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 20th, 2005 25
21 Appearances 2 Derry Millar ) Commission Counsel 3 Susan Vella ) (np) 4 Donald Worme, Q. C ) (np) 5 Katherine Hensel ) (np) 6 Megan Ferrier ) (np) 7 Murray Klippenstein ) The Estate of Dudley 8 Vilko Zbogar ) (np) George and George 9 Andrew Orkin ) (np) Family Group 10 Basil Alexander ) 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 ) (np) Kettle Point & Stony 19 Jonathon George ) (np) 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 ) (np) 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. ) (np) Marcel Beaubien 14 Dave Jacklin ) (np) 15 Trevor Hinnegan ) (np) 16 17 Mark Sandler ) Ontario Provincial 18 Andrea Tuck-Jackson ) 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 ) (np) 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 Discussion 7 4 5 Submissions on Motion 6 Submissions by Mr. Julian Falconer 12 7 Submissions by Mr. Julian Roy 92 8 Submissions by Mr. Matthew Horner 132 9 10 Reply by Ms. Kim Twohig 153 11 Reply by Mr. Mark Sandler 160 12 Reply by Mr. Ian Roland 180 13 14 15 16 17 Certificate of Transcript 193 18 19 20 21 22 23 24 25
61 --- Upon commencing at 9:10 a.m. 2 3 THE REGISTRAR: This Public Inquiry is 4 now in session, the Honourable Mr. Justice Linden 5 presiding. Please be seated. 6 COMMISSIONER SIDNEY LINDEN: Good 7 morning. 8 MR. MURRAY KLIPPENSTEIN: Good morning -- 9 COMMISSIONER SIDNEY LINDEN: Good 10 morning, Mr. Klippenstein. 11 MR. MURRAY KLIPPENSTEIN: -- Commissioner. 12 I rise this morning to ask a few moment of 13 special leave because, although the Estate of Dudley 14 George and the George Family had not expected to ask or 15 provide oral comments, as a result of yesterday's 16 proceedings there was a couple of comments that were made 17 that raised a great deal of concern and that had not 18 appeared in the written prefiled materials, and I was 19 going to ask special leave for five (5) minutes to make 20 some comments. 21 And I've spoken with My Friends, Mr. 22 Falconer and Mr. Horner, and they have no objection, nor 23 does Mr. Millar, as I understand. 24 COMMISSIONER SIDNEY LINDEN: And when you 25 say "five (5) minutes" do you really --
71 MR. MURRAY KLIPPENSTEIN: Yes. 2 COMMISSIONER SIDNEY LINDEN: -- mean five 3 (5) minutes? 4 MR. MURRAY KLIPPENSTEIN: Yes. 5 COMMISSIONER SIDNEY LINDEN: Okay. 6 That's fine. Then I think -- 7 MR. MURRAY KLIPPENSTEIN: Thank you. 8 COMMISSIONER SIDNEY LINDEN: -- we should 9 hear you for five (5) minutes. 10 MR. MURRAY KLIPPENSTEIN: Thank you. 11 COMMISSIONER SIDNEY LINDEN: Thank you. 12 MR. MURRAY KLIPPENSTEIN: The -- the 13 concerns I have arise from the comments of Ms. Twohig, 14 which appear in the transcript of yesterday at page 253, 15 lines 2 to 13, and specifically deal with whether racism 16 is in issue before this Inquiry. 17 I'll just read them very briefly. They 18 say, quote: 19 "Here, where we have had a criminal 20 trial, where there was no evidence that 21 race played any role in the shooting 22 death of Mr. George, and there hasn't 23 been any evidence from any of the 24 witnesses for the police, and only 25 speculation on the part of any others
81 that race played any role in the events 2 surrounding the death of Dudley George. 3 And I would submit that to embark on an 4 inquiry into that whole issue when it's 5 never been raised before and when there 6 is no evidence that it was a factor 7 would be beyond the mandate of the 8 Commission." Close quote. 9 Now, my concern is that those comments 10 could be interpreted as saying that the whole issue of 11 racism is not in this Commission's mandate; that may be a 12 misinterpretation. And since these comments don't appear 13 in the factum, they may not -- they may be open to 14 misinterpretation. They also occur in the context of a - 15 - an argument about a particular case. 16 So, I don't want to suggest Ms. Twohig is 17 -- is saying what I -- what I worry about, but the Estate 18 and the family certainly are concerned about racism in 19 the events surrounding the death of Dudley George. And I 20 think that when Ms. Twohig said that in this situation, 21 just like the case she cites, there was a criminal trial 22 where race was not in issue, that is not, in my 23 respectful submission, a factor here. 24 The family has always said publicly before 25 the -- the criminal trial of Kenneth Deane (phonetic) and
91 during the trial and after the trial, that it was 2 precisely because a criminal trial has limited issues 3 that they thought a public inquiry was important. So, in 4 my view, that factor should not apply here. 5 Secondly, Ms. Twohig seems to say that 6 there's no evidence that race played any role in the 7 shooting and, in my respectful submission, that doesn't 8 apply here and shouldn't be prejudged at this point. 9 Certainly when the tapes came out in which 10 two (2) officers were recorded making comments about 11 watermelons, it was shocking to the estate and family. 12 And certainly Mr. George spoke publicly at the time and, 13 if I dare say so, in a measured manner saying that this 14 appeared to be a reference to racism in the American 15 south and, furthermore, that the tape's reference to 16 baiting the Indians in the Park almost portrayed them as 17 subhuman. 18 And, Mr. George said publicly - and I 19 believe it was broadcast on national TV - that those 20 kinds of approaches categorize people and lessen them as 21 human beings, which can tend to make the use of force and 22 violence easier. 23 So, it is very much the case that the 24 family has said that racism might be an issue here and so 25 those comments, in my respectful submission, are -- are
101 certainly mistaken and perhaps not intended the way I -- 2 I questioned. 3 I think it's going too far to say that the 4 discipline records of those two (2) officers shouldn't be 5 looked at because then we have a huge inquiry that is an 6 inquiry into everything about -- you know, without limit. 7 There are -- there are limits of time and money here; we 8 recognize that, but in my respectful submission, it is 9 certainly -- there are very good grounds to say that 10 racism is an issue; should be looked at. 11 These comments may be an example. There 12 may be other examples and I -- I would urge you not to 13 make a ruling now that it is not relevant. 14 So, those are -- those are my submissions. 15 I should say I believe that there's also an issue under 16 the Police Services Act about -- in Section 80 -- about 17 persons to which the information relates and to the 18 extent that the George Family are such persons, they 19 certainly consent to -- to examination of those -- of 20 those records. 21 And those are my submissions and thank you 22 very much for your indulgence. 23 COMMISSIONER SIDNEY LINDEN: Thank you 24 very much. Thank you very much, Mr. Klippenstein. 25 Do you feel the need to respond to that,
111 Ms. Twohig? 2 I'm not sure how to deal with this, but I 3 don't want to get into an argument at this stage, 4 obviously, and have everybody making arguments on this 5 point, but... 6 MS. KIM TWOHIG: Thank you, Mr. 7 Commissioner, I just thought it might help to clarify my 8 comments now so that we don't need to spend too much time 9 on them. 10 What I had meant to convey and I thought 11 that the balance of my submissions addressed this is that 12 it's certainly within this Commission's mandate to look 13 at whether there were racist incidents or any racism at 14 all in terms of the events surrounding the -- the death 15 of Dudley George and I think I -- I submitted that 16 certainly questions could be asked of the various 17 officers who were involved in the events and their 18 supervising officers, et cetera, about what happened that 19 night. 20 My concern was that the whole issue of how 21 the OPP imposes discipline and whether or not there is a 22 systemic problem is something that's a different issue 23 altogether and that is not within the mandate. 24 I hope that helps to clarify my comments. 25 COMMISSIONER SIDNEY LINDEN: Well, thank
121 you, Ms, Twohig. I don't want to, as I said, I don't 2 want to get into this argument at this stage, but thank 3 you very much. You've made your point and Mr. 4 Klippenstein has made his and we're going move on to Mr. 5 Falconer. 6 You're going to have your opportunity now, 7 Mr. Falconer. 8 9 (BRIEF PAUSE) 10 11 MR. JULIAN FALCONER: You'll forgive me 12 while I just set up the materials? 13 14 (BRIEF PAUSE) 15 16 SUBMISSIONS BY MR. JULIAN FALCONER: 17 MR. JULIAN FALCONER: Mr. Commissioner, 18 in terms of presenting responding arguments on the motion 19 to quash the summonses, I just want to briefly lay out 20 for you how myself, Mr. Roy and Mr. Horner propose to 21 deal with the issues, firstly. 22 The idea will be I will address questions 23 surrounding facts and relevance -- questions surrounding 24 facts and relevance. Mr. Roy will address the case law 25 relied upon by the OPP and OPPA in particular. And Mr.
131 Horner will address the issues raised in his factum with 2 a particular focus on the issue of the definition of 3 "civil proceedings." 4 I want to start with a few themes, if I 5 can, in terms of where my submissions are going to direct 6 themselves, and what you'll also be hearing certainly 7 from Mr. Roy as well. 8 The submissions by the OPP and the OPPA as 9 well as the Attorney General, on the one hand, are 10 somewhat seductively attractive because they represent, 11 with great respect, Mr. Commissioner, a way out. They 12 represent a manner of, in essence, expediting the 13 process; we ask less questions and we have less paper. 14 And I want to put up front that that is a 15 danger and it is a particular danger in circumstances 16 where we have a deadline and a difficulty in managing to 17 get to that deadline. And I do not mean to suggest any 18 criticism of you, Mr. Commissioner. 19 I simply raise it because it's my duty to 20 my client as a concern on behalf of Aboriginal Legal 21 Services of Toronto that, as attractive as it might be, 22 not to you, Mr. Commissioner, but to those who make the 23 argument, as attractive as it might be, it is essential 24 that your investigation not cut corners. 25 And so I begin by the proposition that
141 those who speak in terms of expanding this Inquiry or 2 those who speak in terms of, We have enough on our plate, 3 that is the essence of the argument they're making to 4 you. 5 And in my respectful submission, it is 6 absolutely essential that all of the assurances that you 7 have routinely given the public in respect of this 8 Inquiry are borne in mind. 9 I know you'll do that, Mr. Commissioner, 10 and I in no way meant to suggest that your Counsel or you 11 were of that view. And I want to emphasize the obvious 12 ű- opposite is true, you did serve a summons, Mr. Millar 13 did ask Deputy Commissioner Carson about the racist 14 comments and did seek to explore them. 15 So, there's -- I'm simply suggesting that 16 one of the concerns expressed by the moving parties is 17 simply something that ought not to play into it. 18 Now my second issue that I want to address 19 is to try to get right at the root of what seems to be 20 the sticky point here. 21 We take the position as a primary position 22 that the documents are both producible and admissible. 23 Right? That's our primary position, and you'll hear 24 argument on it. But I would like to acknowledge 25 something up front with you, Mr. Commissioner. I would
151 like to acknowledge that our argument for production is 2 much stronger than our argument for admission; that is 3 not unusual. 4 You have served as a Judge including as a 5 Chief Justice for ten (10) years, Mr. Commissioner. You 6 know that routinely courts order, Well I'm not saying I'm 7 going to admit this, I'll order it produced at this 8 point, I'm not saying it's admissible, but it certainly 9 falls within that area of information that the parties 10 ought to have to do their job. Happens all the time. 11 And what you heard yesterday was a merger 12 between the concepts, a merger that reached the point 13 that it made it very difficult to grapple legally with 14 the issues. We're going to try to unpack it so that 15 there isn't such a gloss and there isn't a merger. And 16 this is how we propose to unpack it, both factually and 17 legally. 18 We take the respectful position that what 19 has happened is the moving parties have merged the 20 concepts of use immunity privilege. Right? Use immunity 21 privilege as, for example, reflected in a number of 22 different statutes, including what you saw in Forget and 23 Sutherland and what you see to some extent in Section 69, 24 use immunity privilege. 25 You -- you can't use, example, the
161 evidence in one proceeding and file it in -- in another. 2 Use immunity privilege, that has been confused with 3 informational privilege, such as solicitor/client 4 privilege, where there is an absolute cloak over the 5 information. 6 You see, by merging those, by merging 7 those, that's how Mr. Sandler got to the point where he 8 said, Well, if you can't file it, you can't see it. 9 But, in fact, that's not how the law has 10 developed. By merging use immunity privilege and the 11 concepts enshrined in the statute to some extent and 12 informational privilege, Mr. Sandler gets to the point 13 where he's able to say to you in a fairly -- fairly 14 efficient and impressive fashion, I say, to Counsel, he's 15 able to say to you that you can't -- you can't even look 16 at it. 17 But then you asked him, Mr. Commissioner, 18 you asked him, Well, can we ask questions about this 19 area? Well, let me think on that, yeah, I think we can 20 ask some questions. 21 Now, Mr. Commissioner, therein lies, 22 right, the difficulty in Mr. Sandler's and Mr. Roland's 23 and -- and Ms. Twohig's analysis. 24 If we were talking about informational 25 privilege, if we were talking about, for example,
171 solicitor/client privilege, there's an easy answer, we 2 all know the answer to it. 3 You can't ask about it. You're barred. 4 You can't go there, you can't go there. We're not 5 talking about informational privilege. There is nothing 6 in the statute that creates informational privilege. 7 There is an oath of confidentiality under 8 Section 80; we'll go to there and explain what we say it 9 means and, as a matter of commonsense what it means. 10 But Section 69 creates the former, if 11 anything. We say, "if anything," it creates a use 12 immunity privilege which is not to be confused, not to be 13 confused, with informational privilege. 14 Mr. Roy will expound much further on this 15 in the area of law, because I think it's important we 16 make these arguments. We have to present the legal 17 foundation that arms you, Mr. Commissioner, with an 18 appropriate approach. 19 We intend to do that and we intend to that 20 carefully. 21 Now, I want to take this one step further, 22 because it's important to understand where the positions 23 of the moving parties take you. If their merger of use 24 immunity privilege and informational privilege is 25 successful, you are forced to bar any questions at all
181 about: 2 1. The racists comments of Whitehead and 3 Dyke to the extent they were dealt with as complaint 4 matters under the Act; and 5 2. The mugs and T-shirts incidents to the 6 extent they were dealt with under the Act. 7 Because as goes -- so goes the argument of 8 Mr. Sandler, the Commissioner to the extent she's dealt 9 with this under the Act, or that part, is bound to 10 secrecy. 11 You can't override it; no questions in 12 this area. Informational privilege. Absolutely an 13 extreme position that, with great respect, can't be right 14 and it's not right. 15 So, I start from the proposition that, as 16 in many difficult areas of law, you have to start with 17 commonsense and commonsense tells us that if the George 18 family, Clifford George or the rest of the community were 19 told today, Yes there were racist comments by officers 20 but, no, you can't ask about it; this inquiry would 21 plunge into a sea of absolute loss of credibility and the 22 -- the primary function of the Inquiry would be lost. 23 It is as important that Clifford George 24 and Sam George and others know and understand and trust 25 this process as it is that the police officers get an
191 opportunity to explain themselves. 2 All of that is part of the Public Inquiry 3 and it hurts, and it's difficult and it's awkward and 4 it's painful and you recognized that in your opening 5 remarks, I noted, Mr. Commissioner. 6 It is, but it doesn't relieve us of the 7 duty to go there. You have, Mr. Commissioner, an 8 investigative process at hand. We are reminded 9 repeatedly this is not a trial, it's an investigation. 10 Investigations generally open files, they 11 don't close them. Investigations read information, they 12 don't seal it up. 13 You start with that premise, you start 14 with that premise. When you are told by Mr. Roland and 15 you are told by Mr. Sandler you can't even go there, you 16 can't even look in these files on how we dealt with it, 17 what you're being told is your investigation is to be 18 deprived of key information. 19 I want to now move to the other important 20 factual component by way of introductory remarks that has 21 -- was left entirely out of the piece in the comments of 22 My Friends in their submissions yesterday. 23 The Cossitt information. I understand 24 it's Constable Cossitt, so to the extent I -- I mis- 25 described him, it started some month or two (2) ago when
201 there was a suggestion he was a commissioned officer now. 2 I don't know how that ended up happening, 3 but I understand it's a Constable Cossitt and in respect 4 of Constable Cossitt you heard no submissions yesterday, 5 even though I was very careful to articulate the 6 agreement on the record before the motion started, which 7 is, we are proceeding on the basis a summons was issued 8 in relation to the records of Cossitt. 9 We are told, by way of inventory, that 10 there is one (1) document in there, an investigation 11 report, and -- and we are proceeding on an agreement that 12 the parties are resisting the Cossitt subpoena the same 13 as they are in respect to the others, so your ruling 14 binds as well in that respect. 15 Now they don't mention Cossitt, but here 16 is an example of how dangerous it would be to fall into 17 the submissions My Friends make. Now we move from racist 18 comments to use of force. 19 You have a finding by Judge Fraser, it's 20 an exhibit in the proceedings, you do not need me to take 21 you to it and re-read it to you, Mr. Commissioner, you 22 know it. You have a finding by a brother judge that this 23 officer deliberately lied under oath with respect to the 24 use of force that was occasioned on September 6th, 1995, 25 and he lied in respect of his observations and his role
211 and what he perceived as force by the occupiers. 2 The fact that OPP officers would have 3 deliberately lied under oath about the nature of the 4 force used on September 6th, 1995, can't possibly but go 5 to the heart of the task you're presented with in your 6 investigation. 7 The fact that they lied means when they 8 take the stand, it's relevant. The fact that they lied 9 and how the OPP dealt with the lying is directly within 10 your mandate because the OPP is a party here. The OPP 11 and the systemic issues that give rise to the use of 12 force on that date, they propose to present evidence to 13 you on how they've dealt with it, subsequently. 14 They propose to do that. They propose to 15 give evidence to you, Mr. Commissioner, on how they've 16 taken steps to address the systemic issues, but you are 17 to be barred from understanding how the OPP took steps to 18 address one (1) of their officers who lied under oath 19 about the force and circumstances of September 6th, 1995. 20 That is a big problem and, in my 21 respectful submission, it defies common sense. So an 22 example of how the thin edge of the wedge, a form of 23 denial of access to information can impede your 24 investigation has to be in the form of Cossitt; it's a 25 perfect example.
221 So where do you draw the line? Where do 2 you draw the line? And my submissions are going to be 3 directed to -- my submissions are going to be directed to 4 trying to assist you on that. 5 And the heart of our submission is this, 6 the heart of our submission is this: You draw the line 7 on a case-by-case basis. There is no -- I repeat -- no 8 informational privilege, none at all, and the issue of 9 the admissibility of a -- of a document or not stands to 10 be determined once the document is in the hands of the 11 parties and they move or bring a motion to file it. 12 Prior to that, this is not an issue and that's how courts 13 deal with it all the time. 14 An example, a discipline file comes to 15 Counsel. Counsel looks at the discipline file, may well 16 use the information to formulate questions to advance the 17 investigation, may never seek to file a single piece of 18 paper from that file because it's not appropriate, 19 unnecessary. 20 You may well rule if they did seek to file 21 such a document that 60 -- Section 69 governs or it 22 doesn't or it's not needed, it doesn't advance the 23 investigation; that's what I mean by, "case-by-case." 24 There's absolutely no need to create a 25 cloak or a blanket cloak of secrecy. And -- and I want
231 to emphasize this at the start because that's -- that's 2 how we usually do business, with respect. 3 What My Friends are proposing is a new way 4 of doing business. You'll notice, Mr. Commissioner, not 5 one (1) case do they have; not one (1) case do they have 6 where a court has found a ban on the level that they 7 refer to. 8 Forget and Sutherland is a perfect 9 example, Mr. Roy's going to take you to it. You'll 10 notice that the Court of Appeal actually was quite 11 careful to say this doesn't foreclose usage for cross- 12 examination. 13 I don't know if you recall, that's in the 14 judgment. 15 COMMISSIONER SIDNEY LINDEN: I'm not sure 16 that I do, but -- 17 MR. JULIAN FALCONER: All right. Well, I 18 just want you to know Mr. Roy's going to take you to 19 that. And all of the cases always speak to the same 20 thing. We're not saying you can't cross-examine at the 21 appropriate time, we're saying that it doesn't become a 22 piece of evidence just because it's in a file. And 23 that's good law; that's right, that's true. 24 But the notion of absolute secrecy, let's 25 take a step back again and ask the question, how could it
241 possibly apply in the circumstances of, for example, this 2 -- the use immunity privilege? 3 Use immunity privilege is about somebody 4 testifying in one proceeding and you're not allowed to 5 use the information in another. 6 In the first proceeding there's no 7 secrets. It's public record often. Use immunity 8 privilege is about the disentitlement to use it somewhere 9 else; not a secret. It's not a secret. And that's how 10 they get confused with information privilege. 11 And I -- I don't want to muddle it but 12 that's my point. By merging the two (2) concepts, that's 13 how they got where they got yesterday, that's how they 14 slammed the door. But it's wrong. It's just -- it's not 15 principally correct. 16 Now, I'll go to my submissions on the 17 issue of facts and relevance. 18 19 (BRIEF PAUSE) 20 21 MR. JULIAN FALCONER: If you could direct 22 your attention, Mr. Commissioner, to ALST's factum, page 23 2. 24 MR. DERRY MILLAR: Tab 3. 25 COMMISSIONER SIDNEY LINDEN: Tab 2?
251 MR. DERRY MILLAR: Tab 3. 2 COMMISSIONER SIDNEY LINDEN: Tab 3. 3 4 (BRIEF PAUSE) 5 6 MR. JULIAN FALCONER: I'm first going to 7 deal with -- we have three (3) sets of incidents; that's 8 what I'm going to call them. We have the Whitehead and 9 Dyke incident, we have the mugs and T-shirts incident and 10 we have the Cossitt incident. We have three (3) sets of 11 incidents. 12 So, at page 2, I'm going to deal with 13 first the Whitehead and Dyke incident. At page 2 you see 14 the setting out of the transcript in relation to the 15 conversations -- 16 COMMISSIONER SIDNEY LINDEN: Yes. 17 MR. JULIAN FALCONER: -- at issue. And 18 it must be emphasized, Mr. Commissioner, these, as you 19 know, are exchanges between intelligence officers who are 20 part of the enforcement mechanism against the occupiers 21 at the material time. 22 This isn't shooting a helicopter four (4) 23 years before. This isn't all of the different areas the 24 aboriginal community was put through on their history, 25 years back. This is at the time. The true irony of the
261 positions being taken by My Friends, the true irony. 2 Now, at line 18 and 19: 3 "Speaker 1: Yeah. We have this plan, 4 you know. We thought if we could, five 5 (5) or six (6) cases of Labatt's 50, we 6 could bait them. 7 Speaker 2: Yeah. 8 Speaker 1: And we've had this big net 9 at a pit. 10 Speaker 2: Creative thinking. 11 Speaker 1: Works at the south of the 12 border, don't it?" 13 Obviously, the exchanges between Whitehead 14 and Dyke are exactly how your Counsel characterized them 15 in his question to Deputy Commissioner Carson; They're 16 racists, It's racist humour. 17 It's just pure flat racist humour. And it 18 should be called that so there can be no doubt from the 19 point of view of the public watching these proceedings 20 that we're not afraid to recognize matters for what they 21 are. We're not -- we're not afraid. 22 It doesn't mean that the entire OPP are 23 racists. And it certainly doesn't mean, for example, 24 Incident Commander Carson is a racist. 25 What it means is, is that officers on
271 duty, intelligence officers, were engaged in racist 2 humour. And it tell us, and a very important signal, 3 that at least some of the OPP officers involved in the 4 enforcement initiative, the intelligence officers, are 5 people incapable -- incapable of getting over their own 6 prejudices. We know that. We have facts. 7 Because you don't engage in conversations 8 like this if you're capable of getting over your own 9 prejudices. You are a victim of your own prejudices when 10 this is the humour you use while you are addressing, as 11 intelligence officers, an occupation by an aboriginal 12 community. This says you are a victim of your 13 prejudices. 14 And I will speak to where that takes us 15 next but I -- I say that that is the significance of 16 this, just from a starting point, just as a matter of 17 common sense. And that is the first set of incidents. 18 In my submission, if you put a -- a square 19 around the Whitehead/Dyke incidents, you won't know how 20 big to build the square. 21 Why won't you know how big? Because you 22 don't know how widespread the problem is. You have no 23 idea. You're conducting an investigation and you've 24 heard from one (1) police officer at the scene, one (1). 25 Of course Fox was not at the scene.
281 Superintendent Fox, as -- as useful a witness as he was 2 for your investigation was not part of the operations; 3 that was not his job. 4 We've heard from one (1) witness and that 5 one (1) witness didn't know about Whitehead and Dyke. He 6 had no idea. 7 He only found out when the tape was 8 played. He had no personal knowledge that officers under 9 his command were of this kind of view and engaged in this 10 kind of humour; that goes without saying. So, your 11 investigation isn't over in this area, it's only 12 beginning, with great respect. 13 Now, isn't that tough? That's the problem 14 and that's why I opened my comments with this. I opened 15 them with this because it -- we might as well say and 16 it's like yesterday when I said, you know, this Motion's 17 going to take us until noon tomorrow, Mr. Commissioner. 18 See, I have a philosophy about this. 19 Lawyers are terrible for mis-stating the time and 20 everybody gets more disappointed and more upset and more 21 cynical. 22 We might as well acknowledge this is a 23 task we have. It's a job we're presented with and it's a 24 job your Commission Counsel has primarily -- has to 25 assist you with, and others such as Aboriginal Legal
291 Services of Toronto are here to help with. 2 But to suggest the task isn't there or to 3 downgrade the gravity of the task is simply, with great 4 respect, unrealistic and not in keeping with all of the 5 assurances you've given the community. We have just 6 started the police; we don't know how widespread the 7 problem is. 8 Now, do I say that means that this -- this 9 equals a slur on all police officers? Absolutely not. 10 But, to suggest the opposite, that it's only Whitehead 11 and Dyke and that no other officer engaged in this kind 12 of humour and that no other officer evinced racist views 13 or comments couldn't be more unfair as far as an 14 investigative arm goes. 15 You don't know that yet. That might be 16 the conclusion, but we don't know. We have to be able to 17 ask the tough questions; that's what an investigation is 18 for. 19 And so with great respect, if on the one 20 hand, the box was simply around Whitehead and Dyke, so 21 the box was a small box, we would be addressing issues 22 such as already raised. 23 If, on the other hand, the investigation 24 report conducted by the OPP reflects the fact that 25 Whitehead and Dyke responded, that this was the kinds of
301 things others said and why are they being singled out and 2 that there were -- and that this happens all the time and 3 that this is being overdone. There is different humour 4 happens all the time. We're under a lot of stress. 5 If comments like that came out, Mr. 6 Commissioner, would that be ignored by you? I don't 7 think so. 8 You see, that's the problem, that's the 9 problem in prejudging this. So, I say with respect, Mr. 10 Commissioner, you don't know how widespread the problem 11 is at this stage. It's in an -- its embryonic stage, the 12 investigation. 13 You've seen paper but the one paper you 14 haven't seen is the files on this issue. 15 Mr. Commissioner, it's simply unfair to 16 create a square at this time around Whitehead and Dyke 17 and know the breadth of it. It's unfair. And it may 18 speak to how vociferously the moving parties are fighting 19 these summonses because they may know something we don't. 20 They may know something we don't. 21 I move next to the mugs and T-shirts 22 incident. Now the mugs and T-shirts incident is 23 interesting for several reasons. 24 First of all, it's absolutely essential -- 25 it's absolutely essential with respect to the mugs and T-
311 shirts incident that it not be misunderstood in terms of 2 its ramifications. 3 I would say the best indicator of the 4 seriousness and the ramifications of the mugs and T- 5 shirts incident lies in the letter of apology from 6 Commissioner O'Grady to Sam George. 7 That was a recognition by the Ontario 8 Provincial Police of the offensive nature of the actions 9 and the -- and the importance -- importance in 10 acknowledging it. 11 Now, you can't, on the one hand -- you 12 can't on the one hand how inappropriate and offensive it 13 is, and on the other hand bar access to the information. 14 What it reflects, is it reflects the views 15 and perceptions of at least some of the officers involved 16 in the enforcement initiative on September 6th, 1995. 17 Why, one may ask? Well, I put it to you 18 this way, Mr. Commissioner. Either some of the officers 19 involved in the enforcement initiative actually 20 participated in the creation of the mugs and T-shirts, 21 which we don't know yet, or they purchased them with glee 22 afterwards. 23 Either way, something is very wrong; the 24 mugs and T-shirts are racist. They are racist. They are 25 a subtle form of racism. They are an acknowledgement of
321 where the OPP and white Canada sits on the balance of 2 power relative to the native community and that's that 3 truth; that's how they're racist. They are racist. 4 Now, did the officers know they were 5 racist when they created this form of humour? Maybe not, 6 but haven't asked the questions yet. They tell us 7 something about the attitudes and perceptions of some of 8 the officers involved in the enforcement initiative on 9 September 6th, 1995. They go right to the heart of 10 concerns the aboriginal community has. 11 There can be no doubt that the OPP 12 obviously is offended that this happened, but being 13 offended doesn't a secret make. It is absolutely no 14 answer; it is no answer that we are offended, but you 15 can't see the information. We are offended by you can't 16 know the breadth of the problem. With great respect, Mr. 17 Commissioner, that's not an investigation, that's absurd. 18 Now, where -- how do you get here? How do 19 you get to the point where you are told -- and I'm going 20 to take you through the list of documents they say you 21 can't have in relation to the mugs and T-shirts. I'm 22 going to take you -- we are in the tens and twenties of 23 documents. 24 How do you get to the point where you are 25 told you can't have them because they say to you, because
331 you can't file them. And, since you can't file them, you 2 can't have them. And, we can prove you can't file them 3 because we have a section here that looks like you can't 4 file them. Now, that we've proved you can't file them, 5 you can't have them. That is a very impressive legal 6 slight of hand, but that's what it is, it merges -- use 7 immunity privilege and informational privilege. 8 One (1) has some -- I -- I agree we have a 9 row to hoe there. The other is wrong; you must have 10 them. You must have this information. What the OPP 11 should have been submitting to you yesterday is if 12 there's any doubt, state a case, get a judge's order. If 13 you don't have any doubt, we agree to the order as long 14 as you follow a process. 15 You didn't hear that. You heard the OPP 16 actively opposing you having access to the information. 17 Interesting. I say very interesting. Not necessarily 18 creating signals of comfort for an institution supposed 19 to be trying to fix itself, that preaches transparency. 20 This can't be a secret. 21 If this is a secret, then with great 22 respect, your investigation starts to lose credibility; 23 that's the problem, that's the huge problem. And, this 24 isn't about speeches, this is about my job to advance on 25 behalf of my client and other members of the Aboriginal
341 community that these go to the core of the concerns of 2 our constituents. 3 Now, Ms. Twohig clarified today, and with 4 all respect to Ms. Twohig, it is now clear as mud. I do 5 not understand the position of the Attorney General. I 6 don't. I think I might understand it, but I don't 7 really; either you're entitle explore issues of race as 8 they played a role in the events surrounding the death of 9 Dudley George or you're not. 10 Now, if you are, then the Donaldson case 11 couldn't be further from applicable. And, if you're not, 12 then the Attorney General, with great respect, has missed 13 the boat in terms of the concerns Aboriginal witness 14 after Aboriginal witness expressed to you. 15 What does the community rightfully expect 16 from -- reasonably expect from an inquiry? I'll be 17 taking you to some law that talks in those terms. You 18 can't -- you can't appease everyone and you can't say 19 that everyone who has an expectation has their 20 expectation met, but what can a community reasonably 21 expect? 22 I want -- I want to, if I can, Mr. 23 Commissioner, take you to a passage from the evidence of 24 Ovide Mercredi. 25
351 (BRIEF PAUSE) 2 3 MR. JULIAN FALCONER: On April 1st, 2005, 4 Mr. Mercredi testified on the issue of how his community 5 and the First Nations community views the question of 6 police conduct and the development of trust with 7 enforcement officials, you'll recall. It was very, very 8 compelling evidence. 9 COMMISSIONER SIDNEY LINDEN: You can 10 refresh my memory. 11 MR. JULIAN FALCONER: I will. I'm going 12 to read to you and then -- and then hand up the 13 transcript excerpt, because I don't have a second copy, 14 but I'm going to read to you the passages and then hand 15 it up to you. 16 I'm reading from the transcript of April 17 1st, 2005, and it's the cross-examination by Mr. Horton 18 for the Chiefs of Ontario. And it starts at page 91 of 19 that transcript, line 7: 20 "We've heard evidence -- 21 And this is Mr. Horton: 22 "We've heard evidence, for example, 23 here at the Inquiry about racial taunts 24 being used by police officers in 25 exchange with the occupiers. And I
361 expect we will hear more evidence about 2 offensive racial comments that are made 3 by law enforcement officers while 4 they're engaged in performing their 5 duties. Can you comment on how that 6 affects your ability as a leader to 7 promote moderate nonviolent solutions 8 among your people?" 9 So Mr. Horton very articulately and 10 eloquently sets up the issue. 11 I'm skipping some answers, I want to be 12 fair in terms of how I describe this, and I'm moving to 13 page 94, 95, because Mr. Mercredi went on at length and I 14 -- and I want to focus just for a minute. Line 19: 15 "Question: For you to clarify, but 16 what I was getting at, sir, is just -- 17 can I recast it in the context of the 18 answer you've just given. I take it 19 you'd agree with me -- 20 And I'm at the bottom of page 94. 21 ˘I take it you'd agree with me that in 22 trying to promote dialogue as opposed 23 to violence, racial taunts by police 24 officers who are on duty is 25 counterproductive to that goal?
371 Answer: Absolutely. 2 Question: I take it -- and we will 3 hear evidence, I believe, about at 4 least one (1) police officer in this 5 situation talking about the use of 6 force or the impending use of force in 7 terms of going to war. 8 Question: I take it you'd agree with 9 me that that is not an attitude that is 10 conducive to even enforcing the laws in 11 a way that is constructive? 12 Answer: I would say that's not 13 Canadian. I mean, it shouldn't even 14 happen in this country." 15 And -- and this is where I'm going to now 16 read to you a little bit at length, Mr. Commissioner. 17 "That people -- 18 And this is Mr. Mercredi, starting at page 19 95, line 14: 20 "That people entrusted with power, like 21 the -- like the police are entrusted 22 with power -- the people entrusted with 23 power, like the police are entrusted 24 with power, would have the licence as 25 individuals to apply that power based
381 on their own biases or their own 2 prejudices. I think public servants, 3 like police are public servants, should 4 be very careful in how they use the 5 incredible power that the lawmakers 6 have given them, right. They have a 7 duty of care beyond the duty of care 8 you and I have in terms of peace and 9 harmony. Like, the greatest role that 10 the police provides to society is peace 11 and harmony." 12 Then at page 97: 13 "Question: You mentioned about after 14 the fact meeting with Inspector Coles 15 and others, and then you talked about 16 them being subdued and not being 17 arrogant and so on. Or it was not a 18 situation you would expect them to be 19 arrogant. I expect that we're going to 20 hear some evidence about some 21 commemorative items that were actually 22 prepared by someone to commemorate the 23 police action in Camp Ipperwash 24 involving -- I've never seen one of 25 these but apparently there's a mug with
391 a broken arrow and that sort of thing. 2 Can you comment on that in terms of its 3 impact on the ability to promote the 4 values that you've talked about as a 5 leader?" 6 Now, I'm going to hand this to you, Mr. 7 Commissioner, and you can follow me because I have a copy 8 of the rest of it. And I would simply ask you to note 9 that there's a sticky at the front page of the entire 10 transcript, but if you simply follow the page from then 11 on. 12 So I'm at line 18, and you see a sidebar 13 there. 14 COMMISSIONER SIDNEY LINDEN: Yes. 15 MR. JULIAN FALCONER: Mr. Horton has 16 asked his question: 17 "Can you comment on that in terms of 18 its impact on the ability to promote 19 the values that you've talked about as 20 a leader? 21 Answer: Well it does nothing to 22 restore, you know, it does nothing to 23 restore normal relations between the 24 aboriginal community and the police. 25 It does the opposite. It creates a
401 greater divide. It reinforces in our 2 minds that the suspicions we have about 3 the police and their role, right. And 4 it confirms our observations about 5 their conduct in their lives, right. I 6 -- gees, I don't know if I could -- I 7 don't want to take too much of your 8 time, but it's not good, it's not good 9 policing to do that. You know, to 10 commemorate an event in that way is 11 just antagonizing the aboriginal 12 communities. Like the taunting of its 13 own, it's a provocation that should 14 never be allowed within the police 15 organization. Whoever his superiors 16 are should have disciplined that act in 17 the most extreme way in order for them 18 to convey the message to their own 19 police organization that that kind of 20 conduct will not be condoned by the 21 police association or by the line of 22 command in the police organizations." 23 Ovide Mercredi didn't know about this 24 motion -- didn't know about it. But the first thing he 25 told you as a First Nations leader is it's essential that
411 the aboriginal communities hear about how the OPP treated 2 this. 3 When Ms. Twohig told you that's not 4 relevant, she didn't hear Ovide Mercredi; she didn't hear 5 him, with all due respect. It only makes good sense, Mr. 6 Commissioner. You cannot heal -- because you spoke to 7 healing in your opening remarks -- you cannot heal 8 without acknowledgement. 9 When the OPP says there's a cloak of 10 secrecy surrounding how they dealt with this issue, that 11 ignores -- that ignores, absolutely ignores, what Ovide 12 Mercredi so eloquently put, 13 "Our people must know how you dealt 14 with this because we must have our 15 confidence restored in you." 16 Now you, Mr. Commissioner, you heard about 17 liaisons, the dictionary definitions of them. You are a 18 vehicle for this healing, but you can't be a vehicle if 19 doors are closed. 20 And -- and that's why I say, with all due 21 respect, the Attorney General must not have meant what it 22 sounded like the Attorney General said through Ms. Twohig 23 when -- when they said that how the OPP dealt with acts 24 of racism in the context of the Ipperwash occupation is 25 not properly a subject matter of this Inquiry; that could
421 not possibly have been what they meant. 2 You -- you could ask all the aboriginal 3 communities today to go home because they actually think 4 they're here to find out if their concerns on how they've 5 been treated for centuries found complete and utter 6 manifestation on what happened on September 6th, 1995. I 7 mean, that's the level of the concern in the community 8 and that's what you're trying to heal. 9 And we don't heal it by closing doors. We 10 don't heal it by keeping secrets. Now if the legislators 11 said the following, if they said, Any discipline files 12 maintained by the OPP are secret and no court shall 13 access them through any court order, you would have a 14 problem of attention between your work and theirs, but of 15 course there is no such provision. 16 At its highest, there is a use immunity 17 provision on admissibility, Section 69 and there is an 18 oath of confidentiality for officials carrying out their 19 duties, Section 80; that's it. That is all you have to 20 work with. You have no provision that says judges shall 21 not make orders to see information in discipline files. 22 You have no such provision. Nor do My 23 Friends have a single case that says that; not a single 24 case. Now Mr. Sandler said, If I had a case, this would 25 be a lot easier. I -- I ask, rhetorically, what would be
431 a lot easier? What -- what would be a lot easier, 2 keeping secrets? 3 You see, that's the problem with the 4 submissions -- 5 COMMISSIONER SIDNEY LINDEN: That's not 6 fair, Mr. -- 7 MR. MARK SANDLER: That's just a 8 distortion of my position, with great respect. 9 COMMISSIONER SIDNEY LINDEN: That's not 10 fair. I forget the distortion and that's not what you 11 said. I mean, you did say it would be easier, but that's 12 not what you meant. 13 MR. JULIAN FALCONER: I ask rhetorically 14 what -- 15 COMMISSIONER SIDNEY LINDEN: Yes. 16 MR. JULIAN FALCONER: -- would be easier. 17 MR. MARK SANDLER: Yeah, sorry, and I was 18 just going t say, and My Friend talks about healing and I 19 just think it's unfortunate that my position is being 20 misrepresented because it doesn't contribute to the 21 healing. 22 COMMISSIONER SIDNEY LINDEN: Yes. 23 MR. JULIAN FALCONER: I want to emphasize 24 something, absolutely, for the record. I did not 25 interrupt Mr. Sandler --
441 COMMISSIONER SIDNEY LINDEN: No. 2 MR. JULIAN FALCONER: -- when I disagreed 3 with him vehemently yesterday how he merged use immunity 4 privilege and information privileges if he didn't know. 5 I do not want to get interrupted all day because Mr. 6 Sandler doesn't agree with me. 7 COMMISSIONER SIDNEY LINDEN: Yes. 8 MR. JULIAN FALCONER: I was fair. I 9 asked a question rhetorically and I'm allowed to do that. 10 COMMISSIONER SIDNEY LINDEN: Yes. 11 MR. JULIAN FALCONER: And some of this 12 hurts, but it hurts -- 13 COMMISSIONER SIDNEY LINDEN: Yes. 14 MR. JULIAN FALCONER: -- my clients when 15 they hear that the very issues that they are castigated 16 with ű- aboriginals in urban centres as you know, Mr. 17 Commissioner, have a particular problem with use of force 18 and police. 19 In the urban centres, in particular, the 20 contact between police and aboriginal communities who 21 form major portions of the homeless community is extreme. 22 When they hear that the position of the Attorney General 23 and the Ontario Provincial Police is henceforth -- 24 because there's no case that says this -- is henceforth 25 that discipline files are simply not accessible, you
451 can't see them, that provokes exactly what I said. 2 And so again, I ask rhetorically, what 3 would it make easier, keeping secrets? And Mr. Sandler 4 doesn't like hearing it, but that's the gist of his 5 submission with the greatest of respect. It -- it -- we 6 -- we can't -- this is not cricket; this is not about 7 being gentlemen and forgetting what we're saying. 8 The message being sent to Sam George, to 9 Clifford George and to others is that we are not going to 10 be accountable in respect of this information because we 11 believe there's a legislative provision that protects it. 12 Now that's the message and -- and to -- 13 COMMISSIONER SIDNEY LINDEN: Yes. 14 MR. JULIAN FALCONER: -- put it politely, 15 is not going to get the message across and I appreciate 16 Mr. Sandler being uncomfortable with it, but that's the 17 message and the message must be put passionately that 18 that's not right. 19 COMMISSIONER SIDNEY LINDEN: Carry on. 20 21 (BRIEF PAUSE) 22 23 MR. JULIAN FALCONER: I move to the third 24 category, the third category of information that I spoke 25 to which was the Cossitt information.
461 The trial of Kenneth Deane was an extreme 2 strain on all the various interests that were affected by 3 the September 6th tragedy. 4 One of the temptations, for anyone 5 directly involved in that trial, would be once the Judge 6 rendered a verdict to the extent they could, and they 7 weren't personally affected, to move on. 8 A systemic reality that Aboriginal Legal 9 Services has experienced, as my client has experienced 10 and I have experienced as Counsel, is that often Judges 11 make judgments that are ignored, with the greatest of 12 respect. 13 Judges make findings on credibilities of 14 police officers that are ignored. Officers who are 15 actually found to have deliberately lied under Oath do 16 not receive any ramifications for their conduct. It 17 happens routinely. 18 Now we are not here to fix all of that. 19 On the other hand, if an officer, personally involved, 20 personally involved in the use of force on September 6th, 21 1995 lied about the occupiers use of force and 22 correspondingly lied about his use of force, then how the 23 OPP dealt with it is front and centre. 24 And again, I repeat, it is no comfort, no 25 comfort whatsoever to the communities on the other side
471 to be told they can't touch it. 2 Now, I would ask you to direct your 3 attention if I could, Mr. Commissioner, to the OPP 4 application record so there is a firm grasp on the extent 5 of the information they seek to keep secret. 6 Do you have the OPP application record 7 materials in front of you? 8 COMMISSIONER SIDNEY LINDEN: I do. 9 10 (BRIEF PAUSE) 11 12 MR. JULIAN FALCONER: There's a document 13 that they've got at Tab 6, perhaps Mr. Millar can help 14 you. 15 16 (BRIEF PAUSE) 17 18 COMMISSIONER SIDNEY LINDEN: Yes. This 19 is the inventory of records. 20 MR. JULIAN FALCONER: Yes, that's right. 21 I want to start with the Whitehead/Dyke materials, 22 because if you look at group 1, just -- I mean they've 23 got it as -- as simply Group 1, 2 and 3, but it would be 24 presumptuous of me to suggest you write anything, but if 25 you -- if you were to write White/Dykehead [sic] beside
481 Group 1, you'd be getting it right; that's what it seems 2 to -- that's how they're doing it. 3 So, what is this Commission to be denied 4 in terms of information? And this is why I say we're 5 going into the facts now. 6 What is this Commission to be denied in 7 terms of information? Right. There was an investigation 8 report dated July 29th, 2003 by the Professional 9 Standards Bureau. 10 That is, there was a full report, 11 presumably by a bod -- the Professional Standards Bureau, 12 as you know, Mr. Commissioner, is a body whose mandate is 13 to investigate misconduct by officers, so a body who's 14 mandate is to investigate misconduct by officers who did 15 it, and created a report on the misconduct of Whitehead 16 and Dyke. 17 That is to be kept secret. 18 My Friends yesterday said that the 19 notebook entries wouldn't be. But difficulty is there's 20 an asterisk at the end that says, Here are things we 21 don't object to producing and weren't made in the course 22 of, and there's no asterisk beside the notebook entries 23 of Dyke and Whitehead and if I could just direct your 24 attention to page 4 of the inventory, if you flip to page 25 4.
491 COMMISSIONER SIDNEY LINDEN: Yes, I noted 2 that. 3 MR. JULIAN FALCONER: So Mr. Sandler may 4 want to clarify it. I don't know -- I need to -- 5 actually, it's important for my submissions, I don't know 6 if they are producing the notebook entries of -- of Dyke 7 or they're not, because there's no asterisk beside it. 8 You follow my -- I'm now -- we're doing 9 this microscopic frustrating process, but I have to 10 because we have to know what it is they say they're not 11 going to produce. 12 COMMISSIONER SIDNEY LINDEN: Well there's 13 no asterisk beside it, so I assume that it's not in that 14 category. 15 MR. JULIAN FALCONER: That's right. So 16 the notebook entries of the intelligence officer on 17 September 5th, 1995 are to be kept secret. That -- 18 that's extraordinary. 19 The third -- the third category, the 20 signed typed statement of Detective Constable James Dyke 21 dated 13th of February 1996, no asterisk. Now if I'm 22 getting this wrong -- I don't want to waste your time, 23 Mr. Commissioner -- if my -- 24 COMMISSIONER SIDNEY LINDEN: I don't see 25 an asterisk.
501 MR. JULIAN FALCONER: No. But if My 2 Friends want to get up and say, I've made a mistake. 3 4 (BRIEF PAUSE) 5 6 MR. JULIAN FALCONER: I'm at number 3, 7 the signed typed statement of Detective Constable James 8 Dyke dated 13th February 1996. I'm happy to give them a 9 minute because -- 10 COMMISSIONER SIDNEY LINDEN: I see Mr. 11 Sandler -- 12 MR. MARK SANDLER: If I can assist My 13 Friend, I will check during the break about the second 14 item, notebook entries of Detective Constable James Dyke. 15 The distinction that was drawn and the 16 reason why the asterisks are there is a simple one. If 17 the documentation was prepared for the purposes of 18 responding to the complaint, then it falls within the 19 provisions that we've talked about yesterday. 20 If they were made in the ordinary course 21 of business by the officers and contemporaneous with the 22 events and all of that, and -- and not to respond to a 23 complaint, I can't take objection to it. 24 So I will clarify Item 2. It may be that 25 there should have been an asterisk beside Item 2. I
511 don't believe there should have been an asterisk beside 2 item 3 because that was prepared to respond to the 3 complaint, as I understand it. 4 COMMISSIONER SIDNEY LINDEN: Yes. I 5 understood the distinction, Mr. Sandler. 6 MR. MARK SANDLER: Yes. So I will check 7 the notebook entries under -- under 2 and 4 and -- but -- 8 but I can indicate to My Friend that I don't believe this 9 -- this will take away from the thrust of his argument. 10 If it turns out that those notebook 11 entries are the notebook entries for Dyke and Whitehead 12 that relate to their -- 13 COMMISSIONER SIDNEY LINDEN: Normal 14 course of business. 15 MR. MARK SANDLER: -- then -- 16 COMMISSIONER SIDNEY LINDEN: They'd be 17 admissible, or you would release them. 18 MR. MARK SANDLER: Of course. 19 COMMISSIONER SIDNEY LINDEN: That's fine. 20 MR. MARK SANDLER: Of course. And -- and 21 they'd already be in the databank, I would assume, in any 22 event. 23 24 (BRIEF PAUSE) 25
521 COMMISSIONER SIDNEY LINDEN: Are you -- 2 MR. JULIAN FALCONER: I suppose the only 3 thing -- and I appreciate the clarification, I asked for 4 it. The only thing I -- I'd say is that I would -- I 5 need to, once I know the answer, and it may be that we 6 can find out during a morning break, then I would need to 7 be able to respond. That -- that's my only difficulty, I 8 can't do this in the air. So -- 9 COMMISSIONER SIDNEY LINDEN: Well -- 10 MR. JULIAN FALCONER: -- as I understand 11 it, number 2 -- 12 COMMISSIONER SIDNEY LINDEN: And 4. He's 13 referred to Items 2 and 4, they may be -- 14 MR. JULIAN FALCONER: They may get 15 asterisks. 16 COMMISSIONER SIDNEY LINDEN: So you can 17 carry on from there. 18 MR. JULIAN FALCONER: All right. And I - 19 - I take it when My Friend advises you, Mr. Commissioner, 20 and me of their position I'll be able to deal with 2 and 21 4; nothing else. 22 COMMISSIONER SIDNEY LINDEN: Well, either 23 they're included in this list or they're not. So -- 24 MR. JULIAN FALCONER: But -- 25 COMMISSIONER SIDNEY LINDEN: -- you'll
531 find out. 2 MR. JULIAN FALCONER: All right. 3 COMMISSIONER SIDNEY LINDEN: You'll find 4 out. 5 MR. JULIAN FALCONER: Thank you. Now the 6 signed, typed statement of Detective Constable James 7 Dyke, number 3, 13th February '96; that's very telling. 8 Because if My Friend's position is it was created in 9 respect of a complaint, that means that the 10 Whitehead/Dyke exchanges were known to the OPP in 11 February 1996. 12 COMMISSIONER SIDNEY LINDEN: Hmm. I -- 13 MR. JULIAN FALCONER: It's either -- 14 either -- I mean, I'm simply -- I'm trying not to do 15 provocative leaps of logic. I'm simply looking at it, 16 I'm looking at the date, and their position is, those 17 documents that were not subject of asterisks were 18 generated as a result of a complaint process. That is 19 their position. You see it in the asterisk at page 4. 20 That is the wording. The wording is -- 21 COMMISSIONER SIDNEY LINDEN: Okay. 22 MR. MARK SANDLER: To assist -- 23 MR. JULIAN FALCONER: ű- "They were not 24 made as a result of a complaint." 25 COMMISSIONER SIDNEY LINDEN: Okay.
541 MR. MARK SANDLER: All right. I will 2 check during the break and if there should be asterisks 3 on these because they're -- because I agree with My 4 Friend -- 5 COMMISSIONER SIDNEY LINDEN: Yes. 6 MR. MARK SANDLER: -- they're Will Says 7 that relate to the events in September '95, they weren't 8 generated as a result of a complaint, I think My Friend 9 may very well be right. 10 COMMISSIONER SIDNEY LINDEN: Thank you. 11 MR. MARK SANDLER: In which event, we'll 12 put asterisks on them. 13 COMMISSIONER SIDNEY LINDEN: All right. 14 We'll find out what those items are. 15 MR. JULIAN FALCONER: We'll I don't -- 16 we're at 10:10, it is hard to listen to me for a long 17 time; my wife tells me that all the time. We're at about 18 an -- an hour that I've been on my feet. 19 COMMISSIONER SIDNEY LINDEN: Would you 20 like to break now? 21 MR. JULIAN FALCONER: This -- and I'm 22 hoping Mr. Sandler can sort out the asterisks so we can 23 keep moving. 24 COMMISSIONER SIDNEY LINDEN: That's fine. 25 Thank you very much. We'll break now.
551 THE REGISTRAR: This Inquiry will recess 2 for fifteen (15) minutes. 3 4 --- Upon recessing at 10:09 a.m. 5 --- Upon resuming at 10:25 p.m. 6 7 THE REGISTRAR: This Inquiry is now 8 resumed, please be seated. 9 MR. JULIAN FALCONER: Mr. Commissioner, 10 Mr. Sandler for the OPP has indicated that asterisks 11 should be added under group 1 to Documents number 2, 3 12 and 4. 13 COMMISSIONER SIDNEY LINDEN: 2, 3 and 4? 14 MR. JULIAN FALCONER: Yes. 15 COMMISSIONER SIDNEY LINDEN: That's fine. 16 17 (BRIEF PAUSE) 18 19 MR. JULIAN FALCONER: When we took the 20 break, we were at the inventory, so I'm simply going to 21 continue with that. 22 COMMISSIONER SIDNEY LINDEN: That's fine. 23 MR. JULIAN FALCONER: The will state of 24 Detective Constable Daryl Whitehead of July 29th, 2003. 25 Mr. Commissioner, obviously what this document represents
561 is now Detective Constable Daryl Whitehead being 2 presented with the tape and his response to it, I'm 3 guessing. 4 What I'm asked -- one (1) to think about 5 is the term "will state." On the basis that informal 6 discipline proceedings were taken, one queries why there 7 was a will state, but we're not going to have an answer 8 to that question. 9 What was the proceeding for hearing that a 10 will state was created for, in respect of July 29th, 11 2003. We don't know the answer to that and we won't 12 know, but some kind of proceeding was contemplated. 13 You don't have will states for nothing. 14 In terms of the information, you heard, 15 for example, the questions of Superintendent Fox with 16 respect to his experiences when the tape was played. In 17 other words, you have a tape, we want to play it for you 18 and then we want to talk to you. 19 Now, obviously superintendent Fox's 20 situation is completely different than Officer 21 Whitehead's. But on the other hand, the information that 22 Officer Whitehead provided authorities when the tape was 23 revealed to him is information we should know and not, I 24 repeat not, in now years later, after the passage of 25 time, in preparation for this Inquiry.
571 That is going to be a different statement. 2 My client wants to have the benefit in terms of preparing 3 for Constable Whitehead's cross-examination, the benefit 4 of what he said at the time when presented with this 5 tape. The same applies for number 6. 6 Number 7 refers to internal e-mail 7 correspondence. Obviously, it creates many more 8 questions than answers but I want to emphasize that 9 Counsel who are preparing, and I don't need to -- to tell 10 you this, Mr. Commissioner, Counsel who are preparing to 11 conduct a cross-examination, it's exactly information of 12 this nature that informs how we try to advance the 13 investigation. 14 I mean, I use the term, and I meant it in 15 good faith, I used the term "surgery" a little while ago. 16 You know, cross-examination is surgery, especially with a 17 very adverse witness. 18 You don't -- you don't go into surgery if 19 you can't see what you're operating on and you don't go 20 into surgery only based on what they want you to see, 21 you're supposed to see everything. 22 And then you do your homework and you read 23 everything, and once you've read everything, you try to 24 put it back together again and run it by the witness in a 25 fair way.
581 But if I don't know what internal e-mail 2 correspondence was going on to Daryl Whitehead about the 3 comments, the racist comments that he participated in, 4 then with all due respect, I'm deprived of an important 5 piece of information, as is your Counsel and as are you, 6 in conducting your investigation. 7 Someone's controlling our access to 8 information and my submission is, quite simply, that goes 9 too far. 10 And it is interesting to stop and pause on 11 that issue because I -- I -- well, I think it's 12 interesting. It may not be interesting at all, but from 13 -- from the perspective of the Aboriginal Legal Services 14 of Toronto, when people say, Well, you can still ask him 15 the questions, that is born of an entirely unrealistic 16 understanding of how cross-examination is done. 17 I don't do it blind. It's not true, Mr. 18 Commissioner, that lawyers only ask questions that they 19 know the answer to; that's not true. We -- most of us 20 know that, but it's equally not true that we ask 21 questions not knowing anything. 22 This is the meat of the information that I 23 need to do my job, pure and simple. And, when the 24 parties for the moving parties say to you, you can't have 25 the internal e-mail correspondence with Whitehead about
591 his misconduct the end result is the only thing I can 2 operate on is this notion of asking him questions while 3 he's on the stand. 4 Now, two (2) things flow from that: 5 Number 1, of course that means there is no 6 informational privilege being claimed; the only thing 7 they're claiming is some kind of use immunity privilege 8 because if it was all privilege, it was the information I 9 couldn't ask anything. 10 But, number 2, perhaps far more 11 importantly, a artificial -- an artificial exercise is 12 underway where the OPP, the OPPA and, according to Ms. 13 Twohig's submissions because she says in her factum that 14 the Attorney General is the superintendent of this and 15 they're really their documents; do you recall that in her 16 factum? 17 So, the OPP, the OPPA, and the Attorney 18 General all know what this internal correspondence says, 19 it's just your Counsel and you don't and we don't. 20 That's not consonant with a Public Inquiry, what that's 21 consonant with is us going in blind; that's not right, 22 that's not right. 23 And, by the way, Mr. Commissioner, if they 24 don't know, they're entitled to know based on their 25 submission, which is they're the custodians of the paper.
601 Mr. Commissioner, the next Document number 2 8, Proposed and Formal Discipline; this triggers the 3 entire issue of how we got here. I want to emphasize, 4 you know, Mr. Commissioner, I don't know if you need me 5 to take you to the provisions, but the notion of informal 6 discipline is that it's used for the least serious kinds 7 of misconduct; that's the premise. You don't -- you 8 don't have to get fancy about it; that's the premise. 9 Obviously, very important questions have 10 to be asked as to why the OPP, including the 11 Commissioner, see the actions of intelligence officers in 12 engaging in racist behaviour as the least serious kind of 13 misconduct. I mean, they keep -- they view this on the 14 level of, You didn't fill out your notebook properly. 15 In the context, and I want to emphasize 16 this, in the context of all that happened between the 17 time of the death of Dudley George and the time the OPP 18 discovered these racist comments; that is, it's not the 19 OPP didn't understand how shaken the community was by 20 what happened. By the time Whitehead and Dyke come to 21 their attention, they must be given to have known how the 22 tragedy has impacted the community and, of course, 23 ultimately led to this Inquiry. 24 So, in that context, they decide to use 25 the least serious means for dealing with their officers.
611 Very important questions come up as to why this proposal 2 as reflected in number 8 was made and accepted. 3 It's very interesting because if -- if -- 4 Ms. Twohig says, Well, it's really -- it's not the 5 concerns of this Inquiry. 6 My submission on that is as follows. The 7 OPP will be presenting evidence to you in the fall, for 8 example, on Aboriginal issues. You announced publicly 9 that Commissioner Boniface will talk about the 10 initiatives they've taken. 11 Now, we know what that means and -- and 12 it's a good thing. One (1) of the things inquiries do is 13 they prompt parties to clean house. It's -- it's -- 14 we've seen it a -- a thousand times; it's -- it's -- the 15 courts have recognized it. It's a salutary effort of an 16 inquiry. 17 Agencies tend to go, The inquiry's coming, 18 what have we done? The public's going to want to know. 19 It's all a good thing. It's not sinister, it's good. 20 And then, they -- they get up and they, with some element 21 of pride, say, We -- we have done something; here's what 22 we've done. 23 And then you, Mr. Commissioner, with your 24 Counsel and the parties assisting make a bit of a 25 judgment call. All right, they've identified a problem.
621 First of all the problem they identified, 2 is it the real problem or is it -- or did they miss the 3 boat? And then, number 2, having identified the problem, 4 have they fixed it? 5 That's the process we undergo. I don't 6 think that's an issue, but what Ms. Twohig's submission 7 is to the effect is, that we're not entitled to examine 8 how they fixed the problem; that's her submission. 9 That how the OPP responded to these racist 10 incidents are beyond the province of this Inquiry when, 11 in fact, that represents exactly what we're supposed to 12 do, which is ascertain what they've done to address it, 13 how they've identified it, and what they've done to fix 14 it. 15 And obviously it is not probably a great 16 start to know that they viewed it as one of the least 17 serious forms of misconduct. That's not a great start 18 and we're entitled to explore that because you can't fix 19 a problem if you haven't identified it. 20 So, my submission is, it very much is 21 relevant. And does that mean we spend days on this? 22 Mr. Commissioner, I want to emphasise 23 this. I -- our cross-examinations, certainly from the 24 ALST's point of view, have been reasonably organized and 25 efficient. There are ways to deal with these areas in a
631 reasonably fast manner. 2 These are not matters of rocket science. 3 Here's what an informal discipline criteria are, here's 4 what the conduct was, and here's what you applied, and 5 here's the document that explains why you did it. 6 Now, could you help me on how you tell me 7 it's serious but you use this and they give an 8 explanation which, no doubt, they will have worked on for 9 some time. 10 And you, Mr. Commissioner, will make a 11 call -- 12 COMMISSIONER SIDNEY LINDEN: Yes. 13 MR. JULIAN FALCONER: You'll make a call 14 on it. 15 COMMISSIONER SIDNEY LINDEN: Yes. 16 MR. JULIAN FALCONER: And you'll make a 17 call whether they properly recognize the problem and 18 they've properly fixed it and that's how Public Inquiries 19 work. That doesn't take days. 20 But, if we're denied the right to ask the 21 questions, and that's what happens, right? If you -- if 22 you're not allowed to see the rationale in 2003 for doing 23 this, you're going with blinders. 24 COMMISSIONER SIDNEY LINDEN: Yeah. 25 MR. JULIAN FALCONER: And so my
641 difficulty remains the same, of course this is within 2 your province and I think you impliedly recognize that. 3 I'm not saying you determined this Motion, but your 4 Counsel served that summons, not because it's irrelevant. 5 You see, Ms. Twohig says -- she made lots 6 of arguments on relevance. I'm not going to spend a lot 7 of time on it, because not even the OPP or OPPA spent 8 much time on relevance. 9 It's clearly relevant. The only real 10 issue is whether there's a statutory bar. 11 You'll see under ten (10), and under 12 twelve (12) this notion of completion of the informal 13 discipline. Now, the latter date for completion of the 14 formal discipline of November 2003, do you see that under 15 ten (10)? 16 COMMISSIONER SIDNEY LINDEN: Hmm hmm. 17 Yes, I do. 18 MR. JULIAN FALCONER: I could be 19 mistaken, but I thought November 2003 is precisely when 20 this Inquiry was ordered. I think the Order in counsel 21 is -- is November 2003. 22 COMMISSIONER SIDNEY LINDEN: That's 23 pretty close. 24 MR. JULIAN FALCONER: It's -- 25 COMMISSIONER SIDNEY LINDEN: I think that
651 is the day. 2 MR. JULIAN FALCONER: -- it's a very -- 3 it's a very interesting world that the decision to go by 4 informal discipline and to complete it, if My Friends are 5 right, creates a wall where you can't go past it. And 6 the wall is created by the party being examined, and it's 7 an interesting world. 8 If you opt for formal discipline, you're 9 subject to scrutiny, accountability and transparency. 10 We'd be here with the materials, this Motion wouldn't 11 happen. 12 They close it out in November 2003 at the 13 very time this Inquiry is ordered. Could be a complete 14 coincidence; I accept that. But, I say it from a 15 perception point of view, it does cause some questions. 16 And all of these things are speculative, I 17 acknowledge that. But you see, I'm stuck. I can't see 18 any paper. 19 Three-quarters (3/4) of this would 20 probably remain in my briefcase; nine-tenths (9/10) of 21 it. I've done so many discipline files cases where I get 22 the discipline file and it never leave my briefcase 23 because most of it is not helpful, or it's helpful in an 24 indirect way and away you go. 25 The adjudicator never has to make a call
661 on admissibility because the parties are all equipped 2 with the information and they do their jobs. 3 COMMISSIONER SIDNEY LINDEN: I understand 4 that. 5 MR. JULIAN FALCONER: And -- and so maybe 6 this is a coincidence of timing, or maybe not, but we -- 7 we can't figure that out. 8 That deals with Group 1 which is the 9 Whitehead/Dyke. Twelve (12) -- twelve (12) categories of 10 information that are actually documents. Some of the 11 documents, all right, some of the documents are extremely 12 broad in nature. 13 Number 1, the investigation report. You 14 know, Mr. Commissioner, just as your Counsel knows, just 15 as we all know, that that document could have a lot of 16 relevant, important information done by the Professional 17 Standards Bureau that we should know about and benefit 18 from. 19 We shouldn't be guessing. And I find it 20 interesting that there's a suggestion that the 21 Professional Standards Bureau that created a report with 22 the assurance that it would be secret. Like, there's no 23 way that happened. 24 What their point is, is that Whitehead and 25 Dyke may have given statements relying on a section,
671 there's no evidence before you of that, by the way, that 2 that's their claim; that's their claim. 3 Well, it's kind of interesting if you 4 unpack that. First of all, they've got not a single case 5 that could erect that assurance, right. There is not a 6 single case that says, The door is closed. Mr. Sandler 7 said that. So Whitehead and Dyke did this on an 8 assurance that has no finding by a judge to date. 9 In fact, Counsel for the OPPA consented to 10 this area being looked into on last day. I don't know if 11 you need me to take you to that portion of the evidence, 12 but Counsel consented. It was an issue that was 13 canvassed by your Counsel and then there was a 14 consultation with OPPA Counsel, and they came up here and 15 consented to questions about it the next day. 16 Remember, it -- it went overnight? 17 COMMISSIONER SIDNEY LINDEN: Yes. 18 MR. JULIAN FALCONER: If they wanted to 19 object, they had ample opportunity. You heard 20 submissions about knowledgeable waiver. I mean, we're 21 talking about working through the lawyers and we're 22 talking about working overnight. 23 So, the entire notion that Whitehead and 24 Dyke received an assurance of complete secrecy, I don't 25 see how it could have been given at the time since there
681 wasn't a case that says that. And the statute is not 2 clear on secrecy. It does create a use immunity 3 privilege, arguably. 4 They could have been given the assurance, 5 The statement can't be filed. If they were given any 6 other assurance, that -- that would not make sense. So I 7 simply -- I have a problem with that. 8 And as for the Professional Standards 9 Bureau, we know they weren't given that assurance. 10 That's not what they do. Their job is to create reports 11 that do create accountability. 12 So we move to group 2 now. The -- the 13 only good news I can convey, Mr. Commissioner, is I will 14 finish my portion of submissions -- my portions of the 15 submissions by no later than 11:00. So you won't have to 16 listen to me past 11:00, that's -- that's the good news. 17 COMMISSIONER SIDNEY LINDEN: Thank you. 18 MR. JULIAN FALCONER: And with your tooth 19 -- and with your tooth, this can't be easy. So I -- 20 COMMISSIONER SIDNEY LINDEN: No. That's 21 fine. Carry on, Mr. Falconer. 22 MR. JULIAN FALCONER: In terms of group 23 2, the mugs and T-shirts, again, same problem. 24 Professional Standards Bureau does a report. They do the 25 report on January 8th, 1996.
691 The report is going to be far-reaching, 2 you know that, Mr. Commissioner. It's going to have all 3 the facts. It's going to tell us things such as which 4 officers were involved in the use of force and thought 5 this was a good idea. It's going to tell us that. 6 That is not something that should be a 7 secret. I -- I cannot understand. People don't like the 8 word 'secret'. They think it's inflammatory, unfair. We 9 should use words like 'privilege', 'statutory privilege' 10 or 'statutory bar'. Glen George, if you -- or Clifford 11 George, if you were to ask Clifford George what it is, 12 it's the word, "secret," is the right word. That's just 13 because people do not work with legal ease, and that's 14 the perception created. 15 And what I'm saying is, there's no way 16 that the Professional Standards Bureau thought, in 17 January 1996, that a provision created in 2002, six (6) 18 years later, was going to keep their report secret. This 19 -- this deals with the retrospectivity argument under 20 group 2. 21 All of the documents that you see created, 22 if you flip through, predate the -- the sections My 23 Friends rely upon by years and years. The suggestion 24 that officers somehow psychically saw this section coming 25 down the road and signed on, on relying on it, is simply,
701 obviously, untenable. 2 So, that entire argument that officers 3 won't cooperate anymore because they relied on this and 4 it didn't work out, can't possibly work for group 2. 5 What does matter -- and you -- Mr. Roy is 6 going to give you our legal submissions on this -- is 7 what was the legislative scheme at the time, and we'll go 8 through that with you. And that's not to say, if you did 9 apply this thing retrospectively, which the law says 10 you're not supposed to without clear provisions, that's 11 not to say, if you did, it would still be secret, but it 12 -- it get's looser, that's all. In -- in that time 13 period it's much looser. 14 The bottom line in terms of this area is 15 I'd like to start with 2 and 3 under group 2. You see: 16 "Reproduction of image reproduced on 17 mugs. Reproduction of image reproduced 18 on T-shirts." 19 You see, they did their job in 1996. 20 We're using newspaper clipping pieces, do you recall, Mr. 21 -- that is the only thing we have. So the OPP has... 22 23 (BRIEF PAUSE) 24 25 MR. JULIAN FALCONER: I'm mistaken. I
711 thought we only had the newspaper picture. I -- I think 2 maybe it's because when Carson was questioned, that's all 3 I saw, but if I'm wrong, I'm wrong. Is there any 4 possibility of getting the exhibit numbers when you get a 5 chance? 6 MR. DERRY MILLAR: Yeah, I don't have the 7 exhibit number right now, but we did file a -- an exhibit 8 that shows the -- more of the images that had been 9 provided to us by -- 10 COMMISSIONER SIDNEY LINDEN: Yes. 11 MR. DERRY MILLAR: -- the Ontario 12 Provincial Police. 13 COMMISSIONER SIDNEY LINDEN: That wasn't 14 in the newspaper. 15 MR. DERRY MILLAR: It was separate. 16 COMMISSIONER SIDNEY LINDEN: It was 17 separate, yes. 18 MR. JULIAN FALCONER: But if these are 19 the images that were provided by the Ontario Provincial 20 Police and they're two (2) and three (3), then that's -- 21 that -- that train left the station. Why -- why is it on 22 a list of -- 23 COMMISSIONER SIDNEY LINDEN: I'm not sure 24 what these two (2) and three (3) refer to, but we have 25 seen a reproduction.
721 MR. JULIAN FALCONER: Well if -- if what 2 we've seen is a reproduction of the images on the mugs 3 and a reproduction of the image reproduced on T-shirts, 4 and those have been filed as exhibits -- 5 COMMISSIONER SIDNEY LINDEN: Right. 6 MR. JULIAN FALCONER: -- that's a good 7 thing. 8 COMMISSIONER SIDNEY LINDEN: Yes. 9 MR. JULIAN FALCONER: The bad thing is 10 that I would be making argument as part of a list of 11 privileged documents, because obviously that's -- that -- 12 that -- I'm just -- and again, I'm encouraging My Friend 13 to help me on this because I don't want to waste your 14 time. 15 COMMISSIONER SIDNEY LINDEN: No, I 16 understand that. I believe -- Mr. Sandler, you could 17 correct me -- I believe we have seen a reproduction of 18 the image as an exhibit; is that correct? I think we 19 have? 20 MR. MARK SANDLER: Yes. Yes. 21 COMMISSIONER SIDNEY LINDEN: Is it one 22 (1) of the documents that is now -- 23 MR. MARK SANDLER: Yes, you already -- 24 you already have this and -- and the only reason this is 25 listed without an asterisk is because these reproductions
731 that we have and which I believe everyone has, were 2 created in the course of the complaint, but they're 3 already out there, so -- 4 COMMISSIONER SIDNEY LINDEN: Yes, they're 5 already out there. 6 MR. MARK SANDLER: -- this -- this is 7 kind of a non-issue in relation to those two items. 8 COMMISSIONER SIDNEY LINDEN: Okay. 9 MR. JULIAN FALCONER: So, they should get 10 an asterisk, I think. 11 COMMISSIONER SIDNEY LINDEN: That's fine. 12 MR. JULIAN FALCONER: Can we give them an 13 asterisk? 14 MR. MARK SANDLER: Well, I'm not -- 15 when -- 16 MR. JULIAN FALCONER: I'm greedy, I'm 17 greedy. 18 MR. MARK SANDLER: Well, what I'll do is 19 I'll -- I can compare what's out there to what we have 20 here to make sure that there exactly the same. 21 COMMISSIONER SIDNEY LINDEN: It's a bit 22 surreal if you're withholding something that we already 23 have, but you understand that, that's fine. 24 MR. MARK SANDLER: No, I -- I'm with you 25 on that and that's why we did the asterisk exercise.
741 COMMISSIONER SIDNEY LINDEN: That's fine. 2 All right. 3 MR. JULIAN FALCONER: Exhibit 458, Mr. 4 Millar's helpfully indicated, is the -- the 5 reproductions, so Mr. Sandler's agreed to compare them 6 and I take it let me know in writing whether they're the 7 same and if they're not, et cetera. I -- I simply -- 8 these -- I am being -- 9 COMMISSIONER SIDNEY LINDEN: Communicate 10 with Commission Counsel and we'll communicate -- 11 MR. JULIAN FALCONER: Yeah, that's fine. 12 COMMISSIONER SIDNEY LINDEN: Any way you 13 want to do it. 14 MR. JULIAN FALCONER: I'm simply -- and I 15 apologize for how picky I'm being, Mr. Commissioner. 16 COMMISSIONER SIDNEY LINDEN: No, I -- 17 MR. JULIAN FALCONER: I've got to operate 18 blind. 19 COMMISSIONER SIDNEY LINDEN: You don't 20 need to apologize, you're doing your job. Carry on. 21 MR. JULIAN FALCONER: Number 5, the 22 Ministry of Natural Resources memorandum regarding the 23 procedures dealing with First Nations people dated August 24 28th, 1995 has an asterisk. I wanted to address it for a 25 moment.
751 The implications, obviously -- the 2 implications and the reason this thing -- this document 3 is present in the file, is that the implications for how 4 First Nations people were -- the implications for how 5 First Nations people are dealt with of the mugs and T- 6 shirts incident is broad-reaching. And the presence of 7 this memorandum speaks to the notion -- I haven't read it 8 because it hasn't been provided to me -- speaks to the 9 notion that we actually have a protocol for how to treat 10 people decently and without discrimination and with 11 respect for their dignity. 12 And my only point in indicating 5 is, it's 13 -- it's a good sign that it's in the file because it's a 14 recognition of the gravity of what happened. 15 On the other hand, it's a bad sign, it's a 16 bad sign that this was resolved by way of informal 17 discipline; that's a bad sign. I'm not saying officers 18 should have lost their jobs automatically, I don't know 19 enough about the incident, to be honest. I know the 20 byproduct of incident, I've seen the offensive material, 21 but I don't know how the incident happened. 22 But to -- to on the one (1) hand recognize 23 the ramifications of the incident and on the other hand 24 to use the least serious tool you have for doing it, you 25 missed a shift, you missed a lunch, you didn't fill out
761 your notes properly, oh, and by the way, you offended an 2 entire community at a very difficult time. 3 The -- the dissidents between those two 4 (2) realities is such that, with great respect, it 5 deserves some scrutiny. Does it deserve months of 6 scrutiny? No. Should ALST be permitted to ask questions 7 in this area? Absolutely. It helps you, Mr. 8 Commissioner as -- as it does for your Counsel. 9 Now, we get to a whole list; 6 through -- 10 6 through 39. 11 6 through 39 keeps secret the name of 12 every officer involved in the incident. Thirty-three 13 (33) documents keeping secret the name of every officer 14 involved in what the Commissioner, in his apology to Sam 15 George, impliedly recognized was a horribly offensive 16 incident to the George family and the community. 17 What is the policy rationale for keeping 18 the thirty-three (33) names secret from the investigation 19 of the Commission? 20 See, we're not saying that you take 6 21 through 39 and you file it, you dump it with a 22 wheelbarrow as exhibits. We're not saying that. 23 We're saying you produce it and if the 24 thirty-three (33) or fifteen (15) of the names are 25 relevant to your work, they are disclosed just as the
771 names of the aboriginal witnesses who went through hours 2 of examination by Ms. Jones for the OPPA or -- those 3 people were identified. 4 You can't -- you can't create this kind of 5 cloak of anonymity and -- and foster confidence in a 6 process. It's -- they're just -- they don't work 7 together. And my difficulty is, Mr. Commissioner, when I 8 see thirty-three (33) forms of anonymity, what I see is 9 the potential of Wade Lacroix. 10 What if Wade Lacroix is one of these 11 names? How do I find that out? 12 My Friends says, Well, you just ask him. 13 Well that can't be right, because he said it's a secret, 14 he said the information can't be talked about because if 15 you can't file it, you can't produce it; if you can't 16 produce it, it's a secret. 17 You see, that is where his submissions go. 18 He doesn't want to say that's where they go, because he 19 did this thing, Well, you can ask them questions. 20 But information privilege is it's a 21 secret, that's how it works. It's not only the names are 22 kept out, it's -- solicitor/client privilege is the best 23 example. 24 No, I don't tell you what my client did, 25 but don't give you my client's name.
781 Mr. Falconer, could you tell us what your 2 client told you about the robbery, but don't name any of 3 the witnesses of the robbery and don't name any of the 4 names of the people. I just want to know what the facts 5 were the client told you. 6 No, I can't. It's an information 7 privilege and it's all secret. 8 Or, alternatively, Mr. Falconer, I want 9 you to tell me everything you know, but we won't file 10 these statements, use of immunity. 11 What Mr. Sandler is contemplating does not 12 exist at law and Mr. Roy will take you through that. 13 That's the problem when you merge it, it's a mess. 14 And so thirty-three (33) names have got to 15 be given up to the Commission to do its work. The 16 Commission, and the parties through production processes, 17 will make a determination if there's appropriate 18 questions to be asked and if there's appropriate 19 witnesses to be summonsed, according to you, Mr. 20 Commissioner. That's what we do, that's our work. 21 You don't take thirty-three (33) police 22 officers off the table. That's just -- that -- 23 especially with the ever-present risk, at least some of 24 these thirty-three (33) officers were involved in the 25 enforcement initiative on September 6th, 1995.
791 I find it inconceivable that all thirty- 2 three (33) were. I accept it. All thirty-three (33) were 3 probably not. I find it equally inconceivable that all 4 thirty-three (33) were not involved on September 6th, 5 1995, that is inconceivable. It's somewhere in between 6 and we need to know who and what their roles were and if 7 it turns out it's Whitehead and Dyke, for example, what 8 does that tell us? 9 And on and on, and does this mean days or 10 months? No, but it means I have to ask some questions. 11 That deals with group 2 and mugs and T- 12 shirts and I simply close that area by pointing out, 13 again, Chief Mercredi's comments about what the community 14 expects and -- and it is quite -- I found it quite 15 poignant that he would have picked up on that without 16 anyone raising this Motion. 17 What's the first thing we need to know? 18 We need to know how you dealt with it, because that's how 19 we heal with you. 20 If you -- you truly, truly dealt with it, 21 then we need to know how you did it. Transparency, 22 transparency, transparency. 23 And, Mr. Commissioner, when you hear Mr. 24 Roy's legal arguments that will be compelling and shortly 25 starting, I would ask you to consider this.
801 The presumption in the work of the police 2 should be transparency and accountability. That's the 3 presumption and the only way to oust it is with something 4 extreme that says there shall be no transparency at all. 5 Transparency, transparency, transparency; 6 that's how we foster respect. I would have filed the 7 LeSage report with you today, you're more than familiar 8 with former Chief Justice's work on the new complaints 9 system being proposed for this province. 10 Transparency, transparency, transparency. 11 If the Police Services Act has something express that 12 says, forget it. Judges beware, you can't make orders, 13 if there is such a thing we have to live with it. But 14 absent that, the rule is transparency. 15 Group 3... 16 17 (BRIEF PAUSE) 18 19 COMMISSIONER SIDNEY LINDEN: Most of the 20 items in Group 3 do have an asterisk. 21 MR. JULIAN FALCONER: That's right. I 22 want to emphasize that what you'll notice about group 3 23 is it represents the -- the different ways both the OPP 24 and the rest of the community reacted on this issue. 25 That is, in other words, you -- we don't have the
811 contents of the documents, I don't know if the Commission 2 has them. No. 3 So it's -- it's a little bit confusing at 4 this stage why we don't have these documents so that I 5 could make argument with them. Frankly, I -- I'm not a 6 good lawyer. If I had been a good lawyer, I would have 7 looked at this list, saw the asterisks, and said, I'm not 8 making argument until I have this paper because this at 9 least gives me something to talk to the Commissioner 10 about. 11 I -- I made a mistake. But what I'm 12 surprised is, is that they haven't been provided to your 13 Counsel. If they're not claiming privilege -- 14 COMMISSIONER SIDNEY LINDEN: I'm not sure 15 which have and which haven't. We did ask for them, I 16 believe. I'm not sure which ones we have and don't have. 17 But carry on. 18 MR. JULIAN FALCONER: They should be 19 distributed then if -- 20 MR. DERRY MILLAR: Well, they -- if I 21 might, they may -- they may be, I presume, if they have 22 the asterisk, that they may very well be in the database. 23 I have not had the opp -- the time -- 24 COMMISSIONER SIDNEY LINDEN: To do an 25 analysis or comparison.
821 MR. DERRY MILLAR: -- to go through to 2 see if they are. 3 COMMISSIONER SIDNEY LINDEN: Yes. 4 MR. DERRY MILLAR: But they may very well 5 be in the database. 6 COMMISSIONER SIDNEY LINDEN: But, in any 7 event, Mr. Sandler has indicated by the asterisk that he 8 doesn't object to their production and may have already 9 produced them. 10 MR. MARK SANDLER: Yeah. I should that - 11 - that what transpired here is that as a result of Mr. 12 Falconer's request we had a search done, and this was a 13 search that -- that took us into archives and took us 14 into places that we wouldn't have been going in the 15 ordinary course but to respond to -- to My Friend's 16 material. 17 And a number of the things that were 18 uncovered, I think, we'll -- we'll find are already in 19 the database. And to the extent to which there's an 20 asterisk and they're not already in the database, of 21 course they'll be produced. 22 COMMISSIONER SIDNEY LINDEN: That's fine. 23 MR. MARK SANDLER: We haven't had time, 24 nor has Commission Counsel, to do that analysis. 25 COMMISSIONER SIDNEY LINDEN: We're
831 talking about thousands and thousands and thousands of 2 documents that were produced. 3 MR. MARK SANDLER: Exactly. 4 COMMISSIONER SIDNEY LINDEN: And that's 5 fine. So these may have already been produced, we don't 6 know. 7 MR. JULIAN FALCONER: And my only comment 8 is if you look at that having been put on the record, if 9 you look at, for example, 13 and 14, "Solicitor General's 10 Issue Notes," under Group 3, what you're seeing is you're 11 seeing the system is responding to a large concern. 12 So, if there's any notion this was a minor 13 matter of -- of little consequence, Group 3 tells you 14 that it was a large matter of large consequence. 15 What is interesting is how a large matter 16 of large consequence could become one of the least 17 serious forms of misconduct and attract informal 18 discipline. What does that say about the agency's 19 ability to fix itself on a core issue that you, Mr. 20 Commissioner, will be asked to make recommendations on, 21 racism against aboriginal people in the context of the 22 Ipperwash occupation? 23 How clearly connected is race to the death 24 of Dudley George? Now on one read we would hear the 25 submissions of the Attorney General, but there is no
841 evidence that racism caused the death of Dudley George. 2 Now I have been in the business of 3 litigating issues of race for fifteen (15) years and I'm 4 here to tell you that that smoking gun don't exist. It - 5 - it is -- we are past that in the sophistication of the 6 analysis courts use to analyse issues of race. The D. 7 Brown case on racial profiling is a perfect example. 8 Justice Morden recognized, you go behind 9 the obvious facts and you ask different questions that 10 could cause inferences that race may or may not be 11 involved in police discretion. In other words, we don't 12 -- we don't look for a confession by the person who might 13 be animated by racism. We don't work that way anymore. 14 It doesn't work that way. 15 As one of the Counsel -- and Mr. 16 Rosenthal, I'm proud to say, was the other Counsel on the 17 Black Action Defence Committee in Urban Alliance against 18 Huxter. And I've been resentful, his client went first 19 in the style of cause and my client, Urban Alliance, was 20 second, so it was always called the bad seed case, that's 21 very frustrating. 22 But the bottom line in that case that we 23 were involved in, the bottom line was there was 24 absolutely no evidentiary component at all, direct, as in 25 a smoking gun, and in those days that's what people
851 looked for. 2 There wasn't even a Whitehead and Dyke 3 racist tape. There was not, as in this case, a mugs and 4 T-shirts incident. There was nothing like a smoking gun 5 and so Mr. Rosenthal made the compelling argument as did 6 I that these needed to be looked at in any event. 7 The argument we were met with that Mr. 8 O'Marra, as Counsel to the Chief Coroner, the most 9 experienced counsel to coroner in the province will tell 10 you, the adage that lawyers like Rosenthal and Falconer 11 are met with every day is, a coroner's inquest is not a 12 Royal Commission of Inquiry. A coroner's inquest is not 13 a Royal Commission of Inquiry; it is the tune that is 14 sung every day, every day. 15 The irony in now hearing from the Attorney 16 General that a Royal Commission is an inquest and you 17 should follow the law, is extraordinary. 18 Inquests are narrow proceedings that 19 generally do not have the breadths of Royal Commissions. 20 Mr. O'Marra will assist you on that if you need the help; 21 I don't think you do. 22 The -- the bottom line is, to rely upon an 23 inquest case for the proposition My Friend is making is 24 simply not good law. You do have the mandate, that's 25 your job. It's -- it is a Royal Commission; it is not
861 simply a coroner's inquest and there is actual evidence 2 of race issues. 3 And Counsel, for the Attorney General, 4 actually concedes to you this morning that it is a 5 legitimate area to explore, completely opposite to the 6 positions taken by parties for the state in the Donaldson 7 case. There's just no overlap. 8 What do you have? How connected is race? 9 Number 1, you've heard only two (2) witnesses, one (1) 10 uninvolved -- Superintendent Fox, uninvolved. So, you've 11 heard from one (1) witness, Carson; disgusted by the 12 racist incidents, had no knowledge of them at the time, 13 period. 14 Does that mean the investigation stops? 15 No, actually you now know that he can't help you that 16 much because he didn't know about it at the time. You 17 have to ask other people. In being an investigation we 18 don't pre-judge it. And in my respectful submission, at 19 this early stage after one (1) witness, it would be an 20 extraordinary step to shut it down. 21 Now how widespread was the problem? All 22 of us hope it's not; all of us hope that Whitehead and 23 Dyke is an isolated incident, but there is a passage that 24 I want to take you to in the case law that I added, the 25 Westray case, on this issue of how widespread the issue
871 of racism is or is not. 2 Do you have the Westray case there, the 3 one thatĂs in Nova Scotia? 4 COMMISSIONER SIDNEY LINDEN: Yes, I do 5 have it somewhere. I do have it somewhere. A matter 6 putting my hands on it. Yes, right here. 7 MR. JULIAN FALCONER: Now this is to deal 8 with the concern that it might have been widespread among 9 the officers. It might have been, we don't know yet and 10 I acknowledge that. I'm not -- I'm not here to simply be 11 inflammatory about it, these are live questions. 12 Paragraph 116, if you could turn to paragraph 116? 13 COMMISSIONER SIDNEY LINDEN: Yes, pages 14 60 to 65. 15 MR. JULIAN FALCONER: That's -- if you 16 just work by paragraph numbers -- 17 COMMISSIONER SIDNEY LINDEN: All right. 18 MR. JULIAN FALCONER: -- 116, because I'm 19 on a QuickLaw version. 20 COMMISSIONER SIDNEY LINDEN: 21 Paragraphs...? 22 MR. JULIAN FALCONER: 116. 23 COMMISSIONER SIDNEY LINDEN: 116. 24 MR. JULIAN FALCONER: Yes, please. It 25 starts with, "Openness."
881 COMMISSIONER SIDNEY LINDEN: Yes? 2 MR. JULIAN FALCONER: "Openness has long 3 been a feature of our system of 4 criminal justice. Various 5 justifications for the public nature of 6 most criminal proceedings have been put 7 forward. Most relate in some way to 8 the simple truth that an individual is 9 much less likely to be subject to 10 unfair or oppressive treatment at the 11 hands of the State if tried in open 12 proceedings. 13 As well, the public is much more likely 14 to have confidence in an open system. 15 The benefits of openness are not 16 restricted to the criminal justice 17 system, but apply as well to civil 18 proceedings. 19 The conduct of a public inquiry is no 20 different, although it may differ from 21 a criminal trial in that the inquiry 22 process, itself, may be more important 23 than the result." 24 I pause there. The process may be more 25 important than the result. One (1) of the things that --
891 and I'm sorry to digress, but if you've done enough 2 coroner's inquests or inquiries like Mr. Rosenthal and I 3 have or Mr. O'Marra has, one (1) of -- or Mr. Sandler -- 4 one (1) of the things you learn is that you go through 5 this whole thing and then you've killed yourself. 6 And then there's recommendations or 7 something and they don't necessarily get acted on right 8 away. And you forget that the action of doing this, the 9 catharsis of exploring these issues, has an invaluable 10 asset to the public. 11 Each day we're doing this is an invaluable 12 asset. And that speaks to this issue of exploring how 13 widespread this problem was. I hope it's invaluable, 14 it's arguable sometimes. 15 "Open hearings function as a means of 16 restoring the public confidence in the 17 affected industry and the regulations 18 pertaining to it and their 19 enforcement." 20 What are your rules for dealing with 21 openly racist acts of police officers, and what are your 22 regulations, and how do you enforce them? 23 "As well, it can serve as a type of 24 healing therapy for a community shocked 25 and angered by a tragedy. It can
901 channel the natural desire to assign 2 blame in exact retribution in a 3 constructive exercise, providing 4 recommendations for reform and 5 improvement. 6 In the wake of the Sick Children 7 Hospital Inquiry conducted by Justice 8 Grange, it was written: 'Imagine that 9 the public had no access to the 10 proceedings of the lengthy and costly 11 Grange Inquiry into the deaths of 12 babies at Toronto's Sick Children's 13 Hospital, and was informed at the end 14 of its vague conclusion that some 15 babies had been killed by an unknown or 16 unnamed individual. Such a conclusion 17 of the State's failure to solve a 18 string of murders deeply troubling to 19 the population after extensive 20 investigation, prosecution and inquiry 21 procedures would have been entirely 22 unacceptable. 23 The Grange Inquiry was open, however, 24 and one of the virtues of the exercise 25 in openness was that the public became
911 privy to the problems the State faced 2 in trying to solve the mysterious 3 deaths and could assess the ethicacy of 4 the State's actions. 5 Where different phases of the 6 proceedings are closed or where 7 information about them is censored, the 8 public's ability to judge the 9 functioning of the system, rate the 10 Government's performance, then call for 11 change is effectively removed." 12 And I put in, when access to information 13 about how the OPP deals with their problems is gone, then 14 calls for change are effectively removed. 15 Going on, after citing the Cameron 16 article: 17 "Brandice J. (phonetic), writing 18 extrajudicially of the need for 19 openness, put it very succinctly and 20 well when he said that: [quote] 21 Sunlight is the most powerful of 22 disinfectants." 23 ˘Sunlight is the most powerful of 24 disinfectants.÷ Mr. Commissioner, my submission is 25 sunlight is completely inconsonant with darkness. This
921 list of documents is darkness. Clifford George's 2 concerns need to be met with sunlight. Sam George's 3 concerns need to be met with sunlight. 4 In my respectful submission, the right 5 thing to do is produce the documents. And on a case-by- 6 case basis, as Counsel, your Counsel or others, seek to 7 file, deal with it, deal with the applicability of 8 Section 69. In my submission, at the end of day what you 9 are left with -- what you are left with is a saw-off 10 where you are assured that justice appears to be done. 11 I thank you for your patience. 12 COMMISSIONER SIDNEY LINDEN: Thank you 13 very much, Mr. Falconer. 14 15 (BRIEF PAUSE) 16 17 COMMISSIONER SIDNEY LINDEN: Yes, sir...? 18 MR. JULIAN ROY: Good morning, Mr. 19 Commissioner. 20 COMMISSIONER SIDNEY LINDEN: Good 21 morning. 22 23 SUBMISSIONS BY MR. JULIAN ROY: 24 MR. JULIAN ROY: I'm going to try and 25 speak in -- in calm, soothing tones in my submissions,
931 just to give a little bit of contrast, number 1. And 2 number 2, because these -- these provisions are actually 3 quite straightforward and simple to understand. 4 So, my respectful submission, I'm going to 5 try and tone it down a little bit in dealing with my 6 part, which is primarily the statutory sections which are 7 asserted as the basis for privilege over the documents in 8 this case. 9 COMMISSIONER SIDNEY LINDEN: Thank you 10 very much. I'm glad that you're speaking softly, but you 11 have to speak loud enough -- 12 MR. JULIAN ROY: All right. 13 COMMISSIONER SIDNEY LINDEN: -- that we 14 can hear you. You've got to get the right balance. 15 MR. JULIAN ROY: My -- my submissions are 16 -- are divided into two (2) sections. The first section 17 is the statutory provisions that Mr. Sandler has spoken 18 about, and others; that's number 1. Because that's one 19 distinct basis for the privilege as asserted. 20 The second is the Common Law, the fallback 21 position in the Common Law reflected in Wigmore and 22 adopted by Slavutych and Baker, and Gruenke et cetera, so 23 the four (4) part test in Wigmore, that's the fallback 24 position asserted by the Applicants in this case. I'll 25 refer to all three (3) parties as the Applicants
941 collectively. 2 But before I do that, I want to elaborate 3 on -- on what Mr. Falconer introduced in his submissions 4 about this gloss over two (2) very important distinctions 5 that are at play in this application. 6 The first, in my respectful submission, 7 the first very important distinction is this distinction 8 between admissibility and production. 9 This distinction permeates all of the case 10 law, permeates the statutes that we've all been 11 discussing and it permeates the facta and the submissions 12 that everybody's put forward before you. 13 And in my respectful submission, to 14 determine this application, you have to keep in mind this 15 very, very important distinction and when you go back and 16 revisit what everybody's said in the case law, it's my 17 respectful submission that -- that you keep that very, 18 very much in your mind. 19 Because My Friends, the Applicants, in 20 their submissions, repeatedly, I can give a couple of 21 examples, but repeatedly, they lapsed back to 22 admissibility and what that does, when -- when Ms. 23 Twohig, for example, says that if you admit this 24 evidence, it's going to blow up this Inquiry, it's going 25 to expand this inquiry unduly.
951 What she's imposing is an admissibility 2 test and that's not suitable at this stage; it imposes 3 too high a standard in my respectful submission. 4 And this distinction, it's not a -- it's 5 not a semantic distinction or something that I've just 6 thought of. This is something that our -- the Supreme 7 Court of Canada recognised in O'Connor and, in 8 particular, in Justice Lamer and Justice Sopinka's 9 judgment which they were in dissent on the issue of the 10 stay but they were in the majority on the issue of the 11 actual O'Connor process. 12 It's not L'Heureux-Dube's judgment that's 13 actually the majority on that. 14 And they draw, in paragraph 32, of that 15 judgment and I'm not going to ask you to turn it up, in 16 the interests of time, because I cited it in my factum. 17 Paragraph 32 of that judgment recognizes 18 that very important distinction that in an O'Connor 19 application, we're only talking about production and 20 we're not talking about admissibility. 21 And what flows from that is that there are 22 some different considerations that are at play. For 23 example, L'Heureux-Dube was of the view that this -- this 24 interest in encouraging reporting of sexual offences had 25 to be considered at the production phase.
961 Justice Lamer, Chief Justice Lamer and 2 Justice Sopinka were of the view that it's not 3 appropriate to consider that at the production phase, 4 that that goes in at the admissibility phase. 5 And many of the policy arguments that My 6 Friends have submitted to you are analogous to these 7 broader policy concerns about encouraging officers to 8 co-operate with this administrative process. 9 That, in my respectful submission, is 10 going to fall in at the admissibility stage. 11 What -- right after paragraph 32 in -- in 12 that judgment, in the O'Connor judgment, Chief Justice 13 Lamer and Justice Sopinka also allude to the various 14 provisions, the tools that you have at your disposal to 15 preserve some element of privacy or privilege in 16 documents. 17 For example, there's an undertaking that 18 all Counsel are bound by in terms of all the productions 19 that have been provided through your Counsel and that's 20 going to be in play at this stage. 21 And there are other things, there are 22 many, many other measures that could be taken to address 23 those types of issues at this stage. 24 Now that very important distinction that 25 permeates this whole process is related to the -- what I
971 say is the second very important distinction that is 2 glossed over. The two are really, actually quite related 3 and they -- those distinctions are in play as we look at 4 every one of these sections that we're going to be 5 talking about and all the case law. 6 The second distinction comes from really 7 an unfortunate quirk in the law that the word, 8 "privilege," is used to describe two (2) very, very 9 different concepts in our law. 10 On the one hand, privilege is used to 11 describe use immunity in relation to a statement made in 12 the course of a proceeding. 13 There is a privilege in some cases, 14 provided for by statute, by the charter, Section 13 also 15 by the Canada and Ontario Evidence Act that prohibits the 16 use of testimony which is garnered under compulsion by 17 way of statute or subpoena, et cetera, from that being 18 used by in a second proceeding, because that is viewed as 19 somehow unfair, given the interests at stake, liberty et 20 cetera. 21 In the criminal law, we call this the 22 privilege against self-incrimination. The word, 23 "privilege," is used to describe this. 24 Now what this privilege does not relate 25 to, it does not relate to privacy, it does not relate to
981 secrecy. It does not relate to confidentiality, because 2 in most cases, the statement, the first statement that is 3 prohibited from being used by this privilege in the 4 second proceeding happens in the open, it happens in a -- 5 in a trial, in -- before the public. 6 So, even though it's described as a 7 privilege, it's got nothing at all to do with secrecy, 8 confidentiality, and -- and privacy. It's use immunity 9 and I think, Mr. Commissioner, you can -- you can foresee 10 where I'm going to be going with that when we talk about 11 Section 69 and Section 80. 12 And, Mr. Sandler actually, in his 13 submissions, he lapsed into this use immunity sort of 14 analysis when he told you about how unfair it was going 15 to be for officers who are compelled to cooperate in a 16 discipline proceeding; that being somehow used at some 17 other proceeding. He's lapsing back into the -- into 18 that use immunity-type of privilege. 19 And, I'm not saying he's doing it on 20 purpose, it's this use of the word, 'privilege' that is 21 being used almost interchangeably by accident on two (2) 22 very, very different concepts because the second way that 23 privilege is used is all about secrecy, confidentiality, 24 and privacy. It's all about that. 25 Privilege, when it's used in that term,
991 recognizes -- judicially recognizes -- a confidentiality 2 in a communication on public policy grounds. In other 3 words, it's a pure utilitarian analysis that says we want 4 to have all the evidence before and adjudicative body, 5 but the cost of that may be to a relationship that 6 society feels is important to foster. 7 So, in other words, is a derogation from 8 this very important notion that everything ought to be in 9 front of an adjudicator, but on social policy grounds 10 there's an exception carved out so that that information, 11 communication in the course of that relationship, can be 12 kept private, confidential, secret. 13 The most obvious example, and Mr. Falconer 14 already alluded to it, is solicitor/client privilege. 15 The other big class privilege is -- is police/informant 16 privilege, which comes up in one (1) of the cases that My 17 Friends rely very heavily on and in my respectful 18 submission is inapplicable because it is one (1) of these 19 class privileges that applies regardless whether there is 20 a proceeding, even, whether it's a civil proceeding or 21 otherwise. It just exists because it's a class 22 privilege. 23 24 (BRIEF PAUSE) 25
1001 MR. JULIAN ROY: So, I -- I'm 2 respectfully submitting that you ought to keep in mind 3 that distinction when you revisit everyone's submissions 4 and the -- and the law. 5 With that introduction, I'm -- I'm going 6 to make submissions specifically relating to the sections 7 and I will be alluding to the distinctions that I've just 8 drawn -- 9 COMMISSIONER SIDNEY LINDEN: Thank you. 10 MR. JULIAN ROY: -- if it's helpful. 11 Section 69 Sub 9 and this is a great 12 illustration of what I've just made submissions on. 13 And, when I said I was going to be boring, 14 I meant it because I'm just going to read the section, 69 15 Sub 9. 16 "No document prepared as the result of 17 a complaint is admissible in a civil 18 proceeding except at a hearing held 19 under this part." 20 Now, Mr. Sandler puts a rather exotic 21 gloss on his submission and enlarges it and says it 22 informs other sections and reflects broader principles, 23 but if we actually just read the words of the section it 24 speaks only to admissibility. 25 It does not say -- 69 could have, but does
1011 not say -- no document prepared as a result of public 2 complaint is producible or disclosable, or discoverable 3 in a civil proceeding. It could have said that; it 4 doesn't. 5 The Glover case that -- that the OPPA 6 makes submissions on and relies on; the -- there's a what 7 they say is a comparable provision in the Income Tax Act. 8 I might be asking you to, depending on time, to turn it 9 up later, but that actually does provide a provision that 10 documents are not producible. 11 So, it -- it plays into both the 12 distinctions that I've drawn. First, it's admissibility, 13 not production. Second of all, it's -- it -- all it's 14 saying, all it's doing is providing this use immunity in 15 connection with the statements that are garnered in the 16 course of the -- of the discipline process. 17 And, that's clear by the fact that 69 Sub 18 9 applies to material that would come out in a public 19 hearing under Part 5, so how can we say that it -- it 20 supports any notion of confidentiality, privacy, or 21 secrecy if it covers documents that are going to come out 22 in a public proceeding? 23 That's the clearest indication, in my 24 respectful submission that it's talk -- when it's 25 referring to -- when it relates to privilege, we're
1021 talking about use immunity privilege. 2 The Forget and Sutherland case, the 3 analogous provision from the Regulated Health Professions 4 Act, I'm going to ask you, Mr. Commissioner, to turn that 5 case up, please. It's in the OPPA's materials. 6 I don't have your tab system. It's -- 7 COMMISSIONER SIDNEY LINDEN: I'll find 8 it, okay? 9 MR. DERRY MILLAR: Tab 3, Commissioner. 10 COMMISSIONER SIDNEY LINDEN: Sorry, 11 what's that? 12 MR. DERRY MILLAR: Tab 3. 13 COMMISSIONER SIDNEY LINDEN: Three (3). 14 Yes. 15 MR. JULIAN ROY: And I'm on -- if I could 16 use paragraph -- paragraph numbering. Paragraph 45 and 17 46 are the sections or the paragraphs that I'm going to 18 ask you to turn up, Mr. Commissioner. 19 COMMISSIONER SIDNEY LINDEN: I have them. 20 MR. JULIAN ROY: I'm not going to take 21 you through the provisions of the Regulated Health 22 Professions Act, they're somewhat analogous to what we 23 have here. 24 But what I am going to ask you to look at, 25 or have regard to, is -- is paragraph 46 first of all.
1031 And this is at the end of the majority's reasons where 2 they are putting the qualifications on what they've said 3 about the inadmissibility of -- of the statement, the 4 recantation made under the discipline proceeding. And 5 it's always very important to read the fine print in 6 these cases and these qualifications are, in essence, the 7 fine print. 8 Paragraph -- which is always either very 9 bad news, or it's sometimes good news and in this case, 10 for our position, in my respectful submission, it's very 11 good news and the death knell for Mr. Sandler's 12 submission, in my respectful submission. 13 Paragraph 46, 14 "Third -- My Decision is not meant to 15 preclude the trial Judge from 16 considering whether either Ms. Forget's 17 complaint on -- complaint on her sworn 18 recantation may be used or her sworn 19 recantation may be used to challenge 20 her credibility on cross-examination." 21 So, in other words, whatever they're 22 saying -- whatever Mr. Justice Laskin is saying in Forget 23 and Sutherland, he's not saying anything that would 24 prevent Dr. Sutherland's lawyer from going to the civil 25 proceeding trial, pulling out the statement that she made
1041 in the discipline proceeding, showing it to her in Court 2 and cross-examining her on it, on its contents. 3 So, in my respectful submission, they are 4 saying you can't admit that statement. It can't be 5 admitted as a statement against interest or a confession, 6 in criminal parlance, but they're not precluding cross- 7 examination. And in order to cross-examine on it in a 8 civil trial, it's going to be public. 9 So, what that tells you is this provision 10 against admissibility of a statement garnered in a 11 discipline process does not speak to confidentiality, 12 privacy, secrecy. It speaks to use immunity, purely. 13 Now, they do go on to talk about the 14 Calder case and in another context, cross-examination 15 could be seen as an admission of the evidence in another 16 proceeding and there's a -- it's -- this issue has a 17 tortured history. It goes through Kuldip (phonetic), 18 Calder (phonetic), Noel (phonetic) . 19 We're not there yet, but there are issues. 20 COMMISSIONER SIDNEY LINDEN: It's hard to 21 reconcile the first two (2) -- 22 MR. JULIAN ROY: Impossible, impossible 23 to reconcile them; Calder and Kuldip in particular. Noel 24 suggests that if there's some sort of -- if the cross- 25 examination amounts to something like incrimination, it
1051 ought not -- it's -- it's tantamount to admission, so I 2 think that helps a little bit. 3 But that's an issue that we're going to 4 have to deal with. I'm being presumptuous, but should 5 your -- should, Mr. Commissioner, you determine that 6 these records be produced to us, this is an issue that's 7 going to have to be determined down the road and that's 8 that second distinction that I made submissions about. 9 It all fits together. 10 Paragraph 45 is also interesting because 11 it -- it -- it relates to the issue of whether the 12 document itself is privileged or whether or not, as 13 opposed to the information in the document, because 14 paragraph 45 says, and this is another part of the fine 15 print of the majority's judgment, second section 36(3) 16 and I think that's the 69(9) analogist refers to: 17 "A report document or thing suggesting 18 a distinction between, for example, a 19 written complaint and the fact of a 20 complaint having been made. 21 The document, the written complaint is 22 inadmissible, but the fact a complaint 23 was made may be provable at trial. 24 That distinction, however, does not 25 arise in Dr. Sutherland's pleading
1061 because he has pleaded the written 2 complaint and the sworn recantation and 3 their contents to support his defence 4 and it is these documents he seeks to 5 prove at trial. Moreover, Dr. 6 Sutherland did not draw this 7 distinction in his submissions to this 8 Court." 9 It's another one of those examples where 10 the Court had in mind a great argument that you could 11 have used but -- but you were in the dark about it; it 12 happens to everybody. 13 But, there it is, this distinction between 14 the contents of the document versus the document itself. 15 And it suggests this is really about use immunity and not 16 about privacy, confidentiality and secrecy. 17 There's further support for this in the 18 Lloyd case, which is in our materials. 19 20 (BRIEF PAUSE) 21 22 MR. DERRY MILLAR: Tab 3. 23 MR. JULIAN ROY: And you recall that -- 24 that My Friends, the -- Counsel for the Applicants used a 25 lot of our cases to suggest that they supported their
1071 position. This was not one of the cases that they drew 2 your attention to and said supported their position. 3 And it's paragraph -- I'm not going to 4 read it to you, Mr. Commissioner, but it's paragraph 40, 5 where Justice Macdonald, he definitely does not agree 6 with Mr. Sandler's rather expansive view of how 69(9) 7 puts firewalls around this whole process. 8 He has a rather limited interpretation of 9 69(9). And he draws that distinction between the 10 document and the information in the document, again 11 consistent with use immunity versus what Mr. Sandler is 12 urging on you, which is a privilege animated by privacy, 13 confidentiality and secrecy. 14 But I couldn't put it any better than Mr. 15 Sandler did in his submission to you based on your 16 question after the break yesterday, when you asked him -- 17 Mr. Falconer has already alluded to this -- when you 18 asked him whether or not we can ask Commissioner Boniface 19 about this. And he hedged a little bit. He said you 20 can't know the names but you can ask about the 21 discipline; there will be full canvassing of the 22 discipline. 23 In my respectful submission, if we were 24 talking about privacy, secrecy, confidentiality in that 25 form of privilege, he wouldn't have made that submission.
1081 It's use immunity. That's the best proof you're ever 2 going to get. 3 Now, the Chiefs of Ontario make the same - 4 - sort of the same point in their factum. They 5 characterize it another way. They take a -- they argue 6 for a purpose of impor -- interpretation of privilege and 7 what -- what the privilege that you're talking about, 8 what it's based on in effect. And it's -- it's another 9 way of saying what I've just said. And I rely on their 10 submissions to the extent that their characterization is 11 better than mine. 12 Section 80, because, Mr. Commissioner, 13 when I talked about secrecy, I'm sure your mind leapt 14 immediately to Section 80 and what -- what is our side 15 going to have to say about that issue. Again, I'm going 16 to be boring and read the actual section, if I can find 17 it. 18 Because, again, if you talk about 19 something enough the meaning can lost. And sometimes you 20 have to look at it again and read it for the first time 21 and really see what it -- the section is directed at. 22 Section 80: 23 "Every person engaged in the 24 administration of this part shall 25 preserve secrecy with respect to all
1091 information obtained in the course of 2 his or her duties under this part and 3 shall not communicate such information 4 to any other person except: 5 a) As may be required in connection 6 with the administration of this Act and 7 the regulations." 8 And you'll notice it doesn't say "this 9 part." It doesn't say "Part 5." It says "this Act," 10 which is much broader. It can relate to the duties of a 11 police officer -- Common Law -- the duties of a police 12 officer in Section 42 of the Police Services Act. 13 "Subsection B) To his or her counsel. 14 Section C) As may be required for law 15 enforcement purposes, or 16 D) With the consent of the person, if 17 any, to whom the information relates." 18 Now, I say, who does this information 19 relate to? My Friends have -- the implicit assumption in 20 their -- in their submissions is that this information 21 relates to the officers. 22 Why doesn't it relate to the occupiers? 23 That's who the comments are made about. That's who the 24 mugs and T-shirts are about. It could equally be said 25 that it relates to them, in my respectful submission, but
1101 it's not important for my submission to urge that point 2 on you, I -- I just make that as an observation. 3 But what's really important about Section 4 80 is it's always important to look at who the 5 legislation is talking to, and in my respectful 6 submission, this legislation is talking to every person 7 engaged in the administration of this part. 8 It's not talking to you, with respect, 9 it's not talking to an adjudicator of a civil proceeding 10 and -- and you'll recall that 69(9) relating to the use 11 immunity, it is speaking to a court, to a civil 12 proceeding and I'll -- and I'll let Mr. Horner deal with 13 whether or not this Commission of inquiry is a civil 14 proceeding. 15 I'll leave that to him, but that section 16 does speak to the adjudicator of a civil proceeding, this 17 one doesn't. This one speaks to every person engaged in 18 the administration of this part, and that's not you, with 19 respect. 20 It's telling the officials that are 21 engaged in the administration of this part to keep their 22 work secret. It's not saying if you get a subpoena, 23 ignore it or you don't have to -- you don't have to 24 respond to it or nothing can come out of a summons or 25 subpoena. It's not saying that.
1111 And this is the point that's made by the 2 Trans America case that -- that My Friend is going to 3 make submissions about. It says if you're -- that 4 creating a duty of confidence in a statute is not enough 5 to create a privilege. 6 And, that's obvious because it has to be 7 more than just -- the confidentiality isn't enough, the 8 confidentiality has to be worth the downside for an 9 adjudicative process in terms of getting it -- in terms 10 of accurate adjudication and getting to the truth and 11 appearing to get to the truth. 12 And the statute has to be explicit in that 13 regard, it has to be speaking to you, to the Commission 14 of Inquiry to a civil proceeding, to whoever. It has to 15 be speaking to the person who's trying to get the 16 documents. It can't be speaking to somebody else, that's 17 not explicit enough, given the interests that are at play 18 when you recognize a privilege. 19 Now a statute can do this and I'm not -- 20 in the interest of time, I'm not going to ask you to turn 21 up the Glover case, but I -- I would ask you to read that 22 case again with a view to looking at how expansive or -- 23 let me put it this way, who that statute is speaking to 24 because it is speaking to somebody who might be tempted 25 to order production from Revenue Canada.
1121 It speaks directly and says, you can't do 2 it and it even has a safeguard, if you do it, we get an 3 automatic on ramp to the Court of Appeal -- with -- we 4 get notified and we get to appeal you. 5 So, that is a very -- that is what I call 6 a statutory privilege, this isn't, in my respectful 7 submission. 8 9 (BRIEF PAUSE) 10 11 MR. JULIAN ROY: Now the real kicker on 12 Section 80, the -- the best submission as to why Mr. 13 Sandler and the Applicants are wrong, in my respectful 14 submission, is that 80 in contrast to 69(9), doesn't 15 speak to documents, it speaks to information, it's 16 broader. 17 So, that means that Mr. Sandler's wrong 18 when he says that somebody can testify about what 19 happened in the discipline proceeding, information that 20 they obtained in the course of a discipline proceeding. 21 They can't talk about it in this court. 22 If he's right, that this creates a 23 privilege in the sense of confidentiality, privacy, 24 secrecy, if he's right about that, it's not just the 25 documents under Section 80, it's everything; it's the
1131 information. He'd have to be wrong in his answer to your 2 question, in my respectful submission, but he was right 3 and it tells you what -- his answer tells you better than 4 I can what Section 80 means. 5 Now I'm going to allude to another whole 6 body of cases that I know, Mr. Commissioner, you're alive 7 to and that's the -- in the criminal context, the 8 applications for police discipline records pursuant to 9 the O'Connor procedure. 10 I'm just going to deal with them as a 11 group and make the following submission. 12 Is that My Friends, the Applicants or 13 Counsel for the Applicants are correct when they say that 14 the -- the batting average of Counsel on those 15 applications is not great. But the reason why it's not 16 great is not because of privilege, it's because of 17 relevance. 18 What the courts are saying in those cases 19 is just because you have a credibility issue with a 20 police officer in your criminal trial doesn't mean you 21 get his whole discipline record. You -- there's no 22 factual nexus of relevance. That's what those cases are 23 saying. 24 They first decide whether or not it's an 25 O'Connor or a Stinchcombe issue. And they say, There is
1141 -- These are in the hands of third parties because 2 they're distant enough, and they go through that 3 analysis. But when they get to the merits of the 4 O'Connor analysis what they're saying is that it's not 5 relevant. 6 And then they often -- they carve out the 7 actual incident that relates to the criminal trial, where 8 there's a complaint that's made on the same facts as the 9 criminal trial. That is routinely disclosed, not just by 10 way of O'Connor, it's disclosed by way of Stinchcombe. 11 And there's no discussion of privilege there, in my 12 respectful submission. 13 If -- if there was a privilege, it's -- it 14 would be like if -- if the police officers had spoken to 15 their lawyer and there was solicitor/client privilege, 16 you couldn't get that document because it's relevant. 17 Now My Friends tried to distinguish the 18 O'Connor line of cases or they point, to the extent that 19 these are helpful to us, they say that, Well they're 20 criminal cases, There's a different interest at play, 21 It's full answer in Defence and that trumps everything. 22 They say -- I believe it was Counsel for the OPPA said, 23 Innocence is at stake, so therefore you get the 24 documents. 25 Well in my respectful submission, these --
1151 in these cases the documents -- or the test that's 2 applied is full answer in Defence, which is well assured 3 of the innocence at stake. Innocence at stake is where 4 there's essentially exculpatory material. And that's 5 even -- that will even override solicitor/client 6 privilege or -- or informant privilege. So it's a 7 different test, it's not a innocence at stake test. 8 Now I have an alternate submission on 9 Section 80 in the event that you don't agree with me that 10 it's just not applicable in terms of creating a 11 privilege. And that is that -- that Section 80 is not in 12 force for all the records pre-2002. You'd have to go to 13 the predecessor section of 108, and it's in the OPPA's 14 material, and I'm not going to ask you to turn it up. 15 But far from -- from creating a privilege, 16 what that section does is it gives you an on-ramp to 17 another piece of legislation where you can try and get 18 the documents. It's -- it's the exact opposite of 19 creating a privilege, in my respectful submission. And - 20 - and that whole issue is canvassed in my factum with 21 some -- our factum with some particularity and -- and in 22 particular the Edwards Estate case is relied on. 23 Oh, and the other thing, which is not in 24 the factum, is -- is in Trans-America it deals with the 25 issue of retrospectivity on a statutory privilege. If
1161 you look at page 9 of that case, where Justice Sharpe, as 2 he then was -- 3 COMMISSIONER SIDNEY LINDEN: Yes. 4 MR. JULIAN ROY: -- in the middle of the 5 page. 6 MR. DERRY MILLAR: Tab 18 of the binder 7 with -- 8 COMMISSIONER SIDNEY LINDEN: Of which 9 binder? 10 MR. DERRY MILLAR: ALST and Chiefs of 11 Ontario binder. 12 MR. JULIAN ROY: It's at page 9 and it's 13 -- it's the full paragraph right in the middle of that 14 page, commencing with: 15 "In my view, the statutory provisions 16 do not advance the case of the 17 Defendants or OSFI for two (2) reasons. 18 First is the question of whether the 19 statutes apply to pre-enactment 20 communications. The Plaintiff relies 21 on the role of interpretation against 22 retrospective application. It was 23 argued by the Defendants and the Crown 24 that it is not necessary to give the 25 statutes retrospective application for
1171 them to apply. They contend that the 2 statutory guarantee of confidentiality 3 applies to any documents which come 4 into the possession of OSFI after the 5 enactment of the statute." 6 That's much like the submission that Mr. 7 Sandler made about how these documents come into the 8 possession of Commissioner Boniface under Section 80. 9 And -- and that submission is rejected by Justice Sharpe, 10 as he then was. 11 And I won't read the rest of the 12 paragraph, you're -- Mr. Commissioner, you're alive to 13 it. 14 Now I'm going to make very brief 15 submissions about -- this -- this is -- that completes my 16 submissions about why the statutory provisions do not 17 provide any support to the type of privilege that the 18 Applicants are asserting here. We then go to the -- that 19 doesn't end the matter. We have to then go to the Common 20 Law, the Wigmore criteria. 21 And My Friends poked fun at us a little 22 bit about the Delong case and said, Well Delong is a 1989 23 case, and there was no statutory provisions at the time, 24 and there was no promise of confidentiality at the time. 25 Those were the two (2) -- there was no explicit promise
1181 of confidentiality involved in the statements, and that's 2 on the facts of the case. 3 In -- My Friends are right about that. 4 But, in my respectful submission, that does not 5 distinguish the case on these facts, for the following 6 reasons. If you agree with my first whole package of 7 submissions, we net out the statutory provisions. 8 They're gone. 9 They don't create a privilege. So we're 10 back to Delong. The fact that there was no statute in 11 play is of no moment. Because if you agree with us, it's 12 not there now. So the -- the reasoning would apply 13 equally. 14 The policy of the Common Law expressed by 15 the Ontario Court of Appeal is that we take a dim view of 16 officers that say -- sworn peace officers saying, I need 17 some sort of inducement to do the right thing, as Mr. -- 18 as Counsel for the OPPA said. They need confidentiality 19 to do the right thing. 20 Well, the Court of Appeal said, No you 21 don't, in my respectful submission. And that's where the 22 Common Law stands on this issue. They have -- they have 23 to make their case in statute or Delong is the law, in my 24 respectful submission. 25 And if there's any doubt about that,
1191 there's Justice Rand's case, Callaghan, where he 2 explicitly deals with not Section 80 but, in fairness, 3 Section 108, the one with the onramp to Ippa (phonetic). 4 He explicitly deals with those sections because the 5 argument is made, we're not Delong anymore, we have a 6 statute, and he rejects it. He says it makes no 7 difference to the analysis in Delong. I'm not going to 8 ask you to turn that up. 9 So what we get down to is the balancing 10 exercise. My Friends say that -- that Delong is a 11 criminal case, again, there are different interests at 12 play. And that's true. 13 But, in my respectful submission, if you 14 agree with what Mr. Falconer said about the importance of 15 public inquiries, it could be argued in some respects 16 this process is more important than some little criminal 17 trial on an assault police case that happens in 116 Court 18 at Old City Hall. This case is more important in terms 19 of the interests that are frustrated by secrecy, privacy, 20 confidentiality. 21 I'm going to hand the floor over to 22 Counsel for the Chiefs of Police -- 23 COMMISSIONER SIDNEY LINDEN: Thank you 24 very much. 25 MR. JULIAN ROY: -- they have some other
1201 submissions. 2 COMMISSIONER SIDNEY LINDEN: Thank you 3 very much. 4 MR. DERRY MILLAR: Chiefs of Ontario. 5 MR. JULIAN ROY: Just a reflex, you know, 6 we -- we're often in a room with chiefs of police, Mr. 7 Commissioner. 8 COMMISSIONER SIDNEY LINDEN: No. Chiefs 9 of Ontario. Thank you. 10 MR. JULIAN ROY: Thank you very much. 11 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 12 Horner...? 13 MR. JULIAN FALCONER: Mr. Commissioner, 14 just before Mr. Horner starts, there is one area that I - 15 - I wanted to address, it will take me three (3) minutes, 16 on the sections that should be brought to your attention, 17 if it's okay with the Court. 18 COMMISSIONER SIDNEY LINDEN: Sure. 19 MR. DERRY MILLAR: With the 20 Investigation. 21 MR. JULIAN FALCONER: If it's okay with 22 the Investigation, Mr. Millar corrected me. 23 At Section 80, if I can direct your 24 attention to this, Section 80 of the Act. You have it in 25 front of you?
1211 COMMISSIONER SIDNEY LINDEN: Yes, I do. 2 MR. JULIAN FALCONER: If I could ask you 3 to turn up Section 80, sub A. 4 COMMISSIONER SIDNEY LINDEN: Section 80, 5 what subsection? 6 MR. JULIAN FALCONER: Sub -- 80(a), the 7 confidentiality. 8 COMMISSIONER SIDNEY LINDEN: Yes. 9 MR. JULIAN FALCONER: First of all, I'd 10 ask you to note there's an actual reference to 11 confidentiality. Not secrecy, not privilege, just 12 confidentiality as just the subtitle. Secondly: 13 "a) As may -- the exception as may be 14 required in connection with the 15 administration of this act and the 16 regulations." 17 And Mr. Roy has already mentioned or 18 submissioned that, you'll notice it says "the act" and 19 not "this part." So anything to do with the -- with the 20 administration of the act. 21 Now, I would put it this way to you, and - 22 - and I ask you to analyse it this way because it might 23 be helpful to you, and -- and I hope I'm not wrong. Can 24 it be doubted that it is in keeping with Commissioner 25 Boniface's duties as a commissioner and a police officer,
1221 generally, to cooperate with a legally-issued summons 2 from a Royal Commission of Inquiry? 3 I mean, can it -- can it be doubted that 4 that's in keeping with her obligations to cooperate with 5 a legally-issued summons? Surely the answer is, that's 6 reasonable. So, she provides the document because 7 there's a summons. 8 Does the fact that Commissioner Boniface 9 provided the documents in answer to the summons expose 10 her to a Police Act charge? Could she be disciplined or 11 charged with breaching the Police Services Act by giving 12 the documents to -- in answer to a -- a subpoena? 13 Surely the answer from the Commissioner 14 would rightly be that she provided the documents pursuant 15 to her functions and duties of office as Commissioner 16 receiving a validly issued summons. 17 To those who would criticize her for 18 violating confidences or gossipmongering, she would 19 rightly quote 80(d), I'm sorry, 80 Sub A and point out 20 that she answered the summons in the ordinary course of 21 the discharge of her duties as a police officer and as a 22 commissioner; that's one (1) of her jobs. I get 23 summonses in relation to discipline files and the Court 24 has to decide if they're to be produced, but my job is to 25 answer that summons.
1231 And I'm not gossipmongering when I do and 2 I'm not tail -- telling secrets out of school, it's one 3 (1) of my functions as a police officer and that's why it 4 says, "act" and not, "part." If it includes any of her 5 functions -- any of her functions whatsoever -- then 6 she's exempted from any -- any allegations she violated 7 confidentiality; she's just doing her job. 8 One (1) of the provisions of the Police 9 Services Act and I apologize, it's back there, I'll get 10 you the section in a second, is that a police officer 11 maintains all the common-law powers of a police officer. 12 And, surely, one (1) of the powers of a police officer of 13 common-law is to cooperate with the judicial process. 14 It's just -- obviously, they're leaving an 15 exemption for police officers to do their job. The idea 16 is, if they're not in the ordinary course of their 17 duties, if they're disclosing this information outside of 18 the ordinary course of their duties, whether it's 19 answering subpoenas or something else, now you're in 20 trouble because you're telling secrets out of school. 21 That's what 80 Sub A is about because if 22 it wasn't, if it was what My Friends say it is, it would 23 say, "the part." The only thing you can use this for is 24 this part, but it doesn't say that, so that's my first 25 submission on 80 that you hadn't heard before.
1241 The other one is with respect to "D," the 2 consent of the persons. Mr. Roy did ask rhetorically who 3 -- who does the information relate to? I simply want to 4 put on the record that, as I understand it, your Counsel 5 has been contacted by Mr. Rosenthal's clients and told 6 that as persons to whom this information relates, because 7 in part some of his clients were occupiers, they consent 8 to the release of this information. He has expressly 9 given you that consent in writing under 80 Sub D. 10 Mr. Scullion's clients, again, persons to 11 whom this information relates, have given you their 12 consent, in writing. The chiefs of Kettle and Stony 13 Point, in supporting the submissions for disclosure, have 14 impliedly given you their consent that they want the 15 information disclosed. I'm sure the Chiefs of Ontario 16 will do the same. 17 Aboriginal Legal Services, to the extent 18 it's recognized as representing a constituency to whom 19 these people -- this matter relates, give you their 20 consent. I -- it's not just for speech making. The 21 point is, how can it be suggested that when Whitehead and 22 Dyke said what they said or the -- the mugs and T-shirts, 23 that the only persons this matter relates to are the -- 24 are the offenders? It -- it simply stretches credulity, 25 with respect.
1251 The -- the final point is, there is a case 2 that I expect will drift its way into the room because 3 your staff were kind enough to help me, called, "Ludwig." 4 It's a seven (7) page decision of the Ontario Court of 5 Appeal on coroner's inquests and I'll distribute it to My 6 Friends. Your -- your staff are the most efficient. 7 THE REGISTRAR: It's there back at your 8 table. 9 MR. JULIAN FALCONER: I have four (4) 10 copies at this stage and I'll ask Mr. Sandler to share a 11 set. I have one (1) for your Commission Counsel and one 12 (1) for you. 13 And the case stands for a very simple 14 proposition. You'll see that the Coroner's Act at page 3 15 of the case -- I've side barred the relevant provisions 16 and you'll see the page numbers referred to at the top of 17 the first page. 18 COMMISSIONER SIDNEY LINDEN: Yes. 19 MR. JULIAN FALCONER: Anyway, page 3, 20 there's a section of the Coroner's Act, it's actually 21 quoted at the side bar. 22 "A witness at an inquest shall be 23 deemed to have objected to answer any 24 questions asked the witness upon the 25 ground that his or her answer may tend
1261 to incriminate the witness or may tend 2 to establish his or her liability to 3 civil proceedings at the instance of 4 the Crown or of any person. And no 5 answer given by a witness at an inquest 6 shall be used or be receivable in 7 evidence against the witness in any 8 trial or other proceedings against him 9 or her thereafter taking place other 10 than a prosecution for perjury in 11 giving such evidence." 12 That is a classic use immunity privilege. 13 Well, it's very interesting because if you -- you'll see 14 the whole Kuldip and so on analysis and if you go to the 15 next page, page 4, in this case there was an effort to -- 16 you should know there was an effort to plead the 17 transcripts as evidence. 18 In other words, not -- it wasn't just an 19 effort to use it for cross-examination, but to actually 20 use the -- the statements of the police officer on the 21 record in the Coroner's Inquest as admissible evidence, 22 including pleading it. And the Court at page 4 deals 23 with it -- paragraph 16 to 17. 24 "Do the allegations against Ludwig 25 (phonetic) involve self-incrimination?
1271 While the statements made by Ludwig may 2 not be incriminating in a criminal law 3 sense, I need not answer this question. 4 Section 42(1) of the Act provides a 5 much broader protective shield for 6 Inquest testimony. The protection 7 covers a witness' answer to a question 8 that may tend to incriminate the 9 witness or may tend to establish his or 10 her liability to civil proceedings." 11 In paragraphs 12(a) -- sorry, 12 paragraphs 124(a), (b) and (c) the 13 Appellants expressly refer to the 14 testimony given by Ludwig at the 15 Inquest. The Appellants rely upon this 16 testimony to establish Ludwig's civil 17 liability." 18 So, they try to plead it, and the answer, 19 and you'll see page 5 deals with the Kuldip and Carron 20 (phonetic) case and Noel. And if you skip to page 6, the 21 Court invokes 42(1), the use immunity provision and -- 22 and knocks it out of the pleadings at page 6, but it's 23 important what they say, and it's the sidebar portion 24 starting, "However, as I see it": 25 "However, as I see it, that is not the
1281 purpose of the impugn pleadings. The 2 Plaintiffs have pleaded Ludwig's 3 testimony in support of their 4 allegation that he acted with malice 5 and mala fides in the execution of his 6 public office." 7 Put another way, the Plaintiffs are not 8 using Ludwig's Inquest testimony for the limited purpose 9 of impeaching his credibility. 10 In my view, Section 42(1) of the Coroner's 11 Act is quite clear: 12 "It protects all answers given by a 13 witness at an Inquest such that they 14 cannot be used to be receivable in 15 evidence in a subsequent trial or 16 proceeding against the witness except, 17 perhaps, to impeach the witness' 18 credibility or in a perjury 19 prosecution. 20 Because Ludwig's testimony would be 21 inadmissible at trial, the impugn 22 paragraphs must be struck." 23 What I'd ask you to, is just pausing with 24 that paragraph in hand, if you could flip back to 42(1) 25 that's quoted at page 3. There is no reference in this -
1291 - wording of the section; you see 42(1)? 2 There is no reference in the wording of 3 the section, which is at the top of page 3, no reference 4 to being able to use it to impeach credibility. 5 The only thing that you're allowed to use 6 it for is -- other than a prosecution for perjury: do you 7 see that? 8 Yet the Court automatically applies the 9 analysis and says this could never be admissible at 10 trial. We know that, because of this section, can't use 11 it. But what is it that the Court of Appeal is prepared 12 to allow it to be used for? 13 It's prepared to allow it to be used for 14 the purposes of impeaching credibility on cross- 15 examination, which simply speaks to the point we've been 16 making all along. 17 You produce it, and it may well inform 18 cross-examinations, but it can't be filed. In my 19 submission, the Court of Appeal creates a perfect example 20 of how the use immunity privilege doesn't flow into the 21 notion of information privilege. 22 I thank you for being allowed to add that. 23 COMMISSIONER SIDNEY LINDEN: Thank you. 24 25 (BRIEF PAUSE)
1301 2 MR. MATTHEW HORNER: Mr. Commissioner, 3 I'm ready to go, unless you want to take a short break or 4 anything. 5 COMMISSIONER SIDNEY LINDEN: Well, I do 6 want to finish you up. On the other hand, we have been 7 going for a while. How long might you be? 8 MR. MATTHEW HORNER: I anticipate being, 9 and I'm not always the best at anticipating this, but I 10 anticipate being about half an hour to forty-five (45) 11 minutes. 12 COMMISSIONER SIDNEY LINDEN: Well, I 13 think we should just carry on. 14 15 (BRIEF PAUSE) 16 17 MR. MATTHEW HORNER: So Mr. Commissioner-- 18 COMMISSIONER SIDNEY LINDEN: I'm sorry, 19 so -- 20 MR. MATTHEW HORNER: Sorry. 21 COMMISSIONER SIDNEY LINDEN: I saw Mr. 22 Sandler jump up. I presume you're -- there might be some 23 reply. Is that what you were suggesting? 24 MR. MARK SANDLER: I'm just concerned 25 that I want you to be able to get away to --
1311 COMMISSIONER SIDNEY LINDEN: No, but I -- 2 MR. MARK SANDLER: -- deal with your 3 issues -- 4 COMMISSIONER SIDNEY LINDEN: No, but I do 5 need to get away -- 6 MR. MARK SANDLER: I don't want to be ram 7 horning -- 8 COMMISSIONER SIDNEY LINDEN: I don't -- 9 I'm trying to balance that. I'm fine. We need to finish 10 this and finish it properly. 11 MR. MARK SANDLER: But I suspect to deal 12 with all of the issues that have been raised here, as 13 between the three (3) Counsel, there may be some reply 14 that'd take half an hour to forty-five (45) minutes. 15 COMMISSIONER SIDNEY LINDEN: Would Mr. 16 Sandler and Ms. Twohig have to reply as well? 17 MR. IAN ROLAND: I certainly -- 18 COMMISSIONER SIDNEY LINDEN: I can't hear 19 you from there, Mr. Roland, sorry. I think there need 20 only be one (1) reply. I don't know how you can do it, 21 but I think there need only be one (1) reply, but in any 22 event... 23 MR. DERRY MILLAR: Normally, when you 24 have three (3) people supporting a position -- 25 COMMISSIONER SIDNEY LINDEN: Yes, yes.
1321 MR. DERRY MILLAR: -- only one (1) person 2 replies and -- and I know we're an investigation not a 3 court, but normally that happens in court. 4 COMMISSIONER SIDNEY LINDEN: Well, let's 5 see if they can work that out. I don't want to work out 6 your reply until we finish the argument, so why don't we 7 -- you guys can talk about how you're going to reply 8 after Mr. Horner completes his argument. We will have to 9 take a break after Mr. Horner finishes his argument, I 10 suspect. 11 Yes, sir...? 12 13 SUBMISSIONS BY MR. MATTHEW HORNER: 14 MR. MATTHEW HORNER: Thank you, Mr. 15 Commissioner. 16 Mr. Commissioner, Mr. Falconer and Mr. Roy 17 got into all the -- the facts and the relevance of -- of 18 this information and dealt with the -- the production of 19 these document and how the production is -- is necessary 20 and is not -- is not prevented by Section 80 or 69. 21 Chiefs of Ontario's submissions go 22 somewhat further than that and that will be the -- the -- 23 core of -- of my -- of my oral submissions will be, that 24 the -- the documents that are the subject of your summons 25 are properly admissible before this Public Inquiry and
1331 they do not fall under the scope of Section 69(9) because 2 they -- because this Public Inquiry is not a civil 3 proceeding for the purposes of -- of that act or, really, 4 generally, it is not. 5 Now, Mr. Roy discussed the distinction 6 between confidentiality on one (1) hand and secrecy, and 7 on the other hand what he -- what he calls, "use 8 immunity". And -- and I -- I don't want to go over that 9 ground again, but I do want to highlight for the purposes 10 when -- when you come down to interpreting Section 69(9), 11 how the -- how that distinction works and what a 12 privilege is as opposed to -- to mere confidentiality, 13 which courts -- and I'm not going to back into that whole 14 lengthy discussion of the inherent jurisdiction of courts 15 and, by reference, your jurisdiction to -- to summons all 16 relevant evidence. 17 But the -- when dealing with 18 confidentiality courts get around that through various 19 expurgation of certain irrelevant facts or -- or -- or 20 having in-camera hearings or sealing a court record or -- 21 or doing things like that. It's not a block to them, 22 summonsing the -- the -- the evidence. 23 A privilege, on the other hand, and Mr. 24 Roy dealt with the existence of two (2) different kinds 25 of privilege, but a privilege is -- it relates directly
1341 to the admissibility of evidence and privileges exist in 2 contradistinction to the general rule that all relevant 3 evidence is admissible. 4 And, I think it's important to -- to 5 understand that -- that -- that very fine exception that 6 is created and out of the ordinary exception that is 7 created by such a privilege. 8 In -- in the Ryan case, which several 9 parties have taken you to, I have it at Tab 8 of my 10 materials, but I don't know if you want to work with the 11 same case so your materials are -- I find it easier just 12 to work with my materials obviously, but if you'd rather 13 mark it up yourself, your same case... 14 COMMISSIONER SIDNEY LINDEN: That's fine. 15 MR. MATTHEW HORNER: I don't know. It's 16 at Tab 8 of my materials. Paragraph 19, I think is 17 Justice McLachlin as she then was gives a good -- the 18 Ryan case -- 19 20 (BRIEF PAUSE) 21 22 MR. DERRY MILLAR: Commissioner, it would 23 be in this -- 24 MR. MATTHEW HORNER: Tab 8 of the Chiefs 25 of Ontario's materials.
1351 (BRIEF PAUSE) 2 3 COMMISSIONER SIDNEY LINDEN: Yes. 4 MR. MATTHEW HORNER: At paragraph 19, 5 Chief Justice McLachlin describes this general principles 6 of -- of privilege as follows. She says: 7 "The common law principles underlying 8 the recognition of privilege from 9 disclosure are simply stated. They 10 proceed from the fundamental 11 proposition that every one owes a 12 general duty to give evidence relevant 13 to the matter before the Court, so the 14 truth may be ascertained. 15 To this fundamental duty, the law 16 permits certain exceptions, known as 17 privileges, where it can be shown that 18 they were required by a, quote, 'public 19 good transcending the normally 20 predominant principle of utilizing all 21 rational means for ascertaining 22 truth'." 23 Now, in Ryan (phonetic), Justice 24 McLachlin, as she then was, was specifically addressing 25 common law privileges, but the same principles apply to
1361 privileges that are created by statute. They are 2 specific exceptions to the general rule of admissibility. 3 Accordingly, to properly understand, 4 interpret and apply a privilege, we must understand the 5 specific public good that is being held to transcend the 6 normally predominant principle of utilizing all rational 7 means for ascertaining the truth. 8 I'm going to skip over some of my 9 discussion of confidentiality under Section 80, because 10 Mr. Roy did -- did deal with it quite a bit. 11 So, I'm going to skip over that, but -- 12 and I'll -- as you'll see in my submissions in my factum 13 it -- that does not relate to the admissibility of -- of 14 -- to the ability of you to -- to summons these documents 15 or to have them produced. 16 What I'll turn to then, is this question 17 of the statutory privilege and what we are submitting, 18 Mr. Commissioner, is that clearly subsection -- 69(9) of 19 the Police Services Act does establish a specific, 20 limited privilege regarding the admissibility of 21 documents created under the Act for certain proceedings. 22 This is the specific type of exception 23 that the Court is talking about in the TransAmerica case 24 when they say that confidentiality is not -- does -- is 25 not a bar to summonsing documents.
1371 But, they do say that in certain 2 circumstances, a Court can create a specific provision to 3 prevent the -- the admission of -- of those documents. 4 This is that -- such a provision. 5 But, as set out in our factum, the limited 6 privilege established by subsection 69(9) does not apply 7 to those -- this -- these proceedings, because these 8 proceedings are not civil proceedings for the purposes of 9 the Act. 10 Now, as we set out in our factum, the 11 section obviously must be interpreted proposively 12 (phonetic) but I won't go back into that. I want to go 13 straight to the -- the main heart of this whole question 14 is whether this is a civil proceeding. 15 None of the moving parties have submitted 16 any clearly established definition either through 17 statutes or -- or any other case law that define -- that 18 specifically defines a Public Inquiry as being a civil 19 proceeding. 20 We -- we have been directed to a number of 21 statutes that make reference to a civil proceeding or to 22 -- and some refer to civil suits, but the precise scope 23 of civil proceeding is still somewhat unclear. 24 Now, I've had a chance to -- to look at 25 some more statutes to try and see if there is -- the
1381 statutory record does establish some sort of consensus on 2 what a civil proceeding is. I think, from my reading, 3 and I don't have the acts to give you, so I'll have to 4 just give you the citation and -- and read it out for 5 you. 6 The clearest definition and the definition 7 that I think most of us in this room would understand 8 from civil proceeding is set out in the Courts of Justice 9 Act. Now, the Courts of Justice Act doesn't define civil 10 proceeding but it does define an action. 11 And it says that an action means a civil 12 proceeding that is not an application and includes a 13 proceeding commenced by -- and then various civil 14 documents that commence an action. An application means 15 a civil proceeding that is commenced by a notice of 16 application or by application. 17 So what that suggests is that civil 18 proceedings can be actions or applications under the 19 Courts of Justice Act. And I believe that the -- that 20 statutes suggest that -- that if an inquiry is included 21 or excluded from -- from a -- a provision, that can be 22 done. And we've seen sections that specify inquiries. 23 Mr. Millar distributed the Education Act, 24 which was discussed yesterday. As well, the Freedom of 25 Information and Protection of Privacy Act, when they set
1391 up their privilege type section they describe it as 2 follows. Section 52.10 reads: 3 "Except on the trial of a person for 4 perjury in respect of his or her sworn 5 testimony, no statement made or answer 6 given by that or any other person in 7 the course of an inquiry by the 8 Commissioner is admissible in evidence 9 in any court or at any inquiry or in 10 any other proceedings, and no evidence 11 in respect to proceedings before the 12 Commissioner shall be given against any 13 person." 14 So, there's a clear example of how an 15 inquiry can be specifically pointed to as falling under 16 the ambit of provision. And unless -- it doesn't 17 establish that civil proceedings -- whether or not an 18 inquiry falls under the concept of civil proceedings, but 19 it does show that the -- that, if the Legislature wants 20 to include an inquiry, it can include an inquiry. 21 Similarly, in the Statutory Powers 22 Procedure Act, under Section 3, commissions of public 23 inquiry are specifically excluded from the application of 24 that act. So the Legislature knows that public inquiries 25 exist and when it wants an act to include a public
1401 inquiry, it can do so. 2 Now Mr. Roland and Mr. Sandler say that a 3 civil proceeding is -- is different from that. It is not 4 -- it's more than just an action or an application in a - 5 - in a civil court. They say that civil proceeding is an 6 umbrella term that applies to any legal proceedings that 7 are not a criminal proceeding. 8 Public inquiries, if you look at what they 9 do, don't easily fall under that same umbrella. And that 10 -- that's the problem. Now, I -- I hesitate and I -- I 11 don't want to dwell on it because I know you're very 12 familiar with this case and you've mentioned the thrust 13 of it on many occasions, but in the Krever case, and I'm 14 going to use the Krever case not to -- to -- not for the 15 submission that -- of -- of what -- of how Inquiries 16 should operate, but -- but for a sense of really 17 distinguishing them from -- from the activities of any 18 other type of proceeding. 19 And at paragraph 34, Justice Cory writes: 20 "A Commission of Inquiry is neither a 21 criminal trial nor a civil action for 22 the determination of liability. It 23 cannot establish either criminal 24 culpability or civil responsibility for 25 damages. Rather, an Inquiry is an
1411 investigation into an issue, event or 2 series of events." 3 It's an investigation. 4 "The findings of a Commissioner 5 relating to that investigation are 6 simply findings of fact and statements 7 of opinion reached by the Commissioner 8 at the end of the Inquiry. They are 9 unconnected to normal legal criteria. 10 They are based upon and flow from a 11 procedure which is not bound by the 12 evidentiary or procedural rules of a 13 court room. 14 There are no legal consequences 15 attached to the determinations of a 16 Commissioner. They are not enforceable 17 and do not find Courts considering the 18 same subject matter." 19 Justice Cory, after quoting from Beno v. 20 Canada, goes on to say: 21 "Thus, although the findings of a 22 Commissioner may affect public opinion, 23 they cannot have either penal or civil 24 consequences." 25 To put it another way, even if a
1421 Commissioner's findings could possibly be seen as 2 determinations of responsibility by members of the 3 public, they are not and cannot be findings of civil or 4 criminal responsibility. 5 Now, I do want to, in addition, just to 6 highlight how this process is different. One case from 7 the materials of the Province of Ontario, the case of 8 Bortolotti and the Ministry of Housing for the Court -- 9 before the Court of Appeal. 10 And I just want to highlight -- and it's 11 at page 7 of my Quick Law print out, but I know how 12 everyone's Quick Law printouts can -- 13 COMMISSIONER SIDNEY LINDEN: Is it a new 14 binder? 15 MR. MATTHEW HORNER: -- come out 16 differently. 17 No, it's not. This one's not in my 18 binder. 19 MR. DERRY MILLAR: Tab 4 of the 20 Province's binder. 21 22 (BRIEF PAUSE) 23 24 MR. MATTHEW HORNER: At page -- at the 25 top of what I have as page 7, the Court writes:
1431 "The Commission of Inquiry is charged 2 with the duty to consider, recommend 3 and report. It has a very different 4 function to perform from that of a 5 Court of law or an administrative 6 tribunal or an arbitrator, all of which 7 deal with rights between parties." 8 So the workings of an Inquiry -- an 9 Inquiry operates completely differently from -- from any 10 of those administrative tribunals, or civil proceedings. 11 So, if you -- if you don't accept my 12 argument to that -- that a civil proceeding is just a -- 13 a -- is just a civil proceeding brought up under the 14 rules, then -- then I would suggest that -- that, at the 15 very least, it can't be understood as following under the 16 umbrella of civil proceedings that Mr. Sandler and Mr. 17 Roland have put forth, because it doesn't deal with the 18 rights between parties. 19 That's -- that's -- that's where all those 20 other proceedings -- what those proceedings accomplish. 21 This is an investigation. 22 So -- but all this is -- is people, you 23 know, arguing back and forth, This is a civil proceeding, 24 This isn't a civil proceeding. 25 And that's why, as we've set out in our
1441 factum, and I will discuss here, is that to really 2 understand what a civil proceeding is, you really do have 3 to look at the purpose of -- of the provision. The -- 4 the civil proceeding could be what I say and I -- I think 5 the -- the Bortolotti case is -- is convincing on that 6 point; Mr. Sandler and -- and Mr. Roland argue otherwise. 7 And, really, the only way to -- to figure 8 that out is to look at the purpose of -- of -- of the 9 provision to try and figure out what it's trying to do 10 and only by looking at that can -- can you, Mr. 11 Commissioner, figure out whether this subsection applies 12 to this Inquiry; whether this Inquiry is a civil 13 proceeding under that section. 14 And this is the process in considering a 15 privilege and whether it applies to an inquiry that 16 courts have taken in -- in other -- in other situations 17 such as those raised by -- by the OPPA. These are -- 18 these are also in my materials. They've raised the -- 19 the case of the Solicitor General and the Royal 20 Commission of Inquiry into the confidential -- 21 confidentiality of health records. 22 Now the thrust of that case and the 23 question at issue was whether this informant privilege 24 could apply to whether the Commissioner was constrained 25 by the informant privilege held by the police officers.
1451 And in considering whether that privilege 2 applied to a civil proceeding -- to -- to a public 3 inquiry, the -- the Court did not go into an abstract 4 discussion of, well, is this a civil proceeding or is -- 5 or how -- how can this apply here, it looked to the 6 purpose of the privilege and the purpose of the informant 7 privilege is to maintain the secret identity of those 8 informants so as to encourage their continued production 9 of information to the police and allow the police to do 10 their jobs. 11 That purpose, that public good that 12 Justice McLachlin referred to would be undermined if that 13 information was released at a public inquiry. 14 COMMISSIONER SIDNEY LINDEN: Regardless 15 of the forum. 16 MR. MATTHEW HORNER: Regardless of the 17 forum, that -- that information would -- would -- would 18 ruin the privilege and would ruin -- and would usurp the 19 -- the purpose and, therefore, the Court held that the -- 20 the privilege was still applicable before the public 21 inquiry. 22 They do make mention of civil proceedings 23 in -- in -- at page 23 as Mr. Roland brought you to, but 24 it really had nothing to do with the -- the holding of 25 the case.
1461 The same approach was taken by the labour 2 arbitrator in the -- the Royal Constabulary case and in - 3 - in that instance, he specifically was required to 4 determine what was the meaning of civil proceeding. And 5 -- and he did not take an abstract view of what a civil 6 proceeding was. 7 He specifically examined whether, for the 8 purposes of -- of that provision, whether it should apply 9 to a -- to a public inquiry and in looking at -- at the 10 purpose and the purpose there was the payment of -- of 11 legal fees, the employer had to pay the legal fees of 12 their members who were before civil proceedings. 13 He looked at that and he said, well, he 14 doesn't even find that it's a civil proceeding. He -- he 15 finds that the purpose is to protect them from -- protect 16 the employees from civil suits and civil actions and that 17 because a civil suit or a civil action could emanate, 18 could come after the inquiry because of information that 19 comes out of the inquiry, that -- that -- that for the 20 purposes -- and he specifically says, for the purposes of 21 this provision, civil proceedings includes a public 22 inquiry. 23 Now that's not the case with this 24 privilege and Mr. Roy discussed this a little bit, but 25 the purpose of this privilege is -- has nothing to do
1471 with the secrecy of the documents or of the information. 2 It -- it is a -- a bar to -- to having documents be 3 admitted in a civil proceeding that can involve civil 4 liability. 5 And -- and that makes sense because the -- 6 and thatĂs consistent with the Forget case that has been 7 discussed by the -- by Mr. Roland and Mr. Sandler. And I 8 -- and I do just want to -- to go to that before I 9 conclude. 10 Because that case, which was a civil 11 proceeding -- it's a case that was a civil proceeding and 12 it stands for the fact that Subsection -- such as 13 Subsection 69(9), which applied to civil proceedings, 14 applied in a civil proceeding, which, I submit, is not a 15 very startling conclusion. 16 The -- but the Court in that case, in 17 order to determine whether to admit the evidence, really 18 had to specifically look at the -- the purpose of that -- 19 of those sections of the Regulated Health Professionals 20 Act. 21 And -- and they conclude, ultimately, that 22 if that is the concern with this act, which is analogous 23 to the Police Services Act, and that is that the -- that 24 is that in order -- the public good that's being sought 25 is the public good of -- of encouraging people to
1481 participate in a -- in a professional complaints process 2 to move it out of the civil legal system, and to 3 encourage that participation without threat of being 4 sued. 5 And the Court in Forget and Sutherland 6 says that, as I -- as I referenced in my materials. And 7 they also specifically point to the fact that that was, 8 in the reports that led to the adoption of those 9 provisions, the specific purpose of the act. 10 I'll just close on -- on one final point. 11 And Mr. Sandler and Mr. Roland have -- have both -- would 12 fall back -- fell back several times on the policy 13 argument and saying that if these materials were 14 admitted, that it would somehow serve the -- the policy 15 that has been adopted by the Legislature. And it is my 16 submission that that -- that that cannot be the case if 17 you take a purposive approach to the -- to the section. 18 And they talked about the -- the informal 19 proceedings and there's a process there for informal 20 proceedings, and people participate in the informal 21 proceedings knowing that -- and it -- it serves a public 22 good and this information won't become public. But 23 that's not the case. These inquiries and complaints 24 create discipline files which are fully admissible before 25 a -- a Police Services Board hearing, a public hearing,
1491 under the Act. 2 I mean, so there's no secrecy in -- in 3 these documents. It's no expectation that they'll be 4 secret. And there's no expectation that they'll be -- 5 that they won't be admissible in a public inquiry. 6 For those reasons, Mr. Commissioner, 7 Chiefs of Ontario submits that the -- not only are these 8 documents producible but they are also admissible before 9 this Public Inquiry. 10 COMMISSIONER SIDNEY LINDEN: Thank you 11 very much. IĂd like to carry on, is it possible to have 12 one (1) reply or do we need to hear from others? 13 Let's hear from you, Mr. Sandler, and see 14 where we go from there. 15 MR. MARK SANDLER: In order to have one 16 (1) reply we would have -- have to have an opportunity to 17 speak to the matter -- I -- with each other. I -- I have 18 some points to make and whether that will cover what My 19 Friends would otherwise say, but -- 20 COMMISSIONER SIDNEY LINDEN: I don't want 21 to cut anybody -- 22 MR. MARK SANDLER: I mean, I'm sorry, I-- 23 MR. IAN ROLAND: I mean, we haven't had a 24 chance to discuss it amongst ourselves and in fairness to 25 us, if you're going to restrict us to one (1) speaker,
1501 we're going to have to have some time to discuss it. 2 COMMISSIONER SIDNEY LINDEN: I don't want 3 to do anything that isn't fair. So let's take a short 4 break, give you an opportunity to discuss it and we'll 5 see where we go. 6 MR. IAN ROLAND: All right. 7 COMMISSIONER SIDNEY LINDEN: Thank you. 8 Let's take a short break. 9 THE REGISTRAR: This Inquiry will recess. 10 11 --- Upon recessing at 12:26 p.m. 12 --- Upon resuming at 12:36 p.m. 13 14 THE REGISTRAR: This Inquiry is now 15 resumed, please be seated. 16 MR. MARK SANDLER: What we're going to 17 suggest, Commissioner, subject to your approval, is that 18 the easiest course is for each of us to reply in 19 specified areas and avoid duplication, if that works for 20 you. 21 COMMISSIONER SIDNEY LINDEN: How long do 22 you think you might be, Mr. Sandler? 23 MR. MARK SANDLER: Well, I'm going to -- 24 I'm not first. I'm going to be second and I expect I'll 25 be fifteen (15) minutes.
1511 COMMISSIONER SIDNEY LINDEN: Okay. And 2 then who is first? 3 Ms. Twohig...? 4 MS. KIM TWOHIG: I think it was agreed 5 that I would go first, and I will be about fifteen (15) 6 or twenty (20) minutes. 7 COMMISSIONER SIDNEY LINDEN: Okay. 8 And Mr. Roland, how long do you think you 9 -- about the same? All right, let's just -- 10 MR. DERRY MILLAR: I'm certain I'll be 11 much faster when they get on their feet, but I note that 12 we're missing Messrs. Falconer, Roy and Horner, and... 13 14 (BRIEF PAUSE) 15 16 MR. MARK SANDLER: I always prefer to 17 make my submissions in the absence of opposing Counsel. 18 I find it -- I find it goes faster that way, but. 19 MR. DERRY MILLAR: Often, it does. 20 21 (BRIEF PAUSE) 22 23 MR. DERRY MILLAR: I guess they're 24 coming. 25 COMMISSIONER SIDNEY LINDEN: Yes.
1521 2 (BRIEF PAUSE) 3 4 MR. DERRY MILLAR: Mr. Scullion reports 5 that they are coming. Oh, and Mr. Roy is here now. 6 COMMISSIONER SIDNEY LINDEN: Mr. Roy is 7 here? 8 MR. DERRY MILLAR: Followed by Mr. 9 Falconer. 10 COMMISSIONER SIDNEY LINDEN: Mr. 11 Falconer's here. 12 MR. DERRY MILLAR: And where is Mr. 13 Horner? 14 15 (BRIEF PAUSE) 16 17 MR. DERRY MILLAR: Mr. Falconer, do you 18 know where Mr. Horner is? 19 MR. JULIAN FALCONER: I saw Mr. Horner 20 coming in just behind so I -- any minute, here he is. 21 MR. DERRY MILLAR: Here's Mr. Horner. 22 COMMISSIONER SIDNEY LINDEN: Here -- here 23 we are. 24 MR. MATTHEW HORNER: My apologies, Mr. 25 Commissioner.
1531 COMMISSIONER SIDNEY LINDEN: Here's Mr. 2 Rosenthal, Mr. Henderson and -- 3 MR. MATTHEW HORNER: My apologies. 4 COMMISSIONER SIDNEY LINDEN: ű- I think 5 we're all present and accounted for. Thank you very 6 much. 7 MS. KIM TWOHIG: Thank you, Mr. 8 Commissioner. 9 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 10 Twohig...? 11 12 REPLY BY MS. KIM TWOHIG: 13 MS. KIM TWOHIG: Since My Friend, Mr. 14 Falconer, spent a fair amount of time on the issue of 15 relevance, I thought it would be very important to 16 clarify the Province position about relevance. There -- 17 COMMISSIONER SIDNEY LINDEN: We didn't 18 start without you, Mr. Rosenthal. 19 MS. KIM TWOHIG: Yes. 20 COMMISSIONER SIDNEY LINDEN: We just 21 started right now. 22 MS. KIM TWOHIG: For Mr. Falconer's 23 benefit, we have decided to reply separately, but we will 24 all try to keep our reply brief. 25 COMMISSIONER SIDNEY LINDEN: Yes, you're
1541 going to have separate -- 2 MS. KIM TWOHIG: And non-repetitive. 3 COMMISSIONER SIDNEY LINDEN: Ms. Twohig 4 first, followed by Mr. Sandler, followed by Mr. Roland in 5 that order. Yes...? 6 MS. KIM TWOHIG: Now, in terms of 7 relevance, the concern was that there appear to be two 8 (2) areas of inquiry. 9 With respect to the first area of inquiry, 10 which is the events surrounding the death of Dudley 11 George, our position is that what the Commission can do 12 is explore whether racism played a role. The Commission 13 can explore this fully through the witnesses and any 14 other admissible evidence and no attempt has been made 15 thus far to keep secret any of those issues. 16 COMMISSIONER SIDNEY LINDEN: Well, with 17 respect, if a Counsel asks a witness questions about the 18 discipline, would it be your view that those questions 19 could or should be answered? 20 MS. KIM TWOHIG: No, I -- I was going to 21 get to that, Mr. Commissioner, by saying that what the 22 Commission can't do is to use information in discipline 23 files unless the requisite consent has been given or 24 unless that information has already been made public. 25 So, the witnesses have been, in the past,
1551 and can be asked about what they said, what they heard, 2 what they saw, what they knew, what they did, or what 3 they experienced. And, I agree with Mr. Falconer that 4 the officers should have an opportunity to 5 explain themselves and, certainly, the issue of racism in 6 terms of what was seen, heard, known, et cetera, is 7 relevant. 8 But, again, what isn't is what's in the 9 police discipline files. That's just not permitted by 10 statute; that's the main point. 11 But, secondly, how the OPP dealt with it 12 after the fact doesn't shed light on what actually 13 happened. So, that's where the relevance issue came -- 14 comes in, but the primary point is that the discipline 15 records are not admissible by statute. 16 The second area of inquiry, though and 17 this may be where the issue of relevance became confused, 18 and I apologize for -- for the part I may have played in 19 that is that the -- the ALST and COO seemed to want to -- 20 to inquiry into how the OPP deals with and has dealt with 21 misconduct involving racism in general. 22 COMMISSIONER SIDNEY LINDEN: I didn't get 23 that impression, Ms. Twohig. 24 MS. KIM TWOHIG: Well, the factum that 25 the COO submitted says right in it that -- and I don't
1561 have the -- the page right in front of me, but I recall 2 that it says that it wants to examine how the OPP deals 3 with and has dealt with -- 4 COMMISSIONER SIDNEY LINDEN: These 5 particular cases. I'm sorry, carry on. 6 MS. KIM TWOHIG: Okay. The concern was 7 that there seemed to be a suggestion of some kind of 8 systemic racism within the OPP and that was the area of 9 inquiry that was of some concern if that's what the 10 suggestion was. And even in respect to that second area 11 of inquiry, I would submit that what the Commission can 12 do is hear evidence from the witnesses about how the OPP 13 deals with and has dealt with misconduct in the past in a 14 very general way. 15 What it can't do is use information from 16 the discipline files to inform that line of inquiry. 17 And, that's where I made the submission that even if you 18 could use information from individual discipline files, 19 that would not be sufficient in terms of addressing a 20 much broader area of how it was -- how the OPP responds 21 to racism in general, because you can't use a couple of 22 files as a basis for a conclusion. 23 So, that's all. But, certainly in terms of 24 exploring racism in relation to the events surrounding 25 Dudley George, absolutely, that's within the Inquiry's
1571 mandate. 2 COMMISSIONER SIDNEY LINDEN: You don't 3 want to see this Inquiry become a commission on systemic 4 racism which there has been in Ontario fairly recently; 5 is that what you mean? 6 MS. KIM TWOHIG: What -- what I'm 7 submitting is that that expands the Inquiry beyond the 8 events -- 9 COMMISSIONER SIDNEY LINDEN: Yes. 10 MS. KIM TWOHIG: -- surrounding the death 11 of Dudley George, yes. 12 COMMISSIONER SIDNEY LINDEN: That's fine. 13 MS. KIM TWOHIG: My Friend, Mr. Falconer, 14 made consider -- considerable argument regarding the need 15 for openness, transparency. He talked relevance, even 16 sunlight and darkness, and, in my submission, that 17 argument is based on what he submits the appropriate 18 policy should be with respect to discipline records. 19 However, it's the Legislature, not the 20 OPP, not the OPPA and not the Attorney General, that has 21 decided what the policy is in respect of discipline 22 records. And the policy is an exception, a very specific 23 exception to those principles, and it's set out in 24 Sections 69(8), 69(9) and 80 of the Police Services Act, 25 and Section 11 of the Public Inquiries Act deals with
1581 that as well. 2 So, the courts say that when the 3 Legislature has made the decision about the policy, 4 commissioners and judges can't interfere. 5 You were told that there are no cases that 6 talk about an absolute ban on the information in the 7 files, and I submit to the contrary. The cases are Cook 8 and Ipp (phonetic), which is said to be a complete code. 9 The Court of Appeal said that the former 10 Section 23(5) of the Health Insurance Act set out a clear 11 prohibition -- other words used by the Court were 'clear 12 and precise', a complete code pertaining to the 13 production of relevant records and a prohibition on 14 complete production. It definitely dealt with 15 producibility as well. 16 In addition, we have the case of Bonfoco 17 and Dowd, in which the Court said that the documents were 18 not producible. It's on the last page of the rather 19 lengthy decision and it dealt with a prior motion in the 20 context of costs. 21 We have the Glover and Glover case which 22 dealt with similar provisions under the Income Tax Act, 23 where the Federal Court said that the sections were a -- 24 a comprehensive code. We have Treitz and Suvila, in 25 which Justice Cameron said that the documents were
1591 privileged. And, in addition, we have Task Specific 2 Rehabilitation Inc. and Steinecke, Gustar and Wadden, and 3 Westergard/Thorp versus Canada. 4 It was submitted by Mr. Roy that the 5 criminal cases deal with full answer in Defence and that 6 that's important. However, the criminal cases deal with 7 the criminal law. Sections 69(8) and 69(9) deal with 8 civil proceedings. 9 It is not within the competence of the 10 provincial legislature to make laws pertaining to the 11 admissibility of evidence in criminal proceedings. And 12 that's why the criminal cases apply the common law with 13 respect to O'Connor. 14 And, finally, I would just like to address 15 the issue of civil proceeding, because I think I may have 16 found a very simple answer to this and one that I regret 17 I didn't find earlier. 18 If we look at Sections 69(8) and 69(9) and 19 assume that civil proceeding means civil action and 20 nothing more than civil action, what they would say is, 21 No person shall be required to testify in a civil action 22 with regard to information, or, in other words, in court. 23 And under 69(9), No document prepared as the result of a 24 complaint is admissible in a court in a civil action. 25 And then if we go to Section 11 of the
1601 Public Inquiries Act, it says that nothing is admissible 2 in evidence at an Inquiry that would be inadmissible in a 3 Court, because of any privilege under the law of 4 evidence. 5 So, that's, perhaps, a very simple answer. 6 Under 69(8) and (9), the evidence cannot be put before a 7 Court in a civil proceeding, so therefore under Section 8 11 of the Public Inquiries Act, it can't be put before 9 the Inquiry, either. 10 That saves a lot of difficulty in trying 11 to sort out what civil proceeding means, because even on 12 a narrower interpretation it's not admissible, in my 13 submission. 14 That's all I have by way of reply, thank 15 you. 16 COMMISSIONER SIDNEY LINDEN: Thank you 17 very much, Ms. Twohig. 18 19 (BRIEF PAUSE) 20 21 REPLY BY MR. MARK SANDLER: 22 MR. MARK SANDLER: Commissioner, if I 23 could take you yet one more time to the statutory 24 provisions to make -- to make a simple point. And, 25 again, they're to be found in my application record At
1611 tab 1. And I'm looking at subsection 69(9). 2 COMMISSIONER SIDNEY LINDEN: I've been 3 using your record -- 4 MR. MARK SANDLER: Thank you. 5 COMMISSIONER SIDNEY LINDEN: For a copy 6 of the Act. 7 MR. MARK SANDLER: Now -- 8 COMMISSIONER SIDNEY LINDEN: 69(9). 9 MR. MARK SANDLER: You repeatedly heard 10 from Mr. Roy and from Mr. Falconer and from Mr. Horner 11 that the premise of my submissions that Section 69(9) 12 confers confidentiality or -- or informational privilege 13 is an argument that is incorrect. 14 I never made that argument; never even 15 began to make that argument. The argument that I made is 16 that Subsection 9 deals with, to use My Friend's 17 comments, use immunity of the documents themselves. 18 That deals with admissibility, I 19 absolutely agree with My Friends and have always agreed 20 with My Friends. 21 The position that I took was that unlike 22 other statutory regimes, you cannot read Subsection 9 and 23 stop your Inquiry. You've got to go immediately above 24 it, immediately above it is non-compellability. 25 "No person shall be required to testify
1621 in a civil proceeding with regard to 2 information obtained in the course of 3 his or her duties except at a hearing 4 held under this part." 5 So, My Friends kept attacking my 6 submissions on the basis that Subsection 9 does not deal 7 with informational privilege. I agree. Informational 8 privilege is dealt with under Subsection 8 and under 9 Section 80. 10 So, when you put them all together, you 11 say 69(8), 69(9), 69(10) and Section 80 you have, to use 12 Ms. Twohig's terminology, and the binding authority of 13 the Court of Appeal no less, a code not only -- not only 14 as to admissibility, not only as to documentary use 15 immunity, but also as to the use of the information 16 contained in those records being, I suggest, both 17 produced and I'm going to come to that, both produced and 18 admissible. 19 So, the first point that I make in reply 20 is that if Subsection 9 stood alone, the argument here 21 would be more interesting. When you add Subsection 8 22 which is informational privilege, there's no way of 23 getting around it, and if you look at Section 80 which is 24 informational, there's no way of getting around it, in my 25 submission, it is a code that cannot be kind of picked
1631 off one (1) subsection at a time. 2 So, that leads to the second point that My 3 Friends made and that is that -- that Subsection 9 often 4 is invoked in circumstances that don't involve secrecy or 5 confidentiality. 6 In other words, the parties often do the 7 documents that are being dealt with under Subsection 9. 8 I absolutely agree, of course. Of course there are 9 circumstances that exist and Forget and Sutherland is one 10 (1) of those circumstances where the parties already have 11 the document. 12 I mean, in Forget and Sutherland, the 13 complainant had her complaint -- the complainant had her 14 recantation. Doctor Sutherland had the documents as 15 well. Justice Laskin, speaking for the Court, didn't 16 have to deal with the production issue that you're 17 dealing with; the documents were already available to the 18 parties. 19 And he specifically says at the beginning, 20 he does talk about the code, but he says, The issue 21 before me is the interpretation of 36(3), which is the 22 equivalent of 69 Subsection 9. 23 So as interesting as My FriendsĂ arguments 24 are to say that somehow I've melded production and 25 admissibility, I've done no such thing. Section 69(9)
1641 isn't the section -- isn't the part of the code that 2 confers confidentiality upon discipline records, Section 3 69(9) does contemplate that it might have application to 4 non-secret documents; it's not the point, with great 5 respect. 6 The point is, that these records, these 7 discipline records, are indeed confidential. I mean, to 8 be citing cases where they're not confidential and the 9 parties already have them is not of assistance to the 10 Court or to the Commissioner. 11 Now, My Friends never mentioned, not once, 12 the Cook and Ipp decision. 13 Now, with great respect, whatever one's 14 view are, and -- and one can reasonably disagree as to -- 15 as to what the purpose of analysis of confidentiality 16 provisions, where that should lead you or whether the 17 legislators -- legislature is correct in -- in 18 recognizing through this code of procedure and the Police 19 Services Act that discipline records should not be 20 accessed subject to the specific exceptions that don't 21 apply to you, but -- but one can't debate the fact that 22 in Cook and Ipp our Court of Appeal... 23 OBJ MR. JULIAN FALCONER: Mr. Commissioner, I 24 apologize for having interrupted My Friend, but as a 25 point of order, I have to object.
1651 My Friends -- first of all Ms. Twohig 2 referred to Cook and Ipp in her part. There are three 3 (3) Counsel replying, which is quite unusual. 4 Secondly, My Friend's point is that we 5 didn't make reference to Cook and Ipp so he's not 6 replying to anything, he's simply repeating his argument; 7 it was made before. 8 MR. MARK SANDLER: I'll -- I'll -- I'm 9 sorry. 10 MR. JULIAN FALCONER: And so, with all 11 due respect, it's reply and there's three (3) lawyers 12 making it and he should confine himself to replying to 13 our arguments, with respect. 14 COMMISSIONER SIDNEY LINDEN: That's 15 legitimate. 16 MR. MARK SANDLER: Fair enough and I'll 17 tell you, I should have said it right up front, the 18 position that was taken is that Sandler said -- and these 19 were the specific words -- Sandler said, There isn't a 20 single case, and they said, He melded production and 21 admissibility. 22 COMMISSIONER SIDNEY LINDEN: All right. 23 MR. MARK SANDLER: And Sandler couldn't 24 point you to a singe case and he acknowledged there 25 wasn't a single case --
1661 COMMISSIONER SIDNEY LINDEN: All right. 2 MR. MARK SANDLER: -- that dealt with the 3 issue and I acknowledged no such thing. 4 What I acknowledged was that there was no 5 case that specifically addressed the issue of whether 6 this Inquiry is a civil proceeding. 7 COMMISSIONER SIDNEY LINDEN: All right. 8 MR. MARK SANDLER: I acknowledged it 9 then, I acknowledge it now. 10 COMMISSIONER SIDNEY LINDEN: That's fine. 11 MR. MARK SANDLER: But I took the exact 12 opposite position in reply as to whether there's a single 13 case that deals with the issue of production. There's a 14 binding case that deals with it. 15 MR. JULIAN FALCONER: My objection's 16 directed to him not simply repeating his argument because 17 that's where he's at now. He's -- he's just simply 18 repeating the same argument he made in-chief because his 19 point is we didn't reply to it so all he's doing is he's 20 about to take you through the exact same argument -- 21 COMMISSIONER SIDNEY LINDEN: I hope 22 that's not what's happening, but -- 23 MR. MARK SANDLER: No. 24 COMMISSIONER SIDNEY LINDEN: -- let's go 25 on, Mr. Sandler.
1671 MR. MARK SANDLER: So, if you look -- 2 COMMISSIONER SIDNEY LINDEN: You don't 3 need to repeat the argument which you made very 4 effectively first time around. 5 MR. MARK SANDLER: And -- and I think 6 youĂll find that the time I take to deal with it will 7 probably take less time than responding to My Friend's 8 objection but -- 9 MR. JULIAN FALCONER: What's the premise 10 of the reply? 11 MR. MARK SANDLER: Well, Commissioner's 12 heard you, Mr. Falconer, with great respect. 13 The point that I suggest is the complete 14 answer to My Friend's comments that I could cite no case 15 that distinguishes between production and admissibility 16 and addresses production, is Cook and Ipp, because in 17 Cook and Ipp the party that was seeking the records did 18 not have them; it was a true question of production. 19 And in Cook and Ipp, the Court 20 specifically looks at the predecessor sections, and 21 you've heard this before, which nobody appears to contest 22 are virtually ad idem with the kinds of sections that 23 you're dealing with and the Court determined that under 24 the predecessor sections, there was a complete 25 prohibition against production; not just admissibility,
1681 production. 2 And you'll see the same non- 3 compellability, non-testimonial use immunity, secrecy 4 provisions, contained therein and they contrast those 5 previous sections which are our sections, to the sections 6 that now exist that provided for a specific exemption for 7 Court ordered testimony. 8 And, by the way, and that responds to My 9 Friends' arguments, in interpreting Section 80, and one 10 can kind of deal with all the nuances and try to read 11 kind of a tortured interpretation of the exceptions and 12 there's Subsection (a) and Subsection (b), but we do know 13 that the legislature's very capable of -- of saying that 14 an exception to Section 80 or any other comparable 15 provision is where is required pursuant to a subpoena in 16 Court in law. 17 You see it -- at a court of law you see it 18 right in Cook v. Ipp but that's how the section currently 19 reads. 20 Now if I can then turn briefly to Mr. 21 Falconer's submissions and I say, with great respect, Mr. 22 Falconer's submissions are unfortunate in this respect 23 and that is that I ű- I suggest that they miscast the 24 OPP's position and My Friend says that if you accept the 25 OPP position, you will lower the respect or the
1691 credibility of this Inquiry in the eyes of the First 2 Nations and the community at large, and I think its 3 unfortunate because it's a bit of a self-fulfilling 4 prophecy. 5 By -- by casting the OPP argument in the 6 way that they have, there will be discontentment that -- 7 that's engendered by that. 8 So let's be abundantly clear in -- in how 9 that position has been miscast. 10 The OPP never, and I underline never, has 11 taken the position here that it is irrelevant to the work 12 of the Inquiry to explore whether racism formed a part in 13 the incident that you are investigating. 14 You never have heard me say that once nor 15 would I. You have never heard me object to Mr. Millar's 16 questions that were directed to the mugs and T-shirts 17 incident, what happened in the mugs and T-shirts 18 incident, what the conversation was as between Dyke and 19 Whitehead. 20 No objections at all and no objection 21 being maintained today to -- on the basis of relevance to 22 the work of the Inquiry. 23 The OPP recognized then and now that a 24 statutory regime exists that cannot be run roughshod 25 over. And as a result, what we've tried to do is to
1701 accommodate the reasonably necessary work that you have 2 to do, and protection of valuable and important, not 3 withstanding how they've been characterized, objectives 4 of the legislation. 5 And -- and as I said to you before this 6 doesn't just have to do with officers trying to insulate 7 themselves from giving inconsistent statements. This has 8 larger goals. 9 So how did I attempt to -- to do that? I 10 attempted to do that by speaking to the OPPA and trying 11 to craft out a way in which the concerns could be 12 addressed without running roughshod over the rights of 13 the people involved, and these aren't just the rights. 14 My Friends haven't said anything about it. 15 There are thirty-three (33) statements and My Friend 16 treats them as if they are all police officers, and 17 that's -- and I don't say that as any criticism because 18 he doesn't know, but -- 19 COMMISSIONER SIDNEY LINDEN: He doesn't 20 know. 21 MR. MARK SANDLER: -- as I indicated to 22 you, these are civilians, these are police officers. 23 There are individuals who gave information here as part 24 of the discipline process that are not members of the 25 Force and the like and so what I suggested with -- with
1711 discussions with the OPPA because -- 2 MR. JULIAN FALCONER: Mr. Commissioner, 3 now this is -- this is, if My Friend is testifying now 4 and he's testifying in reply, which means I can't even 5 respond to this. 6 COMMISSIONER SIDNEY LINDEN: Mr. 7 Falconer, what he's doing is helpful. I would be 8 grateful if you would let him finish. 9 MR. JULIAN FALCONER: Well, then I ask -- 10 COMMISSIONER SIDNEY LINDEN: He's 11 explaining something. 12 MR. JULIAN FALCONER: I ask, with 13 respect, if it's helpful to you, Mr. Commissioner, that 14 we do get an opportunity to respond, too, because this -- 15 COMMISSIONER SIDNEY LINDEN: No, I 16 can't -- 17 MR. JULIAN FALCONER: -- is brand new. 18 COMMISSIONER SIDNEY LINDEN: -- this 19 can't go on forever -- 20 MR. JULIAN FALCONER: Well that's why 21 reply is important to be conventionally -- to proper 22 reply. If it's helpful to you, I'll sit down, Mr. 23 Commissioner -- 24 COMMISSIONER SIDNEY LINDEN: Yes, it's 25 helpful.
1721 MR. JULIAN FALCONER: But I do -- I do 2 say it's most unfortunate we didn't hear this before -- 3 COMMISSIONER SIDNEY LINDEN: No. 4 MR. JULIAN FALCONER: -- so I will never 5 get a chance to respond to it. 6 COMMISSIONER SIDNEY LINDEN: Yes. Well 7 I'm not sure it needs a response. He's trying to explain 8 how it got to this point. Let's carry on and see where 9 it goes. 10 MR. MARK SANDLER: I'd be surprised if 11 I'm saying anything to you that's -- 12 COMMISSIONER SIDNEY LINDEN: Well -- 13 MR. MARK SANDLER: -- unanticipated, but 14 you asked me this very question. 15 COMMISSIONER SIDNEY LINDEN: I did. And 16 you're not making a legal argument now, you're giving me 17 an explanation. 18 MR. MARK SANDLER: I'm not. 19 COMMISSIONER SIDNEY LINDEN: Yes. I 20 don't think it needs to be, quote, responded to. Carry 21 on. 22 MR. MARK SANDLER: I'd like to cut 23 through the adversarial -- 24 COMMISSIONER SIDNEY LINDEN: Yes. Yes. 25 MR. MARK SANDLER: -- features that
1731 sometimes occur here and -- and I am trying to be 2 helpful. And -- and what I have suggested is that -- 3 that the way that one can accomplish this is that each of 4 the Commissioners who were in place at the time of the 5 relevant discipline can be asked what discipline was 6 imposed because, as you've heard, Deputy Commissioner 7 Carson was only informing himself. He informed himself 8 about the Dyke and Whitehead and -- and we hadn't got to 9 the stage of informing himself as to the details of the 10 T-shirts and mugs. 11 So, you can get the information as to what 12 was the discipline that was imposed. Each of the 13 Commissioners can be asked about why that discipline was 14 or wasn't imposed. 15 COMMISSIONER SIDNEY LINDEN: Why it was 16 resolved informally as opposed to in another fashion, you 17 could ask that. 18 MR. MARK SANDLER: Right. Right. And -- 19 and, in my submission, that as long as the questions -- 20 and I suggest that the questions could also be directed 21 to the -- the categories of the individuals who were 22 subject to -- to the discipline, so that -- so that you 23 could have some insight, for example, as to whether it 24 involves people who were ű- in the altercation at the 25 parking lot as opposed to people who came to the scene a
1741 day later. 2 COMMISSIONER SIDNEY LINDEN: Or people of 3 various ranks. 4 MR. MARK SANDLER: And -- and of rank. 5 Because -- because that's not the core information that 6 leads to the identification of these individuals, whether 7 witnesses or -- or subject officers, but it addresses the 8 kinds of concerns that you are entitled to inquire into. 9 COMMISSIONER SIDNEY LINDEN: Is the key 10 piece of information that we're not entitled, that 11 Counsel are not entitled to require into, is the identity 12 of the officers? 13 MR. MARK SANDLER: Identities, yes. 14 COMMISSIONER SIDNEY LINDEN: Is that the 15 key -- 16 MR. MARK SANDLER: And I -- 17 COMMISSIONER SIDNEY LINDEN: Is that the 18 key piece? 19 MR. MARK SANDLER: That's probably the 20 most critical piece, I -- I'd suggest. The identity of - 21 - of witnesses and individuals. 22 COMMISSIONER SIDNEY LINDEN: ThatĂs fine. 23 MR. MARK SANDLER: Now, it ain't perfect. 24 It isn't. I suggest that -- and it constitutes a -- a 25 partial waiver, which is contemplated in law, that one
1751 can waive all, part or none of the privileges that exist, 2 but it's intended to try to deal with the concern raised 3 that we're not transparent. 4 And if there's criticism arising out of 5 that because of the way that we've dealt with it or 6 because of who the officers were in terms of rank or 7 category, then, of course, that will be addressed. And - 8 - and if after their testimony there's some residual 9 concern about all of this, then -- then it can be dealt 10 with. 11 But -- but when I say that, I also kind of 12 feed in to Ms. Twohig's argument because, respectfully, I 13 -- I haven't agreed with -- with the position that the 14 Province has taken in its entirety. 15 And I don't think it is for the OPP to say 16 that one can't inquire into some of the subject matter. 17 But -- but it is fair to say that, at some point along 18 the continuum, there's a concern that's raised about just 19 how far is too far. 20 I mean, we're not at the parking lot, 21 we're now at T-shirt and mugs and -- and that may well be 22 within the range. But there is a stage at which one 23 says, you know, Where do we -- 24 COMMISSIONER SIDNEY LINDEN: Mr. Falconer 25 acknowledged that that was the case in his submissions.
1761 MR. MARK SANDLER: Yes. 2 COMMISSIONER SIDNEY LINDEN: Yes, he did. 3 MR. MARK SANDLER: And -- and he did. So 4 all I'm suggesting to you is that I understand the 5 complexity and the breadth of the legal issues. They've 6 been argued as fully as they can be argued. 7 COMMISSIONER SIDNEY LINDEN: Yes. 8 MR. MARK SANDLER: But I'm not sure that 9 a more pragmatic practical solution isn't called for 10 here. 11 COMMISSIONER SIDNEY LINDEN: Well -- 12 MR. MARK SANDLER: And that's all I'm 13 suggesting. And -- and the issue could be revisited 14 depending upon how things develop. 15 But, my submission is -- it won't be 16 perfect, My Friend is right, there may be things in the 17 files that -- that he could look to that would fortify 18 his argument that the OPP had some failings or individual 19 officers had failings, but this respects the statutory 20 regime, respects the rights of all involved and does 21 allow some transparency in the process. 22 And -- and I suggest, respectfully, that 23 that makes sense. And -- and I have to say, when My 24 Friend also said, Mr. Falconer said to you, You know, 25 Look at what happened when the First Nations witnesses
1771 testified. I mean, They were asked, and I'm presuming 2 he's talking about their criminal records and so on, but 3 again Commission Counsel were very careful to draw some 4 lines there, I mean, criminal records that existed, not 5 charges against -- not charges against First Nations 6 individuals, those were all excluded. 7 COMMISSIONER SIDNEY LINDEN: Yes? 8 MR. MARK SANDLER: And -- and, this 9 information was coming from us so we were sensitive to it 10 and I think you'd be told that by your own Counsel. So, 11 withdrawals were excluded, unproven unsubstantiated 12 allegations, those were -- were not dealt with. Criminal 13 charges that occurred subsequent to the events -- 14 COMMISSIONER SIDNEY LINDEN: Yes. 15 MR. MARK SANDLER: -- those weren't 16 elicited from First Nations witnesses and it's 17 interesting that -- because we're going to see this 18 resurface in a variety of ways, that when an officer 19 testifies, Justice Ferguson, in his report talks about 20 what should be disclosable as a matter of course and -- 21 and he talks about the public aspects of a record of an 22 officer, in other words, a discipline -- a discipline 23 finding after a public hearing, a criminal conviction, 24 and so on. 25 And you'll see excluded, is the kind of
1781 stuff that we're talking about, in -- -- in -- informal 2 discipline or non-disciplinary discussions and the likes. 3 So, what we're trying to do is -- is put 4 some meat on these bones to assist you without -- without 5 running roughshod through the statutory regime. 6 COMMISSIONER SIDNEY LINDEN: 7 Notwithstanding the rather extensive legal arguments that 8 we've heard, I'm grateful that you're looking at it that 9 way; that might still be a possibility, so at least 10 you're mentioning it, that there's a possibility of 11 finding some way for us to proceed. 12 MR. MARK SANDLER: Well, I'm -- I'm 13 suggesting the possibility -- 14 COMMISSIONER SIDNEY LINDEN: Yes. 15 MR. MARK SANDLER: -- and -- and I've -- 16 and that's why I say I've -- I've tried to take the 17 position throughout that -- that questioning could be 18 directed in this area, but in a way that's respectful of 19 the rights that are involved and -- and for My Friends to 20 say -- and -- and Mr. Roy made this argument. 21 I understand it, I mean it -- it -- it 22 comes with what happens when you're -- when you're 23 conciliatory, perhaps -- 24 COMMISSIONER SIDNEY LINDEN: Yes. 25 MR. MARK SANDLER: -- but -- but My
1791 Friends kind of jumped on the fact -- 2 COMMISSIONER SIDNEY LINDEN: Yes. 3 MR. MARK SANDLER: -- that -- that I've 4 proposed this and said, Ah, Mr. Sandler concedes that 5 Section 80 -- 6 COMMISSIONER SIDNEY LINDEN: Yes. 7 MR. MARK SANDLER: -- doesn't protect 8 information. I've conceded no such thing. 9 COMMISSIONER SIDNEY LINDEN: Yes, I 10 understand that. 11 MR. MARK SANDLER: What I conceded is -- 12 is that one can waive -- one can waive in a way that 13 tries to deal with these issues -- 14 COMMISSIONER SIDNEY LINDEN: That's fine. 15 MR. MARK SANDLER: -- and -- and that's 16 what we're trying to do here. 17 COMMISSIONER SIDNEY LINDEN: Thank you, 18 Mr. Sandler. 19 MR. MARK SANDLER: Those are my 20 submissions. 21 COMMISSIONER SIDNEY LINDEN: Thank you 22 very much. 23 Yes, Mr. Roland...? 24 25 (BRIEF PAUSE)
1801 2 REPLY BY MR. IAN ROLAND: 3 MR. IAN ROLAND: Mr. Commissioner, My 4 Friends have, I think, covered most of the areas that I 5 was interested in covering, but there are a few that are 6 left. 7 One (1) is the issue of the -- Mr. 8 Falconer raises about waiver. And -- and, I simply put 9 to you and I'll leave with your Counsel the Ascoff 10 (phonetic) case which sets out for the Supreme Court of 11 Canada what's required before waiver can be found and I 12 say that the facts in this -- that are before you don't 13 come close to -- to meeting the test for a waiver. 14 COMMISSIONER SIDNEY LINDEN: Is that the 15 famous Ascoff case that I'm familiar with -- 16 MR. IAN ROLAND: That's the case. 17 COMMISSIONER SIDNEY LINDEN: -- in other 18 contexts? 19 MR. IAN ROLAND: Yes, exactly, but it 20 deals with waiver as well. 21 Let me, then, turn to the issue -- just 22 very briefly -- the issue between discover-ability and -- 23 discover-ability or producibility and admissibility and 24 you've heard from Mr. Sandler again in a reply. 25 I won't repeat any of that, but to make
1811 one (1) or two (2) additional observations, and it's 2 this. That in this context we're dealing with a summons 3 to admit evidence. There's no producibility or discover- 4 ability process that you have before you in this Inquiry. 5 In the criminal process you have the 6 Stitchcombe obligations of -- producing. No, you don't. 7 There's no -- you -- you -- you have -- you -- you 8 summons this evidence to be put before you at this 9 Inquiry; this is a summons for the Commissioner to attend 10 and to produce, in evidence, the documents. 11 COMMISSIONER SIDNEY LINDEN: I think in 12 this case we had another process in mind. 13 MR. DERRY MILLAR: Well -- well, the -- 14 we did it this way, but there is an absolute requirement 15 under the rules of the Inquiry for parties to produce 16 relevant documents and that is the obligation of the 17 Ontario Provincial Police to produce -- the Ontario 18 Provincial Police should have, perhaps, produced these 19 documents and then claimed the privilege so that we can 20 do it a different way, but the obligation to produce 21 documents is right there in the rules; has been there 22 since day 1 since the rules have been in place. 23 MR. IAN ROLAND: It's an interesting rule 24 and we all cooperate with the rule, but it's not a 25 legally binding rule. You don't have any statutory power
1821 to enforce that rule. You've no statutory power to 2 enforce the rule; your statutory power is your summons 3 power. 4 MR. DERRY MILLAR: Well, we can -- you 5 can enforce the rule by getting rid of a party. 6 COMMISSIONER SIDNEY LINDEN: Let's carry 7 on, we're going to get bogged down. 8 MR. IAN ROLAND: And so that 9 distinguishes, that distinguishes your -- the legislative 10 scheme, your statutory scheme from a civil scheme where 11 there's discovery obligations than from the criminal 12 scheme where Stitchcombe obligations. 13 COMMISSIONER SIDNEY LINDEN: And there's 14 also preliminary enquiries. 15 MR. IAN ROLAND: Sorry? 16 COMMISSIONER SIDNEY LINDEN: And there's 17 also preliminary hearings. 18 MR. IAN ROLAND: And preliminary 19 hearings, exactly. You don't have that in your statutory 20 scheme, and so the distinction really doesn't make it 21 make any sense in the context of this argument and in the 22 context of the fact that you're dealing with a summons to 23 admit evidence. 24 Let me just make a quick comment in 25 response to Mr. Roy's submission about the Lloyd case
1831 and -- 2 COMMISSIONER SIDNEY LINDEN: Just before 3 you move on, Mr. Roland, I -- 4 MR. IAN ROLAND: Yes? 5 COMMISSIONER SIDNEY LINDEN: I just want 6 to stop you there for a minute. Because of that that I 7 keep encouraging my Counsel and other Counsel to try to 8 resolve some of these potentially legalistic problems 9 before they surface and full bloom at the -- because of 10 the absence of any specific sort of pre-hearing 11 procedure, any formal -- I mean, that's the reason that I 12 encouraged it throughout and continue to encourage it -- 13 MR. IAN ROLAND: I -- 14 COMMISSIONER SIDNEY LINDEN: -- because - 15 MR. IAN ROLAND: -- and I don't criticise 16 that. 17 COMMISSIONER SIDNEY LINDEN: Yes. 18 MR. IAN ROLAND: I say that's entirely -- 19 that's entirely laudable and sensible in how to -- and 20 for all parties to co-operate. What I'm focussing on is 21 the distinction between your legal -- 22 COMMISSIONER SIDNEY LINDEN: Yes. 23 MR. IAN ROLAND: -- your statutory regime 24 and the regimes that My Friends have referred you both to 25 criminal and civil regimes where there's a clear
1841 distinction between discover ability -- 2 COMMISSIONER SIDNEY LINDEN: Yes. 3 MR. IAN ROLAND: -- and admissibility. 4 COMMISSIONER SIDNEY LINDEN: Where it is 5 an institutional distinction, as it were. 6 MR. IAN ROLAND: Exactly. Now, very 7 briefly in response to Mr. Roy's observation about the 8 Lloyd case, I ask you to simply observe that that case 9 was decided in the context where there was no Section 80, 10 it was decided only in the context of 69(9). 11 There was no Section 80 and, therefore, it 12 didn't inform the Court in that decision about the -- the 13 issue of what is secret or confidential. 14 COMMISSIONER SIDNEY LINDEN: Section -- 15 MR. IAN ROLAND: That is the regime has 16 changed with the introduction of Section 80. 17 COMMISSIONER SIDNEY LINDEN: In 2002. 18 MR. IAN ROLAND: Yeah, exactly. And that 19 case is a 2001 case. 20 Let me speak to Mr. Falconer's additional 21 submission that he made about Section 80(a) dealing with 22 the administration of the Act. 23 He makes some distinction or seeks to draw 24 some distinction between the administration of Part V and 25 the administration of the Act and my first observation
1851 is, we're talking about -- we're talking about the 2 administration, that is the -- the way in which the Act 3 is -- operates and which -- and how one carries out the 4 scheme of the Act in various ways. 5 The Act -- in connection with the 6 administration of the Act is language that is common to 7 other statutory schemes including the Regulated Health 8 Professions Act, where the same words appear. 9 And what you have in this Act apart from 10 Part V you have, as you will know, those provisions that 11 deal with the broader administration of police forces, 12 including the OPP, through the Ontario Civilian 13 Commission on Police Services, and particularly Sections 14 21, 25 and so on. 15 And those sections deal with the 16 administration of the Act and indeed deal with the very 17 subject matters that we're dealing -- that we're talking 18 about here, that is allegations of misconduct and so on 19 where the Ontario Civilian Commission on Police Services 20 may, itself, enquire into matters about police conduct. 21 And so what that -- what this refers to is 22 the administration of the Act, that kind of 23 administration beyond Part V where you're dealing with 24 the same subject matters, but under the administration of 25 the Ontario Civilian Commission on Police Services and
1861 their Inquiry process, which interestingly enough, have 2 the -- have the powers you have. 3 They have the powers of a Public Inquiry 4 to conduct their own inquiry. 5 Let me then finally respond to Mr. 6 Horner's suggestion or observation that in Forget and 7 Sutherland, he says that the -- the Court there said that 8 the purpose of Section, there, 36.3 had to do with 9 restricting parties involved in discipline proceedings 10 from building a civil case, and he said that's derived 11 from the Swartz Report (phonetic). 12 If you look at paragraph 36 of the 13 decision of Justice Laskin, he says: 14 "The Swartz report was focussed -- has 15 focussed on one (1) purpose of Section 16 36.3, to prevent patients from using 17 discipline proceedings to build a civil 18 case against health professionals. Had 19 that been the only intended purpose, I 20 think that the Legislator -- 21 Legislature would have appropriately 22 qualified the words of Section 36.3." 23 So, with great respect, Mr. Horner is 24 quite wrong. In fact, Mr. Justice Laskin recognized that 25 there were more purposes to Section 36.3 than that
1871 restricted purposes, and he so says. 2 Thank you. Those are my submissions in 3 reply. 4 COMMISSIONER SIDNEY LINDEN: Thank you 5 very much, Mr. Roland. 6 MR. JULIAN FALCONER: Mr. Commissioner, 7 I'm respectfully -- I did mention this to your Counsel -- 8 I'm respectfully requesting two (2) minutes to deal with 9 Mr. Sandler's partial waiver point. 10 This is new, it wasn't something I had an 11 opportunity to address in response, and I'd like two (2) 12 minutes, no more, to simply deal with the partial waiver 13 point that Mr. Sandler held out. 14 First, I want to emphasize that I 15 appreciate that Mr. Sandler, in a non-adversarial way, is 16 trying to arrive at an accommodation. 17 COMMISSIONER SIDNEY LINDEN: I think 18 that's what he's trying to do. 19 MR. JULIAN FALCONER: And that should be 20 acknowledged. I -- I accept that on behalf of my client. 21 Having said that, sometimes the hard decisions have to be 22 made. 23 The difficulty with the partial waiver 24 argument that Mr. Sandler is advancing is it presupposes 25 the existence of a privilege to waive. That is, Mr.
1881 Sandler's obligation to produce the documents is 2 undoubted if there is no privilege. 3 So when he says to you, I'm prepared to 4 partially waive, it's presupposing that you find, Mr. 5 Commissioner, not only is there a privilege against 6 filing the documents but there's actually a privilege 7 that bars the Commission getting access to them. And Mr. 8 Sandler offering this compromise is in anticipation of 9 your declaration of this complete privilege. 10 This is my -- you don't waive something 11 that doesn't exist. That's my point. 12 COMMISSIONER SIDNEY LINDEN: The offer to 13 approach that way came long before the motion, I believe. 14 But, in any event -- 15 MR. JULIAN FALCONER: Well, it certainly 16 didn't to me. But -- this is what I -- what matters, 17 with respect. What matters is from the point of view of 18 Aboriginal Legal Services of Toronto and, I respectfully 19 suggest, from the supporting other aboriginal interests - 20 - allowing the OPP to pick the information they think is 21 appropriate to share with the Commission is -- you see, 22 that's where a partial waiver takes you. That's -- 23 that's why I'm raising it. 24 If all of the information was produced to 25 your Counsel, that is the box is given to your Counsel
1891 for your Counsel to look at, and then we sit down -- 2 COMMISSIONER SIDNEY LINDEN: Yes. 3 MR. JULIAN FALCONER: -- to negotiate a 4 middle ground, then there's no claim of privilege, now 5 we're negotiating. But when the OPP says, I'll decide 6 how much of the box comes to you, that's when I have a 7 problem, that, notwithstanding the good faith nature of 8 the offer, unfortunately it is the OPP now doing the 9 investigation rather than the Commission. 10 COMMISSIONER SIDNEY LINDEN: I understand 11 that, Mr. Falconer. It's a good point and I do 12 understand the distinction. 13 MR. JULIAN FALCONER: I -- I appreciate 14 the -- the time. And -- and I'd only say this. At the 15 end of the day, either there is a privilege which bars 16 production to your Counsel or there isn't. And -- and 17 from my client's perspective, this is an important point 18 of law. 19 And even though a halfway house is often 20 attractive, this one needs a very clear line because 21 there's going to be other times -- this -- we're only 22 into one (1) witness, there's going to be other 23 misconduct issues down the road. 24 If -- if you impliedly find there's a 25 privilege for Mr. Sandler to partially waive, then that
1901 goes -- and I appreciate your time. I do. 2 COMMISSIONER SIDNEY LINDEN: We've had a 3 full argument, and I understand that. 4 MR. JULIAN FALCONER: And I appreciate 5 your time. Thank you. 6 COMMISSIONER SIDNEY LINDEN: Now, you see 7 what happens, now we need another one (1) minute response 8 to. Well -- 9 MR. JULIAN FALCONER: Well, I simply -- 10 COMMISSIONER SIDNEY LINDEN: -- anyways 11 this goes on ad infinitum. 12 Yes, Mr. Sandler, do you feel it's 13 something you must say that absolutely leaves the record 14 unclear unless you do? 15 MR. MARK SANDLER: I'm afraid so. But it 16 -- it will be so fast. I'll take a minute off my next 17 cross-examination to make up for it. 18 COMMISSIONER SIDNEY LINDEN: All right. 19 I'm trying to keep the rules here of an inquiry, not of a 20 trial. But carry on. 21 MR. MARK SANDLER: I understand. 22 COMMISSIONER SIDNEY LINDEN: Go ahead. 23 We'll give you one (1) minute and then we'll see if -- 24 MR. MARK SANDLER: Only point that I was 25 going to make is that the proposal I suggested does not
1911 presuppose that you already have to make a finding that 2 statutory privilege exists because -- because, as I've 3 indicated through the Stinchcombe regime, for example, 4 there's no finding that has to be made of -- of 5 privilege. If records are confidential, then a balancing 6 process exists. 7 I mean, it happened in the Ryan case we 8 cited that they talked about the common-law privilege, 9 but there's no privilege that has to be found as My 10 Friends have pointed out to balance consideration. 11 So, in the exercise of your discretion, 12 you can say balancing the relevant considerations that 13 exist here I -- I'm going to adopt a regime where, 14 basically, the Commissioners will be asked those 15 questions and -- and defer a finding or not ever have to 16 make a finding on whether -- 17 COMMISSIONER SIDNEY LINDEN: Well... 18 MR. MARK SANDLER: -- the statutory 19 privilege exists in any event. 20 COMMISSIONER SIDNEY LINDEN: Thank you 21 very much. 22 I'm calling it a halt. I've got to call a 23 halt. 24 MR. JULIAN FALCONER: Fair enough. 25 COMMISSIONER SIDNEY LINDEN: I mean,
1921 there has to be an element of finality and we've just had 2 it. So -- and, it has nothing to do with my having to 3 leave. I would give you more time if I thought it was 4 warranted or appropriate. 5 So, yes, Mr. Sandler? I'm sorry, yes, 6 Mr. Millar? I'm -- 7 MR. DERRY MILLAR: I was just going to 8 say we -- once we adjourn today we'll be adjourned to 9 10:30 on Monday, August 15th. 10 COMMISSIONER SIDNEY LINDEN: Yes. I'll 11 do my best, I'll do my best. I'm going to take some 12 vacation time in the next three (3) weeks, but I'll do my 13 best to have a decision on this matter when we come back 14 or as soon after we come back as is possible. 15 I want to thank you all for the arguments, 16 they were extremely learned and complete and helpful and 17 interesting. So, I want to thank all of Counsel. Thank 18 you very much. 19 THE REGISTRAR: This Public Inquiry is 20 adjourned until Monday, August 15th, at 10:30 a.m. 21 22 --- Upon adjourning at 1:26 p.m. 23 24 25
1931 2 3 Certified Correct 4 5 6 7 ____________________ 8 Dustin Warnock 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25