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 June 7th, 2005 25
21 Appearances 2 Derry Millar ) Commission Counsel 3 Susan Vella ) (np) 4 Donald Worme, Q. C ) (np) 5 Katherine Hensel ) (np) 6 Jodi-Lynn Waddilove ) (np) 7 8 Murray Klippenstein ) The Estate of Dudley 9 Vilko Zbogar ) George and George 10 Andrew Orkin ) (Np) Family Group 11 Basil Alexander ) Student-at-Law 12 13 Peter Rosenthal ) Aazhoodena and George 14 Jackie Esmonde ) Family Group 15 Anthony Ross ) Residents of 16 Kevin Scullion ) Aazhoodena (Army Camp) 17 18 William Henderson ) Kettle Point & Stony 19 Jonathon George ) Point First Nation 20 Colleen Johnson ) (np) 21 22 Kim Twohig ) Government of Ontario 23 Walter Myrka ) (np) 24 Susan Freeborn ) (np) 25 Michelle Pong ) (np)
31 APPEARANCES (cont'd) 2 Janet Clermont ) Municipality of 3 David Nash ) (np) Lambton Shores 4 5 Peter Downard ) (np) The Honourable Michael 6 Bill Hourigan ) 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 ) 13 Douglas Sulman, Q.C. ) Marcel Beaubien 14 Trevor Hinnegan ) (np) 15 16 Mark Sandler ) Ontario Provincial 17 Andrea Tuck-Jackson ) Ontario Provincial Police 18 Leslie Kaufman ) (np) 19 20 Ian Roland ) (np) Ontario Provincial 21 Karen Jones ) Police Association & 22 Debra Newell ) K. Deane 23 Ian McGilp ) (np) 24 Annie Leeks ) (np) 25 Jennifer Gleitman )
41 APPEARANCES (cont'd) 2 3 Julian Falconer ) Aboriginal Legal 4 Brian Eyolfson ) Services of Toronto 5 Julian Roy ) (np) 6 Clem Nabigon ) (np) 7 Adriel Weaver ) (np) Student-at-Law 8 9 Al J.C. O'Marra ) Office of the Chief 10 Robert Ash, Q.C. ) (np) Coroner 11 12 William Horton ) Chiefs of Ontario 13 Matthew Horner ) 14 Kathleen Lickers ) (Np) 15 16 Mark Frederick ) (np) Christopher Hodgson 17 Craig Mills ) (np) 18 Megan Mackey ) 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 3 Exhibits 6 4 5 JOHN FREDERICK CARSON, Resumed 6 Continued Cross-Examination by Mr. Murray Klippenstein 7 7 8 9 10 11 12 13 14 Certificate of Transcript 254 15 16 17 18 19 20 21 22 23 24 25
61 EXHIBITS 2 No. Description Page 3 P-472 Inquiry Document 3000759 entitled, 4 "A Briefing Note for the Ipperwash 5 Policy Forum, November 26th, 1991 6 issue: Protesters/ blockades/dissent" 154 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
71 --- Upon commencing at 9:01 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 7 JOHN FREDERICK CARSON, Resumed: 8 9 COMMISSIONER SIDNEY LINDEN: Good 10 morning, Deputy. 11 THE WITNESS: Good morning, sir. 12 COMMISSIONER SIDNEY LINDEN: Good 13 morning. 14 MR. MURRAY KLIPPENSTEIN Good morning, 15 Commissioner. If there's no housekeeping matters, I 16 suppose I'll just proceed. 17 18 CONTINUED CROSS-EXAMINATION BY MR. MURRAY KLIPPENSTEIN 19 Q: Good morning, Deputy Commissioner. 20 A: Good morning, sir. 21 Q: Yesterday, Deputy Commissioner 22 Carson, we spent some time towards the end of the day 23 discussing the situation at the Park on September 6th, 24 towards the time when you were finishing your shift and 25 getting ready to hand over the incident commander role to
81 Inspector Carson. 2 Do you recall that discussion? 3 A: Inspector Linton. 4 Q: Inspector Linton. 5 A: Yes. 6 Q: And we were discussing your 7 assessment of the situation at that point. Do you recall 8 some of that discussion? 9 A: Yes, of course, yes. 10 Q: I want to ask a bit more about that, 11 particularly because, obviously, I'm interested in to 12 what degree there might have been an expectation of the 13 sort of events that did, in fact, occur on the evening of 14 September 6th. 15 I believe you mentioned that you were in 16 general agreement with the observation of Chief Coles 17 that there didn't seem to be anything particular 18 happening and there wasn't really urgency, although you 19 preferred the term "status quo", I believe. 20 Is that -- that fair? 21 A: That's fair, yes. 22 Q: And I mentioned that I hadn't seen 23 any evidence in the notes of the scribe taken at the 24 command post that there'd been any particular special 25 efforts by you to prepare for major events after you'd
91 left, because you weren't expecting any. 2 Is that right? 3 A: I believe you'd find that there is no 4 such notation. 5 Q: Right, right. And can I take it then 6 as well that when you briefed Inspector Linton about your 7 shift and preparing him for his shift, it also follows 8 that you wouldn't have told Inspector Linton, you know, 9 watch out for this, watch out for that. 10 This might -- this is expected to bust out 11 or anything like that, I would imagine. 12 A: As I indicated yesterday, it was a 13 status quo, an optimism that it would be a night similar 14 to the night before and we would be hearing some time the 15 next morning on the status of the injunction application. 16 Q: And I take it it also follows that 17 the various checkpoints that you had put in place along 18 Army Camp Road and East Parkway had been observing and 19 had been checking traffic during that day the 6th. 20 And I guess they would feed back into 21 command post anything of major significance that they 22 would see during the course of the day; is that right? 23 A: Yes. If there was anything of any 24 unusual nature, either the personnel in the 25 communications portion of the command trailer or the
101 supervisors on scene would bring issues to our attention 2 if it was appropriate. 3 Q: And -- and I take it that there 4 hadn't been feedback from the checkpoints of what they'd 5 seen so it suggests that there was going to be anything 6 major happening on the evening of September 6th; is that 7 right? 8 A: Not before I left, no. 9 Q: Yeah. And I believe -- I anticipate 10 some evidence from some of the officers on the ground 11 that in fact one (1) of the checkpoints which was 12 checkpoint Alpha during the day on the 6th and I believe 13 on the 5th as well, had been located on -- at the 14 junction of Army Camp Road and East Parkway very close to 15 the entrance to Ipperwash Park. 16 Is that either your knowledge or does that 17 fit with what you know? 18 A: It -- it had been in that area. It - 19 - it had been moved back a bit. 20 Q: Right. Okay, I'll ask about -- about 21 the movement, but I anticipate there'll be evidence from 22 one (1) of the officers who was manning that checkpoint 23 for the 6th that they were located right at the junction. 24 And they could actually see the activity 25 of the protesters in the Park, is that fair?
111 A: That's where we had them initially, 2 correct. 3 Q: Right. And I believe the evidence 4 will be that in fact the checkpoint at -- at Alpha was 5 approximately thirty-five (35) metres from the entrance 6 fence to the Ipperwash Park so it was not that far away. 7 Is that -- 8 A: Now, are you talking on Parkway or on 9 Army Camp Road? I just want to make sure that which road 10 we're speaking of? 11 Q: My understanding of the anticipated 12 evidence is that it was right at the junction. 13 A: No. My understanding it would be 14 right -- initially there was one (1) checkpoint right -- 15 basically the threshold of the sandy parking lot right 16 where the last cottage is. 17 And the next one will be around the corner 18 and up Army Camp Road just at the last roadway. I 19 believe it's Silver Birch, I forget the actual street 20 name but it's a little subdivision there. 21 Q: Right. Okay, and the first one you 22 mentioned is the one I'm thinking of and I think we're 23 describing more or less the same thing. It was 24 approximately -- 25 A: But there was -- there was line of
121 sight there. 2 Q: Okay. Yes. 3 A: Yes. 4 Q: And was it more or less in front of 5 the last cottage on East Parkway Drive? 6 A: Right. 7 Q: Okay. And so it would have been on 8 East Parkway but basically right at the corner? 9 A: Yes. Just a few metres from the -- 10 from the turn. 11 Q: And there would have been a line of 12 sight from that checkpoint right into the Park; is that 13 right? 14 A: Yes. Oh yes. 15 Q: And so the officers would be manning 16 that checkpoint the whole day during daylight; is that 17 right? 18 A: Yes. 19 Q: And of course the reason I'm 20 interested in this is because I infer that there were 21 several officers there, basically within thirty (30) or 22 forty (40) metres of the Park observing in the Park. 23 And they had not made any observations or 24 reports back to the command post during the 6th that 25 triggered unusual concern in you about what might happen
131 on the evening. 2 A: We -- we were aware of the activities 3 that were occurring. Some of it had been videoed and we 4 had the helicopter there and I believe there was 5 documentation of Sergeant Wright and Sergeant Eve being 6 down at the fence line in that same area that you're 7 speaking of. 8 Q: And was that video of Sergeant Wright 9 taken from the checkpoint do you know? 10 A: I'm not sure if it was a video of 11 him, I know there was a photograph on the front page of 12 the local newspaper showing the two (2) of them at the 13 fence. 14 Q: Was that taken by a police 15 photographer, do you know? 16 A: No, it was the media. 17 Q: But I -- I anticipate there'll be 18 evidence that those officers who were manning checkpoint 19 Alpha right in front of the last cottage and close to the 20 Park entrance would observe Native protesters in the 21 Park, see -- watching them and also engaging in some 22 interaction which was sometimes a little bit rude, shall 23 we say. 24 Did that happen during the day? Is that 25 fair, do you know?
141 A: That's probably fair. 2 Q: Yeah. And I anticipate there'll be 3 evidence that the protesters inside the Park would be, we 4 discussed yesterday shining light on them with mirrors; 5 is that right? 6 A: That's what I understand, yes. 7 Q: And -- and giving them the finger and 8 things like that? 9 A: Yes, and rude comments, et cetera. 10 Q: Yeah. And, I anticipate there'll be 11 evidence that sometimes the protesters in the Park would 12 ride out in a -- in an ATV, a little four (4) wheeler, 13 take a turn around the road or whatever and return back 14 into the Park? 15 Do you know if that's -- is that 16 consistent with what you know? 17 A: On the roadway? 18 Q: Yeah. Or in the Park. 19 A: I wasn't aware of that -- 20 Q: Okay. 21 A: -- particularly not on Parkway Road. 22 Q: Okay. 23 A: I know there was some activity down 24 around the beach. 25 Q: On the -- when you say, "beach," you
151 mean the -- the beach on the waterfront that is within 2 the Park boundaries? 3 A: And outside. I think there was some 4 travelling back and forth by way of the beach, as -- as I 5 understand it. 6 Q: And what do you mean by that, 7 travelling back and forth; by whom or... 8 A: That -- that some of the access of 9 the occupiers was by way of the beach. 10 Q: So, they would drive cars along the 11 beach? 12 A: Yeah, or ATV's. I'm not sure if 13 there was actually cars driving on the beach at that 14 point. 15 Q: Okay. 16 A: I'm not sure if a car can drive the 17 beach in that area or not. 18 Q: Okay. There might be ATV's driving 19 along the beach to the Park? 20 A: Sure. 21 Q: And again, none of that activity 22 follows from what you said; caused you particular concern 23 for anything happening on the evening of the -- of the 24 6th? 25 A: No.
161 Q: Okay. And however, when the evening 2 came on the September the 6th, the checkpoint Alpha that 3 was at the corner right next to the Park was moved back 4 west away from the Park along East Parkway towards, 5 roughly, the MNR parking lot; is that fair? 6 A: No. It was moved back basically out 7 of sight of the -- of the Park, but there's a curve in 8 the road right there. It was just back out of line of 9 sight. 10 Q: Oh. But it was moved westward along 11 East Parkway -- Parkway towards the MNR parking lot? 12 A: A couple of cottages in distance, 13 like, maybe another hundred metres or so back. 14 Eventually, it was taken back to the MNR parking lot. 15 Q: Right. 16 A: There was two (2) -- two (2) steps 17 there. 18 Q: And what was the reason for that? I - 19 - I can anticipate that the evidence will be there was 20 concern about safety of the officers, because in the 21 darkness it's a little easier to throw stones at somebody 22 and things like that. 23 A: Correct. We didn't want to set up 24 another potential ambush that we felt occurred the 25 evening before.
171 Q: Right. Now, that moving back of -- 2 of checkpoint Alpha was -- occurred on the evening of the 3 5th and the 6th; is that right? 4 A: I -- I'd have to check the notes. 5 Q: Okay. 6 A: Off the top of my head, I'm not sure. 7 Q: All right. And do you know -- 8 A: Are you suggesting -- I don't know if 9 I have your question clear or not, are -- are you 10 suggesting we moved it back at night and moved it up in 11 the day time? 12 Q: Yes. Is that -- is that... 13 A: I -- I'm not aware. Once it was 14 moved back, it was -- it was kept back is my 15 understanding. 16 Q: All right. Well, we'll -- 17 A: I may be -- I may be in error on 18 that, but that's what my recollection... 19 Q: And despite that -- that ambiguity 20 then, in any case, on the evening of the 6th, it was 21 moved back -- 22 A: Yes. 23 Q: -- from very near the -- the corner? 24 A: My -- my memory, if I'm not mistaken 25 that, was after the activities on the evening of the 5th
181 that it was moved back and -- and -- and stayed there. 2 Q: That's not what I anticipate the 3 evidence will be, but in any case, whether or not it was 4 moved permanently on the 5th, it remains true as we've 5 just discussed I take it, that the observations from 6 checkpoint Alpha did not cause you concern for the 7 evening of the 6th? 8 A: That's fair, yes. 9 Q: And indeed, when you moved back 10 checkpoint Alpha west from the Park on the evening of the 11 6th -- first of all, do you know roughly what time that 12 would have been? Was that coincident with the shift 13 change of the officers at checkpoint Alpha at around 7:00 14 p.m.? Have I got that right? 15 A: Quite frankly, without going through 16 notes, I have no idea. 17 Q: Okay. But those officers at Alpha 18 checkpoint would have been rotating out on their shift at 19 7:00 p.m. just like everybody else, is that right? 20 A: Oh, yes, yeah. 21 Q: So there would have been a shift 22 change around 7:00 p.m.? 23 A: Right, but I don't align the shift 24 change with any -- with any relevance to a moving of a 25 checkpoint location.
191 Q: Okay. In any case, it was also true 2 that once Alpha checkpoint was moved back away from the 3 Park, by the way, do you know roughly how far that move 4 was? I think the MNR parking lot was .7 kilometres, you 5 said? 6 Just a few hundred metres or a 100 metres, 7 do you have roughly an idea? Not that it matters to me. 8 A: I would suggest that it was probably 9 a hundred (100), 150 metres or so. There's a bit of a 10 bend in the road there. It was just so that it was out 11 of line of sight from the corner. 12 Q: Okay, and when that move happened of 13 checkpoint Alpha on the evening of the 6th, the last 14 cottage, the one nearest the Park which was formerly very 15 close to checkpoint Alpha, was now more isolated; is that 16 fair? 17 A: Fair. 18 Q: And can I infer that that's also 19 probably consistent with what you've said about lack of 20 real concern about major events on the 6th, because 21 checkpoint Alpha was no longer within easy distance of 22 watching or protecting that last cottage if there was any 23 trouble. 24 Is that right? 25 A: I wouldn't agree with that. I think
201 you'll note that we moved ATVs up to the parking lot, the 2 MNR parking lot where the TOC site was. And officers 3 were deployed in ATVs on the beach area for that very 4 purpose, to be monitoring that particular area. 5 Q: All right, I'll ask more about those 6 ATVs, but the checkpoint Alpha, now is farther -- 7 significantly farther away from that last cottage; is 8 that right? 9 A: Yes, oh, yes. 10 Q: And at that point, that last cottage 11 was, in fact, occupied; is that right? 12 A: I believe so. 13 Q: Yeah. I believe I've seen records 14 and anticipate the evidence that will be that there was 15 at least one (1) woman and her child, her grandchild, at 16 the cottage that evening; is that right? 17 A: That's my understanding or something 18 to that effect, anyway. 19 Q: Right. 20 A: There was someone in there. 21 Q: And I don't anticipate any evidence 22 that she was contacted and warned that something would 23 happen or might happen on the 6th; is that fair? 24 A: I know there were efforts to contact 25 cottagers. Whether that particular one (1) actually made
211 contact or not, but I know there were efforts to try to 2 notify the cottagers along the -- that strip of the road 3 and Parkway. 4 Q: And do you know what time that -- or 5 those attempts were made? 6 A: It would be in the early evening, 7 9:00, 10:00-ish. 8 Q: 9:00. So that was after, for 9 example, the CMU had been mobilized? 10 A: It would be while that was under way. 11 Q: Right. So by the time you left your 12 shift, which was somewhat after 7:10, I think, there'd 13 been to your knowledge, no efforts made to contact that 14 last cottager about anything because, as we've just 15 discussed, you didn't anticipate any problems? 16 A: Right. 17 Q: Okay. 18 A: Right. 19 Q: And the ATVs that you mentioned were 20 doing what? 21 A: They were patrolling the beach area. 22 Q: And when you say "patrolling the 23 beach area", driving right along the beach including in 24 front of the Ipperwash Park itself? 25 A: Not in front of the Park, no. It
221 would be the area up to where the last cottage was and 2 the parking lot, but certainly not in the Park. 3 Q: Okay. And you consider the beach in 4 front of the Park to be part of the Park? 5 A: Absolutely. 6 Q: So those ATVs, are we talking about 7 two (2) of them? 8 A: Yes. 9 Q: Okay. And which officers do you 10 recall were on those vehicles on the evening of the 6th? 11 A: I would have no idea whatsoever. 12 Q: Right. 13 A: I mean -- that -- they were deployed 14 for the ERT team supervisors to assign people to that. 15 Q: Okay. 16 A: And that would be the supervisor's 17 responsibility to assign people who knew how to operate 18 them. 19 Q: Okay. Is that a bit of a plum job? 20 Is that kind of fun to run around on those things? 21 A: Matter of perspective, I suppose. 22 Q: Tearing up and down the beach on 23 those, I don't know. 24 In any case, so those officers on the ATVs 25 would drive along the beach which extended westward
231 outside the Park; is that right? 2 A: Yes. 3 Q: And would they also come up the 4 access road through the sandy parking lot to the corner - 5 - to the paved corner; is that as well? 6 A: I don't if they did that or not. 7 Q: Okay. In any rate they were down on 8 the beach and were expected to observe the sandy parking 9 lot; is that right? 10 A: The -- the general area, yes, the 11 parking lot included, sure. 12 Q: Okay. Did those officers have a code 13 name? Were they Oscar or something, do you know? 14 A: Not that I'm aware of. 15 Q: Okay. 16 A: An Oscar team is normally a two (2) 17 person unit that would be put in an observation point. 18 Usually a -- a stationery position. 19 Q: Okay. 20 A: And usually they do it from a 21 position of preferably invisible deployment. 22 Q: Visible? 23 A: Invisible deployment. 24 Q: Invisible, yes, okay. And I take it 25 that, to your knowledge, there were no reports from those
241 ATV officers before your shift ended of any events along 2 the sandy parking lot area, at least none that caused you 3 concern about the evening. 4 A: Nothing was reported to me that 5 caused any concern. 6 Q: And you mentioned or I raised the 7 issue the topic of an Oscar team. And was there an Oscar 8 team down around the sandy parking lot or the last 9 cottage in the late afternoon of September 6th before you 10 left the shift? 11 A: Quite frankly, I couldn't tell you 12 when the team was deployed there but at some point in the 13 late afternoon there was an Oscar team assigned in near 14 those cottages. 15 Q: And could that have been, in fact it 16 probably was, after you left the shift; is that fair? 17 A: Probably, but that's a guess on my 18 part. 19 Q: Right. Again, whether or not it was 20 while you were finishing your shift, that was not a sign 21 that you had any major concerns about possible trouble on 22 the evening of the 6th? 23 A: No, as the dark hours approached, I - 24 - I would expect that the supervisors at the site would 25 appoint people to have a position of observation using
251 night vision equipment or a static observation to cover, 2 you know, as many angles as they can from just -- just a 3 normal operation. 4 Q: And I would like to ask about other 5 sources of intelligence information if I can use that 6 term, that you or the command post would have been 7 receiving on the evening of the 6th before you left the 8 command post at the end of your shift. 9 Can I take it that you did not -- that at 10 that point when you left your shift, you were not aware 11 of any intelligence information from inside the First 12 Nation or the occupier or protesters group that suggested 13 they had any plans to do anything of significant outside 14 the Park on the evening of September 6th? 15 You didn't have any inside information 16 that at that point that there were plans; is that right? 17 A: I'm not sure I can agree totally with 18 you. Again, it depends on the perspective. There had 19 been a helicopter up over the Park and clearly there was 20 some efforts made to block entrance ways and basically 21 create a bit of a bunker approach to the access points to 22 the Park. 23 So what the intentions were, relative to 24 that, I guess would be speculation but clearly some 25 significant effort had been taking place within the Park
261 itself. 2 Q: Can you be -- be more specific? You 3 used the word "bunker." 4 A: Well, there had been trees felled 5 across I believe it was Matheson Drive and there was 6 dumpsters moved into position. And there was, if I'm not 7 mistaken, a back hoe and a dump truck in there and there 8 was some movement of earth or sand in -- 9 Q: Where was -- where was the movement 10 of the sand? 11 A: I believe it was relative to some of 12 the access points. 13 Q: And the dumpster, I anticipate there 14 will be evidence and including observations from the 15 checkpoints that it was pushed so as to block an entrance 16 way into the Park; is that -- 17 A: One (1) of the gateways. 18 Q: Yeah. 19 A: Correct. 20 Q: So -- what you've described suggests 21 to me that these are things that were put in place by the 22 occupiers to inhibit entrance into the Park; right? 23 A: Correct. 24 Q: Which would, in fact, suggest or -- 25 suggest an inference away from the occupiers planning to
271 leave the Park on the evening of the 6th; is that right? 2 A: It could be taken as very defensive 3 in nature, yes. 4 Q: Right. And even with all those 5 things you mentioned, whatever -- whatever you made of 6 them at the time, you did not conclude that this was a 7 precursor for some kind of action to move out of the Park 8 on the evening of September 6th in any kind of concerted 9 way? 10 A: That's fair. 11 Q: So, you didn't take any, as we 12 discussed, any actions or plans on the evening of 13 September 6th or anything like that? 14 A: No. 15 Q: Yeah. And what about since then, in 16 the years since then? Have you come across any 17 intelligence from officers or the OPP or -- or civilians 18 or First Nations protesters that there was an -- an 19 intention or a plan on the evening of September 6th for 20 the occupiers to move out of the Park on the evening of 21 September 6th? 22 Have you -- have you come across any such 23 information since then? 24 A: Specific to that day? 25 Q: Yeah.
281 A: There -- there was certainly 2 information that the -- the -- the area between -- I 3 mean, that whole area between Ipperwash Park and Kettle 4 Point was, for lack of a better term, a target and that 5 the cottages were certainly part of the overall land 6 claim. 7 And I think if you go back in any of the - 8 - the documents in August of '95, the occurrence logs, 9 there's all kinds of commentary through there that the 10 Park and the cottages, that whole area. 11 So, there was certainly common commentary 12 from occupiers that that was the intention. Was there 13 information that said, You should beware of September the 14 6th as the day it would occur; no, I didn't have that 15 kind of information. 16 Q: Right. So again, you didn't have any 17 intelligence from inside the -- the protesters or any 18 other kind of intelligence on the afternoon and evening 19 of September 6th at the time. 20 Nor have you become of any since then that 21 suggested a First Nation action moving out of the Park on 22 the 6th? 23 A: Fair enough. 24 Q: Nor, in the afternoon of the 6th or 25 the evening of the 6th, was there any attempt to place
291 any solid objects in the parking lot by the protesters, 2 similar to the picnic tables that had been placed there 3 during the night or -- of the 5th or the early morning of 4 the 6th, is that fair? 5 A: Nothing since the picnic table 6 incident, no. 7 Q: Right. I guess all the picnic tables 8 were gone now, eh? 9 A: Well, twenty-one (21) of them. 10 Q: So, altogether, is it fair to say 11 based on -- on all these factors I've pointed to, that 12 when you left your shift just after 7:00 p.m. on the 6th, 13 you basically had no indication and no concern that there 14 would be any significant or major incursion from the 15 First Nation protestors out of the Park into the parking 16 lot? 17 A: I left for the evening with no 18 expectation of coming back til seven o'clock the next 19 morning. 20 21 (BRIEF PAUSE) 22 23 Q: And is it fair to say that there had 24 been no significant or major event in the parking lot 25 area since the removal of the picnic tables on the
301 morning of the 6th, other than the kind of -- I'd call 2 them rude or defiant gestures that were happening in that 3 area; is that fair? 4 A: That's fair. 5 6 (BRIEF PAUSE) 7 8 Q: If you could retrieve the binder of 9 materials we provided to you yesterday, do you have that 10 available? 11 A: Yes, I do. 12 13 (BRIEF PAUSE) 14 15 Q: Let me just -- a moment's indulgence 16 where I identify the... 17 18 (BRIEF PAUSE) 19 20 Q: I'd like to ask you some questions 21 about the recording of the telephone call between 22 yourself and Ron Fox on the afternoon of the 6th of 23 September. I now realize that was not included in the 24 materials I gave you yesterday, but we have it in the 25 materials provided to you in a binder today.
311 And, Commissioner, we've provided another 2 collection of materials to yourself and the Registrar and 3 My Friend, Mr. Millar, and Deputy Commissioner Carson, of 4 additional materials. There may be a little bit of 5 overlap and, again, subject to what My Friends say, I 6 will perhaps ask that they be made exhibits while -- 7 while we use them. 8 9 (BRIEF PAUSE) 10 11 Q: And the -- the phone call I'd like 12 you to refer to is, thanks to My Friend, Exhibit P- 13 444(a), I believe, Tab 37. 14 And in the materials I've given you it is 15 Tab 20, so whichever is more convenient for you. 16 COMMISSIONER SIDNEY LINDEN: That's fine. 17 18 (BRIEF PAUSE) 19 20 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 21 Q: And if you could turn, please, to the 22 first page of that phone call, and this is the phone call 23 that occurred on September 6th, 1995 at about 14:00 hours 24 or two o'clock, is that right? 25 A: Correct.
321 Q: And it's -- we've reviewed it with 2 Mr. Millar and -- I think a couple of times. And a part 3 of this phone conversation between yourself and Inspector 4 Fox deals with a request from Mr. McCabe who's a lawyer 5 with the Attorney General's office that someone from the 6 OPP assist with the injunction by providing evidence? 7 A: Correct. 8 Q: Is that right? 9 A: That's right. 10 Q: And you, of course, had been 11 discussing with MNR for quite some time that they would 12 be required, in your view, to obtain an injunction from 13 the Court that ordered the occupiers to leave the Park, 14 which would assist the OPP by making it clear from the 15 Court Order that they were there against the law; is that 16 right? 17 A: Right. 18 Q: And I think you mentioned yesterday 19 that there had never been any discussion that the police 20 or the OPP would provide any Affidavits or witnesses to 21 assist in that; is that right? 22 A: Correct. 23 Q: And then we find, and I wonder if My 24 Friend could put that up on the screen? That's 25 transcript 444(A), Tab 51 I believe.
331 THE REGISTRAR: Thirty-seven (37). 2 3 (BRIEF PAUSE) 4 5 CONTINUED BY MR. MURRAY KLIPPENSTEIN 6 Q: That's not usually possible at this 7 moment and that's fine. I'll just work with you in the 8 transcript on that. 9 If you could go to the middle of page 260, 10 at least that's the number on my copy, which at the top, 11 has Mr. Fox saying, "Of course, you know..." Do you see 12 that? 13 A: Yes. 14 Q: And if you go down to the middle of 15 the page, Inspector Fox says in one (1) of the larger 16 paragraphs there in the second sentence, quote: 17 "What -- what he's looking for is, of 18 course, they have the affiance [I 19 believe that's been corrected] all 20 lined up from the MNR who are going to 21 say it's their property and here's the 22 deed and you know all the rest." 23 And you say, "Sure." 24 And Inspector Fox says: 25 "But they need somebody from police
341 perspective." 2 And you say, "Okay." 3 Now, am I correct in understanding that 4 you understood Inspector Fox to be conveying to you that 5 they had, "they" being MNR, had most of their evidence 6 lined up for the injunction application, but they were 7 now requesting some further evidence from the police? 8 A: That's fair. 9 Q: Right. And I noticed that Inspector 10 Fox -- well, first of all, he uses the word, "they," and 11 am I correct in believing that the understanding you had 12 at the time was that Inspector Fox was passing on a 13 request from somebody else, specifically Mr. McCabe? 14 A: Yes. I believe right at the front 15 end he introduce -- yeah, he introduces McCabe at the 16 front end of the conversation. 17 Q: Right. Right. And then, Fox says: 18 "But they need somebody from police 19 perspective." 20 The word, "need," I find interesting. He 21 wasn't saying we'd like to have an ornamental officer 22 there to fill in a few details, they -- they did seem to 23 really want somebody from a police perspective; is that 24 fair? 25 A: That was his terminology.
351 Q: Yeah. Yeah. And at that point, 2 well, I shouldn't say at that point, initially during the 3 course of this conversation you considered yourself to be 4 the one who would likely do it; is that right? 5 A: No, not exactly. I believe the way 6 the discussion goes is that Ron Fox suggested I would be 7 the best one. And there was some discussion, or I think 8 I pointed out, that that would -- that -- that would be 9 fine subject to Chief Superintendent Coles' approval. 10 But of course, given that we had the events underway as 11 we did, he may or may not agree that I could leave the 12 area for that period of time. 13 So, I mean, I certainly was one (1) of the 14 most likely candidates to give that evidence, yes. 15 Q: Yeah. And in the course of that 16 conversation they are requesting -- I say, "they" being 17 the people who are requesting through Fox that you give a 18 viva voce or oral evidence rather than affidavit 19 evidence, right? 20 A: That's right. 21 Q: And the time lines seem to be pretty 22 short because they mention they may be in Court as early 23 as that very evening; right? 24 A: Yes. 25 Q: And if you go back to page 259, which
361 is the second page of the transcripts, after introducing 2 the name of Mr. McCabe, Inspector Fox says, quote: 3 "They are making moves." 4 Do you see that? 5 A: Yes. 6 Q: "They are making moves towards 7 getting an ex parte injunction, in 8 other words, one that doesn't have to 9 be served." 10 And you say, "Okay." 11 And Inspector Fox says: 12 "What they have to do is show emergent 13 circumstances." 14 And you say, "Right." 15 And Inspector Fox says: 16 "And, the extigencies [I think that's 17 been corrected to] "exigencies" of the 18 -- of the situation are kind of 19 increasing [and that word has been 20 corrected to] exponentially." 21 Is that right? 22 A: Fair, yes. 23 Q: Okay. So, what Inspector Fox appears 24 to be conveying to you -- and tell me if this was your 25 understanding -- is that they, meaning the MNR, has to
371 show to the Court that there are, what he calls, emergent 2 circumstances and also that the exigencies of the 3 situation are kind of increasing exponentially. 4 That's what he's saying to you they need 5 to show; is that right? 6 A: Yes. 7 Q: And is that the way you understood 8 it, as well? 9 A: Yeah, that makes sense. 10 Q: And so that would be, if you will, 11 the test of whether or not they're likely to successfully 12 obtain the ex parte injunction that he's referring to 13 here; is that fair? 14 A: My test? 15 Q: No. I -- I -- I think I said the 16 test or in other words, that is, since he says "what they 17 have to do is show this"? 18 A: That's what he was explaining to me, 19 yeah. 20 Q: Right. 21 A: But quite frankly, and I think I've 22 indicated earlier that when it came to the process for 23 these injunctions, I was probably quite naive on the 24 processes. I basically understood there was a -- the 25 ability to get an emergency one and one that took a
381 longer period of time. 2 The mechanics and legalities of it 3 certainly was not my forte. 4 Q: Yeah, I was going to ask about that 5 and I think you mentioned you were a little bit naive 6 about that. I don't mean that negatively, but -- 7 A: No. I just had -- 8 Q: Inspector Fox -- 9 A: I had no experience in that area. 10 Q: Pardon me? 11 A: I had no experience in that area. 12 Q: No. Inspector Fox, does he have 13 legal training. I'm not sure you -- 14 A: No. 15 Q: No? 16 A: No. 17 Q: So he was passing on a request from 18 Mr. McCabe; is that right? 19 A: Yes, I think -- 20 Q: Who's a lawyer, of course. 21 A: Yes, and I think he indicated that he 22 had had some experience in potentially some strike 23 situations in the past that he was relying on his 24 experience. 25 Q: Right. But what Inspector Fox was
391 passing on to you was what they needed to show in order 2 to obtain the injunction and, although as you say you 3 were a little bit naive, you -- is it fair to say you 4 kind of got -- you got the drift of what -- 5 A: Oh, yes. 6 Q: Yeah. 7 A: Oh, for sure. 8 Q: Yeah, and -- and then Inspector Fox, 9 in the transcript, changes the topic, if you will, talks 10 about the -- the issue of the machine gun fire that was 11 allegedly heard. Is that correct? 12 A: Yes. 13 Q: And -- and then he continues through 14 various other topics. And at the bottom of page 260, 15 same page where the transcript says Inspector Fox says 16 that they need somebody from the police perspective. 17 At the very last paragraph, Inspector Fox 18 states, quote: 19 "Now what the course the political 20 people are really pushing and that's 21 another story, and I'll just fill you 22 in so you know about that." 23 And you say "Okay", and Inspector Fox 24 says: 25 "But I mean they're pushing to get this
401 done quick." 2 And -- and you say: 3 "Yes, yes, okay, I hear you." 4 And am I correct in concluding that you 5 understood Inspector Fox to mean that it was the 6 injunction that the people he's referring to wanted to 7 have done quick? 8 A: That's my understanding, yes. 9 Q: Right. 10 A: My belief, yes. 11 Q: All right. And then, again there's 12 further discussion of other matters. And then at page 13 267 at the bottom Inspector Fox makes a reference to 14 tough sledding and then he says, quote: 15 "I guess the upshot is what Larry 16 McKeard (phonetic), Tim McCabe is 17 asking me he said, is in your opinion, 18 can we say with certainty to a Court 19 that there is a need for an emergent 20 Order that makes it an ex parte Order?" 21 And I take it you understood that to be 22 the reference back to the initial comments a little bit 23 earlier in the conversation about the injunction; is that 24 right? 25 A: Correct.
411 Q: And Inspector Fox is saying, "McCabe 2 is asking me, he said in your opinion", so that appears 3 to me, and tell me if this was your understanding, that 4 Inspector Fox was saying roughly, Mr. McCabe wants me to 5 ask you what you think of this; is that what your 6 understanding was? 7 A: No. No. I would suggest that what 8 he's saying there, he's -- he's reiterating the 9 conversation he had and he's parroting the fact that 10 McCabe asked Fox his opinion; Fox's opinion, not my 11 opinion. 12 Q: All right. So that's how you -- do 13 you know if that's how you understood that at that point 14 and during this conversation? Or maybe it -- it wasn't a 15 big issue in your mind at that point? 16 A: It was -- it was a non-issue in my -- 17 my view. 18 Q: Okay. In other words, exactly what 19 McCabe was asking of "who," wasn't the issue at this 20 point? 21 A: Yeah. My -- my only concern at that 22 point was that we get on with the injunction process and 23 whatever we can do to help facilitate that, fine. And if 24 they wanted someone to participate providing some vive 25 voce evidence that assisted, that was fine.
421 I was just -- what we're trying to find 2 out here is exactly what we have to do to get -- get this 3 process complete. 4 Q: Right. And just by way of a 5 correction, I notice thanks to Mr. Millar's pointing out 6 that the word "McCure" (phonetic) was taken out of the 7 transcript as a correction. 8 A: Yes, yes. 9 Q: And then continuing with that 10 conversation, when Mr. Fox has asked you this, namely in 11 your opinion can we say with certainty to a Court that 12 there was a need for an emergent order that makes it an 13 ex parte order, you say, Well I think we can, correct. 14 A: Yes. 15 Q: So is it fair to say that despite 16 what we just discussed about Mr. McCabe, it's clear that 17 Inspector Fox was asking you your opinion on that issue, 18 at this point? 19 A: Yes. 20 Q: And then Inspector Fox says, yes. 21 And then you say, again, I think we can; right? 22 A: Yes. 23 Q: And Inspector Fox says: 24 "Are you going to base that, John, on 25 the progression of event."
431 I think that should be events. And you 2 say, 3 "That's right." 4 Is that correct? 5 A: Yes. 6 Q: And so am I correct in understanding, 7 from this part of the transcript, that Inspector Fox was 8 asking you whether you could, in your opinion, say to a 9 Court that there's a need for an ex parte order. And 10 you're applying that you think you can say that to a 11 Court; is that right? 12 A: Yes. I'll agree. 13 Q: And now I know you've -- you've 14 described how the issues about an injunction and an ex 15 parte injunction and those things were not your area of 16 professional expertise, shall we say? 17 A: That's fair. 18 Q: And in fact, something you probably 19 didn't know a whole lot about at all, is that fair? 20 A: I had no experience with a Court 21 injunction prior to this. 22 Q: Right. And so although you had not 23 all that much knowledge about what was involved in you 24 testifying in support of an ex parte order, you were 25 saying, We will do -- I can support you, Inspector Fox
441 and them in what you've just asked me to do. Is that 2 right? 3 A: That's fair, yes. 4 Q: And if I go back to the earlier part 5 of the transcript on page 259 when we looked at what -- 6 at how Inspector Fox was describing what MNR needs to 7 show to get an ex parte injunction, I recall -- I -- I 8 see as we looked at earlier, that Inspector Fox says: 9 "One (1) thing that they have to show 10 is that the exigencies of the situation 11 are kind of increasing exponentially." 12 Right? 13 A: Yes. 14 Q: So was it your understanding at the 15 time that you were telling Inspector Fox that you could 16 testify to the Court that the exigencies of the situation 17 are kind of increasing exponentially? 18 A: I'm not sure I would use the word 19 "exponentially," but they were certainly increasing. 20 Q: Now, it's -- it's clear though, is it 21 not, that Inspector Fox was asking you whether you could 22 testify that, to use his words, the exigencies of the 23 situation are kind of increasing exponentially? 24 Right, that's what he was asking you? 25 A: Right.
451 Q: And the net effect of it was your 2 answer was yes, you can testify to that; right? 3 A: I was prepared to give evidence. 4 Q: Right. 5 A: Yes. 6 Q: And what Inspector Fox, and I won't 7 ask what was in his mind, but what he could have 8 reasonably have taken away from this conversation was 9 that he asked you whether you can testify that the 10 exigencies of the situation are kind of increasing 11 exponentially, and you'd said yes. 12 A: Right. 13 Q: Right. 14 15 (BRIEF PAUSE) 16 17 Q: And -- and then if I could go towards 18 the end of the conversation you had with Fox, which is at 19 page 268 of the transcript, or at least that's the page 20 number, that's approximately where your conversation with 21 Inspector Fox ends, shortly thereafter. 22 Is that right? 23 A: Yes. 24 Q: And you -- Inspector Fox talks about 25 giving evidence in person and then Inspector Fox says:
461 "Ah, so that's in -- in a nutshell." 2 And you say, "Good", and Inspector Fox 3 says: 4 "I'll call him back." 5 Now, am I correct in interpreting that, or 6 let me rephrase that, did you understand that at the time 7 to mean Inspector Fox had now been able to get your views 8 on the question that Mr. McCabe had in his mind. And so 9 Inspector Fox was now going to call him, being McCabe, 10 back. 11 Do you know if that was -- 12 A: I -- I think the understanding was 13 he's going to call Mr. McCabe back and give him the 14 information as -- as he had it, I suspect, but also to 15 give me a call direct. 16 Q: Right. But the gist of it was that 17 now Inspector Fox would turn around and relay back to Mr. 18 McCabe the key parts of this conversation? 19 A: Well, I think the -- the -- the major 20 intent of this call was to introduce McCabe's name to me 21 so that, a) I would accept a phone call, should it 22 arrive, and b) to see if I was amenable to giving viva 23 voce evidence. 24 And as I indicated in the conversation 25 that, you know, with the approval of the chief that I was
471 prepared to do that. And I'm not sure if I said in this 2 particular conversation or if it's a further conversation 3 that maybe myself or someone in my stead. 4 Q: Right. And is it fair, or I suppose 5 we'll ask Inspector Fox if we need to later on, but it 6 was your understanding based on what you've just said 7 that Inspector Fox was going to go back to Mr. McCabe 8 now. 9 A: That's my understanding. 10 Q: Right. 11 A: Yes. 12 Q: And the gist of his message would be 13 that Inspector Carson's willing to testify? 14 A: Correct. 15 Q: And am I correct in interpreting -- 16 did you interpret that that, essentially, was the main 17 purpose of this call was -- was, Inspector Carson, he was 18 calling you to see whether Mr. McCabe could plan on 19 having your evidence in support; is that fair? 20 A: Yes, absolutely, sure. 21 Q: And let me go back to the phrase that 22 Inspector Fox used on page 259 when he was describing to 23 you what "they," meaning the MNR, have to show to the 24 Court. 25 And you recall we looked at the phrase
481 used by Inspector Fox, quote, "the exigencies of the 2 situation are kind of increasing exponentially." Close 3 quote; correct? 4 A: Yes. 5 Q: Now, I'd like to focus on the words, 6 "increasing exponentially". 7 Would you agree with me that that's 8 roughly equivalent to saying "rapidly escalating"? 9 A: Sure. 10 Q: And so you would have understood 11 Inspector Fox to say -- to be asking you or to be telling 12 you that what MNR has to show is that the exigencies of 13 the situation, whatever that is, are kind of rapidly 14 escalating, is that right? 15 A: Right. 16 Q: Now can you tell me whether you 17 considered at the time of this phone call, well first of 18 all let me -- let me just ask a few questions about the 19 context of this phone call. 20 You took this phone call in the command 21 post, is that right? 22 A: That's right. 23 Q: And you were in a meeting with Chief 24 Coles and Superintendent Parkin, is that right? 25 A: That's right.
491 Q: Who are fairly important people, I 2 take it, at that time? 3 A: They're my -- I report directly to 4 them so, yes, they have quite an influence on my 5 business. 6 Q: On your mental health? And so you 7 were interrupted at a meeting with your two (2) immediate 8 superiors by this phone call; is that right? 9 A: Correct. 10 Q: And this meeting you were having was 11 also an aside from your real job which was running 12 everything else pertaining to the incident; is that 13 right? 14 A: That's exactly right. 15 Q: So you were kind of triple layered at 16 this point; is that right? 17 A: Yes. 18 Q: Yeah. And I take it you didn't have 19 a lot of time to ask a lot of details about what was 20 being asked of you; is that fair? 21 A: I was trying to move through things 22 as quickly as possible. 23 Q: Right. And you were trying to be 24 helpful to -- well first of all, helpful to Inspector Fox 25 who you had known over the years and you trusted to a
501 fair degree; is that fair? 2 A: That's fair. And -- and the issue of 3 the injunction was important to me. 4 Q: Right. And so you were trying to be 5 helpful to MNR because -- helpful to MNR on the issue of 6 obtaining the injunction because that was an important 7 part of your overall understanding of how the incident 8 should unroll? 9 A: Right. 10 Q: Now did you consider, at that time, 11 what the affects might be of Inspector Fox going back to 12 Mr. McCabe and saying, Yes, I've spoken with Inspector 13 Carson and he will testify that the exigencies of the 14 situation are kind of increasing exponentially; that is 15 rapidly escalating. 16 Did you give any thought to that scenario? 17 A: No. 18 Q: Okay. 19 A: I guess just to that point I -- I 20 would assume when Mr. McCabe phones me as a learned 21 lawyer, he would determine the facts as I knew them, as 22 it applied to the process that's underway and he would 23 guide me accordingly. 24 Q: But is it fair to -- for us now to 25 conclude that you didn't probably think about it in any
511 great detail at this point. But you sort of assumed that 2 what you had just said to Inspector Fox was going back to 3 McCabe, and that Mr. McCabe would now begin planning on 4 your participation as well; is that right? 5 A: I think that's a -- not necessarily a 6 fair assessment of that. I mean, Fox was trying to 7 determine the facts to provide to McCabe as best I knew 8 them. And McCabe would call me and we would have a 9 discussion about the potential of myself giving the 10 evidence the next day. 11 So, you know, there was still some work to 12 do and I think it was certainly what I would expect from 13 Mr. McCabe to make a contact with myself and discuss 14 whether the facts supported the injunction as -- as he 15 needed or maybe not. 16 But clearly, you know, he was attempting 17 to move forward with an emergent injunction. 18 Q: And it was clear that he was as you 19 say, it was clear to you at this point that Mr. McCabe 20 was trying to move forward with an emergent, ex parte 21 injunction; is that right? 22 A: That -- that's my understanding, yes. 23 Q: Yeah. 24 25 (BRIEF PAUSE)
521 2 Q: Now, during this conversation, as 3 we've just seen, Inspector Fox, near the beginning of the 4 conversation talks about, as we've just seen, that 5 they're making moves toward an ex parte injunction, which 6 is one that doesn't have to be served. And what they 7 have to show, which is emergent circumstances and that 8 the exigencies of the situation are kind of increasing 9 exponentially, or rapidly escalating. 10 And then, for whatever reason, Inspector 11 Fox moves onto other topics for a while, but then he 12 mentions that the political people are really pushing, 13 and that they're really pushing to get this done quick; 14 right? 15 A: Yes. 16 Q: That's the way the conversation 17 unrolled? 18 A: Right. 19 Q: And then eventually, Inspector Fox 20 gets around to actually asking you the question, when he 21 says: 22 "I guess the upshot is Tim McCabe is 23 asking me, in your opinion, can we say 24 with certainty to a Court that there's 25 a need for an emergent order that makes
531 it ex parte?" 2 So, the actual question occurs a little 3 bit later in the conversation, right? 4 A: Yes. 5 Q: And, that's where you say: 6 "Well, I think we can [and then you 7 repeat] I think we can." 8 Right? 9 A: Correct. 10 Q: So, I'm not drawing any conclusions 11 right now, but Inspector Fox describes what he or the 12 Attorney General's representatives want from you. 13 A: Right. 14 Q: And then there's this 15 discussion about how the political people are pushing to 16 get this done real quick. And then you return to the 17 question of whether or not you can agree with the 18 request, and you agree to the request? 19 A: Yes. 20 Q: All right? 21 A: Yes. 22 Q: At the time of this conversation, 23 were you -- did it occur to you that there might be a 24 connection between the political pressure to get things 25 done quick, and the request that was being made to you?
541 A: That absolutely didn't enter my mind. 2 My concern was simple: we required -- we certainly 3 desired an injunction to move forward with this. And if 4 it was an ex parte or not an ex parte, quite frankly, as 5 long as we had an injunction with some documentary or 6 direction from the Court, I -- I wasn't really too 7 concerned what process got us there. 8 Q: So, does it follow that it didn't 9 occur to you at that time that there might be a 10 possibility that there was a connection between an ex 11 parte order being sought, and you being requested to 12 testify? 13 A: I'm sorry? 14 Q: Let me repeat that. Did it occur to 15 you at that time, that there might be a connection 16 between the two (2) things, namely political pressure to 17 get this done quick on the one (1) hand, and on the other 18 hand, you being asked to help with an ex parte 19 injunction? 20 A: Quite frankly, I would suggest I was 21 probably putting as much pressure that we wanted this 22 order quick, as anyone. So, I'm -- I'm not sure I can 23 tie the -- whatever the political motives would have been 24 to the fact that I was being asked to give evidence. 25 Q: All right. Let me get back to that,
551 but first let me get back to my question, I think, that I 2 asked you, which was did it occur to you at the time that 3 there might be a connection between on the one (1) hand 4 political people pushing to have this done quickly, and 5 on the other hand, the Ministry asking for your help in 6 an ex parte order? 7 A: No. 8 Q: No? All right. And when you then 9 said, a minute ago that you were wanting to have the 10 injunction as quickly as possible in your mind, is that 11 roughly what you said? 12 A: Yes. 13 Q: Why was that? 14 A: I wanted some documentary support, 15 particularly from the Court that identified that the 16 property was in rightful ownership of the Ministry of 17 Natural Resources or not, and some direction in regards 18 to the occupiers who were on that property. I just 19 wanted the -- the legal support to plan whatever next 20 steps might be necessary. 21 Q: And so you've just said that you 22 wanted an injunction which told you either that MNR had 23 clear title or not; correct? 24 A: Correct. 25 Q: And is that because you wanted
561 direction from a Court as to what the -- the legal 2 correct situation would be so you could enforce it? 3 A: So I could enforce it? 4 Q: Yeah. 5 A: So I'd follow the direction of a 6 Court order. 7 Q: Including if that was -- I'm not -- I 8 -- the Court -- am not going to give an injunction at 9 this point; right? 10 A: Well, that was one (1) of the 11 possibilities, for sure. 12 Q: Right. 13 A: Yes. 14 Q: And, whatever the motivation, you 15 were indicating to Inspector Fox that you would testify 16 to a Court that the situation was rapidly escating -- 17 escalating; is that right? 18 A: I would give evidence to the Court as 19 to the facts as I knew them. If they determine that they 20 met the test of whatever was necessary for ex parte, 21 that's where the chips would fall. 22 Q: What I'm suggesting to you, Deputy 23 Commissioner Carson, is that the way the question was put 24 to you in this phone conversation isn't quite that way. 25 The way we just looked at it, is that the
571 question that was framed to you in this conversation, 2 apparently as it came from Mr. McCabe, was essentially: 3 are you willing to testify that events are kind of 4 increasing exponentially or rapidly escalating. That was 5 the question that was put to you and that was the 6 question to which you answered, "yes." 7 Isn't that fair reading of the transcript? 8 A: I'm -- I'm not sure what you're 9 asking. 10 Q: Do you -- do you want me to repeat 11 the question? 12 A: Please. 13 Q: The question was: isn't it fair to -- 14 when we look at this transcript or hear the tape, 15 conclude that what you were being asked by Inspector Fox, 16 apparently on behalf of Mr. McCabe, was whether you would 17 testify to a Court that events were increasing 18 exponentially, in other words, rapidly escalating? 19 A: Correct. 20 Q: That was the question you were asked? 21 A: Correct. 22 Q: And that was the question you 23 answered, "yes" to, is that right? 24 A: Yes. I said I think we can. 25 Q: Yes.
581 A: Yes. 2 Q: Which is a little bit different than 3 being asked, are you willing to testify as to the facts 4 as you know them, right? 5 A: Yes. 6 Q: Okay. Now, you also said, roughly 7 speaking, that you wanted the injunction as quickly as 8 anyone? 9 A: Right. 10 Q: And I take it that meant you were -- 11 you would have like to have the injunction from a Court 12 hearing that every evening on the 6th, because that was 13 one (1) of the options put to you; is that right? 14 A: If -- if that's -- if that's the 15 process that would have been put in place I would have 16 supported that, yes. 17 Q: And in this discussion at the very 18 beginning, Inspector Fox describes to you that what they 19 are seeking, and potentially as that very evening on the 20 6th, is an ex parte injunction which is one that doesn't 21 have to be served; correct? That's what he says to you. 22 A: I'm not sure if Fox indicates the -- 23 I -- Mr. McCabe, I think, talked about being served or 24 not served. I'm not sure if Fox did. 25 Q: Let's just go back to the second page
591 of the transcript, the first segment we reviewed earlier 2 about halfway down the page. Fox says, quote: 3 "They are making moves towards getting 4 an ex parte injunction, in other words, 5 one that doesn't have to be served." 6 Close quote. 7 Right? 8 A: Oh, yes. 9 Q: So, in fact, Inspector Fox had -- had 10 mentioned to you in the beginning of the conversation 11 that MNR was specifically getting an ex parte injunction. 12 And he specifically highlighted that that was one that 13 doesn't have to be served; is that right? 14 A: Yes. Yes, you're right. 15 Q: Right. So you knew that when you 16 were entering into this discussion with Inspector Fox? 17 A: Yes, that's fair. 18 Q: Now you said that you weren't alive 19 to the fine points or technicalities of injunctions in 20 general, and ex parte injunctions in particular; is that 21 fair? 22 A: That's fair. 23 Q: Yeah. And you've also said, as the 24 words I put in your mouth, you were working in three (3) 25 layers of stuff at this point and very busy and so forth?
601 A: Sure. 2 Q: And didn't have a whole lot of time 3 to analyse exactly what was going on in this 4 conversation. But nevertheless, you were advised at the 5 beginning of this conversation that you were being asked 6 to support an injunction which would not be served on the 7 protesters. 8 Did you understand that at that point? 9 A: It was mentioned to me by Fox, but 10 yes, technically. 11 Q: Right. So when you had this 12 discussion with Inspector Fox and when you agreed to 13 support the injunction, you knew you were supporting a 14 Court order that would be obtained as early as that very 15 evening without giving notice to the protesters of the 16 Court Hearing? 17 A: That's fair, yes. 18 Q: And then you were aware that that 19 Court order which would have been obtained without any 20 notice to the protesters might be enforced against them 21 by the police; is that right? 22 A: If -- if that was a direction of the 23 Court, yes. 24 Q: Now you have several times referred 25 to the direction of the Court.
611 A: Yes. 2 Q: Are you able to be more specific 3 about what you meant then or mean now about what you were 4 expecting in a Court order, in terms of direction to the 5 OPP? 6 A: Quite frankly, not. I mean I have -- 7 I have no idea what the Court would draw from the 8 evidence that was presented and what direction they would 9 -- or the Court would identify that was necessary. 10 Q: So had you thought at all about, at 11 this time, what you expected in the Court order? And did 12 you expect a direction from the Court to the OPP, as to 13 what to do? 14 A: Quite frankly, I -- I had never seen 15 a Court order written up, relative to this type of an 16 injunction. So quite frankly, I had no idea how it might 17 be crafted. 18 Q: And so you didn't -- did you consider 19 the possibility, for example, that the Court order would 20 make a statement about whether the occupiers were in the 21 Court -- in the Park legally or not legally, and whether 22 they should leave or not? But at the same time, the 23 Court order not make any reference to the OPP and what 24 the OPP should do at all? 25 A: That certainly was a potential. I --
621 I guess my belief was that the Court order would identify 2 whether they were there legally or not, as -- as a 3 starting point. And -- and I suspected we my have to get 4 into some negotiations at some point in order to request 5 them to leave first with some potential that it may be 6 necessary to take some stronger steps as time progressed. 7 But that was at very best, speculation on 8 my part. 9 Q: So you were pursuing a Court order 10 which you anticipated if it was successful or at least if 11 it had the result of ordering the -- excuse me, let me 12 rephrase that. 13 You were supporting the obtaining of a 14 Court order which would potentially state whether the 15 protesters were in the Park legally or not. And then 16 you mentioned that the order might result in the 17 protesters being asked to leave; right? 18 A: Correct. 19 Q: And then you mentioned that there was 20 a potential for stronger steps if they didn't leave; 21 right? 22 A: Right. 23 Q: And I believe there's some discussion 24 of this issue in one (1) of the taped conversations we've 25 listened to. But would you agree with me that you didn't
631 expect, at that time, that the protesters, given that 2 they said they were occupying the Park to preserve an 3 ancestral burial ground and given that they were saying 4 "it's our land," you didn't really expect them to simply 5 leave if once there was a Court order; is that right? 6 A: I had my doubts that they would do 7 that. 8 Q: You had your doubts? Let's -- let's 9 be frank. You probably, to the extent you thought about 10 it at all, thought that was very unlikely; isn't that 11 right? 12 A: That's fair. 13 Q: Okay. And so the result was likely 14 going to be that if there was a successful attempt at a 15 Court order in an injunction form, there would be some of 16 this -- these stronger steps that you referred to; is 17 that right? 18 That was the likely outcome; is that fair? 19 A: No. What the -- once an injunction 20 would be granted, we would have to examine that document 21 and then develop a strategy of how we're going to address 22 it, and that would be done in a number of ways. 23 But one of the issues that would clearly 24 be addressed is there would be discussion with 25 Superintendent Parkin and Chief Coles around a strategy
641 relative to the Court Order itself. And so depending on 2 what the Court Order indicated, may assist us in how we 3 would go about that. 4 Q: Well, that may all be true, but you 5 mentioned a moment ago that there was potential for 6 stronger steps, and then you agreed with me that it was 7 unlikely that negotiations based on a Court Order would 8 result in the protesters leaving, considering what they 9 believed about the Park? 10 A: Right. 11 Q: Am I supposed to conclude from what 12 you've just said that you probably knew they wouldn't 13 negotiate their way out of the Park and there would be 14 stronger steps, but you really didn't know what those 15 stronger steps might be? 16 A: There were no plans to do anything 17 relative to the Court Injunction until we had it in our 18 hand. I -- I certainly wouldn't speculate what the next 19 steps, or stronger steps or -- or what steps that may 20 have some hope of being successful. 21 I -- I suspect there would be a number of 22 things that might be employed to try to convince the 23 occupiers that it's -- that they need to leave that area. 24 Q: Well, again, you come -- you circle 25 back to convincing the occupiers. And you've just
651 agreed, and I think there's no question, that it would be 2 unlikely to be successful, giving that they were claiming 3 this was a burial ground and it was their land and given 4 the -- some of the -- 5 COMMISSIONER SIDNEY LINDEN: Yes -- 6 MR. MARK SANDLER: I just want to point 7 out there's an incorrect presumption in the question. It 8 doesn't follow from the fact that -- that the occupiers 9 may be unconvinced as to the merits of their claims that 10 they would necessarily resist a Court imposed injunction 11 to leave. 12 And I just point that up, because My 13 Friend keeps saying that we know that, based upon their 14 honestly and strongly held beliefs that they're not going 15 to comply with an injunction if issued by the Court. 16 I'm not sure that's the same issue, with 17 respect. 18 COMMISSIONER SIDNEY LINDEN: No, I think 19 that's fine. 20 MR. MARK SANDLER: Anyway, I'm not 21 objecting to the questioning but I -- I think there's an 22 implicit fallacy in the question. 23 MR. MURRAY KLIPPENSTEIN: Well, I believe 24 -- thank you, Mr. Sandler. I believe perhaps, 25 Commissioner, Mr. Sandler has misheard the question and
661 the answer, because I certainly didn't understand my 2 question and the answer I received to pertain to whether 3 they would be convinced of their -- their cause enough. 4 5 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 6 Q: The question was, whether they would 7 leave and if there's uncertainty, let me -- let me ask -- 8 let me return to that question, which was: originally, 9 Deputy Commissioner Carson, you said that you anticipated 10 if there was, in fact, a Court injunction, there would be 11 negotiations and requests to leave, right? 12 A: I would suggest that would be one (1) 13 of the first steps. 14 Q: Right. 15 A: I mean, voluntary compliance is 16 always the desired approach. 17 Q: Right. But then you stated that if 18 they did not leave, there was a potential for stronger 19 steps; correct? 20 A: Correct, yes. 21 Q: Right. And you agreed with me that 22 it was probably unlikely that they would leave 23 voluntarily, given why they said they were there in the 24 first place, right? 25 A: Right.
671 Q: So since it was, and this gets back 2 to Mr. Sandler's concerns, since it was unlikely that 3 they would leave voluntarily, even if there was a Court 4 Order saying they were there illegally, we -- you were 5 probably headed for the stronger steps that you refer to? 6 COMMISSIONER SIDNEY LINDEN: We've just 7 have a -- I don't think anybody -- well, perhaps you -- 8 MR. DERRY MILLAR: Mr. Ross -- 9 COMMISSIONER SIDNEY LINDEN: -- take what 10 you want. I think Mr. Ross was on his feet first. Let's 11 give Mr. Ross a chance to express himself. 12 MR. ANTHONY ROSS: Mr. Commissioner, 13 reference is being made to the occupants whom were my 14 clients and I think there are too many "if's" in the 15 question -- 16 COMMISSIONER SIDNEY LINDEN: Yes. 17 MR. PETER ROSENTHAL: -- that is asked 18 of this Witness. It has become totally hypothetical and 19 regardless of the answer, I don't think it would be 20 helpful to you. That's my position. Thank you. 21 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 22 Sandler? 23 MR. MARK SANDLER: I just want to say the 24 original time that I stood up, wasn't on -- an objection 25 to the question, Was it likely that they would comply
681 with the Court order. The objection was, so you knew and 2 it was the -- it was the expression that he used, "so you 3 knew that even if you had the Court order then strong 4 action would have to be taken." 5 So, I was saying there was an explicit 6 fallacy in that -- in any event, you've got my point, 7 Commissioner. 8 COMMISSIONER SIDNEY LINDEN: Yes. 9 MR. MURRAY KLIPPENSTEIN: Well, 10 Commissioner, I -- I wonder at some of the -- the 11 position that we're in. And I'll continue to ask related 12 questions subject to your direction and -- and further 13 objection, perhaps, but the reality is that we are faced 14 today and we have been for many years and back then as 15 well, that there was a big push to have a Court order. 16 And Mr. -- Inspector -- Deputy Commissioner Carson has 17 said he was wanting one. 18 Certainly, I believe the evidence will 19 show that there were people elsewhere in Queen's Park in 20 Toronto who wanted an ex parte injunction. And everybody 21 seems to, more or less, admit that given that the 22 protesters believed it was their land and -- and 23 ancestral burial ground that they weren't going to just 24 pack up and walk out and -- and that's in one (1) of the 25 phone calls that the question of what then, is a real one
691 and no one's -- no one's addressing it. 2 And, in fact, we are here to investigate 3 the events surrounding Dudley George, which included the 4 shooting of Dudley George in the chest. 5 COMMISSIONER SIDNEY LINDEN: Yes. 6 MR. MURRAY KLIPPENSTEIN: He was killed. 7 COMMISSIONER SIDNEY LINDEN: We 8 understand that, Mr. Klippenstein. 9 MR. MURRAY KLIPPENSTEIN: Yes. 10 COMMISSIONER SIDNEY LINDEN: What's your 11 question now? Your question now is -- what question are 12 you putting to Deputy Carson? 13 14 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 15 Q: My question is: I believe you said 16 that there were no plans that you were aware of as to 17 what would happen with a Court order if the protesters 18 refused to leave the Park voluntarily. 19 Have I stated your answer correctly? 20 A: Correct. 21 Q: So, your evidence is that there were 22 no plans, all right? Was there any discussion, to your 23 knowledge, before the evening of September 6th as to what 24 would happen in the event of a Court order? 25 And I have in mind, parts of the Project
701 Maple document, which have extensive discussions about 2 arrest teams and so forth. Was there any discussion 3 before the evening of September 6th as to what 4 would happen if there was a Court order and the 5 protesters didn't leave voluntarily? 6 A: I don't believe there was a 7 discussion specific to that. 8 Q: All right. And so, what am I 9 supposed to make of the extensive discussion in Project 10 Maple about arrest teams and arrest equipment and 11 procedures for arresting people; taking them to a 12 detention centre and then having the officers go back for 13 more? What am I supposed to make of all that? 14 A: It's -- it's preparation. If it was 15 necessary to do that, we have to have those logistics in 16 place. 17 Q: If it was necessary to do what? 18 A: Well, I think the term used was, 19 "arrest," sir. 20 Q: All right. 21 A: So, if we are arresting people we 22 have to continue the arrest. 23 Q: All right. So, you're saying that -- 24 and I -- I don't mean to put words in your mouth, I'm 25 trying to understand, there were plans for arresting
711 people if necessary; is that right? 2 A: In any situation like this there is 3 always a potential of arrest and when you have multiple 4 people there's a chance of multiple arrests, which has 5 some logistical issues attached to that. To not have 6 some logistical planning in place for that eventuality, I 7 would suggest, would be poor planning, to say the least. 8 So, if you have an issue with forty (40) 9 people, you -- you must give some thought to -- well, 10 what would you do if we, in fact, had to arrest all forty 11 (40) people? 12 What if the Court order said we had to 13 arrest forty (40) people? I mean there's all kinds of 14 hypothetical situations. What if the occupiers were in 15 the Provincial Park when they initially went in there, 16 refused to leave but it was tacit and they -- they were, 17 I hate to say, voluntarily arrested, but arrested without 18 incident. 19 I mean you still have logistical issues 20 that you -- you must turn your mind to when you're 21 dealing with groups of people. So these were issues we - 22 - we discussed in regards to the injunction back in 1993 23 when the occupiers originally went onto the firing 24 ranges, when the Military were looking at various 25 options.
721 So, you know, this is a normal part of 2 planning. There wasn't something sinister being prepared 3 here. 4 Q: I'm just -- I'm not suggesting 5 anything sinister, I'm just trying to understand. And so 6 when you a few minutes ago told me there were no plans, I 7 -- I guess we weren't communicating 8 But anyways so what we did in fact have 9 then as part of the planning process, was a consideration 10 of mass arrests following a Court order; is that right? 11 A: Well, it may be -- that may be one 12 (1) of the scenarios. It may be arrests without a Court 13 order. I mean, I -- I don't -- I didn't have a crystal 14 ball to determine how and exactly, you know, when that 15 might occur. 16 But at the same time dealing with a group 17 of people, you've got to be prepared that there may be a 18 necessity or the requirement to take them into custody. 19 MR. MURRAY KLIPPENSTEIN: Commissioner, 20 if now is a good time for a break it would -- 21 COMMISSIONER SIDNEY LINDEN: It would be 22 a good time. 23 MR. MURRAY KLIPPENSTEIN: -- be a good 24 time. 25 COMMISSIONER SIDNEY LINDEN: Thank you,
731 Mr. Klippenstein. 2 THE REGISTRAR: This Inquiry will recess 3 for fifteen (15) minutes. 4 5 --- Upon recessing at 10:26 a.m. 6 --- Upon resuming at 10:46 a.m. 7 8 THE REGISTRAR: This Inquiry is now 9 resumed. Please be seated. 10 MR. MURRAY KLIPPENSTEIN: Thank you, 11 Commissioner. 12 13 (BRIEF PAUSE) 14 15 MR. MURRAY KLIPPENSTEIN: Sorry, I 16 apologize, Commissioner. 17 18 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 19 Q: Before the break, Deputy Commissioner 20 Carson, I was asking you questions about the possible 21 enforcement of a Court injunction order, including your 22 reference to possible stronger steps. 23 And you talked about the possibility of 24 actually arresting thirty (30) or forty (40) people; is 25 that right? And it seems to me that that possibility was
741 contemplated and partially planned for in the Project 2 Maple document; is that fair? 3 A: That's fair. 4 Q: And can you tell me a bit more about 5 that possibility or that plan? If there was a Court 6 order that the protesters were in the Park illegally and 7 the OPP commenced enforcement of that order by means of 8 mass arrests, how would that proceed? 9 A: I have no idea. 10 Q: And can you explain what you mean by 11 that, because Project Maple seems to have a lot of 12 reference to what looks like mass arrest planning. 13 A: If there was a Court Order, there 14 would have to be a plan relative to how we comply with 15 the Order. A number of conditions may be imposed from 16 the Order to which I really would hesitate to speculate. 17 And if -- I'm -- I would make the assumption that if the 18 Court order agreed that MNR had rightful ownership of the 19 property, one (1) of the first conditions would be that 20 the occupiers vacate it. 21 If they refuse to vacate it, then they are 22 in contravention with the Court order and that in itself 23 may result in a number of arrest warrants in violation of 24 the Court Order. 25 Now, how we execute the Court order, the
751 arrest warrants relative to that would be a matter of 2 some significant planning which at this point in time, 3 would be impossible to speculate what strategy we might 4 employ. 5 Q: Well, I guess I have difficulty with 6 that, because you say it's impossible to speculate about 7 what strategy you would employ, but you did seem to put 8 in place a lot of preconditions and -- or aspects of a 9 mass arrest plan. 10 Well, first of all, you know, Project 11 Maple has a description of a detention centre where 12 arrest teams consisting of two (2) people, I believe 13 accompanied by somebody with a Polaroid camera, are 14 supposed to arrest somebody. 15 They take them away to the detention 16 centre, they fill out some forms which are created 17 beforehand, they go back for more. 18 Where did -- where did that come from? 19 Who thought that up? 20 A: Well, what you described to me is a - 21 - a process of processing people who have been placed 22 under arrest in any given situation, whether it's this 23 particular situation or not. 24 I mean, that's what you do when you arrest 25 people. You take them into custody, you identify them,
761 fingerprint them, photograph them and you take them 2 before a Court. I mean, that is a process that the 3 police are required by law to follow. So what you're 4 seeing is, is a logistical support of following due 5 process of law. 6 Q: But clearly there's a difference, and 7 a big difference, because you have a detention centre and 8 an explicit plan in operation Maple to have people go and 9 drop off people that are arrested and then go back for 10 more. 11 And did this -- you know, did you think 12 this up? Did Detective Sergeant Wright -- did this come 13 from the RCMP seminar that Detective Sergeant Wright 14 attended? Is this in a -- is this standard procedure 15 somewhere in a manual or how did it get its way into 16 Project Maple? 17 A: Well, when -- whenever you're dealing 18 with large groups of people, whether it's -- well, it 19 doesn't matter what it is. I mean, for example, it could 20 be the Bush visit in Ottawa, where you're going to have 21 potential protesters. You must have some sort of a --a 22 strategy around how you're going to handle potential 23 arrested people. 24 I mean, you just can't arrest people and 25 decide, well, what might we do with them now. I mean,
771 you do have to have some sort of a plan of how you're 2 going to turn them over to the appropriate arrest teams 3 and be processed through the Courts. 4 I mean, you just can't ignore that 5 potential necessity. 6 Q: But what about a mass arrest in a 7 situation where there's colour of right? 8 A: Sir, with all due respect, an arrest 9 is an arrest, and if it's necessary to do an arrest then 10 we have to carry out the arrest. 11 I mean the whole issue of colour of right, 12 I mean, it was always my view that the Ministry of 13 Natural Resources had -- had provided documentation that 14 -- that indicated they had title to the property. 15 The issue with the injunction was a Court 16 was going to verify and substantiate that, and provide 17 some direction for the police in dealing with the 18 argument that it was a land claim. 19 And as you know, we had -- we had asked a 20 number of people issues around the -- any valid land 21 claim at Ipperwash and any particular potential burial 22 site. And there was -- there was no documented proof 23 that -- that could be found, to my knowledge, that 24 supported any legitimate land claim. 25 So, I mean, what happens here is the
781 injunction just verifies by the Court, the position that 2 the Ministry of Natural Resources felt they had rightful 3 title. 4 Q: Well, you said the -- the MNR 5 provided evidence to the Court that it had rightful 6 title, right? 7 A: That's my understanding, yes. 8 Q: That's your understanding. Do you 9 recall ever seeing that evidence? 10 A: I -- I was provided a copy of their 11 title search. 12 Q: I see. Do you recall at the time 13 ever being provided with a copy of the affidavit, itself, 14 that they were submitting to the Court? 15 A: No, I wasn't. 16 Q: Now, I anticipate we will see 17 evidence and, indeed, it's very clear that the affidavit 18 of Mr. Kobayashi, that was provided to the Court in 19 written form, made no reference to a burial ground or to 20 a claim for a burial ground or to a claim that the 21 Natives say it's their land. 22 And that was the material that was going 23 before the Court, and if a Court injunction was obtained 24 on that basis, in other words, the Court not having any 25 affidavit evidence about the burial ground claim or the
791 claim to ownership of the land and then the injunction is 2 obtained without any notice to the protesters, would you 3 agree with me that the protesters are unlikely to have 4 full respect for the Court decision and its findings? 5 A: I -- I'm sorry, but I mean, you're 6 asking my opinion of what the occupiers might do? 7 Q: Well, I'm asking you as a police 8 officer who -- and -- and a high-ranking and incident 9 commander officer who, I guess, was pushing as a key part 10 of your strategy for dealing with this situation of 11 having a Court injunction. 12 The Court injunction was a key part of 13 your strategy; isn't that right? 14 A: Very much so. 15 Q: Yes. 16 COMMISSIONER SIDNEY LINDEN: Do you want 17 to just stop for a minute, Ms. Twohig's got an 18 observation. Yes, Ms. Twohig...? 19 MS. KIM TWOHIG: Thank you, Mr. 20 Commissioner. Deputy Commissioner Carson has testified 21 that he did not see the affidavit. He's now being asked 22 to speculate on what -- 23 COMMISSIONER SIDNEY LINDEN: Yes. 24 MS. KIM TWOHIG: -- might have happened 25 and what other people might have believed, based on a
801 series of events which we have no evidence about. And 2 I'm just concerned that My Friend is making argument -- 3 COMMISSIONER SIDNEY LINDEN: Yes. 4 MS. KIM TWOHIG: -- prematurely. 5 COMMISSIONER SIDNEY LINDEN: I was going 6 to say that. The proper argument, perhaps, Mr, 7 Klippenstein, but there's a limit to how far you can go 8 with speculation and hypotheticals. I think that Deputy 9 Commissioner Carson could be asked a number of questions, 10 but I think you've gone a bit beyond that. 11 12 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 13 Q: Well, thank you, Commissioner, and 14 let me question instead, Deputy Commissioner Carson, on 15 your planning for this event. 16 When you were planning for the arrest 17 possibilities pursuant to a Court injunction in Project 18 Maple, did you at all consider the possibility that the 19 arrests might be different than other settings, because 20 in this setting there would be a colour of right issue? 21 And I raise the colour of right issue -- I 22 think you raised it in your testimony-in-chief and you 23 said it was an important one; right? 24 A: Correct. 25 Q: Did you consider that issue when you
811 were planning arrests in Project Maple? 2 A: When a decision is made to arrest, 3 the person is arrested; it's really that simple. If 4 there was an issue around colour of right and there was a 5 belief by a police officer the person had a colour of 6 right, I would suggest that the arrest wouldn't have 7 occurred in the first place. 8 Q: So, are you telling me that in this 9 situation at Ipperwash Park, when there was a planned 10 arrest, we are to assume that the officers believed there 11 was no colour of right? 12 A: I -- I would suggest to you all 13 evidence that we had in regards to the Park -- not the 14 Base -- in regards to the Park showed clear title to the 15 Ministry of Natural Resources. And in any documentation 16 that we could locate, there was no indication that colour 17 of right was an issue. 18 There certainly was a lot of commentary 19 and I would classify it as rhetoric, that it was a land 20 claim issue around colour of right. 21 But there was no indication to -- to 22 support that whatsoever in -- in any document that I was 23 ever aware of. 24 So, in -- in my view, there was no colour 25 of right as far as the Park itself was concerned.
821 Q: All right, I'll -- I'll come back to 2 that later. If you can return to the transcript of the 3 phone conversation you had with Inspector Fox, on page 4 260 at the bottom. 5 6 (BRIEF PAUSE) 7 8 Q: We read this before. Inspector Fox 9 says, quote: 10 "Now what the course the political 11 people are really pushing, and that's 12 another story, and I'll just fill you 13 in, so you know about that." 14 And you say, "Okay." 15 And Inspector Fox says: 16 "But I mean they're pushing to get this 17 done quick." 18 And you say, "Yes, yeah, okay, I hear you, 19 yeah." 20 Right? Right? That's right? 21 A: Yeah. That's what it says, yes. 22 Q: Now, let me look at what Inspector 23 Fox said. He says, "I mean they're pushing to get this 24 done quick." 25 My question is: what did you think "this"
831 was? 2 A: The injunction. 3 Q: Did you think it was just an 4 injunction? 5 A: Yes. His next comment is, "They're 6 getting a Judge from Lambton County." 7 Q: Hmm hmm. And did you consider the 8 possibility that when Inspector Fox says "the political 9 people are pushing to get this done quick", it meant more 10 than just getting an injunction, and it meant removal 11 from the Park? 12 A: Well, the injunction may direct that. 13 Q: And given everything you'd heard in 14 the proceeding two (2) days, did it occur to you, during 15 this conversation or thereafter, that when Inspector Fox 16 says "they want to get this done quick", what it was they 17 wanted to have done quick was more than just the 18 injunction, it was the removal? 19 A: I guess I need to understand who you 20 mean by "they"? 21 Q: Well, I'm just using Inspector Fox's 22 words, the political people, and let me just clarify the 23 question by looking at other parts of that conversation. 24 On page 262 Inspector Fox makes some 25 comments at the bottom about the government, and for
841 example, how they feel about guns and Indians, and you 2 say, quote: 3 "All right, they just want us to go 4 kick ass." 5 Close quote. Now, you used the word 6 "they", who were you referring to? 7 A: Well, he's talking about the 8 government in the paragraph previous, so just so that 9 we're clear, that we understand that we're talking about 10 the government officials, as opposed to civil servants. 11 Q: Okay. 12 13 (BRIEF PAUSE) 14 15 Q: And when you said, "kick ass", what 16 did you mean? 17 A: I'm not sure I'm able to provide you 18 a very clear definition of what that means, other than 19 just go out and arrest. 20 Q: Other than, pardon me? 21 A: Go out and arrest. 22 Q: Okay. So you think that's possibly 23 what was meant there, was that the government wants us to 24 go and arrest? 25 A: Yeah, sure. That's -- that's my best
851 guess. 2 3 (BRIEF PAUSE) 4 5 Q: And then a few lines down, you say, 6 quote: 7 "We're not prepared to do that yet." 8 Right? 9 A: Yes, I did. 10 Q: Now, strictly speaking, you're 11 referring to kicking ass, I guess? Right? 12 A: Not the finest choice of words but 13 speaking to that point, yes. 14 Q: But you used the word -- you used the 15 phrase: 16 "We're not prepared to do that yet." 17 What did you mean by the word "yet"? 18 A: Well, we're not prepared to act on 19 anything until we get the injunction. I mean I -- I've 20 been steadfast in that from back in '93 with the Military 21 and their processes, and this is just more of the same. 22 23 (BRIEF PAUSE) 24 25 Q: Now, continuing with the transcript,
861 we've talked about Inspector Fox saying that the 2 government doesn't give -- doesn't care about Indians, 3 and them wanting to kick ass. 4 And then, on page 263, a little further 5 down, Inspector Fox talks about the Premier, right? 6 A: Yes, he does. 7 Q: And he mentions that the Premier 8 expressed the view that the OPP made mistakes, and that 9 they should have done something right at the time; right? 10 Do you see that? 11 A: Yes. 12 Q: And Inspector Fox then also says, 13 based on Inspector Fox's information or personal 14 observation, that he, meaning the Premier; correct? 15 A: Right. 16 Q: That's how you understood it? 17 A: Yes. 18 Q: Believes that the Premier has the 19 authority to direct the OPP, is that right? 20 A: That's what it says, yes. 21 Q: So Inspector Fox has just advised you 22 that the political people, that is the government, and 23 that's -- you suggest separate from the civil servants, 24 want to -- want you to go kick ass, which you say could 25 mean arrest.
871 And then Inspector Fox gets more specific 2 and talks about the Premier and the Premier's views about 3 the OPP's conduct of the Ipperwash incident. And 4 Inspector Fox advises that the Premier believes the OPP 5 made mistakes about how things were handled at Ipperwash. 6 Now, can you tell me how you felt at the 7 time, hearing that the Premier -- how -- how you felt, 8 being the incident commander, that the Premier of Ontario 9 believed -- the Premier of Ontario, who has a lot of 10 things on his mind, had taken the time to develop an 11 opinion about Ipperwash, and appeared to have the opinion 12 that mistakes had been made, and appeared to believe that 13 something else should have been done. 14 And how did that make you feel, at the 15 time, as incident commander? 16 A: How did I feel? 17 Q: Yes. 18 A: Well, I mean I certainly wasn't 19 pleased that he would have that opinion, but it's simply 20 that; it's his opinion. I'm a police officer, I'm not a 21 politician. I have to work within the boundaries of the 22 legal framework, and I have to work for people that I 23 report to. 24 As long as my commanders that I report to 25 are satisfied with the direction I'm taking, the
881 political opinion is simply that. I would -- I would 2 have much preferred that he thought we were doing a great 3 job, quite frankly, but that may have not been the case. 4 Q: And it was after that discussion that 5 you agree to testify to the ex parte injunction, is that 6 right? In other words, after you discovered that the 7 Premier appears to be unhappy -- that the Premier appears 8 to have concerned himself and developed an opinion about 9 Ipperwash, and appears to believe that the OPP made a 10 mistake -- actually mistakes in the plural, it's at that 11 point Inspector Fox asks you finally whether or not you 12 would agree to testify at the ex parte injunction, and 13 your answer is, Yes, that's right? That's correct? 14 A: Are you asking me, is that the order 15 of events? 16 Q: Yes. 17 A: I believe that's accurate. 18 Q: All right. Had you ever been 19 involved in an incident before in which the Premier of 20 Ontario became personally involved? 21 A: I have never had any political 22 involvement, in any event I've been in. 23 Q: I'm -- I'm asking specifically about 24 whether you, in your policing career -- career, have ever 25 been involved in a policing incident, or policing matter
891 in which the Premier of Ontario became specifically 2 involved? 3 A: No, sir. 4 Q: So, and -- and had you ever expected 5 that such a thing would happen? 6 A: No. 7 Q: So, were you surprised when Inspector 8 Fox described this involvement by the Premier? 9 A: I wasn't surprised that he had an 10 opinion, I -- I -- quite frankly, sir, when you're an 11 inspector in a field location, in the grand scheme of 12 things, that isn't really -- I mean, you're mid- 13 management in this thing and you -- you don't have the 14 interaction with the Ministry, let alone political 15 people, on a general basis. 16 Like, you may have the odd occasion to 17 meet the MPP, who is local, because of some social 18 events, and those types of things. But quite frankly, 19 you -- you are highly unlikely to have interaction with 20 the upper levels of -- of the governing party, and 21 particularly, the Minister or the Premier would be highly 22 unusual for a -- a field inspector to -- to have 23 involvement with. 24 I mean, it just -- it just normally 25 wouldn't happen. It's a little different if you're an
901 inspector that works out of the Solicitor General's 2 office, at that time, who was providing liaison duties, 3 or some -- some capacities at general headquarters, where 4 there is a -- a different or a -- an ongoing relationship 5 with the Ministry as part of the administrative function, 6 but significantly different roles. 7 Q: So you had never -- is it fair to say 8 -- you had never conceived that such a thing like this 9 would happen? 10 A: No. 11 Q: And if I look at what Inspector Fox 12 said, he said that the Premier said that the OPP made 13 mistakes, and they should have done something right at 14 the time. 15 Now, you were incident commander during 16 this period, and it's clear that the Premier is saying 17 that mistakes were made while you were incident 18 commander, and you were in overall charge; is that right? 19 A: That's what he said. 20 Q: And when the Premier says, they 21 should have done something right at the time, you were 22 incident commander, right at the time, right? 23 A: I was the one. 24 Q: Did you feel some awareness that the 25 Premier was, in fact, if not criticizing you by name,
911 criticizing the work the incident commander had done? 2 A: I -- I'm sorry, the... 3 Q: Were you aware when you heard this 4 that the premier of Ontario was criticizing, perhaps not 5 you by name, but certainly the incident commander at 6 Ipperwash? 7 A: Well, he -- he was criticizing the 8 force, there's no doubt that. 9 Q: And he wasn't criticizing only the 10 force in general, was he? He said, mistakes and right at 11 the time, and you were the incident commander at that 12 time, right? 13 A: Yes, I was. 14 Q: And did you have any sense -- did you 15 have any awareness, that it looked like, the Premier of 16 Ontario was criticizing the incident commander, who 17 happened to be you? 18 A: Well, I certainly didn't take it 19 personally, because I -- I don't believe the Premier 20 would have known who John Carson was, quite frankly. 21 Q: Well, I think -- I certainly... 22 A: He -- he may now. 23 Q: I -- I said that he might not know 24 you by name, but my question was, did you know at this 25 point, or were you aware at this point, that the Premier
921 of Ontario was criticizing the incident commander at 2 Ipperwash, who was you? 3 A: Well -- well, he was criticizing the 4 action that was taken. I was the incident commander, can 5 you take the inference he was criticizing me; Okay, I -- 6 I'll accept that. 7 8 (BRIEF PAUSE) 9 10 Q: Thereafter, after this discussion 11 about the Premier's criticism, you agreed to cooperate 12 with the MNR, or the Attorney General's lawyers, about 13 testifying for an ex parte order; is that right? 14 A: Yes, Inspector Fox indicated that Tim 15 McCabe would call me, and they were looking for myself, 16 particularly, to provide viva voce evidence; that was 17 indicated early on in the discussion, actually before 18 those comments. 19 Q: Hmm hmm, yes. 20 A: Correct? 21 Q: When you agreed to the ex parte -- to 22 testify in support of an ex parte Order, did you give any 23 consideration to what it means, that it was without 24 notice? Did you give consideration to the effect, the 25 reality that it would quite possibly lead to a Court
931 order, after -- based on a hearing in which a Court had 2 not heard one (1) of the sides, and one (1) of the sides 3 had not had the opportunity to prevent evidence or test 4 the evidence? 5 Did you give any thought to that? 6 A: Not really, other than I would be 7 required to provide evidence at the process. 8 Q: When you say "not really", am I to 9 understand that you didn't really give any consideration 10 to concerns about possible unfairness to the protesters 11 given that they, or their lawyers, would not be able to, 12 in all likelihood, present evidence to the Court, or test 13 the government evidence if they weren't given notice? 14 A: Well, as you pointed out earlier, I 15 mean Fox indicated that it would be given without notice. 16 I mean, I didn't give any thought, I don't believe, to 17 that having any specific ramification. 18 My only concern was that I was hoping to 19 see MNR get an order at the earliest opportunity. If an 20 ex parte is a way we could achieve that, I was prepared 21 to support that if -- if that was a possibility. 22 Given again, as I said earlier, about my 23 knowledge of Court injunctions, that would be something 24 that Mr. McCabe would have to assess as to whether this 25 would stand the test for the application.
941 Q: Now, does that mean that you, as the 2 -- am I to take it, and indeed -- the protesters to take 3 it, that your evidence is that you, as the -- the 4 Incident Commander were willing to support the government 5 in a ex parte, without notice injunction, and you didn't 6 really think about whether or not it was fair to the 7 protesters to not be able to present their case, or test 8 the government's case? 9 A: I was -- 10 Q: You didn't -- you didn't really think 11 about it? 12 A: I did not give any thought to whether 13 or not the occupiers gave evidence in Court. I was of 14 the understanding that the MNR were proceeding with an 15 injunction that precluded them having that opportunity. 16 I didn't see that it was my decision as to 17 what approach the MNR took. My preference was an 18 injunction to earliest convenience; if that's ex parte, 19 that's -- I felt we needed it sooner, not later. 20 Q: But you said you didn't really give 21 any thought to whether or not the process you were being 22 asked to participate in precluded the participation of 23 the protesters, you didn't -- 24 A: Correct. 25 Q: Correct. And did you give any
951 thought to whether or not an ex parte injunction would be 2 more difficult to enforce than an injunction in which the 3 protesters had a chance to have their say in Court? 4 A: I didn't see that either injunction 5 was going to be easy to enforce, regardless of which type 6 was successful. 7 Q: And does that -- is that a "No" to my 8 question? My question was: did you give any thought to 9 the possibility that an ex parte injunction in which the 10 protesters did not have a chance to make their case, 11 would be more difficult to enforce as a policing matter, 12 than one in which they did have a say? 13 14 (BRIEF PAUSE) 15 16 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 17 Twohig...? 18 MS. KIM TWOHIG: Thank you, Mr. 19 Commissioner. I'm concerned, this time, that My Friend 20 is putting conclusions of law to the witness by 21 suggesting that one (1) type of order would be more 22 difficult to enforce than another. 23 A Court Order is a Court Order, and it 24 doesn't matter whether notice is given or not; that's my 25 first point.
961 The second point is that unfortunately Mr. 2 Klippenstein wasn't here last week so he didn't hear the 3 evidence that was given by Deputy Commissioner Carson. 4 And I'm not sure if he's read the transcripts, but the 5 issue of notice was canvassed, and Deputy Commissioner 6 Carson testified, as I recall, that attempts were made to 7 effect service as late as the evening before the 8 application was heard in Court. 9 And I just want to make that clear so that 10 My Friend doesn't inadvertently mislead the Witness in 11 any way. 12 COMMISSIONER SIDNEY LINDEN: Thank you, 13 Ms. Twohig. I think the question you asked -- thank you 14 Ms. Twohig. 15 I think the question you asked is proper, 16 Did he give any consideration to whether it would be more 17 difficult to enforce an ex parte order as opposed to 18 another; that's just a legitimate question. 19 MR. MURRAY KLIPPENSTEIN: That was my 20 question. 21 COMMISSIONER SIDNEY LINDEN: Yes. What 22 Ms. Twohig said is important to keep in mind, but the 23 question is appropriate I think; whether he gave any 24 consideration to that. 25 MR. MURRAY KLIPPENSTEIN: So that was my
971 question. 2 3 CONTINUED BY MR. MURRAY KLIPPENSTEIN. 4 Q: Would you like me to repeat the 5 question? 6 A: No. The answer is no. 7 Q: Okay. Getting back to the 8 transcripts of that phone conversation which is the one 9 between yourself and Inspector Fox at approximately two 10 o'clock, on September 6th. 11 Inspect Fox describes a conversation he 12 had with then Minister of Natural Resources, Chris 13 Hodgson, am I right about that? 14 A: He -- he referred to Mr. Hodgson, 15 yes. 16 Q: Yes. Indeed he did. 17 A: What -- what page are we referring 18 to; are you referring to a particular comment here? 19 Q: I'm referring to just generally -- 20 A: Oh. 21 Q: -- and then I'll ask your attention 22 be directed to something. On the -- on page 266 of that 23 transcript, at the top, Inspector Fox appears to address 24 the issue of what will happen after a Court Order. 25 Inspector Fox says:
981 "You know, and I said with all due 2 respect, I said here's the reality; 3 that's the way it is viewed. I said 4 perhaps -- perhaps we can survive the 5 political backlash. I said it may be 6 that John Carson and his people will be 7 able to work magic, and these people 8 will simply walk away and abandon our 9 position." 10 I believe that probably should be "their 11 position." And you say, "Yeah." And Inspector Fox says, 12 "I said I doubt it." And Carson said, "That ain't going 13 to happen." Correct is that -- is that probably correct? 14 A: Sure. 15 Q: Yeah? 16 A: Sure. 17 Q: And do you know whether that exchange 18 was referring specifically to a Court Order -- a Court 19 Injunction Order, or generally, or both; what did you 20 take it to mean? 21 22 (BRIEF PAUSE) 23 24 A: I suspect I took it to mean that he 25 was referring to -- that I would be able to talk them out
991 of the Park, as opposed to using an injunction. 2 Q: So you think that was well -- 3 A: When he's talking about me being able 4 to work magic because that's about what that would have 5 been. 6 Q: All right. And do you recall that in 7 this conversation Inspector Fox recounts an exchange with 8 then Minister Chris Hodgson about what the OPP might do 9 after an injunction order is received? 10 Let me just find that location; do you 11 recall that? 12 A: Not off the top of my head, I don't. 13 Q: All right, just give me one (1) 14 moment here. 15 16 (BRIEF PAUSE) 17 18 Q: That may have been in the exchange 19 with Chief Coles. Do you recall a -- a discussion -- do 20 you recall at all Inspector Fox mentioning a concern from 21 Minster Hodgson about enforcement of an injunction? 22 A: Doesn't -- doesn't ring a -- ring a 23 bell. 24 Q: Okay. I'll move on. 25 A: I'm sorry.
1001 Q: I'll move on. 2 3 (BRIEF PAUSE) 4 5 MR. MARK SANDLER: Page 266. 6 7 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 8 Q: My Friend has just assisted me by 9 pointing out that there's a comment I had in mind, 10 indeed, in your conversation with Inspector Fox, and it's 11 at about three-quarters (3/4) of the way down on page 12 266. 13 And Inspector Fox says: 14 "Well, even if we get this enjoining 15 order, like, how long will the police 16 sit on it; two (2) weeks?" 17 First of all, that appears that what is 18 intended is an "enjoining" order, an injunction, right? 19 A: Correct. 20 Q: And that is Inspector Fox describing 21 part of an exchange with Minister Hodgson, is that right? 22 A: I believe so, yes. 23 Q: Okay. And would you agree with me 24 that what Inspector Fox appears to be saying, and what 25 you probably understood at the time, was that Minister
1011 Hodgson was being critical of the possibility that the 2 OPP would obtain an injunction order, and then quote, 3 unquote: "sit on it for two (2) weeks?" 4 A: I'm not sure I understand that. 5 Q: Should I repeat the question. 6 A: That we would get the order and sit 7 on it for two (2) weeks? 8 Q: Well, this is Inspector Fox talking 9 to you. Would you agree with me that it appears to be 10 suggesting to you that Minister Hodgson was discussing a 11 -- a situation where there was obtained, an injunction, 12 is that right; that's -- it's part of what is being 13 discussed there, do you agree with that? 14 A: I -- I think what Fox has been trying 15 to explain here was, he was trying to explain how police 16 operations work relative to these types of events. So, 17 I'm not sure how clear this is around his explanation 18 around the potential order, and what the next steps were, 19 I'm -- I'm not very clear on -- on that. 20 Q: Well, it certainly could be clearer. 21 Do you have any recollection of this being said to you? 22 A: Quite frankly, if it wasn't in this 23 transcript I have no recollection. 24 Q: All right. And looking at this 25 transcript, and you being a party to this transcript at
1021 the time, I'm going to ask you about what you -- you 2 probably thought or understood at the time, and you can 3 help me out if you can. 4 Would you agree with me that that sentence 5 appears to be talking about an injunction or an enjoining 6 order? 7 8 (BRIEF PAUSE) 9 10 A: Well, the -- the difficulty I have, 11 he talks about an enjoining order and then -- then he 12 flips back talking about when they initially went into 13 the Park. So, I'm -- I'm not sure how the relevance of 14 the enjoining order, the two (2) weeks and -- and 15 flipping back to initially going into the Park, you know, 16 I just can't recall what -- what the set-up was as far 17 as -- 18 Q: I'm -- 19 A: -- the context of it. 20 Q: I'm not suggesting that Minister 21 Hodgson was being logical, I'm just asking about what it 22 appears that sentence was talking about. 23 A: Well, -- 24 Q: It was talking about -- 25 A: No.
1031 Q: -- an injunction order, is that 2 right? 3 A: It is, and I mean what I've got here 4 is Fox venting his frustrations to me, and you know... 5 Q: Well, I'm not asking about venting 6 frustration, what you say may be true, or may be 7 partially true. 8 My question, first of all, is that 9 sentence appears to be, and you would have understood it 10 to be talking about an injunction; is that right? 11 A: Fox used the term "enjoining order". 12 Q: Right. And that is, and you would 13 have understood it to be an injunction, is that -- 14 A: Correct. 15 Q: -- right? Right. 16 A: But I don't know what he meant by 17 sitting on it for two (2) weeks. 18 Q: Well, now let me ask you about that 19 part of it. 20 Would you agree with me that when Fox is 21 reporting the phrase "sit on it", the word "it" refers to 22 an injunction, is that right; that's what you would have 23 understood to mean? 24 A: I would suppose that, yes. 25 Q: That's the way you would probably
1041 have understood it at the time, is that fair? 2 A: Fair enough. 3 Q: Okay. And would you agree with me, 4 that from a commonsense point of view, when you sit on 5 something, other than the physical description, it is -- 6 it usually means, and you and I would under steam -- 7 understand it to mean: not take action on it; is that 8 right? 9 A: Right. 10 Q: Right? 11 A: Sure. 12 A: So you probably understood from this 13 sentence, at the time, that Inspector Fox was talking 14 about an injunction, and talking about not doing anything 15 in acting on injunction, is that right? 16 A: That's what it appears to say. 17 Q: Yes. And so it appears that Minister 18 Hodgson was asking Inspector Fox about the scenario in 19 which an injunction is obtained, and the police don't do 20 anything with respect to that injunction for two (2) 21 weeks, is that right? 22 That appears to be what -- 23 A: It appears, but in that context, it 24 makes no sense to me. 25 Q: Well, --
1051 A: I mean, I -- you know, without 2 discussing it with Fox as to what he was referring to in 3 regards to his previous discussion with the Minister, I'm 4 not sure the context of what he means by this. 5 Are we sitting on the Park with an 6 injunction, or without an injunction, or why would we sit 7 on -- on it for two (2) weeks if we had an injunction; I 8 -- I -- that's what doesn't make any sense. 9 Q: Well, I'm suggesting to you, and you 10 can tell me if this makes some sense, that Minister 11 Hodgson was interested and concerned about the 12 possibility that an injunction would be obtained but 13 there would not be fast enforcement about -- of the 14 injunction. 15 A: Oh, I don't know. I have no idea. 16 Q: Well, wouldn't you agree with me that 17 these words, which were spoken to you by a -- an 18 Inspector and an OPP officer who speaks your language, 19 these words appear to mean, and you would have understood 20 them at -- to mean at the time, as Minister Hodgson being 21 concerned about an injunction being obtained and the 22 police not doing anything to enforce it. 23 That's what was the concern here, and you 24 would have understood that, isn't that fair? 25 A: If you're saying that was my
1061 understanding at the time, I can't agree with that, 2 because I -- I don't remember the discussion, or how I 3 took his commentary. 4 Q: Well, I -- I understand that you 5 don't have, you say, a recollection of this. My question 6 is, since these were words addressed to you, by a 7 colleague, isn't it true that you probably understood it 8 that way? 9 A: It would be a guess on my part, sir. 10 You know, I'm -- I'm afraid that it's inappropriate for 11 me to guess that that's what I thought at the time. 12 Q: Well, this isn't a wild guess, shot 13 in the dark. Here's some words here and you just agreed 14 with me that when some -- when we -- when somebody says 15 sit on it, we understood what that means and you 16 understand what that means. 17 A: Well, I don't -- 18 Q: This isn't gibberish. 19 A: No, no, my -- I appreciate that and 20 my own -- my -- my comment is that I -- I'm not sure the 21 context that -- that Fox was referring to as to why we 22 would sit on a Court order for two (2) weeks. 23 I mean, a Court order might not even have 24 a time period of two (2) weeks. Like, I don't know where 25 this two (2) weeks comes from, or what -- what that --
1071 why he would do that. 2 That's what doesn't make any sense to me, 3 that's all. I mean, I'm not suggesting that the 4 transcript is inaccurate, but it just -- just doesn't 5 make sense why someone would sit on it for two (2) weeks. 6 Q: All right, what you're saying that if 7 there was -- if, in fact, a Court Order was obtained, the 8 OPP would not sit on it for two (2) weeks? 9 A: I'm saying you'd be doing something 10 with it; obviously, there would be some direction within 11 the Court Order that -- 12 Q: Right. 13 A: You -- you probably have to be doing 14 something with it, you'd be trying to carry it I would -- 15 I would've expect. 16 Q: Well, you just said a few moments ago 17 that you weren't -- you didn't necessarily assume that a 18 Court order would, in fact, give directions to the OPP 19 within the order, right? 20 A: I'm sorry? 21 Q: You said, in our discussion a little 22 while ago, that it wasn't your assumption that a court 23 Order, in an injunction situation, would in fact say 24 essentially OPP do this or OPP do that. 25 A: It -- it may give some direction to
1081 the police, it may not. 2 Q: It may not. 3 A: I -- I mean certainly couldn't bank 4 on way or the other. 5 Q: Right. 6 A: I -- I don't believe. 7 Q: So, my question to you is, are you 8 saying, based on your previous answer, that it's highly 9 unlikely that the OPP, or someone would obtain an order, 10 and the OPP would do nothing on it for two (2) weeks; 11 even if the order didn't direct the OPP anything. 12 A: Well, I -- I guess my expectation is 13 that the Court order would outline a number of things, 14 and while it may not be overt action, but there's 15 probably something that would go on relative to the court 16 injunction that would occur within the two (2) week time 17 period. 18 Even if it was delivering documents of -- 19 of notice, or -- or some other steps, I mean that the 20 Court might decide to be appropriate. I mean, I don't 21 know. I -- I just can't see the Court saying, well 22 here's a Court order and do nothing for the next two (2) 23 weeks. 24 Q: I see. Okay. So you're considering 25 the possibility of actually -- service?
1091 A: Sure. I mean there's a number of 2 steps that -- that might be necessary or -- or be 3 appropriate in the circumstances. 4 Q: Now, let me go back to another part 5 of the conversation in which we discussed, at some 6 length, the request by Inspector Fox -- rather, let me 7 rephrase that. 8 The indication from Inspector Fox that the 9 government was making moves towards an ex parte 10 injunction, that is one that didn't have to be served, 11 and that what they have to show is emergent 12 circumstances, and that the exigencies of a situation are 13 kind of increasing exponentially. 14 And eventually, in this conversation, you 15 said yes, you would testify to a court that that was the 16 case. 17 A: Right. 18 Q: Right? 19 A: Right. 20 Q: And you agree with me that the words 21 increasing exponentially also mean rapidly escalating, 22 right? 23 A: Sure. 24 Q: Now this conversation took place at, 25 according to the time on this particular document, two
1101 o'clock in the afternoon of the 6th, is that right? 2 A: That's when it -- yes. 3 Q: Now, at that time, during this 4 conversation, you were meeting with Chief Coles and 5 Superintendent Parkin, is that right? 6 A: Yes, they were in the office with me. 7 Q: Right. And I guess I can -- is it 8 fair for me to conclude that when you said to Inspector 9 Fox, at approximately two o'clock, that you would 10 testify that events were escalating rapidly, you must 11 have meant that events were rapidly escalating at two 12 o'clock in the afternoon, right? 13 A: What I would have meant is that the 14 events that had occurred to date would -- would support 15 that application. So there's a number of events that had 16 occurred, I mean, you had the altercation when they first 17 went in the Park, you had the -- the damage to the 18 several cruisers the one (1) evening, you had the picnic 19 table incident, and you had the shots being fired back in 20 the military area. 21 There was a number of events. It wasn't 22 like the occupiers had moved into the Park and simply 23 started camping in the Provincial Park; there was a 24 number of other issues that continued to happen, and 25 that's what I thought would demonstrate a need for an
1111 injunction. 2 Q: Well, perhaps, as you said, 3 injunctions in general, and -- and ex parte injunctions 4 in particular, weren't your forte, that wasn't your line 5 of work. And so you may not have -- and this is 6 certainly not a criticism, dwelled on the -- the fine 7 points, but you were agreeing to support -- to -- to tell 8 the court that events were escalating rapidly. 9 A: I was prepared to share with the 10 court the facts as I knew them, which I've just explained 11 some of those facts. 12 Q: Are you saying to me that you didn't 13 fully realize the significance of what you were saying to 14 Inspector Fox when you agreed to say to the Court that 15 events were increasing kind of exponentially? 16 A: No. What I was explaining to Fox was 17 the events as I knew them. I suspected he would talk to 18 McCabe; McCabe was supposed to call me, that was the 19 reason for this phone call in the first place. 20 And when McCabe called, I would share with 21 him what I knew, and I'm sure that he would provide the 22 guidance to whether or not that fulfilled the 23 expectations he had in order to proceed with this order, 24 or not. I mean, it's up to him; he's -- he's the Counsel 25 who's bringing this forward, I'm simply providing an
1121 account of the events as I knew it. I -- I have no 2 control of the injunction process. 3 COMMISSIONER SIDNEY LINDEN: I don't want 4 to interfere with your cross-examination but we have 5 heard this answer before, at least once or twice. This 6 question and this answer has been asked and answered 7 before. 8 MR. MURRAY KLIPPENSTEIN: I understand-- 9 COMMISSIONER SIDNEY LINDEN: I don't want 10 to interrupt you... 11 MR. MURRAY KLIPPENSTEIN: -- I 12 understand that and I think the answer has some 13 significance and it's that significance that I -- 14 COMMISSIONER SIDNEY LINDEN: Everything 15 that you're asking is significant, I understand that, but 16 this particular question -- 17 MR. MURRAY KLIPPENSTEIN: Yes. 18 COMMISSIONER SIDNEY LINDEN: -- has been 19 asked and answered. 20 MR. MURRAY KLIPPENSTEIN: Yes. Thank 21 you. Thank you. 22 COMMISSIONER SIDNEY LINDEN: I'm not sure 23 how helpful it is it do it again. 24 25 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
1131 Q: My concern, Deputy Commissioner 2 Carson, is that it appears to me, and it may well have 3 appeared to other people at the time, that you are giving 4 a -- a green light to an ex parte injunction because of 5 your intimate and -- and very respected knowledge as 6 Incident Commander, and signalling to people that you 7 will testify that events are rapidly escalating. 8 And yet this morning, Deputy Carson, and 9 yesterday afternoon, I spent considerable time 10 questioning you about what, exactly, was happening. And 11 I've questioned you about what Chief Coles was saying 12 while you were in the room. 13 And Chief Coles testified that -- that it 14 was not an urgent situation, and that nothing particular 15 is happening. And you, in the same room, appear to me to 16 be, with respect, saying to a lawyer in Toronto that 17 things are rapidly escalating. 18 This seems to me, Deputy Commissioner 19 Carson, to be a problem; do you have any comment on that? 20 A: Well, that's your opinion, sir. 21 Q: You don't think it's a problem? 22 A: I -- I don't think there is any 23 problem with a police officer standing up in any Court in 24 this land and providing the evidence that he knows before 25 the Court.
1141 And I would suspect that the Court would 2 make the appropriate judgment based on the evidence 3 placed before that Court, and the appropriate injunction 4 would be granted or not granted accordingly, sir. 5 Q: Well, I -- I don't mean to hound you, 6 Commissioner -- Deputy Commissioner, I won't, but it 7 seems to me, with respect, this is an -- an important 8 enough point; I do want to make sure I understand. 9 Now, is it the case that when you said to 10 Inspector Carson -- Inspector Fox -- in this phone call 11 that you would testify, and that you would testify to the 12 issue that's been put before you, which is: are events 13 rapidly escalating, and you said yes. 14 Am I to understand, and this may -- may be 15 quite understandable, that you didn't actually realize 16 that you were going to be saying events are rapidly 17 escalating? 18 In -- in other words, is that too 19 legalistic a reading of it, from your point of view? 20 A: I -- I think you're stretching this 21 far beyond the reality, sir. 22 Q: Hmm hmm. So, when you said to 23 Inspector Carson, in response to the question, that you 24 would testify that events were rapidly escalating, you 25 think that's stretching -- to -- to spend a lot of time
1151 on that is stretching it, is that what you're saying? 2 A: What -- what I'm saying is, Inspector 3 Fox was aware of the events that occurred. He -- he had 4 some discussion with McCabe. Whether it was an ex parte 5 injunction that was sought that day, if that's -- if they 6 felt they had enough information to proceed with an ex 7 parte, I was prepared to provide evidence if that 8 supported the injunction. 9 If there was not enough evidence to 10 support an ex parte, and it was going to go by whatever 11 the standard injunction is, so be it, but my preference 12 certainly would have been to have an injunction sooner 13 than later. And if an ex parte could have been sought 14 and achieved at the earliest opportunity, that would 15 certainly have been my preference. 16 17 (BRIEF PAUSE) 18 19 Q: Well, I -- I will ask you a question 20 related to -- to this, and I've asked a similar, not 21 identical question before, but given the potential 22 significance of this, I just want to be clear about it. 23 Is it fair to assume that from your 24 discussion here that Inspector Fox will turn around to 25 Mr. McCabe and say, I found a witness, a police officer
1161 on site who will testify that events are rapidly 2 escalating? 3 Now, is that a fair conclusion to draw 4 from this overall conversation on tape? 5 A: I'm not sure what you're insinuation 6 there. Does it -- does it mean that there's -- I mean 7 does it say that someone will come and give evidence? 8 Absolutely, it does. 9 Q: I'm not insinuating anything, I'm 10 asking because I want to understand what your position is 11 and I'm asking: Is it fair for us to conclude or infer, 12 based on this overall conversation, that you were 13 participating in, that after that conversation, Inspector 14 Fox will reasonably hang up the phone and walk -- walk 15 away and say, I can now tell Mr. McCabe that we have a 16 police witness on site at Ipperwash who will say that 17 events are rapidly escalating? 18 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 19 Sandler...? 20 MR. MARK SANDLER: I think we're into 21 argument. We're into speculation. 22 COMMISSIONER SIDNEY LINDEN: Yeah. 23 MR. MARK SANDLER: And the other concern 24 I have is, we actually do know, to some extent, the 25 answer to some of these questions because we have the
1171 subsequent telephone conversation that Tim McCabe has 2 with Deputy Commissioner Carson, at which time you see 3 exactly what Deputy Commissioner Carson is and is not 4 prepared to say in support of the injunction. 5 So -- so, you know, that I can deal with 6 at -- in re-examination, but my submission is, we're now 7 into argument. We're now really into speculation and My 8 Friend's position is crystal clear, Deputy Commissioner 9 Carson's position is crystal clear, in my submission, and 10 that My Friend should move on. 11 COMMISSIONER SIDNEY LINDEN: You indicate 12 that you want it to be clear, I think it is pretty clear 13 at this point. 14 MR. MURRAY KLIPPENSTEIN: All right. 15 I'll move on. Thank you. 16 COMMISSIONER SIDNEY LINDEN: Yes? You 17 want to say something, Mr. Falconer? I don't want to 18 interrupt you. 19 MR. JULIAN FALCONER: If Mr. 20 Klippenstein's prepared to move on, and -- 21 COMMISSIONER SIDNEY LINDEN: He seems to 22 be. I think we should move on. 23 MR. JULIAN FALCONER: -- and without a 24 ruling from you Mr. Commissioner, then there's nothing 25 for me to add. But I certainly -- if, on the other hand,
1181 this was a matter that Mr. Klippenstein felt he had to 2 move on by virtue of the objection, my difficulty with 3 the objection is, this is a core area and by my -- 4 COMMISSIONER SIDNEY LINDEN: This is -- 5 I'm sorry? 6 MR. JULIAN FALCONER: This is a core area 7 in terms -- 8 COMMISSIONER SIDNEY LINDEN: Yes. 9 MR. JULIAN FALCONER: -- of the 10 motivations behind -- 11 COMMISSIONER SIDNEY LINDEN: Yes. 12 MR. JULIAN FALCONER: -- the Deputy 13 Commissioner's actions. By my watch, perhaps eight (8) 14 to nine (9) minutes by Mr. Klippenstein has been spent on 15 this area in terms of this particular small line of 16 questioning. 17 COMMISSIONER SIDNEY LINDEN: There was 18 some considerable time spent earlier. I've been keeping 19 track of it and -- 20 MR. JULIAN FALCONER: Right. 21 COMMISSIONER SIDNEY LINDEN: -- it is a 22 core area, that's why we're giving him considerable 23 latitude. 24 MR. JULIAN FALCONER: Right. And so, in 25 the fact that Mr. Sandler's objection, referring to it
1191 being argument, it's not argument. The Witness asked Mr. 2 Klippenstein -- 3 COMMISSIONER SIDNEY LINDEN: Yes. 4 MR. JULIAN FALCONER: -- what he was 5 insinuating and Mr. Klippenstein had to deal with the 6 Witness determining that he wanted to argue with the 7 Questioner. 8 And then -- 9 COMMISSIONER SIDNEY LINDEN: Yes. 10 MR. JULIAN FALCONER: -- Mr. Sandler 11 rises and says this is argument and I'm simply pointing 12 out, in terms of the record from ALTS's point of view, 13 what occurred is an exchange based on the fact that the 14 Witness wasn't actually any more answering the question 15 but, in fact, questioning the Questioner's motivations. 16 And that's how it fell off the rails, so to speak. 17 But it's obviously up to Mr. Klippenstein 18 if he's going to move on. 19 COMMISSIONER SIDNEY LINDEN: Thank you. 20 MR. MURRAY KLIPPENSTEIN: I think Mr. 21 Falconer has correctly evaluated some of what happened, 22 but I will move on. 23 COMMISSIONER SIDNEY LINDEN: Thank you. 24 25 (BRIEF PAUSE)
1201 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 2 Q: I was, in fact, going to move on to 3 the evidence that My Friend Mr. Sandler referred to and 4 if I just can have a moment's indulgence to -- to locate 5 it. 6 COMMISSIONER SIDNEY LINDEN: Hmm hmm. 7 8 (BRIEF PAUSE) 9 10 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 11 Q: If you could turn, Inspector 12 Carson, to the binder that was prepared, that I delivered 13 to you this morning by -- I mean the second volume of 14 materials and it's at Tab 22. 15 MR. DERRY MILLAR: It's also, 16 Commissioner, Exhibit 444-B, Tab 39. 17 COMMISSIONER SIDNEY LINDEN: Tab 39. 18 19 (BRIEF PAUSE) 20 21 COMMISSIONER SIDNEY LINDEN: I don't have 22 a note of it, Mr. Millar. Is this a tape that you played 23 or went into or not? 24 MR. DERRY MILLAR: Yes, it is, sir. 25 COMMISSIONER SIDNEY LINDEN: It is. Yes
1211 I've got it marked here. 2 3 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 4 Q: Do you have that in front of you? 5 A: Yes, sir. 6 Q: A moment ago I was -- I was 7 questioning you and, in fact, I think this is when I was 8 accused of insinuating and other things that lawyers do, 9 that quite possibly Inspector Fox would proceed to Mr. 10 McCabe after his phone call with you and report to him 11 the contents of the phone call. 12 And then what we have here is a phone call 13 at 14:36 or at approximately 2:36 from Mr. McCabe to you; 14 is that right? 15 A: That's right. 16 Q: And do you know if, in fact, Mr. 17 McCabe had spoken with Inspector Fox at the time of this 18 particular phone call about the phone call you'd had half 19 an hour earlier or so with Inspector Fox? I notice 20 McCabe in his transcript says: 21 "I was talking to Ron Fox recently." 22 Anyway, be that as it may. Do you have 23 some recollection of this phone call? 24 A: Yes. 25 Q: And there's some discussion in this
1221 phone call about who should actually provide the 2 evidence, whether it's yourself or somebody else; is that 3 right? 4 A: Correct. 5 Q: And the end result of that was that 6 Detective Sergeant Mark Wright actually ended up 7 providing the evidence; is that right? 8 A: That's right he did. 9 Q: And so I take it that some time after 10 this call, you ended up speaking with Detective Sergeant 11 Mark Wright and advising him that -- that he would be 12 testifying instead of you? 13 A: That's correct. 14 Q: And on page 271, the -- about half 15 way down, Mr. McCabe addresses the issue of ex parte and 16 Mr. McCabe says, quote: 17 "But we'll be seeking this ex parte, as 18 I say, which means without notice and 19 in those circumstances it's -- it's 20 important to be able to show some kind 21 of urgency." 22 Right? 23 A: Right. 24 Q: And you say: 25 ˘Yes.÷
1231 And then Mr. McCabe says: 2 "In order to demonstrate that if the 3 order is not granted or if the -- if 4 the time necessary to give the period 5 of notice that you know serious 6 consequences will occur -- 7 [I'm sorry, thank you] could occur." 8 And you say: 9 ˘Right.÷ 10 Now it appears that Mr. McCabe is advising 11 you that it's important for an ex parte situation to be 12 able to show some kind of urgency; is that right? 13 A: Right. 14 Q: And this discussion is happening 15 again in the afternoon of September 6th? 16 A: Yes, it is. 17 Q: And that's the time period during 18 which Chief Coles had said things didn't seem 19 particularly urgent; right? 20 A: Right. 21 Q: All right. 22 A: But if I can -- 23 Q: Please. 24 A: -- on page 272 I explained to him the 25 circumstances that had taken place for him to understand
1241 this -- the events that had occurred to date. And I 2 guess I would just like to point out that there was 3 discussion about the gunfire. 4 And I -- I think I was very clear in 5 trying to put it in perspective and not trying to over 6 emphasize the significance of the gunfire. So that he 7 understood the facts to the best of my ability. 8 Q: Can you -- can you elaborate on that? 9 A: Well, there had been a lot of 10 discussion about automatic gunfire. 11 Q: Yes. 12 A: And -- and so there was a lot of 13 anxiety or it appeared to be, there seemed to be a lot of 14 discussion about it, you know, being automatic gunfire 15 and -- and the issues that potentially it creates. 16 And -- and I was just trying to point out 17 to him that, you know, while there was some gunfire going 18 on, I personally couldn't say with certainty it was 19 automatic gunfire versus non-automatic gunfire but there 20 was certainly gunfire. 21 And I just want to make sure that given 22 what Ron Fox had discussed earlier around automatic 23 gunfire, that he was aware of -- of that particular 24 event, accurately. 25 Q: Well, yeah, I'll ask you some more
1251 questions about that but -- okay, continue, you were 2 going to refer to some -- some other aspects. 3 A: Well, I -- I just wanted to point out 4 that, you know, I -- I tried to ensure that Mr. McCabe 5 understood the events. 6 Q: Okay. I'll ask you some further 7 questions about that. But do you want to describe to me 8 the -- the comment -- the -- the different aspects you -- 9 A: Well, we can walk through my comments 10 off the transcript here but I just wanted to point out 11 that there were -- that I did note to him some of the 12 incidents that had occurred because he was the individual 13 who was going forward with the ex parte injunction. 14 He needed to -- I wanted to be sure that 15 he understood them as I knew them. That he wasn't 16 dealing with, you know, third hand, fourth hand or 17 whatever. I just wanted to make sure they were on the 18 same page. 19 Q: All right. Well, first of all, you 20 mentioned -- you're talking about gunfire. Now I see on 21 page 272 that you raise a couple of points with him and 22 then you talk about the gunfire. And you say: 23 "The gunfire was back in the bush." 24 Now, in fact, you -- you heard that 25 gunfire yourself?
1261 A: I think it's well documented that I 2 did not -- 3 Q: Right. 4 A: -- that it was reported from the ERT 5 officers on point duty. 6 Q: Right. So when you're speaking here 7 to Mr. McCabe what you're actually doing is conferring 8 second hand or third hand information; right? 9 A: I was providing information as 10 reported by our police officers. 11 Q: Right. All right. And when you had 12 the discussion about guns, about half an hour or three 13 quarters (3/4) of an hour earlier in your conversation 14 with Inspector Fox, you talked about some of the same 15 things, about the problems with relying on this supposed 16 machine gunfire; right? 17 A: I just didn't want it taken out of 18 context, that was the issue. 19 Q: And but you had some similar 20 discussion with Inspector Fox; right? 21 A: Yes, I believe so. 22 Q: And, in fact, in that conversation, 23 Inspector Fox, in the end, says, There was nothing 24 untoward about the gun use, based on what he knew; is 25 that right? I think that's the word he uses, Nothing
1271 untoward. 2 A: Yes. And I -- and I think used 3 terminology like, it was for the audio affect. 4 Q: Right. Well did you convey to Mr. 5 McCabe, in this phone call conversation, what Inspector 6 Fox had said half an hour ago, namely, There was nothing 7 untoward about that gunfire, allegedly heard, based on 8 what you know? 9 A: I don't believe I relayed Fox's 10 opinion about gunfire. I provided him what I knew. 11 Q: Yes. And what you said on page 273 12 is: 13 "It's certainly not something that's 14 going to give you a fuzzy warm 15 feeling." 16 That's what you said; right? 17 MR. MARK SANDLER: Excuse me for a 18 moment. I think in fairness to -- to the Witness who 19 can't expected to have immediate recall of all aspects of 20 all conversations when you're asking whether he 21 communicated the substance of what Inspector Fox said. 22 And in the very passage and My Friend read 23 one (1) line out of, out of 272, he says: 24 "The gunfire was back in the bush. I 25 have to be frank with you, we haven't
1281 had a weapon pointed at us, we haven't 2 seen one fired in any direction. 3 There's no reason to believe that the 4 firing that we heard last night was 5 anything more than audio for our 6 benefit." 7 Which is the same substance that the 8 Witness communicated was the subject of discussion with 9 Inspector Fox. And -- and I suggest that -ű that what 10 follows is equally relevant. 11 12 (BRIEF PAUSE) 13 14 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 15 Q: What was your -- do you recall, 16 either directly or recall based on this transcript or 17 infer from this transcript, the reason for your 18 discussing with Mr. McCabe some of these qualifications 19 about the topic of gunfire that he raised? 20 A: I'm -- I'm sorry? 21 Q: Why -- why did you put -- why did you 22 say to Mr. McCabe, Wait a minute, you've got to realize 23 this and that? Why were you making these qualifications 24 to Mr. McCabe? Is it because you thought people were 25 overreacting to this alleged gunfire?
1291 A: Well, on page 271 he says: 2 "The thing that has gotten people 3 concerned here is reports of gunfire 4 last night." 5 So I simply provided him the context to it 6 as I knew it. So and -- and that's where I got into the 7 discussion about where it occurred. About -- I said: 8 "I'm being frank with you, we have not 9 had a weapon pointed at us. Haven't 10 seen one fired in any direction. 11 And there's no reason to believe the 12 firing that we heard last night was 13 anything more than audio for our 14 benefit." 15 So, no, I just -- then I went on to say: 16 "Okay. So when you hear that it was 17 gunfire." 18 You can't really use that while -- I mean 19 it's a significant factor from a safety point of view 20 from my perspective and that I know obviously there's 21 weaponry in there. So I -- I'm just trying to make sure 22 that he understood the context of it. 23 I mean he raised the issue about the 24 gunfire. So I -- I didn't want him to think that myself 25 or somebody else is going to stand up in the witness box
1301 tomorrow and say that we had automatic weapon fire 2 incoming at us, because that wasn't the context of that 3 gunfire. So I ű- I wanted to make sure he understood the 4 facts. 5 Q: Now, however, when you put these 6 qualifications or -- or context, as you call it, to Mr. 7 McCabe, he's -- he responds with, quote: 8 "Right. But I suppose from a public 9 safety point of view, if you take the 10 view that the occupiers are themselves 11 members of the public, you know, 12 there's -- there's -- there's this kind 13 of stuff going on." 14 What was your understanding of what he 15 meant then, that he was concerned that the occupiers 16 would accidentally shoot themselves? I don't get the 17 feeling you understood what he was getting at because 18 your answer is: 19 "Well, yeah, there's no -- absolutely, 20 like, there's no doubt about it. I 21 mean, it's, you know, it's certainly 22 not something that's going to give you 23 a fuzzy warm feeling." 24 A: Correct. 25 Q: I don't understand that.
1311 A: Well, I would -- I would suggest that 2 the -- the neighbouring residents would not be overly 3 enthused of hearing rapid gunfire in and among -- in -- 4 near their residences, et cetera. 5 Q: Is that what you were referring to in 6 that, because you don't talk about the neighbouring 7 residents? 8 A: Well, he said, "Public safety," so 9 the public lived nearby. I mean, that -- that is the 10 public, relative to that geography, is -- is the people 11 that live in that area. 12 Q: And you were concerned that they were 13 not going to have a fuzzy warm feeling? 14 A: Well, it certainly was going to alarm 15 people to hear gunfire, I would suggest. 16 Q: But you said that you knew that the 17 people there had guns because they, in fact, were 18 hunters; right? 19 A: That's -- that's my perspective. I 20 understand that, yes. 21 22 (BRIEF PAUSE) 23 24 Q: But at the top of page 273, you say: 25 "To say from a safety point of view
1321 that it's been -- our officers have 2 been threatened with weapons, I can't 3 say that." 4 A: Right. 5 Q: Right? 6 A: Sure. 7 Q: And so you're responding to his 8 request and you're saying that if the concern is one (1) 9 of safety, our officers haven't been threatened? 10 A: Right. 11 Q: Okay. 12 A: That -- that -- that was factual. 13 Q: Right. 14 A: Yes. 15 Q: And, to your knowledge, no one else 16 had been threatened either? 17 A: I'm sorry? 18 Q: And, to your knowledge, no one else 19 had been threatened other than -- no one other than 20 offers -- officers also had not been threatened? 21 A: Okay. Correct. 22 Q: Don't ask me to repeat the question. 23 Mr. Sandler has just raised an objection, 24 I think on the basis of lunch time? 25 I -- I don't know, Commissioner,
1331 MR. MARK SANDLER: It sounded a bit like 2 a lunch time question. All of us get a little more 3 difficult just as the lunch time approaches. 4 MR. MURRAY KLIPPENSTEIN: I -- I consider 5 that an objection. 6 Commissioner, I don't know if this is -- 7 if this is a good time to -- to pause for lunch? 8 COMMISSIONER SIDNEY LINDEN: We'll take 9 our lead from you, Mr. Klippenstein. If you think this 10 is a good time, that's fine. That's fine. 11 MR. MURRAY KLIPPENSTEIN: It's 12 convenient from my point of view. 13 COMMISSIONER SIDNEY LINDEN: Well, we'll 14 take a break right now. 15 THE REGISTRAR: This Inquiry stands 16 adjourned until 1:20. 17 18 --- Upon recessing at 12:07 p.m. 19 --- Upon resuming at 1:21 p.m. 20 21 THE REGISTRAR: This Inquiry is now 22 resumed, please be seated. 23 24 (BRIEF PAUSE) 25
1341 COMMISSIONER SIDNEY LINDEN: Fine. 2 MR. MURRAY KLIPPENSTEIN: Thank you, 3 Commissioner. Good afternoon, Deputy Commissioner. 4 THE WITNESS: Good afternoon. 5 6 (BRIEF PAUSE) 7 8 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 9 Q: Sorry, Commissioner, I was just 10 seeking clarification on the transcript that we were 11 reviewing just before lunch and that's found at -- do you 12 still have that before you, Commissioner? 13 A: The transcript in regards to Mr. 14 McCabe? 15 Q: Yes. 16 A: Yes, I do. 17 Q: Okay. Good. Now, in that 18 conversation that you had with Mr. McCabe, which we were 19 looking at earlier, you were referring to a number of 20 matters that you drew into the conversation, I guess -- 21 well, let me ask you why you -- you -- you said the 22 things you said. 23 On page 272 you talked about a fire, and 24 why did you mention that? 25 A: I just wanted to make sure he
1351 understood the events as I knew it and the progression of 2 events. 3 Q: And so you mentioned that one (1) 4 incident, right, of the fire and rocks thrown at the 5 windshields or vehicles; is that right? 6 A: It was the -- the -- the fire that 7 resulted with the damage of the cruisers and the gunfire 8 incident. 9 Q: Right. Now, we've discussed the 10 gunfire incident, or alleged gunfire incident, or 11 reported gunfire incident. And that's the one that half 12 an hour or three quarters (3/4) of an hour earlier 13 Inspector Fox had referred to as nothing, as no evidence 14 the guns were used in an untoward fashion; is that right? 15 A: Yes. 16 Q: But aside from that gunfire issue, 17 the only real incident you mentioned to Mr. McCabe was 18 the -- the rocks damaging the three (3) vehicles; is that 19 right? 20 A: Correct. 21 Q: And when was that again? 22 A: When did that occur? 23 Q: Yeah. 24 A: Through the night of September the 25 5th.
1361 Q: Through the night of September 5th? 2 A: Right. 3 Q: Right. But it's fair to say from the 4 rather lengthy discussion we had this morning that 5 despite the incident of those rocks being thrown at 6 vehicles, you didn't anticipate when you left the shift 7 around 7:00 or 7:30 on the 6th that the Native protesters 8 in the Park would move out of the Park that night? 9 A: I didn't have a sense of that, no. 10 Q: Yeah. And is there any other 11 specific point you make to Mr. McCabe to justify the 12 urgent injunction he's asking you about? 13 A: Not that I can think of, off the top 14 of my head. 15 Q: So that's the only one, other than 16 the gunfire? 17 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 18 Sandler...? 19 MR. MARK SANDLER: I have no objection 20 again to the questions but I don't see anywhere here that 21 Mr. McCabe actually asked that question. What are the 22 facts that you rely upon to support your view that as Mr. 23 McCabe says that serious consequences could occur at the 24 time necessary to give the period of notice, not longer. 25 So again, that's a perfectly legitimate
1371 question to say is there anything in the conversation. 2 But I don't want you to be mislead inadvertently because 3 I don't see anywhere in the transcript where -- this 4 transcript, where he's asked what the factors are -- 5 COMMISSIONER SIDNEY LINDEN: Thank you. 6 MR. MURRAY KLIPPENSTEIN: Mr. Sandler 7 says he didn't object to a question. I think he was 8 objecting that I didn't ask a particular question. 9 MR. MARK SANDLER: I would never object. 10 COMMISSIONER SIDNEY LINDEN: Carry on. 11 12 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 13 Q: Now, Deputy Commissioner Carson, I 14 notice when I go through the transcript of that 15 conversation, that as I see it there are two (2) parts or 16 two (2) occasions where he discusses what he believes 17 they will need to show and -- in order to obtain it on an 18 ex parte basis. And one is at 271 in the middle, could 19 you look at that? And he says, quote: 20 "We'll be seeking this ex parte as I 21 say which means without notice. And in 22 those circumstances it's important to 23 be able to show some of kind of 24 urgency." 25 Do you see that?
1381 A: Yes, sir. 2 Q: Now I -- I just note that he says: 3 "it's important to be able to show some 4 kind of urgency" 5 but there is one (1) example of what he is 6 indicating what they need to show, right? 7 A: Sure. 8 Q: And then I think he mentions that 9 again a little later on top of page 274 and he says, 10 quote: 11 "If he -- if the judge puts it to you 12 that you as a professional police 13 officer, do you -- do you find -- do 14 you think this injunction should be 15 granted on this urgent basis, do you 16 know what your answer for that -- to 17 that?" 18 Close quote. Do you see that? 19 A: Yes. 20 Q: So again he's mentioning the -- the 21 urgent aspect of the -- of the basis for the injunction, 22 is that right? 23 A: Yes. 24 Q: Now, Deputy Commissioner Carson, I 25 just want to ask you about a background factor in this
1391 conversation and see how or if it changes your assessment 2 of this -- these two (2) phone calls in the middle of the 3 afternoon or early afternoon on September 6th. 4 I anticipate we'll hear evidence that 5 notes record Tim McCabe on the morning of September 6 as 6 advising the government that there was no case for an ex 7 parte injunction because there was no urgency. 8 Now, after that apparent advice in the 9 morning we have the meeting -- the meeting that Inspector 10 Fox refers to in the phone call you had with him, that is 11 the meeting which included a number of cabinet ministers 12 and the Premier. 13 And then I anticipate we will hear 14 evidence that their notes taken with respect to the -- 15 some of the contents of that meeting indicate that at 16 that meeting Larry Taman, who was Deputy Attorney General 17 at the time, indicated that the government should be 18 cautious about an ex parte injunction, but that the 19 Premier and Minister Hodgson came out strong. 20 And it is after that meeting that 21 Inspector Fox calls you in the phone call we've had 22 played and reviewed, and the phone call that we've just 23 reviewed with respect to Mr. McCabe occurred. 24 Does it cause you any -- do you think it's 25 any reason for -- for concern that, apparently according
1401 to the anticipated evidence, Mr. McCabe would be advising 2 the government on the morning of the 6th there was no 3 case for an ex parte injunction because there was no 4 urgency. 5 But that after a meeting in the early 6 afternoon at which the Premier and Minister Hodgson 7 apparently commented on the issue, Mr. McCabe is now 8 calling you to seek your assistance for an urgent 9 injunction? 10 COMMISSIONER SIDNEY LINDEN: Yes. Just 11 hold on for a second before you answer, Deputy. Yes, Mr. 12 Downard? 13 OBJ MR. PETER DOWNARD: My Friend's asking 14 this Witness a question about is it of concern? It seems 15 to me he's -- he's asking a question of this Witness he 16 could ask to anyone in the room. This question seems to 17 have nothing to do with the observations, perceptions, 18 recollections of this Witness. 19 COMMISSIONER SIDNEY LINDEN: I think you 20 want to answer that. I think that I should let Mr. 21 Klippenstein... 22 MR. JULIAN FALCONER: To respond on 23 behalf of ALST, my simple submission would be that it -- 24 it could be asked, because it's very relevant. 25 COMMISSIONER SIDNEY LINDEN: Thank you.
1411 MR. JULIAN FALCONER: Does this Witness 2 know of anything that would have caused Mr. McCabe to 3 change his point of view given the -- 4 COMMISSIONER SIDNEY LINDEN: Hmm hmm. 5 MR. JULIAN FALCONER: -- change, because 6 this Witness was involved with Mr. McCabe. 7 COMMISSIONER SIDNEY LINDEN: Thank you. 8 MR. JULIAN FALCONER: I'm just making a 9 suggestion to -- to deal with the objection. 10 COMMISSIONER SIDNEY LINDEN: I'd rather 11 have Mr. Klippenstein decide to respond to Mr. Downard's 12 objection. 13 MR. MURRAY KLIPPENSTEIN: Thank you, 14 Commissioner. In my respectful submission, it is a fair 15 question because this Witness was obviously very 16 personally and directly involved in the ex parte 17 injunction, was -- had discussed it with Mr. McCabe. 18 We've gone into great detail about the 19 basis for the -- for the -- for the request in the 20 injunction that was discussed. I'm sorry, Commissioner? 21 COMMISSIONER SIDNEY LINDEN: You're 22 asking him if it was of any concern to him as incident 23 commander at the time these events were occurring, that's 24 what you were asking? 25 MR. MURRAY KLIPPENSTEIN: Yes. Yes.
1421 I'm asking him as an OPP officer who was being -- 2 COMMISSIONER SIDNEY LINDEN: Yes. Who 3 was -- 4 MR. MURRAY KLIPPENSTEIN: -- drawn into 5 testimony, yes. 6 COMMISSIONER SIDNEY LINDEN: Yes. I 7 think it's a question you can ask this Witness at this 8 time. 9 MR. MURRAY KLIPPENSTEIN: Yes. 10 COMMISSIONER SIDNEY LINDEN: I 11 understand, Mr. Downard, there will other opportunities, 12 I'm sure, for you to raise that particular objection, but 13 I think this question is legitimate. 14 Yes, Ms. Twohig? 15 OBJ MS. KIM TWOHIG: Yes, Mr. Commissioner. 16 I'd like to object to the question as well -- 17 COMMISSIONER SIDNEY LINDEN: Go ahead. 18 MS. KIM TWOHIG: -- in that this Witness 19 is being asked to give his assessment, after the fact, as 20 to whether some unknown person might be concerned based 21 on information that -- or events that may have occurred 22 outside of his knowledge and experience and I submit that 23 that's not a proper question. 24 COMMISSIONER SIDNEY LINDEN: I didn't 25 have the impression that was the question, Ms. Twohig.
1431 If that were the question, I think you'd be right. But-- 2 MS. KIM TWOHIG: Hmm hmm. 3 COMMISSIONER SIDNEY LINDEN: -- do you 4 want to ask the question again, then -- 5 MR. MURRAY KLIPPENSTEIN: Sure. 6 COMMISSIONER SIDNEY LINDEN: ű- Mr. 7 Klippenstein? Let's see if we're on the same track. 8 9 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 10 Q: Commissioner, Deputy Commissioner 11 Carson, as a police officer and the incident commander 12 who was, obviously, very much involved in the -- in the 13 incident at Ipperwash and in the issue of an injunction, 14 does it concern you professionally, as a police officer, 15 when you were -- when a Senior Attorney General lawyer, 16 Mr. McCabe, according to anticipated evidence, was 17 advising the government on the morning of the 6th that 18 this particular situation was not a case for an ex parte 19 injunction, because there was no urgency. 20 And then there's a meeting in the 21 afternoon, in the early afternoon, at which, according to 22 the anticipated evidence from notes, Larry Taman the 23 Deputy Attorney General, advises the government against 24 rushing in with an ex parte injunction, but the notes 25 suggest that the Premier and Minister Hodgson came out
1441 strong. 2 And then after that, the lawyer, Mr. 3 McCabe, apparently, contrary to what his advice was in 4 the morning, is contacting you and asking you to testify 5 that there was urgency? 6 COMMISSIONER SIDNEY LINDEN: The more 7 preamble you put on the question, the more likely it's -- 8 there's going to be objections. 9 But, in any event. 10 Yes, Ms. Twohig...? 11 OBJ MS. KIM TWOHIG: Yes, I do object to the 12 question as posed by My Friend. First of all, he's 13 putting evidence that he expects might be called, and it 14 is not yet on the record to the Witness. And he's asking 15 the Witness whether, if that supposed evidence were known 16 to the Witness at the time, what would he have done. 17 And that's a hypothetical question which, 18 I submit, is improper. 19 If he's asking the Witness whether he was 20 aware of any of those events at the time, and if it 21 caused him concern, that's different. 22 But that's not how I understood the 23 question. 24 MR. MURRAY KLIPPENSTEIN: If I may 25 respond? But neither of those things were what I asked.
1451 I simply asked, presently is the Deputy Commissioner 2 concerned, in any way, based on that anticipated evidence 3 and his involvement in the -- his requested involvement 4 in the injunction. That was my question. 5 COMMISSIONER SIDNEY LINDEN: I'm sorry, 6 I'm sorry, what is your question again? Don't do the 7 whole question again, but what's the essence of the 8 question? 9 MR. MURRAY KLIPPENSTEIN: Was he -- is he 10 concerned -- 11 COMMISSIONER SIDNEY LINDEN: Now? 12 MR. MURRAY KLIPPENSTEIN: -- based -- yes 13 -- based on that anticipated evidence? 14 COMMISSIONER SIDNEY LINDEN: Well, that's 15 a different question than I thought you were asking 16 earlier. 17 MR. MURRAY KLIPPENSTEIN: Oh. Well, I -- 18 I asked, does it cause him concern. And the essence of 19 it is, Commissioner, is he's been asked to participate in 20 a -- an important Court proceeding where there's big 21 stakes involved, and if the -- the legal position has 22 been changing before he got there, does that cause him 23 concern about what he was being asked to put forward to 24 the Court. 25 COMMISSIONER SIDNEY LINDEN: Well, I'm a
1461 little confused with respect to timing what you're 2 asking, whether you're asking what his feeling was at the 3 time about what he knew at the time, or what his -- what 4 his concern is now, given the fact that he's Deputy 5 Commissioner. 6 Perhaps I'm misunderstanding the essence 7 of your question. 8 MR. MURRAY KLIPPENSTEIN: Well, I think, 9 Commissioner, I -- I'm trying to understand whether this 10 particular witness, who was asked to testify that -- that 11 there was urgency -- 12 COMMISSIONER SIDNEY LINDEN: In 1995. 13 MR. MURRAY KLIPPENSTEIN: In 1995. And 14 according to the anticipated evidence will learn that 15 there was this change in position on that very issue by 16 the government advising lawyers and the apparent cause 17 for that change in position was this meeting including -- 18 COMMISSIONER SIDNEY LINDEN: Well, we 19 don't know that. 20 MR. MURRAY KLIPPENSTEIN -- the Premier. 21 COMMISSIONER SIDNEY LINDEN: I mean, are 22 you asking him if there was some concern? 23 MR. MURRAY KLIPPENSTEIN Yes, I'm just 24 asking if there's a concern, given those three (3) 25 events, if you will, those different things, about his
1471 participation -- well, he didn't actually participate, 2 but his request to participate in the Court proceeding 3 for an ex parte injunction. 4 COMMISSIONER SIDNEY LINDEN: I'm sorry. 5 Yes, Ms. Twohig, do you still have an objection? 6 OBJ MS. KIM TWOHIG: I do and I don't know if 7 I need to restate it but, again, the Witness is not being 8 asked about what he knew at the time or whether he had 9 concerns at the time, but rather if he would be concerned 10 now, given a certain set of hypothetical facts. 11 And I suggest that that's not a proper 12 question. 13 COMMISSIONER SIDNEY LINDEN: Thank you. 14 Mr. Millar, do you want to help me out? I 15 reach for Mr. Millar when I need some help. 16 MR. DERRY MILLAR: As I understand it, 17 the question is, assume that Tim McCabe, from the notes, 18 said there's no grounds for an interlocutory junction -- 19 or an ex parte injunction. 20 COMMISSIONER SIDNEY LINDEN: All right, 21 well, you said you assume that; is there anticipated 22 evidence to that affect? 23 MR. DERRY MILLAR: Well, there's a note 24 that My Friend is -- 25 COMMISSIONER SIDNEY LINDEN: Was
1481 referring to. 2 MR. DERRY MILLAR: -- referring to that 3 has that in it. Now, whether that end up -- that -- that 4 has -- the note has that in it. 5 COMMISSIONER SIDNEY LINDEN: Yes. 6 MR. DERRY MILLAR: Then secondly, there's 7 a comment by Mr. Taman, apparently, in a note as well, 8 that he recommends against rushing in, as I think. 9 COMMISSIONER SIDNEY LINDEN: That's 10 referred to in the transcript as well. 11 MR. DERRY MILLAR: It's -- there's a 12 note -- 13 COMMISSIONER SIDNEY LINDEN: There's a 14 note? 15 MR. DERRY MILLAR: -- to that affect. 16 COMMISSIONER SIDNEY LINDEN: To that 17 affect? 18 MR. DERRY MILLAR: And so the question 19 that I -- as I understand it is -- then I think the third 20 factor was this meeting with the Premier. And then the 21 question is, does that today -- 22 COMMISSIONER SIDNEY LINDEN: Cause 23 concern. 24 MR. DERRY MILLAR: -- cause him concern 25 because the first three (3) factors he didn't know, back
1491 then. Now, that's what I understand the question to be. 2 I have no troub -- I -- I have -- I'm not objecting to 3 the question on that basis. 4 I just don't know if it has -- what weight 5 -- how it advances us, but I think that's what I took 6 from Mr. Klippenstein's question. 7 COMMISSIONER SIDNEY LINDEN: Are you in 8 agreement that is the question, Ms. Twohig? I mean 9 that's what Mr. Klippenstein -- 10 MS. KIM TWOHIG: That seems to be the 11 question. But my concern is that it's both irrelevant 12 and even if it could be relevant, it really has no weight 13 because the -- the Witness has testified that -- not that 14 he was asked to give evidence of urgency. And I think we 15 need to clarify that first of all. 16 He was asked if he thought there was 17 urgency and if he would be willing to testify. And 18 that's slightly different. He said that he had indicated 19 a willingness to tell the Court the truth as he knew it 20 at that time. 21 COMMISSIONER SIDNEY LINDEN: Yes. 22 MS. KIM TWOHIG: So what instructions 23 were given and whether the instructions were or were not 24 changed is completely irrelevant to his agreement to give 25 evidence and to tell the Court his knowledge of the
1501 facts. 2 MR. DERRY MILLAR: Actually I agree with 3 that but I think -- 4 COMMISSIONER SIDNEY LINDEN: So do I. 5 MR. DERRY MILLAR: -- but I think it's 6 still a fair question to say assuming a, b, and c today 7 it may not have much weight, but today, was that of 8 concern. 9 COMMISSIONER SIDNEY LINDEN: Okay. I 10 think it's a question that can be asked and answered. 11 But my view, you're right, it is relevant in my view. 12 It's relevant how much weight, that remains to be seen. 13 But I think it's a question that can be asked and 14 answered. 15 MR. MURRAY KLIPPENSTEIN: Do I really 16 have to ask it again? 17 COMMISSIONER SIDNEY LINDEN: Well, I hope 18 not because I have a feeling that if you ask it again 19 there'll be other objections. 20 Do you -- do you know what the questions 21 is? Well, I'm certainly not going to interpret it for 22 you. 23 THE WITNESS: Well, I can -- I can make 24 my best attempt to answer it. 25 COMMISSIONER SIDNEY LINDEN: All right.
1511 THE WITNESS: Quite frankly, I don't have 2 a concern how Mr. McCabe would have come to the 3 conclusion that he was going to seek one (1) kind of an 4 order or another. I -- I would suggest -- my opinion is 5 that he has a legal responsibility to understand which 6 process is most appropriate and which one has the more 7 likely chance of success. 8 And my only concern was that we put the 9 facts forward as straightforward and as factual as any 10 police officer possibly could. 11 MR. MURRAY KLIPPENSTEIN: All right, 12 thank you. 13 COMMISSIONER SIDNEY LINDEN: Thank you. 14 MR. MURRAY KLIPPENSTEIN: ThatĂs very 15 helpful. 16 17 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 18 Q: Now, Commissioner, I want to raise 19 another document and, frankly, if I get a blizzard of 20 objections I won't proceed, but -- 21 COMMISSIONER SIDNEY LINDEN: Oh, that's a 22 dangerous way to proceed, a very dangerous way to 23 proceed. 24 MR. MURRAY KLIPPENSTEIN: If I could just 25 indicate, there's a doc -- Inquiry Document 3000759 is a
1521 -- it's entitled, "A Briefing Note for the 2 Interministerial Policy Forum, November 26th, 1991." And 3 it was the subject of some discussion during examinations 4 for discovery. 5 And it's a -- appears to be a policy 6 briefing note signed or initialled by Thomas O'Grady, the 7 Commissioner of the OPP in 1991, dealing squarely with 8 the issues we have before us. And I wonder if -- I 9 believe My Friend Mr. Millar has asked Deputy 10 Commissioner Carson if -- if he's seen it and I think he 11 doesn't recall, but it may be useful to review it anyway, 12 given its status. 13 And that was Document Number 3000759. 14 COMMISSIONER SIDNEY LINDEN: Is that an 15 OPP briefing note or a cabinet briefing note? Is this an 16 OPP note, an OPP briefing note? 17 MR. MURRAY KLIPPENSTEIN: Yes, it's -- 18 it's a briefing note as initialled by Commissioner Thomas 19 O'Grady dated November 1991 and I'll just see if I can 20 get a copy for my -- for Mr. -- or Deputy Commissioner 21 Carson to review. It won't -- it will just take a 22 moment. 23 THE WITNESS: Thank you. 24 MR. MURRAY KLIPPENSTEIN: It's also in a 25 production of -- document of materials we've just
1531 provided, Volume 3 Tab 2, I believe. Tab 11? Thank you. 2 MR. DERRY MILLAR: This was a -- My 3 Friend Mr. Klippenstein is right, this is a policy. I 4 asked the Deputy Commissioner if he had seen the policy 5 and he said, No. And I -- and I believe this -- this is 6 the policy I was referring to, but he had never seen it. 7 8 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 9 Q: I'll just give you a moment to review 10 it. 11 A: I don't believe I had seen it before 12 1995. 13 Q: Okay. 14 COMMISSIONER SIDNEY LINDEN: Given the 15 fact that he hasn't seen it, do you still want to ask him 16 some questions about it? 17 MR. MURRAY KLIPPENSTEIN: Yes, I would -- 18 COMMISSIONER SIDNEY LINDEN: All right. 19 MR. MURRAY KLIPPENSTEIN: -- because it 20 directly interconnects with some of the very issues we 21 are dealing with and -- 22 COMMISSIONER SIDNEY LINDEN: I don't see 23 any objections. We'll see. I think you should carry on. 24 MR. DERRY MILLAR: We'll be -- we'll be 25 calling Mr. O'Grady --
1541 COMMISSIONER SIDNEY LINDEN: Yes. 2 MR. DERRY MILLAR: -- who was the 3 Commissioner at the time. 4 COMMISSIONER SIDNEY LINDEN: Yes. 5 MR. DERRY MILLAR: So this document will 6 be proof through him, so I -- I believe My Friend wants 7 to mark it as an exhibit. 8 COMMISSIONER SIDNEY LINDEN: That's fine. 9 MR. MURRAY KLIPPENSTEIN: Perhaps that 10 could be done? 11 THE REGISTRAR: P-472, Your Honour. 12 COMMISSIONER SIDNEY LINDEN: P-472. 13 14 --- EXHIBIT NO. P-472: Inquiry Document 3000759 15 entitled, "A Briefing Note 16 for the Ipperwash Policy 17 Forum, November 26th, 1991 18 issue: Protesters/ 19 blockades/dissent" 20 21 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 22 Q: Deputy Commissioner Carson, have had 23 a moment to read this? 24 A: Yes. 25 Q: And this is the -- it's entitled,
1551 "Briefing Note for the Interministerial Policy Forum, 2 November 26, 1991" and -- on the issue of protesters, 3 blockades, and dissent. 4 And this appears to describe a recommended 5 approach that the OPP use in situations of protest, 6 including occupation of land in protest and comments on 7 the -- the long-term effects and short-term issues and 8 what the OPP approach will be. And I suspect -- well, 9 perhaps you can comment on this before I ask you 10 questions about it. 11 Do you have any comments on this? 12 A: That this appears to be policies 13 presented by Commissioner O'Grady. 14 Q: And I was going to ask, do you have 15 any disagreement with any of this, but I don't think I'll 16 ask you that question. 17 A: I -- I really disagree with the -- 18 the thoughts of the Commissioner. 19 Q: There's a number of comments in there 20 that I just wanted to review. 21 The first sentence says, quote: 22 "When dealing with anti-social or 23 alleged criminal behaviour involving 24 protesters, hostage takers, and armed 25 persons, the initial response of the
1561 OPP has traditionally been one (1) of 2 negotiation, in an effort to avoid the 3 use of physical force if at all 4 possible." 5 I'll skip a sentence, quote: 6 "This philosophy remains the OPP's 7 approach to demonstrations of social 8 unrest including blockades. 9 Frequently, such blockades are erected 10 on land claimed by those involved in 11 the blockade. 12 Regardless of the validity of the 13 claim, it is prudent on the part of the 14 police to ensure that the ownership 15 issue is resolved prior to taking 16 action. 17 In most cases, the question of 18 ownership or rightful occupation can be 19 addressed from a police point of view 20 if the complainant is successful in 21 obtaining an injunction, which 22 specifies what action, if any, the 23 police must take. 24 It must be remembered that an 25 injunction, being a Court order, leaves
1571 the OPP no option but to follow it's 2 directions. 3 The long term result of the use of 4 force must always be considered. In 5 some instances, force will quickly 6 resolve a short term problem, but 7 result in the committal of massive 8 resources for long periods of time in 9 the future. 10 In the final analysis, a negotiated 11 solution is always more desirable than 12 one brought about by the use of force. 13 The OPP have, and will continue to 14 employ this strategy. In short, the 15 OPP approach will be as follows: 16 1. Seek a negotiated solution; 17 2. Arrest for breach of peace where 18 appropriate if negotiation fails and 19 release on removal from site; and 20 3. If arrest for breach of peace 21 fails, to clear site after a period of 22 time, arrest and charge as 23 appropriate." 24 And does this strike you as -- frankly, I 25 don't want to put you in a difficult position in asking
1581 you questions about a policy that appears to be signed by 2 the Commissioner. I don't -- I'm not playing games with 3 you here, but I wonder if you would comment, if you -- if 4 you have any, on the sentence that says: 5 "The initial response of the OPP has 6 traditionally been one of negotiation 7 in an effort to avoid the use of 8 physical force, if at all possible." 9 Can you comment on that? 10 A: I would suggest that is a strategy 11 we've employed for as many years as I can remember. 12 Q: All right. Now it specifically 13 mentions blockades erected on land claimed by those 14 involved in the blockade. 15 That appears to be a specific reference or 16 at least includes references to First Nation claims and 17 disputes about land; is that fair? 18 A: I'm -- I -- I'm not sure I understand 19 your question. 20 Q: Okay. I just -- that -- that 21 sentence appears to encompass issues where First Nations 22 individuals occupy land with a claim to that land; is 23 that fair? 24 A: Where did you see First Nations 25 issues?
1591 Q: I don't -- I don't see it there, 2 that's why I'm asking the question. It would appear -- 3 let me just re-read the sentence to you again, just for 4 clarity. Quote: 5 ˘Frequently such blockades are erected 6 on land claimed by those involved in 7 the blockade." 8 Close quote. Now, that doesn't 9 specifically refer to the First Nations right here. 10 A: Oh, I thought you had a First Nations 11 reference here. I just hadn't seen that. 12 Q: No, there isn't, but my -- my -- my 13 question is merely that appears to at least include some 14 First Nation claim situations; is that right? 15 A: I would suggest that it would include 16 but not be -- 17 Q: Limited to? 18 A: Right. 19 Q: Right. The next sentence talks about 20 the prudence on the part of the police of resolving the 21 ownership issue before taking action. 22 And I note that the next sentence again 23 mentions ownership, but also mentions, "rightful 24 occupation." 25 Do you see that?
1601 A: Yes. 2 Q: And it specifically talks about 3 obtaining an injunction, and that appears to be what has 4 been, you say your strategy in the Ipperwash matter for a 5 long time; is that right. 6 A: From the very outset. 7 Q: Yes. 8 9 (BRIEF PAUSE) 10 11 Q: Now, I just suggest to you that where 12 the policy says it is prudent on the part of the police 13 to ensure that the ownership issue is resolved prior to 14 taking action, or the rightful occupation issue, would 15 you agree with me that there may be an implication there 16 that if it is -- if such an issue is going to be 17 resolved, particularly through an injunction, the 18 injunction has to be fairly obtained, because then some 19 of the purposes that this refers to won't be achieved if 20 it's not fairly obtained. 21 And obviously, I'm asking you: doesn't 22 this suggest that an ex parte injunction may not be the 23 right injunction to achieve the goals in this policy? 24 COMMISSIONER SIDNEY LINDEN: I don't 25 understand the question in the context of this statement,
1611 Mr. Klippenstein. 2 MR. MURRAY KLIPPENSTEIN: Let me try and 3 be more clear. 4 If this policy says that an injunction is 5 -- is useful from a policing perspective because it 6 resolves ownership or occupation issues. the injunction 7 won't be very useful for that purpose if it doesn't 8 actually resolve them. And an ex parte injunction may be 9 problematic in resolving those for the simple reason that 10 one (1) party never gets to Court. 11 COMMISSIONER SIDNEY LINDEN: Ms. Twohig 12 has an objection and I think we'd better hit it before we 13 proceed. Once again, the configuration of the room makes 14 it difficult for these objections to be timely so we have 15 to hold our fire for a bit. Yes? 16 OBJ MS. KIM TWOHIG: Thank you, Mr. 17 Commissioner. 18 Yes, my objection is that a suggestion is 19 being put to the Witness that the obtaining of an ex 20 parte injunction is, in some way, unfair. 21 COMMISSIONER SIDNEY LINDEN: Yes. 22 MS. KIM TWOHIG: And, My Friend knows, as 23 do most of us in this room, that it's a perfectly 24 legitimate -- 25 COMMISSIONER SIDNEY LINDEN: Yes.
1621 MS. KIM TWOHIG: -- legal process and I 2 wouldn't want members of the public to think, based on 3 this question, that -- 4 COMMISSIONER SIDNEY LINDEN: Yes. 5 MS. KIM TWOHIG: -- there was 6 anything proper about the -- improper about the 7 application for an ex parte injunction. 8 COMMISSIONER SIDNEY LINDEN: Yes, I think 9 that's a legitimate point to make. I mean, there are 10 different types of injunctions as we all know, but all of 11 them have to be obtained in Court and they have to be 12 issued by a judge after proper procedure, given the 13 nature of the injunction as followed. 14 So, I think it's wrong to give the 15 implication that some injunctions might be unfair. 16 Well... 17 MR. MURRAY KLIPPENSTEIN: I think -- I 18 think -- thank you, Commissioner, and My Friend's point 19 is -- is correct in the sense that I didn't intend to 20 suggest -- 21 COMMISSIONER SIDNEY LINDEN: Yes. 22 MR. MURRAY KLIPPENSTEIN: -- that an ex 23 parte injunction is necessarily fair. 24 COMMISSIONER SIDNEY LINDEN: It's 25 different --
1631 MR. MURRAY KLIPPENSTEIN: Yes. 2 COMMISSIONER SIDNEY LINDEN: -- than an 3 injunction that requires service and notice, et cetera. 4 MR. MURRAY KLIPPENSTEIN: And it also 5 requires full and fair disclosure explicitly -- 6 COMMISSIONER SIDNEY LINDEN: Yes. 7 MR. MURRAY KLIPPENSTEIN: -- under the -- 8 under the rules. 9 COMMISSIONER SIDNEY LINDEN: But I think 10 that's something for you to make in argument, there's not 11 question about that. I'm not sure how much more you can 12 get out of the Witness with respect to this policy 13 statement. 14 MR. MURRAY KLIPPENSTEIN: I'll -- I'll 15 move on, Commissioner. 16 17 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 18 Q: Would you -- would you agree with me, 19 Deputy Commissioner Carson, that in fact, this situation 20 we find ourselves in, in Ipperwash and in this Inquiry, 21 is -- is the sort of thing that is included in the second 22 sentence of the second paragraph, which says: 23 "In some instances force will quickly 24 resolve a short-term problem, but 25 result in the committal of massive
1641 resources for long periods of time in 2 the future." Close quote. 3 Now, in the particular situation at 4 Ipperwash, there -- there was an application of force; 5 isn't that true? 6 A: Not in relation to the Park. 7 Q: Can you explain that? 8 A: At -- at no time did the officers 9 enter, in any way, the Provincial Park that was the 10 subject of this dispute. 11 Q: Well, the -- the -- the parking lot 12 seems to have been the subject of some dispute as well, 13 isn't that fair? 14 A: The issue in the parking lot wasn't 15 precluded to who owned the property, that -- that wasn't 16 the issue at that point in time. The issue in the 17 Provincial Park was rightful ownership and the claim that 18 it -- it was in dispute. 19 It appeared that the Ministry of Natural 20 Resources had documentation that showed title. And as 21 this particular piece of policy indicates that -- that 22 can be best addressed from a police point of view if the 23 Complainant is successful in obtaining an -- an 24 injunction, which is exactly what was being requested. 25 But the application of force was about the
1651 activity outside of the Park, not within the Park. 2 Q: And are you saying that the use of 3 force was not related to the Park issue? 4 A: Not to the proper -- to the -- to the 5 actual Park property, no. I mean, if that was the case, 6 the action would have been different relative to the Park 7 property itself, and we wouldn't have required an 8 injunction, if I understand your question. 9 Q: Are you saying that the -- the -- the 10 use of force in the context of the parking lot should be 11 considered completely separately from the issue of the 12 occupation of the Park? 13 A: Absolutely. 14 Q: And so there is no connection between 15 what happened in the parking lot and what happened in the 16 Park? 17 A: My position would be that if the 18 occupiers had stayed within the confines of the 19 Provincial Park, there would have been no necessity to 20 use a crowd management team on September the 6th. 21 Q: Well, I'll ask you about whether 22 there was a necessity to use the crowd management team a 23 little later, but the force was used in September 6th, 24 when, for example, the sandy parking lot was not 25 physically impeded by the protesters, isn't that right?
1661 A: I'm sorry? 2 Q: The -- when the -- when the -- when 3 the police crowd management unit and TRU team approached 4 the Park on the evening of September 6th, the -- there 5 was not a physical impediment or a blockage of the sandy 6 parking lot with objects at that time, was there? 7 A: It was the parties themselves. 8 Q: It's the individuals themselves. 9 A: Correct. 10 Q: It wasn't like the morning of the 5th 11 where there were picnic tables placed on the parking lot? 12 A: That's fair. 13 Q: Now I would presume that members of 14 the Stoney Point group who were occupying the Park had as 15 much right as anybody else to wander through the parking 16 lot; isn't that fair? 17 A: Generally, yes. 18 Q: Yes. Do you mean something by the 19 word "generally" as a limitation? 20 A: As long as they're not doing anything 21 that's unlawful. 22 Q: All right. So if the Stoney Point 23 people who are occupying the Park are wandering through 24 the parking lot during the day or during the night, 25 that's okay, right?
1671 A: Correct. 2 Q: All right, and so the -- the action 3 taken by the crowd management unit and the TRU team was 4 not taken to prevent the Stoney Point occupiers from 5 being present in the parking lot, was it, according to 6 what you've just said? 7 A: Yes, I think I gave evidence earlier 8 that basically if people were sitting around having a -- 9 roasting marshmallows, that they could stay there and do 10 that. 11 Q: All right. And where do you draw the 12 line and where did you draw the line and by "you" I mean 13 the OPP, on the evening of September 6th, on the 14 activities in the parking lot that caused the 15 commencement of the use of force? 16 A: Well, there's a number of factors. 17 One (1) was obviously the damage to the vehicle. Second 18 was the -- 19 Q: Yeah, can I just stop you there. 20 Damage to the vehicle being what, when? 21 A: Well, we've discussed that at some 22 length about the individual's car being damaged. 23 Q: That was on the evening of the 5th? 24 A: 6th. 25 Q: I'm sorry, okay. So that was -- now
1681 the damage didn't occur in the sandy parking lot, 2 correct? 3 It was a stone thrown to a car on the 4 street, right? 5 A: Well, I'm not going to debate whether 6 the car was on the roadway or the person was on the sandy 7 parking lot or on the edge of the roadway, but it was 8 certainly at that location. 9 Q: And at that time, you were and just 10 about everybody at the OPP were quite seriously 11 misinformed about what had actually happened at that 12 point with respect to the damage to the cars; isn't that 13 accurate? 14 A: My -- my information was not accurate 15 as -- as later learned. 16 Q: So when you give that incident now as 17 a justification for moving people off the sandy roadway, 18 are you saying that you were justified in doing it on the 19 wrong information that you had? 20 A: At any given incident I have to work 21 with the information I have at the time. I don't very 22 often have the -- the good fortune of a hindsight. 23 Q: I'm -- are you suggesting that any 24 decision at all, based on the information or whatever 25 information is there, is okay?
1691 A: That's not what I said, sir. 2 Q: Isn't there some requirement to have 3 some safety checks on the information that forms the 4 basis of your judgment? 5 A: And to your point, there were 6 officers at points of observation in and around the 7 cottages there and were monitoring the activities that 8 were occurring. 9 Q: Well, I'm talking right now about the 10 damage to the car which is the first point you gave me 11 and -- 12 A: What --if I could, you asked me to -- 13 what the -- what the incidents were if we're going to go 14 back and talk about the incident of the car, that's fine, 15 but I thought you wanted the number of events. 16 Q: I certainly do. But is it your 17 position with the first one that although your judgment 18 was based on inaccurate information it still justified 19 the -- the mobilization? 20 A: It's the damage to a vehicle that was 21 taken into consideration of one (1) of many factors. 22 Q: Right. 23 A: If one (1) person was on the roadway 24 and had caused damage and there was no one else there, we 25 simply would have sent someone down to arrest that
1701 individual and charged them accordingly. 2 Q: And how -- how big is it different 3 from what we are beginning to learn actually happened in 4 that parking lot? 5 Why didn't you send a cruiser down and 6 check it out? 7 A: Well, quite frankly, sir, there were 8 people checking it out. There -- there were officers 9 monitoring the activities and reporting it back to the 10 command post. 11 Q: And one (1) of those officers who 12 were monitoring that particular issue was Sam Poole 13 wasn't it? 14 He was collecting a statement from the 15 person? 16 A: Yes, yes, he was. Yes, he was. 17 Q: And yet neither you nor Inspector 18 Linton, as far as we can tell, nor anybody, reviewed that 19 report which would have corrected a lot of serious 20 inaccuracies before major decisions were made; isn't that 21 right? 22 A: But neither of us were in a position 23 to read his report, no. 24 Q: And his report was finished at 8:30 25 and we know from Inspector Linton's comments in the
1711 scribed notes, Inspector Linton was very well aware of 2 the report so was Detective Sergeant Mark Wright. 3 Inspector Linton was saying, let's wait for the report 4 and -- and yet nobody did. Why -- why was that? 5 A: I wasn't there at that particular 6 point in time, sir. 7 Q: All right. I'll ask you some more 8 questions about the first item you mentioned which is 9 damage to the car, but you said you had others. 10 A: Well, there's a number of factors 11 that have to be taken into consideration. When Mark 12 Wright went around the corner there were several people 13 on the parking lot who had bats or axe handles, whatever 14 you want to describe the objects as, and it was clear 15 that it was in his best interest that he not hang around, 16 that he -- would be best leave the area. 17 He certainly recognized that it wasn't -- 18 if he stayed there he could be in some jeopardy. So 19 there was certainly a number of people, whether it was 20 eight (8) to ten (10) or whatever the number is, who were 21 congregated there and if someone stumbled into that area, 22 we're going to be faced with a group who may cause them 23 harm. 24 Q: Now they didn't actually cause any 25 harm to --
1721 A: Nothing came to pass, no. 2 Q: They just asked them to leave, didn't 3 they? 4 A: And so we did. 5 Q: Yeah. And do you have any other 6 items that you mentioned that you wanted to -- 7 A: Well, the -- we had information that 8 as I said earlier that the -- the cottages were next and 9 the potential issues with bonfires in that parking lot 10 occurring. 11 We had the picnic tables the night 12 before and we certainly had the cottagers who met in the 13 sandy -- or in the MNR parking lot who were very 14 concerned obviously about the activities that were taking 15 place and they -- they were of a mind set that they 16 intended to march either to or onto the Park. 17 All of those things were contributing 18 factors. 19 Q: Were there any other contributing 20 factors for the -- the mobilization of substantial police 21 resources? 22 A: Well, I think you have to look at the 23 fact that since 1993, a number of incidents happened. 24 And getting specific to 1995, the commentary was the Park 25 was next and, in fact, when those kind of comments were
1731 made, in fact, the behaviours bore out that activity at 2 the end of the day. 3 And here we are now, faced with the 4 potential of the cottages being next and -- and some 5 criminal activity that occurred, albeit minor in nature, 6 there was certainly the potential that this activity was 7 going to carry on into the cottage area. 8 Q: What -- what did you just say? There 9 was -- there was what? Did you say there was indication 10 that the activity would carry on into the cottage area? 11 A: Yes. 12 Q: Now, I'm having a little difficulty 13 with this, Deputy Commissioner Carson, because I spent 14 quite -- quite a bit of time questioning you yesterday 15 and this morning about the reality that you didn't think 16 anything would happen in the parking lot on the 6th, you 17 didn't take any steps because of that or in relation to 18 that, you assumed that nothing significant would happen 19 on the evening of the 6th in the parking lot. 20 I went through a large number of factors 21 and now you're -- one (1) of your items on the list 22 you've just told me as justifying the move into the 23 parking lot was that there was information that the 24 cottages were next. 25 But what happened -- are you now saying --
1741 COMMISSIONER SIDNEY LINDEN: Yes -- I'm 2 sorry, Mr. Sandler has an objection, so we'd better... 3 MR. MARK SANDLER: Perhaps I'll just let 4 the Witness answer. I don't think that's a fair 5 characterization of what he said, and your juxtaposing 6 two (2) different times but -- 7 COMMISSIONER SIDNEY LINDEN: Yes -- 8 MR. MARK SANDLER: -- the Witness can 9 handle himself. I'll withdraw my -- I'll withdraw my 10 objection before I make it. 11 12 (BRIEF PAUSE) 13 14 THE WITNESS: The issue is, is that the 15 circumstances that I was faced with when I received the 16 call from Sergeant Wright and Inspector Linton had 17 significantly changed from earlier in the afternoon. 18 We didn't have a group of people out in 19 the parking lot with clubs or baseball bats or other 20 objects that we had to deal with. I mean, my -- my best 21 hope here was that it would be status quo overnight, that 22 it would not be any activity. 23 In fact, I had moved -- or between myself 24 and Inspector Linton we had moved the -- the checkpoints 25 back. And part of that strategy was to prevent the type
1751 of thing that happened the night before where the 2 cruisers were damaged. 3 We were trying to take steps to -- to hold 4 this thing to a calm, pending the outcome of the 5 application for the injunction. 6 But it was the behaviours that changed. 7 8 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 9 Q: All right, let me go through the 10 other items on the list that you were -- were 11 identifying, and the things you identified, which 12 included first of all the damage to -- to the car, which 13 would be the damage to Gerald George's car, right? 14 A: Right. 15 Q: The -- the occasion when Mark Wright 16 was down at the corner; is that right? 17 A: Right. 18 Q: You mentioned information that 19 cottages were next, is that right? 20 A: Right. 21 Q: You mentioned bonfires on the parking 22 lot -- bonfire or a bonfire is that right? 23 A: Right. 24 Q: You mentioned the picnic tables, is 25 that right?
1761 A: Right, that occurred the night 2 before. 3 Q: And you mentioned the -- the -- 4 mentions since 1993 that there would be further 5 occupations, right? 6 A: Yes. 7 Q: And -- and you mentioned the 8 cottagers, the non-native cottagers, who were intended to 9 march on and probably in to the Park, is that right? 10 A: Right. 11 Q: Now, I don't -- I'm not trying to 12 apply 20/20 hindsight, I'm trying to understand the 13 facts. 14 And I take it you would agree that some 15 degree of hindsight can be beneficial in improving the 16 way we all conduct our organizational behaviours; isn't 17 that right and fair? 18 A: Absolutely. 19 Q: So I just want to make sure that you 20 understand I'm not trying to apply 20/20 hindsight and 21 say, you know, you or any -- anybody else should have 22 been perfect because none of us can meet that standard. 23 But I do want to ask you some more 24 questions about some of the -- the issues you raise. As 25 I understand it, when you said that one (1) of the
1771 reasons the OPP took the actions that it did on the 2 evening of September 6th, was the information that 3 cottages were next. 4 Now, at approximately eight o'clock on the 5 evening of September 6th, TRU was called out; is that 6 right? Slightly after eight. 7 A: That's -- I think that's roughly the 8 time, yes. 9 Q: All right. Let me ask you on that 10 particular point that you've raised, what information 11 there was before anybody, you or Inspector Linton, that 12 there would be a move on the cottages that night? 13 A: I'm sorry? 14 Q: What information at -- at or before 15 8:00 p.m. on September 6th was there that suggested there 16 would be a move on the cottages that night? 17 A: That night specific? 18 Q: Yes. 19 A: There was no as with the -- the entry 20 into the Park, there was no notice that tonight's the 21 night. 22 Q: So, frankly, that should be taken off 23 the list of reasons or justifications for moving on the - 24 - on the parking lot on September 6th in the evening; 25 isn't that right?
1781 A: In your opinion, possibly. 2 Q: And in your opinion -- 3 A: It's a factor that you have to be 4 mindful of. 5 Q: So even though there is -- can you 6 point to one single piece of information, either that was 7 available at the time or in hindsight, that indicates 8 that the individuals that were seen in the parking lot 9 had any intention of moving on the cottages? 10 I mean they -- they had -- by some 11 evidence there were eight (8) individuals, half of them 12 had sticks; right? 13 MR. DERRY MILLAR: Well, in fairness to 14 the Witness, we've heard evidence about the cottages are 15 next. We've heard evidence from the Aboriginal, First 16 Nation witnesses, the occupiers that -- on cottages, so. 17 There has been at this Inquiry, substantial evidence on 18 that very issue and I think the Witness in chief talked 19 about certain of the evidence. 20 MR. MURRAY KLIPPENSTEIN: Commissioner, 21 my -- my question to the Witness is whether there was 22 anything pertaining to that evening, because then it 23 becomes a global reason to justify a great deal. And I 24 was -- 25 COMMISSIONER SIDNEY LINDEN: What you
1791 hear earlier -- what you hear earlier is something that's 2 mindful of at the moment. I think that's what he's 3 saying. It wasn't new information, I gather, about this 4 particular point. 5 MR. MURRAY KLIPPENSTEIN: Yes. 6 COMMISSIONER SIDNEY LINDEN: But that's 7 information that he had. We've heard evidence from other 8 witnesses that said that that was a possibility or 9 consideration. I'm not sure how much or how serious that 10 was but we've certainly heard some evidence to that 11 affect. 12 13 CONTINUED BY MR. MURRAY KLIPPENSTEIN. 14 Q: Well, I think that your comment is 15 helpful and perhaps I can rephrase my question based on 16 that. 17 Was there any new information on the 6th 18 that suggested there would be any -- well, I've already 19 asked you this question and -- and I trust you -- your 20 position remains as before that there was no indication 21 on the 6th; that you had no evidence, no indication on 22 the 6th that there would be a move on the cottages. 23 A: Other than the persistent behaviour. 24 Q: Which persistent behaviour? 25 A: The -- the evening before, the picnic
1801 tables were lined up at the edge of the roadway appearing 2 to, for lack of a better term, demarcate that parking 3 lot; that those picnic tables had been removed and a 4 couple of people that were camping on the -- on the lot 5 at that point ran back into the Park. 6 And then here we are about twelve (12) 7 hours later with a group on that same parking lot with 8 clubs or bats, whatever you want to call them, in that 9 very same area which relates to an area that we have 10 heard for some time was going to be next, right adjacent 11 to these cottages where people are living. 12 Q: Well, you seem to have combined two 13 (2) of your reasons now. One (1) which was the 14 information that cottages were next and the -- and 15 another was the -- the individuals on the -- on -- on the 16 sandy parking lot. 17 Now, the individuals in the sandy parking 18 lot had not placed anything physical on the parking lot, 19 had they? 20 A: No, sir. 21 Q: No. That seems rather a strange way 22 to -- to take over the parking lot, is to -- to -- to 23 stand there. And when you say that that was connected, 24 that their behaviour there was connected to the cottages, 25 they didn't actually move to the cottages, did they?
1811 A: I didn't say that they were moving to 2 the cottages, I said the potential of the cottages being 3 next was something I had to certainly be mindful of. 4 I mean, if this behave -- their behaviour 5 now was onto the parking lot, I mean, it's the same as -- 6 as before, the Park is next. And what do they do, they 7 moved into the Park. The cottages are next. I'm mindful 8 of the fact that they may be moving into the cottages, 9 it's just part of the information that fills the whole 10 package. 11 Q: Would you agree with me that the two 12 (2) key pieces of information were, first of all, the 13 report from Mark Wright at the corner and secondly the 14 report of the damage to the car? 15 A: Sure, that's what brought it to our 16 attention, yes. 17 Q: Those were the two (2) reasons; isn't 18 that fair? 19 A: Sure. 20 Q: All right. 21 22 (BRIEF PAUSE) 23 24 Q: Now, the policy briefing note, that 25 we just were reviewing, says that the initial response of
1821 the OPP has traditionally been one (1) of negotiation. 2 And it says in the end -- in the end: 3 "In short, the OPP approach will be as 4 follows. 5 Number 1: Seek a negotiative 6 solution." 7 That -- that's the first attempted 8 solution; is that right? 9 A: Sure. 10 Q: Yes. Now, did the OPP attempt to 11 negotiate a solution on September 4th, 5th, and 6th? 12 A: I believe we did. 13 Q: Are you referring to the occasion of 14 Detective Sergeant Mark Wright and Marg Eves going to the 15 -- to the Park as one -- 16 A: That -- that was one (1) of a 17 number of attempts, yes. 18 Q: All right. What other attempts were 19 there? 20 A: Well, I -- I believe I explained at 21 some length how we had former Staff Sergeant Lorne Smith 22 and Sergeant Seltzer working in the community within 23 Kettle Point looking to establish some lines of 24 communication. We had sent, as you indicated, Mark 25 Wright and Sergeant Eve down to -- to the fence area and
1831 there were other officers who had attempted to -- to open 2 some lines of communication. 3 Q: I have -- 4 A: I think it began in -- in -- as soon 5 as the occupation commenced on the 4th with Les Kobayashi 6 and Vince George. I mean right from the outset we tried 7 to establish dialogue. And I think you'd have to 8 appreciate we have to negotiate. 9 There are different views on what 10 negotiations is, like, it is certainly not the police 11 role to negotiate a land claim. It's certainly our 12 effort to try and negotiate keeping the peace and dealing 13 with the issues. 14 Q: Can you explain that? What -- what - 15 - what was Detective Sergeant Mark Wright authorized to 16 negotiate? 17 A: To negotiate? 18 Q: Yes. 19 A: He was -- his -- his authority was to 20 -- to try and establish dialogue, is what he was trying 21 to do. 22 Q: Well, as I understand it, from the 23 anticipated evidence of Mr. Wright, when Mr. Wright 24 attended on the 6th at about two o'clock at the parking 25 lot -- have I got that instance correct?
1841 A: I -- I think you're in the right time 2 frame, yes. 3 Q: Yeah. He and Marg Eves attended at 4 the parking lot, went to the fence and talked to -- 5 briefly to somebody who came up in a car, that sort of 6 thing; right? 7 A: Yeah, I think it was a youth they 8 spoke to. 9 Q: Yes. And I anticipate the evidence 10 will be that earlier on the day before, Detective 11 Sergeant Wright had attended up at the Army main gate and 12 talked to Bert Manning; is that right? 13 A: Yes. I think you're right there too, 14 yes. 15 Q: And, in fact, I anticipate the 16 evidence will be that Mr. Manning had said, We'll talk 17 about it and we'll see down at the park at two o'clock 18 tomorrow morning -- two o'clock tomorrow afternoon. 19 So, in fact, that visit on the afternoon, 20 around two o'clock on the 6th, was a result of the 21 previous days' conversation at the Army main gate; is 22 that right, yes? 23 A: I can't be sure you're a 100 percent, 24 but that makes sense. 25 Q: Yeah. Does that sound right to you?
1851 A: Fair enough. 2 Q: Yeah. Now, I anticipate that in that 3 conversation with Mr. Manning, excuse me, I anticipate 4 the evidence will be that in that conversation with Mr. 5 Manning on September 5th at the main gate, Detective 6 Sergeant Wright told them that it was the OPP's position 7 that the people in the Park were trespassing, and that 8 the OPP had warrants for some of their arrest, that he 9 was asking to -- if some of them would give themselves up 10 in response to those warrants for arrest. 11 Does that sound consistent with other 12 information or knowledge you have? 13 A: That's fair, yes, sure. 14 Q: And at that point, Mr. Manning said 15 come back tomorrow to the Park at two o'clock; is that 16 right? 17 A: I believe that is accurate. 18 Q: Now, I'm just wondering if that is 19 supposed to be an instance of negotiation or dialogue 20 because it seems to me to have an officer come to the 21 gate and say, You're trespassing, we have warrants for 22 your arrest, let's talk about you giving yourselves up. 23 That may set discussions off on a not very 24 good tone, or is that the kind of discussion or dialogue 25 you meant?
1861 A: Well, I think first of all we have to 2 be honest. They are trespassing, that was the position. 3 The MNR had tried to serve them notice, so to tell them 4 anything else would be inaccurate and inappropriate, in 5 my view. 6 So he's got to be straightforward and say, 7 look it, you know, the occupiers -- you are trespassing 8 and, yes, there are warrants for so and so and so and so. 9 I think it's very appropriate for a police 10 officer in their discussions with someone that is dealing 11 with a situation like this, that they -- they be 12 straightforward and, quite frankly, I'm not sure how else 13 he would approach that. 14 Q: Well, for starters, if it -- if the 15 anticipated evidence is correct, that on this and other 16 occasions the -- the occupiers were informed that they 17 were trespassing, as a matter of fact. 18 Now trespassing is -- is an offence under 19 the Trespass to Property Act and, as of yet, there have 20 been no Court finding that, in fact, they were legal 21 trespassers; is that -- is that not true? 22 A: I don't believe there's been a Court 23 process that asks that question. 24 Q: So at that time, when Detective 25 Sergeant Mark Wright went to the -- according to the
1871 anticipated evidence, the main gate and said, You're 2 trespassers, if that was intended to suggest there was a 3 Court finding or an actual legal conclusion to that 4 effect, that would have been overreaching; isn't that 5 right? 6 A: Absolutely not. Any time any police 7 officer and police officers deal with every day of the 8 week, they go to calls where someone is refusing to leave 9 property and the owner, in the presence of a police 10 officer, will tell them that you are trespassing, we 11 expect you to leave. 12 And the first step is to inform them they 13 are trespassers and ask them to leave. And then if they 14 don't, the officer will do -- escort them off and charge 15 them accordingly. 16 I mean, that -- that is the very basic 17 approach to someone who is unlawfully on property. I 18 mean there was clear indication that the Ministry of 19 Natural Resources had title to the property -- excuse me, 20 to the property. 21 So, I mean, I don't see anything in 22 regards to trespass to property other than we indicated 23 to Ministry of Natural Resources from the very outset 24 that we would expect them to declare that the occupiers 25 were trespassers. And then it would be up the Ministry
1881 of Natural Resources to pursue the appropriate injunction 2 to deal with that issue, which falls right into this 3 policy piece that you presented me. 4 Q: I'm having a little difficulty with 5 what you just said, Deputy Commissioner Carson. You said 6 you didn't see anything to, or any reason not to simply 7 declare to the people in the Park that they were 8 trespassers, including in the conversation with Mr. Bert 9 Manning. 10 A: That's what I said, yes. 11 Q: And the fact that the protesters were 12 claiming there was a burial ground in the Park and that 13 it was their Park, meant nothing? 14 A: I didn't say that. 15 Q: It sounded pretty close to it. 16 A: No. I said they were -- I said they 17 were trespassers. I indicated that the Ministry of 18 Natural Resources would have to get an injunction. I've 19 said in my previous evidence, there was no documentation 20 anywhere to be found, to my knowledge, that supported any 21 rightful claim to the burial ground in -- in that Park or 22 any land claim to the Provincial Park. 23 And that included not only the research 24 that I had requested through Ron Fox at the ministry 25 level, but also local queries with the likes of the Chief
1891 of the Band Council at Kettle Point, who clearly informed 2 me there was no outstanding claim against that property. 3 So it's not like I -- I hadn't asked that 4 question or had any sense whether there was or wasn't a 5 rightful claim. 6 Q: Now since that time, and very shortly 7 after the shooting, there was documentation produced by 8 the Federal Government that seems to indicate that, at 9 the time in the Park, that there was, in fact, a Native 10 burial ground in the Park. 11 Are you familiar with that documentation? 12 A: I understand a gentleman arrived with 13 some document. I have not seen that document. I don't 14 know if that document has been confirmed to be an 15 accurate document. 16 Q: So you have never seen that -- that 17 material? 18 A: I have never seen it. 19 Q: I'm referring to letters which the 20 Federal Minister of Indian Affairs delivered to the 21 reserve a few days after the shooting. 22 A: I -- I'm not familiar with what 23 you're speaking, yes. 24 Q: And these are letters from the 25 1930's, correspondence between the Indian Agent locally,
1901 and middling and senior Indian Affairs officials and the 2 Minister or Deputy Minister of Lands for the Province of 3 Ontario discussing an apparent burial ground in the Park. 4 You've never looked at those? Nobody's put them before 5 you? 6 A: No, sir. 7 Q: All right. 8 A: I think you'll find that Chief 9 Superintendent Coles was heavily involved in discussions 10 in the community at that point in time when those 11 documents were brought to the Kettle Point area. 12 And I suspect he could probably much 13 better respond to that. 14 Q: I -- I'm a little -- I'm a little 15 surprised, Deputy Commissioner Carson, that you are here 16 after almost ten (10) years after the shooting when this 17 matter was obviously a major issue to a fair number of 18 people. 19 And one (1) of the issues, clearly, was 20 the claim to the burial ground and you're testifying 21 today about whether or not you saw anything of any merit 22 in the claim and you've never taken the time and no one 23 has ever put before you those initial letters? 24 A: The letters you're talking about were 25 produced after my role as the incident commander. At the
1911 conclusion of this -- well, conclusion -- after September 2 the 6th as you know, there was a special investigations 3 unit investigation, a criminal investigations branch 4 investigation into the criminal activity. 5 And as a result of that, I did not have a 6 lead role in this issue from there on. I -- I was the 7 commander involved in what was now a major investigation. 8 And, quite frankly, the followup to that was assigned to 9 other people. 10 Q: You were incident commander when a 11 man was shot and an officer was subsequently convicted of 12 criminal negligence for that shooting. And one (1) of 13 the key issues of -- surrounding the dispute was the 14 claim of a burial ground and you never took -- took it 15 upon yourself to get copies of a couple of letters that 16 underlay the whole thing? 17 COMMISSIONER SIDNEY LINDEN: Would you 18 like to say something, Mr. Sandler? 19 MR. MARK SANDLER: Well, that's just so 20 unfair on so many levels. 21 COMMISSIONER SIDNEY LINDEN: Right. 22 MR. MARK SANDLER: I don't know where to 23 start, Commissioner, with great respect, especially in 24 the background where Deputy Commissioner Carson has 25 indicated that, notwithstanding his belief at the time,
1921 that there wasn't a valid claim. He recognized that the 2 appropriate course is to take an injunction. 3 So we are so far removed -- 4 COMMISSIONER SIDNEY LINDEN: Yes. 5 MR. MARK SANDLER: -- from a discussion 6 of what Deputy Carson did and didn't do and why he did it 7 and why he didn't do it. And -- and I just think it's 8 very unfair, particularly in the background of what 9 people within the First Nations community were telling 10 him at the time, and I -- I just don't think it's a fair 11 -- fair approach to this Witness, with respect. 12 COMMISSIONER SIDNEY LINDEN: 13 Unfortunately, Deputy Commissioner Carson has two (2) 14 roles, one (1) was the incident commander at the time, 15 but he is a Deputy Commissioner now, so some questions 16 wouldn't normally be appropriate to ask an incident 17 commander. 18 We've let Mr. Klippenstein ask, but in 19 this case, Mr. Klippenstein, I remember the evidence that 20 the Deputy Commissioner gave when he said it would be 21 improper for him to have remained involved after the 22 formal investigations began and he separated himself from 23 them. Once the SIU and the CIB investigations were 24 underway, he virtually stepped aside. So, it doesn't 25 seem that surprising to me. So, I'm not sure where
1931 you're going with this. 2 MR. MURRAY KLIPPENSTEIN: Well, 3 Commissioner, I must say, I'm -- I'm -- I'm appalled, I'm 4 stunned. I'm shocked. 5 COMMISSIONER SIDNEY LINDEN: Well, you're 6 entitled to your view, but I think that it's -- 7 MR. MURRAY KLIPPENSTEIN: And -- and -- 8 COMMISSIONER SIDNEY LINDEN: -- not 9 helpful to ask questions about something that you're -- I 10 mean, he's given an explanation. You want to ask him 11 some more, that's fine, but he provided an explanation 12 for why he wasn't involved in these matters after the 13 formal investigations began. 14 It would have been, in his view, and maybe 15 I misunderstood your testimony, I thought you thought it 16 would have been improper for you to remain involved -- 17 THE WITNESS: No, you're -- 18 COMMISSIONER SIDNEY LINDEN: -- once 19 those formal investigations began. 20 MR. MURRAY KLIPPENSTEIN: Well, if I can 21 pursue that a little, I wasn't asking for involvement, my 22 question was whether a few pieces of paper that were at 23 the root of this dispute on this death had ever been 24 called up by -- by -- by -- by Deputy Commissioner or put 25 before him in the course of the investigation.
1941 COMMISSIONER SIDNEY LINDEN: He said, 2 "no." No, I think you have to move on. 3 4 (BRIEF PAUSE) 5 6 COMMISSIONER SIDNEY LINDEN: Do you want 7 to take a break, Mr. Klippenstein? 8 MR. MURRAY KLIPPENSTEIN: Yes, I would 9 actually request a break. 10 COMMISSIONER SIDNEY LINDEN: Would you 11 like to take a break now? We'll take a break. 12 MR. JULIAN FALCONER: Excuse me, Mr. 13 Commissioner. There's -- there's one (1) matter I hope 14 to address just prior to the break in the hopes it can be 15 addressed by Counsel during the break. And I apologize 16 for interrupting your rising. 17 COMMISSIONER SIDNEY LINDEN: No, that's 18 fine. 19 MR. JULIAN FALCONER: It's such a long 20 way to get up here. 21 COMMISSIONER SIDNEY LINDEN: No, that's 22 fine. Yes, Mr. Falconer? 23 MR. JULIAN FALCONER: Thank you. I'd 24 indicated last week that Aboriginal Legal Services of 25 Toronto had brought -- had sought information from your
1951 Counsel and directly from the OPP on the issue of the 2 discipline relating to Whitehead and Dyke, and discipline 3 records and policies and procedures? 4 The only reason I raise it and I'm hoping 5 we can deal with it during the break is that the cross- 6 examination by Aboriginal Legal Services is somewhat 7 coming around the corner and it's going to be impossible 8 to do it without it. 9 COMMISSIONER SIDNEY LINDEN: I understand 10 that there's been some activity in that regard -- 11 MR. JULIAN FALCONER: Thank you. 12 COMMISSIONER SIDNEY LINDEN: -- and you 13 can speak to Counsel -- 14 MR. JULIAN FALCONER: Thank you. 15 COMMISSIONER SIDNEY LINDEN: -- and see 16 if you can resolve it - 17 MR. JULIAN FALCONER: All right. 18 COMMISSIONER SIDNEY LINDEN: -- during 19 the break. 20 MR. DERRY MILLAR: Yeah, the -- last 21 Thursday, as you know, I think it was last Thursday at 22 about three o'clock, My Friend sent me an e-mail, and -- 23 and before -- just -- then he raised it with you. And 24 I've got a response from the OPP, which at the end of the 25 day I was going to share with My Friend and with
1961 everyone. And that's what I'll do. 2 COMMISSIONER SIDNEY LINDEN: See if it 3 can be resolved at a counsel level. If it can't then 4 we'll have to deal with it here. Thank you very much. 5 THE REGISTRAR: This Inquiry will recess 6 for fifteen (15) minutes. 7 8 --- Upon recessing at 2:38 p.m. 9 --- Upon resuming at 3:02 p.m. 10 11 THE REGISTRAR: This Inquiry is now 12 resumed, please be seated. 13 14 (BRIEF PAUSE) 15 16 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 17 Klippenstein...? 18 MR. MURRAY KLIPPENSTEIN: Thank you, 19 Commissioner. 20 21 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 22 Q: Deputy Commissioner Carson, a little 23 while ago I was asking you some questions about the 24 briefing note on protestors, Exhibit P-472, and we ended 25 up in some other subject areas, but let me get back to --
1971 to that. And I know you're -- this isn't your document, 2 but the summary of the OPP approach in the document says 3 the first -- the first item is "Seek a negotiative 4 solution." 5 And I think you said you were generally in 6 line with that, as well, you had no disagreements with 7 that, I take it, right? 8 A: That's fair. 9 Q: Now I'd like to ask a bit more about 10 exactly what that means, and this also connects to the 11 goal of Operation Maple, as you set it out, which was -- 12 the objective was to contain and negotiate a peaceful 13 solution; is that right? 14 A: Correct. 15 Q: Now did you actually choose that 16 objective, the wording of that? 17 A: Personally. 18 Q: I'm sorry. 19 A: Personally. 20 Q: You did, yes? 21 A: I did. 22 Q: Yeah, and sometimes when considering 23 these issues it has occurred to me that it's unclear 24 exactly what or how it is suggested that a negotiated 25 solution would be negotiated, or what it would look like
1981 or what the possible solutions are. 2 And can you tell us a bit about what 3 exactly would be negotiated in this context, for 4 instance? 5 A: Well, there's -- to your point, as I 6 indicated earlier, if an occupation was to occur, the 7 ideal situation is the voluntary compliance and occupiers 8 would leave. 9 If that didn't occur, there was a number 10 of steps -- 11 Q: Can I just -- I don't mean to 12 interrupt you, but can I just stop you there. 13 You said that was the ideal situation, is 14 that right? 15 A: Well, voluntary compliance is always 16 ideal in any situation. 17 Q: Now that seems to contain an 18 assumption that the occupiers should be complying with 19 something in the sense of they have no justification for 20 what they're doing. 21 You said it's ideal that they voluntary 22 comply with what? And, for example, in this case, I said 23 there has yet been, as we discussed earlier, at the time 24 when the OPP and if the person of Detective Sergeant 25 Wright was saying you're trespassers, there had not yet
1991 been a, for example, Court determination that they were 2 trespassers, so... 3 A: Whenever someone is dealt with under 4 the Trespass to Property Act, until the person takes it 5 to a trial, there is no determination of whether they're 6 a trespasser or not. 7 The first step is always you -- if a party 8 is aggrieved, this one being the Ministry of Natural 9 Resources -- would be the Ministry of Natural Resources, 10 we expect you to ask them to leave and serve notice, 11 which was the initial steps that were outlined on the 12 activities of September the 4th. 13 And if that doesn't work or if there is 14 not voluntary compliance. And in this case there was 15 not. And it then becomes a full blown occupation, then 16 the Ministry of Natural Resources was expected to seek an 17 injunction which falls into this particular policy 18 document. 19 And hopefully, you know, if the Court 20 rules that the Ministry of Natural Resources is the 21 rightful owner, pursuant to the MNR's injunction 22 application, then the ideal situation next would be 23 voluntary exit from the Park, if -- if that is what the 24 Court order directs. 25 So I mean, that's the kind of negotiated
2001 process that we're talking about where we're able to 2 discuss the matter and get it resolved peacefully. 3 Q: Now, I know from the Trespass to 4 Property Act, and I'm not saying that's applicable, but 5 we're talking that general area, there's an explicit 6 statutory provision for a colour of right, in which -- in 7 which the law recognizes that somebody who's occupying 8 land, may in the view of one (1) person be a trespasser 9 to their land, and in fact, may have somewhat of a point. 10 And you raised this repeatedly in your 11 testimony when you talked about colour of right at the 12 very beginning of your testimony, right? 13 A: When I spoke of it in regards to the 14 -- the differences between the Military Base and the -- 15 and the Provincial Park. 16 Q: All right, and are you suggesting 17 there was no issue of colour of right with respect to the 18 Park, as far as you were -- as far as you were concerned? 19 A: From -- from a purely legalistic 20 point of view, there was no document, that I was aware 21 of, that would show anything other than the Ministry of 22 Natural Resources had legal title to the property. There 23 was no outstanding land claim, there was no outstanding 24 report that I was aware of in regards to a claim that the 25 burial site existed.
2011 And that, as I mentioned time and again, 2 included discussions, locally, with the likes of Chief 3 Tom Bressette. 4 Q: Now since you mention that, as I 5 recall, and correct me if I'm wrong, that one (1) of the 6 complaints of Chief Tom Bressette, when he spoke with you 7 on a recorded phone call, was that he said some 8 archaeologist has come around and said that there's a 9 burial ground in there and got some people's hopes 10 mistaken. Now, do you recall that? 11 A: Yes. 12 Q: Did you ever -- did your ears perk up 13 a bit when somebody said an archaeologist had said 14 there's burial grounds in the Park? 15 A: I didn't know what he was referring 16 to, quite frankly. 17 Q: Okay. 18 A: I wasn't aware of any archaeologist 19 so that was -- that was news to me. 20 Q: Did you follow up that news at all 21 and ask around whether there were -- who that 22 archaeologist, supposing there was one, was? 23 A: I would presume that if there was any 24 rightful claim to that property that the information I 25 had already searched out would have disclosed that. But
2021 it -- it still wouldn't have changed the issue about 2 whether an injunction is sought or not. 3 Q: I don't -- I don't -- I'm not 4 quarrelling or asking you questions about your approach 5 that an injunction should be sought, I'm just asking 6 about when you said that an ideal negotiation would be a 7 voluntary compliance or something like that. 8 A: Right. In my -- my experience I've 9 been a crisis negotiator for numerous years, an incident 10 commander for many years and in the overwhelming number 11 of circumstances, we're able to negotiate a surrender. 12 Q: All right. 13 A: I mean -- and that's in the pure 14 sense of how this kind of application is -- is thought 15 through. 16 Q: Now so you had been in incidents 17 prior to this one. Had you been -- you probably already 18 said this in -- in examination-in-chief, forgive me, had 19 you been incident commander in previous incidents to this 20 one? 21 A: An incident commander? 22 Q: Yeah. 23 A: Yes, oh yes. 24 Q: Yeah. Forgive me. Now had you 25 negotiated surrenders in one (1) or more of those
2031 incidents or someone working on your behalf? 2 A: You mean like in an armed gunman or 3 hostage situation? 4 Q: Yeah. 5 A: Numerous occasions. 6 Q: Okay. And I recall that you done a 7 lot of course work and studies as a negotiator in your 8 professional development; is that right? 9 A: Yes, I have. 10 Q: And you seem to be suggesting, just 11 now, that the ideal situation was an negotiated 12 surrender; is that right? 13 A: Yes. 14 Q: And when you said the objective of 15 Project Maple, in the words that you chose, was to 16 contain and negotiate a peaceful resolution, were you 17 meaning a negotiated surrender? 18 A: I didn't articulate that specific. 19 Q: I realize you didn't articulate that 20 specifically, is that what you meant? 21 A: Well, it may have meant a number of 22 things depending on the circumstances. I mean, ideally, 23 we could have negotiated a resolution at the very outset 24 if there was an occupation. If we couldn't do that and 25 it escalated to another level, perhaps we could negotiate
2041 some sort of an agreement for a -ű a withdrawal from the 2 area. 3 Or if not, and there was a Court order 4 imposed or issued by the Court, perhaps we could 5 negotiate a settlement to what the Court order would 6 expect from us. So a negotiation could occur on a number 7 of different levels. 8 Q: Now, what I haven't heard you mention 9 is any negotiated process that actually begins to address 10 the motivations of the people who occupied in the first 11 place. For example, a negotiation that results in some 12 other kind of process to actually look at the substance 13 of what is claimed. 14 A: I'm not in control of those 15 processes. I think you're discussing processes that are 16 far beyond the scope and mandate of policing. 17 Q: And -- well, I'm not necessarily 18 talking about a negotiated settlement of a land claim. 19 Although I -- I feel that's one (1) -- my question could 20 be inappropriately worded in that sense. 21 But some -- have you ever reviewed, in 22 your studies, any way of negotiating a solution that 23 falls short of working towards a full settlement of the 24 issues but channels discussions towards the substance of 25 the dispute?
2051 A: That's your -- that's -- 2 Q: Obviously -- 3 A: -- really applicable in any of the 4 experiences I've ever had. I'm -- I'm not sure how -- 5 what kind of a scenario would lead to that, I'm sorry. 6 Q: Well, -- 7 A: Most times our involvement is someone 8 who has taken someone hostage or has committed a criminal 9 act or barricaded themselves threatening suicide or some 10 other violent act. Those are the -- I hate to use the 11 word, "typical," but the most usual -- 12 Q: Right. 13 A: -- occurrences that I would have 14 found myself involved in. 15 Q: Right. 16 A: You know, domestic confrontations, 17 those kind of things. 18 Q: And in those cases, the only thing 19 that's on the table is negotiated surrender? 20 A: Well, the -- the reality is, in most 21 of those cases, I mean there are some that are issues 22 relative to the Mental Health Act where people need, 23 obviously, hospitalization or mental assistance -- 24 Q: Right. 25 A: -- and you're trying to convince them
2061 to surrender so they can get the appropriate help. It 2 isn't necessarily a criminal charge, but in many cases a 3 criminal act has occurred and it's a matter of 4 negotiating with them to bring them to the understanding 5 that there is no other option than to surrender and 6 address the issue of the action that has taken place. 7 Q: Right. Now, in this case in Project 8 Maple, I believe there was a plan in Project Maple for 9 several negotiators to be available around the clock in 10 teams; is that right? 11 A: Yes. 12 Q: Yeah. Now was there any attempt to 13 inform or educate those negotiators about what underlay 14 the immediate dispute about occupation, in other words, 15 the assertion of a burial ground or the assertion that 16 it's "our land"? 17 Was there any information provided to 18 those negotiators about what appeared to actually be 19 motivating the occupiers? 20 A: Well, in the briefing of the original 21 meeting on, I believe it was September the 1st, it was 22 clear that the Ministry of Natural Resources had clear 23 title according to the documentation, so the project team 24 members would have been apprised of that fact. 25 Q: Right.
2071 A: And they would have also been aware 2 that we had asked for research to be done on the property 3 and there was no outstanding land claim that could be 4 determined. 5 Q: All right. So the negotiators who 6 were supposed to negotiate with the occupiers were 7 advised in preparation for their role that MNR has 8 researched this and has clear title and that's all you 9 need to know for background; is that right? 10 A: Well, I -- I think you're -- you're 11 identifying the negotiators in the project plan as 12 negotiators in the land claims sense and that's not the 13 kind of negotiators they are. 14 They're negotiators that in the event some 15 criminal activity takes place where there's a requirement 16 for the crisis negotiation process as I've described 17 earlier. Or as in the -- in the months of August or 18 leading up into September there was commentary that they 19 were going to take George Speck hostage and lock him up 20 in the cell in the Military Base, those kinds of 21 incidents that would require crisis negotiation team. 22 And I wanted those resources at hand and 23 that's -- that's -- that was the role of those 24 negotiators. I used the likes of Brad Seltzer, who is a 25 crisis negotiator, and Lorne Smith who had, in my view,
2081 influence in the community to try and establish dialogue 2 with the occupiers. 3 So, I -- I'm not sure that, you know, it's 4 clear that the role of the negotiators, as per the plan 5 and the attempt to open negotiations or dialogue, is 6 probably a better term, with the occupiers is actually 7 one and the same, because it's not. 8 Q: So, the negotiators in the references 9 to negotiation in Project Maple were different from the 10 discussion of dialogue that we hear from time to time the 11 way it actually happened? 12 A: Right. That's why we use teams of 13 three (3). It has all -- go back -- it goes back to the 14 -- the team approach you use in the -- as I was 15 articulating earlier, the criminal event scenarios where 16 you use a crisis negotiator with a secondary negotiator 17 and a team leader who provides support to the incident 18 commander where you have, basically, a barricaded gunman 19 or an event like that. 20 Q: So the teams of negotiators that are 21 referred to in Project Maple are actually teams modelled 22 after the one off criminal events that you've talked 23 about, about suicide or hostage or something like that? 24 A: Right. 25 Q: Right. And is there any reference in
2091 Project Maple to the dialogue that you've just mentioned? 2 A: Not specific. 3 Q: Yeah, okay. And of all the people 4 listed in the -- in the Project Maple list, if I was -- 5 if I had asked which of these has some real background in 6 the sorts of First Nation issues that are very much at 7 the basis of some of these disputes, who would I have 8 been given the name of? 9 A: Well, there -- there were a number of 10 people in that project who were well aware of the First 11 Nations issues and particularly relative to the Kettle 12 Point and the Military Base at Ipperwash. 13 I would suggest any of the members of the 14 Project team, all the ERT members who were there had some 15 sense of it, but particularly Brad Seltzer as a 16 negotiator. 17 Obviously, Mark Wright had been involved 18 in it for a long time, Stan Korosec. And that was why, 19 in fact, I reached out to Lorne Smith who was retired, to 20 try and, you know, utilize someone who not only had 21 knowledge but was respected in the community, that would 22 be of some assistance to me. 23 Q: And had any of those negotiators, or 24 dialogue persons, to your knowledge had any formal 25 training in First Nations issues?
2101 A: I -- I couldn't tell you whether they 2 had -- some of them may or may not, because some of them 3 were in locations where there could have been some First 4 Nations awareness training. 5 But they -- they -- all the people who are 6 identified as negotiators would have had negotiator 7 training for sure. 8 But without looking at the individual 9 files, off the top of my head, I couldn't say with any 10 certainty as to what exposure they had to native issues 11 in regards to formal training. 12 Q: So when you talk about negotiators, 13 and you use that term, you're using it in the sense of a 14 personal or individual crisis negotiation; is that right? 15 A: Correct. 16 Q: Yeah, okay. And so there's probably 17 quite a difference between that kind of individual crisis 18 negotiation which is usually involving pretty severe 19 criminal activity and a group negotiation; is that fair? 20 A: That's fair. 21 Q: And can you tell me -- I think this 22 may be covered by my previous question, whether any of 23 the negotiators who, if I'm understanding you, are -- 24 were -- were essentially individual crisis negotiators 25 had any training in group negotiation?
2111 (BRIEF PAUSE) 2 3 A: Quite frankly, I'm not sure. In all 4 fairness, I wouldn't want to say with any definitive... 5 Q: Okay, but as of now, you don't have 6 any knowledge of such? 7 A: I'm not -- it doesn't strike me. I'm 8 just trying to think back to the crisis negotiation 9 training that we would have provided, whether it had some 10 component of group dynamics and, quite frankly, I'm just 11 drawing a blank. 12 Q: All right. 13 14 (BRIEF PAUSE) 15 16 Q: All right, thank you. 17 One (1) of the other issues you mentioned 18 on the list of factors that, I think you said, fed into 19 the use of the CMU on the evening of September 6th, was 20 in relation to the picnic tables; is that right? 21 A: Right. 22 Q: And that had occurred on the morning 23 of the -- of the 6th or the evening of the 5th. At any 24 rate, early in the morning on the 6th there were 25 something like twenty (20) or thirty (30) picnic tables
2121 had been placed on the sandy parking lot? 2 A: Right. 3 Q: Now this may raise an issue that's 4 been raised in the evidence so far, which is that, 5 according to the testimony of a number of witnesses, the 6 original reserve line, that essentially marks off the 7 rough square that was the original Stoney Point Reserve, 8 runs down the west side of the Reserve on Army Camp Road, 9 but when you -- in a more or less straight line all the 10 way from Highway 21. 11 But if you follow that straight line right 12 down towards the lake, as you get very close to the lake, 13 you get into the sandy parking lot. And so the -- the 14 edge of the reserve doesn't follow the edge of the Park 15 and, instead, encompasses most of the sandy parking lot 16 and access road. Do you know what I mean? 17 A: I -- I understand what you're 18 explaining. 19 Q: Yeah, okay. And from that 20 perspective, most of the sandy parking lot is within the 21 original reserve boundaries; is that right? Do you -- do 22 you understand that? 23 A: I am as you explain it but I was -- 24 that's news to me. 25 Q: You mean that's news to me as of 1995
2131 or news to you as of now? 2 A: As of right now. 3 Q: Okay. And when I say within the 4 reserve boundaries I don't mean any existing present 5 reserve boundaries, I mean the original reserve 6 boundaries, essentially from the 1800's. 7 A: I never had a sense that there was 8 anything more than a -- an exact square, for lack of a 9 better term, that encompassed the previous property that 10 was part of Stoney Point, that was surrendered in the 11 '20's. 12 Q: Right. I guess because of the 13 particular configuration of the parking lot there, when 14 you take the Army Camp Road Reserve boundary, the fence 15 right beside the Army Camp Road and treat it as a 16 straight line with no jogs in it and run right down to 17 the lake, you actually enclose the sandy parking lot 18 together with the Ipperwash Park. 19 Can you -- can you visualize that? 20 A: No. 21 Q: Okay. I will perhaps ask for an 22 exhibit to be put up. Perhaps if I don't finish today, 23 which is not likely and we can review that tomorrow. 24 COMMISSIONER SIDNEY LINDEN: Can we put 25 that exhibit up on the screen? Do we have the ability to
2141 do that? 2 3 (BRIEF PAUSE) 4 5 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 6 Q: All right. This is Exhibit 23, which 7 My Friend, Mr. Millar, has very efficiently put up on the 8 screen. And this is, I believe, based on a map drawn by 9 Officer Thompson from his visits to the site. And we've 10 used it for quite a number of explorations in this 11 proceeding. 12 Now if you look at that and orient 13 yourself on it, the -- do you perhaps have a paper copy 14 of that somewhere? 15 A: No, I'm just checking the -- the maps 16 of the area as ű as I am familiar. That's obviously 17 somebody else's drawing. But I just want to look at the 18 maps that I'm more accustomed to. 19 Q: Right. If I could use the pointer 20 here and this is East Parkway? 21 A: Yes, that's right. 22 Q: And it curves around going up Army 23 Camp Road? 24 A: Right. 25 Q: This being north to Lake Huron?
2151 A: Yes. 2 Q: Do you see that? 3 A: Yes. 4 Q: And this would be a fence line and 5 bushes, being the apparent boundary of the Ipperwash 6 Park. 7 A: Right. 8 Q: Does this make sense? Are you able 9 to orient yourself? 10 A: That's fair, yeah. 11 Q: Okay. 12 A: Sure. 13 Q: And there's a cottage over here? 14 A: Yes. 15 Q: And this appears to be a fence that 16 runs alongside Army Camp Road; is that right? 17 A: Right. 18 Q: And, in fact, as I discussed earlier, 19 it runs all the way south in a more or less straight line 20 right to Highway 21? 21 A: Correct. 22 Q: Correct? 23 A: Yeah. 24 Q: And what I was suggesting to you is 25 that the evidence from several other First Nations
2161 individuals in this Inquiry is that that fence marks the 2 approximate boundary of the original reserve from the 3 1800's. 4 A: I -- I -- I have no idea. 5 Q: No, I'm just ű- yeah, I understand. 6 I'm just -- let me just explain the other part of my 7 question. 8 That fence, if it continues in a more or 9 less straight line, lines up across the sandy roadway 10 with another fence that runs right down to the lake and, 11 therefore, you have a straight fence line running all the 12 way from the lake to Highway 21. 13 Do you see how that lines up? 14 A: Right. 15 Q: And when you -- when you line that 16 up, according to some evidence, that is the approximate 17 boundary on the western side of the original Stoney Point 18 Reserve. Now, does that make some sense to you, just... 19 A: Well, I can understand what you're 20 saying. 21 Q: Okay. And my point of my question 22 before was whether or not you were aware that if that is 23 the case, then the -- then this part of the sandy parking 24 lot, which I'm indicating with a pointer, is inside the 25 original reserve boundary; is that fair?
2171 A: I don't know if that was the case or 2 not. 3 Q: Right. But you would -- 4 A: But -- but if all the "if's" you say 5 are accurate, sure, I agree. 6 Q: Right. And in that case, the picnic 7 tables, that you referred to that were removed early on 8 the morning of the 6th, were in this area somewhere in 9 there; is that right? 10 A: My understanding, they were in this 11 area right here. 12 Q: All right. So -- 13 A: Either here or right here, that's -- 14 that's my understanding. 15 Q: All right. And do you -- well -- 16 well we -- perhaps, Deputy Commissioner Carson, we can 17 clarify that the evidence as to the location of the 18 picnic tables. Did you ever see the picnic tables 19 yourself when they were spread out? 20 A: No, no. 21 Q: Did you ever have anybody locate them 22 on a map for you? 23 A: No. 24 Q: Okay. So your information isn't 25 particularly precise as to where they were?
2181 A: No, sir. 2 Q: All right. And I will probably try 3 and identify that evidence for you and -- and put it to 4 you a little later, on -- on that -- on that point. 5 But the picnic -- and, be that as it may, 6 the picnic tables were -- were drawn to the attention of 7 your officers on the morning of the 6th; is that right? 8 A: Yes. 9 Q: Did -- did you get any reports or did 10 anybody have knowledge about them before the early 11 morning of the 6th? 12 A: When -- when you say, "before," what 13 --I'm not sure what you're referring to. 14 Q: In other words, were you -- were you 15 or your officers aware of them on the night of the -- the 16 late evening of the 5th or the middle of the night of the 17 5th or? 18 A: I -- I believe they were discovered 19 at daybreak. 20 Q: Okay. And when a decision was made 21 to send a significant number of officers there to remove 22 them, they found two (2) individuals and a campfire as 23 well; is that right? 24 A: Yes. 25 Q: And I believe the evidence was that
2191 the two (2) individuals immediately ran back into the 2 Park? 3 A: Yes. 4 Q: Is that right? 5 A: Yes. 6 Q: And the picnic tables were loaded up 7 and removed without incident? 8 A: Right. 9 Q: Is that right? Now -- and after that 10 point, and that was -- happened fairly early on -- on the 11 morning of the 6th, right? The tables were gone by 9:00 12 or ten o'clock; is that right? 13 A: Yes, that's fair. 14 Q: Okay. And as -- after that point 15 there was no further location of any significant physical 16 object on the sandy parking lot; is that right? 17 A: Correct. 18 Q: Right. As -- so -- and there hadn't 19 been any attempt to place any physical objects covering 20 or blocking that sandy parking lot on the 6th, that you 21 knew of, after the parking -- after the picnic tables; is 22 that right? 23 A: Correct. 24 Q: And again, I -- I -- since you raised 25 this as a reason for the deployment of police forces on
2201 the evening of the 6th, you'd agreed with me earlier that 2 you had no information or intelligence information that 3 there was, in fact, any plan to block off that parking 4 lot on the evening of the 6th with any physical objects? 5 You had no information that -- of any 6 intelligence kind, that that was actually planned? 7 A: Are we talking about the picnic 8 tables? 9 Q: I'm talking -- 10 A: I had no information the picnic 11 tables were going to be put out there, no. 12 Q: No, I'm not talking about the picnic 13 -- I'm talking after the picnic tables had been removed 14 on the morning of the 6th. 15 A: Right. 16 Q: And after that point, and as we get 17 into the evening of the -- of the 6th, I questioned you 18 earlier and you'd agreed, I believe, that you had no 19 intelligence information, no news, no -- no indication of 20 a plan to put anything on that -- on that parking lot? 21 A: No. 22 Q: Okay. 23 24 (BRIEF PAUSE) 25
2211 Q: And so that, when you give that as a 2 reason, you -- for moving the -- the police force into 3 the area on the evening of September the 6th, you had no 4 specific identifiable reason that anything like the 5 picnic tables was about to happen again; is that fair? 6 A: That's right. 7 Q: Now when the picnic tables were 8 removed, or any time during the 6th, did anybody, and I 9 think My Friend touched upon this in his examination in- 10 chief, use a bull horn to communicate to the people in 11 the Park that there was some kind of de facto recognition 12 line, you stay in the Park off the parking lot and -- and 13 there won't be trouble? 14 A: No, there was no -- no bull horn 15 used. 16 Q: Was there any kind of posting of any 17 kind of written material in any way, shape or form that 18 said, stay inside the Park and off the parking lot and we 19 will have a temporary truce there? 20 A: No. 21 Q: Do you have any information that 22 anybody from the police force ever said to anybody down 23 there, around the parking lot or the Park there, stay on 24 the Park side of the fence and out of the parking lot and 25 we'll have a temporary truce?
2221 A: No. The only discussion that took 2 place in regards to the -- where the police were and 3 where the occupiers were would have occurred in the 4 discussion with Bert Manning. 5 I believe that was the one at -- up at the 6 built up area of the military base with Mark Wright where 7 he wanted the checkpoints taken down or moved out -- 8 moved back, and he was told that wasn't going to happen. 9 Q: All right. So in terms of explicit, 10 clear communication to the protesters, to stay off the 11 sandy parking lot and we'll have a de facto truce line 12 there, there was no such communication; is that right? 13 A: No, we never were establish them. 14 Q: I'm sorry? 15 A: It was never established. 16 Q: All right. What do you mean, it was 17 never established? Was -- was that kind of your, meaning 18 either your personally or the OPP's unspoken plan that if 19 they stayed in the Park we wouldn't -- we wouldn't get 20 them? 21 A: I'm sorry? 22 Q: Was there an unspoken or perhaps 23 explicit agreement, within the OPP, that if the 24 protesters stayed inside the Park and off the sandy 25 parking lot, you would not take action against them?
2231 A: Well, I think our actions were very 2 clear on a number of examples that we were waiting the 3 process for the injunction and we had no intentions of 4 going into the Park. 5 Q: And was there any -- this is a 6 slightly different question from what I was asking you 7 before, was there any communication to the protesters in 8 any form whatsoever? Written or verbal that we will -- 9 MNR is obtaining an injunction with respect to the Park 10 and we will take no action with respect to the Park until 11 that -- to remove you from the Park until we have such an 12 injunction. 13 So my question pertains only to the Park, 14 removal from the Park? 15 A: No. As I said earlier, there was -- 16 there was no dialogue established that allowed us to have 17 those kinds of discussions. 18 Q: Well, you talk about dialogue and I'm 19 not quite clear if what you refer to as dialogue is the 20 same as what I normally consider dialogue. 21 But my point of my question is that there 22 was no clear communication to the protesters basically to 23 stay off -- no clear verbal or written communication to 24 the protesters to stay out of the sandy parking lot? 25 A: Yeah. That's fair.
2241 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 2 Sandler? 3 MR. MARK SANDLER: Yes. Now just to be 4 clear and -- and there's nothing wrong with the last 5 question and answer. But just before that I was a little 6 slow getting to my feet, you are feeling relieved are 7 you? 8 In the -- in the previous question he 9 asked whether there was any communication with the 10 occupiers that the MNR were going to be seeking an 11 injunction and that they wouldn't be removed until the 12 injunction was obtained, just because there's two (2) 13 barrels to that. 14 There actually is evidence in the notes 15 of Detective Sergeant Wright during the dialogue 16 conversation that's been talked about earlier, to the 17 affect that the MNR would be seeking an injunction. 18 And I would -- I would argue that implicit 19 in seeking an injunction and communicating you're seeking 20 an injunction is the very point. But -- so there is 21 actually some evidence, Commissioner, to the affect that 22 they were advised that an injunction was going to be 23 sought. 24 I just provide that to My Friend. He 25 doesn't have to ask about it.
2251 2 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 3 Q: I -- I think that Mr. Sandler's point 4 will help clarify the question, the issue I was 5 attempting to clarify. 6 Whether or not the protesters were 7 informed of the process of an injunction underway, I'm 8 interested in the other side of that coin which is there 9 will be a defacto truce until we get the injunction, 10 provided you stay in the Park and don't come into the 11 sandy parking lot. That was the point of my question. 12 And can I take it the answer is the same, 13 namely there was no verbal or written communication to 14 the protesters saying that? 15 A: Correct. 16 Q: So that the protesters would 17 reasonably have believed, and we don't -- I'm not making 18 any statement or what in fact they did believe, but they 19 would have reasonably have believed that they could go 20 out into the sandy parking lot, just like any member of 21 the public and not be accosted by police officers, 22 provided they were not apparently doing anything illegal. 23 A: Police officers are not in the 24 position to accost people who are conducting lawful 25 business.
2261 Q: All right. 2 3 (BRIEF PAUSE) 4 5 Q: And I believe this question was asked 6 of you before. It seems frankly a little obvious that if 7 the OPP's intention was to hold the status quo, namely 8 protesters in the Park and protesters not outside on the 9 sandy parking lot except as ordinary members of the 10 public, that it would have been sensible to communicate 11 that to them. 12 Now since you say they didn't -- OPP 13 didn't communicate that to the protesters, is that 14 because it was not a clear policy or position in the OPP 15 anyway or is it because nobody wanted to admit that or 16 nobody thought of it or you thought of it but it never 17 got done? Can you help me out? 18 A: Well, it would have been very helpful 19 if when Bert Manning suggested we meet with him, I 20 believe it was two o'clock on the afternoon of the 2nd or 21 the 6th, I'm sorry, that if someone would have came and 22 they could have sat down and had some discussion about 23 what was taking place, we could have informed them of the 24 injunction process. And we could have informed them of 25 whatever questions they also may have.
2271 I mean, there was no secret we were 2 getting an injunction, I think it was very clear. I 3 think it was being reported in the media, in fact, so 4 there certainly was no secrecy around the injunction, 5 that I'm aware of. 6 So had -- had we had someone who would sit 7 down with us and have a discussion, we probably could 8 have answered questions from both sides of the fence. 9 Q: My -- my -- my thinking and my 10 question is, Deputy Commissioner Carson, that you don't 11 need to sit down and have a discussion to convey 12 something that simple. 13 And, furthermore, I also wonder whether 14 some of the conditions for sitting down and having a 15 discussion are there when it appears that the position, 16 at least if Detective Sergeant Wright's actions or 17 anticipated evidence actions are any indication, that the 18 position of the OPP says, You're trespassers, there's 19 warrants for arrest. 20 How and when are you guys going to 21 surrender? 22 A: Well, I guess, that -- I mean, that 23 begs a question as well as, well, what else would he tell 24 them? I mean, there's outstanding warrants for arrest. 25 There is a belief that they are trespassing. I mean
2281 these are very simple facts that he would be conveying. 2 Q: Just, incidently, I notice you use 3 different terminology now than you did before. Before 4 you said they are trespassers and now you talk about a 5 belief that they were trespassers and I'm wondering if 6 that's the kind of thing... 7 A: I mean, that's semantics, sir. I -- 8 I don't want to debate that question. The fact of the 9 matter is, it always has been the matter as I understand 10 it, that the Ministry of Natural Resources had clear 11 title to that property. So, someone who doesn't leave 12 from that property is, in fact, a trespasser, in the 13 legal sense. 14 Q: So you don't think it would have been 15 helpful to give an inch and say, Look, MNR believes and 16 they seem to have good reason to believe that you are 17 trespassers. Do you want to talk about their reasons for 18 that belief? 19 Couldn't you have given them an inch and 20 said it that way instead? 21 A: We -- we can play with the semantics 22 of it, but quite frankly, it was MNR's duty to get an 23 injunction, not the Ontario Provincial Police. So, all 24 we are doing is trying to maintain the peace in the 25 interim. I think our actions are clear, at no time did
2291 we go over the fence. We attended at the fence, attended 2 to talk to people and we were met with no success in that 3 regard. 4 The only discussion we ever had to any 5 degree was the one that you referred to, I believe, with 6 Bert Manning and when Mark Wright informed them of the 7 outstanding issues as he knew it at that point in time. 8 And there was some discussion at the fence with one (1) 9 individual when Marg Eve and Mark Wright were there in 10 the afternoon. 11 Q: Well, you correctly cautioned against 12 applying 20/20 hindsight, but some hindsight may be 13 useful. And I still am left with the question on the 14 morning of the 6th, when there had been picnic tables 15 placed on the sandy parking lot and the OPP removed them. 16 And I gather your -- your hope, your plan 17 was that that not be repeated, is that right? 18 A: Well, I was hoping it would send a 19 signal, yes. 20 Q: And, in other words, you didn't want 21 it to happen again, right? 22 A: That would be my preference. 23 Q: Well, isn't the best way to send a 24 signal is to say so? 25 A: I guess. Then, who do you suggest we
2301 say it to? 2 Q: Well, a bullhorn works in -- in a 3 rough and ready kind of way. 4 My point is, if your goal is to contain 5 and negotiate and quite aside from questions of 6 negotiating, if you're trying to contain them, it 7 somewhat helps if you say stay on that side of the line. 8 Just do it. That's our position, stay on that side of 9 the line. 10 And that seems to me on the 6th, to have 11 been a good start to avoid misunderstanding that required 12 callout of CMU and the riot -- and the -- the TRU team. 13 A: And quite frankly, had Lorne Smith 14 and Brad Seltzer been successful in getting some dialogue 15 with some people from the community, hopefully we would 16 have been able to establish exactly what you're saying. 17 Q: Well, that's part of my question is, 18 you know, dialogue didn't happen immediately, and if the 19 defacto truce, if that's what it was, had been clearly 20 stated there might have been another day to establish 21 lines of communications or another two (2) days, or 22 another three (3) days. 23 And so, my question is: wouldn't it have 24 been helpful to buy a little more time to establish 25 communications by simply letting them know violence and
2311 confrontation will be avoided if you stay on that side of 2 the line? 3 A: Well, quite frankly, I don't -- I 4 don't believe that would have been met with any success, 5 but I'll concede that point. 6 The fact of the matter is, did I think 7 about it and have a bull horn there to provide that? No, 8 I did not. 9 Do I think it would have been any help? 10 It would just help with today's debate. 11 Q: Pardon me? 12 A: It would have just helped with 13 today's debate. 14 15 (BRIEF PAUSE) 16 17 Q: So you think those kinds of words 18 wouldn't have been effective with the protesters? 19 A: I think I would have been met with 20 expletives. 21 Q: All right. And why didn't you -- 22 well, let me rephrase it this way. You essentially spoke 23 with the visual threat of force by removing the picnic 24 tables with, essentially, a large number of officers, 25 covered by officers standing there with rifles; is that
2321 right? 2 A: Yes. 3 Q: And so that was your way of sending 4 us a message; right? 5 A: Yes. 6 Q: Why didn't you do both? It just 7 seems to me to be rather simple that if you believe a 8 message needs to be backed up by force, you can do that 9 and also make it more clear, but I guess you -- you 10 didn't; right? 11 A: I didn't do that. 12 Q: Right. 13 A: I mean it's -- I guess if I had have 14 thought about it at the time, I could have done that and 15 it would be nice to be able to tell you today we did and 16 it did -- did or did not work, but I don't have that 17 opportunity. 18 Q: Well, you sound from your tone, 19 frankly, I shouldn't say tone, from what you're saying 20 that I'm wondering if you're suggesting that it would 21 have been only a cosmetic thing. 22 And so my question is: Might that not 23 have helped avoid what happened on September 6th? 24 Mark Wright -- when Mark Wright went down 25 there to the curve, did anybody tell the eight (8) or ten
2331 (10) people in the parking lot, four (4) or five (5) of 2 them who had some form of stick, get your sticks off the 3 parking lot? 4 A: I don't think Mark Wright identified 5 himself as a police officer. 6 Q: Right. Now I understand from the 7 evidence, the anticipated evidence of Detective Sergeant 8 Wright, that he believed he was within view of one (1) of 9 the checkpoints when he stopped his car there. 10 ItĂs one (1) of the checkpoints seemed to 11 have been in view, does that make sense to you? 12 A: I'm not sure of that. 13 Q: And -- 14 A: I would -- I'm not sure he would be 15 in view, quite frankly. 16 Q: Okay. But my point is, doesn't -- 17 isn't it seem reasonable that if there's a group of ten 18 (10), let's say there was, eight (8) or ten (10) people 19 on the parking lot and four (4) or five (5) of them had 20 sticks and there was a concern, to say, get the sticks 21 off the parking lot? 22 And you're right, maybe that would have 23 helped our discussion today, but it might have prevented 24 us from being here today at all. Don't you think that's 25 a possibility
2341 A: Well, it also may have resulted in 2 the same experience they had on the evening of the 4th, 3 when the occupation of the Park commenced. 4 I mean, it could have resulted in another 5 confrontation with one (1) or two (2) officers. 6 Q: But my point and my question is, it's 7 not either/or, it's possible to have communication and a 8 back up of the -- 9 A: No, that's fair. 10 Q: -- yeah. And -- and particularly 11 since it's, as you -- as you mentioned earlier, as you 12 agreed earlier, there was no mention or anticipation in 13 the Project Maple plan at all for the use of CMU. 14 It seems to me if you're going to use an 15 unusual measure, you may as well start with a bull horn 16 rather than a riot squad. 17 Anyway, at... 18 So, in terms of the -- the picnic tables, 19 I suggest to you that if that's a reason, in other words, 20 the physical occupation of that sandy parking lot, for 21 bringing out CMU and TRU on that night, I suspect -- I 22 suggest to you a bull horn would have been cheaper and 23 faster. 24 And you gave the picnic tables as a 25 reason.
2351 A: I said that was an indication of the 2 behaviour from the night before. 3 Q: All right. 4 A: Just one (1) of the issues that was 5 taken into consideration in the larger picture. You 6 can't take any one (1) of these particular factors in 7 isolation and hang your hat on this is what caused this 8 or this caused that. It's -- this was much more complex 9 than that. I wish it was that simple. 10 Q: Well, a few minutes ago or an hour 11 ago you said you agreed with me when I suggested that the 12 two (2) incidents, namely of Deputy Sergeant Mark Wright 13 at the corner and the stone throwing incident were the 14 two (2) key items in causing the escalation. 15 You still -- do -- are you changing that 16 answer? 17 A: Sure. Sure. No, I'm not changing 18 that whatsoever. 19 Q: No? Okay. All right. 20 A: I'm just trying to point out, this is 21 a, you know, it's not a simple "A" and "B" and ends up 22 with whatever. 23 Q: Yes. Another reason you gave for the 24 mobilization and deployment of the CMU and the -- and the 25 -- and the TRU as I understand it a while ago was the --
2361 the gathering of the cottagers on the evening of the 6th 2 in the parking lot near the TOC centre about half a 3 kilometre give or take down East Parkway; is that right? 4 A: Yes. 5 Q: And I believe in our last discussion 6 of that, you -- you -- you advised me that you did -- you 7 did understand that the apparent intention of that group 8 was to march in protest, if you will, down to the Park 9 and into the Park, right? 10 A: Right. 11 Q: And that happened before Mark Wright 12 went to the corner and before the stone throwing 13 incident, right? 14 A: Correct. 15 Q: And when did you first become aware 16 of that protest and the apparent intention to mark into 17 the Park -- march into the Park? 18 A: I -- I -- I believe it was when I was 19 called while I was out for dinner and Mark Wright 20 apprised me of that. 21 Q: Okay. And that was a factor because 22 of what the non-Native cottagers were deciding or 23 threatening to do, it wasn't an action taken by the 24 Natives at that point; is that right? 25 A: It wasn't a Native issue, no.
2371 Q: Right. And just help me out with the 2 logic here, you thought that if the protesters were not 3 moved back into the Park, the cottagers would march again 4 or something? 5 A: If -- if we allowed any of those 6 cottages to be damaged or broken into, we were going to 7 have a significant major issue on our hands when those 8 cottagers took the law into their own hands, which Mark 9 Wright was successful at convincing them to let the 10 police handle this and -- and let's not get involved in a 11 march on the Park. 12 Q: All right. Then -- so that, 13 essentially, is another version of the item you 14 identified before, which is your concern that the 15 cottages were next? 16 A: Yes. 17 Q: Okay. And we had a discussion about 18 that issue about your concern that the cottages were 19 next. Okay. 20 So, when you -- those -- those two (2) are 21 essentially the same point. They're mixed in together, 22 the cottagers' concern in their march and the concern 23 that cottages were next? 24 A: Well, regardless of cottagers, I 25 certainly had a concern for the safety of the cottages
2381 there. I mean, I'm a police officer, I have to be 2 concerned -- 3 Q: Yes. 4 A: -- for public safety. 5 Q: And then, another item you mentioned 6 in the -- the list of -- of reasons you gave earlier for 7 the marching in on the evening of the 6th of the CMU and 8 the TRU was that you referred to a progression, I guess, 9 since 1993 in which the protesters had said, We're going 10 to claim something else. 11 And then they did; is -- is that right? 12 A: Right. 13 Q: And I understood from your 14 examination-in-chief that when it came to the Army Camp 15 lands you had -- I think you said you'd examined some of 16 the documentation and you could see how they might have a 17 point or words similar to that effect? 18 A: Absolutely. 19 Q: Yeah. Now my question is whether 20 with respect to the Park and the mention of an -- an 21 occupation of the Park before it came, did you have 22 occasion to do any research or any backgrounding with 23 respect to the Park as to what rationale or colour of 24 right there might be with respect to the Park? 25 A: I -- I think I've stated that on a
2391 number of occasions, sir, that I had asked through, I 2 believe it was Ron Fox's office, to have any research 3 around land claims specific to the Provincial Park. And 4 the answer I got back that there was nothing outstanding. 5 And I also had discussion with the likes 6 of that I mentioned numerous times, Chief Bressette in 7 regards to the position of the official Band -- 8 Q: Right. 9 A: -- that -- that may have a claim. 10 Q: And did you go any further than for 11 example, the -- the MNR -- let me go back. 12 Did you recognize that the Park lands had 13 originally been lands allocated in perpetuity to the 14 First Nation in the Treaty? 15 A: I had documents available to me that 16 I had received that identified the surrender of the 17 hundred and nine (109) acres of Provincial Park from the 18 Stoney Point Reserve in, my dates escape me, but I'm 19 going to say the early '20's and the transfer of that 20 property to the Federal government and eventually sold to 21 an individual by the name of Scott. 22 The dates are not accurate but either the 23 late '20's or early '30's eventually sold to the 24 Department of Lands and Forest. So I -- I was well aware 25 of the transition from the Reserve status to surrendering
2401 that property and then resale to the Department of Lands 2 and Forest. 3 Q: And you mentioned that you had spoken 4 with Chief Bressette for example. 5 A: Right. 6 Q: And was it your understanding from 7 your conversations with Chief Bressette that the claim of 8 some of the occupiers or protesters to the ownership of 9 the Park and a burial ground in the Park, that Chief 10 Bressette thought there was nothing in both of those, is 11 that...? 12 A: That's my understanding. 13 Q: Right. And would you agree with me 14 that now that there appears to be evidence come out in 15 the public about documentation of an alleged burial 16 ground in the Park area from the '30's and also 17 photographs and other evidence of a skeleton that was 18 found in the Park in the 1950's, that it may well be that 19 Chief Bressette was wrong and the protesters were right 20 on that as far as that? 21 A: It's possible. 22 Q: Possible. Did you ever try and go 23 behind the surrender of 1928 in terms of people you spoke 24 with at MNR or Inspector Fox and say, If this surrender 25 or sale or whatever of 1928 is so clear, why is there
2411 still some kind of dispute about it? 2 Did you ever try and go one (1) step 3 into that? 4 A: No. Well, that was the same issue 5 that was swirling in West Ipperwash at the same time in 6 regards to some property that was surrendered adjacent to 7 Kettle Point. So I was certainly mindful that there were 8 allegations of, I don't know if the term is inappropriate 9 influence in regards to the potential surrenders. 10 But clearly I knew there was -- that 11 topic was before the courts relative to cottages at West 12 Ipperwash at that time. 13 Q: Have you -- I promised to -- to not 14 use some of the words I used before. 15 Have you since the events of 1995 16 conducted any research or even made any inquiries into 17 the issue of the 1928 surrender to see, based on what 18 happened and what you know now, whether there was 19 something behind that date? 20 A: I'm not aware of any issues. I have 21 done no personal investigation into that. 22 Q: Right. 23 24 (BRIEF PAUSE) 25
2421 Q: It's -- it's obvious that the issues 2 that were in the area prior to the death of Dudley George 3 with respect to the Park, for example, have not gone 4 away, that's pretty trite, isn't it? 5 A: Yeah, I would say yes. 6 Q: And the reality is the Ipperwash 7 Provincial Park is not now being used as a Provincial 8 Park, isn't that right? 9 A: That's right. 10 Q: And hasn't been, since the death of 11 Dudley George, to my knowledge; is that right? 12 A: That's correct. 13 Q: And so what happened, whatever 14 actions were taken by the OPP in 1995, didn't bring about 15 a resolution of the Park issue, if that resolution is 16 perceived to be return or restoration as a public park? 17 A: Correct. 18 Q: And in fact, Deputy Commissioner 19 Carson, have there in fact been OPP patrols in the Park 20 since the death of Dudley George? 21 A: Not that I'm aware of. 22 Q: And so, as far as you're aware, no 23 OPP officer in an official capacity has set foot in the 24 former Provincial Park since the death of Dudley George? 25 A: Correct.
2431 Q: Would you agree with me that if one 2 looks at the formal laws and rules and property rights on 3 paper, theoretically the OPP should be enforcing the law 4 in what used to be provincial -- Ipperwash Provincial 5 Park, is that right? 6 A: Correct. 7 Q: And would you agree with me that we 8 have a very large and prominent anomaly, if you will, in 9 the sense that there is a significant piece of south- 10 western Ontario land in Ontario that is not being 11 patrolled or set foot on by the Ontario Provincial 12 Police? 13 A: Well, I guess I need to qualify that 14 to some degree. I guess if there was a report of a 15 serious -- of some criminal offence that's occurring 16 there, or on the Military Base, we would be investigating 17 it. 18 But do we patrol it? No. 19 There's lots of property in the province 20 that we don't physically patrol, but if -- because for a 21 variety of reasons is private property or -- or 22 otherwise, like Military Bases we normally don't patrol 23 either, generally speaking. 24 But if a -- if an occurrence or a criminal 25 event happens there, we would go and investigate it. And
2441 I would suggest if a criminal event happened at the 2 Military Base or on the Provincial Park that was brought 3 to our attention, we would -- we would take steps to 4 investigate it. 5 Q: Would you go on to the land? 6 A: Well, if the -- and I guess it's 7 hypothetic, if there's a serious criminal offence, and I 8 guess, for example, a homicide, we would be obliged to go 9 on to the property and investigate it. 10 Q: All right, and -- 11 COMMISSIONER SIDNEY LINDEN: Yes? 12 13 (BRIEF PAUSE) 14 15 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 16 Q: But to your knowledge, there hasn't 17 been an officer on the former parklands -- 18 A: Not that I'm aware of. 19 Q: Yeah, right. 20 MR. MARK SANDLER: I was just saying, 21 Commissioner, just -- and I know My Friend is aware of 22 the general sense of this, there actually is a protocol 23 in place now and -- that addresses the issue. 24 So I wouldn't want, Commissioner, to 25 inadvertently to be unaware of the fact that there
2451 actually have been some discussions that led to a 2 protocol to address the issue that my -- that My 3 Friend's raising. 4 COMMISSIONER SIDNEY LINDEN: Yes, thank 5 you. 6 7 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 8 Q: Would you agree with me the -- the 9 status of Ipperwash Provincial Park has not been resolved 10 by any means, since the death of Dudley George? 11 A: I agree. 12 Q: Would you agree with me that the 13 shooting death of Dudley George complicates the issue of 14 the status of the former Ipperwash Provincial Park and 15 from the First Nations side, increases the emotional 16 attachment to that -- to that land that would make the 17 return of that land to Provincial Park status much more 18 difficult? 19 A: No doubt in my mind that you're 20 absolutely right. 21 Q: In fact, would you agree with me as a 22 -- as a -- as a police officer that it would appear that 23 without the agreement and consent of the First Nation 24 people in the area, it would be virtually impossible to 25 return the Ipperwash Provincial Parklands to public
2461 parkland status? 2 A: I'm not sure if it's that simple. 3 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 4 Twohig? Just... 5 MS. KIM TWOHIG: Thank you, Mr. 6 Commissioner. I submit that this is not an appropriate 7 question for this Witness. He's being asked possibly to 8 draw a legal conclusion about what is required in order 9 to deal with the land. 10 And possibly, he's being asked a practical 11 question as an expert whose experience with this issue 12 was in a completely different context than the settlement 13 of land claims. And I submit that the question is not 14 appropriate. 15 COMMISSIONER SIDNEY LINDEN: Well, I 16 don't think it's a helpful question to ask this Witness 17 at this time. It's one (1) of the issues for this 18 Commission, to some extent, to resolve as well, or to 19 deal with in some way, shape or form. I don't think it's 20 a necessary question. If you insist on pursuing... 21 MR. MURRAY KLIPPENSTEIN: I'll withdraw 22 the question, Commissioner. 23 COMMISSIONER SIDNEY LINDEN: Thank you. 24 25 (BRIEF PAUSE)
2471 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 2 Q: A couple of questions related to some 3 of the details of the evidence we have on the OPP 4 operation at that point in September. 5 We see lots of references in the materials 6 to LIMA 1 and LIMA 2 and can you tell me what those are? 7 We have some good ideas of what they seem to mean from 8 context, but it's not entirely clear. 9 A: Oh, I -- I thought I was clear when I 10 explained that when Mr. Millar examined that particular 11 issue. 12 LIMA 1 is the sergeant in charge of the 13 ERT team who would be positioned at the command post in 14 Forest. LIMA 2 is the supervisor sergeant who would be 15 positioned at the TOC site at the MNR parking lot at 16 Parkway Drive. 17 Q: Thank you. And we see various 18 references in the -- for example -- the radio calls to 19 identification numbers such as 2428, 2440. 20 Are those cars or individuals or 21 something else? 22 A: No. They're -- they're an individual 23 call sign for each officer. 24 Q: And so, each such number designates a 25 particular individual officer?
2481 A: Right. 2 Q: And I don't think this is getting 3 into anything that's controversial, but for example, do 4 you remember who 2440 was? 5 A: I haven't a clue, sir. 6 Q: Okay. 7 A: I certainly -- there -- there is a 8 convention of numbers that -- that's easy to identify, 9 but the supervisors and the communications people would 10 have a convention of numbers. 11 I mean, those numbers are developed in a 12 very specific way so it identifies location and -- and 13 rank and things like that that is not apparent to the -- 14 to the layperson, I would suggest. But I mean, it's easy 15 to determine who that might be, but I don't have a list 16 of -- of the conventions -- 17 Q: Okay. 18 A: -- of numbers as to which team was 19 assigned the forty (40) series or the twenty (20) series 20 of numbers. 21 Q: Okay. And can you help me out with 22 some of the other digits, like one (1) of the digits 23 would be a location or... 24 A: Yeah, usually the first two (2) 25 digits often refers to the location. Each Detachment has
2491 -- has a location code. 2 Q: Okay. So, that would be -- in this 3 case, 2428, 2440, those would be -- is twenty-four (24) a 4 Forest Detachment code or... 5 A: Well, as I said, I don't have the 6 convention list here -- 7 Q: Right. 8 A: -- and it's ten (10) years ago. 9 Q: Right. 10 A: And I'm not sure, you know, where the 11 24 numbers were assigned at that time. 12 Q: Right, it could be an officer from 13 Chatham or London or whatever. 14 A: Well, likely what's happened, I 15 suspect is that, for instance, the 2000 series of numbers 16 would be the Chatham district crowd -- or not crowd 17 management, ERT team, the London district might have a 18 3000 series of numbers, the Mount Forest area might have 19 a 4000 series. 20 So that from a -- an identification point 21 of view the comm. centre could easily tell where people 22 were from, et cetera, by their call numbers. 23 Q: Okay. So -- 24 A: Believe it not, there is some 25 rationale to it.
2501 Q: And so it's the sort of thing you'd 2 have in a table or people would have it half memorized 3 in -- 4 A: Well, they have to log on at the 5 start of their shift, so each person is assigned the 6 numbers from the communications centre, so it's a daily 7 exercise. 8 Q: And does that number change? 9 A: Oh, every day. I mean, every shift 10 there could be a different number. 11 Q: Oh, I see. So an individual can be 12 one number today and another day -- another number 13 tomorrow? 14 A: Oh, sure. 15 Q: Okay. 16 17 (BRIEF PAUSE) 18 19 Q: And I think My Friend, Mr. Millar has 20 just pointed out that there's ranges of call numbers in 21 Project Maple, page 7, I gather. Thank you. 22 23 (BRIEF PAUSE) 24 25 MR. DERRY MILLAR: It's page 7 of the
2511 communications. 2 THE WITNESS: That's correct and so 3 that... 4 5 (BRIEF PAUSE) 6 7 THE WITNESS: So as you can see on page 8 7, there's a number of groups of numbers. The 2410 to 19 9 series is for the Number 1 district cars. My unit was 10 2403, so that's the number I would -- I would hold for 11 the balance of the incident. 12 13 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 14 Q: Right. 15 A: In that case. 16 Q: Okay. And we see in some of the 17 radio communications, some numbers like 10-19 and -- 18 which means, I think, return to base or something like 19 that. 20 A: Right, that's the standard universal 21 10 code. 22 Q: Okay, and I believe I've seen a table 23 of that -- those codes somewhere -- 24 A: Yes. 25 Q: Would it be --
2521 A: They're in the documents here 2 somewhere. 3 Q: I know, I know they are. 4 What would be some of the most -- can you 5 name two (2) or three (3) of the most commonly used ones? 6 A: There are a hundred (100) of them. 7 Q: I realize that. 8 A: So, I -- if you -- 9 Q: Could be anything. 10 A: Well, do you want me to recite them? 11 Q: Yeah, yeah, yeah, yeah. 12 Commissioner, I'm wondering if it's -- if 13 it may be possible to -- to ask your indulgence and break 14 a few minutes early today. 15 It's been a -- 16 COMMISSIONER SIDNEY LINDEN: Are you just 17 about finished? 18 MR. MURRAY KLIPPENSTEIN I -- I will not 19 finish today and I probably have several hours of -- more 20 of cross-examination. I may well take the morning for 21 tomorrow for purposes of -- 22 COMMISSIONER SIDNEY LINDEN: Well, I had 23 the impression you were winding down and I was going to 24 try and keep going until you finished. But -- 25 MR. MURRAY KLIPPENSTEIN Yes.
2531 COMMISSIONER SIDNEY LINDEN: -- that's 2 not likely. 3 MR. MURRAY KLIPPENSTEIN Not likely, no. 4 COMMISSIONER SIDNEY LINDEN: Well, in 5 that case then, I think if you're suggesting -- 6 MR. MURRAY KLIPPENSTEIN Thank you, 7 Commissioner. 8 COMMISSIONER SIDNEY LINDEN: -- that we 9 adjourn now -- 10 11 MR. MURRAY KLIPPENSTEIN Oh, My Friend 12 has just point -- 13 MR. DERRY MILLAR: P-401 is the 10 codes 14 used by the -- 15 MR. MURRAY KLIPPENSTEIN: Yes. 16 MR. DERRY MILLAR: -- OPP. 17 MR. MURRAY KLIPPENSTEIN I knew I'd seen 18 them somewhere, thank you. 19 MR. DERRY MILLAR: Okay. 20 MR. MURRAY KLIPPENSTEIN Thank you, 21 Commissioner. 22 COMMISSIONER SIDNEY LINDEN: So we'll 23 adjourn now, we'll reconvene tomorrow morning at nine 24 o'clock. I gather what you said, there is a chance that 25 you will finish some time tomorrow morning, or if not,
2541 early in the afternoon, but -- 2 MR. MURRAY KLIPPENSTEIN Yes. 3 COMMISSIONER SIDNEY LINDEN: -- sometime 4 tomorrow. 5 MR. MURRAY KLIPPENSTEIN: Probably. 6 COMMISSIONER SIDNEY LINDEN: Thank you 7 very kindly. We'll adjourn from now until tomorrow 8 morning at nine o'clock. 9 10 (WITNESS RETIRES) 11 12 THE REGISTRAR: This Public Inquiry is 13 adjourned until tomorrow, Wednesday, June 8th, at 9:00 14 a.m. 15 16 --- Upon adjourning at 4:18 p.m. 17 18 Certified Correct 19 20 21 22 23 ______________________ 24 Dustin Warnock 25