about 18 enforcement of an injunction order. 19 And, in order to do that I would like to 20 have you look at the motion materials that the Government 21 filed on or around September 6th or 7th and I'll provide 22 you with a fresh copy. I will be asking -- and, 23 Commissioner, I will be providing you with a fresh copy 24 as well. 25 Just to be clear, Commissioner and
91 Superintendent Fox, I don't intend to ask you legal 2 questions; I intend to you ask you -- or to repeat areas 3 that have been asked about before. 4 I intend to ask you questions from the 5 perspective of someone who saw a lot of the process of 6 the motion being -- being embarked upon, and, secondly, 7 as a police officer with some practical policing 8 knowledge, potentially about the enforcement of -- of the 9 order. So, I'm not going to ask you legal questions as 10 such. 11 And in order to have a complete record on 12 this, I've spoken with My -- My Friend Mr. Millar and I 13 propose to put forward and have as an exhibit, the 14 package of materials from the actual court file in Sarnia 15 that was copied from the file some time ago through my 16 office. And obviously, it may be that Superintendent Fox 17 has never seen that, but I don't intend to ask questions 18 that relate, I don't think, controversially to anything 19 on there, but just for the completeness. 20 We have bits and pieces, in fact, I think 21 we have a Notice of Motion, but we don't even have a 22 sworn copy of the affidavit that went in. So -- and, I 23 understand Mr. Millar doesn't -- doesn't object to -- to 24 that as such. 25 So, I would ask that the copies be
101 distributed. I believe, Commissioner, a copy has been 2 provided to your table. It's in a number of documents 3 that I believe you're holding in your hand now and I 4 believe Commission -- Superintendent Fox, you have it 5 before you? 6 7 (BRIEF PAUSE) 8 9 Q: Now, I'd -- I'd like to first of all 10 make this -- first of all, Superintendent Fox, what you 11 have before you is a document entitled, Motion Record, 12 and it has within it several pages in a Notice of Motion 13 and various -- and an affidavit and various documents 14 attached to that affidavit. 15 I would presume that you haven't actually 16 seen this package before, or have you? 17 A: Not in its entirety, sir. 18 Q: Okay. And, nevertheless, I wonder, 19 Commissioner, for purposes of reference if it could be 20 made an exhibit. This was a public document for -- it 21 has been for many years and I wonder for -- for those 22 purpose if we could have it marked as an exhibit? 23 THE REGISTRAR: P-551, Your Honour. 24 MR. MURRAY KLIPPENSTEIN: Thank you. 25
111 --- EXHIBIT NO. P-551: Motion record: Ontario 2 Court(General Division) 3 between the Attorney for the 4 Province of Ontario and The 5 Minister of Natural Resources 6 (Plaintiffs) and Mr. Roderick 7 George, et al, occupiers of 8 Ipperwash Provincial Park 9 September '95. 10 11 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 12 Q: Now, Mr. Fox, or Superintendent Fox, 13 I believe in one (1) of the tapes that we've reviewed you 14 describe part of the meeting of September 6th that 15 occurred in the Premier's dining room and you refer to 16 discussion that you had with then-Minister of Natural 17 Resources, Chris Hodgson. 18 And, I believe at one (1) point you 19 comment that Minister Hodgson asks you about enforcement 20 of an injunction order and it went something like, Well, 21 supposing we get an order; how long is the OPP going to 22 sit on it? 23 Do you recall words to that effect? 24 A: I recall that was provided to me in 25 the context of this Inquiry, yes.
121 Q: Right. And, am I correct in 2 understanding that you perceived Minister Hodgin to be -- 3 Hodgson to be asking you what would happen if the 4 Government got an order or an injunction related to the 5 Park? 6 A: Correct. 7 Q: And, am I correct that he appeared to 8 be concerned about a possible delay in enforcement of the 9 Order by the OPP? 10 A: I think the questioning was, what 11 length of time it may take to ultimately enforce the 12 Order on behalf of the sheriff. 13 Q: Right. And, he was concerned, it 14 appeared to you, because from everything that you'd seen 15 and heard, you felt he was concerned that there not be 16 too long a delay; is that fair? 17 A: That's fair. 18 Q: And, in fact, from everything you saw 19 and heard Minister Hodgson as well as others wanted as -- 20 as we've seen, the occupiers out of the Park as soon as 21 possible, right? 22 A: Correct. 23 Q: Now, I'd like to look at the actual 24 wording of the Order that was put forward by the 25 Government to the court and that's in the document you've
131 just got, the motion record. If you flip three (3) or 2 four (4) pages in, you will see a page handwritten number 3 5 at the top right that says, "The motion is for..." 4 A: I'm at that point, sir. 5 Q: Okay. And, I'm going to read you the 6 first paragraph and subparagraph just for your 7 perspective if you have any as a police officer on where 8 this Order might go, in other words, how it might be 9 enforced if the Government's request was granted. 10 And then, I want to contrast this section 11 with another part of the requested Order. The court 12 documents say: 13 "The motion is for: 14 1. An interlocutory injunction 15 ordering that the defendants, their 16 servants or agents and any persons 17 acting under the counsel, instruction, 18 or direction of them or any of them or 19 on their behalf or on behalf of any of 20 them, and all other persons having 21 knowledge of this Order cease forthwith 22 and be enjoined until trial or other 23 final disposition of this action from: 24 a) entering, being on, occupying, 25 remaining on, or trespassing on the
141 land and premises described in Schedule 2 A attached hereto and comprising the 3 Provincial Park known as [it should 4 say] Ipperwash Provincial Park -- the 5 Park." 6 Now, there's some technical legal language 7 in there, but -- and I don't think this is controversial 8 -- would you agree with me that that describes that the 9 Government is requesting an order from the court that the 10 defendants, which are the listed occupiers, cease from 11 being on or occupying the Park? 12 A: Yes, sir. 13 Q: And, this is an -- part of the -- 14 this would be an Order directed to -- to the occupiers, 15 themselves, is that right? 16 A: As I understand it, yes. 17 Q: Now, can you comment at all with 18 respect to how an order like this might be enforced by 19 the OPP? And, am I right, generally speaking, that the 20 OPP would consider itself under a duty to enforce this 21 Court Order, but that the OPP would consider itself to 22 have some discretion as to exactly when and how that 23 Court Order would be enforced; is that fair? 24 A: Correct on both points, sir. 25 Q: Okay. And, the second part, namely
151 the understanding that the OPP would have a certain 2 amount of discretion in enforcing an order like this 3 would be important because there's matters of safety 4 involved in this enforcement, both in terms of public 5 because something like this in its enforcement can result 6 in high feelings, confrontation, and so forth; is that 7 fair? 8 A: That's fair. 9 Q: And so, discretion on the part of the 10 OPP allows consideration in enforcing this of safety 11 matters such as public safety, safety of the OPP officers 12 and safety of the people who are being asked to leave; is 13 that fair? 14 A: Correct. 15 Q: And so, the OPP can decide how and 16 when to do this so as to give due regard for safety; is 17 that fair? 18 A: Correct. 19 Q: All right. Now, I'd like to compare 20 that with another part of the requested order, and this 21 is two (2) pages over, paragraph 3, which is handwritten 22 page number 7, and I'm going to read that paragraph. 23 And this is also part of the Order that 24 apparently is being requested of the Court by the 25 Government. And when I say "Government," technically, as
161 you can see on the first page, it's the Attorney General 2 for the Province of Ontario and the Minister of Natural 3 Resources. 4 And, as I read this, keep in mind I will 5 have particular reference to a word or phrase at the last 6 line which talks about, "within the Park." And that 7 paragraph of the requested order says: 8 "3. An order that such officers, 9 agents and servants of the Government 10 of Ontario that are directed to do so 11 by any Minister or Deputy Minister, 12 remove forthwith all camping equipment, 13 vehicles, blockades and all other 14 things whatsoever that have been placed 15 on any road or public highway or any 16 area by the defendants or their 17 servants and agents, or by persons 18 acting under the counsel instruction or 19 direction of them, or any of them, or 20 on their behalf, or on behalf of any of 21 them within or at any entrance to the 22 Park." 23 Now, again we have some technical legal 24 language but am I correct, generally speaking, that this 25 appears to be an Order from the Court that there's --
171 this is part of the sought order, I don't mean to mislead 2 there, that -- by the way, as background, I think the 3 evidence will show that this Order was in fact -- at 4 least parts of the Order were in fact granted by the 5 Court on September 7th with an important condition that 6 they not be enforced for a certain period of time. 7 But let me return to this paragraph. Does 8 it make sense to you for me to suggest that this appears 9 to be a proposed order that certain officers, agents and 10 servants of the Government, if they are directed by any 11 Minister to remove certain things from any road or public 12 highway or within the Park, that have been placed there 13 by the defendants, then the effect of the Order is that 14 those officers or agents of the Government are to do what 15 the Minister says; does that make sense to you? 16 A: It says that, sir, yes. 17 Q: Right. And what is a distinction 18 from the other part of the proposed order we looked at is 19 the Court is making an order directed not to the 20 occupiers but to agents or servants of the Government, 21 right? 22 A: I understand the difference, yes. 23 Q: You see -- so you see the 24 distinction. And what the Court, in this proposed order, 25 is ordering those officers or agents of the Government to
181 do, are to obey a Minister of the Government when that 2 Minister says, Remove from a road or from within the Park 3 objects placed there by the protestors; is that -- does 4 that seem reasonable -- 5 A: I -- 6 Q: -- a reasonable interpretation? 7 A: -- I see that, yes. 8 Q: Yeah. And what is included in the 9 Order -- and, by the way, the Order doesn't refer to 10 persons themselves, right, in that section? 11 A: In Section 3, no, sir, it doesn't. 12 Q: Right. It refers to objects or 13 possessions of the occupiers; is that fair? 14 A: Correct. 15 Q: And it specifies camping equipment, 16 vehicles and any other thing of the occupiers, right? 17 A: Correct. 18 Q: And it appears to refer to areas that 19 are a public highway that is outside the Park but also 20 things that are inside the Park, right? 21 And that's the last line, where it says: 22 "Within or at any entrance to the Park."? 23 A: Yes, sir. 24 Q: All right. So -- and would you agree 25 with me that the wording of this Order, because it says
191 in broad terms: 2 "Such officers or agents of the 3 Government that may be directed by the 4 Minister." 5 Seems to say in a pretty open-ended way 6 that any officer, agent or servant of the Government that 7 receives one of these directions from the Minister is 8 subject to this proposed Court Order? 9 A: That's what I read, sir, yes. 10 Q: Right. And it also seems to be quite 11 open-ended in that any minister or deputy minister can 12 make this direction; is that right? 13 A: Yes, sir. 14 Q: And there's no limits placed on that 15 minister's decision or power that are apparent from the 16 words of this proposed section, right? 17 A: Correct, as I read it. 18 Q: And so what we seem to have here is a 19 request in this motion by the Government for an order 20 that the court direct just about any employee or agent of 21 the Government to do what any minister says in relation 22 to removal of occupier possessions from the Park and that 23 the court is ordering those employees to do what the 24 minister says; is that right? 25 A: It would seem to say that, sir, yes.
201 Q: Right. And furthermore, the words, 2 "forthwith" and "remove" appear so that what the court is 3 ordering is that when a minister orders a particular 4 agent of the Government to remove forthwith those 5 possessions, that government employee or whatever has to 6 remove them and has to do it forthwith when the minister 7 says so, right? 8 A: Well, sir, I -- I can't comment on 9 that other than that there is bullet 4 and it would seem 10 to place a time frame -- 11 Q: Right. 12 A: -- of September 18th, 1995, on the 13 order. 14 Q: Right. 15 A: I -- I don't know what His Honour was 16 thinking -- 17 Q: Right. 18 A: -- when the court arrived at this -- 19 Q: Right. 20 A: -- but it would seem to me to provide 21 some latitude with respect to, "forthwith." 22 Q: Right. And -- sorry, go ahead. 23 MR. DERRY MILLAR: I'm sorry to 24 interrupt, but just -- Mr. Klippenstein's tried to make 25 this clear. This is, in fact, the Notice of Motion, not
211 the actual Order, Superintendent Fox, I just want... 2 A: Very good. 3 Q: And we have to look at, as My Friend 4 said, the actual order may be in similar terms, but there 5 was a court limitation. 6 7 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 8 Q: Yes, thank you. When I put the 9 question to you I didn't mean open-ended in the way of 10 forever and you quite rightly point, there's a date, 11 September 18, limiting it, but it would appear from this 12 as is requested here that the Government is requesting 13 that the Government employees remove forthwith and, 14 "forthwith" meaning more or less immediately, those 15 occupiers' possessions as directed by the minister. 16 Does that sound right to you? 17 A: I agree. Forthwith means 18 immediately, sir, yes. 19 Q: Right. And would you agree with me 20 as a police officer and I believe we've heard on the 21 tapes that you had been involved in injunction situations 22 as well personally; is that right? 23 A: Yes, sir. 24 Q: And knowing what you do about 25 enforcement of injunctions and knowing what you do about
221 the facts in this particular situation at the Park, 2 including that the occupiers seemed to be claiming that 3 there were burial grounds in the Park and that the land 4 was theirs, would you agree with me that emotions were 5 fairly high so that if government employees were going to 6 go into the Park and remove the occupiers' possessions 7 including vehicles and camping equipment from within the 8 Park, it is likely that some kind of confrontation could 9 be expected; is that fair? 10 A: That's certainly a possible result, 11 yes. 12 Q: Right. And if an -- if an officer or 13 agent or -- well, by the way, this proposed order, as it 14 was eventually granted in fact and then limited, refers 15 to officers, agents, and servants of the Government of 16 Ontario. 17 Do you have a view on whether that 18 phrasing would include OPP officers, themselves, in this 19 particular context or is that something you can't comment 20 on? 21 A: From a legal perspective I -- I can't 22 comment on it to say whether an OPP member would be 23 considered a servant of the Government much in the same 24 fashion as an employee of a line Ministry. 25 All I can comment on is how actually the
231 police may approach the execution, but that wasn't your 2 question. 3 Q: Okay. Well for the moment I don't 4 intend to get any -- into legal questions of whether that 5 wording would be directed or include OPP officers 6 themselves. It -- it may be, but I'll assume for 7 purposes of my questions that it doesn't. 8 Instead, I'm asking you about the 9 situation where, if this Order was granted and proceeded 10 with, officers, agents and servants of the Government of 11 Ontario, would you agree with me, that would appear to 12 include MNR employees? 13 A: Yes. 14 Q: If they were directed by a Minister 15 to remove forthwith all camping equipment and vehicles of 16 the protestors from within the Park, then those employees 17 could reasonably expect that if they were carried out, 18 that Court sanctioned direction, they might be involved 19 in a confrontation; is that fair? 20 A: I would say that's fair, yes. 21 Q: And those employees would likely then 22 turn to the OPP and say, We have to carry out the 23 directions of the Minister as we are ordered to by the 24 Court. We expect a good -- well, a bad risk of a 25 confrontation and we are asking the OPP to come with us
241 to keep the peace. 2 Isn't that a likely scenario in this -- 3 A: It's likely, yes. 4 Q: And, in fact, in that situation, am I 5 right in thinking that the OPP would probably feel 6 obliged, as part of an officer's duty to keep the peace, 7 to go along with those employees and actually ensure that 8 a confrontation didn't occur, and essentially protect 9 those Government employees in carrying out this order; is 10 that fair? 11 A: I won't speak to what may have 12 happened. You've asked me a question and I suppose I can 13 only answer it by saying what I would or wouldn't do if I 14 was the Incident Commander. 15 Q: Hmm hmm. 16 A: And, quite frankly, with all respect 17 to the Court, this deals with things as opposed to 18 people. 19 Q: Right. 20 A: I wouldn't, as Incident Commander, 21 see that this was my primary function. While it may be 22 important, and again, not to disrespect the order of the 23 Court, my view would be that wouldn't be the primary 24 function of police. The primary function would gear to 25 public safety.
251 Q: And would you agree with me that this 2 would appear to put you, as an Incident Commander, in a 3 bit -- bit of a difficult situation because when you 4 look at this, if you were an Incident Commander and this 5 Court order were handed to you and you had an employee or 6 a group of employees from the Government saying, Here's 7 the letter from the Minister saying, Go into the Park 8 today and remove all camping equipment and vehicles of 9 the occupiers from within the Camp. 10 And here's the Order that order us as 11 Government employees to obey that Minister's letter, and 12 we expect a confrontation, would you agree with me -- and 13 they say, Can you come with us and protect us, and bring 14 your guns, would you agree with me that it puts -- would 15 put you in a difficult situation? 16 A: No, sir, I -- I wouldn't. I would 17 suggest it's a situation that not only incident 18 commanders but police officers atypical would experience 19 on a fairly regular basis. It would cause the police 20 officer, whether it was an incident commander or a road 21 officer, to make a decision. 22 It may not be a popular decision but, 23 certainly, you've asked, my perspective is no, it 24 wouldn't put me in a difficult position. My answer would 25 be no.
261 Q: All right. And would you agree with 2 me that would then put the Government employees in a 3 difficult position? 4 A: Perhaps it would, sir, yes. 5 COMMISSIONER SIDNEY LINDEN: Are you 6 going to go much farther along this particular line? I'm 7 just curious. 8 MR. MURRAY KLIPPENSTEIN: No, 9 Commissioner. 10 COMMISSIONER SIDNEY LINDEN: No. That's 11 fine. 12 MR. MURRAY KLIPPENSTEIN: That is -- that 13 is all my questions. 14 15 (BRIEF PAUSE) 16 17 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 18 Q: I do have some follow-up related 19 questions and that is, would you agree with me, having in 20 mind our discussion yesterday and with other Counsel on 21 other days about Ms. Hutton apparently speaking for the 22 Premier, saying that, The Premier wants them out in a day 23 or two (2); do you remember those -- that discussion? 24 A: I do. 25 Q: Would you agree with me that raises
271 possibility that if this Order had been granted, that one 2 of the Ministers -- and as a matter of law the Premier is 3 a Minister -- might well have said, as Ms. Hutton seemed 4 to indicated, that, I want if not those occupiers at 5 least all their possessions out of the Park today; is 6 that a possibility from what you saw and heard? 7 A: I suppose it's possible, yes, sir. 8 Q: Thank you. 9 10 (BRIEF PAUSE) 11 12 Q: I'd like to ask questions on another 13 topic then, Superintendent Fox. One thing that I've 14 heard you say a number of times and in a way that I 15 gather you thought was very important, was that in issues 16 such as this, being an occupation or a protest by Native 17 people on land which they were asserting entitlement to, 18 that the issues were not necessarily simple and they had 19 a fair degree of complexity to them sometimes; is that 20 fair? 21 A: I said that, yes, sir. 22 Q: Yes. And I'd like to ask about that 23 view of yours expressed a number of times on the 24 particular issue of the discussion you heard and saw 25 about the Province having clear title to the Park.
281 And I believe you mentioned that there was 2 a significant amount of discussion in the IMC committee 3 meetings about the assertion that the Province had clear 4 title to the Park, right? 5 A: There was, sir, yes. 6 Q: Yeah. And as I read the various 7 notes of the meetings and look at the discussion in 8 examination already so far, it seems to me that you, a 9 number of times, when people said, We have clear title to 10 the Park and that is pretty much it, or words to that 11 effect, you, a number of times, said, Well there is a 12 background here, a history, it's a little more complex, 13 we shouldn't rush in on that basis; is that a fair 14 paraphrase of what your concepts were? 15 A: That's reasonable, yes, sir. 16 Q: Yeah. And I would like to -- and, 17 indeed, is it fair to say that one of your concerns was 18 that burial grounds were a complexity, that the claim 19 that there were actually burial grounds in the Park was 20 something that you thought was probably a little more 21 complex than a simple statement, like, We have legal 22 title and, therefore, they have no right to be there and 23 it's black and white; is that fair? 24 A: I think it adds to the complexity, 25 and I believe my evidence, previously, was that it ought
291 to be considered. 2 Q: Right. Now, and in that discussion, 3 as I understand what you said, there was discussion 4 saying, We, the Province, have clear legal title, there 5 are some procedures and rights under the Cemeteries Act 6 and if we -- if they want us to follow those, we will do 7 our legal obligations; is that fair? 8 A: Correct. 9 Q: Okay. Now, I want to ask you about 10 some of the complexities that you've mentioned in your 11 mind and specifically with respect to the burial grounds 12 and the supposedly clear legal title, and ask -- put 13 before you a couple of thoughts and see if these are the 14 kinds of complexities that you had in mind. 15 And to do that I want to use the words 16 from a -- a few words from an article by a learned author 17 in a law journal written in -- or published in 1989, I 18 believe, and I believe a copy has been put before you. 19 It's from the Harvard Environmental Law Review and it's 20 called, The Re-Burial of Native American Skeletal Remains 21 Approaches to the Resolution of Conflict; do you have 22 that? 23 A: I have it before me, sir, yes. 24 Q: Now, I suspect you haven't read this 25 before; is that fair?
301 A: That's correct. 2 Q: But I'm just going to refer to you -- 3 refer you to one (1) page and ask you, not from a legal 4 point of view, but ask you from the point of view of the 5 complexities issues that you've raised whether this is 6 the sort of thing you had in mind. 7 And, Commissioner, I wonder if I could 8 have this made an exhibit? 9 THE REGISTRAR: P-552, Your Honour. 10 11 --- EXHIBIT NO. P-552: "The Reburial of Native 12 American Skeletal Remains and 13 Approaches to the Resolution 14 of a Conflict" by Margaret B. 15 Bowman, Harvard Environmental 16 Law Review. 17 18 MR. MURRAY KLIPPENSTEIN: And I've 19 provided copies to -- to Mr. Millar and Mr. Sandler and 20 the electronic copies are available -- have been made 21 available to -- to other counsel. 22 23 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 24 Q: And if you could turn, Superintendent 25 Fox, to page 167 of that article, and there's a number of
311 sentences that are underlined and I'd just like to read 2 them to you; do you see that? 3 A: I do, sir. 4 Q: And the first words are, "at common 5 law." 6 And the question I have to you is: Do you 7 recall whether anybody in those meetings, aside from 8 mentioning the Cemeteries Act, ever mentioned that there 9 were possible legal rights at common law? 10 A: Not that I recall, sir. 11 Q: Okay. Now let me read those 12 underlined parts on that page, quote: 13 "At common law, ownership of objects 14 located in the earth is vested in the 15 owner of the land. Under this rule, 16 bones recovered during an excavation 17 are the property of the landowner. 18 Human bodies, however, are treated 19 differently than other property under 20 common law. A dead body cannot be 21 owned the same way other objects can." 22 Then, dropping down to the next paragraph: 23 "Under this quasi-property theory, the 24 descendants of human remains retain 25 certain rights in the dead body
321 regardless of who owns the land on 2 which the body is buried. Thus, 3 wrongful exhumation of a body or 4 interference with a grave gives rise 5 not only to an action in trespass by 6 the owner of the property, but may also 7 give rise to an equitable action in 8 tort by the descendants. 9 The survivor also has rights as against 10 the owner of the property. Any 11 subsequent purchaser of a property on 12 which a burial plot is located is not 13 free to disturb the burials. 14 A right similar to an easement is 15 granted to the descendants and 16 permission of either the descendants or 17 the court is necessary for a 18 disturbance to the burials." 19 Now, without getting into the details of 20 that, would you agree with me that that talks about 21 common law ideas that say that a landowner doesn't 22 necessarily have automatic full rights as to what happens 23 to human remains on his or her land; is that right? 24 A: Correct. 25 Q: And it appears to allow for --
331 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 2 Twohig...? 3 OBJ MS. KIM TWOHIG: Your Honour, I object to 4 this line of questioning in that the Witness is being 5 asked to interpret certain legal principles that may or 6 may not be applicable in Ontario and this is not an area 7 that is strictly speaking within his area of expertise. 8 COMMISSIONER SIDNEY LINDEN: Yes, I'm not 9 sure that that's what the Witness is being asked to do, 10 but perhaps you would explain what you are doing? 11 MR. MURRAY KLIPPENSTEIN: Yes, thank you. 12 And I think My Friend is -- is right and I've avoided the 13 concerns that she has expressed. 14 I don't ask to intend -- I don't intend to 15 ask Superintendent Fox from a legal point of view, I'm 16 simply exploring the complexities that he's referred to 17 and I'm just asking him whether this is something along 18 those lines. 19 COMMISSIONER SIDNEY LINDEN: This may or 20 may not be the law in Ontario? 21 MR. MURRAY KLIPPENSTEIN: That's right. 22 COMMISSIONER SIDNEY LINDEN: That doesn't 23 matter for purposes of your question? 24 MR. MURRAY KLIPPENSTEIN: That's right. 25 The question is not what is the law? The question arises
341 from the discussion that Mr. -- that Superintendent Fox 2 saw and observed and -- 3 COMMISSIONER SIDNEY LINDEN: With that in 4 mind, I think it is a proper question. 5 MR. MURRAY KLIPPENSTEIN: Okay. Thank 6 you. 7 8 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 9 Q: So Superintendent Fox, as I -- as we 10 agreed, this paragraph seems to suggest that at common 11 law, there is a distinction or a limitation on 12 landowners' rights when there's human remains on the 13 land. 14 And is it fair to say that that is the 15 kind of -- and I'm asking you -- is that the kind of 16 complexity that you would have had in mind when you -- 17 when you said that -- taking a position that we have 18 legal title and that's it, wasn't appropriately 19 understanding the complexities? 20 A: In part, yes. 21 Q: Yeah. Okay. 22 A: There were others. 23 Q: Right. That's all the questions I 24 have on that -- that article. I also have put before you 25 a copy of an Ontario case and I won't dwell on this, but
351 I have before you a case from the Ontario Court General 2 Division headed, Roxanne Griffin and Jack Klassen; do you 3 see that? 4 A: I do, sir. 5 Q: Okay. And, again, I certainly don't 6 intend to ask you any questions that would be going 7 beyond your experience as a -- as an eyewitness and 8 participant, but this case discusses the Common Law issue 9 of human remains. It's a case from 1991, Justice 10 Brockenshir (phonetic) of the Ontario Court General 11 Division, and I just want to quickly refer you to this. 12 And, Commissioner, I wonder if I could 13 have an exhibit number for that. 14 THE REGISTRAR: P-553, Your Honour. 15 16 --- EXHIBIT NO. P-553: Ontario Court(General 17 Division)proceeding between 18 Roxanne Griffin(Applicant) 19 and Jack Klassen(Respondent). 20 21 22 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 23 Q: And, Superintendent Fox, if you'll 24 note in the first page in the reasons for judgment, I 25 believe I may have underlined a sentence just above the
361 heading, and the sentence begins: 2 "The proceedings bring into question 3 the Common Law rights connected with 4 the graves of humans." 5 And I'll just stop there. And is it fair 6 to say that the issues that the IMC was facing and, 7 indeed, the occupation the whole rises -- raises was that 8 where there's claimed human remains in the ground, what 9 are some of the rights connected with that? 10 A: That's correct. 11 Q: And if you could turn to page 7 of 12 that decision, I've underlined a couple of sentences 13 which IĂll just read to you. The first full paragraph 14 begins, quote: 15 "It is clear that a right to burial in 16 land can be separate from the ownership 17 of the land, and that such right and 18 the incidence of it are regarding as 19 property rights enforceable against the 20 owner of the land." Close quote. 21 And dropping down, quote: 22 "The right has been defined as an 23 easement in the English and Canadian 24 jurisprudence, although in some of the 25 cases this is glossed over, referring
371 to it only as a right." End of quote. 2 And then, finally, if you could turn to 3 page 9, I think I've highlighted two (2) sentences there, 4 which say, quote: 5 "For purposes of visitation and 6 maintenance and implied way of 7 necessity attaches to and from the 8 grave if separated from a public way by 9 privates lands, such rights like or as 10 easements are enforceable against the 11 successors entitled to the land and any 12 that seek to disturb the same." Close 13 quote. 14 Now without asking you to express an 15 opinion on this -- these parts of the Court decision, am 16 I right in concluding that when you were concerned about 17 the complexities of the situation in the context of legal 18 title and burial grounds, these comments by the Court 19 about burial ground rights that may exist even as opposed 20 to ownership rights, are the sort of complexity that you 21 perhaps intuitively were worried about; is that fair? 22 A: Certainly not being aware of this -- 23 of this decision at that time, my concern was that there 24 may be a burial site, that was some of the information 25 provided and my belief was that it should be examined.
381 Q: All right. And your concern, I take 2 it, persisted even when at least some lawyers in the 3 meeting said, The legal title is ours, and some members 4 of the Committee said, Well that's -- that's it? 5 A: Well I think, sir, that there's two 6 (2) parts to it. You've asked the -- the notion that a 7 burial ground may exist was of concern to me, and not -- 8 not just to me, certainly other people had the same 9 concern. And the second part was the ownership or the 10 title of land. 11 There were two (2) dates that came to me 12 that were of some importance, as I read the way it was 13 titled, and that was the year 1919 and the year 1937. 14 What I was trying to articulate was that 15 the history of the First Nations people in the area 16 certainly pre-dated both those unique dates and time and 17 was it a possibility that that particular area could have 18 been in the minds of First Nations people something that 19 they had not surrendered? 20 Q: Hmm hmm. 21 A: Yes, possibly. 22 Could it have been used as a burial site? 23 Yes, possibly. Both those areas, in my view, were areas 24 that needed to be examined. 25 Q: Hmm hmm. All right. Thank you. And
391 is it fair to say that when you heard Ms. Hutton say the 2 Premier wants them out in a day or two, that seemed to 3 send a signal that consideration of the issues you've 4 just mentioned wasn't really her or the Premier's 5 priority and, in fact, they weren't really interested in 6 that. 7 MR. DERRY MILLAR: I don't think he can 8 answer the question about Ms. Hutton's priority or the 9 Premier's priority, with respect to this question. 10 MR. MURRAY KLIPPENSTEIN I'll rephrase 11 the question, but it's -- it's not intended to get into 12 their minds, it's intended to understand that 13 Superintendent Fox -- 14 COMMISSIONER SIDNEY LINDEN: Well, try to 15 rephrase it. 16 MR. MURRAY KLIPPENSTEIN -- saw and heard 17 and understood. 18 COMMISSIONER SIDNEY LINDEN: That's fine. 19 Try to rephrase it -- 20 MR. MURRAY KLIPPENSTEIN Yes. 21 COMMISSIONER SIDNEY LINDEN: -- and see 22 if you can ask the question. 23 MR. MURRAY KLIPPENSTEIN Yeah. 24 COMMISSIONER SIDNEY LINDEN: And if you 25 can't, then there'll be another objection.
401 MR. MURRAY KLIPPENSTEIN Yeah. 2 3 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 4 Q: Again, Superintendent Fox, you asked 5 or you expressed a number of -- you talked about a number 6 of issues that you saw that you thought probably should 7 be looked at when there was an issue of a burial ground 8 mentioned. 9 But from what you saw and heard and, 10 particularly when you saw and heard Ms. Hutton apparently 11 speaking for the Premier say the Premier wants them out 12 in a day or two (2), did you understand or conclude that 13 consideration of the issues that you've raised wasn't 14 actually a priority for them given the timeframes they 15 were talking about? 16 A: What I can say from my observations 17 was that the matter rested on the notion that there was 18 legally -- that there was title to the land in question 19 and it was legally obtained; that's where it ended, sir. 20 Q: And that appeared to be it? 21 A: It did to me sir, yes. 22 Q: Thank you. 23 24 (BRIEF PAUSE) 25
411 Q: Superintendent Fox, you've -- you've 2 raised two (2) issues a number of times in your evidence 3 and one is the notion of colour of right and the other is 4 the issue of native treaties and similar potential 5 entitlements, and I'd like to ask you about those for a 6 few minutes. 7 And, in particular, I want to eventually 8 ask you about your perspective, from a policing 9 perspective, I guess, of the 1928 surrender that it 10 appears to be somewhat of an issue. 11 First of all, on the issue of colour of 12 right, as I understood your comments, you are approaching 13 that as a police officer and partly because some -- some 14 offences give a person somewhat of a defence if they have 15 colour of right, so you as a police officer, you have to 16 take them into account; is that fair? 17 A: That's correct. 18 Q: And another reason why colour of 19 right might be important from a policing perspective is 20 that when people have a colour of right, in other words a 21 sense of entitlement, it can affect how they act and it 22 can affect policing from a resources issue, how much 23 you're going to have to end up putting into this and that 24 affects -- so that colour of right factor is a -- is a 25 policing factor in that regard; is that -- is that right?
421 A: That's reasonable. 2 Q: Now you've mentioned treaties a 3 number of times and I want to ask you a bit about that, 4 but I also want to ask you about the burial ground issue 5 in terms of colour of right. 6 I wonder if you could retrieve, again, the 7 motion materials that I provided to you earlier which 8 were Exhibit 551? 9 10 (BRIEF PAUSE) 11 12 Q: And if you turn to the third page of 13 -- the fourth page of the title page that says, "Notice 14 of Motion Without Notice;" can you find that? 15 A: I have it. 16 Q: And the title -- the -- the heading, 17 of course, says, Notice of Motion Without Notice, and the 18 first line says: 19 "The Plaintiffs will make a motion 20 without notice to a judge." 21 Do you see that? 22 A: I do. 23 Q: And then, turning in several pages, 24 to page -- handwritten 10, you see, at the top, the 25 statement that the following documentary evidence will be
431 used at the hearing of the motion. And it -- and there's 2 one (1) item listed, it says: 3 "The Affidavit of Leslie Cozo 4 (phonetic) Kobayashi." 5 Is that right? 6 A: I see that, sir, yes. 7 Q: And I note that these materials don't 8 refer to the evidence of any police officer testifying, 9 which is what eventually happened, but we don't see that 10 here; is that right? 11 A: I -- I can only see Mr. Kobayashi's 12 name. 13 Q: Yes, thank you. And then, if you 14 turn over several more pages you see the affidavit of 15 Leslie Cozo Kobayashi; do you see that? 16 A: I do. 17 Q: All right. Now when I go through the 18 affidavit and, if I'm mistaken in my suggestion in my 19 question I'm sure I'll be corrected, but I see no mention 20 of the claim by the First Nations people that there's a 21 burial ground in the Park. 22 From a policing perspective, that is as a 23 police officer who may be involved in enforcing this 24 order from this application, would you agree with me that 25 it is a problem if one (1) of the stated areas of colour
441 of right is not put before the Court; is that a problem? 2 A: With respect to the enforcement of 3 it, I'm not so sure it has a direct impact on the 4 enforcement agency. 5 Q: Would you agree with me that -- 6 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 7 Sandler...? 8 MR. MARK SANDLER: I have no objection to 9 the line of questioning, I -- I just don't want the -- 10 the Superintendent to be inadvertently misled because the 11 evidence is that the allegation made by the occupiers 12 that there's a burial site in the Park was actually put 13 before the Court by Detective Sergeant Mark Wright and so 14 I -- I just ask My Friend to be careful in the way that 15 he's framing the question -- 16 COMMISSIONER SIDNEY LINDEN: It's 17 important that you point that -- 18 MR. MARK SANDLER: -- because he's 19 leaving -- he's leaving the impression -- 20 COMMISSIONER SIDNEY LINDEN: It's 21 important that -- 22 MR. MARK SANDLER: -- and not 23 intentionally, that was never put there. 24 COMMISSIONER SIDNEY LINDEN: I think it's 25 important that you point that out, Mr. Sandler, thank
451 you. 2 MR. MURRAY KLIPPENSTEIN: Thank you. And 3 my -- my question certainly specified that. I obviously 4 didn't want to mislead and I didn't. 5 COMMISSIONER SIDNEY LINDEN: Yes. 6 MR. MURRAY KLIPPENSTEIN: I think I 7 specified that the materials before -- before us and that 8 was put before the Court in written form don't include 9 any reference to the burial grounds. 10 COMMISSIONER SIDNEY LINDEN: The 11 affidavit of Mr. Kobayashi -- 12 MR. MURRAY KLIPPENSTEIN: Yes. 13 COMMISSIONER SIDNEY LINDEN: -- does not 14 make reference and it appears to be the only written 15 material. 16 MR. MURRAY KLIPPENSTEIN: That's correct. 17 COMMISSIONER SIDNEY LINDEN: Is that what 18 you're saying? 19 MR. MURRAY KLIPPENSTEIN: That's correct. 20 21 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 22 Q: Now, Mr. -- or Superintendent Fox, 23 would you agree with me, from an enforcement perspective 24 of orders, is that if a significant colour of right 25 factor is not put before the Court, the individuals who
461 might be the subject of a Court order may have difficulty 2 in accepting the legitimacy of the Court order and that 3 may affect the ease of enforcement; is that possibly -- 4 is that a possible factor? 5 COMMISSIONER SIDNEY LINDEN: Excuse me. 6 We're told that that information was put before the 7 Court. I'm not sure what the significance -- 8 MR. MURRAY KLIPPENSTEIN: Sorry. Let 9 me -- 10 COMMISSIONER SIDNEY LINDEN: -- or 11 relevance -- 12 MR. MURRAY KLIPPENSTEIN: -- let me 13 rephrase the question. 14 COMMISSIONER SIDNEY LINDEN: Yes. 15 16 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 17 Q: What we have here, Superintendent 18 Fox, is the written materials, the affidavit, put forward 19 by the party seeking the injunction, and that's the 20 Attorney General and the Minister of Natural Resources. 21 And the Notice of Motion materials refer to only one (1) 22 affidavit, as we saw. And that the evidence will show 23 what was filed, is what was filed with the Court. 24 Would you agree with me that, again, from 25 an enforcement perspective, that someone who may be the
471 object of an order such as this, who may see that the 2 proponent completely excluded their colour of right 3 factor, namely the burial grounds -- 4 COMMISSIONER SIDNEY LINDEN: In the 5 written material. 6 7 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 8 Q: -- from any and all written 9 materials, may have a concern about how the case was 10 presented to the Court, and that may affect their view 11 towards the enforcement of the order; is that fair? 12 A: If that was -- if their knowledge was 13 based entirely on written material without any other 14 information that a concern believed to be valid was not 15 presented, yes, it could. 16 Q: And would you agree with me, even 17 more specifically, that if it appeared, and I'm now 18 accepting that the evidence of the burial ground may have 19 been mentioned orally in -- in evidence that was not 20 included in -- in motion materials, but, nevertheless, 21 would you agree with me that from -- from the perspective 22 of someone who's the subject of this order, merely seeing 23 that it was not deemed necessary by the applying 24 government party, to even put it in the written materials 25 may cause a perception problem; is that fair?
481 A: That's a possibility, sir, yes. 2 Q: Yeah. And would you agree with me 3 that that is particularly a problem when the motion is a 4 motion made without notice to the persons who are to be 5 the objects of the intended Court order? 6 A: It could be, sir. 7 COMMISSIONER SIDNEY LINDEN: You could 8 argue if it's without notice they wouldn't know what was 9 in the affidavit. 10 MR. MURRAY KLIPPENSTEIN: And precisely 11 but it's a matter that -- that very much comes up after 12 the fact -- 13 COMMISSIONER SIDNEY LINDEN: Yes. 14 MR. MURRAY KLIPPENSTEIN: -- in my 15 submission. 16 17 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 18 Q: And particularly, would you agree 19 with me, Superintendent Fox, this is a factor where 20 what's at issue is a Court order to physically remove 21 from some land, some individuals who appear to have a 22 passionate belief in their right to be there, and the 23 result of a Court Order obtained without notice may be 24 that -- that there may be physical removal of those 25 people, possibly including physical force, and after the
491 fact they may discover that no mention of their colour of 2 right concern was put into the written materials filed 3 with the Court? 4 A: That's possible, yes. 5 Q: Thank you. And would you agree with 6 me that, from a common sense perspective, that a party 7 proceeding to Court for an order without notice to the 8 parties being subject to the Order and with the 9 likelihood that such parties will not present their case 10 to the Court and their evidence to the court that that 11 party should, in fact, put evidence before the Court 12 about the colour of right issues out of fairness? 13 A: It would seem to make sense to me. I 14 example it from a police perspective. 15 Q: Yeah. 16 A: There are rules in place that provide 17 as the police do investigations to make full and complete 18 disclosure certainly to the Crown Attorney who then, in 19 turn, is duty-bound to make full and complete disclosure; 20 that's the principle that I would operate on. 21 Q: Thank you. 22 23 (BRIEF PAUSE) 24 25 Q: And, if you had been charged with
501 preparing materials for the Court's consideration, and 2 you weren't, can I take it you would have included 3 information indicating that the people in the Park were 4 claiming a burial ground? 5 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 6 Twohig...? 7 OBJ MS. KIM TWOHIG: Mr. Commissioner, I 8 object to this Witness being asked to second-guess the 9 work of lawyers. The lawyers can be asked about -- 10 COMMISSIONER SIDNEY LINDEN: Yes. 11 MS. KIM TWOHIG: -- what they did in 12 preparation for this motion and why, but I submit that 13 this is not a proper area to ask about. 14 COMMISSIONER SIDNEY LINDEN: I think 15 that's a legitimate objection, Ms. Twohig. I think you 16 made as much of this point as you can, I think, Mr. 17 Klippenstein. 18 MR. MURRAY KLIPPENSTEIN: I -- I was 19 going to withdraw the question, fortunately, because I 20 was -- I was ruled on before I could make submissions on 21 the objection, so fortunately I -- I withdraw the 22 question. 23 COMMISSIONER SIDNEY LINDEN: Thank you. 24 25 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
511 Q: Finally, I'd like to ask you 2 questions about colour of right in a somewhat different 3 sense and that pertains to the claim that we see in some 4 of the materials from the occupiers that, It's our land. 5 As I understand it from the many 6 references in the materials including the notes of the 7 IMC meeting, various people communicated and I think you, 8 as well, that the occupiers at various times were saying 9 things like, There's a burial ground in the Park, and, 10 It's our land. 11 And, those are -- those are two (2) 12 different types of assertions, both of which came up; is 13 that fair? 14 A: Yes, sir. 15 Q: Thank you. And, let me ask you about 16 the second one, namely the statement or claim that, It's 17 our land. 18 And, I'm not asking you these questions 19 from the point of view expressing a legal opinion or any 20 other kind of opinion on the validity of that claim, 21 either on the evidence or the facts or the history; 22 that's not the context of the questions I'm about to ask. 23 I want to ask them in the context of 24 colour of right, as you've raised a number of times and 25 you've mentioned treaties and, indeed, you mentioned
521 treaties in the phone call that you had made to -- to 2 Inspector Carson after the Premier's meeting on September 3 6th as I recall, is that right? 4 A: That's correct. 5 Q: Yeah. Now, I'd like to pick up 6 something that Inspector Carson said in his testimony 7 with respect to colour of right. 8 He mentioned that when he became incident 9 commander for the issue around the Ipperwash Base he 10 examined some documents, historical documents, to 11 familiarize himself with the situation and, specifically, 12 the situation of the appropriation of the Military Base 13 from the Stoney Point people and their claim that it 14 should be returned and that it was their land. 15 And, he said that after reading the 16 documents, that he could see they had a good -- he -- 17 sorry, he said that he had good reason to understand how 18 they would have a strong belief that that land should be 19 returned to them. 20 And, does that sound like one version of 21 the principle of colour of right, if you have a good 22 reason to understand how they would have a strong belief 23 that they're entitled to that? 24 A: Yes, sir. 25 Q: Yeah. And I'd like to put before you
531 a number of factors related to the claim for land and see 2 whether you would agree with me, in terms of colour of 3 right, whether it's a factor. 4 And the first thing I'd like to put before 5 you is, as you mentioned, the treaty and I've -- I 6 believe put before you a copy of a treaty which is 7 Inquiry Document number 4000023, and do you have that in 8 front of you? 9 A: I do. 10 Q: Commissioner, I believe I placed a -- 11 I had placed a copy before you as well. That's Inquiry 12 Document 4000023, four (4) zeros. 13 Commissioner, this is my last area of 14 questioning and I probably should be finished before 15 10:30. 16 COMMISSIONER SIDNEY LINDEN: Well, then I 17 think -- 18 MR. MURRAY KLIPPENSTEIN: I don't know if 19 you intend to take a break -- 20 COMMISSIONER SIDNEY LINDEN: ű- weĂll 21 just keep going then until you've finished, that's fine. 22 23 (BRIEF PAUSE) 24 25 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
541 Q: And Commissioner, or rather, 2 Superintendent Fox, I wonder if you could turn in that 3 treaty document to page number 71. 4 A: Yes, sir. 5 Q: And do you see that, it's -- there's 6 a heading that says number 29? 7 A: Yes. 8 Q: And I think I've underlined a number 9 of things in that including the year 827 -- 1827; do you 10 see that? 11 A: I do. 12 Q: And in that same paragraph, the 13 preamble says that it is between a number of Chiefs of 14 the Chippewa Nation of Indians inhabiting and claiming 15 the territory or tract of land hereinafter described of 16 the one part and our Sovereign Lord George IV by the 17 Grace of God of the United Kingdom of Great Britain and 18 Ireland, King Defender of the Faith of the other part. 19 So, this -- this appears to be an 20 agreement of some sort in 1827 between some people of the 21 Chippewa Nation and George IV, King of England; is that 22 fair? 23 A: It would appear to be, yes. 24 Q: And is it fair to infer that as an 25 agreement between principle persons of what they call the
551 nation of Chippewa Indians and the King of England, it 2 appears to be a fairly weighty document; is that fair. 3 A: Fair. 4 COMMISSIONER SIDNEY LINDEN: I'm sorry, I 5 didn't hear that word. A fairly what? 6 MR. MURRAY KLIPPENSTEIN: Weighty. 7 COMMISSIONER SIDNEY LINDEN: Weighty? 8 MR. MURRAY KLIPPENSTEIN Yeah. 9 10 CONTINUED BY MR. MURRAY KLIPPENSTEIN 11 Q: And it appears from the document that 12 the Chiefs and men of the -- and persons of the Chippewa 13 nation are inhabiting and claiming the territory in the 14 question from the words I've -- we've just read; is that 15 fair? 16 A: It would seem to be, yes. 17 Q: Yeah. And then if you could turn to 18 page 72 and I've highlighted some words at the bottom. 19 Now, the rest of the page talks about 20 certain land which the agreement seems to say the First 21 Nation people are surrendering or giving up and then the 22 phrase or sentence that I've underlined says: 23 "Saving, nevertheless, and expressly 24 reserving to the said nation of Indians 25 and their posterity at all times
561 hereafter for their own exclusive use 2 and enjoyment the part or parcel of the 3 said tract which is hereinafter 4 particularly described." 5 And would you agree with me that seems to 6 be saying that there are parts of the land which are 7 reserved to the nation and their posterity at all times 8 hereafter for their own use? 9 Is that -- 10 A: Correct. 11 Q: And then turning to page 75 of this 12 document, the last paragraph before the signatures says: 13 "In witness whereof, the above named 14 chiefs and principle men of the said 15 Indians and the said George Ironside on 16 behalf of his said Majesty have to 17 these present set their hands and seals 18 the day and year first within written." 19 And the first name there is George 20 Ironside, SIA, which I understand stands for 21 Superintendent of Indian Affairs. 22 But that again seems to indicate an 23 agreement between the Indian Nation as described and the 24 King; is that right? 25 A: Yes.
571 Q: Now in terms of the question of the 2 claim that was asserted by occupiers of the Park and the 3 framework of colour of right, would you agree with me 4 that looking at this document and the apparent gravity of 5 what it's saying and the parties to it, that First 6 Nations People -- well, rather that -- that you or we 7 would have good reason to understand how they would have 8 a strong belief that those lands were promised to them in 9 perpetuity; is that fair? 10 A: Sir, I -- without reading the -- the 11 whole document that would describe the lands -- 12 Q: Hmm hmm. 13 A: -- I wouldn't be in a position to be 14 able to say that. 15 Q: Right. And forgive me but just to 16 clear up the issues you've raised, assuming for now, as I 17 think the evidence shows, that the Stoney Point lands 18 that were referred to in this treaty as a reserve 19 encompassed the military base, what is now Ipperwash Park 20 and indeed what -- most of what is now sandy parking lot, 21 and that's the evidence so far, assuming that ű- do you 22 know what I mean by that? 23 A: If I can make the assumption that 24 this document refers to that? 25 Q: Yes.
581 A: I understand where you're going, yes. 2 Q: Okay. Thank you. And would you 3 agree with me that we can have good reason, looking at 4 this document, to understand how they could have a strong 5 belief that those lands should have been theirs in -- in 6 perpetuity? 7 A: I think that's reasonable, yes. 8 Q: Yeah. And we don't -- did you ever 9 hear evidence that any of the occupiers of the Park 10 themselves brought forward a copy of this treaty or 11 referred to the treaty of 1827? 12 A: Not that I recall. 13 Q: Right. And would you agree with me 14 that, in a sense, First Nations People in this area are 15 living with this treaty because the Kettle and Stony -- 16 the Kettle Point Reserve, for example -- let me back up. 17 Obviously, in this area there is -- there 18 is another Indian reserve which is the Kettle Point 19 Reserve; is that right? 20 A: Correct. 21 Q: And that Kettle Point Reserve is 22 universally recognized as a distinct Native community and 23 plot of land; is that fair, from your knowledge? 24 A: Yes. 25 Q: And from -- do you have knowledge on
591 this, would you agree with me that it appears that the 2 members of that community take for granted that that's 3 their land in the Kettle Point Reserve; is that fair? 4 A: I -- I would assume so, sir, yes. 5 Q: Yeah. And so people who are living 6 on that land, in Kettle Point, on the reserve, may be 7 benefiting from this treaty and believing in this treaty 8 without ever talking about it; is that fair? 9 A: I don't know that I -- 10 Q: Okay. 11 COMMISSIONER SIDNEY LINDEN: I'm not sure 12 where this -- 13 MR. MURRAY KLIPPENSTEIN: I'll -- I'll 14 withdraw the question. 15 COMMISSIONER SIDNEY LINDEN: Yes. 16 17 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 18 Q: Let me go back a step. Would you 19 agree with me, from what you said about this treaty, that 20 the -- that consideration of this treaty would tend to 21 give credence or credibility to the claim of the 22 occupiers of the Park that it was their land? 23 And I'm not asking you to agree with their 24 claim, I'm just saying -- asking you, would you agree 25 that this treaty, the way we've looked at it, would tend
601 to give some credibility towards the claim? 2 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 3 Downard...? 4 MR. PETER DOWNARD: Sir, I -- I think we 5 all know by now Mr. Klippenstein's position and argument 6 on the treaty. I just don't understand how it can be 7 useful to be asking this Witness to express views about 8 the -- the meaning and consequence of a document that 9 he's -- it appears he's seen a fragment of for the first 10 time today. 11 COMMISSIONER SIDNEY LINDEN: I'm having 12 difficulty with that, too, Mr. Klippenstein. I think 13 you're trying to show, I assume, that the colour of right 14 claim has some legitimacy; is that correct? 15 MR. MURRAY KLIPPENSTEIN Yes, or to put-- 16 COMMISSIONER SIDNEY LINDEN: And I've -- 17 I think thatĂs -- 18 MR. MURRAY KLIPPENSTEIN -- it another -- 19 COMMISSIONER SIDNEY LINDEN: I think 20 that's -- 21 MR. MURRAY KLIPPENSTEIN Yes. 22 COMMISSIONER SIDNEY LINDEN: I think 23 that's fair, but I don't see how much farther you can go 24 or need to go with this witness. 25 MR. MURRAY KLIPPENSTEIN All right, let
611 me move on then. 2 3 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 4 Q: Now it's been asserted, including in 5 the Affidavit of Mr. Kobayashi and elsewhere that 6 whatever the treaty says, the key fact about those 7 parklands and the parking lot lands was that they were 8 surrendered and that the First Nation people gave up 9 their rights to that and hence the province has legal 10 title. 11 Is that your understanding of the 12 assertions that have been made as well? 13 A: That's how it was explained to me, 14 yes. 15 Q: Right. And am I fair -- is it fair 16 to -- to say that, in fact, that surrender of 1928 17 appeared to be the key fact that was put forward in the 18 IMC meetings about the whole land occupation issue; is 19 that fair? 20 A: I think that, coupled with the 21 ultimate title, was what was relied upon sir, yes. 22 Q: Yes. And we've heard evidence from a 23 number of First Nations witnesses, including Roderick 24 Judas George and Bonnie Bressette, a former Chief of the 25 First Nation and Sam George himself, that they feel an
621 entitlement to that parkland and the parking lot lands, 2 in other words the treaty lands, despite the alleged 1928 3 surrender. And that they feel that entitlement now and 4 that they don't consider what they know about the 1928 5 surrender as being a valid cancellation of their treaty 6 rights. 7 That's my summary or para -- paraphrase, I 8 think accurate, of the evidence we've heard. Now I'd 9 like to ask you a few questions about colour of right of 10 people like that and their views. 11 First of all, you, I think in your 12 recommendations to the Commissioner at the end of your 13 examination in-chief, talked about how you firmly 14 believed that all citizens are equal before the law. 15 Is that -- that was one of your 16 principles; is that fair? 17 A: Correct. 18 Q: Now again, in terms of colour of 19 right and how that's assessed in this context, the 20 surrender was a, apparently, a community vote agreeing to 21 give up those treaty lands. 22 Is that roughly your understanding? 23 A: I don't know exactly how it came to 24 be and I can't speak directly to that, sir. 25 Q: Right. But you do -- your
631 understanding is that it was some kind of giving up of 2 the land? 3 A: That's correct. There was a process 4 that I'm not able to describe to you -- 5 Q: Right. 6 A: -- must have occurred. 7 Q: Right. And that process, the 8 evidence is and will be, was constructed under the Indian 9 Act legislation and supervised by an Indian Agent under 10 that legislation, the Indian Act. 11 And at the time of the legislation and the 12 surrender in the period of 1927 to 1951, the First 13 Nations people in this area and elsewhere were not, in 14 fact, and I'll ask this be taken either as evidence or 15 judicial notice, were not, in fact, legally citizens at 16 all, were not, in fact, entitled to vote and had no 17 representatives in parliament. 18 Now from a colour of right point of view, 19 from a First Nation people such as the names I've 20 mentioned, who look at the process of the surrender under 21 the Indian Act and conclude that it wasn't fair, would 22 you agree that you have good reason to understand how 23 they would have a strong belief that the surrender wasn't 24 fair when it was made under a legislation and process in 25 which they had no input as non-citizens and non-voters?
641 A: Sir, my sense would be, and that 2 would have to be evidence provided by somebody else, one 3 of those named persons, that that would have been 4 apprized of that history by their forefathers. 5 What occurred at the time of the surrender 6 or the process that was undertaken, I personally wouldn't 7 know it. I'm not certain it's recorded in those 8 documents, at least in opposing -- perspective. I would 9 believe that would come through the oral history provided 10 by those individuals' forefathers. 11 Q: All right. And can you -- would you 12 understand that they might have good reason to believe 13 what they believe given the fact that they weren't even 14 citizens when this process was carried out? 15 COMMISSIONER SIDNEY LINDEN: I think your 16 questions are too difficult to -- 17 MR. DERRY MILLAR: I think that My Friend 18 has gone as far as he can go. I don't know how -- 19 COMMISSIONER SIDNEY LINDEN: I don't see 20 how this Witness can be helpful on these questions. 21 22 (BRIEF PAUSE) 23 24 COMMISSIONER SIDNEY LINDEN: He's 25 testified that he believed their colour of right claim
651 should be -- 2 MR. MURRAY KLIPPENSTEIN: I -- I beg your 3 pardon, Commissioner? 4 COMMISSIONER SIDNEY LINDEN: He's 5 indicated that he thought their claim of colour of right 6 ought to have been considered, and I think that's about 7 as far as he can go. 8 9 (BRIEF PAUSE) 10 11 MR. MURRAY KLIPPENSTEIN: I have no 12 further questions then, Commissioner, and -- but I would 13 like to thank you for your patience. And -- 14 COMMISSIONER SIDNEY LINDEN: Thank you. 15 MR. MURRAY KLIPPENSTEIN: -- 16 Superintendent Fox, on behalf of the Estate of Dudley 17 George and the Family of Dudley George, I'd like to 18 express gratitude for your obvious efforts to understand 19 their situation and take it seriously. 20 And I think it's their hope that those 21 approaches that you've exemplified are -- are also 22 adopted by other people and institutions. And so I want 23 to thank you for -- 24 COMMISSIONER SIDNEY LINDEN: Thank you. 25 Thank you, Mr. Klippenstein. Thank you very much.
661 Mr. Sandler, can we take a break now and 2 then have your examination? 3 MR. MARK SANDLER: Yes. That be fine. 4 And I'll be less than an hour. I'll finish well before 5 lunch time. 6 COMMISSIONER SIDNEY LINDEN: That's fine. 7 I think we'll take a break now and then come back for Mr. 8 Sandler. 9 THE REGISTRAR: This Inquiry will recess 10 for fifteen (15) minutes. 11 12 --- Upon recessing at 10:28 a.m. 13 --- Upon resuming at 10:46 a.m. 14 15 THE REGISTRAR: This Inquiry is now 16 resumed. Please be seated. 17 COMMISSIONER SIDNEY LINDEN: I usually 18 thank -- oh, I'm sorry. Carry on. I didn't see you for 19 a minute. Carry on. 20 Yes, Mr. Sandler...? 21 MR. MARK SANDLER: Thank you. 22 23 CROSS-EXAMINATION BY MR. MARK SANDLER: 24 Q: Superintendent Fox, we're nearing the 25 end.
671 A: Sir. 2 Q: You've described in great detail what 3 you were told and what impressions you formed in meetings 4 with the Interministerial Committee or with members of 5 the Ontario Cabinet, and I don't intend to re-explore 6 that evidence at all. 7 I'm interested in what you communicated to 8 the Incident Commander and to Chief Superintendent Coles, 9 and what they appeared to take from your comments. So, 10 what you're going to find is that my focus is largely 11 going to be directed to that issue. 12 And there's no secret here, this is all 13 with a view to determining whether the Premier's or 14 others' views influenced the OPP in the events that 15 occurred on September the 6th, okay? 16 A: Yes, sir. 17 Q: First of all, regardless of what 18 opinions were expressed by Ms. Hutton representing the 19 Premier or by the Premier, personally, did you direct 20 John Carson to do anything as a result of what the 21 Premier or Ms. Hutton had communicated to you or in your 22 presence? 23 A: I did not. 24 Q: It's been suggested that the Premier 25 indicated and Ms. Hutton indicated that they wanted the
681 occupiers out immediately; that they be treated no 2 differently than anybody else. Specifically, did you 3 deliver a direction from the Premier to John Carson to 4 evict the occupiers from the Park? 5 A: I did not. 6 Q: Did you take from the Premier that he 7 was directing you to do that? 8 A: No, sir. 9 Q: Would you have accepted such a 10 direction from the Premier or anyone else political? 11 A: I would not. 12 Q: Did you communicate to John Carson 13 that he should move to evict the occupiers immediately 14 without an injunction? 15 A: I did not. 16 Q: How about that he should arrest the 17 occupiers within the Park prior to an injunction? 18 A: I did not. 19 Q: All right. Now, Mr. Falconer made 20 the point that opinions from the Premier could be taken 21 or -- or treated as a direction by some. 22 Were you prepared to take direction from 23 your Premier? 24 A: In regards to police activity, no, 25 sir.
691 Q: Did you communicate to John Carson 2 that we should change our operational plan in light of 3 the Premier's comments? 4 A: I did not. 5 Q: Would you do that? 6 A: No. 7 Q: Now, I'm going to suggest that -- 8 that apart from the absence of any direction being 9 communicated by you to John Carson, some other things 10 were being communicated by you to John Carson, which I 11 want to explore. 12 If we examine the September 5th and 13 September 6th taped conversations that you had with John 14 Carson, I'm going to suggest that you see several things. 15 The first is that we've heard that you 16 disagreed with Ms. Hutton somewhat forcefully at the IMC; 17 am I right? 18 A: Correct. 19 Q: But not only did you forcefully 20 disagree with her at the IMC, you communicated to John 21 Carson, I'm going to suggest, that you forcefully 22 disagreed with the Premier's representative, didn't you? 23 A: I did. 24 Q: All right. And, not only did you 25 disagree with some of the views expressed at the meeting
701 with the Premier and members of Cabinet, and you've 2 already described that disagreement, haven't you? 3 A: I have. 4 Q: You told John Carson that you had 5 forcefully disagreed at that meeting despite the fact 6 that these were the senior politicians in the Province; 7 am I right? 8 A: Yes, sir. 9 Q: Were you inhibited in any way -- and 10 I think the Commissioner is getting some sense of you as 11 a person from hearing you for a number of days -- in 12 disagreeing with those powerful political figures? 13 A: No, sir. 14 Q: Was it consistent or inconsistent as 15 you saw it with your duties as both an OPP officer and as 16 an advisor to the Deputy Solicitor General to strongly 17 express your disagreement? 18 A: I believe it was consistent with my 19 function. 20 Q: How about with John Carson? Were you 21 inhibited in any way in communicating to John Carson that 22 you had registered you disagreement with these powerful 23 political figures? 24 A: No. 25 Q: I'm going to suggest you tell it
711 exactly as you see it, don't you? 2 A: I believe I do. 3 Q: It's a characteristic of yours, isn't 4 it? 5 A: I think it is. 6 Q: Now, we've seen some examples and 7 Commissioner Linden has almost memorized, I'm sure, these 8 taped conversations, so I'm going to go through them 9 very, very quickly, but I want to take you to the two (2) 10 taped conversations that -- that you've been questioned 11 extensively about. 12 They're contained in the Commission's 13 documents, the first one at Tab 24 and this is contained 14 as well in Exhibit P-444(a). 15 16 (BRIEF PAUSE) 17 18 Q: And, do you have that? 19 A: I do, sir. 20 Q: And, again, I just want to highlight 21 what has become obvious in the course of your 22 examination-in-chief and ask you some questions that 23 arise out of it. 24 At the middle of page 1 of the taped 25 conversation, you reflect that the Premier has made it
721 clear to her, his position is there'll be no different 2 treatment of people in this situation; in other words, 3 natives as opposed to non-native and the bottom line, he 4 wants them out. 5 And then, what we see in the passages that 6 follow is that you are articulating to John Carson how 7 you expressed your disagreement with that view; am I 8 right? 9 A: Correct. 10 Q: You expressed that you didn't accept 11 that view, right? 12 A: Yes. 13 Q: You articulated the differences 14 between the conventional situation and the situation that 15 we had here; am I right? 16 A: Yes, sir. 17 Q: And then at the middle of page 2, 18 there's discussion about use of the Criminal Code 19 offences to address the situation, and you told John 20 Carson that you had responded that this is a civil suit, 21 it has to be adjudicated in a Court of law and the police 22 given sufficient authority to act; am I right? 23 A: Yes, sir. 24 Q: And again, not inhibited in the 25 slightest, not only in registering your disagreement to
731 what you saw as incorrect views being expressed by 2 powerful political figures, but articulating to the 3 incident commander that you had registered your 4 disagreement with those views; am I right? 5 A: Correct. 6 Q: Now if you were to go to Tab 33 of 7 the same document, again part of Exhibit 444(a), and this 8 is the conversation of September the 6th of 1995. 9 Again we'll see and I'm not going to take 10 you through -- through the whole thing, but again you are 11 telling John Carson, as part of your outline of what has 12 transpired at political level, that you had this somewhat 13 forceful disagreement with the Minister Hodgson over his 14 perspective on events; am I right? 15 A: Correct. 16 Q: And you're registering your 17 disagreement with the opinion expressed by him and others 18 during the meeting that involved cabinet ministers; am I 19 right? 20 A: Correct. 21 Q: And again, on September the 6th, were 22 you the slightest bit inhibited in communicating to John 23 Carson that forceful disagreement had been registered to 24 the opinions of these powerful political figures? 25 A: No, sir, I wasn't inhibited.
741 Q: So -- so one way, and I'm going to 2 discuss with you a variety of ways, but one way that we 3 can evaluate, perhaps, whether John Carson felt pressure 4 to conform to what the Premier purportedly wanted, is to 5 see whether you were adding to the pressure by either 6 telling him that -- that I acquiesced in that position 7 that the Premier expressed or -- or in adopting it as 8 your own or in communicating it to John Carson as 9 something that he should adopt as his own. 10 Did you do any of that? 11 A: No, sir. 12 Q: Now one way, as I've said, to 13 evaluate whether John Carson felt pressure to conform to 14 what the Premier purportedly wanted is to see whether you 15 supported, in any way, opinions that deviated from the 16 OPP operational plan. 17 Did you support any deviations from the 18 OPP operational plan? 19 A: I did not. 20 Q: Did you articulate to John Carson 21 that you were prepared to deviate from the OPP 22 operational plan or even recommend that? 23 A: No, sir. 24 Q: Now another way to evaluate whether 25 John Carson felt pressure to conform to what the Premier
751 purportedly wanted is to look at John Carson's responses 2 to your comments; you know what I mean by that? 3 A: I do. 4 Q: In other words, I don't want to just 5 look at the fact that you registered your disagreement; 6 that you told him that you registered your disagreement, 7 but I also want to look at how he reacted to you when you 8 articulated these things in your taped conversations. 9 So again, let's just look at a couple of 10 examples to make the point and I'll take you back to tab 11 24 and this is, again, Exhibit 444(a) and this is the 12 conversation of September the 5th of 1995. 13 And we'll look at page 6, and this is 14 after you have articulated to John Carson that there 15 seems to be some sort of testosterone high that applies 16 to the group that you are dealing with and that though 17 you didn't have to -- you didn't think you'd have to 18 explain, you had to articulate the implications of men, 19 women and children being involved, right? 20 A: yes, sir. 21 Q: And here's John Carson at the top of 22 page 6: 23 "I mean, if we're going to do that over 24 a trespassing? 25 Ron Fox: That's exactly right, and I
761 said, you know you just can't do that. 2 John Carson: That's right. I mean, if 3 we're going to do that, we have to have 4 the force of the law behind us to 5 provide some recognition by a Court in 6 this land. 7 Ron Fox: Hmm hmm. And let's not lose 8 sight of the fact that this is a civil 9 matter. 10 John Carson: That's right. That's 11 right." 12 Now, and if you look at page 8, here's 13 John Carson, in the middle of the page, saying: 14 "I'm hesitant to get too excited about 15 moving on the Park until we have some 16 Court injunction, for mere trespassing 17 is pretty flimsy grounds." 18 Now, what I'm going to suggest to you is 19 that not only were you communicating your point of 20 disagreement but he was acknowledging that you and he and 21 the OPP were right; am I -- am I correct about that? 22 A: I would agree with that statement, 23 yes. 24 Q: And -- and I'm going to suggest, to 25 go further, that he never suggested in any way in the
771 course of his conversation with you on September the 5th 2 or, for that matter, on September the 6th, that he was 3 re-thinking the approach that he was taking to this 4 incident, as its commander, as a result of the comments 5 that you were feeding to him; am I right? 6 A: He gave me no indication of that, 7 sir. 8 Q: I'm going to suggest to the contrary, 9 he gave you every indication that it was business as 10 usual; am I right? 11 A: Correct. 12 Q: Now, and if you look at September the 13 6th conversation, Tab 33, and I'm jumping back and forth, 14 this is also in Tab 37 of Exhibit 444(a), Tab 33 in the 15 materials that you have, Superintendent Fox, and again 16 you'll see here this comment that's been read a number of 17 times, that after you articulate your views of what was 18 being expressed shortly before this telephone 19 conversation, John Carson says: 20 "They just want to go kick ass." 21 You say: 22 "That's right." 23 And John Carson says: 24 "Well, we're not prepared to do that 25 yet."
781 And I'm going to suggest that you took 2 from that that, Business as usual, we're applying for the 3 injunction, we're not going to rush to evict the 4 occupiers, whatever views are being expressed 5 politically? 6 A: Correct. 7 Q: I mean, any doubt about that as a 8 result of your conversation with John Carson -- 9 A: There was none -- 10 Q: -- either on the 5th or on the 6th? 11 A: There was none in my mind. 12 Q: Now, you've been asked a few 13 questions about -- about the Premier's expression of the 14 belief that he has the authority to direct the OPP. And 15 we see that in this conversation at page 5, and I just 16 want to look at that for a moment. 17 Here's Ron Fox telling John Carson that, 18 as far as you were concerned: 19 "The Premier believes that he has the 20 authority to direct the OPP." 21 John Carson says: 22 "Oh, okay." 23 And then he says: 24 "I hope he talks to the Commissioner 25 about that. I hope he and the
791 Commissioner [and that's been corrected 2 in the transcript] have that 3 conversation." 4 Now stopping there, what did you take from 5 John Carson's comments that if the Premier thought that, 6 he better talk to the Commissioner? 7 A: What I took was that Inspector Carson 8 had a course of action set out and he wasn't going to 9 move from it. If there was to be a deviation from his 10 course of action, that direction would have to come from 11 his ultimate superior, that being the Commissioner of the 12 day. 13 Q: And did you or as far as you could 14 see from your conversation with him, John Carson, believe 15 that the Premier had the authority to direct the OPP? 16 A: I -- I'm sorry, sir? 17 Q: Did you believe that the Premier had 18 the authority to direct the OPP? 19 A: No, I did not. 20 Q: And did you get any indication from 21 John Carson that he believed that the Premier had the 22 authority to direct the OPP? 23 A: No, I did not. 24 Q: And I'm talking, of course, about 25 operational matters.
801 Now another way to evaluate whether John 2 Carson succumbed to the alleged pressure emanating 3 politically, is to look at John Carson the man; and you 4 knew him well? 5 A: I did. 6 Q: And you praised him, we've heard, to 7 the Interministerial Committee as a skilled, competent 8 officer? 9 A: Correct. 10 Q: And did that accurately reflect how 11 you felt about him? 12 A: It did and does. 13 Q: Now, more to the point, you were 14 described by some of your questioners, with -- with 15 complete justification I might suggest, as someone deeply 16 sensitive to First Nations issues. 17 Did you know, from dealing with John 18 Carson over these issues, over the timeframe that you 19 did, that he, too, was an officer deeply sensitive to 20 First Nations issues? 21 A: I believe that he was and is. 22 Q: Any doubt about that in your mind 23 then or now? 24 A: No. 25 Q: Now, jumping ahead, you continued to
811 deal with John Carson after the Ipperwash incident, did 2 you not? 3 A: I did. 4 Q: You became a superintendent, am I 5 right? 6 A: I did. 7 Q: Was he under your command? 8 A: He was. 9 Q: And, I take it, and I do not want to 10 get into hearsay issues, so I simply want to put it to 11 you this way, you did come to learn from his perspective 12 what had motivated him to send the CMU down the road on 13 September the 6th, did you not? 14 A: I did. 15 Q: And, did it change your opinion in 16 any way as to his skill, his judgment, or his sensitivity 17 to First Nations issues? 18 A: No, sir. 19 Q: Indeed, one (1) of your 20 responsibilities as a superintendent may well be the 21 appointment of incident command, am I right? 22 A: It is. 23 Q: Did you ever appoint him as an 24 incident commander post-Ipperwash? 25 A: On a number of occasions, yes.
821 Q: Did you ever do so in relation to a 2 First Nations issue? 3 A: I did. 4 Q: Could you provide an example to the 5 Commissioner? 6 A: There are two (2) that immediately 7 come to mind, Your Honour, one (1) involved a high-risk 8 warrant execution on the Kettle and Stony Point First 9 Nation. The other was a barricaded person with a weapon 10 on the Six Nations of the Grand River Territory outside 11 of Brantford. 12 Q: And, how did he acquit himself? 13 A: Both were successfully resolved. In 14 my view as -- as a superior officer at that time, he did 15 a very credible job in managing both of those incidents. 16 Q: And, did he work with the First 17 Nations community in relation to both of those incidents? 18 A: He did. 19 Q: And, successfully? 20 A: He did. It involved the community, 21 the police service of jurisdiction in -- in both 22 communities and the respective councils. 23 Q: Did you believe in 1995 or do you 24 believe now from everything that you've seen and heard 25 that John Carson, the person you know, his history as an
831 officer, how he responded when you communicated to him, 2 was influenced in any way in the conduct of this incident 3 by the Premier's views? 4 A: I don't believe so. 5 Q: Now, Mr. Horton made the valid point 6 that -- that there was no training then or now to 7 specifically prepare officers to deal with comments such 8 as those uttered by the Premier and -- and nobody can 9 ever quarrel with more training, of course. 10 But, I want to ask you, the fact that John 11 Carson didn't receive formal training, did that cause you 12 to doubt whether he succumbed to the Premier's pressure 13 in making the decisions that he made? 14 A: No, sir. 15 Q: Now, there's another way of 16 evaluating whether John Carson was influenced by the 17 Premier's expressed views. 18 You've told Commissioner Linden that -- 19 that you expressed the Premier's views to John Carson and 20 to Chris Coles in somewhat colourful language and we've 21 heard the language and we've heard what you say about the 22 language. 23 Let me ask you this, apart from the 24 language and apart from the views, would you have shared 25 those kinds of views with just any individuals?
841 A: No, I would not. 2 Q: For example, would you have -- would 3 you have gotten on the phone with MNR employees and -- 4 and told them that those were the views that you held of 5 comments made by the Premier or those close to the 6 Premier? 7 A: No, sir. 8 Q: What, if anything, does that fact -- 9 the fact that you were prepared to share those views with 10 John Carson and Chris Coles tell us about your perception 11 of their susceptibility to political pressure? 12 A: I believe what it indicates is, my 13 view was and -- and continues to be, they wouldn't 14 capitulate to political pressure. 15 Q: And, if you weren't confident that -- 16 that they could handle that kind of information, would 17 you have shared it with them? 18 A: I wouldn't have. 19 Q: Now, a valid point's been made by Mr. 20 Falconer that perceptions are -- are as important 21 sometimes as -- as the reality and -- and Commissioner 22 Linden's going to -- going to have to address how 23 perceptions in the future might be addressed through, for 24 example, the kinds of various that you performed and as 25 described in the evidence.
851 And, I want to talk to you a little bit 2 about perception for a moment. For example, it was 3 suggested and you agreed, that it was unfortunate that 4 Wade Lacroix was both the CMU commander, as it turned 5 out, and the individual who acted as a conduit between 6 Marcel Beaubien and John Carson. 7 Now, to be clear, you weren't asked what 8 you meant by "unfortunate". I mean, I take it it was 9 unfortunate given the perceptions created when one's now 10 examining an allegation of political influence. 11 A: That was my response, sir, yes. 12 Q: I want to ask you did -- were you 13 saying that it was unfortunate that Wade Lacroix was the 14 CMU commander on the scene in September the 6th? 15 A: No, sir. I was saying that it's 16 unfortunate in terms of the perception. 17 Q: All right. Did you know Wade Lacroix 18 back then? 19 A: I did. 20 Q: And have you come to know him since, 21 as well? 22 A: Yes, sir. 23 Q: Was he under your command at one 24 point? 25 A: Yes, sir.
861 Q: All right. Let me ask you this and 2 Commissioner Linden's going to see Wade Lacroix first 3 hand, so some of us may have an advantage over others, 4 but is he the kind of person, in your estimation, easily 5 intimidated by what politicians might think? 6 A: No, sir. 7 Q: Any doubt about that? 8 A: There's no doubt in my mind. 9 Q: Now, there's been evidence here that 10 John Carson told Wade Lacroix not to go into the Park, 11 "Let the individuals in the parking lot 12 go back into the Park if the simply 13 depart." 14 Now, leave aside perception issues that 15 we've already discussed, would you have had any concern 16 that Wade Lacroix would disregard his incident 17 commander's directions because he was aware of what 18 Marcel Beaubien or other politicians may have thought 19 about what the police should or shouldn't do? 20 A: Based on my knowledge of the 21 individual, no. 22 Q: Now, what about in Wade Lacroix's 23 other role and this question may sound a little bit 24 facetious, but he wasn't not -- he wasn't just the CMU 25 commander, he was also an individual who, unfortunately,
871 was involved himself in an altercation, more specifically 2 with -- with Cecil Bernard George. 3 Would you have had a concern that -- that 4 in responding to Cecil Bernard George's brandishing of a 5 weapon and cracking Wade Lacroix's shield in half that 6 Wade Lacroix would be thinking, how would the Premier 7 want me to respond to this? 8 A: I would suspect that would be the 9 last thing -- 10 Q: Of course. 11 A: -- on his mind. 12 Q: Now, the difficulty here, and it's -- 13 and it's been well articulated in some of the cross- 14 examinations both of you and of Deputy Commissioner 15 Carson is that police do have to communicate with 16 politicians in these settings, don't they? 17 A: Correct. 18 Q: For example, we see that on your end 19 of the equation that a decision has to be made by 20 government on whether an injunction should be applied for 21 and the form of the injunction; am I right? 22 A: Yes, sir. 23 Q: And I'm going to suggest that -- I'm 24 going to suggest because it seems to be axiomatic at this 25 point, that that requires some communication what's
881 happening on the ground, doesn't it? 2 A: Correct. 3 Q: For example, we've heard some 4 discussion that you had with John Carson about whether 5 there's a progression of -- of events or escalating 6 events that might cause the lawyers to proceed ex parte, 7 right? 8 A: That's correct. I passed along to -- 9 to Inspector Carson at the time that would be one of the 10 ingredients that the lawyer drafting the injunction would 11 need to be able to provide to the Court. 12 A: So, the lawyer would have to know 13 what's happening on the ground, right? 14 A: yes, sir. 15 Q: Now, the difficulty, of course, is 16 that -- is that everybody acknowledges that a distinction 17 must be drawn between operational and non-operational 18 matters and -- and you've articulated that distinction as 19 well, right? 20 A: Correct. 21 Q: But what I'm going to suggest to you 22 is, it's not always crystal clear what's operational and 23 what's non-operational in this context, is it? 24 A: There can be a grey area, yes. 25 Q: You said that you have to rely upon
891 your good judgment in part, to determine what details 2 should be shared and what details should not. 3 A: Judgment based on my experience, yes, 4 sir. 5 Q: All right. So -- but I do want to 6 ask you this. Despite all the kind of abstract 7 discussion, and I don't say that in any pejorative way, 8 because it's important discussion, but despite all the 9 abstract discussion about sharing operational details, 10 were you ever told and I'm saying on September the 6th, 11 in the evening hours, that the CMY was going down the 12 road? 13 A: No, I was not. 14 Q: Or how the TRU team was being 15 deployed that evening? 16 A: I had no knowledge of that, no. 17 Q: Or how the individuals in the parking 18 lot were going to be dealt with? 19 A: No, sir. 20 Q: Or that members of the CMU were -- 21 were serving in forward observer capacity? 22 A: No. 23 Q: Were you told any of that stuff? 24 A: No, sir. 25 Q: Now that's real operational detail;
901 isn't it? 2 A: Yes. That's a tactical approach, 3 yes. 4 Q: All right. So -- so the operational 5 details of the altercation itself, because I don't want 6 to lose sight of why we're all here, those details were 7 never shared with you until after the incident; am I 8 right? 9 A: That's correct. 10 Q: And so as far as you knew, and I'm 11 confining it to your knowledge, as far as you knew, there 12 was no opportunity for the Government through you to try 13 to speak to or influence those operational aspects of 14 what actually happened that evening of September the 6th; 15 am I right? 16 A: That's fair, yes, sir. 17 Q: Now -- now, tell me this. Let's 18 assume that John Carson had said to you on the phone on 19 the evening of September the 6th, Well we're going to 20 send the CMU down the road, and this is where we're going 21 to go, and the observers are going to be here and the TRU 22 is going to be over there. 23 Would you have shared that information 24 with Government? 25 A: I wouldn't have shared it with
911 Government. And to be clear, he wouldn't have shared it 2 with me. And if for some reason he felt the need to, I 3 would have cut him off. 4 Q: Okay. Now, so when we're talking 5 about operational information, there's operational 6 information that's more dangerous than other operational 7 information; isn't there? 8 A: Dangerous, impactful, yes. 9 Q: All right. So for example, if we're 10 kind of looking at what the most dangerous kinds of 11 operational information would be to share, I'm going to 12 suggest it would be the -- the imminent or future tactics 13 that are going to be employed right at the scene; am I 14 right? 15 A: Yes, sir. I believe I testified to 16 that. 17 Q: And -- and I guess the danger is that 18 if that's shared with the politicians, some politician 19 might say, Well use a hundred (100) men, not sixty (60), 20 or -- or, Do it at eleven o'clock, not at nine o'clock; 21 and -- and we just can't have any of that, can we? 22 A: I don't believe we can, and it is a 23 possibility those things could be said. 24 Q: And we didn't have any of that, as 25 far as you knew, on September the 6th, did we?
921 A: No, sir. 2 Q: Now one of the difficulties that you 3 have articulated is that some operational information, 4 albeit not the kind we just talked about, was being 5 shared in Incident Command and being sent up to the 6 bureaucrats and to the political figures, right? 7 A: Correct. 8 Q: And -- and you thought that some of 9 that information, as communicated through MNR, was also 10 inaccurate, right? 11 A: Inaccurate, and I had a belief that 12 some of it was tactical in nature, sir. 13 Q: Okay. So you had two (2) concerns, 14 the first was that some of it was inaccurate and the 15 second concern that you had is even if accurate, some of 16 that information should not be making its way up those 17 channels; am I right? 18 A: Correct. 19 Q: And -- and this formed a large 20 component of your conversation with Chris Coles; didn't 21 it? 22 A: Yes, sir. 23 Q: And we're going to hear from Chief 24 Superintendent Coles but -- but one of things that he 25 talked to you about is that he was concerned about
931 operational matters making its way up to the political or 2 bureaucratic level; am I right? 3 A: He was. 4 Q: And what you were trying to tell him 5 is, I understand it's an issue but it's a little bit out 6 of my control, Chief Superintendent, because it's coming 7 from MNR, not necessarily from me? 8 A: Correct. 9 Q: I have to deal with it once it's up 10 here, right? 11 A: That's what I said, yes, sir. 12 Q: Okay. Now, and what Chief 13 Superintendent Coles instructed you to do is limit the 14 amount and the currency of the information to the extent 15 to which you could; am I right? 16 A: Correct. 17 Q: Now I want to ask you about this: 18 What is your view as to whether the Interministerial 19 Committee should include a current police officer as 20 opposed to someone with historical policing experience; 21 do you have any views as to that? 22 A: I do, and I -- I believe I have 23 responded to this in -- in a previous question. There's 24 -- there's no doubt that it can be of assistance to the 25 Committee to have someone with police experience there.
941 In hindsight and certainly drawing back on 2 what my experience was, I think it would be more 3 preferable to have an individual in place who could be 4 identified in the front end to be that conduit for the 5 necessary non-tactical information that generally 6 provides an operational vent. 7 I also qualified that, sir, by saying 8 that, in my view, ideally that would be a First Nations 9 person. 10 Q: Okay. Certainly in relation to First 11 Nations incidents? 12 A: Absolutely, and that's the construct 13 of that committee. 14 Q: Okay. Now I want to go back to the 15 discussion that we had a little bit earlier about when 16 you told John Carson that the Premier believed that he 17 could direct the OPP. And I've asked you how John Carson 18 took it, I want to approach it now from a little 19 different perspective. 20 You told Commissioner Linden as recently 21 as yesterday, that that opinion that you formed was based 22 upon the Premier articulating the view that the OPP had 23 made mistakes, effectively, in withdrawing from the Park; 24 am I right? 25 A: That's correct, in part, yes.
951 Q: Now, so I want to just talk about 2 that feature because that feature has been raised with 3 Deputy Commissioner Carson, his decision and the 4 implications of his decision to withdraw from the Park 5 rather than confront the occupiers on September the 4th. 6 Did you doubt the propriety or the 7 correctness of John Carson's decision to withdraw from 8 the Park just because the Premier apparently did? 9 A: No, sir. 10 Q: And again, and I won't take you or 11 the Commissioner to the September 6th conversation again, 12 but we actually see that when Mr. Hodgson's raising this 13 issue, you challenge him directly on the implications 14 that the OPP is to be blamed for what transpired then; am 15 I right? 16 A: Yes, sir. 17 Q: Were you prepared to accept that the 18 OPP had acted incorrectly? 19 A: No, I wasn't, based on my knowledge. 20 Q: All right. Did you tell John Carson 21 that you had challenged that opinion? 22 A: I did. 23 Q: And we actually see in the September 24 6th dialogue at page 7, and I won't go through it again, 25 you are telling John Carson that you challenged the
961 opinion expressed by the highers up that the OPP had made 2 mistakes in withdrawing from the Park; am I right? 3 A: Correct. 4 Q: And -- and I'm going to suggest to 5 you that if one were to look at the -- at -- listen to 6 the tape, what was clear is that you were reinforcing 7 with John Carson the view that he had acted appropriately 8 in taking the steps that he had; am I right? 9 A: Correct. 10 Q: As a matter of fact, you went further 11 and said it wouldn't have mattered how many men you had 12 there, you just could not have controlled that situation 13 and maintained control of that Park; am I right? 14 A: I said that, yes. 15 Q: All right. And, you believed it? 16 A: I do. 17 Q: So it's been suggested here and I 18 don't know if you know this or not, that -- that John 19 Carson sent the officers down the road to make up for his 20 loss of the Park on September the 4th; in other words, 21 that he was being second-guessed within the OPP and that 22 somehow his decision to send the -- the officers down the 23 road was to make up for -- for what had transpired when 24 the Park was taken over. 25 Did you ever hear any comment by John
971 Carson that suggested that he was second-guessing that 2 decision? 3 A: No, sir. 4 Q: Did you ever hear any comment by 5 Chris Coles, either during the incident or after the 6 incident that led you to believe that he was second- 7 guessing John Carson's decision? 8 A: No, sir. 9 Q: And we've already heard that you 10 never second-guessed John Carson's decision, you thought 11 it was the right one in the circumstances? 12 A: Yes, sir. 13 Q: Now do you believe the theory that 14 John Carson sent the officers down the road to make up 15 for his loss of the Park on September the 4th? 16 A: Personally, I do not. 17 Q: All right. Does that make sense to 18 you. 19 A: It doesn't make sense to me. 20 Q: Now you were asked quite a few 21 questions about ex parte versus the more conventional 22 injunction, that is one with notice, right? And you've 23 now become somewhat of an expert on the distinction 24 between the two (2), unfortunately. 25 Mr. Klippenstein asked you some questions
981 about how the decision came to be made to seek an ex 2 parte injunction as opposed to an injunction with notice 3 and I'm not going to go through that; I'm interested in 4 something else. 5 The ex parte injunction was a type of 6 injunction which you and John Carson discussed, to a 7 limited extent, on September the 6th? 8 A: Correct. 9 Q: We've heard that, right? 10 A: Correct. 11 Q: And -- and you suggested and he 12 agreed in that conversation that -- that it could be 13 supported based upon the progression of events. And do 14 you remember that part of the dialogue? 15 A: I -- I mentioned that to him and he 16 responded, yes. 17 Q: Okay. And we've heard from John 18 Carson what he described as the progression of events. 19 He talked about the altercation when the police had 20 withdrawn from the Park on September the 4th and -- and 21 the damage to a police vehicle and somewhat violent -- 22 the violence that had accompanied that. 23 You were aware of that back then; am I 24 right? 25 A: Correct.
991 Q: And again, we actually see, if we 2 were going the Interministerial Committee meetings that 3 there's some reference to the circumstances under which 4 the Park was taken over, right? 5 A: There is. 6 Q: Secondly, he noted that there were 7 significant concerns in his mind about maintaining 8 security in the community as between the occupiers and 9 the non-native citizens and, again, that was a concern 10 that was articulated to you and which was discussed at 11 the Interministerial Committee meeting; am I right? 12 A: Yes. 13 Q: And he also expressed a concern that 14 that situation would be exacerbated by the passage of 15 time and, again, that was an issue that was raised within 16 the Interministerial Committee meeting and again in your 17 discussions concerning Ipperwash; am I right? 18 A: Yes. The passage of time was a 19 subject of discussion. 20 Q: All right. He mentioned that -- that 21 there was no dialogue ongoing at that point and that -- 22 and that he hoped that the injunction might stimulate 23 some discussion with the occupiers and was that a factor 24 that -- that, in your view, properly impacted upon the 25 issue that we're discussing now?
1001 A: That was a consideration, yes. 2 Q: All right. He mentioned the fact 3 that -- that a violent confrontation between the police 4 and occupiers had occurred involving a fire on the road 5 and rocks being thrown on the evening of the 4th and 6 damage to police cruisers and, again, you were aware of 7 that incident; am I right? 8 A: I became aware of it, yes, sir. 9 Q: And indeed, had discussed it at the 10 Interministerial Committee meeting; am I right? 11 A: Yes. 12 Q: He mentioned the fact that -- that 13 there was significant damage to the property that was 14 occurring within the Park itself and, again, that was 15 discussed at the Interministerial Committee meeting; am I 16 right? 17 A: It was. 18 Q: He mentioned the inability to control 19 access into the Park and that that was increasing through 20 time, in other words, that others might join the 21 occupiers making it more difficult, later on, to -- to 22 enforce an injunction and, again, that was a considering 23 that was being discussed at the Interministerial 24 Committee meeting; am I right? 25 A: Correct.
1011 Q: And it was a valid consideration; was 2 it not? 3 A: I believe it to be. 4 Q: He mentioned the fact that although 5 one couldn't take too much from it, that -- that gunfire 6 had been heard the previous and that that was a factor as 7 well; am I right? 8 A: Correct. 9 Q: And you were aware of that, of 10 course, and discussed it with John Carson and discussed 11 it at the Interministerial Committee meeting, right? 12 A: I was. 13 Q: Now the point here that I want to ask 14 you about is that, leaving aside this issue about who -- 15 who of those within the Interministerial Committee or who 16 of those within the cabinet might have been less 17 understanding of the nuances of First Nations issues, 18 just putting that issue all aside for a moment, 19 reasonable people could and did debate what kind of 20 injunction was appropriate in this particular case; 21 didn't they? 22 A: It was, yes. 23 Q: And -- and there were arguments, 24 again, leaving aside kind of a one dimensional, non- 25 nuanced approach to the occupation, there were legitimate
1021 arguments that existed in favour of an ex parte 2 injunction, as you saw it; am I right? 3 A: I would say there were arguments both 4 ways, sir, yes. 5 Q: Okay. So -- so just to highlight 6 them very, very briefly, arguments in favour of the ex 7 parte injunction, and I'm interested in legitimate 8 arguments in favour of the ex parte injunction, not -- 9 not arguments based upon a -- a one-dimensional, non- 10 nuanced or stereotypical approach to First Nations 11 issues, okay. 12 The first one I would suggest is that -- 13 is that there had been a series of encounters between the 14 occupiers and the police that might be seen as creating a 15 dangerous status quo, right? 16 A: Correct. 17 Q: And the length of time associated 18 with getting a more conventional injunction, with notice, 19 could arguably exacerbate that situation, right? 20 A: Yes. 21 Q: The longer the occupiers were in the 22 park the more difficult their removal would be, if the 23 Court so ordered, right? 24 A: Yes. 25 Q: You actually made that point at the
1031 Interministerial Committee meeting that, as they become 2 more comfortable with their environment, it might be more 3 difficult if ultimately the Court orders their removal, 4 right? 5 A: Yes. I -- I think my words were 6 familiarity with their surroundings, yes. 7 Q: Okay. And you thought I'd memorized 8 verbatim all of your words, I haven't. A legitimate 9 concern was that the protest might escalate through the 10 entry of others, and we've already discussed the fact 11 that that was a legitimate concern that had been raised; 12 am I right? 13 A: Yes, sir. 14 Q: And again, in favour, arguably, of an 15 ex parte injunction, right? 16 A: Yes, sir. 17 Q: The argument that we've already 18 discussed, that a quick injunction might stimulate 19 discussion with the occupiers, again, arguably favours -- 20 favours an ex parte injunction? 21 A: It could be, yes. 22 Q: Could be. Now people can take the 23 exact opposite approach, that we need more time to 24 stimulate discussion with the occupiers, favouring a 25 longer period. Reasonable people can differ, that's all
1041 I'm suggesting to you on this. 2 A: Yes, sir. 3 Q: All right. And -- and also in favour 4 of an ex parte injunction might be the argument that, 5 down the road, notice has to be given in any event and 6 there would be an opportunity for the status of the land 7 to be litigated before a final injunction was granted, 8 right? 9 A: Yes, sir. 10 Q: Okay. Now, as I say, the only point 11 here that I'm suggesting to you is that people who are 12 sensitive to First Nations issues could favour an ex 13 parte or a more immediate injunction; fair enough? 14 A: That's -- that's reasonable, yes. 15 Q: Okay. Now even Tim McCabe, who -- 16 who we've heard was favouring an injunction, with notice, 17 was discussing an abbreviated process with an injunction 18 almost immediately following the notice; wasn't he? 19 A: As I understand it, yes. 20 Q: Okay. Now what I'm going to suggest 21 to you is, the issue for you, and I'm talking about you 22 now, at the IMC and in the meeting with the Premier 23 wasn't that someone might favour an ex parte injunction 24 but that you were concerned that some people's views of 25 the situation were being influenced by an overly hawkish
1051 or one-dimensional view of the situation; am I right? 2 A: That was my primary concern, yes, 3 sir. 4 Q: Okay. Now you told John Carson on 5 September the 6th that the Commissioner was already 6 brought into the loop, and Ms. Vella has already asked 7 you a little bit about this, I -- I just want to add one 8 little point. 9 And you've indicated that you never spoke 10 to the Commissioner about this issue, as you can recall; 11 am I right? 12 A: That's correct. 13 Q: But I -- I do want to show you one 14 document, and -- and that's an issue note that's at Tab 15 51 of the Harris documents, and it's document 3000701. 16 MR. DERRY MILLAR: And the documents are 17 -- it's Exhibit P-529. 18 COMMISSIONER SIDNEY LINDEN: Is it in the 19 Commissioner's material? No. 20 MR. DERRY MILLAR: It's in -- 21 MR. MARK SANDLER: It's in -- it's in 22 Premier Harris's materials. 23 MR. DERRY MILLAR: Those two (2) volumes 24 of -- 25 MR. DERRY MILLAR: At --
1061 MR. MARK SANDLER: Tab 51. 2 COMMISSIONER SIDNEY LINDEN: I'm not sure 3 I have that. Oh, it's on the screen. 4 5 CONTINUED BY MR. MARK SANDLER: 6 Q: Now, this is Ministry of the 7 Solicitor General and Correction Services Issue Note 8 dated September the 6th of 1995, at 10:30 in the morning; 9 am I right? 10 A: I have it in front of me, sir, yes. 11 Q: And -- and you've already given 12 evidence that this is a document which you would have 13 seen back then in your role as Special Advisor to the 14 Deputy Solicitor General; am I right? 15 A: Correct. 16 Q: And what I'm just interested in is 17 the first line of the document. It says: 18 "The Commissioner of the OPP is aware 19 of the events at Ipperwash Provincial 20 Park, and OPP officers are monitoring 21 the situation." 22 I'm just wondering if there's any 23 connection between that entry in the issue note and -- 24 and you advising that the Commissioner is in the loop in 25 the situation?
1071 A: There is, and it's not only this 2 issue note. I testified earlier there were other issues 3 notes that were brought to my attention. Clearly, they 4 were prepared by the Commissioner's EA, then Inspector 5 Duffield (phonetic), on his behalf, certainly to inform 6 him in general terms -- 7 Q: Okay. 8 A: -- about whatĂs happening. 9 Q: Now you were questioned about the 10 burial site -- and I'm skipping around here just to deal 11 with some of the topics that were raised in cross- 12 examination. 13 And do you remember you were asked some 14 questions about a decision made at the Interministerial 15 Committee not to discuss the burial site allegation as a 16 communication or other strategy? 17 A: I recall that. 18 Q: And you indicated that you -- that 19 you disagreed with that decision, right? 20 A: Yes. 21 Q: And -- and we've already heard that 22 some at the meeting expressed the view that there was no 23 validity to the claim given the absence of any formal 24 claim by the Stoney Pointers, the position of the formal 25 band and -- and -- and the fact that even a burial site
1081 might not affect ownership of the land and you've been 2 through that and I'm not going to take you there again. 3 That was the -- that was some of the focus of the debate 4 that was taking place, okay? 5 A: Yes, sir. 6 Q: I'm only interested in -- in -- in 7 one (1) little aspect here and that is, assume for the 8 purposes of our discussion that at the Interministerial 9 Committee meeting a decision was made that -- that the 10 allegation of a burial site would not be communicated in 11 -- in some way or in some press releases or -- or what 12 have you. 13 And you quite candidly said you weren't 14 quite sure of the precise dimension of what -- of what 15 that decision was, but let's just assume that there's 16 that communication strategy in place that -- that the 17 allegation of a burial site will not be communicated, 18 okay? 19 A: Yes, sir. 20 Q: Did you ever take that to the OPP and 21 say it's part of our strategy here not to communicate the 22 allegation that the occupiers are making that there's a 23 burial site on the Park? 24 A: I don't recall that I did. 25 Q: All right. And as a matter of fact
1091 and you've already -- Mr. Klippenstein stole my thunder 2 because in the course of asking the questions, I -- I 3 rose and you heard me say that when Detective Sergeant 4 Wright was testifying before the motions judge on the 5 injunction hearing, he brought to the attention of the 6 judge that when he met with the occupiers, they 7 articulated their allegation that the burial site existed 8 on the Park; am I right? 9 A: I recall that. 10 Q: And that's actually at page 10 of the 11 transcript of the -- of the record. You weren't there, 12 so I don't -- I don't purport to -- to discuss that with 13 you. 14 Simply put, though, you have no 15 recollection that -- that this became part of an OPP 16 communication strategy to -- to disavow an allegation of 17 a burial site, right? 18 A: No, sir. 19 Q: And if it did, it obviously didn't 20 make its way to Mark Wright did it? 21 A: No, sir. 22 Q: Okay. Now you were questioned about 23 the fact that you communicated to government that the SIU 24 investigation was still ongoing and Mr. Falconer asked 25 you some questions about that and I want to be clear.
1101 Other than the fact that the SIU 2 investigation was still out there, were you collecting 3 details of -- of the SIU investigation or imparting to 4 government details about the SIU investigation? 5 A: No, I was not. 6 Q: Did you know the details of the SIU 7 investigation? 8 A: No, I did not. 9 Q: Did you think it was relevant that at 10 least it be known as part of the dynamic that there was 11 an SIU investigation that was still out there and 12 ongoing? 13 A: I thought it was important that 14 people were aware that it was there and ongoing. 15 Q: Why? 16 A: Well that's a necessary next step in 17 -- in terms of what had transpired; that's part of 18 civilian oversight, but it's -- it's something that I 19 didn't view I should, in order that I need to have very 20 specific details about. 21 Q: And I take it it was also relevant to 22 what was actually going on on the ground, because there 23 were -- 24 A: With respect to other considerations 25 and concerns about winterizing the Park and access and
1111 egress to the Park, yes. 2 Q: Okay. I'm going to switch topics yet 3 again and I want to ask you about negotiations. 4 And you've been asked a number of 5 questions about negotiations and I can tell you I'll -- 6 I'll let the secret out of the bag, your position as to 7 what the OPP can and cannot negotiate was similar, I 8 would suggest virtually identical, to how John Carson 9 characterized the distinction? 10 Whether you characterize what the police 11 can do as negotiating or frontline communications, you 12 were questioned about the mixed messages within 13 government and confusion within government on that issue. 14 Do you remember that line of questioning? 15 A: I do. 16 Q: And -- and you, quite fairly, noted 17 that -- that there were some mixed messages because of a 18 lack of understanding at times about what the OPP could 19 do and couldn't do and what negotiations that were 20 appropriate entailed as opposed to inappropriate, right? 21 A: That's correct. 22 Q: And -- and I take it that's why you 23 coined the expression 'frontline communications'. It was 24 an attempt -- a semantic attempt to try to make the 25 distinction a little bit clearer, right?
1121 A: To example it as best I could. 2 Q: Okay. Now, what I want to ask you 3 is, leaving aside the mixed messages within the 4 Interministerial Committee about the ranging of 5 negotiations that was or was not appropriate, did you 6 ever communication to John Carson that the police should 7 not be negotiating or communicating with the occupiers in 8 any way? 9 A: I did not 10 Q: Would you ever communicate that kind 11 of direction to him? 12 A: No, I would not. 13 Q: Or even suggest it to him. 14 A: No, sir. 15 Q: So, if Mr. Falconer correctly 16 ascertained Ms. Hutton's position and I'm not going to 17 get into that debate, any mixed messages that were 18 occurring within the Committee weren't making their way, 19 as far as you knew, to John Carson; am I right? 20 A: Correct. 21 Q: Now, the suggestion was that Ms. 22 Hutton was directing these comments to you, and I say "to 23 you" as opposed to the others in the room. Whether you 24 agreed or disagreed with her comments, did you take them 25 as a direction to you?
1131 A: No. 2 Q: Did you treat them as such? In other 3 words, did you pass them on as a direction? 4 A: No, I did not. 5 Q: Now, it was suggested to you, and you 6 agreed, that the police could not negotiate land claims 7 or the process to determine their legitimacy. And I'm 8 just interested in that second phrase because I think we 9 all know that the police can't negotiate the land claim 10 itself. 11 But you also agreed with Mr. Falconer's 12 suggestion that the police can't negotiate the process to 13 determine their legitimacy. So -- so, by way of example, 14 an OPP officer can't commit the Government to -- to 15 compulsory mediation to deal with a land treaty; am I 16 right? 17 A: That's fair, yes. 18 Q: Okay. What I'm interested in, is 19 were you saying that police can't negotiate process that 20 also has to do with public safety concerns? 21 A: No, I was not. 22 Q: Okay. Now, I want to take you back 23 to the conversation of September the 5th, which again is 24 at Tab 24 of the Commission's materials, Exhibit 444(a). 25 And I'm interested, in particular, at page
1141 3 of this transcript. And this is the context in which 2 I'm going to ask you the question. 3 Mr. Horton made the point that -- that 4 there was some lessons to be learned from you and one (1) 5 of the lessons is that one should expect that the OPP 6 communicate with the occupiers in a straightforward, 7 honest and factual way and not surprisingly, you agreed 8 with that suggestion, right? 9 A: Yes, sir. 10 Q: It's like motherhood and apple pie, 11 of course, right? 12 A: Yes. 13 Q: And what I'm going to suggest is that 14 put very simply, that means straight talk. You know, 15 tell them what the situation is -- 16 A: Yes. 17 Q: -- right? 18 And the only thing I want to ask you here 19 is that John Carson tells you at page 3 of this 20 conversation that -- that: 21 "We've met with Bert Manning, allegedly 22 one (1) of the people in the know, or 23 leaders if you would, and he asked that 24 our roadblocks be taken down and we 25 said that's not going to happen.
1151 And you know, they're trespassers and 2 as far as we're concerned they're 3 breaking the law and we will continue 4 to proceed in that direction." 5 And you say: 6 "Yeah, we'll take action that may be 7 appropriate." 8 And -- and I just want to be clear about 9 something here, that there's going to be evidence, I 10 suspect, that when Bert Manning was met with, he was told 11 that the roadblocks are going to remain, that the 12 position is that you're trespassers, and that the 13 Government is going to seek -- or the MNR is likely or 14 going to seek an injunction; are those appropriate things 15 to be communicating in a -- in a conversation with the 16 occupiers? 17 A: I believe that they are honest and 18 should be, yes. 19 Q: Okay. I mean, you wouldn't suggest 20 that -- that because you have a sensitivity to First 21 Nations issues, they shouldn't be told what the 22 Government position is or that the blockades are staying 23 up or the roadblocks are staying up; you're not 24 suggesting they should be misled to make them feel 25 better?
1161 A: I would never suggest that -- 2 Q: Of course. 3 A: -- First Nations or otherwise should 4 be lied to. 5 Q: All right. Now I want to go to Tab 6 31 of the Commission's notes. And Tab 31 is -- is 7 Exhibit P-517, document 2003794. And -- and we've heard 8 that these are the notes of Scott Patrick. And I want to 9 take you to the handwritten notes for September the 6th, 10 which are three (3) or four (4) pages in. 11 And I'm interested, in particular, in the 12 document that -- that is headed up, "Ron. 13 Considerations." If you can find that -- that page, it's 14 -- it's three (3) pages along -- sorry, four (4) pages 15 along in the handwritten portions of the notes. 16 A: I have it, sir. 17 Q: Now what we see earlier on in these 18 notes, and again I won't take you here -- there again, 19 but we also see another example of how you forcefully 20 disagree with what Ms. Hutton's views were, but I'm 21 focussing on something else here. 22 Here's Ron Fox saying: 23 "Considerations, long-term versus 24 short-term: Close Provincial Park, 25 dispute over ownership; trespass
1171 mischief, not serious charges; 2 appreciate the Premier's concern, but 3 should we rush in? Step-by-step 4 approach with longer-term view." 5 And what I'm going to suggest is that 6 almost all of the concepts that are being expressed in 7 that passage were repeated by you in your conversation 8 with John Carson about what had transpired at the 9 Interministerial Committee meeting; am I right? 10 A: Yes, sir. 11 Q: And -- and one of the features here, 12 when you're saying: 13 "I appreciate the Premier's concern, 14 but should we rush in? Step-by-step 15 approach with longer-term view." 16 What you are articulating here is that, in 17 response to the suggestion, that the Criminal Code 18 offenses simply be used, that you favoured an approach 19 that had an injunctive feature to it; am I right? 20 A: Correct. 21 Q: Okay. And then looking at the last 22 page of -- of those notes for September the 6th, Mr. 23 Rosenthal just asked you a question here and he -- he 24 asked you that -- that it appeared that the last subject 25 of the discussion at that meeting was:
1181 "Seeking injunction. OPP asked to 2 remove trespassers." 3 And -- and I want to ask you about the 4 context of that because I -- I didn't want a 5 misimpression left. I mean, at the end of the meeting 6 were you asked to take back direction to the OPP that it 7 remove the trespassers without an injunction? 8 A: No, sir. 9 Q: And I take it these are to be read 10 together, not separately, that's all I'm suggesting to 11 you; am I right? 12 A: Correct. 13 Q: Okay. Finally, we know that John 14 Carson was the Incident Commander back from 1993 to 15 September of 1995. You had been an incident commander 16 yourself; am I right? 17 A: Correct. 18 Q: You had an opportunity to evaluate 19 John Carson as an incident commander from your dealings 20 with him; am I right? 21 A: I did. 22 Q: You've had an opportunity to evaluate 23 John Carson, as an incident commander, after September 24 the 6th of 1995? 25 A: Correct.
1191 Q: Is there anything that you know that 2 has changed your view as to his skill, competence, and 3 First Nations sensitivity as an incident commander? 4 A: No, sir. I would say, if anything, 5 his skills, like most of us who practice the craft, get 6 better. 7 Q: Thank you, sir, those are all my 8 questions. 9 COMMISSIONER SIDNEY LINDEN: Thank you 10 very much, Mr. Sandler. 11 Mr. Millar, do you have any re- 12 examination? 13 MR. DERRY MILLAR: Commissioner, I have 14 no re-examination on behalf of the Commission Counsel and 15 the Commission. 16 I'd like to thank Superintendent Fox for 17 attending and giving evidence and you're done. Thank you 18 very much, sir. 19 COMMISSIONER SIDNEY LINDEN: I would like 20 to thank you on behalf of the Commission as well, 21 Superintendent. Thank you very much for coming and 22 giving us your evidence. 23 THE WITNESS: Thank you, Your Honour. 24 25 (WITNESS STANDS DOWN)
1201 MR. DERRY MILLAR: And, Commissioner, 2 before we move to the next matter, there's a matter that 3 I would like to attend to and this relates to the 4 criminal record of Mr. Dudley George that was dealt with 5 on April the 18th, 2005 during the testimony of Mr. 6 Maynard Sam George. 7 And the record was marked as an Exhibit P- 8 335 or the printout of the record that was received. 9 And the first incident matter on that 10 record was a charge of bigamy. And Mr. George, in 11 response to questions from Mr. Klippenstein and as well 12 in response to questions from me, was surprised at this 13 charge, given the fact that his brother would have been 14 seventeen (17) or eighteen (18) at the time. 15 And as a result of that, Mr. George made 16 inquiries with -- with respect to this issue with respect 17 to the charge that was outstanding in April of 1974 -- 18 that was dealt with in 1974, excuse me. 19 And the charge, actually, was one of 20 common assault under Section 245(1) of the Criminal Code 21 and it appears that the -- when the material, the 22 information, was provided to Ottawa and put into the 23 system that 245(1) became 254(1) and the criminal record 24 has been corrected and we have a new version of Exhibit 25 P-335 that confirms that the bigamy should have been
1211 common assault under Section 245(1) of the Criminal Code. 2 The charge -- the penalty was one hundred 3 dollars ($100) fine or in default thirty (30) days and 4 probation for one (1) year and I would ask that this 5 corrected version of the Exhibit P-335 be marked as 6 Exhibit P-335 in place of the one that's erroneous. 7 COMMISSIONER SIDNEY LINDEN: Thank you 8 very much, Mr. Millar. 9 Yes...? 10 MR. MURRAY KLIPPENSTEIN: Commissioner, 11 on behalf of Sam George, I'm pleased to accept that 12 correction and although I don't want to make light of the 13 actual charge, I know Sam's feelings were hurt when the 14 bigamy conviction came up because he didn't remember 15 being -- 16 COMMISSIONER SIDNEY LINDEN: Invited to 17 the wedding? 18 MR. MURRAY KLIPPENSTEIN: -- invited to 19 either wedding and now he can feel better about that. 20 COMMISSIONER SIDNEY LINDEN: Yes. And 21 it's hardly a common mistake. I suppose a lot could be 22 said; the less said the better. We accept the change and 23 the record is corrected. 24 MR. DERRY MILLAR: And thank you very 25 much, Commissioner.
1221 Now the next matter is the matter of the 2 motion by the OPPA and the OPP with respect to the 3 summons that was issued by the Commission and served on 4 the OPP with respect to the documents, discipline 5 documents. 6 COMMISSIONER SIDNEY LINDEN: Should we 7 wait until after lunch to start or should we start right 8 away? I think we could probably set some ground rules, 9 maybe, but I think we should wait until after lunch. 10 MR. DERRY MILLAR: Well perhaps what we 11 should do is, Mr. Falconer is not here -- 12 MR. JULIAN ROY: I'm here on behalf of 13 ALST. 14 MR. DERRY MILLAR: Oh. 15 MR. JULIAN ROY: Mr. Falconer is to be 16 here later -- 17 COMMISSIONER SIDNEY LINDEN: I'm sorry, I 18 can't hear you but. 19 MR. DERRY MILLAR: Okay, well, I guess we 20 can -- I was given the fact that I didn't think that Mr. 21 Falconer was here -- 22 COMMISSIONER SIDNEY LINDEN: Is Mr. 23 Falconer coming or are you going to be making the 24 argument? 25 MR. DERRY MILLAR: Mr. Falconer is
1231 walking in the door. He's -- 2 COMMISSIONER SIDNEY LINDEN: Oh, he's 3 walking in the door. 4 MR. DERRY MILLAR: As we speak, so -- 5 COMMISSIONER SIDNEY LINDEN: That's fine. 6 Let's take our lunch break now and we'll start this right 7 after lunch. 8 MR. DERRY MILLAR: Thank you, sir. 9 COMMISSIONER SIDNEY LINDEN: Is that 10 fine? I'm sorry, Ms. Twohig is trying to catch my 11 attention. 12 MS. KIM TWOHIG: Thank you, Mr. 13 Commissioner. We had -- the Province of Ontario have 14 requested permission to make brief oral submissions and 15 we have not heard back from Commission Counsel, so I was 16 wondering if we would be granted that permission and if 17 so, what the anticipated order of submissions will be. 18 COMMISSIONER SIDNEY LINDEN: Well, that's 19 what I meant by we're trying to sort that out, and yes, 20 on behalf of Mr. Horton we'll -- 21 MR. WILLIAM HORTON: Yes, Chiefs of 22 Ontario is also seeking leave to make oral submissions on 23 that. 24 COMMISSIONER SIDNEY LINDEN: Well, I 25 think we should try to develop some understanding.
1241 Do you want to do that now? I suppose we 2 should over the -- 3 MR. DERRY MILLAR: Sir, why don't we -- 4 MR. MARK SANDLER: Can I just contribute 5 to this discussion by only saying this, that -- that Ms. 6 Twohig's factum on behalf of the Province which normally 7 would be arguing these matters as -- as legal Counsel, 8 was of assistance to the OPP and frankly, I had not 9 intended to deal with a number of the cases and issues 10 that Ms. Twohig had raised, assuming that Ms. Twohig 11 would have her own opportunity to deal with them. 12 COMMISSIONER SIDNEY LINDEN: Right. 13 MR. MARK SANDLER: So, we've had some 14 discussion as between Counsel who support the OPP and the 15 OPPA's position and it probably would be helpful if Ms. 16 Twohig were permitted to make oral submissions and we 17 would not duplicate those submissions before you. 18 COMMISSIONER SIDNEY LINDEN: All right. 19 So, what we were proposing, or what I was going to 20 propose -- 21 MR. DERRY MILLAR: Yes? 22 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 23 Millar do you want to -- you were saying something more? 24 MR. DERRY MILLAR: No, no I was -- 25 COMMISSIONER SIDNEY LINDEN: I believe
1251 that we will call on Mr. Roland first; is that fair 2 enough? 3 The way we thought we might proceed is to 4 call on Mr. Roland first. 5 MR. JULIAN FALCONER: Mr. Commissioner, 6 good morning. 7 COMMISSIONER SIDNEY LINDEN: Good 8 morning, Mr. -- you've just arrived and you're -- 9 MR. JULIAN FALCONER: Well, I actually 10 sat outside -- 11 COMMISSIONER SIDNEY LINDEN: Okay. 12 MR. JULIAN FALCONER: -- with the -- with 13 the windows opening, listening to Mr. Sandler's re- 14 examination on live webcast for the last hour. 15 COMMISSIONER SIDNEY LINDEN: Thank you. 16 MR. JULIAN FALCONER: And -- but, Mr. 17 Commissioner, in terms of -- it certainly stifles my 18 objections, I might add. 19 In terms of process, though, could I make 20 the respectful suggestion. I tend to agree with Mr. 21 Sandler, going the same way with respect to the 22 submissions of -- for the Chiefs of Ontario -- 23 COMMISSIONER SIDNEY LINDEN: Yes. 24 MR. JULIAN FALCONER: The -- we don't 25 intend to replicate their submissions --
1261 COMMISSIONER SIDNEY LINDEN: Fine. 2 MR. JULIAN FALCONER: -- and would 3 respectfully suggest that equally that they simply be 4 allowed to deliver what is some very important argument. 5 The only thing I would suggest in terms of process is 6 those in favour of the Motion or the moving parties, all 7 go first so -- 8 COMMISSIONER SIDNEY LINDEN: That's what 9 I was going to suggest. 10 MR. JULIAN FALCONER: Fair enough. 11 COMMISSIONER SIDNEY LINDEN: What I was 12 going to suggest is Mr. Roland go first, followed by Mr. 13 Sandler -- 14 MR. IAN ROLAND: Mr. Commissioner, we've 15 spoken amongst ourselves and -- and given that the 16 documents are summonsed or subpoenaed, summonsed I guess, 17 is the proper term, from Mr. Sandler and Ms. Twohig 18 claims that they're her documents, and amongst ourselves 19 we've agreed that Mr. Sandler should go first, Ms. Twohig 20 second and I will follow the two (2) of them. 21 MR. DERRY MILLAR: I have -- 22 COMMISSIONER SIDNEY LINDEN: Well -- 23 MR. JULIAN FALCONER: It's fine with me. 24 MR. DERRY MILLAR: -- I have no objection 25 and -- and which case, then, Mr. -- Mr. Falconer would go
1271 next and -- 2 COMMISSIONER SIDNEY LINDEN: Sandler, 3 Twohig and then Mr. Roland, yes. 4 MR. DERRY MILLAR: And then -- 5 COMMISSIONER SIDNEY LINDEN: And then Mr. 6 Falconer -- 7 MR. DERRY MILLAR: Mr. Falconer and Mr. 8 Horton -- 9 COMMISSIONER SIDNEY LINDEN: -- and Mr. 10 Horton. 11 MR. DERRY MILLAR: I mean Mr. -- 12 COMMISSIONER SIDNEY LINDEN: -- Horner. 13 Horner. 14 MR. DERRY MILLAR: Yeah, Horner, excuse 15 me. 16 COMMISSIONER SIDNEY LINDEN: Okay. The 17 only thing I was going to try and do also at the outset 18 if -- if all --- while all Counsel are here and all 19 Counsel are standing is to try to determine some time 20 lines because I have the written material, it is 21 extensive. I have read all of the factums. 22 I haven't read all of the cases, but I've 23 read many of them and I would just like to establish some 24 reasonable time lines so we all know what to expect from 25 each other.
1281 Is that -- is that something that we can 2 do? I'd like to try to complete the argument of this 3 Motion this afternoon, for example. 4 If we come back at, say, 1:15. Mr. 5 Sandler, are you -- you're agreed to go first? 6 MR. MARK SANDLER: Yes. 7 COMMISSIONER SIDNEY LINDEN: How long do 8 you think you might need to make oral argument again, 9 accepting the fact that I have read the factums and many 10 of the cases but not all of them. 11 MR. MARK SANDLER: No, I understand. 12 Some of the cases, not even my cases, but some of the 13 cases that have been relied upon by the ALST and the 14 Chiefs, I have to deal with and go through. 15 COMMISSIONER SIDNEY LINDEN: Yes. 16 MR. MARK SANDLER: So I was going to say 17 an hour to an hour and fifteen (15) minutes. 18 COMMISSIONER SIDNEY LINDEN: Would that 19 be a reasonable amount of time -- 20 MR. MARK SANDLER: Yes. 21 COMMISSIONER SIDNEY LINDEN: -- an hour 22 to an hour and fifteen (15) minutes? 23 MR. MARK SANDLER: Yes. 24 COMMISSIONER SIDNEY LINDEN: Accepted. 25 Ms. Twohig, how long to you think you
1291 might need to make your argument? 2 MS. KIM TWOHIG: I estimate half an hour 3 to forty-five (45) minutes. 4 COMMISSIONER SIDNEY LINDEN: Again, that 5 sounds exactly what I had in mind. 6 And Mr. Roland...? 7 MR. IAN ROLAND: I think I could do it in 8 -- do my submissions in forty-five (45) minutes. 9 COMMISSIONER SIDNEY LINDEN: Well, we're 10 doing just fine. If everybody keeps to that, we're doing 11 fine. 12 Yes, Mr. Falconer, I think you would then 13 be next up. 14 MR. JULIAN FALCONER: That's right. And, 15 frankly, we -- we're tending to have to carry the ball 16 for the responding parties. In -- 17 COMMISSIONER SIDNEY LINDEN: Yes. 18 MR. JULIAN FALCONER: -- in the 19 circumstances, I expect to be roughly the period of time 20 that the three (3) parties have just mentioned to you. 21 So I expect our submissions will be between two (2) and 22 three (3) hours, which is -- we have to respond to three 23 (3) sets of -- 24 COMMISSIONER SIDNEY LINDEN: No, I 25 understand what you have to do but --
1301 MR. JULIAN FALCONER: Yeah. I -- I'm 2 sorry but that's -- if you look at their three (3) 3 factums, they don't -- they're not -- they don't keep 4 repeating the same thing, they identify three (3) sets of 5 issues with three (3) sets of case law that we have to 6 deal with. So I expect it will be about two (2) to three 7 (3) hours. 8 COMMISSIONER SIDNEY LINDEN: Two (2) to 9 three (3) hours. Well let's see where that takes us. 10 And yes, Mr. Horner, how long might you 11 estimate that you would be? 12 MR. MATTHEW HORNER: I'd estimate to be 13 about half an hour -- 14 COMMISSIONER SIDNEY LINDEN: Half an 15 hour. 16 MR. MATTHEW HORNER: -- to forty-five 17 (45) minutes. 18 COMMISSIONER SIDNEY LINDEN: Mr. Millar, 19 have you counted the time? 20 MR. DERRY MILLAR: Yeah. It's -- it's 21 three (3) hours approximately for Mr. Sandler, Ms. Twohig 22 and Mr. Roland. And so then it would be approximately 23 two and a half (2 1/2) to three and a half (3 1/2) hours 24 for Mr. Falconer and Mr. Horner, depending on how quickly 25 Mr. Falconer deals with --
1311 COMMISSIONER SIDNEY LINDEN: I mean, I 2 realize that -- 3 MR. DERRY MILLAR: -- if it's two (2) 4 hours or three (3) hours. 5 COMMISSIONER SIDNEY LINDEN: -- these are 6 estimates but what does the bottom line come to? Have 7 you added it up? 8 MR. DERRY MILLAR: It's six (6) hours. 9 COMMISSIONER SIDNEY LINDEN: Six (6). 10 Okay. Well if everybody holds to the time, we won't 11 finish today unless we go late because weĂre going -- 12 MR. DERRY MILLAR: And hopefully the -- 13 perhaps My Friends can hone their arguments over lunch 14 but -- 15 COMMISSIONER SIDNEY LINDEN: Well -- 16 MR. DERRY MILLAR: -- but one thing is 17 clear, that Chief Coles won't be reached this afternoon 18 and so Chief Superintendent -- retired Chief 19 Superintendent Coles would be the first witness tomorrow 20 morning. 21 COMMISSIONER SIDNEY LINDEN: Or whenever 22 the -- 23 MR. DERRY MILLAR: Whenever we're 24 finished. 25 COMMISSIONER SIDNEY LINDEN: -- argument
1321 is finished. 2 MR. JULIAN FALCONER: Could I address one 3 more matter, Mr. Commissioner? 4 COMMISSIONER SIDNEY LINDEN: Yes. 5 MR. JULIAN FALCONER: Just as a practical 6 matter and it's for planning purposes as a courtesy to -- 7 to yourself, Mr. Commissioner and your Counsel. 8 Realistically speaking, and with all of our best efforts, 9 I'm guessing, and I'm guessing, that we won't finish the 10 motion until between 11:00 and 12:00 tomorrow when you 11 include reply. Because, of course, the -- the moving 12 parties enjoy some right of reply. 13 And I'm just -- I'm trying to say it so 14 that people aren't given bad information and then it gets 15 worse. I respectfully suggest that what's going to 16 happen is the moving parties are going to get their full 17 argument in today and we're going to be close to the end 18 of the day. 19 COMMISSIONER SIDNEY LINDEN: We're not 20 going to rush you. 21 MR. JULIAN FALCONER: No. 22 COMMISSIONER SIDNEY LINDEN: You -- 23 MR. JULIAN FALCONER: They're going to 24 get their full argument in today and we're going to be 25 close to the end of the day. We're going to try to do
1331 exactly the same thing, be even less than a half day 2 tomorrow, we're going to squeeze in the reply and we're 3 going to finish the motion by lunch tomorrow. With the 4 greatest of respect, that's probably what's going to 5 happen, and I'm just trying to help on planning. That's 6 my take on it. 7 The other -- the other issue that I wanted 8 to speak to is some time ago, weeks ago, we had raised, 9 during the examination of Deputy Chief -- Deputy 10 Commissioner Carson, the issue of discipline of Kossett 11 (phonetic). And we were assured that we would be told in 12 advance of this motion, by the OPP in -- in particular, 13 whether there were any records relating to potential 14 discipline of Officer Cosset, Inspector Kossett I believe 15 is his rank. 16 And we have not heard. And we were told 17 that it dovetailed with the motion. In other words, it's 18 the same issue that comes up in the motion, but we've 19 simply had silence on it. 20 So what I'm encouraging My Friends over 21 the lunch break to do, is advise your Commission Counsel 22 and myself as to where we're at on that. Because, 23 obviously, we don't want to argue this thing twice. We 24 don't want to do this twice. 25 COMMISSIONER SIDNEY LINDEN: No. We
1341 don't want to do this twice. 2 MR. JULIAN FALCONER: Fair enough. 3 COMMISSIONER SIDNEY LINDEN: Thank you 4 very much, Mr. Roland. We'll see if you can sort that 5 out over lunch. 6 MR. DERRY MILLAR: Mr. Sandler is going 7 to have to speak for himself. I don't recall, and I'm 8 not -- that doesn't mean that -- that it -- I wasn't told 9 but I don't recall anything about Inspector -- about Mr. 10 Kossett, but -- 11 COMMISSIONER SIDNEY LINDEN: Well, I 12 don't remember where it was led, but I do remember some 13 discussion about it. 14 Were you here for that, Mr. Sandler? 15 MR. MARK SANDLER: Mr. Falconer did raise 16 the issue with you and, frankly, dealing with these, I 17 have forgotten entirely about it. So -- 18 COMMISSIONER SIDNEY LINDEN: So let's 19 see -- 20 MR. MARK SANDLER: -- I'll see what 21 inquiries I can make over lunch and, if not, I'll do my 22 best to have the answer before this motion gets too far 23 along. 24 COMMISSIONER SIDNEY LINDEN: Thank you. 25 We still have Ms. Twohig, yes...?
1351 MS. KIM TWOHIG: I'm sorry, Mr. 2 Commissioner -- 3 COMMISSIONER SIDNEY LINDEN: Is that mic 4 working -- 5 MS. KIM TWOHIG: -- one (1) -- 6 COMMISSIONER SIDNEY LINDEN: -- by the 7 way? Is that microphone working? Sometimes it doesn't 8 work. 9 It is? That's fine. 10 MS. KIM TWOHIG: I'll try this one. 11 Just another administrative matter. I 12 understand that the cases to be referred to by the 13 various parties were circulated electronically and we 14 tried to do that as well, so I had not planned to bring 15 copies of cases this afternoon, and I just wanted to 16 ensure that you had sufficient copies, your Honour, and 17 that no additional ones were necessary. 18 COMMISSIONER SIDNEY LINDEN: I believe I 19 have copies of your cases. 20 MS. KIM TWOHIG: Thank you. 21 MR. DERRY MILLAR: Yeah, just so that 22 everyone knows, we have -- the Commissioner has copies of 23 all of the -- the cases that were distributed and then 24 the Chiefs of Ontario prepared a separate brief and you 25 have that as well.
1361 COMMISSIONER SIDNEY LINDEN: I think I 2 have all the material. 3 MR. DERRY MILLAR: And the -- frankly, I 4 had forgotten about Mr. Kossett as well, but it's -- 5 presumably it's the same issue apply, the same principle 6 would apply to Mr. Kossett assuming he was disciplined or 7 whatever that -- that whatever -- 8 COMMISSIONER SIDNEY LINDEN: His position 9 is the sam. 10 MR. DERRY MILLAR: -- arises out of this 11 Motion the same principle should apply with respect to 12 another officer in the same position, I would have 13 thought. 14 COMMISSIONER SIDNEY LINDEN: I would 15 think so too, but if there's anything different you can 16 advise me in due course. So -- 17 MR. DERRY MILLAR: So that -- 18 COMMISSIONER SIDNEY LINDEN: -- we're 19 going to take a lunch break -- 20 MR. DERRY MILLAR: And, if I might, I do 21 tend to agree with Mr. Falconer that it's going to be 22 some time tomorrow morning and perhaps even at lunch, 23 realistically, unless people go faster than we think, to 24 -- before we're going to get to Chief Coles. 25 COMMISSIONER SIDNEY LINDEN: Okay. We'll
1371 now adjourn for lunch. Thank you very much. 2 THE REGISTRAR: This Inquiry stands 3 adjourned until 1:15 p.m. 4 5 --- Upon recessing at 12:40 p.m. 6 --- Upon resuming at 1:27 p.m. 7 8 THE REGISTRAR: This Inquiry is now 9 resumed. Please be seated. 10 11 (BRIEF PAUSE) 12 13 COMMISSIONER SIDNEY LINDEN: I got the 14 floor? 15 MR. DERRY MILLAR: You got the floor. 16 COMMISSIONER SIDNEY LINDEN: Okay, I know 17 I've been urging us to get on with it and make the 18 maximum use of the time we have left and we're going to 19 be having a meeting to discuss that issue, but 20 unfortunately we're all human and something unforeseeable 21 has occurred. 22 I have a problem with one (1) of my teeth. 23 A cavity fell out and the tooth is chipping and falling 24 apart and I need to have it looked after. I thought I 25 could wait until Thursday, to the end of the day, and go
1381 and see my dentist but apparently I need to have it 2 looked after right away. 3 So, what I thought I might do is -- is 4 finish the Motion today and tomorrow and then at the end 5 of the Motion whenever that is, I would have to go back 6 to Toronto and it would make no sense to come back up on 7 Thursday, so we'd have -- I'd have to cancel the sitting 8 on Thursday. 9 So, we wouldn't start with former Chief 10 Superintendent Coles until we come back after the break. 11 So, I'm sorry about that. I apologize for 12 any inconvenience that it causes anybody, but I feel that 13 if I don't have it looked after, it could -- it is 14 getting worse. It's been getting worse for the last day 15 or so. 16 So, we'll start, as we planned, and finish 17 with the Motion as we planned. 18 MR. DERRY MILLAR: And what I was going 19 to suggest to my colleagues is that rather than have 20 everyone stay here for the meeting tomorrow night at five 21 o'clock and some of the other -- I know Bill Horton and 22 others were thinking of coming up, that we hold the 23 meeting on Thursday morning at ten o'clock in the 24 Boardroom at the Inquiry offices. 25 And for those who, like Mr. Sulman and
1391 others, who are not from Toronto, that we can -- I'll 2 give them a telephone number to dial in and they can join 3 us by conference call unless, of course, they want to 4 come to Toronto. 5 But it -- some people were going to come 6 back, up for the meeting tomorrow and so that's what I 7 propose that we do. 8 COMMISSIONER SIDNEY LINDEN: Thank you 9 very much. 10 MR. JULIAN FALCONER: Mr. -- 11 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 12 Falconer...? 13 MR. JULIAN FALCONER: I hope you're 14 feeling better, Mr. Commissioner. 15 COMMISSIONER SIDNEY LINDEN: Well, I -- 16 thank you. 17 MR. JULIAN FALCONER: And I'm not going 18 to make any comments concerning the Inquiry being a 19 search for the tooth or anything like that. 20 Mr. Commissioner, the -- I'm sorry. I 21 tried a little levity. 22 The -- the issue surrounding Officer 23 Kossett has reached the stage where we're trying to make 24 an accommodation but it's important -- 25 COMMISSIONER SIDNEY LINDEN: Yes.
1401 MR. JULIAN FALCONER: -- from my clients' 2 perspective that I put a matter on the record, if I 3 could? It -- as I understand it, we're all going to try 4 to organize ourselves to incorporate the issue of Officer 5 Kossett in this Motion, so we don't have to do this 6 again -- 7 COMMISSIONER SIDNEY LINDEN: Yes. 8 MR. JULIAN FALCONER: -- and so it's 9 efficient and has some context. Because of the 10 information I've just gotten about the nature of the 11 existence of a file, and the position being taken, the 12 idea's going to be that Counsel for the OPP, Counsel for 13 the OPPA and, I assume, the other parties are going to 14 work on the basis that they understand that they're 15 equally resisting as if a summons has been served in 16 relation to the Kosset file, they're operating on that 17 basis as if a summons has been served - of course, it 18 hasn't. 19 And we will make argument starting 20 tomorrow morning as if they were resisting that summons. 21 The only reason I'm pointing it out about the timing is 22 because I've got to now take the different nature of that 23 file into account, into our argument and I'm asking for 24 the adjustment time to start tomorrow morning. 25 I don't think it's going to change
1411 anything one iota. Counsel intends to be three (3) hours 2 anyway. 3 COMMISSIONER SIDNEY LINDEN: Yes, I -- 4 MR. JULIAN FALCONER: I'm just -- that's 5 sort of how we're trying to do it, to include everything. 6 COMMISSIONER SIDNEY LINDEN: Well, I 7 understand what you're saying. The only thing I am 8 concerned about is I would have to try to get finished by 9 at least one o'clock tomorrow. 10 MR. JULIAN FALCONER: I would -- unless 11 my -- unless My Friends need an unusual amount of reply 12 time, I certainly -- our argument starts at 9:00 tomorrow 13 morning and we'll -- we will -- we will be finished, I 14 would have thought, and I -- I think that we can agree 15 amongst ourselves we'll be finished our end of the 16 argument by noon. 17 COMMISSIONER SIDNEY LINDEN: That's fine. 18 Then we should be all right. We should be all right. 19 MR. DERRY MILLAR: The -- and there's one 20 other issue I wanted to just address and raise before we 21 begin. 22 By letter dated June 16th, 2005, which I 23 provided to everyone by e-mail dated June 17th, 2005, Mr. 24 Roland, on behalf of the Ontario Provincial Police 25 Association requested that if after the end of the
1421 argument, that -- that there -- depending on what your 2 decision is, that if -- and I'll read it. 3 "If, after hearing submission, Justice 4 Linden proposes to enforce the summons 5 by requiring the OPP to produce the 6 documents to Commission Counsel and he 7 proposes to release the discipline 8 records and documents to the parties or 9 to permit them to be entered into 10 evidence, we request that he first 11 state a case in writing to Divisional 12 Court in accordance with Subsection 13 6(I) of the Public Inquiries Act. 14 If Justice Linden refuses to state a 15 case, this letter puts the Commissioner 16 on notice that we're instructed to and 17 shall apply to the Divisional Court for 18 an order directing the Commissioner to 19 state a case." 20 I wanted to -- 21 COMMISSIONER SIDNEY LINDEN: Yes. 22 MR. DERRY MILLAR: -- alert everyone 23 again to the request for a stated case at the appropriate 24 time. 25 The concern, as I understand it, from the
1431 Ontario Provincial Police Association is one of 2 enforcement of any order and before there is any 3 enforcement of such an order that there be a stated case. 4 COMMISSIONER SIDNEY LINDEN: Yes, I 5 understand. I read that letter and I understand that's 6 the effect of it. So, is that all right, Mr. Roland? 7 So, we don't have to do it twice, 8 obviously, we don't have to make this motion or have two 9 (2) stated cases. We can deal with it all at one (1) 10 time. 11 Are you ready to start your argument? 12 MR. MARK SANDLER: I am. 13 COMMISSIONER SIDNEY LINDEN: Okay. Then, 14 anything else? 15 Anything else anybody else wants to say 16 before we get into the substance of the motion? 17 I apologize to everybody, I really do. I 18 feel very badly about this. So, let's just carry on. 19 20 SUBMISSIONS BY MR. MARK SANDLER: 21 MR. MARK SANDLER: Thank you, 22 Commissioner. 23 Commissioner, you should have with you the 24 OPP's factum and, in particular, the application record 25 of the OPP, because I will be taking you to -- to both in
1441 the course of my submissions. 2 COMMISSIONER SIDNEY LINDEN: Yes? 3 MR. MARK SANDLER: Let me say at the 4 outset that the OPP's submissions are three 3-fold. And, 5 I don't intend to -- to take you through paragraph by 6 paragraph by factum. 7 Instead, what I propose to do is outline 8 the argument in a nutshell and then I want to take you, 9 if I may, to the Police Services Act because I think it's 10 important to -- to provide you with the framework that we 11 rely upon to support our submissions. 12 And then, I'm going to address some of the 13 submissions that have been made by the ALST and by the 14 Chiefs of Ontario. 15 My submissions on behalf of the OPP 16 comprise three (3) points and this is the argument in a 17 nutshell. The first is that the existing statutory 18 privilege under the Police Services Act disentitles you, 19 absolutely, in the absence of a consent from the 20 individual officers to access these records. 21 And, I hope to demonstrate, and I hope 22 that the OPPA and the Province of Ontario will 23 demonstrate to you that -- that the jurisprudence that 24 deals with similar codes of confidentiality and 25 inadmissibility have resulted in statutory privilege
1451 being absolute and admitting of no exception that is 2 applicable here and that any of the authorities that are 3 relied upon by the ALST or the Chiefs of Ontario involve 4 very different and more limited confidentiality of 5 provisions. 6 The second argument is, that in the 7 alternative if you are of the view that the code 8 contained in the Police Services Act does not operate as 9 an absolute bar, then in the very least there must be a 10 balancing of interests performed to determine whether the 11 confidential or privileged characters of these records is 12 trumped by the Commission's desire to access the records. 13 And -- and, my submission will be that 14 given the statutory provisions, which even if they don't 15 operate as an absolute bar, figure prominently in that 16 balancing, and given the fact that no one's innocence is 17 at stake here as in a criminal trial, where the balancing 18 is very different, and given the ability of this 19 Commission to probe the issues concerning -- concerning 20 these records without accessing them, the balancing test 21 is an easy one here. 22 And third, and the third point is related 23 to the -- to the second, and that is that even if you 24 disagree with me on the first two (2) points, you have a 25 discretion not to insist upon the production of these
1461 documents, given the issues at this Inquiry. 2 And most importantly, given whether the 3 Inquiry's mandate could be fulfilled without resort to 4 the documents. And put simply, the third point is that 5 we do not need those documents in order to fulfill your 6 mandate. 7 And again, I hope that you'll see from the 8 authorities that have been cited that -- that there's a 9 very significant distinction between the relevance of 10 these documents to the mandate of this Inquiry and the 11 relevance of other documents that have been regarded as 12 central to the work of other inquiries. 13 Now I want to say at the outset, and I say 14 this, frankly, not for your consumption but because this 15 is a public inquiry, that whatever position is taken on 16 these difficult legal issues, what this is not about, 17 with great respect, is the OPP insulating itself from 18 scrutiny as to how it addresses the conduct of its 19 officers. 20 In my submission, the OPP has an 21 obligation, in the absence of waiver by the individual 22 officers, to assert the position that I have articulated 23 here and -- and does so in complete good faith. And as 24 I'll submit to you, because it's also right. Right 25 counts.
1471 Now if I can take you to the factum for a 2 moment, at paragraph 5, I simply want to highlight for 3 you, sir, what it is that is contained in the records. 4 And in fulfilment of our obligation, when a privilege is 5 being asserted, we have provided to -- to all Counsel an 6 inventory of the records in the possession of the OPP. 7 And what you'll see is that these are 8 investigative reports prepared within Professional 9 Standards Branch, they are officer notebook entries. And 10 stopping there for a minute, there's no objection to the 11 production of notebook entries that were made in the 12 ordinary course, since those are producible and have been 13 produced by the OPP in any event. 14 There are officer Will States prepared as 15 a result of a complaint, there are handwritten and 16 transcribed statements of officers taken as a result of a 17 complaint, and duty reports prepared as a result of a 18 complaint. Now stopping there for a moment, you may 19 wonder, this -- this all sounds a little bit -- semantics 20 -- a little bit a result of semantics. 21 These conform to the descriptions of the 22 documents. They're -- they're quite similar in a variety 23 of ways. They are described in different ways within the 24 -- within the file. 25 What is significant is that the statements
1481 all originate as a result of a complaint. They were all 2 produced as a result of a complaint. The complaint is an 3 internal complaint within the meaning of Part V of the 4 Police Services Act. The statements consist of 5 information collected, not only from officers, but also 6 civilians. There's also information from the individual 7 who came forward and made the complaint. 8 And -- and I should say at once that that 9 individual, apparently, as reflected in the records, did 10 not proceed on this matter as a public complaint, and 11 there is that vehicle where that person can describe 12 oneself or himself as a complainant and has certain 13 rights by reason of it being carried forward as a public 14 complaint. So it is an internal complaint. That 15 person's information is in the file as well. 16 And a number of the statements contain a 17 preface that is reflected at the bottom of subparagraph 18 5, and that is that this is the first page of a 19 confidential duty report. 20 "It's being made to my employer in the 21 course of my employment at the request, 22 suggestion, direction or order of a 23 named officer, a superior officer, and 24 these are checked off in different 25 ways, in some instances that they're an
1491 order or a direction. 2 It's also being submitted as a 3 statement, as an attempt to resolve 4 informally, a complaint made against me 5 in accordance with the Police Services 6 Act and -- and that's been checked off 7 in some instances. 8 The reports submitted without prejudice 9 is non-voluntary. I object to and 10 claim privilege from the use of all, 11 any part or parts of the report in any 12 proceeding whether criminal or civil, 13 including disciplinary proceedings or 14 any investigation or inquiry. 15 Improper use of this report without my 16 consent is forbidden and any request 17 that I waive privilege will not be 18 honoured or recognized or that my claim 19 to privilege will not be honoured or 20 recognized must be directed to the 21 legal services branch of the OPPA." 22 And I'll comment upon the significance of 23 that a little bit later in my submissions. 24 My submission, in a nutshell, will be that 25 there is statutory recognition for the confidential
1501 character and the non-admissible character of those 2 statements that are contained in the file. 3 And as I've reflected, there are also 4 statements from civilians and there's a series of 5 internal documents that deal with issues surrounding the 6 events and the discipline that may or may not be imposed. 7 There is no instance contained in these 8 files of -- of formal discipline in the sense that that 9 term is used in Part V, namely discipline imposed as a 10 result of a public hearing that was conducted, and I'll 11 talk about the significance of that in a moment. 12 So, there were no notices of hearing 13 issued in relation to this matter and no public hearing 14 contemplated. This all involves informal discipline or 15 non-disciplinary discussions. 16 And as you can see from paragraph 7, the 17 OPPA was asked by the OPP what it's position was in 18 relation to the document summonsed and has refused to 19 consent to release of those records. And it's against 20 that background that I would like to take you, if I 21 could, to the actual Police Services Act and you'll find 22 it reproduced in the Application record at -- at Tab 1. 23 And if I can take you first, and I'm 24 citing Part V, which is the complaint section of the 25 Police Services Act.
1511 And -- and if you have that, sir I -- 2 COMMISSIONER SIDNEY LINDEN: Yes. 3 MR. MARK SANDLER: Look first at -- and 4 I'm just going to run through, if I may, the five (5) or 5 six (6) important sections that reliance will be placed 6 upon here. 7 And I may even editorialize in the course 8 of -- of reading the sections as to their implication. 9 Section 56 is that -- says that any member 10 of the public may make a complaint under this part about 11 the policies of, or services provided by a police force 12 about the conduct of a police officer. 13 And you'll see that subsection 2, and the 14 ALST relies upon this, has been repealed and under the 15 old legislation, in the comparable provision to Section 16 56, right up front, public complaints and internal 17 complaints were dealt with. 18 As I'll show you, Part V still deals with 19 internal complaints contrary to the ALST. It's simply 20 been positioned differently within the part. 21 So we then go to 56(7) which has a notice 22 provision. It says: 23 "Where the complaint is about the 24 conduct of a police officer, the Chief 25 of Police shall forthwith give the
1521 police officer notice of the substance 2 of the complaint unless to do so might 3 jeopardize the investigation." 4 And then, if I can move to section 58 -- 5 I'm sorry, 57(7) and 57(7) is a part that the ALST relies 6 upon, and in essence, it provides that a member of the 7 public does not include the police. 8 So, the ALST says, look at Section 56(1), 9 56(1) talks about public complaints or complaints by a 10 member of the public. Subsection 7 of 57 excludes police 11 officers as members of the public. Ah ha, that's not the 12 legal submission, but accordingly, Part 5 has no 13 application to -- to internal complaints. 14 And, just stopping there for a moment, if 15 I can take these sections out of order, and look with you 16 at Section 64, Complaints About Police Officers' Conduct, 17 you'll see under 64(1.1): 18 "The chief of police may, of his or her 19 own motion make a complaint about the 20 conduct of a police officer on his or 21 her police force other than the Deputy 22 Chief of Police and shall cause such 23 complaint to be investigated and the 24 investigation to be reported on in a 25 written report."
1531 And, 1.2: 2 "Except for those provisions or parts 3 of provisions respecting complainants, 4 this part applies to a complaint made 5 under Subsection 1.1." 6 So, what the scheme does, in essence is, 7 it creates both public complaints and internal complaints 8 and we're dealing with complaints under 1.1. And, the 9 distinction drawn is that there are rights that are given 10 to the complainants in a public complaint that are 11 irrelevant in the context of an internal complaint, for 12 example, notice to the complainant of action that's been 13 taken, rights of appeal under some circumstances, and the 14 like. 15 But it's quite clear that the provisions 16 that -- that the OPP and the OPPA rely upon of non- 17 admissibility, of secrecy, of non-compellability, all 18 have application to complaints that are made internally. 19 And, here it is. So, Part 5, undoubtedly, and the 20 provisions we rely upon apply to internal complaints. 21 So, the first basis upon which the ALST 22 asserts that our position is wrong doesn't bear scrutiny 23 in -- in my respectful submission. 24 Now, if I can skip back to Section 58, and 25 Section 58 discusses informal complaint resolution. And,
1541 58 Subsection 1 says: 2 "If, at any time, before or during an 3 investigation into a complaint about 4 the conduct of a police officer, the 5 conduct appears to be obviously conduct 6 that's not of a serious nature, the 7 chief of police may resolve the matter 8 informally if the police officer and 9 the complainant consent to the proposed 10 resolution." 11 So, stopping there for a moment, there is 12 some mechanism there for -- for informal complaint 13 resolution. 14 And then, you see under Subsection 3: 15 "No statement made during an attempt at 16 informal resolution of a complaint 17 under this section is admissible in a 18 civil proceeding including a proceeding 19 under Subsection 64(15) or 65(17) or a 20 hearing held under this part except 21 with the consent of the person who made 22 the statement." 23 I'm going to talk a little bit about the 24 language there in -- in a few moments, if I may. 25 Then, if I can skip ahead to Section 64
1551 and I've already to you 64(1.1) and -- and (1.2), so if I 2 can move a little bit further along within Section 64 to 3 64 Subsection 7. 4 And, Subsection 7, if you have that, says 5 that: 6 "Subject to Subsection 11, if at the 7 conclusion of the investigation and on 8 review of the written report submitted 9 to him or her, the chief of police is 10 of the opinion that the police 11 officer's conduct may constitute 12 misconduct as defined in Section 74 or 13 unsatisfactory work performance, he or 14 she shall hold a hearing into the 15 matter." 16 And, I won't take you to all the sections. 17 The chief of police will generally designate the hearing 18 to an adjudicator, in -- in essence, and -- and you'll 19 see that elsewhere in the provisions. 20 Then, you see in Subsection 10: 21 "At the conclusion of the hearing, if 22 misconduct is proven on clear and 23 convincing evidence, the chief of 24 police shall take any action described 25 in Section 68."
1561 And then, you've got Subsection 11: 2 "If at the conclusion of the 3 investigation and on review of the 4 written report, the chief is of the 5 opinion that there was misconduct but 6 it was not of a serious nature, the 7 Chief may resolve the matter 8 informally, without holding a hearing, 9 if the police officer and the 10 complainant consent to the proposed 11 resolution." 12 And stopping there for a moment, no 13 consent is needed, of course, as you'll see, if -- in a - 14 - if it's an internal complaint, as I've indicated 15 earlier on. 16 Then if you skip down to Subsection 15: 17 "If an informal resolution is attempted 18 but not achieved under Subsection 11, 19 the following rules apply: 20 The Chief of Police shall provide the 21 police officer with written information 22 concerning the matter and shall give 23 him an opportunity to reply orally or 24 in writing." 25 And we actually see those in the file.
1571 "2. Subject to paragraph 3, the Chief 2 of Police may impose on the police 3 officer the penalty described in 4 68.1(E), and may take any other action 5 described in 68.5, and may cause an 6 entry concerning the matter, the 7 penalty imposed and the police 8 officer's reply to be made in his or 9 her employment record. [And] 10 3. If the police officer refuses to 11 accept the penalty imposed or action 12 taken, in effect, the Chief shall hold 13 a hearing under Subsection 7." 14 So this is providing, in essence, if we 15 don't have kind of that preliminary informal resolution, 16 you serve a notice on the officer, This is what I 17 propose, This is your misconduct, This is what I propose 18 your penalty should be, If you accept it then that's the 19 informal discipline that's imposed, If you refuse to 20 accept it then you go to a public hearing. 21 And as you'll see in Subsection 16: 22 "An entry made in the police officer's 23 employment record under the above 24 section shall be expunged from the 25 record two (2) years after being made
1581 if there's no other entries concerning 2 misconduct or unsatisfactory work 3 performance have been made in the 4 record under this part." 5 So that has application, as you can -- as 6 you can hear -- as you know from the evidence that you've 7 already heard in this matter, to the mugs and T-shirts, 8 but does not have application to the Dyke and Whitehead 9 matter. 10 So then, moving ahead to probably the most 11 -- well, I'm sorry, the I go to Section 68. And I'm 12 sorry it takes a while to develop the sections -- 13 COMMISSIONER SIDNEY LINDEN: No. That's 14 fine. 15 MR. MARK SANDLER: -- but I think they're 16 important. And Section 68 are the powers of the Chief of 17 Police. And simply put, 68.1, A through D, are powers 18 that the Chief can exercise after a hearing, E and F are 19 powers that can be exercised as part of informal 20 resolution. 21 So you'll recall that John Carson informed 22 himself about Dyke and Whitehead and he indicated, in 23 relation to one (1) of the officers, that his information 24 was that these -- this was the penalty that was imposed 25 and that it was the maximum penalty, and that came right
1591 out of Section 68, for informal resolution, those are the 2 penalties under E and F. And also under Subsection 5, 3 counselling or a reprimand can also be administered. 4 And you heard a little bit about that, 5 again, when he informed himself about the -- about the 6 Dyke and Whitehead matter. 7 Now the most significant provisions are 8 the ones that I'm now about to address. The first is 9 Section 69, Subsection 9. And for the reasons that I've 10 indicated to you, sir, these sections, all of the three 11 (3) sections I'm about to read to you, undoubtedly, what 12 everyone says about the merits or lack of merits of the 13 various positions of the parties, these have application 14 to internal complaints. 15 Subsection 9: 16 "No document prepared as a result of a 17 complaint is admissible in a civil 18 proceeding except at a hearing under 19 this part." 20 Now stopping there for a moment. The 21 language is broad. It says: 22 "No document prepared as a result of a 23 complaint.÷ 24 Period. It's not confined to the 25 statements of -- of the complainant or, informally, of
1601 the individual who initiated the complaint. It's not 2 confined to the subject officers. It's not confined to 3 third party witnesses. It's any document prepared as a 4 result of a complaint. And that's all inclusive. 5 All of the documents with the exception of 6 the notebooks that also made their way into the file, all 7 of the documents and newspaper clippings that I've -- 8 that I've highlighted for you in the -- in the factum, 9 all of the documents were prepared as a result of a 10 complaint. 11 It says: 12 "No document is admissible in a civil 13 proceeding." 14 Now stopping there for a moment, there 15 have been formulations in other statutory provisions and 16 -- and every statute seems to have a slightly different 17 wording in many ways, but there have been formulations in 18 other statutes that talk about admissible against the 19 party or admissible to incriminate a party or what have 20 you. 21 This is admissibility, period. Is 22 admissible in a civil proceeding. It doesn't say against 23 -- against the party or to incriminate a party, just 24 admissible, generally. 25 And the language used is in a civil
1611 proceeding, not a civil suit, and so just by way of 2 comparison, Mr. Millar found a section under the 3 Education Act that talked about an exemption that deals 4 with a civil suit, Inquiry or Inquest. 5 And if only life were that easy here, that 6 you'd have specific reference to -- to Inquiry so you'd 7 know, with certainly, and there'd be -- and there 8 wouldn't be debate but my -- my point here is that it's 9 not confined to a civil suit; it extends to all civil 10 proceedings. 11 And my submission will be, as I'll hope to 12 show you, that a civil proceeding is a non-criminal 13 proceeding, that it ought not to be interpreted in the 14 way that the Chiefs of Ontario do, which basically would 15 suggest that it's confined to civil suits. 16 a) It doesn't say that; b) the -- it 17 doesn't make sense on a purpose of analysis, because an 18 administrative tribunal may make serious findings against 19 an individual, a police officer or other individual. 20 It's a civil proceeding, an administrative 21 tribunal and to read this in any other way would do 22 violence to a purpose of analysis of the subsection. 23 And my submission is, and I'll come back 24 to this, that an Inquiry and the only cases that deal 25 with this kind of issue, seem to treat an Inquiry as a
1621 civil proceeding. 2 Now albeit not in the same context - I say 3 that at once. If we had a case that said exactly what 4 we're debating here, you'd be back in Toronto a little 5 bit earlier in the afternoon. 6 COMMISSIONER SIDNEY LINDEN: Yes, I think 7 so. 8 MR. MARK SANDLER: But -- but the point 9 here that -- that I'm making is that on a purpose of 10 analysis we have to do with what we have. And what we 11 have is jurisprudence that analogizes and treats an 12 Inquiry as a civil proceeding for some purposes. 13 And my submission is, should be treated 14 for that purpose here, given the breadth of the language, 15 given the fact that a civil proceeding from a purpose of 16 analysis involves not only a successful civil law suit, 17 but also an administrative finding together with 18 penalties and damages, would also include a discipline 19 hearing because you'll see it says, 20 "as admissible in a civil proceeding 21 except at a hearing under this part." 22 So, even hearings under this part, are 23 civil proceedings, as defined under (9). 24 So, my submission is, it's quite clear 25 from the context and from a purpose of analysis, and I
1631 agree with the Chiefs of Ontario, if you apply a purpose 2 of analysis, that -- that a civil proceeding in this 3 context must include an Inquiry, and why not? 4 Because one of the things that you can do, 5 sir, is make findings of misconduct in the same way as at 6 a hearing under this part, findings of misconduct are 7 made. 8 So from a purpose of analysis the same 9 mischief that's addressed legislatively in subsection 9 10 has application to an Inquiry when you could rely on 11 these documents to make findings of misconduct against 12 the officers. 13 Then you go to subsection 10 and what I'm 14 going to show you is that this -- this Police Services 15 Act was designed to do a couple of things. 16 The first is, it creates a code for 17 admissibility and confidentiality and an extensive code 18 at that. 19 And my submission is, it rectifies whether 20 -- whether we agree with it or not, by "we" I mean the 21 collective we, whether we agree with it or not, it's 22 responsive to earlier cases that provided some access to 23 some of these documents for non-criminal purposes. 24 And my submission is that -- that for My 25 Friends to rely upon cases that pre-dated these statutory
1641 provisions, really defeats the whole purpose of the 2 exercise. 3 My submission is that the legislature, by 4 passing -- legislature by passing these provisions, have 5 made clear in 1997 and 2002 that we're into a new regime 6 here, we're into a regime that more highly respects the 7 confidentiality and non-compellability and 8 inadmissibility and secrecy associated with these 9 documents for valid, public interest, larger purposes 10 than the individual proceeding. 11 Now, again, so look at subsection 10. 12 "No statement made during an attempt at 13 informal resolution of a complaint is 14 admissible in a civil proceeding, 15 including a proceeding under..." 16 And then it lists some of the proceedings 17 that are held under this Act, so that civil proceedings 18 even include discipline hearings and informal resolution, 19 discussions and so on, except with the consent of the 20 person who made the statement. 21 It's not confined to the subject of the 22 investigation, or the object of the investigation, so it 23 includes those who brought forward evidence against 24 others, it includes subject officers, it includes non- 25 subject officers.
1651 It's language is broad and my submission 2 is that -- that the legislature was saying something 3 important in deciding that this inadmissibility provision 4 exists. 5 So that's not even it, because the 6 legislature decided, in its wisdom, to also add Section 7 80 of the Police Services Act. And Section 80, if I can 8 take you to that... 9 (BRIEF PAUSE) 10 11 MR. MARK SANDLER: I'm sorry, before I 12 take you to Section 80, I -- I should address the second 13 argument that the ALST made in connection with 69(9), so 14 I will try to address their points as we go through. 15 And the ALST makes the point that there's 16 a distinction between production and admissibility. So 17 all subsection 9 does, Commissioner, according to the 18 ALST, is it addresses admissibility, not production. 19 And in support of the ALST's position, 20 they cite the O'Connor Decision that test -- well, you 21 know what the O'Connor Decision, of course, is, that has 22 to do with the production of confidential records and the 23 regime that exists in the -- in the non-statutory 24 criminal regime that exists to balance competing 25 interests.
1661 Now stopping there for a moment, that 2 argument just falls flat for a simple reason. What 3 O'Connor and other decisions have said is that just 4 because we order production, it doesn't follow that the 5 documents will be admissible. 6 We're not deciding admissibility, we're 7 simply deciding production. 8 But the documents have to be capable of 9 being admissible, otherwise they wouldn't even be 10 produced. So that if -- if we're right, that the 11 statutory privilege prevents the production of the 12 documents, it's no answer to say this argument only deals 13 with -- this section only deals with admissibility, the 14 documents have to be capable of being admissible before 15 they're produced, otherwise why are they being used? Why 16 are they being used, then? 17 I mean, they -- they have them in their 18 hands. The only potential use could be made is -- is on 19 the basis of admissibility and my submission is that it 20 would do serious violence to the -- to a purpose of 21 analysis of the section to say that, even if documents 22 are statutorily privileged as inadmissible, that they can 23 still be produced to parties, even -- even under those 24 circumstances. It just doesn't work, with great respect. 25 Then if I can go to Section 80 and I
1671 suggest that you have to read all of these sections 2 together. And if you read all these sections together, 3 you're going to find some interesting parallels, because 4 you're going to find that these kinds of sections have 5 been dealt with in the jurisprudence. 6 And Mr. Roland and Ms. Twohig are going to 7 present to you, I'm going to suggest, as compelling 8 jurisprudence as -- as could exist on the point that 9 suggests that where these kinds of provisions, not some 10 other kinds of provisions that just deal in a general way 11 with secrecy, but when these kinds of provisions are 12 dealt with, inadmissibility, non-compellability, 13 confidentiality, as a code, it is a code, and an absolute 14 bar to -- to the use of these documents. 15 So here's what Section 80 says: 16 "Every person engaged in the 17 administration of this part shall 18 preserve secrecy with respect to all 19 information..." 20 And I underline those words, "all 21 information." 22 "...obtained in the course of his or 23 her duties under this part, and shall 24 not communicate such information to any 25 other person except..."
1681 And then there's four (4) exceptions, none 2 of which apply here. 3 "...as may be required in connection 4 with the administration of this act, to 5 his or her counsel, law enforcement, or 6 consent of the person to whom the 7 information relates." 8 And to whom the person -- information 9 relates can be the consent of Mr. Roland's clients, can 10 be civilians, can be commissioned officers. It is not 11 confined, as I said, to the targets of -- of the 12 information being collected. 13 Now, that was a section that was 14 introduced in 2002 and -- and there's some very 15 interesting features. First of all, that section has to 16 be distinguished from the kinds of sections relied upon 17 by the Chiefs of Ontario. 18 They, for example, provided you a very 19 interesting case, that I'm going to take you to, 20 TransAmerica, a decision of Mr. Justice Sharpe, as he 21 then was. And the confidentiality provision in that case 22 pertained to the Superintendent of Financial 23 Institutions. 24 I may get some of the terminology wrong. 25 I'm a criminal lawyer, not a financial expert. But --
1691 but the provisions, in essence, there were two (2) 2 provisions and they basically said there's an obligation 3 to keep information secret; that's it. Secrecy 4 provision. 5 Here we have not only this secrecy 6 provision or confidentiality provision, but the 7 confidentiality provision goes further and doesn't simply 8 say, You preserve secrecy, in some kind of general sense. 9 But, it also says, You preserve secrecy except under the 10 conditions that are enumerated and here they are. 11 And, again, the Legislature could have and 12 has on other occasions provided exemptions to 13 confidentiality provisions that talk about pursuant to an 14 order of the Court, for example. I mean, Your Honour is 15 familiar with those kinds of provisions where they say, 16 Except order of the Court. 17 That is not an exception that has crafted 18 here. And so my submission is that Section 80 is not 19 merely a generalized secrecy provision that basically 20 say, Don't gossip, because that's, you know, that's in 21 essence what the Chiefs of Ontario say, If you have a no 22 gossip provision then that can be overridden by subpoena. 23 And I agree, absolutely, there's no question about it. 24 But this is a confidentiality provision 25 that's coupled with exceptions that permit disclosure
1701 and, more important, is coupled in a code that also says 2 that documents prepared in the course of a complaint are 3 inadmissible, period, and -- and I've read those 4 sections, Subsection 9 and Subsection 10 to you. 5 The other thing that's interesting here is 6 that the ALST takes the position that this section cannot 7 address the records that were created post -- I'm sorry, 8 pre- November 2002; a kind of retrospectivity argument 9 that's been advanced on behalf of the ALST. 10 And, first of all, that has no application 11 to the Dyke and Whitehead records, which took place -- 12 you heard a little bit of evidence about it, but -- took 13 place after November of 2002, the discipline proceedings 14 in relation to those. So that argument has nothing to do 15 with Dyke and Whitehead. 16 But insofar as the T-shirts and mugs are 17 concerned, my submission is that you could take the 18 approach that Ms. Twohig takes in her factum, which says 19 that this is a procedural or evidentiary matter and, as a 20 result, it operates retrospectively. 21 My submission is you don't have to do 22 that. You don't have to do it because of the wording of 23 the section: 24 "Every person engaged in the 25 administration of that part" --
1711 So that's Commissioner Boniface, that's 2 the people in Professional Standards, the -- the record 3 holders and keepers. And I use Commissioner Boniface 4 because the summons is directed to her. She doesn't have 5 in her, as you know, she doesn't have in her hands the 6 documents. 7 But, the people engaged in the 8 administration of these parts shall preserve secrecy with 9 respect to all information obtained in the course of his 10 or her duties. Not created in the course of their duties 11 but obtained by them in the course of their duties. And 12 these records were all obtained in the course of their 13 duties under this part. 14 And frankly, again, I mean, if one were to 15 apply any sort of a purpose of analysis to suggest that 16 somehow documents are -- are immunized if they were 17 created a day before Section 80 as opposed to a day 18 after, it -- it just doesn't make sense. 19 The provision speaks presently to 20 documents that have been obtained by individuals in the 21 course of his or her duties. And all of these records 22 were so obtained, and Section 80 applies. 23 So, my submission is that -- that this is 24 an important code of confidentiality and non- 25 compellability and inadmissibility that cannot be ignore.
1721 Now, as I've say to -- to Your Honour a 2 little bit earlier on, there are sound policy reasons for 3 the approach. And -- and, of course, in a public inquiry 4 there's always general statements that are made about the 5 importance to have available all of the kinds of 6 information that -- that are important to the work of 7 inquiry. I mean, nobody doubts that. 8 And -- and I think -- I'd like to think 9 that your Commission Counsel would say that the OPP has - 10 - has been forthright and cooperative in providing a 11 wealth of materials on an ongoing basis to this 12 Commission to assist it in its work. That doesn't mean 13 that the Inquiry can run roughshod over the statutory 14 provision, because there are larger policy considerations 15 that apply here. 16 For example -- and these are just 17 illustrations, they're not exhaustive -- for example, the 18 statutory regime contemplates informal discipline. 19 What's the incentive of informal discipline? 20 The incentive is that officers can come 21 forward, acknowledge wrongdoing and not be subjected to a 22 public hearing and with all that that entails. 23 I suggest that -- that the position taken 24 by the respondents undermines the entire statutory scheme 25 that's intended, where possible, to encourage the
1731 informal resolution of complaints. 2 Second of all, officers are compelled by 3 superior order to cooperate with an internal 4 investigation. They cannot disobey an order to 5 cooperate. 6 And, as Your Honour knows, in the last few 7 years there has been a wealth of jurisprudence that talks 8 about use immunity for compelled testimony. It -- it 9 engages Section 7 of the Charter issues. And -- and it 10 has -- and it has changed the dynamic of how we argue 11 cases in Court. 12 And to just give you an example, it used 13 to be as a matter of course that if I were cross- 14 examining a police officer, in my other hat, I would 15 access a use of force report that the officer created. 16 Well, there's been a recognition now that there's -- that 17 there's a value to use of force reports internally and 18 that the Legislation has been changed, the regulations, 19 to talk about the fact that they're -- they're kept for a 20 limited purpose. 21 They can't be used against the officer 22 involved. And -- and, indeed, there's actually a 23 provision at the bottom half that identifies the officer 24 is -- is torn off and -- and destroyed and so on. 25 And -- and in one recent case the Court
1741 held that -- that there was complete use immunity in 2 relation to a use of force report relying upon Section 7 3 of the Charter and the fact that an officer is compelled, 4 as part of the duty, to -- to prepare a use of force 5 report. 6 It's specifically designed not to be used 7 against the officer. And the provisions that now exist 8 that regulate its use were factored in in determining 9 that it would violate Section 7 to admit it against the 10 officer. 11 So, there's also situations where people 12 come forward to provide information about an internal 13 complaint who do not want their information or their 14 names to be the subject of a public inquiry. And -- and 15 my submission is that there are, as I said, sound long- 16 range public interest considerations that trump the 17 desire to have these specific documents at this Inquiry. 18 So, it's not some -- it's not some 19 malevolent legislative intent. It's a legislative intent 20 where the Legislature has spoken about the issue. And, 21 in my submission, it also accords with -- with good 22 policy and common sense. 23 Now, my submission is, as well, that if 24 one examines two (2) authorities in particular that My 25 Friends rely upon, it kind of illustrates a few of the
1751 points that -- that I wish to make. So, if I can take 2 you first to the Chief of Ontario's -- the Chiefs of 3 Ontario authorities, and -- and I'm interested in the 4 Trans America Life Insurance Company case. And I think 5 you'll find that at Tab 5 of their materials. 6 And this is a decision -- if you have 7 that? 8 COMMISSIONER SIDNEY LINDEN: Yes, I do. 9 MR. MARK SANDLER: Yes, thank you. And 10 this is a decision of Mr. Justice Sharp as he then was in 11 1995 and My Friends, the Chiefs of Ontario, specifically 12 Mr. Horner, who got complete credit from Mr. Horton for 13 the factum and it is an excellent factum even though I 14 disagree with every word of it, but they rely upon this 15 case to advance the proposition that a statutory 16 privilege is not an absolute bar to the use or 17 admissibility of evidence at a proceeding -- at this 18 proceeding. 19 And it's interesting to look at what Mr. 20 Justice Sharp was deciding, because as I indicated to you 21 earlier, this had to do with documentation that was 22 provided to the Office of the Superintendent of Financial 23 Institutions. 24 And if I can take you to the critical 25 passage that My Friends relied upon, and it's at page 9
1761 of the judgment. And -- and I -- I guess I should just 2 go back to the bottom of page 8 just to show you what the 3 confidentiality provisions were there. There were two 4 (2) of them. There was the Office of the Superintendent 5 of Financial Institutions Act, which I know well -- I'm 6 being a little facetious there -- Section 22: 7 "All information regarding the business 8 or affairs of a financial institution 9 or persons dealing therewith that is 10 obtained by the superintendent or by 11 any person acting under the direction 12 of the superintendent as a result of 13 the administration or enforcement of 14 any act of parliament is confidential 15 and shall be treated accordingly." 16 So it simply says, when you get it, it's 17 confidential. There's no exemptions, it's not coupled 18 with any inadmissibility or non-compellability 19 provisions. 20 And similarly, the Insurance Companies Act 21 says the same thing, "confidential and shall be treated 22 accordingly." 23 Now, not surprisingly, many of us in -- in 24 -- many of us in government, many of those in government, 25 have -- sign -- sign or swear oaths of confidentiality
1771 and are required to treat information acquired 2 confidentially and sometimes that's statutorily 3 recognized, but in those circumstances, it's not 4 surprising that that's not an absolute bar to 5 admissibility. And here's what Justice Sharp says about 6 it, and I'm looking at the second -- or the last 7 paragraph: 8 "Second and perhaps more fundamental, 9 even if these statutory promises of 10 confidentiality do apply, a statutory 11 promise of confidentiality does not 12 constitute an absolute bar to 13 compelling production of the documents 14 and information in the possession and 15 control of OSFI. 16 I see no reason to give statutory 17 confidentiality a higher degree of 18 protection than any other form of 19 confidentiality. There's no reason why 20 parliament should be taken to have 21 adopted the legal category of 22 confidentiality without intending that 23 category to have its ordinary legal 24 meaning and effect. 25 It's well-established that confidential
1781 information may be subpoenaed and 2 introduced in evidence if ordered by a 3 court. The general rule is that 4 although information is confidential, 5 it must be produced unless the tests 6 laid down in Slavutych and Baker is 7 met." 8 Now, that was the passage that My Friends 9 reproduced in their factum. Let's keep going if we may. 10 "Parliament could have provided that 11 the information and documents at issue 12 here could not be compelled by summons, 13 but in my view, to accomplish this end 14 specific language to that effect would 15 be required." 16 And then, Justice Sharpe cites Peter Hogg 17 on liability of the Crown: 18 "Many statutes contain provisions that 19 expressly make information 20 confidentiality -- confidential. The 21 scope of these provisions is a matter 22 of interpretation in each case. Those 23 provisions that specifically prohibit 24 the introduction of evidence in court 25 will obviously be effective to withhold
1791 the protected material from 2 litigation." 3 And I rely on those words. More commonly, 4 however, such provisions prescribe confidentiality, but 5 say nothing specific about the introduction of evidence 6 in court, such provisions have been interpreted as not 7 barring either the production of documents in Court or 8 oral testimony in Court. 9 So I rely upon this case, the case helps 10 me. In my submission, it's entirely supportive of the 11 position that I advocate and it's -- it's the -- and if 12 one looks at the other cases that are cited by the Chiefs 13 of Ontario, either on general principles or otherwise, 14 they have no application. 15 For example, they cite the Pay UK Tanil 16 (phonetic) case that has to do with Children's Aid 17 records and specifically in that case, and I won't take 18 you to it, but at paragraph 20 it says there's no 19 statutory privilege in Ontario which protects the records 20 and documents of Children's Aid Society from disclosure 21 in these proceedings. 22 So -- so if you're dealing with a 23 statutory privilege one has to look at the specific 24 provisions that -- that are obtained -- that apply and 25 looking at the specific provisions, applying Peter Hogg,
1801 applying TransAmerica my submission, they assist me 2 rather than detract from my position. 3 Then, if I can go to the -- to the other 4 case that figures prominently in the -- in the 5 respondent's position and that's the Delong case which is 6 cited by Aboriginal Legal Services of Toronto in its 7 materials and -- and if you have their cases, this is at 8 Tab 7. 9 Now the DeLong case, I've noticed -- I 10 note at once, for your Honour, is a 1989 Court of Appeal 11 case. Does your honour have that? 12 COMMISSIONER SIDNEY LINDEN: It doesn't 13 seem to be at tab 7 of the -- 14 MR. DERRY MILLAR: Well they have 15 different tabs -- 16 MR. MARK SANDLER: Yes, I'm sorry. 17 MR. DERRY MILLAR: ű- than we do in our 18 book that we put together for you. 19 COMMISSIONER SIDNEY LINDEN: Oh, I'm 20 sorry. So, what -- 21 MR. DERRY MILLAR: You have to look at 22 the -- 23 COMMISSIONER SIDNEY LINDEN: You got to 24 look at the index. 25 MR. DERRY MILLAR: ű- Tab 4.
1811 MR. MARK SANDLER: I'm sorry, it's at 2 your Tab 4 -- 3 COMMISSIONER SIDNEY LINDEN: Yes, it's at 4 Tab 4. 5 MR. MARK SANDLER: Yes, thank you. We 6 just did it from the electronic version so. 7 COMMISSIONER SIDNEY LINDEN: That's fine. 8 MR. MARK SANDLER: Now, this is a 9 judgment of Mr. Justice Griffiths speaking for the Court 10 of Appeal, back in 1989. 11 Now, I'll stop here at once to say it's 12 pre-O'Connor, but more importantly, if your Honour were 13 to look at the Police Act that existed in 1989 we do not 14 have the code of confidentiality, inadmissibility, non- 15 compellability that we have now. 16 It's not even a -- it's not even a -- an 17 issue that is addressed in Delong and my submission is, 18 if one reads Delong, the legislature can be seen to be 19 responding to what the Court of Appeal said in -- in 20 Delong. 21 But that being said, I could stop there, 22 frankly, and in my submission that would be the end of 23 the matter. 24 But -- but it gets better than that, 25 because if I can take you to page 11 of the -- of Justice
1821 GriffithĂs Decision, and it's a little difficult to read, 2 because this is the Quick Law version and -- but, we'll 3 try to fare. 4 It's just after the -- the notation, page 5 419. 6 COMMISSIONER SIDNEY LINDEN: Yes, I see 7 that. 8 MR. MARK SANDLER: "Did the trial judge 9 err in refusing to order production of 10 witness statements of Crown witnesses 11 obtained in the course of an 12 investigation by the Complaint 13 Investigation Bureau of the PO Regional 14 Police Force. 15 After his arrest, the Appellant filed a 16 complaint about the conduct of the 17 arresting police officers with the 18 Complaint Investigation Bureau of the 19 PO Regional Police Force. 20 An investigation was carried out by 21 that Bureau and statements were 22 obtained from the police officers 23 involved as well as from other persons, 24 including witnesses that the Appellant 25 proposed to call at trial in his
1831 defence." 2 Now stopping there for a moment. The 3 context for this case is a situation where the 4 complainant, seeking the production of the records, was 5 the person who made the complaint. And the information 6 of the officers and the information of the witnesses, 7 some of whom he's relying upon to defend himself at 8 trial, and I underline at criminal trial, he wants their 9 statements to refresh their memory. 10 So just stopping there for a moment, the - 11 - the context to that application is completely different 12 than the context to the application we have here, and one 13 of the cases that My Friends, the ALST, cite in support 14 of their position and Mr. Justice Cole and Tomlinson and 15 I won't -- I won't turn it up, but he actually says that. 16 He actually says, there's a very different 17 situation when you're applying to access the -- the 18 discipline files of officers whose credibility is an 19 issue in a case. It's -- it's very different than the -- 20 unrelated to the -- the matter before the Court. 21 It's very different than the situation in 22 Delong, which had to do with a complainant seeking to, in 23 effect, bootstrap, as he called it, by bringing a 24 complaint and then seeking the information relating to 25 his complaint in the very criminal case that relates to
1841 that complaint. So even My Friend's authorities 2 distinguish the law. 3 But - but going ahead, Justice Griffith 4 says that a voir-dire was held and Detective Volch 5 (phonetic) testified he was in charge of the Complaint 6 Investigation Bureau and in investigating a complaint, 7 the Bureau would request reports from the officers. He 8 testified that while no assurances of confidentiality are 9 given to the officers, it's implied that, as a result of 10 negotiations, these reports would not be used against 11 them in Court. 12 Well, stopping there for a moment, I mean, 13 here we have statutory as well as factual assurances of 14 confidentiality. You've got a statutory assurance of 15 confidentiality. There it was a stretch to even say that 16 there were any assurances of confidentiality. 17 And Justice Griffith said as much and -- 18 and he -- and just skipping down to after the page 420: 19 "Counsel for the Crown does not, on 20 this Appeal, seek to uphold the trial 21 judge's ruling on the issue of 22 privilege." 23 So the Crown didn't even support the 24 position resisting production. 25 "Counsel for the Intervenant suggests
1851 that the contents ought not to be 2 disclosed on public interest 3 privilege." 4 And then the -- the four (4) public 5 interest privileged points are articulated by Justice 6 Griffith. And he says, at the middle of page 12 -- or, 7 sorry, about a third of the way down page 12: 8 "There's some doubt in my mind that the 9 evidence here establishes a true case 10 of confidentiality. The officer 11 admitted no assurances of 12 confidentiality are given, they're just 13 implied. However, accepting for the 14 purpose of this Appeal, that the first 15 condition of -- has been met, I'm not 16 persuaded that conditions 2 and 4 are 17 satisfied in the circumstances of this 18 case." 19 And then he cites Campbell and Paton, 20 which is a 1979 case of Justice Osborne that cast doubt 21 upon the need for confidentiality between the police 22 officers and the Complaint Bureau. 23 And the argument is, basically, if -- if 24 officers are forthright this shouldn't inhibit disclosure 25 of police officers. And -- and skipping down -- and I'm
1861 going quickly here, but skipping down about ten (10) 2 lines, citing Conway and Rimmer: 3 "It does not follow that the same is 4 true if the only objection to 5 publication is apprehension that makers 6 of similar documents will be less 7 candid if they have to contemplate 8 possible publication of their report." 9 Now stopping there for a moment. So what 10 Justice Griffith is saying is that if you're looking at 11 the Common Law privilege, it may be that if your only 12 rationale to -- to objection to publication is that 13 officers will be less candid if they contemplate possible 14 publication of their reports, that doesn't seem to be -- 15 that seems to do a disservice to the vast majority of 16 police officers. 17 Well, that's not the only rationale that 18 exists for the confidentiality associated with these 19 records. And more importantly, the Legislature doesn't 20 buy into this reasoning. I mean, the Legislature has -- 21 has overborne the reasoning of Mr. Justice Griffith if it 22 had to because now we have a statutory provision that 23 acknowledges the public interest in confidentiality of 24 these records, in non-admissibility of these records, in 25 non-compellability, and in secrecy.
1871 And -- and it gets better still because if 2 one looks a little bit further down, it says -- he talks 3 about the fact that -- that: 4 "In light of the conditions as they 5 presently exist" -- 6 And, as I've said, the statute has changed 7 since these decisions. 8 -- "it's better for the community if 9 the reports be disclosed and they kept 10 -- be kept confidential. I'm not 11 satisfied that, under condition 4, the 12 injury that would result to the 13 relationship between the police 14 officers and the Complaint Bureau has a 15 social value that would outweigh the 16 public interest" -- 17 And I underline these words. 18 -- "in favour of the accused facing a 19 serious criminal charge of having the 20 right to disclosure to enable him to 21 make full answer in defence. 22 In Nielson and Lowdorn (phonetic), the 23 English Court of Appeal declined to 24 order production of reports for the 25 purpose of a civil proceeding on the
1881 basis that it would be contrary to the 2 public interest. However, Lord Justice 3 Oliver said, If public policy prevents 4 disclosure, it prevents it in my 5 judgment in all circumstances except to 6 establish innocence in criminal 7 proceedings." 8 So, there it is. This supports our 9 position, with great respect because not only does it 10 pre-date the statutory privilege that's now recognized 11 and overbears the long case itself, but Justice Griffith 12 is saying the balancing, even if one were engaged in a 13 balancing process at stage 4 of the -- of the public 14 interest privilege test, the reason why the balancing 15 favours production is it's a criminal case and cites the 16 authority that says if you're going to prevent 17 disclosure, it prevents it in all circumstances except to 18 establish innocence in criminal proceedings. 19 Now, skipping back, when I interpreted, 20 "civil proceedings" for you my submission is, it -- it 21 accords entirely with the rationale and purpose that -- 22 that I've articulated through the jurisprudence and that 23 is that criminal proceedings raise very different issues, 24 very different issues. That's why you see a litany of 25 criminal cases, a number of which we've cited, a number
1891 of which the OPPA cites that does balance various 2 considerations in determining whether or not documents 3 should be produced because innocence at stake, the right 4 to make full answer in defence in a criminal case always 5 has the potential of trumping a statutory privilege. 6 So, my submission is, it -- this 7 reinforces my interpretation of civil proceedings and -- 8 and it reinforces how the Delong does not assist Your 9 Honour as well. And, if you look also at the Campbell 10 and Paton case, that -- that My Friends also cite Tab 5. 11 I'm really buzzing through this very 12 quickly, Your Honour. If I'm -- if I'm going a little 13 too quickly, you'll -- you'll tell me, of course. 14 COMMISSIONER SIDNEY LINDEN: No, you're 15 not going too quickly. 16 MR. MARK SANDLER: Okay. Good. Campbell 17 and Patton was cited with approval in the Delong case and 18 I simply point out it's a 1979 case and at paragraph 8 it 19 says: 20 "It was strongly argued by counsel for 21 the applicants that in the public 22 interest there should be 23 confidentiality and privilege of 24 reports given by police officers to the 25 Citizens' Complaint Bureau."
1901 And, it says one (1) of the prime roles is 2 conciliation. If production's ordered, the function of 3 conciliation would be defeated. 4 It was said that in many jurisdictions, 5 reports to tribunals investigating complaints against 6 members of a police department were completely 7 privileged. Reference was made to the relevant statute 8 in force in British Columbia, the United Kingdom, and to 9 propose legislation which would receive first reading in 10 Ontario. 11 So, stopping there for a moment, this case 12 is of absolutely not assistance to the ALST except to 13 reinforce the point that if legislation were in place as 14 it now is under the Police Services Act, the situation 15 would be very different. 16 So, my submission is that -- that the most 17 significant cases relied upon by ALST and the Chiefs of 18 Ontario and I've -- I've gone through them very quickly, 19 do not support their position and on a careful reading 20 actually support our position. 21 Now, having said that, the most powerful 22 jurisprudence in -- in support of our position isn't 23 knocking down their cases. There are actual cases that 24 deal with analogous provisions to those contained in the 25 Police Services Act and deal with them in a way that
1911 creates an absolute statutory bar and not simply a 2 preference that can be overborne in a civil proceeding. 3 Criminal proceeding, different 4 considerations apply and I don't intend to -- to take you 5 through those cases because Ms. Twohig and Mr. Roland 6 will deal with those, the most significant of which are 7 the Cook and IPP case and the -- and the Forget and -- 8 and Sutherland case. 9 Now, I do want to comment upon one (1) 10 other aspect here and that's -- and that's a case that is 11 in the province's materials and that is the -- the Guy 12 Paul Moran Commission Case. 13 And, this is -- this is in the cases that 14 you were provided by the Province of Ontario. 15 This is Tab 12 in your Province of Ontario 16 materials. 17 18 (BRIEF PAUSE) 19 20 MR. MARK SANDLER: My Friend, Ms. Twohig, 21 has allowed me to comment on this case, because I have a 22 particular interest in it and this was -- this was a 23 judgment -- is the case -- the case was -- the 24 Application was successfully resisted, despite the fact 25 that I was Counsel for the Commissioner, not because of
1921 it. 2 But this is kind of an interesting case, 3 because at -- at the public Inquiry that was taking place 4 into the wrongful conviction of Guy Paul Morin Counsel 5 for the Jessop family brought an application first to the 6 Commissioner and then to the Divisional Court to compel 7 the jurors, who had sat at Guy Paul Morin's conviction to 8 testify. 9 And -- and Commissioner Kaufman ruled that 10 he would decline to call those jurors in part because 11 Section 649 of the Criminal Code operated as a bar to the 12 disclosure of any information relating to their 13 deliberations. 14 So, there was a -- there is a statutory 15 privilege as you know, that -- that exists in relation to 16 the discussions that take place in a jury room. 17 And -- and what -- and what Commissioner 18 Kaufman said and what was upheld by the Divisional Court 19 was that -- was that not only is there the statutory bar, 20 and there was the same debate about whether you could 21 overwhelm the statutory bar through a summons and given 22 the breadth of a Public Inquiry and its importance and 23 what could be more important than investigating a 24 wrongful conviction, but the Commissioner's reasons 25 reflected the fact that even before the deliberations
1931 began, each of those jurors was told that they can't 2 disclose what was in that jury room. 3 And that -- and that it would be unseemly 4 with those judicial admonitions so firmly and 5 unequivocally stated to summons those jurors to appear 6 before the Commission under pain of contempt. 7 And my submission is that there's a real 8 analogy here, to officers who rely upon the statutory 9 provisions that protect against the use of the 10 information they provide and civilians and the 11 information that they provide, and of course, they can -- 12 they could waive if they chose to but -- but there are no 13 waivers. 14 But, in the absence of a waiver, they rely 15 upon the statutory provisions that exist that prohibit 16 the use of those materials and then it would be unseemly 17 to be compelling, in effect, their testimony through 18 their statements at the Public Inquiry. 19 And the other feature of the -- of the Guy 20 Paul Morin Divisional Court hearing that was -- was of 21 importance, was that the Commissioner and the Divisional 22 Court both acknowledged that it was not necessary to 23 fulfil the mandate of the Inquiry to access those jurors. 24 And one could even make the case that -- 25 that -- that there's a more compelling case to hear from
1941 the jurors in a case of wrongful conviction as central to 2 its mandate, but -- but I have to say to you, with great 3 respect, that this is not an unlimited and unfocussed 4 Inquiry that's being conducted here. 5 You are to look at the facts surrounding 6 the death of the Dudley George and I submit that -- that 7 even if you were to decide, and Ms. Twohig has some 8 submissions about this, but even if you were to decide 9 that part of your mandate would include the exploration 10 of the discipline that was or was not meted out to these 11 particular officers, this is not a generalized look at -- 12 at racism either of the OPP or any other institution. 13 To the extent to which the issues impact 14 upon your mandate and no more, should you be looking at 15 these issues? 16 And my submission is that, even if you 17 were to determine that the discipline that was or wasn't 18 meted out is important feature of your mandate, you're 19 going to hear from Commissioner Boniface. 20 She can be asked, you know, what was the 21 discipline that was meted out, Why was that the only 22 discipline that was meted out, Why not more, Why not 23 less. Commissioner O'Grady is going to be here. He was 24 the commissioner at the time that the mugs and T-shirts 25 were dealt with. He can be asked all those questions.
1951 It may not be perfect from the perspective 2 of -- of Mr. Falconer or others, but my submission is 3 that you could address that issue in a way that does not 4 do violence to the rights -- to the statutory privilege 5 that exists, that addresses that issue and recognizes 6 that although that might be an -- an important issue, it 7 really isn't central to the mandate of this Inquiry, 8 unless we're going to go off onto a generalized 9 examination at large of -- of racism in the OPP or any 10 other institution. 11 And -- and my submission is that, again, 12 you'll hear from Ms. Twohig a little bit more fully on 13 that. 14 So, if we get passed the statutory 15 privilege issue, I have submitted in -- in my factum that 16 -- that a balancing still has to take place, even if you 17 were to conclude that the statutory provisions do not 18 operate as an absolute bar and even if you were to 19 include and get over the second hurdle, which is that in 20 the exercise of your discretion you decide that it's 21 important, that you need these documents to fulfill your 22 mandate. 23 And that's the test. And my submission is 24 that that test can't be satisfied in relation to these 25 documents, that you need them to fulfill your mandate.
1961 But if you get over those hurdles, you 2 say, It's not an absolute bar, I need them to fulfill my 3 mandate, The issues can't be addressed to my satisfaction 4 without accessing these documents through the questioning 5 of -- of the former and present Commissioner, then they 6 still are confidential records. They still are 7 employment records. 8 There are a litany of cases, whatever 9 position one takes on the issues, that says that 10 confidential records aren't simply trumped by issuing a 11 summons without anything more. And especially in the 12 context where there's a statutory confidentiality that 13 has been imposed. 14 In the very least, there has to be a 15 balancing to consider whether or not the game is worth 16 the candle. And the presumption is in favour of non- 17 disclosure, not disclosure. 18 I have a burden of demonstrating privilege 19 here. But in the absence of privilege, there's still a 20 burden on a party seeking the records to demonstrate a la 21 O'Connor or a la a comparable civil process, that the 22 balancing favours the production of what are statutorily 23 confidential records. 24 And the balancing is different when the 25 statutory confidentiality has been recognized, the prima
1971 facie inadmissibility, non-compellability, secrecy, have 2 all been recognized statutorily. And I -- and I've made 3 that argument as fully as I can make it in the factum and 4 I'm not going to develop it further. 5 I only have one (1) practical suggestion 6 in relation to that and that is that if you're of the 7 view that the privilege is not an absolute -- the 8 statutory privilege is not an absolute bar, so if I'm 9 wrong and if Mr. Roland is wrong and if Ms. Twohig is 10 wrong about that point, and -- and My Friend Mr. Roland 11 has quite fairly indicated, as -- as is his obligation to 12 do, that -- that in the event that you were to decide to 13 the contrary, he's requesting that you state a case, it 14 would seem to me that, as a matter of pragmatics, that -- 15 that you can't engage in the balancing at that stage. 16 Even if you were to decide that there's a 17 balancing that follows, that -- that a case would have to 18 be stated to resolve the absolute privilege issue and -- 19 and that that Court would then have to decide whether the 20 documents are -- are producible or return it to you to 21 decide the balancing issue. I'm not sure, it's kind of a 22 thorny issue in and of itself whether you have 23 jurisdiction as opposed to a Court to engage in the 24 balancing prior to a production of records. 25 But my point is, for practical purposes,
1981 the absolute statutory privilege issue would have to be 2 resolved before any balancing would take place. 3 Those are my respectful submissions. I'm 4 grateful to you. 5 COMMISSIONER SIDNEY LINDEN: Thank you 6 very much, Mr. Sandler. 7 I think we'll take a break. You stayed 8 within the time that you estimated, that was excellent. 9 It's a quarter to 3:00 now, I think we'll 10 take a break. Thank you very much. 11 THE REGISTRAR: This Inquiry will recess 12 for fifteen (15) minutes. 13 14 --- Upon recessing at 2:47 p.m. 15 --- Upon resuming at 3:04 p.m. 16 17 THE REGISTRAR: This Inquiry is now 18 resumed, please be seated. 19 COMMISSIONER SIDNEY LINDEN: I thought 20 Ms. Twohig was going to be next. 21 MR. IAN ROLAND: Yes. 22 COMMISSIONER SIDNEY LINDEN: Are you 23 switched around? 24 MR. IAN ROLAND: Ms. Twohig asked me to - 25 - asked me to go first before her. I'm happy to do it.
1991 COMMISSIONER SIDNEY LINDEN: Just before 2 you start, Mr. Roland, there's a couple of questions I 3 just wanted to ask Mr. Sandler, if I may, just before you 4 start? 5 MR. JULIAN FALCONER: Mr. Commissioner, I 6 indicated to My Friends and -- and to your Counsel that 7 on hearing Mr. Sandler's extremely compelling argument, 8 but to be honest -- 9 COMMISSIONER SIDNEY LINDEN: You've 10 withdrawn your -- 11 MR. JULIAN FALCONER: The reference to 12 Part 5 not applying. 13 COMMISSIONER SIDNEY LINDEN: -- hmm hmm. 14 MR. JULIAN FALCONER: We think -- we 15 think, with -- with great respect and to be honest with 16 the Court, we got it wrong. So, my apologies and we -- 17 we still say absolutely the rest of our materials and 18 that our point is right, but that -- on that narrow 19 issue -- 20 COMMISSIONER SIDNEY LINDEN: But Part 5 -- 21 MR. JULIAN FALCONER: -- is applicable, 22 yes, and my apologies. 23 COMMISSIONER SIDNEY LINDEN: That's fine. 24 Thank you very much. That makes -- there are some other 25 questions that I might ask you, Mr. Sandler, but I'd
2001 rather not ask you at this point -- 2 MR. MARK SANDLER: Oh, okay. 3 COMMISSIONER SIDNEY LINDEN: -- until I 4 hear some of the other arguments, but there is something 5 that I would like to ask you if I may? 6 You indicated that when Commissioner 7 Boniface or former Commissioner O'Grady testified we can 8 ask them questions and get most, if not all of the 9 information, that you believe we need in order to fulfil 10 our mandate. I'd like to explore that with you a little 11 bit, if I may, for example, what questions we could or 12 couldn't ask. 13 Are you prepared to discuss that with me? 14 MR. MARK SANDLER: Yes, of course. What 15 I was suggesting was, if you don't accept Ms. Twohig's 16 submissions, which is that none of this is properly 17 within your mandate -- 18 COMMISSIONER SIDNEY LINDEN: Hmm hmm. 19 MR. MARK SANDLER: -- and you say, I 20 think it is within my mandate -- 21 COMMISSIONER SIDNEY LINDEN: Yes. 22 MR. MARK SANDLER: -- then -- then 23 Commissioner O'Grady could be asked by your Counsel and 24 other counsel what was the discipline -- with -- without 25 getting into the names of the people that were involved.
2011 COMMISSIONER SIDNEY LINDEN: Is that the 2 only thing that we couldn't ask, the names of the people 3 who were involved? 4 MR. MARK SANDLER: I guess I'd have to 5 think through whether there's -- whether there's anything 6 else, but you could -- could certainly ask -- 7 COMMISSIONER SIDNEY LINDEN: Would you 8 give it some thought? 9 MR. MARK SANDLER: Pardon me? 10 COMMISSIONER SIDNEY LINDEN: Would you 11 give that some thought? 12 MR. MARK SANDLER: I'll give that some 13 thought, but you certainly could ask, you know, what was 14 the form of discipline that was imposed, why was that -- 15 COMMISSIONER SIDNEY LINDEN: How many 16 officers were involved? 17 MR. MARK SANDLER: And, how many officers 18 were involved. 19 COMMISSIONER SIDNEY LINDEN: What the 20 rank was of the people who were involved? 21 MR. MARK SANDLER: Rank involved, yes. 22 COMMISSIONER SIDNEY LINDEN: And a number 23 of questions you could ask -- 24 MR. MARK SANDLER: Whether they were 25 involved, whether anybody disciplined was in a decision-
2021 making capacity and so on. 2 COMMISSIONER SIDNEY LINDEN: Yes, all of 3 those questions? 4 MR. MARK SANDLER: I -- I would think so. 5 I'll -- I'll certainly consider that over night, but -- 6 COMMISSIONER SIDNEY LINDEN: Yes. I 7 would appreciate it. 8 MR. MARK SANDLER: -- and -- and also 9 speak to Mr. Roland to make sure that I'm not doing 10 violence to his -- his approach, but I would think that - 11 - I would think that there could be a fairly extensive 12 range of questions that could be asked without getting 13 into the content of the files. 14 COMMISSIONER SIDNEY LINDEN: That's fine. 15 So, if you'll give that some thought, we'll talk about it 16 again tomorrow. 17 MR. MARK SANDLER: I will. 18 COMMISSIONER SIDNEY LINDEN: Thank you 19 very much, Mr. Sandler. 20 Mr. Roland...? 21 22 SUBMISSIONS BY MR. IAN ROLAND: 23 MR. IAN ROLAND: Mr. Commissioner, My 24 Friend Mr. Sandler has canvassed pretty well all of the 25 submissions that you're going to hear from me and from
2031 Ms. Twohig. What is left is some detail to deal with 2 some of the particular details concerning some of the 3 issues that are raised in the motion before you. 4 Let me begin by telling you what I'm not 5 going to respond to or deal with because I think Mr. 6 Sandler has dealt with it already. 7 And let me tell you that I'm dealing with 8 the first part of our submissions dealing with the 9 statutory privilege and Ms. Gleitman will deal with the 10 balance. She's here and -- and will deal with the -- the 11 balance. 12 Let me start by telling you that I'm not 13 going to respond to the four (4) issues raised by ALST 14 and Mr. Falconer's client. I think that Mr. Sandler has 15 dealt with each of those apart from the second issue he 16 raises, which Ms. Twohig has dealt with in her factum and 17 I gather will address you on. 18 So I'm not going to seek to answer those. 19 I think they've been either answered by Mr. Sandler or 20 will be dealt with by Ms. Twohig. 21 COMMISSIONER SIDNEY LINDEN: Thank you. 22 MR. IAN ROLAND: Let me turn to what I am 23 going to submit to you. And the first issue I'm going to 24 deal with is -- is the issue of Section 80 and the 25 confidentiality provision or secrecy provision that is
2041 there set out. And I'm going to give it -- its -- both 2 its statutory context with respect to the provisions of 3 69(9) and 69(8) and take you to some of the cases 4 including Trans America, which My Friend has already 5 dealt with largely, but I want to deal with it a bit. 6 The other two (2) cases raised by Mr. 7 Horner in his factum. And to deal with the issue I raise 8 in Glover and Glover in that context, that is whether or 9 not there's some overriding discretion that you would 10 have to allow this evidence, even in the face of the 11 statutory provisions. 12 COMMISSIONER SIDNEY LINDEN: Thank you. 13 MR. IAN ROLAND: I'm then going to lastly 14 turn to the issue of the term, "civil proceeding." 15 You've heard evidence about -- or submissions about that 16 from Mr. Sandler, but I'm going to focus you particularly 17 on some of the cases and particularly the Forget and 18 Sutherland case and then also the Steinecke case. 19 Let me then start, if I could, in dealing 20 with the issue of confidentiality or secrecy as set out 21 in Section 80. 22 The argument goes from Mr. Horner's factum 23 that secrecy is something, or confidentiality is 24 something that the Courts have recognized as a kind of 25 private arrangement but cannot stand in the face of the
2051 demands, exigencies of a Court to get at the facts 2 through, as it may, a summons or subpoena, where there 3 are relevant facts. 4 And he sets out for you, and relies upon a 5 number of cases. In particular, at paragraph 20 of his 6 factum he relies upon three (3) cases for the proposition 7 that private promises of confidentiality cannot stand in 8 the face of the exigencies of Court proceedings to get at 9 the relevant facts. 10 Those three (3) cases, I say, really are 11 no help to you at all, because that's all they stand for, 12 that is that a -- a -- a private organization, such as 13 the National society for the Prevention of Cruelty to 14 Children or a hospital or other -- in that case, the Red 15 Cross in the Sharbesty (phonetic) case or a defendant in 16 the Bell Express case has made some kind of promise -- a 17 private promise of confidentiality and the Courts, quite 18 properly say, that cannot stand in the way of the 19 introduction of relevant evidence in a -- in a juridical 20 proceeding. 21 The main case that -- then that Mr. Horner 22 relies upon is the Trans America case and has been 23 pointed out to you by Mr. Sandler. That case, the 24 Decision of Sharpe J. as he then was, dealt with a 25 statutory promise of confidentiality but it was there
2061 alone, a statutory -- a statutory indication or promise 2 of confidentiality that he compared and analogized to a 3 private promise of confidentiality. 4 In fact, he says that in the Decision. 5 It's -- I think -- the case was turned up for you by Mr. 6 Sandler and he referred you to page 9 and you'll see, 7 above the -- the provisions that he refers you to, Sharpe 8 J. speaks to the issue of an -- this being analogous to 9 or similar to a private arrangement or a promise of 10 confidentiality. 11 What is most significant in that case is 12 the -- is the provisions that or the -- or the excerpt 13 that is -- was read to you by My Friend dealing with the 14 excerpt from Hogue (phonetic), in which the distinction 15 is made between a promise of confidentiality, whether 16 it's statutory or otherwise, simplicitor, and a statutory 17 scheme, which is referred to in the passage, of the 18 exclusion of evidence, the exclusion of documents in 19 evidence. 20 And, of course, that's where we are. That 21 is our statutory scheme. What is missing from that case 22 is Section 69.8 and 69.9, and those provisions then 23 inform the meaning import and reach of the 24 confidentiality provision found in Section 80. 25 The similar point is made, and I'll take
2071 you to it very briefly, Ms. Twohig cites it in -- in her 2 material, in the Cook and Ipp case. And in that case Mr. 3 Justice Cory, as he then was, of the Court of Appeal, 4 said, at paragraph 17 and 18 -- sorry, it's not 5 paragraph, I was looking at her factum. 6 Unfortunately, the case that was provided 7 to us is not paragraphed, but if you -- in that case what 8 Justice Cory was looking for is the legislative intent, 9 and he looked at the change in legislation that had 10 occurred in that case under -- of the Health Insurance 11 Act from an earlier version to a later version. 12 And what he found in that case was that 13 the -- the provision that had earlier occurred in the -- 14 in the legislative change before the provision that he 15 was looking at to interpret, did not have in it the 16 provision that allowed information to be disclosed 17 pursuant to subpoena by a court of competent 18 jurisdiction. 19 And what he concluded from the change as - 20 - was that the intent, there was that change and also a 21 removal -- unfortunately, my pages aren't numbered but 22 it's about four (4) pages in on the report, the removal 23 of a section similar to our 69.8 from the earlier 24 version, which prohibited a -- a person engaged in the 25 administration of the Act -- this Act, that is:
2081 "No person engaged in the 2 administration of this Act shall be 3 required to give testimony in any civil 4 suit or proceeding with regard to the 5 information obtained." 6 And he took the removal of that section, 7 there, that subsection, together with the introduction of 8 the provision that allowed for, as an exception, 9 information that was summonsed or subpoenaed, he took 10 that to move that case, that legislative scheme from 11 being one that restricted the introduction of -- of that 12 -- of the evidence that was sought to be introduced, to 13 permitted the Court to determine whether it should be. 14 So, it's the -- it's really the kind of 15 converse of the earlier case, where -- where it was 16 missing, if you had it in. And then he's saying it was 17 in but now it's been changed and removed, the restrictive 18 provision has been removed and, therefore, the Court has, 19 therefore, now a discretion whether or not to allow it. 20 Our case has the restrictive provisions. 21 COMMISSIONER SIDNEY LINDEN: It wasn't 22 there and now it is, is what you're saying. 23 MR. IAN ROLAND: Yes. Our case, it 24 wasn't there -- our case has the restrictive provisions. 25 For our purposes, sixty-nine nine (69.9) and sixty-nine
2091 eight (69.8) create the restrictive provisions that 2 inform Section 80 and therefore create, to use the 3 language of the -- of the Court of Appeal, and I'll get 4 to it in Forget and -- and Sutherland, a code. 5 And let me speak for a moment about -- 6 about the concept of a code of discipline. 7 There are enumerable cases in the 8 disciplinary context for police and we haven't given you 9 all of them or any of them, in fact, but there -- there 10 are all kinds of them in which the courts -- the Court of 11 Appeal on down have spoken about the fact that Part 5 -- 12 it used to be Part 5 and 6, now Part 5 -- is an 13 exhaustive and complete code. 14 That is, police officers cannot be 15 disciplined apart from the Code of Conduct and the code 16 that's found in Section 5 or Part 5 of the Police 17 Services Act. that's it. You can't have other discipline 18 apart from that. 19 And, of course, these provisions, eighty 20 (80) and sixty-nine eight (69.8) and sixty-nine nine 21 (69.9) are part of that code. And, what they do is speak 22 to what use may be made of the material, the product, of 23 that code of disciplinary investigation and treatment of 24 misconduct by police officers. 25 And, they treat -- they treat, we say, the
2101 treatment of that material as an -- in an exhaustive way, 2 that is, there's no discretion beyond the provisions that 3 are set out therein. 4 The case that I cited to you at paragraph 5 35, it's at Tab 9 of my material, or at least I've listed 6 it as Tab 9, Glover and Glover, has a -- a more detailed 7 but equally exhaustive or perhaps more exhaustive 8 statutory scheme in which the issue is whether or not the 9 Court had the discretion to allow evidence to be 10 introduced in judicial proceedings even though the 11 statutory provisions prevented that -- spoke to 12 preventing the introduction of the evidence. 13 And, in that case, I've given you at -- in 14 the material I have it at Tab 9 -- the decision of the 15 Court of Appeal. 16 What I didn't forward to you, but I've 17 cited in my factum, is the Supreme Court of Canada. It's 18 -- it's referred to and cited in the factum, but I see it 19 didn't make it into the transmission electronically, is 20 the Supreme Court of Canada's decision that confirms 21 that. 22 But the simple proposition is -- is simply 23 made out that where there is a statutory regime that 24 makes the evidence inadmissible, there's no discretion in 25 the Court and I say equally no discretion in you, as
2111 Commissioner, to allow the evidence in. Mr. Justice 2 Lerner did so at trial and he was overturned in the Court 3 of Appeal and equally in the Supreme Court of Canada. 4 And -- and, Chief Justice Laskin says very 5 briefly: 6 "The issue in this appeal is whether 7 the revenue authorities of the 8 Government of Canada are obliged or can 9 be compelled to disclose the address of 10 a taxpayer to the appellant who is 11 awarded custody of her children as 12 against the taxpayer, her former 13 husband, he having abducted the two (2) 14 children and his whereabouts being 15 unknown. 16 Lerner J. made an order for disclosure 17 not withstanding the provisions of the 18 Act. His order was set aside by the 19 Court of Appeal in unanimous reasons 20 given by the Court by McKinnon, 21 Associate Chief Justice. 22 Sympathetic though one is inclined to 23 be to the appellant's plight, the 24 statutory provisions above mentioned 25 for non- disclosure in connection with
2121 any legal proceedings of a civil 2 character do not give any power to a 3 court to qualify them, nor do the 4 exceptions set out in the -- in the 5 subsection assist the appellant." 6 So, what you have is the Court -- highest 7 court of our land saying, Where you have a statutory 8 regime, you don't have any discretion to ignore the 9 dictates of that statutory regime. 10 And, what we say here is that that's the 11 statutory regime whether you like it or not or disagree 12 with it or have sympathy for other points of view or 13 sympathy for the -- for those persons who want to have 14 this evidence entered, doesn't, quite frankly, matter. 15 The -- the public policy in this case with 16 this statutory regime is the product of a legislature and 17 the legislator speaks in this case absolutely, about what 18 the public policy is, and it says this evidence cannot be 19 admitted in any civil proceeding. 20 Now, there are a whole lot of cases that 21 you've heard and you're going to hear more about in the 22 criminal context, about the balancing and weighing 23 exercise and, of course, the legislature of Ontario has 24 not reach in there. 25 It's -- that's -- that's within the
2131 criminal jurisdiction and so it has cast its net in this 2 statutory regime as broadly as it can, constitutionally. 3 It has covered all and any civil proceeding. 4 The question, of course, is what's a civil 5 proceeding, but before we get to that, let me take you to 6 the -- the Forget case, because it's a case that is 7 comparable to, in its legislative structure, to -- to the 8 cas at hand. 9 COMMISSIONER SIDNEY LINDEN: Which tab is 10 that one at, that case? 11 MR. IAN ROLAND: And it's found at -- 12 it's the third -- it's the third case that -- 13 COMMISSIONER SIDNEY LINDEN: I think it's 14 tab 3. 15 MR. IAN ROLAND: -- I think, in my 16 material. 17 18 (BRIEF PAUSE) 19 20 MR. IAN ROLAND: And I've given you a 21 fairly extensive review of the case in my factum. I 22 won't take you through it all; you've no doubt -- I think 23 you've indicated you've read it. 24 COMMISSIONER SIDNEY LINDEN: I've read -- 25 MR. IAN ROLAND: But what you have is the
2141 same statutory structure that you have here; that is the 2 comparable sections are, in our legislation, the Police 3 Services Act, Section 80 corresponds to Section 36(1) in 4 the regular Health Professions Act. 5 6 -- Section 69(8) in our statute 6 corresponds to Section 36(2) in the regular Health 7 Professions Act and 69(9) corresponds to 36(3). 8 Now, what you have, sir, is a statutory 9 scheme that pre-exists our statutory screen -- scheme in 10 the Police Service Act; that is that this, it could be 11 said, the legislature to a large extent, modelled the 12 statutory scheme here that we have on this model. It 13 used much the same language, obviously there are 14 different exceptions and so on, but it used much the same 15 language and same terms. 16 And what is interesting is that it moved 17 from an earlier regime, that is this -- this -- these -- 18 this language introduced as it was in 1997 with 69(8) and 19 (9) and 19 -- and 2002 with Section 80 moved it in to 20 Part 5 of the Police Services Act. 21 It had previously existed only in Part 6 22 dealing with public complaints, so there was a decision, 23 a legislative policy decision made by the legislature to 24 move these provisions into Part 5 that covered all 25 complaints, both public and internal. And equally
2151 interesting the -- Section 80 introduced in -- and we 2 introduced in 2002 from an earlier incantation in -- that 3 had existed as 108 in the -- in Part 6 became a provision 4 with fewer exceptions. 5 It had a broader -- it has a broader 6 reach. It has a broader reach; not only does it cover 7 both internal and public complaints but it -- it removed 8 any exception with respect to the freedom of information 9 documents. 10 And so you can see that there was a 11 legislative intent at work to model these provisions 12 along the provisions that are in the Regulated Health 13 Professions Act. 14 And when it turned its mind, in Section 80 15 to the exceptions and removed the exception of freedom of 16 information documents, it didn't introduce the exception 17 of a Public Inquiry. It didn't introduce an exception 18 of a -- of a civil proceeding. It didn't introduce any 19 of the exceptions that could have been but weren't 20 introduced. 21 Now, the language, therefore, appears to 22 be expansive and the exceptions very narrow, consistent 23 with a code -- and all-inclusive code. 24 Now, taking you then to Forget and 25 Sutherland, what the Court of Appeal found there, you
2161 will see, in the context of allegations of bad faith and 2 fraud. I mean, the most serious allegations you can make 3 in a civil matter. 4 In the context of allegations of fraud and 5 bad faith, it said, Nevertheless the provisions that 6 exclude the evidence, that separate the discipline 7 proceedings from civil proceedings are absolute and they 8 give to no exception. 9 Now, I quoted you some passages, and at 10 page 13 of my factum, they're important, you'll see that 11 they make the point that I've just made, that neither 12 fraud nor bad faith can be admitted as an exception -- or 13 exceptions, and that the provisions insulate the 14 discipline proceedings from civil proceedings. 15 At the bottom of page 13 I've set out 16 paragraph 31, in which Justice Laskin makes it clear that 17 this is a comprehensive scheme or code. He says: 18 "Section 36.3 [equivalent to our 69.9] 19 is one of a number of legislative 20 provisions whose broad objective is to 21 keep college proceedings and civil 22 proceedings separate. 23 Section 36.1 [comparable to our Section 24 80] provides for the confidentiality of 25 information that comes to the knowledge
2171 of college employees. 2 Sub-section 36.2 [comparable to our 3 69.8] provides that college employees 4 cannot be compelled to testify in civil 5 proceedings about matters that come to 6 their knowledge in the course of their 7 duties." 8 Now, in the -- I'll just take you to the 9 case. In the case, Justice Laskin refers to the fact 10 that -- that these provisions apply to all the 11 participants in the proceeding -- sorry, it's at -- on 12 page 13, I've got the excerpt, paragraph 29, that: 13 "The purpose is to encourage the 14 reporting of complaints of professional 15 misconduct against members -- against 16 members of the health profession and to 17 ensure that those complaints are fully 18 investigated and fairly decided, 19 without any of the participants in the 20 proceedings, a health professional, a 21 patient, a complainant, a witness or a 22 college employee, fearing that a 23 document prepared for college 24 proceedings can be used in a civil 25 action."
2181 Now, stopping there, there are two (2) 2 points to be made there. 3 1 is that he speaks of a civil action 4 because, of course, that's what he was dealing with in 5 this case. The language in this -- in -- in the statute 6 is "civil proceeding", both in that statute and in our 7 statute. And, of course, civil proceeding, includes a 8 civil action but is clearly broader than a civil action. 9 The second -- and we'll deal with that in 10 a moment -- the second point he makes is that -- is that 11 it insulates the process from the participants in the 12 proceeding. 13 The reason I point you to that particular 14 passage is because the next case, which I know something 15 about as Counsel on it, found at Tab 4, the Steinecke 16 case, dealt with the reach of those provisions, the same 17 provisions, Sections 36 of the Regulated Health 18 Professions Act. 19 And the fact that they were absolute in 20 the context of a plaintiff there who was not a 21 participant in the proceeding at all. TSR was not a 22 participant and you'll see that from the case. 23 That case concerned an -- an action by TSR 24 brought against the prosecutor in an earlier discipline 25 proceeding at the College of Occupational Therapists of
2191 Ontario under the legislative regime we've just looked at 2 in Forget and Sutherland and the -- the allegations made 3 in the claim by TSR was that in the course of that 4 proceeding, Mr. Steinecke the prosecutor, among other 5 things, acted with an abuse of process and with reckless 6 mis-statement and harming the interests of TSR, a 7 stranger to the proceedings. 8 And the question was -- one (1) of the 9 questions to the Court was whether or not the sections 10 applied to a stranger to the proceedings and the -- the 11 Court found it did. So the -- and it confirmed that the 12 provision, the Section, excluding evidence is absolute. 13 Now the -- the last -- the last -- 14 COMMISSIONER SIDNEY LINDEN: What is a 15 civil proceeding? 16 MR. IAN ROLAND: The point is, what is a 17 civil proceeding? And that is something that I think 18 you're assisted in substantially by some of the cases the 19 I referred you to; I've referred you to two (2) in 20 particular. 21 But My Friend Mr. -- Mr. Sandler has 22 already mentioned that when you look at the provision 23 itself, it refers to civil proceeding to include a 24 discipline -- the discipline proceeding within the Act 25 itself. That informs you that civil proceeding is
2201 broader than a civil action. 2 The -- I -- I think the most instructive 3 case, quite frankly, is the decision of the Supreme Court 4 of Canada and the Solicitor of Canada and -- I'm sorry, 5 no, that's not it. 6 (BRIEF PAUSE) 7 8 MR. IAN ROLAND: Yes, that's it, the 9 Solicitor General of Canada and Royal Commission and 10 Inquiry into health records and in that case, that was 11 the earlier Krever Inquiry, it was Mr. Justice Krever in 12 an earlier inquiry, not the one we're more familiar with, 13 the Blood Inquiry -- 14 COMMISSIONER SIDNEY LINDEN: Where is 15 that? 16 MR. IAN ROLAND: That's at -- I have it 17 at Tab 6 -- 18 COMMISSIONER SIDNEY LINDEN: Of your 19 materials? 20 MR. IAN ROLAND: -- of my materials. 21 COMMISSIONER SIDNEY LINDEN: Of your 22 materials? 23 MR. IAN ROLAND: I don't know whether you 24 got the same -- 25 COMMISSIONER SIDNEY LINDEN: Let's see if
2211 I've got it. Yes, yes. That's it, I've got it. 2 MR. IAN ROLAND: Yeah. 3 4 (BRIEF PAUSE) 5 6 MR. IAN ROLAND: Unfortunately, the 7 document I've got hasn't got any page numbers, but the 8 provision that I'm -- 9 MR. JULIAN FALCONER: Sorry, what tab? 10 MR. IAN ROLAND: It's Tab 6. 11 MR. JULIAN FALCONER: 6? 12 13 (BRIEF PAUSE) 14 15 MR. IAN ROLAND: The provision that I'm 16 concerned with is excerpt at page 16 in my factum and 17 you'll see in this case that the issue was whether or not 18 Mr. Justice Krever in this Inquiry -- by the way, under 19 the same statute that you're operating under. It was an 20 Ontario inquiry under the Public Inquiries Act, which has 21 -- which was exactly the same. It hasn't been amended, 22 it's the same provisions that existed then exist today. 23 And the issue was whether or not the 24 evidence concerning an identity of a police informer 25 should be permitted to be introduced at that Inquiry.
2221 And it turned on whether or not police 2 informer privilege applied in a Public Inquiry context. 3 And there was a debate, you'll see Mr. 4 Justice Martland's writing for the majority says: 5 "I do not agree with the suggestion 6 that the police informer rule which has 7 been stated to be a rule of law should 8 be limited in its applications to 9 criminal prosecutions and civil 10 proceedings founded upon malicious 11 prosecutions." 12 If it is applicable in civil proceedings, 13 arising out of malicious prosecution, there is no logical 14 reason why it should not also be applicable to other 15 civil proceedings. 16 Now, stopping there. He's referring to, 17 in that case, an Inquiry under your legislation. I mean, 18 he's calling it another civil proceeding. 19 "The public policy that gives rise to 20 the rule is the same no matter what 21 form the civil proceedings take." 22 Now, if -- if the Inquiry was not a civil 23 proceeding under the very legislation you operate on, 24 that passage makes no sense. 25 In the present case, the identity of the
2231 public informers is being sought not by an accused person 2 or a litigant in civil proceedings, but is being sought 3 by the tribunal which, of course is the same. 4 5 (BRIEF PAUSE) 6 7 MR. JULIAN FALCONER: I'm sorry, Mr. 8 Commissioner. I'm just trying to keep up. 9 COMMISSIONER SIDNEY LINDEN: That's fine. 10 11 (BRIEF PAUSE) 12 13 MR. IAN ROLAND: So, carrying on, but it 14 is being sought by the tribunal itself which summoned the 15 police witnesses in order to obtain such disclosure. 16 But, in my opinion, the fact that it is a 17 tribunal itself which seeks the information does not 18 affect the application of the rule. 19 The Public Inquiries Act 1971 does not 20 confer upon the Commissioner any wider power than those 21 which may be exercised on application of a party by a 22 Judge conducting judicial proceedings. 23 Now, when you look, therefore, at that 24 passage it's clear that what the Court is saying is that 25 your process is a civil proceeding.
2241 With great respect, it can't be 2 interpreted any other way. 3 Now, the only other case that I've given 4 you is a Newfoundland case in which an arbitrator has 5 found that a Public Inquiry in the context of a different 6 legislative scheme, but is found that a public Inquiry in 7 Newfoundland, judicial inquiry, was a civil proceeding 8 and he -- he found that in the context of reimbursing 9 officers for their legal fees as a result of being 10 represented at that, but he -- he had to determine 11 whether or not an Inquiry was a civil proceeding and he 12 so found. 13 All of the provisions that -- that you 14 find in various statutes speak to such things as civil 15 actions, judicial proceedings, some speak of 16 administrative proceedings; the most expansive descriptor 17 is civil proceedings. 18 And you can see that from looking at the - 19 - at -- at the Acts that refer to civil proceedings. 20 Civil proceedings, of course, are all proceedings other 21 than criminal proceedings. 22 The Education Act that Mr. Millar has 23 referred us to, I think is equally helpful because it 24 speaks about the non-admission of evidence for any 25 purpose in any trial, inquest, inquiry, examination,
2251 hearing or other proceeding. 2 It could have equally said, with respect 3 to civil proceedings, because all of those are civil 4 proceedings. It didn't say -- it didn't say in there 5 trials, inquests, inquiries, examinations, civil 6 proceedings. 7 It didn't use the term, 'civil 8 proceedings'. Instead, it -- what it did is unpacked the 9 indicia of civil proceedings. It unpacked them. 10 Now, Mr. Sandler talked about policy 11 reasons why this should be treated as a code with respect 12 to civil proceedings broadly cast. And he -- he raised 13 three (3) issues or three (3) indicia of policy reasons. 14 1 is that informal discipline is important 15 in this statutory scheme. And one (1) of the incentives 16 to -- for officers to agree to informal discipline is to 17 do so, recognizing that they're not going to be subject 18 to public hearings with all that those entail, including 19 any civil proceeding such as an inquiry; that officers 20 are compelled to cooperate in the discipline process; and 21 that other people, including members of police services, 22 come forward within a service, as they're obliged to do, 23 to give information about the investigation of 24 complaints; and that that's part of the complete record 25 information, that, for obvious reasons, should be --
2261 should remain confidential. It's a -- not quite but it's 2 like a police informant kind of analogy. 3 But, there are other reasons, I think, 4 that speak more generally about why this is -- this 5 statutory scheme, expressing public policy as it does, 6 makes sense. It is that police discipline, we recognize 7 from the scheme itself, is not only punitive but 8 increasingly focusses on remediation; it's on improving 9 policing; it's on getting officers to act in a better way 10 than they did. 11 And one of the indicia of successful 12 remediation of police officers is an admission of 13 responsibility for their conduct, that it's very hard to 14 successfully remediate any professional, doctor, lawyer, 15 nurse, police officer, without the individual 16 professional acknowledging their shortcoming and entering 17 on a course of remediation. 18 And that's the principal public policy 19 direction in the regulation of all professionals, to make 20 them better professionals. And that's largely assisted 21 by this scheme, as it is in the health professions' 22 scheme, by allowing professionals to -- to do so without 23 the risk of the public ignomy in some other context, you 24 may have to have it in a discipline context in some 25 fashion, but in other context, without the worry of that
2271 and the -- and the assurance that that's not going to 2 happen, encourages professionals to accept remediation. 3 It's a very important public policy 4 consideration and, to a very large extent, drives -- this 5 kind of statutory scheme as it drives the statutory 6 scheme in the Regulated Health Professions Act. 7 Thank you. Those are my submissions. Ms. 8 Gleitman will make submissions with respect to the 9 balance of our factum. 10 COMMISSIONER SIDNEY LINDEN: Thank you, 11 Mr. Roland. 12 13 (BRIEF PAUSE) 14 15 SUBMISSIONS BY MS. JENNIFER GLEITMAN: 16 MS. JENNIFER GLEITMAN: Commissioner, 17 good afternoon. As Mr. Roland has indicated, I am going 18 to be addressing the second portion of our factum. And 19 I'm pleased to advise you that as a result of the 20 contents of Mr. Sandler's comprehensive submissions, I 21 anticipate that my submissions will be quite a bit 22 shorter than they would have been otherwise. 23 Both at the beginning and the end of our 24 factum we indicate to you that our position is that 25 before the materials that have been summonsed by the
2281 Commission can be produced even to the Commission, if 2 we're using the first stage of the O'Connor framework, 3 the Commission is going to have to make a finding that 4 the tests for production of these records, namely the 5 tests of likely relevance, has been met. 6 And Mr. Sandler has indicated to you, and 7 I believe Mr. Roland on behalf of the OPPA, supports 8 this, that in the event this Commission has some question 9 regarding the applicability of the statutory scheme, 10 which is contained in the Police Services Act, it might 11 be that this matter gets -- has a case stated for 12 Divisional Court. But, in any event, I'd like to just 13 take a few moments to discuss with you now the scheme as 14 set out by the Supreme Court of Canada and O'Connor. 15 And it's my respectful submission, that 16 regardless whether you consider the confidential nature 17 of these records pursuant to the scheme advocated by Mr. 18 Sandler in the Supreme Court Case of Ryan or whether you 19 decide that the O'Connor test is applicable, there's no 20 doubt that the records which have been summonsed by the 21 Commission and which are sought by ALST are inherently 22 private and confidential in nature and the officers who 23 are the subject of these records hold a reasonable 24 expectation of privacy as to their contents. 25 Now, just so the -- so you have it,
2291 Commissioner, our -- this portion of the argument is at 2 paragraph 36, page 17 of our factum is where it begins. 3 But before I take you there, I'd just like to begin by 4 discussing something that ALST raises in its factum and 5 this is at page 16, paragraphs 35 and 36 of ALST's 6 factum. 7 COMMISSIONER SIDNEY LINDEN: Page 16 of 8 the ALST factum? 9 MS. JENNIFER GLEITMAN: Yes, at paragraph 10 35. 11 COMMISSIONER SIDNEY LINDEN: Yes, yes, 12 okay. 13 MS. JENNIFER GLEITMAN: And you'll see 14 that in that paragraph, ALST submits to you that the case 15 law that the OPP and the OPPA rely on is directed 16 primarily at whether police discipline records are in 17 possession of the Crown as opposed to the possession of 18 third parties. They, then, submit that this issue is not 19 applicable in the case of Bar and, with all due respect 20 to My Friends, that's not the issue as we raise it in our 21 factum to you. 22 Granted, when the issue of defence access 23 to police records was initially raised in the 24 jurisprudence, and this is going back some time, the 25 issue that was before the courts was whether these
2301 records should be produced pursuant to the Crown's 2 disclosure applications per Stinchcomb or whether, due to 3 their inherently private nature, they had to be subject 4 to a successful third party records application. 5 And an example of this is the decision of 6 Justice Dan Broad of the Superior Court of Justice in 7 Scaduto, which we have included in our factum. 8 The distinction that has been drawn is 9 that where the records sought are, in fact, in possession 10 of the Crown, for example where an officer has been 11 charged with a criminal offence and the Crown brief, 12 relating to that offence, is in the possession of the 13 Crown, yes, the Crown, pursuant to Stinchcombe and 14 pursuant to what Justices Lamarre and Zupinka have to say 15 in O'Connor is obligated to turn it over to the defence. 16 However, in circumstances where the 17 records sought are not in the possession of the Crown, 18 the courts have now made it very clear that before the 19 materials can be turned over to the parties seeking them, 20 the O'Connor regime applies. 21 And that's the thrust of what we are 22 saying to you and what I'm saying today in my submissions 23 is that before these materials, which are obviously not 24 in the possession of the Commission can be turned over to 25 you, you have to be satisfied that the tests for likely
2311 relevance has been met. 2 The courts have made it clear, both 3 Justice LĂHeureux-Dube and O'Connor as well as we quote 4 to you the decision of Justice Dilks in the case called, 5 "Shepherd" which is at Tab 11 of our authorities that 6 there is an inherently private and confidential nature to 7 police records. 8 In Sheppard, Justice Stilks (phonetic) of 9 the Superior Court stated police records are not in the - 10 - police records are in the nature of employment records. 11 They are not created or preserved for the purpose of any 12 prosecution and the Crown's office is not involved in 13 either their creation or their preservation. 14 They are more akin to third party records 15 than they are to records of the Crown or even records of 16 the police having to do with the offence in question. At 17 Tab 17 of our authorities, we have included for your 18 consideration the Decision of Madam Justice Dunnet in a 19 case called Hankey. That's H-A-N-K-E-Y. 20 And, in Hankey, defence counsel had 21 brought an application for disclosure and/or production 22 of confidential police records where one of the officers 23 involved in the investigation of the accused person's 24 charge was themselves subsequently charged with a 25 criminal offence.
2321 Now the prosecuting authorities had 2 provided to the defence a certain summary of the charges 3 against that officer. And ultimately Justice Dunnet 4 dismisses the application and finds that the private and 5 confidential nature of the records in question was so 6 significant that she orders the entire contents of the 7 court file, so the application file, to be sealed. 8 So those are some of examples I submit to 9 you of where courts have found that the records of the 10 nature of which we're discussing before you today, are 11 highly, highly private and confidential in nature. 12 And it's my submission that it's been the 13 rare instance and mostly in cases which pre-date the 14 Decision of the Supreme Court in O'Connor, that courts 15 have found in the criminal context that the O'Connor 16 threshold has been met. 17 If we can turn now to the Decision of the 18 Supreme Court in O'Connor, the court made it very clear 19 that it's not sufficient for the party seeking the 20 records to merely subpoena the records to court. 21 At paragraph 39 of the O'Connor Decision, 22 Justice LĂHeureux-Dube explicitly rejected defence 23 counsel submissions that access to third party records 24 which were not in the possession of the Crown could 25 easily be facilitated by resorting to the subpoena
2331 provisions of the Criminal Code. And the Decision in 2 O'Connor is at Tab 12 of our authorities. 3 Thankfully it's a Decision that has the 4 paragraph numbers -- the paragraphs numbered for you. 5 And the quote that I'm about to read for you -- to you, 6 actually appears, I believe, at paragraph 39 of our 7 factum. 8 And this is at para -- it's paragraph 39 9 of our factum, paragraph 103 of the O'Connor Decision 10 where Justice LĂHeureux-Dube finds that production of 11 documents -- what -- what she's getting at is that you 12 can't just subpoena the documents and get them turned 13 over as you're well aware. 14 Production is only going to be ordered if 15 the documents are likely to be relevant and if production 16 is appropriate having regard to all of the relevant 17 considerations. 18 In exercising this discretion to order 19 production the court must of course have regard to the 20 Charter of Rights of the accused and the other interests 21 at stake including any claims of privilege or a right to 22 privacy within the subject for guarding of the records 23 might successfully assert in respect of those documents. 24 And I pause here for a moment, 25 Commissioner, because, as it currently stands, the
2341 Commission is faced with the following: 2 Number 1, you're faced with individual 3 officers who are asserting their privacy rights. 4 Number 2, you're faced with a situation 5 where the record holders, namely the OPP and the Province 6 of Ontario, are also asserting claims of privilege. 7 So, in my submission, this speaks to what 8 Madam Justice L'Heureux-Dube comments on as being a very 9 relevant consideration in deciding whether the record 10 should be produced. 11 COMMISSIONER SIDNEY LINDEN: Is the 12 record holder in this case -- you've just indicated the 13 Province and the OPP -- not a party to these proceedings? 14 Does that -- 15 MS. JENNIFER GLEITMAN: I beg your 16 pardon, Commissioner? 17 COMMISSIONER SIDNEY LINDEN: The record 18 holder in this care are a party to these proceedings, 19 does that take them out of the third-party procedure 20 regime or scheme -- scheme? 21 MS. JENNIFER GLEITMAN: No. I would -- I 22 would submit that it wouldn't because, in a criminal 23 case, whether it's pursuant to O'Connor or whether it's 24 pursuant to the provisions of the Criminal Code, as 25 Defence Counsel you're obligated to subpoena to Court the
2351 record holder. And the holder of the records, I've -- 2 I've argued applications where sometimes they make 3 submissions, for example, the Children's Aid Society, 4 sometimes they don't. 5 So, in my submission, it's -- it does not 6 take -- it doesn't take them out of the purview of this - 7 - of this quote. 8 COMMISSIONER SIDNEY LINDEN: All right. 9 MS. JENNIFER GLEITMAN: Okay? 10 COMMISSIONER SIDNEY LINDEN: That's your 11 submission. 12 MS. JENNIFER GLEITMAN: Now, Mr. Sandler 13 has stated -- and I -- and I don't intend to -- to repeat 14 what he had to say -- is that, obviously, the discretion 15 of a Court to order a production of third-party records - 16 - the right to access to those records, rather, is not 17 absolute. And, indeed, even with accused persons who are 18 facing potentially loss of their liberty, it's not 19 automatic that you get access to those -- to those 20 records. 21 Now, if I could just review with you for a 22 moment the procedure that's to be followed in O'Connor, 23 and this is set out in our factum, beginning at page -- 24 sorry, at page 21, paragraph 43. 25 COMMISSIONER SIDNEY LINDEN: This is your
2361 factum. 2 MS. JENNIFER GLEITMAN: Yes, of our 3 factum. 4 5 (BRIEF PAUSE) 6 7 MS. JENNIFER GLEITMAN: I'm just going to 8 give it to you in bullet points for your assistance. 9 Pursuant to the decision of the Supreme 10 Court in -- in O'Connor, there's a presumption against 11 ordering production of confidential records. And 12 production is justified only in very specific, very 13 limited circumstances. 14 Contrary to the submission of ALST in its 15 factum, in O'Connor Justice L'Heureux-Dube recognized 16 that production even at the first stage of the inquiry, 17 in other words, production even to the Court may very 18 well constitute a violation of the subject's -- subject's 19 privacy interest. 20 Production can only be granted where the 21 person whose seeking the information in the records shows 22 that they're not able to obtain the information by any 23 other means. And, obviously, you have Mr. Sandler's 24 submissions on that point. You're alive to your own -- 25 your own exchange with him that the information which is
2371 potentially relevant to the Commission's Inquiry can be - 2 - can be sought or by -- from other sources. 3 At the second stage of the O'Connor 4 procedure, obviously, in order to preserve as greatly as 5 possible privacy rights, the Court needs to limit 6 production to the greatest extent possible. 7 And arguments regarding likely relevance 8 must be limited to permissible change of reasoning. By 9 that I mean, it's not sufficient to assert that the 10 records exist. That is not a sufficient basis upon which 11 to argue that records should be produced. 12 Unless the people seeking the records can 13 show something above and beyond that, with all due 14 respect, it's not enough to -- to get them produced to 15 the Commission. 16 It's my respectful submission that the 17 submissions of ALST in relation to this application 18 constitute no more than bare assertions. The records 19 exist, thus we should be entitled to see them. 20 And in that vein, their attempts to access 21 these records is nothing more than a fishing expedition 22 of the type that is explicitly not allowed by the Supreme 23 Court of Canada in this -- in O'Connor or in Mills. 24 It's further my submission that there's 25 absolutely nothing in either the e-mail correspondence
2381 from ALST to this Commission or in their written 2 submissions that demonstrate how the information sought 3 or why the information -- the records sought are relevant 4 to this Commission's Inquiry. 5 In his e-mail correspondence of June 1st, 6 2005, Mr. Falconer stated and this is a quote: 7 "The issues of how the OPP deals with 8 its members in the face of openly 9 racist conduct is of some concern to 10 ALST." 11 And it's our position, and you have it 12 from Mr. Sandler and -- and I'm sure Ms. Twohig is going 13 to go into it a little bit -- in a little bit more 14 detail, that while that might be of some interest to 15 ALST, with all due respect, perhaps it's not -- it does 16 not form part of this Commission's mandate. 17 And, like -- as I said, I defer to Ms. 18 Twohig in that -- in her submissions in that regard. 19 And you have in our factum our position 20 which is that the individual officers' police service 21 records are prima facie, actually, irrelevant to these 22 proceedings inasmuch as the information contained in them 23 was gathered and retained solely for employment purposes. 24 Now, in support of our submission that the 25 framework in O'Connor is applicable to this context, we
2391 have also included for your consideration, cases in which 2 the O'Connor regime has been found to apply in other 3 areas outside of the criminal realm. 4 And I'm sure you appreciate that insofar 5 as the jurisprudence is concerned, it's within criminal 6 law that the majority of this case law has been borne. 7 We cite for you the rules of civil 8 procedure which explicitly contained rules dealing with 9 access to third-party records and then we also cite for 10 you the example of administrative law, tribunals, who 11 apply the O'Connor standard. 12 At Tab 18 of our authorities, is the 13 decision of the Divisional Court in the case of College 14 of Physicians and Surgeons of Ontario Vs. Au, A-U. 15 In that case the physician was charged 16 with a variety of disciplinary offences in relation to 17 previous patients; there were numerous counts. 18 And before the tribunal he brought an 19 application for access to the confidential records of the 20 complainants. The tribunal permitted his request in 21 part, following which the College brought an application 22 to Div. Court asking whether the tribunal was correct in 23 applying the O'Connor standard in deciding whether to 24 release the third party records. 25 And, indeed, the Divisional Court found
2401 that in the circumstances, the tribunal was correct in 2 applying that standard and had not erred. 3 So, that's just another -- that's an 4 example for the Commission of circumstances where the 5 O'Connor framework has -- has been applied outside of the 6 criminal law. 7 I'm just going to comment briefly on the 8 case of Delong that was cited by ALST. Mr. Sandler has 9 covered off most of my points regarding the change in the 10 state of the law since the time that was case was decided 11 in 1989. 12 And, indeed, I was going to submit to you 13 that the entirety of the -- of the Court of Appeal's 14 Decision in Delong has now been overridden by different 15 jurisprudence, the issue, which frankly, related to the 16 Police Officers entering into the house has now been 17 altered, or overridden by the decision of the Supreme 18 Court of Canada in Feeney (phonetic). 19 And similarly, in light of the fact of the 20 current Police Services provisions, and in light of the 21 decision of the Supreme Court of Canada in O'Connor, 22 where that case, as you can see by the cases that we cite 23 in that factum, were that case to arise today, the 24 results might very well be different. 25 An example of that, of how the result
2411 might different -- differ, rather, is a case found at Tab 2 16 of our materials, the case of Luong, L-U-O-N-G. And 3 in that case your brother Justice De Filippus was 4 presiding over an application for access to confidential 5 Police records, and dismissed the application on the 6 basis that the required evidentiary foundation had not 7 been met, and the threshold of likely relevance was not 8 achieved. 9 One (1) final issue, which I wish to 10 canvass with the Commissioner before I sit down, is an 11 issue which I anticipate that ALSC is going to raise with 12 you in its submissions tomorrow, and that is the issue of 13 waiver of privacy rights. 14 And, Commissioner, it's our submission 15 that in considering the issue of waiver, you have to be 16 alive to the manner in which this entire motion unfolded. 17 And at the beginning of our -- of our factum, we set out 18 for you how this issue arose through the evidence of 19 Deputy Commissioner Carson, who was not initially aware 20 of what discipline had been meted out in response to Mr. 21 Miller's questions. 22 Deputy Commissioner Carson then understood 23 to educate himself as to what had occurred, and the 24 following day was able to provide you with further 25 knowledge as to what had occurred.
2421 And it's on that basis, it's correct that 2 the OPPA had consented to Deputy Commissioner Carson 3 giving that evidence, but it was only after that evidence 4 was led, that Mr. Falconer's e-mail, I believe it was 5 June 1st, requesting the three (3) bulleted items of 6 disclosure, was circulated and we were into the realm of 7 -- of this motion. So, I just want that to be very 8 clear. 9 It's our submission that the OPPA's 10 consent in the circumstances, certainly does not amount 11 to a waiver of any of the officer's rights. 12 And again, if we return to the Supreme 13 Court jurisdiction -- or jurisprudence rather, governing 14 issues of waiver of legal rights, those cases make it 15 very clear that in order for waiver of rights to be 16 valid, it has to be clear and unequivocal, and with a 17 full understanding of the imp -- of the implications of 18 waiving the rights. 19 And we can advise you as Counsel, that at 20 the time that the OPPA took the position it did, it 21 obviously was not aware that a motion would follow, or a 22 request would follow for production disclosure. 23 And just in support of my submissions as 24 to waiver, I would commend to you the decisions in Askoff 25 (phonetic), which I'm sure you're familiar with,
2431 Clarkson, which is a decision , 25 C.C.C. 3rd at 2 207, and Bartle (phonetic)  92 C.C.C. 3rd, 289. 3 Subject to any questions, those are my 4 submissions. 5 COMMISSIONER SIDNEY LINDEN: Thank you 6 very much. 7 I would like to finish, so if, Ms. Twohig, 8 you indicated you might be as much as forty-five (45) 9 minutes, and you may not be that long? 10 MS. KIM TWOHIG: I'll try. 11 COMMISSIONER SIDNEY LINDEN: All right, 12 that's fine. Let's carry on. 13 14 SUBMISSIONS BY MS. KIM TWOHIG: 15 MS. KIM TWOHIG: Thank you, Mr. 16 Commissioner. It's the Province's position that we 17 object to the production of the documents set out in 18 paragraphs 1 and 2 of the Summons, on the basis that 19 first of all, they're not reasonably relevant to the 20 mandate of the Commission. 21 And secondly, they're privileged within 22 the meaning of Section 11 of the Public Inquiry's Act 23 pursuant to the provisions of the Police Services Act. 24 So what I would like to do is address 25 first of all the issue of relevance and I thought I would
2441 just look at what reasonably relevant means in the 2 context of a public inquiry, look at some cases in which 3 relevant has been discussed and just a couple and then 4 look at the potential relevance to this particular 5 situation. 6 A good place to start perhaps is paragraph 7 4 of our factum where we acknowledge that the 8 exclusionary rule in Section 11 of the Public Inquiry's 9 Act regarding privilege is really the only exclusionary 10 rule to the evidence that can be admitted before public 11 inquiry. 12 There are similar passages in a number of 13 cases dealing with relevance. We've cited Bortolotti and 14 Ministry of Housing. There's also the Commission on 15 proceedings involving Guy Paul Morin and that would be 16 the Decision of the Divisional Court that was referred to 17 by My Friend, Mr. Sandler. 18 There's also the re Royal Commission into 19 Metropolitan Toronto Police practices and Ashton which is 20 referred to at paragraph 6 of our factum. 21 And you'll see in paragraph 5, this 22 passage is repeated in all of those cases and essentially 23 what the Divisional Court has said and other courts as 24 well is that relevance, what is reasonably relevant means 25 you have to look at any two (2) facts to which it is
2451 applied are so related to each other that according to 2 the common course of events, one either taken by itself 3 or in connection with other facts proves or renders 4 probable the past, present or future existence or non- 5 existence of the other. 6 And further down that paragraph: 7 "Relevant evidence is evidence that in 8 some degree advances the inquiry and 9 thus has probative value." 10 And all of the cases say that the 11 Commission must in determining what is reasonably 12 relevant scrutinize carefully the subject matter of the 13 inquiry as set forth in the order in counsel. 14 While it is true that the Commission has a 15 wide discretion that it can exercise within its 16 jurisdiction, it can't narrow or enlarge its jurisdiction 17 by making rulings on admissibility. So the admissibility 18 issue must be examined very carefully in terms of the 19 mandate. 20 And in that respect I'd like to refer to a 21 few cases. The first being the Royal Commission into 22 Metropolitan Toronto Police practices. It's called "Re 23 Royal Commission" and I arranged cases in my binder in 24 alphabetical order. You may have done it differently but 25 in that case it's Tab 9 I understand of yours, Mr.
2461 Commissioner. 2 Beginning on page 1, Justice Morden, as he 3 then was of the Divisional Court, outlined the mandate of 4 the inquiry which was first to inquire into recent 5 allegations made against certain Members of the 6 Metropolitan Toronto Police Force respecting mistreatment 7 and the use of excessive force in relation to the 8 apprehension arrest for detention of certain persons. 9 Secondly to determine whether or not the 10 alleged mistreatment or use of excessive force is a 11 tendency or practice in the said police force. And to 12 determine whether or not the use of force in 13 interrogation is a tendency or practice in the police 14 force, and finally to inquire into the necessity of the 15 use of force. 16 So during the course of that inquiry a 17 witness was being questioned concerning his history of 18 drug use and prior involvement with police and criminal 19 convictions. No objection was taken by anyone to the 20 admissibility of that evidence. 21 And then in the course of the examination 22 of one of the constables, there was some issue as to 23 whether or not his notebook was accurate. And it then 24 got into a question of credibility and he was asked about 25 convictions under the Police Act, as it was then called.
2471 And the Commission declined to admit any 2 evidence about police discipline in that case, 3 notwithstanding that there were no confidentiality 4 provisions, no non-compellability or inadmissibility 5 provisions, as in the current Act, nothing other than 6 Section 11. 7 But, nevertheless, on page 7 of the 8 decision, the Court said: 9 "The Commission must confine its 10 inquiries to the subject area disclosed 11 in its terms of reference." 12 Mentioned that before. And near the end 13 of the decision, on page 10, about half way down the 14 page: 15 "It was submitted to us that the Courts 16 have a particular responsibility to 17 persons with an interest, as defined in 18 Section 5 of the Public Inquiries Act, 19 to protect them from being required to 20 testify about matters that are not 21 clearly relevant to the subject of the 22 inquiry. There can be no doubt that it 23 is of the utmost importance that there 24 be no more intrusion into the lives of 25 any persons, whether they be interested
2481 or otherwise, than is clearly necessary 2 to carry out the object of an inquiry." 3 And, finally, in the next paragraph: 4 "The Commissioner's task is an onerous 5 and complex one. The authorities are 6 uniform to the effect that he is to 7 have ample discretion of carrying it 8 out. This involves the exercise of 9 difficult decisions of a discretionary 10 nature. In the present case, it can be 11 seen that the issue of the introduction 12 of prior convictions of the witness in 13 question was not turned to until all 14 other possible sources of evidence on 15 the disputed issues as to what happened 16 on a certain date had been exhausted. 17 If the evidence, in the view of the 18 Commissioner, had bearing on an issue 19 to be resolved by him and there was 20 some ground for holding that it did, 21 then he had jurisdiction to admit the 22 evidence in question." 23 So in that case, where the conduct of the 24 police was the very subject matter of the inquiry and 25 where there were no prohibitions on admissibility, even
2491 there, the Court said that the inquiry has to be very 2 careful not to intrude into the private lives of others 3 unless there is essentially no other way of getting the 4 evidence that will assist in advancing the inquiry. 5 In the Guy Paul Morin case, which I won't 6 go into in any detail as it was dealt with by Mr. 7 Sandler, that was an inquiry, of course, into the 8 criminal proceedings involving a charge of murder laid 9 against Mr. Moran, and the inquiry was to investigate how 10 it came to be that he was convicted. 11 But the Court found that the Commission 12 was not mandated to investigate the deliberations or 13 impressions of the jury. And in addition, of course, it 14 was found that he had no power to investigate their 15 conduct because of their immunity. 16 But it's important in that case that, 17 looking into the juror's deliberations, even absent the 18 immunity was not considered relevant even though the 19 mandate of the inquiry there was clearly directed towards 20 how Mr. Moran came to be convicted. 21 And finally, the case that we've cited of 22 the Black Action Defence Committee, or BADC as it's 23 called, was one involving a -- a coroner's inquest in 24 which BADC and the Alliance for Race Relations sought 25 standing, and admittedly it is somewhat different than
2501 dealing with the admissibility of evidence, although it's 2 related, quite clearly, in my submission, to the issue of 3 relevance. 4 It's a fairly lengthy case and -- 5 COMMISSIONER SIDNEY LINDEN: Where is 6 that case, which tab of your authorities? 7 MS. KIM TWOHIG: My tabs I think are 8 quite different from yours, given the way I've arranged 9 them, but perhaps Mr. Millar can help out. 10 11 (BRIEF PAUSE) 12 13 MS. KIM TWOHIG: Thank you. Number 2, 14 Mr. Commissioner. 15 COMMISSIONER SIDNEY LINDEN: Number 2. 16 MS. KIM TWOHIG: I have read the case and 17 can assure you that the head note accurately reflects 18 what is in the case, so given the constraints of time, I 19 will just refer to the head note. 20 You will recall that this was a case in 21 which Dee (phonetic), as he is referred to, a Member of 22 the Toronto Black community, was diagnosed as a paranoid 23 schizophrenic, and was fatally shot during an altercation 24 with police officers. 25 BADC was formed in the wake of his death
2511 and was formed to work towards a fair and just system of 2 policing in Ontario, and in addition the Urban Alliance 3 on Race Relations for Metro Toronto are called 'The 4 Alliance', I'd misnamed it previously, was dedicated to 5 promoting racial harmony. 6 And both applicants sought standing at an 7 Inquest into Dee's death, which was to be conducted Dr. 8 Havster (phonetic). BADC sought standing on the ground 9 that there was concern in the Black community, that 10 police harassment, motivated by racism, had led to Dee's 11 mental illness and that race had played a direct role in 12 the shooting. 13 The Alliance sought standing on two (2) 14 grounds, the first one being similar to that of BADC, and 15 the second being on the potential need for cross-cultural 16 training in dealing with the mentally ill. 17 What happened there was that there had 18 been a criminal trial, as here, of the police officer who 19 did the shooting, and in that case there was also an 20 investigation that had been conducted by the OPP at the 21 direction of the Metro Toronto Police. 22 And race had never entered into the issue 23 at all, not in the criminal trial, and not in the 24 investigation, and there was no evidence that race had 25 played any role in the shooting of Dee.
2521 So standing was denied to BADC and to the 2 Alliance, and they both sought judicial review. BADC, in 3 the meantime, renewed its application for standing, based 4 on affidavit evidence, and the Chief Coroner said that 5 the affidavit contained speculations and expressions of 6 concern, but no evidence that race was a contributing 7 factor to Dee's death. 8 And he stated that to allow public 9 concerns absent fact to be a measure of standing, would 10 be to discard the concept of relevancy. 11 And when it went to the Divisional Court, 12 the Divisional Court upheld the coroner's decision not to 13 grant standing to BADC or to the Alliance, on the grounds 14 that -- that BADC had advanced, but only with respect to 15 possible public education regarding mental illness. 16 And that was the Majority Decision, and 17 Justice Montgomery, who dissented in part, would not have 18 granted standing to either party seeking standing, and he 19 noted that none of the affidavits of either Applicant 20 contained any evidence that race was a factor in the 21 shooting. 22 Suppositions and opinions were not 23 sufficient to meet the test of relevance and fell short 24 of establishing a basis to bring the Applicants within 25 Section 41, as having a substantial and direct interest
2531 in the Inquiry. 2 And again, I acknowledge that that was a 3 slightly different situation. But here, we have had a 4 criminal trial, where there was no evidence that race 5 played any role in the shooting death of Mr. George, and 6 there hasn't been any evidence from any of the witnesses 7 for the police, and only speculation on the part of any 8 others, that race played any role in the events 9 surrounding the death of Dudley George. 10 And I would submit that to embark on an 11 Inquiry into that whole issue, when it's never been 12 raised before, and when there is no evidence that it was 13 a factor, would be beyond the Mandate of the Commission. 14 The Application by the ALST for these 15 records, is said to be because openly racist conduct is 16 of some concern to the ALST. In my submission, what is 17 of some concern to the ALST is not the issue. The ALST 18 doesn't say how that's relevant to the Mandate of the 19 Inquiry. 20 The issue is whether the evidence that the 21 ALST seeks to elicit is relevant to the mandate of the 22 Commission. 23 The ALST says that the application is 24 about accountability, and it wants to inquire into the 25 details of how the OPP addressed racist conduct. And
2541 that's taken from paragraph 8 of their factum. 2 Similarly, the Chiefs of Ontario say that 3 the Inquiry must be able to examine the manner in which 4 the OPP deals with and has dealt with racist misconduct 5 on the part of the Officers, its Officers. 6 In my submission, this is not about how 7 the OPP responded to certain racist misconduct. We know 8 how it responded, because Deputy Commissioner gave 9 evidence about how it responded. 10 The Commission must decide whether the 11 evidence -- whether there is any evidence that racism 12 played into the events that led to the shooting of Dudley 13 George, it's about events. 14 In my submission, it's appropriate to ask 15 whether racist comments may have been heard by the 16 Officers involved in the events surrounding the -- the 17 death of Dudley George, whether racist comments were made 18 by any of the Officers, and they can all be questioned 19 about this, when they're called to give evidence. 20 If there were any racist comments made, 21 and we don't know, were those made known to superior 22 officers. What information did supervisory or superior 23 officers have with respect to racism, on the part of the 24 officers they supervised. 25 Did they demonstrate any racist behaviour,
2551 and did any of this play a role in the death of Dudley 2 George? I submit that that is very, very different from 3 the line of Inquiry that the Applicants -- and by that I 4 mean ALST and -- and COU seek to embark upon. They're 5 asking how the OPP addressed racist behaviour, which came 6 to light after the fact. The penalties imposed were 7 after September 6th, 1995. 8 So what they are supposing, in my 9 submission, is that the discipline was somehow 10 inadequate, and as one (1) of my friends said, they're 11 embarking upon a fishing expedition to determine whether 12 or not the discipline was inadequate. Then one would 13 say, where do we go from there? 14 The next question may be, well, did the 15 inadequacy, if that is established, foster an environment 16 of racism within the entire organization. And did the 17 alleged or supposed systemic racism probably lead to the 18 death of Dudley George. 19 And I say probably, looping back to the 20 definition of reasonably relevant in the cases. And I 21 submit that that is a very, very great leap and probably 22 the subject matter for another Inquiry, if it's 23 considered necessary, because first of all, one cannot 24 determine whether the discipline was or was not adequate, 25 by simply looking at the files pertaining to certain
2561 conduct or certain Officers. 2 You have to -- penalties are subject to a 3 wide variety of factors. And while I have not seen the 4 discipline policies, I imagine they would reflect this. 5 Normally one would look at whether an officer has a 6 previous discipline record, what the length of service 7 is, what the type of conduct was, whether or not remorse 8 has been shown, et cetera. 9 So in order to ascertain whether 10 discipline is appropriate, you need to take into account 11 all of those factors. Then you need some basis for a 12 comparison. Wouldn't you have to look at whether 13 discipline imposed in situations involving non-racist 14 conduct, involving similar factors, revealed any 15 significant difference. 16 You must have a sufficiently large and 17 representative sample, involving Officers with similar 18 employment records and other factors that I've mentioned. 19 And after looking at a wide variety of 20 records, then one would have to determine whether there 21 is anything significant in terms of the events of August 22 and September 1995. And I submit to you that that is 23 simply not within the mandate of this Inquiry and not 24 helpful to the Commission in fulfilling its mandate. 25 It would expand the Inquiry in terms of
2571 time in a very significant way and it's not necessary 2 based on the evidence that we've heard so far. We have 3 only heard from Deputy Commissioner Carson and 4 Superintendent Fox. Deputy Commissioner Carson's 5 evidence was clear that racist conduct was unacceptable 6 and not tolerated. And I submit that Inspector Fox, who 7 was a senior officer showed very considerable sensitivity 8 towards First Nations. 9 In my submission, this line of inquiry 10 that's proposed by ALST and COU does not meet the test of 11 relevance, based on the evidence heard so far. 12 Which takes me, then, to the issue of 13 statutory privilege. Most of that has been covered by My 14 Friends and, of course, I don't propose to go over it, 15 but I would just say, perhaps, referring to paragraph 16 16 of our factum that the legislature has jurisdiction, 17 quite clearly, to make a class of government documents 18 secret or confidential or privileged, any way one wishes 19 to characterize them, provided that there's not 20 constitutional impediment. 21 That is set out not only by the Federal 22 Court of Appeal and the Westergard-Thorp case, but also 23 in the case Gustar and Wadded on page 7 which dealt with 24 RCMP conduct at the APEC conference a number of years 25 ago.
2581 Interestingly, there was an allegation of 2 political interference with the police operations in that 3 situation as well. 4 In my submission, the legislature has 5 clearly decided to exempt a class of documents from 6 disclosure or admissibility in civil proceedings for 7 clear policy reasons which it has balanced against other 8 public interest considerations and considers more 9 important than any other considerations. 10 Apart from the -- the code set out in the 11 statute and the interpretation of it on its -- on its 12 clear wording, I submit that it's important for the 13 Commission to look at cases that deal with similar 14 provisions in other statutes simply because we don't have 15 any jurisprudence with respect to Sections 69 and 80 of 16 the present Police Services Act. 17 And those cases are Cook and Ipp, which 18 was a decision of the Court of Appeal, application for 19 leave to appeal to the Supreme Court was dismissed. 20 And My Friends have talked about Forget 21 and Sutherland and task specific rehabilitation and 22 Steinecke. Now just briefly, in Forget and Sutherland 23 as we know, that dealt with some provisions under the 24 regulated Health Professions Act and the Court of Appeal 25 decision was two (2) to one (1) (2:1), but the descent
2591 was based mainly on the issue of pleading versus 2 evidence. It was a motion under Rule 21 and -- and it 3 was thought that the motion should have been brought 4 under Rule 25, but was not at the evidentiary stage yet, 5 but in principle, the dissenting judge didn't dispute the 6 issue about the inadmissibility of the documents. 7 Four (4) years later when a similar issue 8 was before the Court of Appeal, in task specific 9 rehabilitation and Steinecke, the decision was three zero 10 (3-0) affirming Sutherland and the principles set out in 11 Forget and Sutherland. 12 And the last case cited at paragraph 20 of 13 our factum is -- it should say, "Bonfoco," there's an 14 extra "O" in there and Dowd and it's the last two (2) 15 paragraphs of that case which is just at the general 16 division it's applicable. But it too deals with the 17 similar sections -- similar sections in -- I can't find 18 the name of the Act here, but -- I'm sorry, Regulated 19 Health Professions Act, thank you, Mr. Millar. 20 On the last page of the decision, this -- 21 this was in the context of a civil action of course, and 22 the question was whether or not certain records were 23 admissible in evidence. And Justice Forestell said 24 further in the matter of costs: 25 "During the course of the trial, the
2601 plaintiff brought a motion for the 2 production of the entire file of the 3 College of Physicians and Surgeons and 4 of the Complaints Committee, thereof, 5 regarding Dr. Dowd. 6 At the hearing of the motion, the 7 motion was amended by the plaintiff to 8 provide simply for the production of 9 the file, as it pertained to Barbara 10 Bonofoco." 11 Similar to this situation: 12 "The College sent its counsel down, Mr. 13 Donald Poslins (phonetic) from Toronto. 14 Mr. Poslins took the position that the 15 file was not to be produced, and it was 16 privileged pursuant to the regulated 17 Health Professions Act. I found in my 18 decision on that motion that Section 36 19 of the Act applied, and that the file 20 could not be produced." 21 Produced is a key word there as well, not 22 just that it could not be admitted in evidence. 23 You will no doubt hear a great deal about 24 the need to balance various public interests from My 25 Friends for both ALST and COU and others. And I submit
2611 that when the legislature has made these provisions and 2 has made them very clearly and the Court of Appeal has 3 said that these provisions provide a complete Code, the 4 Commission has no jurisdiction to engage in balancing 5 various interests. 6 As a number of cases have said, to confer 7 on the Commissioner a discretion to allow the files into 8 evidence, would be to ignore the combined effects of 9 Sections, we submit, 69 and 80, which are similar to 10 provisions referred to in other legislation, such as the 11 Income Tax Act in Glover v. Glover. The Evidence -- 12 Canada Evidence Act in Westergard v. Thorp. In Forget 13 v. Sutherland we have provisions of the Health Insurance 14 Act, I believe, and Cook v. Ipp. Duster v. Wong 15 (phonetic), and the Commissione de Duare le Person v. 16 Canada Attorney General. 17 And just for your ease of reference, Mr. 18 Commissioner, paragraphs 17, 21 and 23, of the Province's 19 factum, all deal with essentially that principle, that 20 there is no jurisdiction to balance. And that the cases 21 referred to under each paragraph are similarly consistent 22 with that principle. 23 Perhaps I could just refer briefly to Cook 24 v. Ipp, because interestingly it dealt with a provision 25 that had been repealed, not one (1) that was in place.
2621 And perhaps it's most helpful to turn to 2 the decision. Do you know what tab? 3 COMMISSIONER SIDNEY LINDEN: Which 4 decision is this? 5 MS. KIM TWOHIG: Tab -- Tab 6. 6 COMMISSIONER SIDNEY LINDEN: Tab 6. 7 MS. KIM TWOHIG: And now depending on how 8 the cases are printed out, some of them have page numbers 9 and some don't. But I'm referring to a Quick Law version 10 on page 3, which sets out the current provision of the 11 Health Insurance Act, or at least as it was when the 12 Court of Appeal decided this case. 13 It begins at the top of page 3. And 14 you'll see that under Section 44.1, it talks about: 15 "Every member of the Medical Review 16 Committee and others, shall preserve 17 secrecy with respect to all matters 18 that come to his knowledge in the 19 course of his employment, et cetera." 20 Very similar to Section 80 of the Police 21 Services Act. 22 Under sub-section 2, it says: 23 "A person referred to in sub-section 1, 24 may furnish information." 25 And then at the bottom:
2631 "But such information shall be 2 furnished only: 3 A) In connection with the 4 administration of the Act, 5 b) In proceedings under this Act, 6 c) To his solicitor or personal 7 representative, that being the person 8 who provided the service, 9 d) To the person who received the 10 services, his solicitor or 11 representative, or 12 e) Pursuant to a subpoena by a court of 13 competent jurisdiction." 14 That's the key and that's what changed 15 everything in Cook and Ipp. But what the court did then 16 was, on page 5, it looked at the history of this Act and 17 Section 23 which had preceded Section 44. 18 And it was similar in many respects and is 19 similar in my submission to Section 80 of the Police 20 Services Act. Section 23 (1) again deals with the 21 preservation of secrecy with respect to all matters that 22 come to the knowledge of a Member of the Board of the 23 counsel and then makes exceptions under Subsection 2: 24 "a) in connection with the 25 administration of this Act and
2641 proceedings under this Act or 2 regulations or, 3 c) to the person who has provided the 4 service or his solicitor, and 5 d) as we've seen before the person who 6 received the services his solicitor et 7 cetera." 8 And then at the top of page 6 the court 9 refers to Subsection 5: 10 "No person engaged in the 11 administration of this Act shall be 12 required to give testimony in any civil 13 suit or proceeding with regard to 14 information obtained by him in the 15 discharge of his duties except in a 16 proceeding under or authorized by this 17 Act." 18 And the court looks at the similarity 19 between 23-2 and 44-2 and says: 20 "It's important to note that 23-5 21 constituted a complete prohibition 22 against an employee giving testimony 23 concerning evidence obtained in the 24 discharge of his duties." 25 That prohibition was specific and precise.
2651 Section 23-5 was repealed in 1972 and at the same time we 2 saw the clause that says except if a subpoena is issued. 3 The court goes on to say: 4 "The deletion of Section 23.5 is of 5 considerable significance. By deleting 6 this Section the legislature removed 7 the specific prohibition against giving 8 testimony and producing documents 9 pursuant to a subpoena of the court. 10 The history of the legislation leads me 11 to conclude that Section 44 of the 12 present Act was not intended to be 13 either a complete code or a prohibition 14 against complete production. 15 With the removal of that clear 16 prohibition it is appropriate to 17 conclude that the court may once again 18 exercise its inherent jurisdiction to 19 ensure that all pertinent documents are 20 before it." 21 And then finally, under the Conclusion on 22 page 7: 23 "Policy considerations, the history of 24 the legislation and a consideration of 25 the present Act, its provisions and
2661 apparent aims all lead to the 2 conclusion that Section 44 does not 3 constitute a complete code. The 4 Section itself does not contain a clear 5 statement of legislative intent, 6 required to oust the inherent 7 jurisdiction of the court to ensure 8 that it has, on the issue before it, 9 all relevant material to enable it to 10 reach a just conclusion." 11 And the point of this case, of course, is 12 that Section 23(5) is very similar to Section 69(8) if 13 not virtually identical. And what the Court of Appeal is 14 saying here that that Section is a complete code and a 15 complete prohibition to the provision of evidence in a 16 civil proceeding. 17 And I won't go over it in any detail but, 18 finally, I would just like to refer to the case of 19 Solicitor General of Canada versus Royal Commission of 20 Inquiry and to confidentiality of health records which 21 was referred to in the context of whether a public 22 inquiry is a civil proceeding. 23 There was a passage there that My Friend, 24 Mr. Roland didn't go over and I thought it might be 25 helpful, if I can only find the correct reference.
2671 (BRIEF PAUSE) 2 3 MS. KIM TWOHIG: Okay, I'm sorry, I have 4 -- I'm sorry, I have the wrong case. It must be the 5 lateness of the day, and I do apologize. The inquiry 6 into the confidentiality of health records. 7 COMMISSIONER SIDNEY LINDEN: It's page 8 13, I think. 9 MR. DERRY MILLAR: Tab 13. 10 MS. KIM TWOHIG: Tab 13. And I'm 11 referring to the Supreme Court decision. This case I 12 submit, is very, very helpful, because there's a 5:2 13 decision in this case, and the majority found that the 14 common-law rule of Police informer privilege prevailed 15 and was absolute. And notwithstanding the clear 16 relevance -- 17 MR. DERRY MILLAR: It's Tab 6 of the OPPA 18 documents, the one (1) at Tab 13 is -- 19 COMMISSIONER SIDNEY LINDEN: Yes, this is 20 an earlier decision. 21 MS. KIM TWOHIG: Sorry, no, thank you, I 22 appreciate that. 23 And just perhaps to back up while you're 24 looking for it, Mr. Commissioner. In this case, an 25 inquiry was established because there was concern about
2681 confidential health information being provided, 2 notwithstanding confidentiality provisions under the -- 3 the relevant legislation. 4 And it was found that a number of 5 physicians and employees of the Ministry of Health had 6 provided confidential information to the Police, contrary 7 to -- to the rules, and the issue became whether their 8 identity should be protected, notwithstanding the clear 9 mandate of the Commission, to inquire into how this was 10 happening. 11 And the majority of the Supreme Court 12 determined that their identity must be protected because 13 of the overriding public interest and informer privilege, 14 whereas the majority, Justice -- Chief Justice Laskin and 15 Justice Dickson, engaged in the balancing exercise 16 regarding the competing public interests. 17 And really, the arguments that are being 18 made here I think are very similar to the ones that were 19 being made here. 20 The majority decision starts at page 19 of 21 the -- the Quick Law printout. And if you turn to page 22 22, I hope your pages are the same as mine. 23 COMMISSIONER SIDNEY LINDEN: Yes, I think 24 they are, yes. 25 MS. KIM TWOHIG: But the last sentence on
2691 my page 22 says, I -- this is Justice Martineau speaking 2 for the majority: 3 "I do not agree with the suggestion 4 that the Police informer rule --" 5 I'm on the last page. 6 7 (BRIEF PAUSE) 8 9 MS. KIM TWOHIG: I'm -- I'm sorry, Mr. 10 Commissioner, we're just going to find the right location 11 to assist you. 12 13 (BRIEF PAUSE) 14 15 MS. KIM TWOHIG: Perhaps I'll work with 16 Mr. Millar to locate this for -- for your -- Your 17 Honour's assistance, but I'll just read it for now. 18 Justice Martineau said: 19 "I do not agree with the suggestion" -- 20 MR. DERRY MILLAR: Here it is. Paragraph 21 10, page 7. 22 MS. KIM TWOHIG: Oh. Paragraph 10. 23 Thanks very much. 24 COMMISSIONER SIDNEY LINDEN: Paragraph 25 10.
2701 MS. KIM TWOHIG: Page 7? 2 MR. DERRY MILLAR: Yeah. 3 MS. KIM TWOHIG: Of the majority 4 decision, paragraph 10. 5 COMMISSIONER SIDNEY LINDEN: I have it. 6 MS. KIM TWOHIG: Okay. 7 "I do not agree with the suggestion 8 that the police informer rule, which 9 has been stated to be a rule of law, 10 should be limited in its application to 11 criminal proceedings -- criminal 12 prosecutions and civil proceedings 13 founded upon a malicious prosecution." 14 My Friend Mr. Roland did read this. 15 "If it is applicable in civil 16 proceedings arising out of malicious 17 prosecution, there's no logical reason 18 why it should not also be applicable in 19 other proceedings." 20 And then he goes on: 21 "The public policy which gave rise to 22 the rule is the same no matter what 23 form the civil proceedings take." 24 He says: 25 "I do not interpret the words of Lord
2711 Esher (phonetic) in Markson Bifus 2 (phonetic) when he said that the rule 3 should be applied in a civil action 4 founded on the malicious institution of 5 a criminal prosecution as meaning that 6 it would be inapplicable in other civil 7 proceedings." 8 And following down into the next 9 paragraph, he says: 10 "A cautious judge expresses a 11 proposition of law in terms that are 12 wide enough to cover the issue in the 13 case under consideration. The fact 14 that they are not also wide enough to 15 cover an issue that may arise in some 16 subsequent case does not make his 17 judgment an authority against any wider 18 proposition. The judgment of the House 19 of Lords in that case establishes that 20 the rule that the identity of police 21 informers may not be disclosed applies 22 in civil actions." 23 But then he goes on and leads up to the 24 quote that Mr. Roland provided to you about, you know, 25 here the identity of police informer is being sought by
2721 the Commission itself. And the Commission has no greater 2 power than does a Court to allow that evidence. 3 So to the extent that My Friends, 4 tomorrow, direct you to cases where these records are 5 found inadmissible in civil actions, I submit that that's 6 because the Court was just deciding on the facts it had 7 before it. But where there is a public commission of 8 inquiry established, the same rules apply. 9 And the words "civil proceeding" should 10 also be interpreted, according to the Interpretation Act, 11 Section 10, very broadly on the basis that it's remedial 12 and is designed to -- to affect justice in the particular 13 circumstances of the case; not exactly a quote from 14 Section 10, but that's certainly the tenor of it. 15 Had the Legislature intended to exempt 16 public inquiries from the meaning of civil proceedings, 17 it would have done so with clear language, in my 18 submission, and it did not. So I submit that civil 19 proceeding should be interpreted broadly so as to include 20 everything from a civil action, to an inquest, to 21 tribunal proceedings and public inquiries. 22 I have addressed, in the Province's 23 factum, the response to the ALST factum and a few very 24 small points with which we couldn't agree in the OPP 25 factum, but I won't go over those now.
2731 Finally, I just wanted to submit that with 2 respect to the documents sought in the third paragraph of 3 the summons, being the policies relating to discipline, 4 those would only be relevant if, of course, the other 5 documents were considered relevant, because they have to 6 provide some context for the discipline that is meted 7 out -- 8 COMMISSIONER SIDNEY LINDEN: They've 9 already been provided. 10 MS. KIM TWOHIG: -- and that they've been 11 produced, so -- 12 COMMISSIONER SIDNEY LINDEN: They've 13 already been provided. 14 MS. KIM TWOHIG: -- we have no issue as 15 to admissibility in that case. 16 Thank you. Those are my submissions. 17 COMMISSIONER SIDNEY LINDEN: Thank you 18 very much, Ms. Twohig. We've come to the end of the day. 19 And, Mr. Falconer, you're going to be first up tomorrow 20 morning at nine o'clock. 21 MR. JULIAN FALCONER: Yes. I had e- 22 mailed My Friends this afternoon, there's two (2) 23 additional cases that we're relying on. In particular, 24 there's one, the West Ray Mine case, and I thought I 25 would leave, having used your photocopier this afternoon,
2741 Mr. Commissioner, I thought I would leave two (2) copies 2 of the case for your Commission and -- 3 MR. DERRY MILLAR: I think we -- 4 COMMISSIONER SIDNEY LINDEN: I think we 5 already have them. 6 MR. JULIAN FALCONER: Perfect. 7 COMMISSIONER SIDNEY LINDEN: We already 8 have copies of this case. 9 MR. JULIAN FALCONER: All right, and -- 10 MR. DERRY MILLAR: They came today. 11 MR. JULIAN FALCONER: All right, and if I 12 can note for My Friends as a courtesy paragraph 60 to 65 13 and 116 to 118 are the paragraphs that I'll be bringing 14 to the attention of the Commissioner. 15 COMMISSIONER SIDNEY LINDEN: Thank you, 16 Mr. Falconer. We will adjourn now and reconvene tomorrow 17 morning at nine o'clock. Thank you very much. 18 THE REGISTRAR: This Public Inquiry is 19 adjourned until tomorrow, Wednesday July 20th, at 9:00 20 a.m. 21 22 --- Upon adjourning at 5:00 p.m. 23 24 25
2751 2 Certified Correct 3 4 5 6 7 8 ___________________________ 9 Dustin Warnock 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25