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 14th, 2006 25
21 Appearances 2 Derry Millar ) Commission Counsel 3 Susan Vella ) (np) 4 Donald Worme, Q. C ) 5 Katherine Hensel ) 6 Megan Ferrier ) 7 8 Murray Klippenstein ) The Estate of Dudley 9 Vilko Zbogar ) (np) George and George 10 Andrew Orkin ) (np) Family Group 11 Basil Alexander ) 12 13 Peter Rosenthal ) Aazhoodena and George 14 Jackie Esmonde ) Family Group 15 Amanda Rogers ) (np) Student-at-law 16 17 Anthony Ross ) Residents of 18 Cameron Neil ) (np) Aazhoodena (Army Camp) 19 Kevin Scullion ) 20 21 William Henderson ) (np) Kettle Point & Stony 22 Jonathon George ) (np) Point First Nation 23 Colleen Johnson ) 24 25
31 APPEARANCES (cont'd) 2 Kim Twohig ) (np) Government of Ontario 3 Walter Myrka ) (np) 4 Susan Freeborn ) 5 Sheri Hebdon ) (np) Student-at-law 6 7 Janet Clermont ) Municipality of 8 David Nash ) (np) Lambton Shores 9 Nora Simpson ) (np) Student-at-law 10 11 Peter Downard ) (np) The Honourable Michael 12 Bill Hourigan ) (np) Harris 13 Jennifer McAleer ) 14 15 Ian Smith ) Robert Runciman 16 Alice Mrozek ) (np) 17 18 Harvey T. Strosberg, Q.C.) (np) Charles Harnick 19 Jacqueline Horvat ) (np) 20 21 22 23 24 25
41 APPEARANCES (cont'd) 2 Douglas Sulman, Q.C. ) (np) Marcel Beaubien 3 Mary Jane Moynahan) (np) 4 Dave Jacklin ) (np) 5 Trevor Hinnegan ) 6 7 Mark Sandler ) Ontario Provincial 8 Andrea Tuck-Jackson ) Ontario Provincial Police 9 Leslie Kaufman ) (np) 10 11 Ian Roland ) Ontario Provincial 12 Karen Jones ) (np) Police Association & 13 Debra Newell ) K. Deane 14 Ian McGilp ) (np) 15 Annie Leeks ) (np) 16 Jennifer Gleitman ) (np) 17 Robyn Trask ) (np) 18 Caroline Swerdlyk ) (np) 19 20 21 22 23 24 25
51 APPEARANCES (cont'd) 2 Julian Falconer ) Aboriginal Legal 3 Brian Eyolfson ) (np) Services of Toronto 4 Kimberly Murray ) 5 Julian Roy ) (np) 6 Clem Nabigon ) (np) 7 Linda Chen ) (np) 8 Chris Darnay ) (np) 9 Sunil Mathai ) (np) 10 Adriel Weaver ) (np) Student-at-Law 11 12 Al J.C. O'Marra ) (np) Office of the Chief 13 Robert Ash, Q.C. ) (np) Coroner 14 William Horton ) (np) Chiefs of Ontario 15 Matthew Horner ) (np) 16 Kathleen Lickers ) (np) 17 18 Mark Fredrick ) (np) Christopher Hodgson 19 Craig Mills ) (np) 20 Megan Mackey ) (np) 21 Peter Lauwers ) (np) 22 Erin Tully ) (np) 23 Michelle Fernando ) (np) 24 Maanit Zemel ) 25 Patrick Greco ) (np)
61 APPEARANCES (cont'd) 2 3 David Roebuck ) (np) Debbie Hutton 4 Anna Perschy ) (np) 5 Melissa Panjer ) (np) 6 Adam Goodman ) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
71 TABLE OF CONTENTS 2 PAGE NO. 3 List of Exhibits 8 4 Opening Comments 11 5 6 GWENNETH MARIE BONIFACE, Sworn 7 Examination-In-Chief by Mr. Derry Millar 12 8 Cross-Examination by Mr. Ian Roland 194 9 Cross-Examination by Mr. Trevor Hinnegan 197 10 Cross-Examination by Mr. Murray Klippenstein 202 11 Cross-Examination by Mr. Peter Rosenthal 224 12 13 14 15 Certificate of Transcript 283 16 17 18 19 20 21 22 23 24 25
81 EXHIBITS 2 No. Description Page 3 P-1706 Curriculum Vitae of Gwen M. Boniface. 13 4 P-1707 Aboriginal Initiatives, Building 5 Respectful Relationships. 21 6 P-1708 Chart of Chronology of Screening and 7 Training for Aboriginal Issues. 25 8 P-1709 Screening and Training for Aboriginal 9 Issues, from application for Constable 10 to OPP to Level 2 Incident Commander. 26 11 P-1710 A Framework for Police Preparedness for 12 Aboriginal Critical Incidents, OPP Field 13 Support Bureau Provincial Command, Field 14 and Traffic Services. 32 15 P-1711 Refinements to the Framework. 36 16 P-1712 Aboriginal Officers: Outreach and 17 Inreach. 42 18 P-1713 Summary of Changes to Public Order 19 Unit (POU), 1995 -2006. 46 20 P-1714 Summary of Changes to Integrated Response, 21 1995-2006. 46 22 P-1715 OPP Level 2, Critical Incidents, Recording 23 and Retention of Recordings. 77 24 P-1716 Relevant Police Orders, 1995, Requirements 25 for Officers to Record Notes. 78
91 EXHIBITS (Con't) 2 No. Description Page 3 P-1717 Training for Pre-Recruits, 2006, 4 Requirements for Officers to Record 5 Notes, December 2004. 79 6 P-1718 Relevant Police Orders, 2006, 7 Requirements for Officers to Record 8 Notes, January 2005. 79 9 P-1719 Comparison, Daily Journals and Note 10 Taking (Police Orders). 83 11 P-1720 OPP Police Orders, Chapter 2, Law 12 Enforcement, pages 12,13 and 14. 96 13 P-1721 Emergency Preparedness in the OPP. 110 14 P-1722 Connolley Report, Recommendations 15 numbers 1, 2, 3, 4, 5, 6 and number 7. 119 16 P-1723 Memo from D.S. Nagel, Deputy Commissioner, 17 to Regional, Bureau and Detachment 18 Commanders re. Use of OPP insignia and 19 images, December 17, 1996. 151 20 P-1724 OPP Orders, 6.13.4: Insignia, Release, 21 pages 10 and 11 (December 2003 revision). 151 22 P-1725 Memo Log record re. Request pins for A/Sgt 23 Ken Deane be neither worn or produced, 24 May 13, 1997. 161 25
101 EXHIBITS (Con't) 2 No. Description Page 3 P-1726 MSGCS Issue Note, The Kenneth Deane 4 Defence Fund pin, August 20, 1997. 162 5 P-1727 Summary of Audio Clips that are part of 6 the Evidence. 175 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
111 --- Upon commencing at 9:03 a.m. 2 3 THE REGISTRAR: This Public Inquiry is 4 now in session, the Honourable Mr. Justice Linden 5 presiding. Please be seated. 6 MR. DERRY MILLAR: Good morning, 7 Commissioner. 8 COMMISSIONER SIDNEY LINDEN: Good 9 morning. Good morning, everybody. 10 MR. DERRY MILLAR: Before we begin I 11 wanted to just make a few comments about Commissioner 12 Boniface and the evidence. 13 Commissioner Boniface today will address 14 specific lessons learned or practices changed as a result 15 of or post the events at Ipperwash Park, however, a 16 number of these issues are being considered by Part 2 of 17 the Inquiry. And as you know and as the parties know Part 18 2 has organized several research papers, forums, and 19 consultations considering current OPP policies and 20 procedures in these areas. 21 We're not going to be going into detail in 22 these issues as -- as material is being prepared as we 23 speak to be provided to -- in Part 2 of the Inquiry. And 24 Nye Thomas the Director of Research and Policy has 25 written to the OPP requesting detailed follow-up
121 information on several issues arising from the research 2 papers, consultations, and the OPP's January forum on 3 relationship building. 4 The OPP's response is expected in the next 5 while. We will post and circulate the OPP material when 6 it is finalized and received by the Commission. 7 Consistent with this approach Mr. Thomas 8 has also made several detailed written requests to the 9 Provincial Government requesting additional information 10 on current Provincial Government policies. And the 11 Province's responses are presently posted on our website 12 so that people can take a look at them. 13 So I just wanted to tell everybody that 14 because we're going to try to focus in on more Ipperwash- 15 related items. Although there's a crossover here between 16 Part 1 and Part 2 but we don't want to do today what's 17 being done in Part 2. 18 COMMISSIONER SIDNEY LINDEN: Thank you 19 very much, Mr. Millar. 20 MR. DERRY MILLAR: So the next witness 21 that we call is Commissioner Gwen Boniface, sir. 22 23 GWENNETH MARIE BONIFACE, Sworn 24 25 EXAMINATION-IN-CHIEF BY MR. DERRY MILLAR:
131 Q: Commissioner Boniface, could you 2 please turn to Tab 1 of the large book in front of you? 3 And that I understand is a -- your CV? 4 A: That's correct. 5 Q: And I would ask that the CV at Tab 1 6 be marked the next exhibit, please? 7 THE REGISTRAR: P-1706, Your Honour. 8 9 --- EXHIBIT NO. P-1706: Curriculum Vitae of Gwen M. 10 Boniface. 11 12 CONTINUED BY MR. DERRY MILLAR: 13 Q: And I understand that you joined the 14 OPP in 1977? 15 A: That's correct. 16 Q: And were posted to the Downsview 17 Detachment? 18 A: Yes, sir. 19 Q: And in 1982 you joined the Field 20 Coordination Branch as a Constable Analyst, is -- 21 A: That's correct. 22 Q: And from 1985 until 1988 you attended 23 law school and got your LLB and articled with the Legal 24 Branch of the Ministry of the Solicitor General from 25 1988 to 1989?
141 A: That would be correct. 2 Q: And you became a member of the Law 3 Society of Upper Canada in 1989? 4 A: 1990. 5 Q: 1990. And I understand as well from 6 1989 to 1992 you were the Inspector Manager of Staff 7 Relations/ Staff Development at Headquarters; is that 8 correct? 9 A: That's correct. 10 Q: and from 1992 to 1994 as an Inspector 11 you were the manager of the First Nations Policing 12 Section? 13 A: That's correct. 14 Q: And, Commissioner, at page 2 of 15 Exhibit P-1706, Commissioner Boniface's CV there's an 16 error in the middle entry where it says 1994 to 1995, 17 it's the next -- it says '93 to '95 under 18 Superintendent/Director, it should be 1994/1995. 19 And from 1994 to 1995 you were 20 Superintendent/ Director of the First Nations and 21 Contract Policing Branch? 22 A: Yes. 23 Q: In April 1995 you became Chief 24 Superintendent and Bureau Commander for the 25 Organizational
151 Development Bureau? 2 A: That's correct. 3 Q: And again that was at Headquarters? 4 A: Yes. 5 Q: And in April of 1996 you became Chief 6 Superintendent and Regional Commander for the Western 7 Region? 8 A: Yes. 9 Q: And that was based in London? 10 A: In London, yes. 11 Q: And as well I understand that, if you 12 turn to pages 4 and 5 of your CV, that you are among 13 other things the -- an associate member by invitation of 14 the First Nations Chiefs of Police Associations of 15 Canada? 16 A: That's correct. 17 Q: And you were a Commissioner for the 18 Law Commission of Canada from 1997 to 2002? 19 A: Yes. 20 Q: And you were an adjunct professor at 21 the University of Western Ontario Law School in 1997 and 22 I understand you taught First Nations issues? 23 A: Yes. 24 Q: In 1996 you acted in an advisory 25 capacity on the New Brunswick Task Force on Sexual
161 Harassment? 2 A: Yes. 3 Q: And among other things you are -- 4 were awarded in 2005 the First Nations Chiefs of Police 5 Partnership Medal? 6 A: That's correct. 7 Q: And the -- if I could take you back 8 to -- and excuse me on May 28th, 1998, you became the 9 Commissioner of the OPP? 10 A: That's correct. 11 Q: Now, the -- in 1995 as the Chief 12 Superintendent Bureau Commander Organizational 13 Development Bureau did you please play any role in the 14 events at Ipperwash Provincial Park? 15 A: No. 16 Q: And I understand that you were in 17 fact on holiday from September 5th to September 8th, 18 1995? 19 A: That's correct. 20 Q: And if I could ask you to turn to Tab 21 4 of the large book in front of you, Commissioner, you'll 22 find there a copy of Exhibit P-572. And at page 2 23 there's a reference to you and Inspector Nudds to address 24 some issues with respect to First Nations territories and 25 policing.
171 And, (a), do you recall this meeting and, 2 (b), do you recall being asked to do this by Chief 3 Superintendent Coles? 4 A: I recall being at the meeting. This 5 is not my recollection of the discussion. The discussion 6 was a general discussion as I reflected in my interview 7 with Inspector Connolley in his report which was a 8 general discussion, and my recollection of it was a 9 discussion around any assistance that could be provided 10 by the First Nations Policing Bureau, or section then. 11 Q: And at this point you were no longer 12 with the First Nations policing bureau? 13 A: No. 14 Q: And back in 1993 and 1994 you were 15 with the First Nations policing bureau and what role, in 16 1993 and 1994, if any, did you play with respect to the 17 events at the Army Camp? 18 A: I have -- I had no role to play in 19 that. 20 Q: And you -- we've seen some documents 21 -- two (2) documents that you were copied on from the 22 legal department at the Ministry of the Solicitor General 23 and was that a -- can you recall today why you received 24 those documents? 25 A: There was a practice of copying me
181 because I was in charge of First Nations policing on 2 pretty, well anything that came out regarding First 3 Nations and the OPP. I think it was just a courtesy to 4 keep me in the loop. 5 Q: And in 1993 and 1994 what knowledge, 6 if any, did you have with respect to the issues involving 7 the Army Camp? 8 A: Very little. Just what I would have 9 generally picked up but I had no involvement. 10 Q: And what involvement, if any, did you 11 have in the involvement -- the evolution of the Kettle 12 and Stoney Point Police Service? 13 A: The -- in 1992 the Ontario-wide First 14 Nation policing agreement was signed which was my forte 15 into that area. And so in part what that agreement did 16 was allow for the creation of the Inishnabek Police 17 Service which I recall -- if I recall correctly was 18 established in 1994. 19 So as part of the Inishnabek Nation we 20 would have had dealings back and forth with Kettle and 21 Stoney Point as they were planning that process. And 22 because the officers were administered in that time under 23 the First Nation Policing Agreement and the 24 administration was done by my section I would have had 25 involvement, both with the officers and Kettle and Stoney
191 Point but as well with the Chief and Council. 2 Q: And when you became Commissioner in 3 May of 1998 what were your priorities as Commissioner 4 with respect to First Nations policing and First Nations 5 communities? 6 A: Well, it was an ongoing commitment I 7 had from my time in First Nations policing. And as I 8 became Commissioner we were in the transition really to 9 the stand alone policing agreements. I had been involved 10 in it through -- through my time in western region as 11 well and as Commissioner I put two (2) priorities around 12 First Nation communities. 13 One was to support First Nation police 14 services in their evolution as the OPP and to ensure that 15 we were facilitating that transition into stand alone 16 policing. 17 And the second one was to establish a 18 relationship and strengthen that relationship with the 19 First Nation communities from the OPP's perspective 20 because as the First Nation police services evolved and 21 became a stand alone the OPP still needed a relationship 22 with the First Nation communities because we would be 23 there in a support capacity. And we were still policing 24 First Nation communities in two (2) other capacities 25 under the administrative program as well as direct police
201 service by the OPP. 2 Q: Okay. And today does that remain one 3 (1) of your goals? 4 A: Absolutely. 5 Q: And what has your experience been 6 with stand alone policing services or self-directed First 7 Nations policing services? 8 A: I think the evolution has been for 9 the most part a very successful one. I think it has been 10 hampered somewhat particularly in early days, and I spoke 11 to about this in Part 2, in the early days by funding and 12 secondly by a premise that it was a Federal policing 13 policy that only funded frontline policing. 14 And as policing becomes more complex and 15 more specialized that -- that is a greater challenge for 16 First Nation police services. 17 Q: And so that funding remains an issue? 18 A: Yes. 19 Q: And it's an issue that you're 20 concerned about? 21 A: Yes. 22 Q: And one (1) of your other priorities 23 was building relationships with First Nations 24 communities? 25 A: That's correct.
211 Q: And can you just tell the 2 Commissioner a little bit about that? 3 A: I'd like -- well, first of all that 4 we had established under my predecessor, the Commissioner 5 Select Liaison Council on Aboriginal Affairs, and I 6 continued that in my time as -- as Commissioner I set out 7 priorities in terms of relationship building that I 8 thought was important and those were -- are articulated 9 in a document if I can refer to it? 10 Q: Sure. And that's the document at 11 Tab -- 12 A: I'm sorry, it's at Tab 3. 13 Q: -- Tab 3 of the small book. And this 14 is the document, Aboriginal Initiatives, Building 15 Respectful Relationships. 16 And perhaps we could mark that as the next 17 exhibit. 18 THE REGISTRAR: P-1707, Your Honour. 19 20 --- EXHIBIT NO. P-1707: Aboriginal Initiatives, 21 Building Respectful 22 Relationships. 23 24 THE WITNESS: This was really an overall 25 strategy that -- that grew and evolved over the next
221 following eight (8) years. It started under the -- in 2 part under the overall umbrella of the focus on 3 professionalism and -- and our framework for working 4 within those issues. This evolved in -- around mid 2002. 5 6 But leading up to that our -- I spoke 7 about, at the Part 2, just quickly I'll go through these, 8 the OPP Youth Summer Camp which a number of Aboriginal 9 children have been able to attend. 10 The Police Ethnic and Cultural Exchange 11 Program was one started here in Western Ontario. It 12 involves the opportunity for youth to work with the OPP 13 for the summer. Those positions were actually funded by 14 band councils here in Western Ontario and was in part a 15 way for us to look at future recruiter -- recruit 16 opportunities but also to give a relationship building 17 opportunity. 18 OPP Bound of course was to try to increase 19 the Aboriginal representation in the OPP. 20 Nishnawbe-Aski Investigative Support Unit 21 was a unit that was established at the request of the 22 Nishnawbe-Aski Police Service to help them in their 23 development and particularly around their specialized 24 functions. 25 The Integrated Support Services Unit is a
231 unit that is a combination of the RCMP, the OPP, and 2 First Nation Police Services and is administered through 3 the First Nation Policing Program area. Its focus is on 4 crime prevention. 5 Native awareness training of course is 6 something that we have had ongoing and have increased in 7 availability across the organization. 8 The Aboriginal Liaison Operations position 9 was one which was established in 1996. And then- 10 Inspector Jim Potts was in that role until Inspector Ron 11 George joined in '97 and we were -- we have expanded this 12 role in terms of liaison to communities and to Aboriginal 13 associations so that we can deal with both the 14 association level as well as individual communities. 15 Each region was tasked to set up an 16 Aboriginal strategy community so that they would have 17 contact within. We have six (6) regions in the OPP and 18 want -- and we wanted to ensure that there was local 19 contact with regional commanders and their staff and that 20 there was a strategy in place in each region to deal with 21 it. 22 Our Aboriginal relations team has been 23 established over the -- in the last two (2) years and 24 that team is to establish relationships particularly at 25 major events or work through any dispute issues that we
241 have. They are on the ground working Aboriginal officers 2 for the most part and they have a training program that 3 allows them to be able to bring dispute resolution skills 4 to their work. 5 The major event liaison team is just an 6 extension of that. The framework for a Police 7 Preparedness for Aboriginal Critical Issues is really the 8 document that oversees all of that work, particularly in 9 critical incidents and allows the -- the various areas to 10 interact with each other, including incident command. 11 Crisis negotiator program enhancements so 12 that we were able to have both an increase in Aboriginal 13 officers in the crisis negotiating program, but an in -- 14 an increase in capacity for language capability. And we 15 established about five (5) years ago, I think this is our 16 firth -- fourth -- fifth year, Aboriginal officers 17 leadership forum which allows Aboriginal officers to come 18 together once a year and to set priorities for themselves 19 and I meet with them. 20 And then finally, the traditional drum 21 which you have seen. 22 23 CONTINUED BY MR. DERRY MILLAR: 24 Q: And with respect to the recruitment 25 of officers and the training of officers with respect to
251 First Nations issues, I understand that since September 2 1995, there have been a number of changes in that area? 3 A: Yes. 4 Q: And the -- at Tab 1 of the book, 5 there's a chronology of screening and training for 6 Aboriginal issues that have been prepared for our use. 7 And it's on the screen, Commissioner, but 8 somehow when it was transmitted, it got a little bit 9 squished. 10 And at Tab 2, there's a text version of 11 what's on the screen. Is that correct, Commissioner? 12 A: That's correct. 13 Q: And just for ease of reference, 14 perhaps we'll mark the long one which isn't squished as 15 the next exhibit. 16 THE REGISTRAR: P-1708, Your Honour. 17 18 --- EXHIBIT NO. P-1708: Chart of Chronology of 19 Screening and Training for 20 Aboriginal Issues. 21 22 MR. DERRY MILLAR: And the document at 23 Tab 2, P -- the next exhibit, P-1709. It's entitled, 24 Screening and Training for Aboriginal Issues. 25 THE REGISTRAR: Yes, sir.
261 --- EXHIBIT NO. P-1709: Screening and Training for 2 Aboriginal Issues, from 3 application for Constable to 4 OPP to Level 2 Incident 5 Commander. 6 7 CONTINUED BY MR. DERRY MILLAR: 8 Q: And I don't want you to go through 9 all of this, but could you just highlight some of the 10 things that -- changes that have been made since 11 September 1995, Commissioner? 12 A: The -- the process, essentially, has 13 changed and evolved over-- over time and I -- what we 14 attempted to show you on this chart that's a little 15 difficult to read is if you were in the life of an OPP 16 officer and you engaged in various stages of your career 17 over twenty (20) years, this would be what your exposure 18 could look like. 19 So, at the application stage, at the 20 recruit interview, which is a local focus interview for 21 instance, that they -- they ask specific questions trying 22 to identify any bias or intolerance. 23 Similarly, when they -- when they recruit 24 those into a background investigation, there's specific 25 questions asked regarding acceptance of diverse
271 communities, past use of racial slurs, negative remarks. 2 So they're specifically looking for that. 3 When the recruit comes in the door to the 4 OPP they spend one (1) week at our academy in Orillia. 5 And so where you see the descriptor on the top that says 6 "Pre-OPC" that's pre-Ontario Police College. Within that 7 first week, they would spent half a day on the -- on the 8 organization, but particularly round our promise as well 9 as our Aboriginal issues. 10 The second piece they do is they get a 11 research assignment when they go to the Ontario Police 12 College that they must complete by the time they return 13 and the research assignment is really for them to have an 14 opportunity to familiar -- familiarize themselves with 15 the region that they will be going to work and the 16 Aboriginal communities within it, what the cultural 17 groupings are. And they'll have an assignment that asks 18 them to understand the historical trends, particularly 19 land use treaties, and effects of legislation and come up 20 with effective ways to link with the community. 21 When they return from the Ontario Police 22 College, they return for four (4) weeks and they would 23 then have two (2) days of -- of Aboriginal and diversity 24 training. 25 When they leave us, they would then report
281 to the region and they would have one (1) day in the 2 region. And over the next six (6) months, because their 3 probationary period is -- is twelve (12) months, over the 4 next period of their probation, they would do two (2) 5 weeks of job shadowing with the First Nation Police 6 Service officers so -- to give them exposure into and 7 understanding of the First Nation Police Services in 8 their area. 9 As a person would progress in their career 10 as a frontline officer they would have the opportunity to 11 take a one (1) week Native Awareness course which we've 12 spoken about before. If the person further in their 13 career chose to seek promotional board they would appear 14 before a board that's comprised of officers senior to 15 them and there would be some diversity representation on 16 that board. 17 They would also have to answer questions 18 regarding managing Aboriginal issues. If they're at -- 19 get to about -- the average of about a five (5) years of 20 service they would have an opportunity to apply for and - 21 - for any of the more specialized areas like the 22 Emergency Response Team. 23 They would, as part of that training 24 receive First Nation awareness training or Native 25 awareness training. Crisis negotiators must have one (1)
291 week Native awareness training and as well as the 2 Aboriginal relations team would do a one (1) week 3 introductory course that revolved around dispute 4 resolution and First Nation awareness. 5 If they went to a tactical team averaging 6 about nine (9) years of service it's mandatory that they 7 have had or participate in one (1) week of Native 8 awareness training. Similar if they, as they advance in 9 their career, averaging out at the twenty (20) year mark 10 the level 2 Incident Commander or the Public Order Unit 11 Commander they are -- would have requirement to have one 12 (1) week Native awareness course and as part of their 13 instruction they would have two (2) days Aboriginal 14 Issues Management which Inspector George teaches. 15 As part of their assessment in both those 16 areas they have to demonstrate ability to manage 17 Aboriginal issues during a level 2 incident. 18 Q: And just before we go on, I know in - 19 - the OPP divide incidents between Level 1 incidents and 20 Level 2 incidents, and could you briefly describe for the 21 Commissioner the distinction between a Level 1 and a 22 Level 2 incident? 23 A: If I can refer to a document that's 24 further along it would be helpful to me? 25 Q: Sure.
301 A: A Level 1 is an incident where they 2 would respond at the request of a loc -- of an incident 3 taking place. Level 2 response would be if there's a 4 need for a TRU Team. If I refer to a document at seven 5 (7) -- 6 Q: And that's, "Summary of Changes to 7 Integrated Response 1995 to 2006"? 8 A: Yes. And you look under "Incident 9 Command" -- 10 Q: Yes? 11 A: -- it would outline the difference in 12 the training they would have from a Level 1 course which 13 is a two (2) week Level 1 course and is an expanded four 14 (4) week Level 2 Incident Command course. So these are 15 both what are required by the adequacy standards. In 16 this case they exceed the adequacy standards. 17 Q: And perhaps we'll come back to Tab 7 18 later. But as I understand it a Level 1 incident may be 19 one that's not lead by the police; may be lead by the 20 fire department or large accident, et cetera? 21 A: Yes. 22 Q: And so the Level 1 Incident Commander 23 is not dealing with a situation that is as -- that is 24 potentially as -- as high risk as a Level 2? 25 A: That's correct.
311 Q: And the, for example, if there was a 2 major fire in a town a Level 1 Incident Commander may be 3 appointed to assist with respect to the policing 4 functions? 5 A: That's correct. 6 Q: Or if there's a major car accident on 7 one of the major highways? 8 A: Yes. 9 Q: Again, as -- a Level 1 Incident 10 Commander might be appointed? 11 A: Yes, and that would often be the 12 Detachment Commander in the area. 13 Q: And -- and -- and a Level 2 incident 14 is, as you had just indicated, a high risk incident where 15 the -- there's a need for more specialized training? 16 A: That's correct. 17 Q: And we'll come back to that in -- 18 A: That's right. 19 Q: -- in a moment. Now, the -- in 20 January when the -- there was the two (2) day forum and 21 I'm not going to go back through it, but the -- one of 22 the things that we -- you spoke about at the forum was 23 the -- and you spoke about it briefly this morning -- the 24 framework for police preparedness for Aboriginal critical 25 incidents.
321 And you'll find that document, 2 Commissioner, it should be on the inside of the large 3 binder. 4 And this is the framework. Can you just 5 briefly explain what the framework is and what it was 6 intended to do, Commissioner? 7 A: The framework, if you look at the 8 purpose, the purpose is really to promote a flexible 9 approach to resolving conflict and managing crisis in -- 10 in a consistent manner. It allows -- the framework 11 allows accommodation in ways in which people who have 12 various specialties can work together to help identify 13 what the issues are and look for a peaceful resolution 14 through the process and it helps promote and develop 15 strategies to minimize the use of force to the extent 16 possible. 17 Q: And perhaps we could mark the 18 framework as the next exhibit? 19 THE REGISTRAR: P-1710, Your Honour. 20 COMMISSIONER SIDNEY LINDEN: 1710. 21 22 --- EXHIBIT NO. P-1710: A Framework for Police 23 Preparedness for Aboriginal 24 Critical Incidents, OPP Field 25 Support Bureau Provincial
331 Command, Field and Traffic 2 Services. 3 4 CONTINUED BY MR. DERRY MILLAR: 5 Q: And if I could go back for a moment 6 to the chronology of screening and training for 7 Aboriginal issues, the chart? 8 A: Yes. 9 Q: And do I understand it correctly that 10 the Level 2 Incident Commander, at least today, would 11 have to have had the one (1) week Native Awareness Course 12 prior to becoming a Level 2 -- being certified as a Level 13 2 Incident Commander? 14 A: That's correct. 15 Q: And that -- the Native Awareness 16 Course is only approximately ten (10) years old? 17 A: Yeah, it would be a little older than 18 that but -- 19 Q: A little -- 20 A: -- it used to be oper -- or used to 21 be offered less. It was less available than it is today. 22 Q: And today it's in -- I think it -- I 23 understand it's expanded from when it first...? 24 A: Yes. 25 Q: And so that an Incident Commander
341 might have taken the Level -- 1 week Native Awareness 2 Course let's say in 2000 -- 1997 and be in 2006, some 3 seven (7) or eight (8) years later, seeking to become a 4 Level 2 Incident Commander. So that Incident Commander 5 would not have another week of Native awareness training. 6 That Incident Commander candidate would get two (2) days 7 of Aboriginal issues management training; is that -- do I 8 understand that -- 9 A: That's correct. And I -- I would 10 expect they would do some assessment as to making sure 11 that there --has the adequate knowledge depending on how 12 the course may have changed. But it would be -- he would 13 certainly -- he or she would certainly get the two (2) 14 day Aboriginal Issues Management and then when they 15 actually are assessed they would be assessed on one (1) 16 of these incidents. 17 18 (BRIEF PAUSE) 19 20 Q: And as I understand it today in the 21 Ontario Provincial Police there's approximately seven 22 thousand (7,000) employees of which a little over five 23 thousand (5,000) are officers? 24 A: Yes. 25 Q: And it's -- as I understand it
351 approximately two thousand (2,000) officers have to-date 2 received the one (1) week Native Awareness Course? 3 A: That's correct. 4 Q: And is it the plan to continue to 5 offer that so that everyone receives the Native Awareness 6 Course? 7 A: Yes. The priority was given to 8 people who work in the emergency management area and so 9 we're trying to work our way through those who have the 10 greatest connection to the Aboriginal communities or both 11 proximity and whose work requires it so that we can work 12 our way through everyone. 13 Q: So the -- the first people are the -- 14 to get the training were intended to be the frontline 15 officers and their managers who deal with these -- with - 16 - potentially deal with issues involving the First 17 Nations communities? 18 A: That's correct. 19 Q: And the -- as I understand it as a 20 result of the Chiefs of Ontario forum that was held in 21 March 2006 the Ontario Provincial Police has considered 22 and is accepting -- it's accepted a number of the 23 recommendations made by the Chiefs of Ontario for changes 24 to their framework for police preparedness; is that 25 correct?
361 A: Yes. There was two (2) 2 considerations they asked us to undertake and then a 3 series of recommendations which we are prepared to 4 respond to. 5 Q: And those changes and the 6 recommendations are set out at Tab 4 of the small book? 7 A: That's correct. 8 Q: And entitled, Refinements to the 9 Framework; is that correct? 10 A: That's correct. 11 Q: And perhaps we could mark that the 12 next exhibit. 13 THE REGISTRAR: P-1711, Your Honour. 14 15 --- EXHIBIT NO. P-1711: Refinements to the Framework. 16 17 CONTINUED BY MR. DERRY MILLAR: 18 Q: And one of the things that was 19 discussed at the forum was the need for a definition of a 20 critical incident? 21 A: Yes. 22 Q: And what do you -- what would you 23 describe as a critical incident? 24 A: The proposal that we have is that 25 definition of critical incident be all incidents assessed
371 to be high risk on a First Nation territory or involving 2 an Aboriginal person and where the potential for violence 3 requires the activation of the OPP integrated response. 4 Or, secondly, any incident where the 5 source of conflict may step from assertions associated 6 with Aboriginal or treaty rights. 7 Q: So that the -- the framework would 8 apply to, secondly assertions of treaty rights or 9 Aboriginal rights and firstly if there's a -- a need for 10 an integrated response to an incident? 11 A: That's correct. 12 Q: And an integrated response is a 13 response that involves a number of emergency response 14 parts of the Ontario Provincial Police; is that correct? 15 A: That's correct. 16 Q: And with respect to the refinements 17 of the framework that have been noted in Exhibit P-1711, 18 the -- as I understand it, the OPP is considering all of 19 the recommendations and has considered two (2) of the 20 points, as you've indicated, with respect to -- that were 21 raised at the forum for your consideration? 22 A: That's correct. 23 Q: And that's an ongoing process? 24 A: Yes, it is. 25 Q: And with respect to the refinements
381 to the framework, the -- one of the recommendations -- 2 recommendation number 1 was the dissemination of this 3 policy to all First Nations self-directed police 4 services, First Nations OPP administrative police 5 services and communities who receive police services 6 directly from the OPP. This is paramount and must be 7 acted on immediately given the freshness of the policy. 8 And that, in effect, is a recommendation 9 to provide education to the First nations communities 10 with respect to the framework. And that's something, as 11 I understand it from this document, that you agree and 12 that the OPP is trying to put into place? 13 A: And we will, yeah. We -- our goal is 14 to complete that process across the province by the end 15 of the year. 16 Q: And the second recommendation, and 17 I'm not going to go through all of these, Commissioner, 18 but the second recommendation at -- by the Chiefs of 19 Ontario was to define a process to respond to potential 20 conflicts that may arise between First Nations and 21 agencies that are at arms length from the -- the Ontario 22 government. The examples given here is MNR, Ministry of 23 Natural Resources, which isn't arms length. 24 But in the spirit of this recommendation, 25 I take it the OPP supports that, that the Government work
391 with the framework? 2 A: That's correct. 3 Q: And recommendation number 3, which is 4 enhanced resources for First Nation police services to 5 respond to incidents, mediator training, ERT training. 6 And the OPP supports that as well? 7 A: That's correct. We will, in 2007, be 8 offering emergency response containment training to 9 twelve (12) Treaty 3 officers. So we have reached out to 10 the First Nation police service and are working with 11 them, Mnjikaning Police Service, for instance, is part of 12 our -- one of our ERT teams. 13 Q: There is an officer at Mnjikaning 14 Police Service who has been trained as an ERT team member 15 and responds as part of the OPP ERT team in the Orillia 16 area, I think it is? 17 A: That's right. 18 Q: Now, the -- if we could turn to 19 another subject that -- and that's the recruitment of 20 First Nations officers for the Force and for the Force's 21 specialty units. 22 And as I understand it in 1995 there were 23 approximately forty-nine (49) First Nations officers who 24 identified themselves as First Nations officers in the 25 OPP?
401 A: That's correct. 2 Q: And today in 2006 there's 3 approximately a hundred and twenty-five (125) to a 4 hundred and thirty (130) officers who identify themselves 5 as First Nations officers? 6 A: That's correct. 7 Q: And I understand that, as well, that 8 a number of officers that have -- First Nations officers 9 who have been in the OPP have left to join First Nations 10 police services so that they've become trained and then 11 leave to go to the First Nations police services; is that 12 correct? 13 A: That's correct. And we've been 14 supportive of that. 15 Q: And so that the overall number of 16 officers that over the -- since 1995 may be more than a 17 hundred twenty-five (125) to a hundred and thirty (130) 18 that remain today? 19 A: That's correct. 20 Q: And what are you doing to attempt to 21 diversify the force and reach out to First Nations 22 communities with respect to recruiting First Nations 23 officers, Commissioner? 24 A: We have a number of steps we've 25 taken. We have put up a website with testimonials from
411 our OPP Aboriginal Officers so that people can go on the 2 website who might be interested to see people who would 3 be in positions to speak to them about the -- the OPP and 4 the work that they do. 5 We've a toll-free number into the 6 recruiting office and this was put in because of some of 7 the isolated communities who may not be in a position to 8 have a face-to-face discussion with a recruiter. Most of 9 our recruiters are in major areas. 10 We advertise in a number of Aboriginal 11 newspapers; First Nation Drum, Native Journal, Turtle 12 Island News are some examples. Our posters and static 13 displays when we go out to recruiting events are 14 specifically tailored to Aboriginal people so they get to 15 see people -- Aboriginal people in uniform in our 16 organization. 17 Our materials promote -- provided to 18 Aboriginal groups, friendship centres, community members 19 and the First Nation police services. 20 Q: And you've listed -- there's a number 21 of these are listed in the Outreach at Tab 5? 22 A: That's correct. 23 MR. DERRY MILLAR: And perhaps we could 24 mark that the next Exhibit? 25 THE REGISTRAR: P-1712, Your Honour.
421 --- EXHIBIT NO. P-1712: Aboriginal Officers: Outreach 2 and Inreach. 3 4 CONTINUED BY MR. DERRY MILLAR: 5 Q: And I'm not going to go through all 6 of the -- the items that you've listed there but there's 7 a number of items that the OPP's developed and a number 8 of events that in the last two (2) years, twenty-seven 9 (27) events, that the OPP recruiters have attended? 10 A: That's correct. 11 Q: And there's -- and this was explained 12 at the OPP Forum in January about the out -- OPP Bound 13 and OPP experience and that's with respect to having 14 people come in and participate with OPP officers for, I 15 think, it's a week? 16 A: Yes. It's one (1) week in the summer 17 and we invite people to come and experience the OPP. 18 Q: And in 2004, as noted in Exhibit P- 19 1712, 15.1 percent of the OPP recruits were Aboriginal? 20 A: That's right. 21 Q: And in January 2005 the class 22 included ten (10) Aboriginal recruits, two (2) visible 23 minority recruits and eighteen (18) female recruits; is 24 that correct? 25 A: That's correct.
431 Q: And an additional nine (9) Aboriginal 2 officers have been hired since January 2005? 3 A: That's correct. 4 Q: And I note as well, as part of this 5 document, Exhibit 1712, that the OPP is seeking to 6 attract Aboriginal officers to the -- some -- the -- your 7 specialty units; is that correct? 8 A: That's correct. 9 Q: And there are programs that you've 10 developed that's outlined in this document that -- some 11 of the efforts that you're making? 12 A: That's right. It's an inreach 13 program for -- it's built similar to the OPP Bound, but 14 it's a -- what we refer to as Emergency Services Bound. 15 And it's to introduce and acquaint them to the various 16 areas in the Integrated Response Unit so they can have an 17 opportunity to see what's available to them as serving 18 members of the OPP and encourage their consideration of 19 application for those areas. 20 Q: And just for -- could you -- could 21 you explain the -- just briefly the -- the types of units 22 that would be encompassed by the term 'integrated 23 response units'? 24 A: Yes, it would be a crisis negotiated 25 program. It would be Tactical and Rescue Unit, Emergency
441 Response Teams, Aboriginal Relations Teams, that would be 2 part of it as well. So anyone who -- any unit that would 3 be involved in the integrated response; underwater search 4 and rescue, those areas. Anything that's very 5 specialized we invite them to have a look at those areas 6 so they can get acquainted with what -- the work that 7 they do and trying to encourage interest in those areas. 8 Q: And at the top of the third page of 9 this document, Exhibit P-1712, there's a heading, 10 "Mission Critical Issue", and what does that refer to? 11 A: It -- it refers to the Bureau's 12 responsibility on what we design as the -- the priorities 13 for their Bureau. Field Support Bureau is the area that 14 has oversight for all the emergency response areas, the 15 emergency management area, and one (1) of their 16 priorities is, is they -- is to devise ways in which to 17 have a greater representation of Aboriginal officers in 18 that area and to create opportunities for them to apply. 19 Q: So that's one (1) of -- by mission 20 critical you -- it's one (1) of the goals of the 21 department -- of that particular unit? 22 A: Absolutely. And it would -- that 23 would be built into the Bureau Commander's performance 24 plans as an individual as well to ensure that that's 25 delivered.
451 Q: And then there's a note that -- about 2 an introduction to crisis negotiations and that's to 3 assist to obtain more Aboriginal officers trained in 4 crisis negotiations? 5 A: That's correct. 6 Q: And the last point on this page was 7 advertising ERT positions provincially. And why is that 8 a benefit, Commissioner? 9 A: What the ERT positions are -- are 10 throughout the Province and what we have found is, is 11 that members once they're into ERT positions they like to 12 stay in them. And so in some of our north -- northern 13 detachments we have been -- have more difficulty filling 14 them because of the transition in and out of detachments, 15 particularly in isolated locations where for instance 16 they would spend five (5) years in detachment and come 17 out so they don't want to make a commitment beyond that. 18 So what we've done is taken those 19 positions and advertised them provincially so that 20 everybody can apply for them and we've hoped that that 21 would pique the interest of Aboriginal officers so that 22 they are applicants to it. 23 Q: And the -- so that by having it 24 provincial wide instead of a region then as you indicated 25 there are more positions available?
461 A: More opportunity. 2 Q: Opportunities. And now one (1) of 3 the things that has happened since 1995 is there has been 4 a number of changes to the Public Order Units which -- 5 the Public Order Unit is the successor to the Crowd 6 Management Unit; is that correct? 7 A: That's correct. 8 Q: And at Tab 6 there's a number of 9 changes that have been noted and under the heading, 10 "Summary of Changes to POU 1995 to 2006" and at Tab 7, 11 "Summary of Changes to Integrated Response 1995 to 2006." 12 And perhaps, Commissioner, we could mark 13 as the next exhibit the Summary of Changes to POU which 14 is Public Order Unit 1995 to 1996? 15 THE REGISTRAR: P-1713, Your Honour. 16 17 --- EXHIBIT NO. P-1713: Summary of Changes to Public 18 Order Unit (POU), 1995 -2006. 19 20 MR. DERRY MILLAR: And as the next 21 exhibit P-1714 the Summary of Changes to Integrated 22 Response 1995 to 2006. 23 24 --- EXHIBIT NO. P-1714: Summary of Changes to 25 Integrated Response, 1995-
471 2006. 2 3 CONTINUED BY MR. DERRY MILLAR: 4 Q: And perhaps if we could start at Tab 5 6 the -- one (1) of the major changes in -- between 1995 6 and today is that a -- in 1995 the CMU Crowd Management 7 Leader was located with the Crowd Management Unit at the 8 site whereas the Incident Commander was located at the 9 command post. And we've heard lots of evidence about 10 that in this case. 11 The Incident Commander is -- John Carson 12 was in one location near the Park, in the MNR parking 13 lot. Dale Linton was at the command post in Forest and 14 Wade Lacroix, who was the leader of the CMU was with the 15 CMU. And the change that I understand has taken place 16 and is noted is that the Public Order Unit is led by a 17 Level 2 Incident Commander. 18 A: That's correct. 19 Q: And the Level 2 Incident Commander 20 who's always a commissioned officer? 21 A: Yes. 22 Q: And that commissioned officer, the 23 Level 2 Incident Commander moves with the Public Order 24 Unit? 25 A: That's correct.
481 Q: So that the Public Order Unit is led 2 by the Incident Commander who's there on the ground, and 3 not back in the Command Post? 4 A: That's correct. 5 Q: And why did you make that change? 6 A: It's part of the adequacy standard 7 changes that came in provincially as well as looking at 8 some best practices. And we actually worked and designed 9 this with the Toronto Police Service. 10 And the adequacy standards that you refer 11 to are standards set by the Ministry of the Solicitor 12 General? 13 A: Yes. 14 Q: And I take it -- perhaps you can ex - 15 - tell us, did the OPP and the major police forces in the 16 Province have input into the adequacy standards? 17 A: There would have been some input at 18 the -- at the front end of it. The principal of the 19 adequacy standards was really to standardize across the 20 Province. 21 If you had certain capability as a police 22 service, then you had to meet certain standards in order 23 -- in order to deliver that service. 24 And it also allows, with the standardized 25 training and such; like, it allows agencies to work
491 together. 2 Q: So that the training is province- 3 wide -- 4 A: Yeah. 5 Q: -- for the similar units? 6 A: Yes. 7 Q: And the training as well, for 8 Commanders, has been, as you spoke of a few minutes ago 9 with respect to P-1708, but there's been a change with 10 respect to the training for the Incident Commander, Level 11 2 Incident Commander? 12 A: Yes. It's been increased. So if -- 13 Level 2 Incident Command would be four (4) weeks and as 14 it indicates, it would include instruction on the 15 framework. They would have to have a Native awareness 16 course and then the basic POU course and the command 17 course. As well as, as part of the training for a 18 commander, they would have to have been mentored on a 19 couple of incidents before they took an incident on their 20 own. 21 Q: Before taking -- and I understand 22 that if one looks at P-1714, that the number of incident 23 command -- Level 2 incident commanders have been reduced 24 from approximately fifty (50) in 1995 to thirteen (13) 25 today?
501 A: That's correct. 2 Q: And why is that? 3 A: It's to make sure that they keep 4 their regular training and calls up. They need both to 5 keep their expertise up and as they work through the 6 actual numbers they felt that that was the key number in 7 order to ensure that people were at their maximum 8 ability. 9 Q: And -- 10 A: Skill level. 11 Q: And so that, unfortunately, there 12 aren't as many -- there were too many officers for the 13 numbers for the number of incidents so that they would 14 lose -- the skills are perishable? 15 A: That's right. 16 Q: And now among the other things that - 17 - changes that have been made, are of course the 18 framework that's now part of the -- the training for both 19 the -- I take it the ERT officers themselves and the 20 leaders of the -- the Public Order Units? 21 A: That's correct. 22 Q: And on the page 2, the uniforms in 23 1995, ERT uniforms, did not -- with respect to the 24 tactical uniform worn by the Crowd Management Unit, 25 didn't have names on them and today the Public Order unit
511 has the name of the officer on the helmet and on the 2 clothing that's worn, the tactical equipment that's worn; 3 is that -- 4 A: That's correct. 5 Q: -- right? 6 A: On both the helmet and the vest. 7 Q: And there's also, as I understand it, 8 the uniforms that are worn by the Public Order Unit is 9 the blue uniform but with black coveralls; is that 10 correct? 11 A: That's right. They can -- they put 12 the black coveralls which are worn over the protective 13 gear. 14 Q: And with respect to the scribes the - 15 - one of the changes that have been made since 1995 is 16 that a scribe -- there was no scribe with the Crowd 17 Management Unit in 1995 and today the Public Order Unit 18 Commander, the Level 2 Incident Commander, has a scribe 19 with him or her at all times? 20 A: That's correct. There would be an 21 officer with a micro-cassette recorder. 22 Q: And we'll come to some changes in the 23 scribe program in a moment. But the scribe -- there are 24 civilian scribes still today, as well as officers who are 25 trained as scribes and it's the officers who are trained
521 as scribes that attend at a public order -- 2 A: The officers who are scribes would be 3 who attends at the public -- 4 Q: Public Order Unit. 5 A: -- order unit because they're on the 6 ground. 7 Q: Okay. Then there's been changes with 8 respect to equipment since 1995. The -- in 1995 there 9 was no Ontario adequacy standard; is that correct? 10 A: That's correct. 11 Q: And now there are provincial-wide 12 standards for all police forces? 13 A: Correct. 14 Q: And -- 15 A: If you're -- if you have Public Order 16 Units you meet the adequacy standards in order to have 17 one, yeah. 18 Q: I -- yeah, I understand that. 19 A: Okay. 20 Q: You're -- you're quite correct in 21 correcting me. But with respect to the Public Order Unit 22 there is the adequacy standard. 23 Now, the -- in 1995 the Public Order Unit 24 or the CMU was not trained or equipment with gas or Arwen 25 and they are today and when you've referred to gas; what
531 are you referring to? 2 A: I - I'd have to look. I'm sorry, I 3 don't have that. 4 Q: And the Arwen? 5 A: The Arwen is it -- it is a weapon 6 that shoots bean bag type bullet. 7 Q: It's a bullet that -- 8 A: It's a less lethal option. 9 Q: It's a -- it's a plastic -- it's a 10 plastic bullet? 11 A: Yes. 12 Q: And -- and the idea is -- the theory 13 is, in any event, is that it's to be -- it should be less 14 lethal? 15 A: That's correct. 16 Q: And today the ERT Teams -- are the -- 17 are the Public Order officers are equipped with the 18 Arwen? 19 A: That's correct. 20 Q: And another incid -- matter that has 21 changed since 1995; in 1995 as we've heard here shield 22 chatter was utilized and today it's no longer part of the 23 Public Order Unit's repertoire of things that they do? 24 A: Yeah, we do not use shield chatter. 25 Q: And can you tell the Commissioner,
541 why is that? 2 Q: We just looked for best practices 3 across the country and made a decision that the shield 4 chatter, there was not advantage to it and we made a 5 decision not to use it. There's -- some police services 6 still use it. We do not. 7 Q: Some Canadian police services still 8 use it? 9 A: Yes. 10 Q: And then if I could just take you 11 back to the second page, the GAF or the gradual 12 application of force. And it's a, I take it from the 13 document, it's a -- P-1713, it was a concept that was 14 imported from the British model of public order? 15 A: That's correct. 16 Q: And it's been -- what's the 17 difference between 1995 and 2006 with respect to the 18 gradual application of force? 19 A: It's just, I think, a different 20 approach in terms of continually reassessing the minimum 21 use of force and allows officers to select the most 22 reasonable option as they work through it. 23 Q: Okay. And if I could ask you to turn 24 to P-1714 at Tab 7. In addition to some of the things 25 we've already spoken about the -- in 1995 there was no
551 ART Team or MELT Team or Aboriginal liaison officer and 2 these -- the ART, MELT and Aboriginal Liaison officer are 3 now part of the integrated response today? 4 A: That's correct. 5 Q: And the -- there have been changes, 6 as I understand it, in the crisis negotiators program? 7 A: That's correct. 8 Q: And could you tell the Commissioner a 9 little bit about that, please, Commissioner Boniface? 10 A: I -- in 1995, there was about a 11 hundred (100) crisis negotiators in the Province and it 12 wasn't a varied a -- varying levels of skill. 13 They did a program review in 1999 and they 14 reduced the numbers. Again, for the reasons as that, in 15 order to keep skill level up they wanted to ensure that 16 the officers were getting called out sufficiently to get 17 the -- the ongoing training they needed. 18 And we moved to making it our -- from a 19 practice to our policy that they would use minimum of the 20 three (3) crisis negotiators; a primary, secondary and a 21 team leader. So that's been formalized. 22 And we have a concerted effort in trying 23 to have Aboriginal officers represented. So currently we 24 have 12 percent of all crisis negotiators are Aboriginal 25 officers and that comes from a representation in the OPP
561 about 2 percent. 2 So they've made some success in moving 3 forward. And, of course, that increases language 4 capability at the same time for particularly our four (4) 5 northern communities. 6 Q: So that as I read this, in 1995, 7 there were only two (2) Aboriginal officers trained as 8 crisis negotiators and now there are seven (7)? 9 A: That's correct. 10 Q: Yeah, yes. 11 A: And then the use of a third-party 12 mediary, it was the practice to -- that it was 13 discouraged, and in 2006 after the review. It is now 14 considered particularly during critical incidents under 15 the framework. And that assessment, of course, is made on 16 the situation itself. 17 The training has increased to meet the 18 adequacy standards. Again, or to exceed -- it actually 19 exceeds the adequacy standards. They -- originally the 20 training was one (1) week at the Canadian Police College 21 and we've designed our own. 22 There was no Aboriginal component on the 23 course in 1995 and now there's a one (1) day Aboriginal 24 component on the crisis negotiator course that builds on 25 the one (1) week Native awareness course which is
571 mandatory for all crisis negotiators. 2 Q: So -- as you've improved their 3 training since -- 4 A: We've made it mandatory. They may 5 have had or had the opportunity to take the course in 6 1995, but if you're going to be a crisis neg -- 7 negotiator in 2006, you must have it. 8 Q: You have to do it. And then we've 9 spoken a little bit about the Incident Command and the 10 changes in incident command. 11 One (1) of the changes that has been made 12 is, as noted on the third -- second page, that there's a 13 -- a Level 2 Incident Commander has to -- there's a 14 pass/fail system? Is this right? 15 A: Yes. 16 Q: It's -- and that didn't exist before? 17 A: No. They -- they attended the course 18 and then there was to be mentoring, but now they have to 19 do a pass/fail. 20 Q: And the -- I think we've discussed 21 most of the other items that are listed on incident 22 command. And with respect to the TRU team, the tactical 23 and rescue unit, there have been some changes since -- an 24 internal review in, I take it, 2005? 25 A: Yes.
581 Q: And that was the first change from 2 the late '80's; is that how I read this? 3 A: Yes. 4 Q: And what happened in -- as a result 5 of the review in 2005? 6 A: We actually looked at it in -- in a 7 series of stages. 1) The selection process became more 8 rigours -- rigorous and three-sixty (360) reviews as well 9 as recommendations from their Detachment Commander. And 10 we had put together occupational job requirements 11 including behaviour competencies and that's the 12 categories they must meet. 13 They participate in an ethics module as 14 part of their first phase. The TRU training exceeds or 15 now totals fourteen (14) weeks. That exceeds the 16 provincial standard. 17 One (1) week Native awareness course is 18 mandatory for all TRU members. You can't serve unless 19 you take that course. 20 They also receive an annual assessment or 21 session, one (1) day of the year, on Aboriginal issues. 22 And they have been participating in the integrated 23 response presentations in -- in communities, including 24 Fort William and Rat Portage (phonetic) in 2005 so they 25 can do demonstrations in the community to understand how
591 the integrated response works in the event that they 2 would be called there. 3 Q: Okay. And moving back for a moment 4 to the Level 2 Incident Commander, one (1) of the things 5 that has changed is that there is a mandatory performance 6 review of the Level 2 Incident Commander after the 7 incident is over? 8 A: That's correct. 9 Q: And what does that entail? 10 A: It would be a review that would be 11 conducted as to looking at the ways in which they've 12 applied policies. If the framework is an aspect of that 13 they would look to see that they followed the framework. 14 And it really is an opportunity to create both learning 15 for the Incident Commander but secondly to create best 16 practices for us and feed that back into the system. 17 Q: And with fewer -- only thirteen (13) 18 Level 2 Incident Commanders, I take it assists in 19 learning from what went on at one (1) Incident Commander 20 passing that learning around to the other -- the other 21 twelve (12)? 22 A: Exactly. 23 Q: And now there have been some changes 24 as well with respect to the Emergency Response Teams and 25 their training as a result of the review in 2005; is that
601 correct? 2 A: That's correct. 3 Q: And you've spoken about this a little 4 bit but the selection and training has changed; how has 5 that changed sort of in a quick overview? 6 A: Well, it's the -- it's a similar 7 selection process. The training itself is extended 8 longer. The -- the Native Awareness Course is now built 9 right into the training so when they arrive for their 10 nine (9) week training, their first week is Native 11 awareness training and that exceeds the standards. 12 In 1995 their training was six (6) weeks 13 and the one (1) week Native Awareness Course was not part 14 of it, so this is viewed as part of the nine (9) week 15 process. 16 Q: Yeah. 17 A: And they, as part of the integrated 18 response obviously are part of the demonstration on the - 19 - in the Aboriginal communities as well. 20 Q: And there have been substantial 21 changes as well to the scribe program? In 1995 there 22 wasn't a scribe program? 23 A: No, the -- in 1995 the scribe program 24 was volunteer, civilian volunteers, and as -- as we moved 25 into it, in 1999 to-date, they've trained about sixty
611 (60) civilians. They spend a one (1) week course. 2 They're located across the Province and they will be 3 scribes to the Level 1 Incident Commanders. And then 4 there's a select group of twenty (20) members who have 5 been selected to be Level 2 scribes and they're civilian 6 members and they record the notes. 7 As -- as a result of some of review the 8 Level 2 Incident Commander reviews the Incident Commander 9 notes, makes whatever amendments that he or she deems 10 appropriate and then adopts each page by initialling 11 them. 12 Q: So that today, unlike 1995, the 13 Incident Commander must look at each page of the note and 14 initial it and make it his or hers? 15 A: That's correct. 16 Q: And if there are any changes or 17 corrections that he or she wants to make they would make 18 them before they initialled the page? 19 A: That's right. They'd initial the 20 changes as well. 21 Q: And initial the changes. And when 22 does that typically take place, Commissioner Boniface, or 23 do you know? 24 A: I -- I don't know for sure, I would 25 assume each day.
621 Q: And -- but you don't know. But that 2 is one (1) of the mandatory requirements today of a Level 3 2 Incident Commander -- 4 A: That's right. 5 Q: -- to sign each page of -- of the -- 6 the scribe notes? 7 A: That's correct. 8 Q: And then in the scribe program 9 there's the note about the uniform officers going with 10 the Public Order Unit as opposed to a civilian -- 11 civilian -- 12 A: That's correct. 13 Q: And as opposed to being in the 14 Command Post as well? 15 A: That's right. 16 Q: Now, the -- we've heard some evidence 17 about communications, but I understand that the -- 18 there's a new communication system in the OPP that's 19 different than the one that was in place in 1995? 20 A: That's correct. 21 Q: And can you just briefly tell us what 22 the change is? 23 A: Well, the -- the old system was 24 referred to as a legacy system and it required the 25 intervention by the dispatcher and then was -- the
631 dispatcher put them through. In the new system the 2 frontline members communicate to each other or their 3 dispatcher by pushing a button that says, "Push to talk." 4 And so it's an immediate method. 5 We now have a computer-aided dispatch 6 system that allows the OPP to leverage information that 7 comes from the 911 system. So that complainant 8 information would automatically spill onto the screen. 9 It's actually a quite complicated process, but it spills 10 on the -- the call-taker's screen and that shorten the 11 time taken resulting in them being able to be dispatched 12 in a more efficient timeframe. 13 Q: So is that when you phone -- someone 14 phones the 911 -- 911 number the -- if the exchange is 15 equipped then the telephone number and the address, et 16 cetera, the information provided associated with that 17 telephone -- incoming telephone call would be displayed 18 on the screen? 19 A: Yeah. And the call-taker is separate 20 from the dispatcher so the screens would be mutual. So 21 if it's on screen they can pick it up. 22 Q: So the dispatcher would have the same 23 information? 24 A: Yeah. 25 Q: And then, yes?
641 A: And then secondly in the new system 2 they would have all incident numbers and dispatch units 3 are automatically plotted on a digital mapping component 4 and displayed on the screen so there -- has mapping 5 capability that didn't exist in 1995. 6 And -- 7 Q: Would that be -- so that would be at 8 the Communications Centre? 9 A: Yeah, at the Provincial 10 Communications Centre, of which there are five (5) in the 11 Province. 12 Q: There are five (5) communications 13 centres. And just to help bring it down, if a -- if 14 there was a Level 2 incident where the Incident Commander 15 needed more resources then the Incident Commander or 16 someone -- a Level 2 incident commander would communicate 17 or someone on his or her behalf would communicate with 18 the Communications Centre and they could figure out 19 instantaneously where the units are? 20 A: Yes. 21 Q: Yes. And now you have a digital 22 recording system? 23 A: Yes. The digital logging record 24 equipment in the OPP Comm Centre, so everything is 25 digitally recorded. And for the tactical and rescue
651 units they have equipment installed in what they call 2 their TOC which makes -- which also is recorded. 3 Q: That -- and the TOC is their -- the 4 vans that they use -- 5 A: Yes. 6 Q: -- for their equipment and take out 7 to when they respond to -- 8 A: Tactical Operations Centre. 9 Q: -- an incident? And as a result of 10 the new system or part of it as well, I take it that you 11 now can retrieve historical information more quickly than 12 you could in the past? 13 A: That's right. 14 Q: Now, we -- one (1) of the things, and 15 a question that was asked when there was an orientation 16 for the simulation of critical -- the sim -- Level 2 17 incident simulation and one of the questions asked was: 18 How do you define a Public Order Unit incident when the 19 Public Order Unit would be dispatched? 20 And I understand that the OPP's 21 considering perhaps reducing that to writing; is that 22 correct? 23 A: Oh, in terms of determining what 24 factors are considered? 25 Q: Yes.
661 A: Yes. 2 Q: Yes. 3 A: That's correct. That we're -- our 4 consideration, I think, will move to -- into policy and 5 then some teaching for the POU commanders so that they 6 articulate their factors in writing. 7 Q: And the -- another matter was -- that 8 was raised was the issue of perhaps a -- adding a 9 component to the Public Order Unit Commander's training 10 with respect to Aboriginal land claims and occupations? 11 A: That's correct. And that will be 12 added. 13 Q: And that's going to be added? 14 A: Yes. 15 Q: Now, just turning from that point to 16 protests and blockades. If I could ask you to go to the 17 first large volume -- 18 COMMISSIONER SIDNEY LINDEN: Mr. Miller, 19 I'd like to take a break sometime soon. It's only 20 10:15 -- 21 MR. DERRY MILLAR: Sure, this is -- 22 COMMISSIONER SIDNEY LINDEN: Is this a 23 good time? Let's take a morning break. 24 THE REGISTRAR: This Inquiry will recess 25 for fifteen (15) minutes.
671 2 --- Upon recessing at 10:15 a.m. 3 --- Upon resuming at 10:34 a.m. 4 5 THE REGISTRAR: This Inquiry is now 6 resumed. Please be seated. 7 MR. DERRY MILLAR: Thank you, 8 Commissioner. 9 COMMISSIONER SIDNEY LINDEN: Carry on. 10 11 CONTINUED BY MR. DERRY MILLAR: 12 Q: Commissioner Boniface, before we move 13 on the -- one (1) of the things that I understand is that 14 the Native awareness training that has been instituted in 15 the Ontario Provincial Police is training that is unique 16 to the Ontario Provincial Police; is that correct? 17 A: Yes, the original training was 18 designed with the RCMP -- 19 Q: Yes. 20 A: -- but the evolution of the training 21 is -- of the Native awareness training is an OPP design. 22 And the requirement for specialized units to do -- have 23 Native awareness training is unique to the OPP. 24 Q: Is unique to the OPP. I wonder if I 25 could ask you if you could pull the mic a little bit
681 closer. 2 A: Okay. 3 Q: You could just bring the whole unit 4 up. Great. Thank you. 5 And on the issue of the Native awareness 6 training how do you deal in the program and -- with the 7 wide diversity in the Aboriginal community in this 8 Province? 9 A: Well, in terms of the program we 10 would do some overview information, in terms of the 11 design of the program, but we often will bring in local, 12 either elders or community, people depending where we're 13 doing the training. And as people go to their regional 14 areas where there might be specific cultural issues then 15 they would get that introduction at the regional level as 16 well. 17 So we try to cover it in the broadest of 18 sense in terms of understanding the issues province-wide 19 and -- and it's built particularly around the Ojibway 20 culture but it were -- have the opportunity to do it in 21 other communities or -- we'll introduce the other as 22 well. 23 Q: So that you're alive to the -- to the 24 issue and try to build it in the training? 25 A: Yes, yes.
691 Q: And do you -- is there a review 2 process with respect to the course of reviewing it on an 3 ongoing basis to see if it's meeting its -- its goals and 4 -- and the needs of your officers? 5 A: There's evaluations done by every 6 officer who attends the course and that's reviewed in 7 terms of there's some follow-up that would take place to 8 determine whether or not it's been useful as -- as it -- 9 officers go out into the field. 10 And then there is opportunity to -- for 11 the program itself to come before the Commissioner Select 12 Liaison Council and seek some input and advice and how 13 that -- any changes would be done or any suggestions they 14 can give as well and that's taken place. 15 Q: Okay. And before we move to the next 16 area, and if I could ask you to turn to Tab 8 in the 17 additional material and that's OPP Level 2 Critical 18 Incidents Recording and Retention of Recordings? 19 A: Yes. 20 Q: Excuse me for a moment. 21 22 (BRIEF PAUSE) 23 24 Q: The -- as I understand that there 25 have been changes with respect to recording and retention
701 of recordings and that this document sets that out? 2 A: It does set that out. This is really 3 a reflection of the -- the new communications system and 4 its capability. 5 Q: And the -- so that all radio and 6 phone communications going into and out of the new 7 provincial communication centres are recorded and stored 8 digitally on DVDs? 9 A: That's correct. 10 Q: No matter what the call is it's -- 11 it's recorded? 12 A: Yes. 13 Q: And as you say that's a function of 14 having more up-to-date modern equipment? 15 A: And -- and it's in policy. 16 Q: Pardon me? 17 A: It's in policy as well, in terms of 18 retention. 19 Q: And -- and the policy is, is that a 20 provincial standard or an OPP standard? 21 A: No, it's an OPP standard. 22 Q: So that it's now the policy of the 23 Ontario Provincial Police that all calls to 24 communications centres be they radio or phone are 25 recorded?
711 A: And -- and retained for a minimum of 2 two (2) years and we have that under review at the moment 3 on the retention and it's likely going to move to five 4 (5) years as the policy review is done, we just haven't 5 completed it. 6 Q: Okay. And that's for if I called in 7 or someone else called in it would be kept for two (2) 8 years? If a cruiser communicated with the Communications 9 Centre it would be kept for two (2) years? 10 A: That's correct. 11 Q: Okay. And what about level 2 12 critical incidents? What is the policy today with 13 respect to recording of radio communications and 14 telephone communications? 15 A: All level 2 incidents involving the 16 integrated response -- so all radio communications are -- 17 are recorded. All frequencies, with the exception of the 18 tactical frequency are monitored, recorded, and the 19 recordings retained by the Provincial Communications 20 Centre. 21 It -- the PCC, as we call it, doesn't have 22 the capability because of receiving a TRU frequency, 23 because it's on a different frequency from a safety 24 perspective, but those recordings are stored digitally 25 and retained indefinitely. They're just stored separately
721 and retained separately. 2 Q: And so that as in 1995, in 2006, the 3 TRU team, for safety reasons, are on a separate 4 frequency? 5 A: That's correct. 6 Q: But today they're recorded -- the 7 communications are recorded digitally? 8 A: Yes. 9 Q: And does someone have to turn that 10 system on? 11 A: No, it's automatic. 12 Q: So it's automatic? If -- unlike in 13 1995 where a button had to be pushed, today if -- in 19 - 14 - in 2006, if this -- if a -- the TRU team is deployed, 15 once the communications start, they're automatically 16 recorded? 17 A: That's correct. That's my 18 understanding, yes. 19 Q: And how long does the -- are the TRU 20 radio commissions -- communications retained? 21 A: They're kept indefinitely. 22 Q: Indefinitely. Now what about the 23 command post for a Level 2 incident? 24 A: Well, the Level 2 incidents all radio 25 communications are recorded.
731 Q: Excuse me? 2 A: Sorry. At the Level 2 incidents 3 involving the integrated response, all radio 4 communications are recorded. 5 Q: And what about the crisis 6 negotiations team, when they're -- 7 A: If the -- the crisis negotiation -- 8 negotiations with the subject of the incident, they're 9 recorded and recordings are stored digitally as well, and 10 they'd be retained indefinitely. 11 Q: And now what about in a command post? 12 What is the policy in a command post with respect to 13 recording calls? 14 A: In a command post, the OPP policy 15 currently does not require the recording of phone lines, 16 particularly because in most calls it's of a shorter 17 duration. 18 Our practice is, if it's of a longer 19 duration that we would record and recordings would be 20 stored digitally and retained indefinitely. 21 Q: And how do you -- how you define 22 short and long? 23 A: Well, it's just a -- two (2) -- two 24 (2) things that are really, I think, crucial here. 25 The first is, is that it depends on where
741 the call is, because sometimes what you would normally 2 see as a command post on a long term call is 3 significantly different if you're -- I think the 4 expression used at the incident simulation is if you're 5 working out of the back of a car, it's -- it's a shorter 6 term duration. 7 But anything that looks like it's going to 8 sustain for any number of hours would be caught on -- I 9 think on two (2) fronts as I understand it. 10 The first would be the ability to do it, 11 depending on the Command Centre opportunity you're using 12 and then the -- secondly, if you're in a position to do 13 it, then you would record. 14 Q: So that there is a -- the policy is 15 if it's other than a short matter, and it can be 16 recorded, then the call should be recorded? 17 A: Hmm hmm. That would be -- 18 Q: And you may not know the answer to 19 this question, but in terms of Level 2 incidents on an 20 annual basis, how many Level 2 incidents would there be 21 in a typical year? 22 A: I don't have that at hand, but I 23 could get it. 24 Q: And the -- and how -- and I was 25 wondering as well, how many would be short and how many
751 would be long. 2 A: It's the -- it's really dependent on 3 the call, but in part -- part of the Level 2 incident 4 becomes -- the Incident Commander arrives -- it depends 5 on distance that they have to get there. Because the 6 Province is so large and with thirteen (13) of them, 7 there's a distance issue as well. 8 So, in part, as the Level 2 Commander gets 9 there, you would have to look at what the time is, from 10 the time they arrive and take over command of the 11 incident until -- until it's -- 12 Q: Resolved? 13 A: -- resolved. But we could do some 14 information on this in our -- in our Part 2 process if 15 that's helpful. 16 Q: That would probably -- would be 17 helpful. But the -- one (1) of the things that has been 18 very valuable to the Inquiry and to the process was the 19 fact that in 1995 many telephone calls were recorded. 20 And without the -- those recordings the -- we wouldn't 21 have the -- one would have to depend on the frailties of 22 memory. 23 And the -- so that today, if there was an 24 incident of -- that one thought might last more than a 25 day, do I understand you to say that the line -- all the
761 telephone lines would be recorded? 2 A: If the -- if the -- we're in a 3 position to have telephone lines -- 4 Q: Assuming we can. 5 A: Yes. Assuming we can, then we would 6 record all lines. 7 Q: And what do you do -- and this may be 8 -- it's a -- what do you do with cell phones in terms of 9 is there any capability today to record cell phones used 10 by the officers at an incident? 11 A: Yeah. Not to my knowledge. 12 Q: And -- 13 A: But they would -- part of the lines 14 coming in and out is, for the most part, and keeping in 15 mind we're often in very remote areas, you would actually 16 be using the line as opposed to a cell -- a cell phone. 17 Q: Because -- just because of the 18 problems with -- with cell phone communications? 19 A: And, in part, because not everybody 20 would have the line, the cell number and such like. So 21 once you set up the command post lines, then that's where 22 people would be calling to. 23 Q: Using the -- 24 A: Yes. 25 Q: -- the main number for the Command
771 Post? 2 A: That's correct. 3 Q: Perhaps we could mark this document 4 the next exhibit? 5 THE REGISTRAR: P-1715, Your Honour. 6 MR. DERRY MILLAR: And that's the Level 2 7 Critical Incidents Reporting and Retention of Recordings. 8 9 --- EXHIBIT NO. P-1715: OPP Level 2, Critical 10 Incidents, Recording and 11 Retention of Recordings. 12 13 CONTINUED BY MR. DERRY MILLAR: 14 Q: The -- one of the things that I 15 wanted to ask you about was note taking. And there's a 16 document, it should be at Tab 12 of your small folder. 17 A: Yes. 18 Q: And I believe that this document was 19 distributed to My Friends. And the -- there's -- at Tab 20 19, 20 and 21 of the large book are -- at Tab 19 is a 21 police order Part 7 with respect to note taking. 22 And is that police order the current 23 police order, Commissioner? Or is it -- excuse me, the 24 current police order I believe would be at -- 25 A: Yes.
781 Q: -- Tab 21? 2 A: It would be at Tab 21. And the one 3 at Tab 19 would be the one that was the old one from '95. 4 Q: So that Tab 19 is the police order 5 that related to note taking in 1995; is that correct? 6 A: That's correct. 7 MR. DERRY MILLAR: And perhaps we could 8 mark that the next exhibit, Commissioner. 9 THE REGISTRAR: P-1716, Your Honour. 10 11 --- EXHIBIT NO. P-1716: Relevant Police Orders, 1995, 12 Requirements for Officers to 13 Record Notes. 14 15 MR. DERRY MILLAR: And, excuse me, Mr. 16 Registrar, I missed that number? 17 THE REGISTRAR: 1716. 18 COMMISSIONER SIDNEY LINDEN: 1716. 19 MR. DERRY MILLAR: 1716. 20 21 CONTINUED BY MR. DERRY MILLAR: 22 Q: And the document at Tab 20 is a 23 document that refers to the training with respect to note 24 taking; is that correct, Commissioner? 25 A: That's correct.
791 Q: And that document is the current 2 training standard; is that correct? 3 A: Yes. 4 MR. DERRY MILLAR: And perhaps we could 5 mark that the next exhibit? 6 THE REGISTRAR: P-1717, Your Honour. 7 8 --- EXHIBIT NO. P-1717: Training for Pre-Recruits, 9 2006, Requirements for 10 Officers to Record Notes, 11 December 2004. 12 13 CONTINUED BY MR. DERRY MILLAR: 14 Q: And at Tab 21 is the police order 15 that's in place today that replaced Exhibit P-1716? 16 A: That's correct. 17 MR. DERRY MILLAR: And I would ask that 18 that be the next exhibit? 19 THE REGISTRAR: P-1718, Your Honour. 20 21 --- EXHIBIT NO. P-1718: Relevant Police Orders, 2006, 22 Requirements for Officers to 23 Record Notes, January 2005. 24 25 CONTINUED BY MR. DERRY MILLAR:
801 Q: And the document -- the comparison of 2 document that's at Tab 12 is a -- can you just highlight 3 some of the changes that you think are important between 4 what happened in 1995 and what happens today? 5 A: Well, this is just a document that 6 allows to see the comparator and brings it into line with 7 the training that they're getting at the Ontario Police 8 College. 9 So you just see the wording in -- sessions 10 in number 1 is just an updated word -- excuse me, an 11 updated word -- wording that would say that you must do 12 it in the way -- procedures have been taught to you in 13 your training. 14 And the -- the two (2) down there where in 15 '95 it would have said: 16 "A Member shall make investigative 17 notes during an investigation or as 18 soon as thereafter as practical." 19 You'll see an addition that went in on May 20 21st, 1999: 21 "But at all times prior to the 22 conclusion of the Member's daily tour 23 of duty or as approved by a supervisor. 24 Without exception these original 25 investigative notes shall be completed
811 prior to the entry of such information 2 onto an occurrence or information 3 tracking system." 4 So it gives direction in terms of the 5 order in which they do their notes as well, that it must 6 be done before they go on shift, unless permission from a 7 supervisor. 8 Q: And the term, "investigative notes," 9 does that apply to all of the work of a police officer? 10 A: Yeah. It would be the -- be front 11 line officers. 12 Q: All front. 13 A: Yeah. 14 Q: So a front line officer, 15 investigative notes would not, for example, if a -- an 16 officer's on a -- in a patrol car, that officer would be 17 caught -- they would be classified as investigative 18 notes? 19 A: Yeah. If you look at the package and 20 the way the training is, it really helps them lay out 21 exactly what their notes should look like. 22 It's a daily journal which officers would 23 carry with them. 24 Q: And what I'm trying to perhaps -- and 25 it's my fault but it -- if we turn to Tab 20 for a
821 second, in the large book. 2 A: Yes. 3 Q: At P-1717. The -- I'm at -- there's 4 the top part of the page under, "Completion." Daily 5 journal -- the daily journal is the piece -- police 6 notebook that front line officers carry? 7 A: That's correct. 8 Q: And after the -- it indicates, "Date, 9 weather, time," et cetera. 10 And then: 11 "A member shall make all investigative 12 notes during an investigation or as 13 soon thereafter as practical." 14 And when the use, "investigative notes 15 during an investigation," means something more than if 16 you were investigating a particular crime. 17 Do you only have to take notes if you're 18 investigating a crime? 19 A: No. If you look further along, it -- 20 it lays out what your requirements would be. And I think 21 it's just a terminology issue, because if you look below 22 it would say: 23 "Concise, comprehensive particulars of 24 each occurrence, warnings, charges, 25 persons, check CPIC".
831 So it's really detailing what you do for 2 the day. 3 Q: And what -- and so as you go through, 4 the idea is that the officers record everything -- 5 A: Yeah. 6 Q: -- that he or she did during -- 7 A: Yeah. 8 Q: -- that day? 9 A: That's correct. 10 Q: Of -- of importance? 11 A: That's correct. 12 Q: And perhaps we could just mark as the 13 next exhibit, before I forget, the comparison daily 14 journals and note taking police orders. 15 THE REGISTRAR: P-1719, Your Honour. 16 17 --- EXHIBIT NO. P-1719: Comparison, Daily Journals 18 and Note Taking (Police 19 Orders). 20 21 CONTINUED BY MR. DERRY MILLAR: 22 Q: And at the bottom of page 2: 23 "A member should consider keeping a 24 separate journal during a major 25 investigation."
841 And that's been changed that a member 2 shall keep a separate journal? 3 A: Yes. If you were a -- I'll give you 4 an example. If you were involved in a murder 5 investigation, you were a CIB inspector on a major 6 criminal case, you would -- you would need a larger book 7 to work with and you would enter your investigative -- 8 your investigation, your interviews and suchlike in that 9 -- in that book. 10 Q: Okay. And in -- today, as opposed to 11 1995, turning back to page 1: 12 "A supervisor will -- is tasked to 13 look, on a regular basis, at the police 14 note books." 15 A: I'm sorry, can I ask where you're 16 looking at? 17 Q: At the bottom of the first page, 18 Commissioner. 19 A: Yes. The supervisor would have a 20 responsibility to check note books as part of performance 21 reviews and intermittently. 22 Q: And that was not a requirement in 23 1995? 24 A: No. 25
851 (BRIEF PAUSE) 2 3 Q: And if I could take you to page 2, 4 the top two (2) entries. The first one is: 5 "In extraordinary circumstances or 6 instances where a member makes original 7 investigative notes other than the 8 daily journal, dash pad, et cetera, the 9 member shall, in addition to all other 10 requirements set out in this policy, 11 transcribe such notes verbatim into the 12 daily journal, record the date and time 13 that the verbatim notes were 14 transcribed, initial and retain the 15 original investigative notes." 16 And in the second line -- second row: 17 "If reference notes are extensive, e.g. 18 scribed to a video interview, and the 19 notes can't be reasonably transcribed 20 into a journal with the approval of a 21 supervisor, the member need only make 22 reference to such notes in journal, but 23 original notes shall be kept." 24 So that in 1995 these weren't a 25 requirement but they are now a requirement in -- as
861 effective 1999? 2 A: Yes. 3 Q: And what was the idea behind that, or 4 do you know? 5 A: The idea would be able to ensure that 6 you keep all notes that you've made along the way, and 7 particularly for if you're -- I'll use, for example, if 8 you're driving and you're taking the call and you're 9 taking notes as you're -- as you're going along, that 10 those notes would then be kept and they would be taken 11 from verbatim into your notebook at the time. 12 In -- in the second point, it's just a 13 matter of volume because the notebook is very small. And 14 so what the principle is is to make sure that the 15 information that -- and notes that are taken can be kept 16 in a journal with the permission of the supervisor. And 17 then when they go back, they just make notes that their 18 original notes have been kept. 19 Q: So the first one is really to make 20 sure if an officer, as you say, is taking a call and 21 makes some notes -- 22 A: Yeah. 23 Q: -- that those actual notes get 24 transcribed into his or her notebook? 25 A: That's correct.
871 Q: Now, if I could ask you to turn to 2 Tab 2 of the black book in front of you, the large one. 3 And this is a copy of Exhibit P-472, the briefing note 4 for the Interministerial Policy Forum. 5 And at Tab 3 there's a memorandum from 6 Commissioner O'Grady, it was Exhibit P-583. 7 And at Tab 8 there's a -- there's a copy 8 of Exhibit P-584 dated September 6th, 1996 with respect 9 to protestors and blockades. 10 And at Tab 9 there's a copy of Exhibit P- 11 585, Investigative Procedure Protestors and Blockades. 12 And with respect to today, we understood 13 from Commissioner O'Grady that the 1991 document was 14 replaced by the documents at Tab 8. And then Tab 9 15 Exhibits P-584 and P-585 back in 1996. And was that your 16 understanding? 17 A: Yes. 18 Q: And today, at least with respect to 19 incidents involving Aboriginal people, what applies? 20 A: It would be the framework. 21 Q: The framework applies today. And is 22 there a separate police order remain with respect to 23 protestors and blockades? 24 A: Only in the -- only in relation to 25 labour disputes, so the framework for the purpose of
881 Aboriginal protests and disputes would be captured within 2 that and the framework is in policy. 3 Q: The framework is the policy? 4 A: Yeah. 5 Q: And non Aboriginal protests and 6 blockades? 7 A: They have separated it out in 8 different forms. As I said, the labour dispute is very 9 specific. I've just asked them in preparing for this 10 process to go back and make sure that we have covered all 11 of those -- all of those issues are appropriately covered 12 so there's nothing that's fallen through. And we'll 13 follow up on that. 14 Q: So that today, with respect to an 15 Aboriginal protest or a blockade, it's the framework that 16 applies? 17 A: That's correct. 18 Q: Now, I'm not -- and I'm -- I don't -- 19 I'm not -- I don't want you to get into Caledonia but 20 there's a -- and -- and we're not going to get into 21 Caledonia but -- but there -- what is the -- what is the 22 policy today? 23 We've heard a lot about -- in 1995 about 24 an injunction and getting an injunction, and the land 25 owner, in this case MNR, getting the injunction, or we've
891 heard evidence about the injunction. 2 And we've heard evidence from John Carson 3 as to his view on -- on the injunction. And what is the 4 policy today if there is one in a general way, and I 5 don't want to get into Caledonia, about the issue of 6 injunctions? 7 A: We've really worked through the 8 framework document and as you know we would have, 9 particularly, the Aboriginal Liaison Officer and the 10 Aboriginal Relations Team people on site. Injunctions 11 are quite nuanced. You -- it can either -- I mean, it 12 would have to be assessed in the process whether, in 13 fact, it is a way to get to the peaceful resolution that 14 you need, is one of the factors. 15 Or whether or not there is an escalating 16 impact of the injunction. So we haven't spoken 17 specifically to it and the incident commanders would, and 18 the -- as part of the framework approach, would look to 19 options and ways in which to deal with an injunction as 20 part of the process. 21 Q: And today, as opposed to 1995, with 22 the framework you have a much more structured and perhaps 23 proactive approach to these types of incidents? 24 A: Yeah. With the framework, what we 25 attempted to establish is really to have emphasis around
901 the proactive, the pre-critical incident, and the work 2 that we would start and work -- people work very hard 3 through that process is to -- with one (1) goal in mind, 4 and that's to get to a peaceful resolution of the issues. 5 The contacts that would be made at the 6 front end, the relationships that establish, and as they 7 work their way through the -- the incident it would be 8 weighing all those things as you go. 9 Q: And I take it that today, with 10 respect to a public order event -- we heard evidence and 11 we have heard evidence in 1995 that the TRU Team was in 12 the area on standby and then was deployed, and today 13 would the TRU Team work with the Public Order Unit or 14 does it -- I take it would depend on the -- the incident 15 that was being responded to? 16 A: Depend on the incident and it would 17 depend on the threat. 18 Q: Pardon me? 19 A: Depend on the incident and depend on 20 the threat. The Incident Commander would make the 21 assessment. 22 Q: Now, one of the things that we've 23 heard some evidence about was -- was with respect to 24 Command Post and politicians, -- local politicians, 25 provincial politicians being in the Command Post.
911 And what, if anything, has the OPP done 2 with respect to that issue? 3 A: Well, we've had lots of discussion on 4 it, and the -- we will be preparing a policy that speaks 5 to the discouraging of politicians in the command post. 6 I think that there are -- there's always information that 7 is valuable. I think the difficulty is it's best that it 8 not be discussed or received in the Command Post itself. 9 Q: And so today there isn't a policy but 10 a policy is under -- 11 A: Yes. 12 Q: -- investigation? 13 A: Yes. 14 Q: And is there -- with respect to the 15 Command Post, is there a policy today that restricts the 16 individuals who can attend at the Command Post, other 17 than politicians? 18 A: Well, the -- the training, as such, 19 is to try to restrict it to police officers only, for two 20 (2) reasons, really. One is to keep the information in 21 the proper containment, but secondly to alleviate 22 confusion as people come and go. 23 So it is quite clear that if you have 24 people who need to speak to the incident commander in -- 25 or someone within the command post, then they should
921 leave to be able to do that and do that off site. 2 Q: And the policy with respect to 3 politicians in the Command Post that -- that's being 4 considered, are parameters being considered as to when 5 that would be permitted or when it would not be 6 permitted? 7 A: Our general principal will be it 8 would not be permitted. And -- but I think as you work 9 in the -- particularly in our rural communities, there's 10 an ongoing relationship that exists by virtue of the type 11 of communities we police. 12 And so I -- our position would be that it 13 is -- that we would not have politicians in the command 14 post, but obviously you would have to ensure that was 15 communicated clearly so you don't get someone knocking on 16 the door. You make your arrangements to meet off site. 17 Q: And when you -- to meet the -- the -- 18 between the politician and the commander off site or...? 19 A: Yes. 20 Q: Okay. And at an appropriate time? 21 A: Exactly. 22 Q: And I take it that, like all rules, 23 there have to be exceptions, and presumably your policy 24 will deal with that? 25 A: Yes. And the incident commander
931 would be required to explain why he or she would choose 2 otherwise. I think that it is a matter of communicating 3 clearly to the person who's requesting the meeting and to 4 work from there. 5 Q: And the -- we've heard some evidence, 6 and we'll get into it a little bit later this morning, 7 about police officers impersonating media representative 8 -- making -- telling people that they're part of the 9 media? 10 A: Yes. 11 Q: And is there a policy in the OPP on 12 that type of issue, impersonating the media? 13 A: We don't have a policy per se. We've 14 done some training on it, and let me explain why. I 15 received a letter from the News Directors Association 16 which I responded to. 17 And we see that these would be -- this 18 would occur in very, very rare circumstances. And I'll 19 give you an example where we struggled with in terms of 20 what the circumstances where it might be the right case. 21 In a case where somebody is holding 22 somebody hostage, and the only person that they would 23 talk to would be a reporter, for instance, then we may 24 make an assessment that it was too dangerous to do that. 25 But in order to get the issue or the incident resolved,
941 we may want to have a police officer pose as a reporter 2 to go in to do that and -- and hopefully be able to 3 resolve it and get the hostage out. 4 So that would be the very rare 5 circumstance. We are going to move to a policy that -- 6 that would do two (2) things. 7 First of all, it would put the principle 8 out that it would not be the case. This is well 9 communicated, quite frankly, today, but I would like to 10 firm it up in policy for my own comfort. 11 So the policy will be drafted that would 12 say that we would only do this in rare circumstances and 13 the circumstances would have to be approved by a senior 14 officer. 15 Q: And the example you gave was the 16 hostage where it may be necessary to save the person's 17 life? 18 A: That's right. 19 Q: And now, with respect to media 20 releases and the Special Investigations Unit, the -- 21 generally, with respect to media releases, as it relates 22 to an incident such as the incident in 1995, what, if 23 anything, did the Ontario Provincial Police learn with 24 respect to media releases? 25 A: We have policy now on media release
951 around -- involving an SIU case. 2 Q: And is that the policy that refer -- 3 is at Tab 11 of the small book, Commissioner? 4 A: That's correct. 5 Q: And the policy -- do you have that, 6 Commissioner? 7 COMMISSIONER SIDNEY LINDEN: Yes. 8 9 CONTINUED BY MR. DERRY MILLAR: 10 Q: It's 2.5.21, Special Investigations 11 Unit. 12 A: I'm sorry, could you give me the tab 13 number. 14 Q: It's Tab 11 actually, of the small 15 book. 16 A: The small book. Thank you. 17 Q: We have two (2) groups of material. 18 And for the benefit of My Friends we -- we distributed 19 this electronically I think yesterday. 20 And this is the policy that's in effect 21 today? 22 A: That's correct. 23 Q: And I would ask that that be marked 24 the next exhibit? 25 THE REGISTRAR: P-1720, Your Honour.
961 2 --- EXHIBIT NO. P-1720: OPP Police Orders, Chapter 2, 3 Law Enforcement, pages 12,13 4 and 14. 5 6 CONTINUED BY MR. DERRY MILLAR: 7 Q: And at page 2 there's a -- the 8 reference to news release. Without me going through it 9 what is the policy? 10 A: The -- on a news release was the 11 matter that involves the SIU, is that the media 12 relations, the corporate media relations would be the 13 only people who can release that and that the Director of 14 SIU has determined we can prepare one (1) generic news 15 release that lays out the -- the aspects of the incident 16 as you see under the news release piece. 17 Q: That's on page 2? 18 A: Yes. 19 Q: Yes? 20 A: So he -- regarding the incident 21 including criminal charges of any related -- you cannot 22 release any details of the investigation and -- but you 23 also have to state that the SIU is involved and any 24 further reports relating to the investigation are 25 responded to the by the SIU.
971 This has -- this has evolved I think since 2 '95 considerably and so the practice would be, for 3 instance, that my corporate media person would actually 4 have a conversation with the communications advisor to 5 the SIU and say this is what's occurred. SIU of course 6 would already be notified and on their way and the 7 document would be shared in advance of it going out. 8 That -- that's what our practice is. 9 Q: Is today? 10 A: Yeah. 11 Q: And now the corporate media person, 12 what you mean by that is the person at Headquarters? 13 A: The person at Headquarters. 14 Q: Now, I know that you weren't involved 15 with the press releases back in 1995 but we've heard some 16 evidence about errors in the press releases that -- or 17 what appear to be errors that John Carson acknowledged 18 were errors in the press releases. 19 What steps if any have been taken to try 20 to ensure that press releases when released by the OPP 21 are as accurate as -- as humanly possible? 22 A: I -- I think there's a -- first there 23 was probably -- I'm certain there's greater media 24 training that takes place for our media officers. In 25 cases like this I think the -- by going to the OPP
981 Headquarters for the approval, that's where greater 2 expertise lies on -- on an SIU case. 3 But we find in the regions for instance 4 now that each of the media officers, community service 5 officers, have a sergeant who's in charge who would help 6 work with them at the local level. So they're better 7 trained and the supervision is someone who works in that 8 business every day. 9 Q: And -- and the person that -- 10 A: The sergeant. 11 Q: -- in the General Headquarters? 12 A: Yes. 13 Q: Yeah. Now, if I could turn to 14 another topic for a moment. The -- we've heard some 15 evidence and had some evidence with respect to 16 intelligence and the events of September 4th, 5th, and 17 6th. And can you tell us some of the lessons that the 18 OPP at least you've -- in your view the OPP has learned 19 with respect to the intelligence issues on September 4th, 20 5th, and 6th? 21 A: I think that two (2) pieces of 22 material are important, first that the -- the issues that 23 are identified as deficiencies have been addressed. But 24 secondly I think you need to appreciate there's an 25 evolution of intelligence over the last eleven (11) years
991 right across the country so there's a different way of 2 doing intelligence information. 3 One (1) deficiency was, sort of, the 4 prioritization of intelligence which was identified and 5 there's an entire regime now that sets up, that 6 determines what he priority should be for intelligence. 7 And specifically for instance in a JFO or Joint Force 8 Operation where it's an intelligence that same 9 prioritization takes place. It's -- it's a common -- 10 common usage across the country in terms of the 11 prioritization process. 12 The second thing was and has been of great 13 discussion in the policing around the use -- the 14 difference between strategic intelligence and project 15 based or tactical intelligence and I think Don Bell may 16 have spoken to this. 17 There has been a tremendous shift in the 18 intelligence community and police community to greater 19 strategic intelligence and a more strategic approach to 20 intelligence operations and it is really more analytical 21 in nature than it would have been in 1995. 22 Training was another deficiency in 23 intelligence officers and also training for people who 24 would need intelligence information or need intelligence 25 analysis like incident commanders.
1001 So, it's been two-fold. One is that the 2 intelligence officers receive a greater standard 3 training, and then secondly that what we call the clients 4 of the intelligence are better aware of what is available 5 to them and how the analytical process should work and 6 what they should rely on and suchlike. 7 Q: So the Level 2 Incident Commander has 8 now training in intelligence? 9 A: He would -- he would have as part -- 10 he or she would have as part of the course, some 11 understanding around intelligence and how the 12 intelligence works. 13 And most incident command, at the Level 2 14 now, would have an intelligence analyst working with 15 them? 16 Q: Most -- today there would -- 17 A: Yeah. 18 Q: -- be an analyst working at most 19 level? 20 A: Yeah. 21 Q: Is there a policy that would define 22 when an analyst would be there or when they wouldn't be 23 there? 24 A: I can't tell you. 25 Q: Okay. And with respect to the
1011 training of Level 2 Commanders, would that involve the 2 intelligence process? We've heard some evidence about 3 the process of intelligence planning, collection, 4 collation, evaluation -- 5 A: Yes. 6 Q: -- analysis, reporting and 7 dissemination and re-evaluation going around the circle? 8 A: Hmm hmm. 9 10 (BRIEF PAUSE) 11 12 Q: Now, when -- when I asked the 13 question about training, you said that the Level 2 14 Commanders would have some understanding about 15 intelligence? 16 A: Yes, it's -- well, it's my 17 understanding that is -- let me just rephrase it, that 18 the -- as part of the -- my understanding is, as part of 19 the Level 2 Incident Commanders will receive some level 20 of understanding on intelligence. 21 What the degree to it is or the detail of 22 it, I don't know. 23 Q: And what about frontline officers, or 24 new recruits? 25 A: We are now doing frontline officers
1021 through their in-service training process and last year 2 they had some introduction to intelligence. In-service 3 training is every officer in the Province as part of 4 their in-service training, does a week a year. And so 5 the intelligence component was part of that week in the 6 year, to -- 7 Q: And -- 8 A: -- to have a better understanding of 9 -- of the intelligence information, where your 10 information goes that they, as frontline officers, 11 provide and how the analytical process works. 12 Q: So that they would be trained in the 13 intelligence cycle -- 14 A: Yes. 15 Q: -- if I might put it that way; is 16 that correct? 17 A: They would be trained in how 18 intelligence works within the organization and -- and how 19 to feed that intelligence and -- and, in turn, how to 20 rely on the analytical pieces out of it. 21 Q: And -- 22 A: It would obviously be -- it's -- you 23 know, it's a five (5) day program, an in-service 24 training, it would be minimal into -- a smaller amount 25 than you may see if you were further into criminal
1031 investigations or whatever. 2 It's basically to give them a snapshot of 3 how it operates. 4 Q: And do you know if the training 5 includes training into the reliability scale regarding 6 information? 7 A: I don't know what the -- what it con 8 -- contains. 9 Q: And the -- so that that's part of the 10 -- on -- on an annual basis to the -- do the frontline 11 officers get that? 12 A: They got it last year in 2005 as part 13 of their in-service training, so every officer working in 14 the Province would have got that -- that piece of 15 information. 16 Q: And what about a new recruit out of 17 the OPP academy or the Police College? 18 A: The -- there was some plans to do it 19 for new recruits, but it hasn't taken place yet. 20 Q: It hasn't taken place but it's being 21 planned. 22 And now the -- in 1995, at least on 23 September 4th, 5th and 6th, there were no analysts 24 available to John Carson and we've heard that -- Don Bell 25 talked about after -- after September 6th, there were
1041 analysts. And what -- what is the approach today of the 2 OPP with respect to analysts being provided as part of 3 the process to Level 2 Incident Commanders? 4 A: Well, my understanding is that the 5 analysts are provided at the request of a Level 2 6 Incident Commander. We have moved in 1990 -- January 7 1996 we had three (3) analysts and today we have eleven 8 (11). So -- and it's a unit that operates together and 9 is able to be deployed out -- 10 Q: So you've gone from three (3) to 11 eleven (11)? 12 A: That's correct. 13 Q: And what about the -- one of the 14 things that we've heard about in 1995, at least September 15 4th and 6th, that the Incident Commander, was receiving 16 information from all sorts of sources. And Inspector Don 17 Bell spoke about this when he was here and Mr. Wawryk 18 spoke about it too. 19 And what is the policy today or has there 20 been a change in policy with respect to the sources of 21 information going to the Incident Commander? 22 A: The Level 2 Incident Commanders would 23 be trained now that it filters in through one (1) analyst 24 and that analysts then provides one (1) set of 25 information to the Incident Commander. It doesn't come
1051 in from different places. It's one (1) -- that's why the 2 analyst is there. 3 Q: And so that for a serious or a longer 4 term critical incident, perhaps longer than a few hours, 5 an analyst today would be deployed with the Level 2 6 Incident Commander? 7 A: That's correct. 8 Q: And on the Integrated Response Unit 9 the -- and I don't have the chart here but one (1) chart 10 I saw had the criminal investigation/intelligence, kind 11 of, together. 12 Is intelligence treated as a sub-set of 13 the criminal investigation or is it treated as a separate 14 kind of free-standing unit? 15 A: My sense is it would be treated 16 separately. 17 Q: As a free-standing unit? 18 A: Yes. 19 Q: And the Intelligence Unit with your - 20 - with the analysts that you have today and the officers 21 who man the Intelligence Unit, what training, if any, do 22 they receive with respect to Aboriginal issues or Native 23 awareness? 24 A: 20 percent of the intelligence 25 officers have had Native awareness training and there's
1061 more listed to go. 2 Q: Pardon me? 3 A: And more officers listed to take 4 training -- 5 Q: To take the training as it's -- and 6 how often is -- today is the Native awareness training? 7 I know it's a week long course; how long -- 8 A: It's nine (9) weeks. 9 Q: Nine (9)-- 10 A: We run nine (9) separate courses a 11 year. 12 Q: Nine (9) separate courses a year. 13 A: And there's a heavy demand. 14 Q: I can understand that. Now, I'm 15 going to take you back to 1996 and ask you to turn to Tab 16 5. And at Tab 5 there's a copy of Inquiry Document 17 2000556. It's Exhibit P-457 and this is been referred to 18 as the Ipperwash Review. It was February 21, 1996. 19 And you're listed on the second last page 20 as being in attendance and as having come from General 21 Headquarters. 22 COMMISSIONER SIDNEY LINDEN: Which tab is 23 that, Mr. Miller? I'm sorry, I missed it. 24 MR. DERRY MILLAR: Okay. It's Tab 5 of 25 the large book, sir.
1071 COMMISSIONER SIDNEY LINDEN: I missed it. 2 That's fine. Thank you. Yes? 3 MR. DERRY MILLAR: Tab 5 of the large 4 book. It was the original list of documents that I 5 provided to My Friends. 6 COMMISSIONER SIDNEY LINDEN: Yes. I've 7 got it. 8 9 CONTINUED BY MR. DERRY MILLAR: 10 Q: And what role did you play at the 11 Ipperwash Review? 12 A: I was an observer. 13 Q: And why were you there as an 14 observer? 15 A: I had just been appointed as the new 16 Regional Commander in Western Ontario replacing Chief 17 Superintendent Chris Coles, so I was there to observe. 18 Q: And I believe that Chief 19 Superintendent Coles retired in April of 1996? 20 A: That's correct. 21 Q: And that's when you took over the -- 22 as Camp -- Commander of the Western Region? 23 A: Yes. 24 Q: And so that's why you were there? 25 Did you participate, do you recall, or simply observe?
1081 A: No, simply observe. 2 Q: And if I could ask you to turn to Tab 3 6. 4 5 (BRIEF PAUSE) 6 7 Q: There's -- at Tab 6 there's a copy of 8 Exhibit P-614, and that is a document dated April 15, 9 1996, entitled, Emergency Preparedness in the OPP Working 10 Group Report. 11 And what role, if any, Commissioner 12 Boniface, did you play in the creation of this report? 13 A: I was one (1) of the parties 14 consulted. I'm listed in one (1) of the areas. I was in 15 charge at the time of -- as one (1) of my 16 responsibilities under organizational development was 17 human resources, so my sense is it's probably under some 18 of those aspects of it. But it was a minor role. 19 Q: So this report was -- came out just 20 after you were -- took over as head of the Western 21 Region? 22 A: Yeah, it would be almost 23 simultaneous. 24 Q: And so that your role as Commander of 25 Human Resources, you might have -- you provided
1091 information for this or...? 2 A: Yes. 3 Q: And -- but you did not play a major 4 role in -- 5 A: No, not at all. 6 Q: And I understand this document, the 7 Emergency Response, or excuse me, Preparedness in the 8 OPP, there are many, I think approximately eighty (80) 9 recommendations? 10 A: Yes. 11 Q: And you've -- we've been provided 12 with a -- a document that's at Tab 9 of the small binder 13 entitled, "Emergency Preparedness in the OPP," that 14 refers to the recommendations in the Exhibit P-614 and 15 the response by the Ontario Provincial Police to those 16 recommendations. 17 And as I understand it, the -- apart from 18 three (3) recommendations, the -- all of the 19 recommendations in the report have been acted on in some 20 way or another? 21 A: That's correct. 22 Q: And the -- in this document the 23 bolded note behind the -- behind the line is a reference 24 to the recommendation in the report? 25 A: Yes. Sorry, that's the
1101 recommendation number? 2 Q: Yes, recommendation number. 3 A: Yes. 4 Q: And I would ask that this be the next 5 exhibit? 6 A: P-1721, Your Honour. 7 8 --- EXHIBIT NO. P-1721: Emergency Preparedness in the 9 OPP. 10 11 CONTINUED BY MR. DERRY MILLAR: 12 Q: And there are listed a number of 13 recommendations on the first page that are characterized 14 as recommendations of note, and that's: 15 "Dealing with the dialogue between 16 detachment commander -- commanders and 17 community groups is key, especially 18 where detachments are in close 19 proximity to First Nations territories. 20 Encourage ongoing community dialogue." 21 And that's a recommendation that's been 22 carried out and -- 23 A: That's correct. 24 Q: -- and finds its way, in part, I 25 guess, in the framework --
1111 A: That's correct. 2 Q: -- that philosophy? 3 A: In -- in many ways some of these 4 recommendations have been overtaken either by adequacy 5 standards or the framework, but they're the beginning of 6 some of those initiatives. 7 Q: Some of these initiatives that were 8 recommended back in 1996, as you say, have been put in 9 place and overtaken by other initiatives -- 10 A: Yeah. 11 Q: -- such as the framework and the 12 adequacy standards that you refer to? 13 A: That's correct. 14 Q: And at the time there was a 15 recommendation about develop cultural and awareness 16 learning initiatives. 17 And that took place with the Native 18 awareness training? 19 A: Native awareness training, some of 20 our exchanges with First Nation Police Services, 21 initiatives like that, that it create learning 22 opportunities for our members. 23 Q: And the third recommendation of note 24 was, strategic and tactical intelligence, and we've just 25 spoken about that, that's been acted on?
1121 A: That's correct. 2 Q: And a statement that: 3 "OPP senior management support the need 4 for political resolution of issues 5 involving Native land claims." 6 That was recommendation 45. And what was 7 done with respect to that recommendation? 8 A: My recollection of this is that there 9 were resolutions carried by the OPP to both the Ontario 10 Association of Chiefs of Police meeting and the Canadian 11 Association of Chiefs meeting and passed by the 12 delegation, calling on the governments to ensure that 13 they take appropriate action around land claim issues. 14 Q: And I actually don't have it -- the 15 exhibit number at my fingertip but there is -- we do have 16 an exhibit -- 17 A: Okay. 18 Q: -- of one of those policies, I 19 believe we do. 20 Or if we don't, we'll have it tomorrow 21 when Mr. O'Grady comes. The -- that was something that 22 took place under -- when he was Commissioner? 23 A: That's correct. 24 Q: And then there's a recommendation 25 with respect to whether major incidents are under
1131 investigation or external review, recommendation made 2 that operational reviews be held within thirty (30) days. 3 And what's happened, do you know what 4 happened with that recommendation? 5 A: That recommendation is included in 6 the integrated response and it is, in fact, the practice. 7 Q: It's the practice -- 8 A: Yes. 9 Q: -- today? And again, conducting 10 operational reviews in manageable numbers. Does that 11 refer to Level 2 incidents? 12 A: Yeah. It would refer to sort of 13 large scale or long duration incidents where you have a 14 large number of people deployed at the incident, and so 15 it's just a way to break it down and get the information 16 in a more meaningful way. 17 Q: And the purpose of a review, of 18 course, is to learn from the things that went right and 19 learn -- 20 A: Exactly. 21 Q: -- from the things that went wrong? 22 A: Exactly. 23 Q: And then another recommendation was 24 to have regional commanders build improved relations with 25 First Nations communities.
1141 And I take it, through the Native 2 awareness programs and the framework, that that's 3 something that the OPP is doing? 4 A: And each regional commander is 5 required to have initiatives underway within their 6 region. There's six (6) regions in the province and so 7 when I was in -- as an example, when I was the Western 8 Region Commander, I had a strategy committee that I was 9 working with to put in place our recommendations in terms 10 of connecting our regional Detachments to our local First 11 Nation communities. 12 So each of us, as regional commanders, 13 were tasked to do some initiative that met the needs of 14 our communities. 15 Q: And then there are a number of 16 recommendations that were made with respect to the 17 integrated response units, emergency planning. And the 18 items that are listed are items that have been acted on? 19 A: They have either been acted on or, as 20 I indicated, overtaken by something that has come 21 subsequent. And on the -- there's three (3) that have not 22 been -- as you indicated, that have not been implemented. 23 Q: And why were those recommendations 24 not implemented? 25 A: First of all, there was no -- on the
1151 first one, on the uniform differentiation between ERT and 2 TRU, it's not based on the work, it's based on the 3 environment you need to work in, so it was not found to 4 be a valid recommendation. 5 Q: So that if you had an ERT team that 6 was deployed and needed to be deployed in a surveillance 7 mode so they couldn't be seen -- 8 A: Be invisible. 9 Q: -- invisible deployment, then there's 10 only so many uniforms that can -- can be used, whether 11 you're a TRU team member or an ERT team member? 12 A: That's correct. 13 Q: Is that -- 14 A: It needs to be determined by the 15 environment, not by the role. 16 Q: And acquire a cell master control 17 system. First of all, do you know what a cell master 18 control system is? 19 A: Well, I found out what it was. It's 20 -- it was a recommendation to be able to block out all 21 cell phones within a certain radius of the call. And 22 there is not the capacity to do that. 23 Essentially, technology just keeps moving 24 ahead of it, as I understand it, and of course it's 25 significantly expensive.
1161 So it was not -- not done. 2 Q: And then someone had recommended 3 consider acting field promotions effective on site as a 4 major event? 5 A: And that was a decision of management 6 they would not. 7 Q: Not do that? 8 A: No. 9 Q: And if I could ask you to turn to Tab 10 15. And Tab 15 is a copy of Inquiry Document 2000577, 11 Exhibit P-483. And this is referred to as the Connolley 12 Report. 13 And at Tab 12, it's Inquiry Document 14 2000535, Exhibit P-615, there's a memorandum of February 15 25th, 1997 from then Commissioner Thomas O'Grady to 16 Inspector Connolley and asking him to: 17 "Review all circumstances pertaining to 18 occurrences involving Ipperwash 19 Provincial Park and the Ontario 20 Provincial Police. The review will 21 include, but not be restricted to, the 22 collection of all relevant material, 23 interviews of involved personnel where 24 necessary, and the preparation of a 25 comprehensive summary of the applicable
1171 incidents. The intent of this 2 assignment is to conduct an objective 3 review of all actions taken and produce 4 a complete an accurate reference 5 package for use by the OPP." 6 Now, did you play any role in the 7 preparation of the Connolley Review? 8 A: The only one -- 9 Q: The Connolley Report? 10 A: -- was the one we referred to earlier 11 where I was interviewed by him, but not in the 12 preparation of it. 13 Q: And the reference to you in the 14 report is at paragraph 33, I believe. Let me just -- on 15 page -- excuse me for a moment, Commissioner. 16 17 (BRIEF PAUSE) 18 19 Q: At page 9? 20 A: Can I ask which tab you're on, in 21 which book? 22 Q: I'm at -- I'm at Tab 15, Commissioner 23 Boniface at -- in the large book. And it's page 9 of 24 that book. 25 A: Yes, thank you.
1181 Q: And at Tab (sic) 33: 2 "What was the result of the July 4, 3 1995 assignment given to Chief 4 Superintendent Boniface and Inspector 5 Nudds concerning a current concise 6 snapshot of the volatile unrest 7 concerning First Nations?" 8 And Inspector Connolley reports that you 9 reported that it was your recollection that you offered 10 assistance but wasn't tasked -- you weren't tasked to do 11 something? 12 A: That's correct. 13 Q: And he reports that Superintendent 14 Nudds had the same -- had no memory of receiving any 15 direction as noted? 16 A: That's correct. 17 Q: And the Connolley Report, starting on 18 page 10, makes a number of recommendations with respect 19 to items, and there are seven (7) recommendations. And 20 at -- if I could ask you at tab -- turn to Tab 10 in the 21 small book. And for the benefit of My Friends, this is a 22 -- one of the documents we distributed electronically 23 entitled, "Connolley Report." 24 And this document was prepared to outline 25 the response of the OPP to the recommendations in the
1191 Connolley Report; is that correct, Commissioner? 2 A: That's correct. 3 MR. DERRY MILLAR: And I would ask that 4 this be marked the next exhibit? 5 THE REGISTRAR: P-1722, Your Honour. 6 7 --- EXHIBIT NO. P-1722: Connolley Report, 8 Recommendations numbers 1, 2, 9 3, 4, 5, 6 and number 7. 10 CONTINUED BY MR. DERRY MILLAR: 11 Q: And the first recommendation was that 12 the Ontario Provincial Police establish a First Nations 13 crisis intervention team that monitored potential 14 internal and external disputes in First Nations. 15 And this today would be responded to by -- 16 in the framework? 17 A: It would be responded to in the 18 framework. In '96 it would have started with the 19 Aboriginal Liaison Officer position. And as it's evolved 20 it's now evolved into the framework with the Aboriginal 21 Relations Officers and the MELT teams. 22 Q: And the Aboriginal Liaison Officer's 23 position started in 1996? 24 A: Yes. 25 Q: And then was the ART -- were the ART
1201 teams and the MELT teams established prior to you 2 becoming Commissioner or after you -- 3 A: They were after I became 4 Commissioner. 5 Q: And so those teams have been created 6 as part of the work that you've done in leading the OPP? 7 A: That's correct. It's part of the 8 evolution into the framework. 9 Q: And so that the work -- the response 10 really, initially, was the Aboriginal Liaison Officer and 11 then it's moved into the framework that we see in place 12 today? 13 A: That's correct. 14 Q: And then the second recommendation 15 was to implement a comprehensive First Nations awareness 16 training program. And that certainly is in place today 17 but I believe it began -- a four (4) day training session 18 began with Commissioner O'Grady back in 1997 or 1996? 19 A: It would be just prior to -- to that, 20 but, yes, there's been -- it's been evolved over time and 21 the program has been re-designed, but it's still four (4) 22 days. 23 Q: And one (1) of the recommendations 24 was to continue to lead in the operation of the 25 Commissioner Select Liaison Council. And that was active
1211 then and is active today? 2 A: It's very active. 3 Q: And the recommendation number 4 was 4 the Ontario Provincial Police, through proper reporting 5 relationships, continually present to governments the 6 urgency of prompt and meaningful negotiations in land 7 claims disputes as a method to avoid confrontational 8 situations. 9 And the OPP, at least under your 10 leadership, supports this recommendation? 11 A: Yes. 12 Q: And then there's a reference to the 13 emergency recommendation number 5, "Preparedness 14 Project." 15 And as noted, it was completed and all but 16 a few of the recommendations were either -- have been 17 implemented or acted upon and we've just reviewed that? 18 A: That's correct. 19 Q: And then he makes a recommendation 20 number 6 with respect to intelligence, how it's gathered, 21 authenticated, and analysed, and we've discussed what's 22 happened with respect to intelligence. 23 And recommendation number 7: 24 "The Ontario Provincial Police in 25 similar large scale incidents assign a
1221 dedicated individual officer as a 2 communications officer." 3 Then the response: 4 "This recommendation is not directed to 5 informing the public, it is directed to 6 informing OPP members involved in major 7 incidents. It is a responsibility of 8 the L2 Incident Commander to ensure the 9 communication of accurate and timely 10 information to OPP members involved in 11 major incidents." 12 So that the -- I take it that the response 13 to this recommendation is simply the Level 2 Incident 14 Commander is supposed to do that? 15 A: That's correct. This would not -- 16 this was not implemented and the Level 2 Incident 17 Commander does the briefings. 18 Q: And the -- one (1) of the things that 19 we've heard from officers and from the evidence is that 20 officers may not know or may have wrong information, or 21 as I think Inspector Connolley talks about rumours that 22 start and -- and go around the officers and -- and 23 perhaps others. 24 And how -- what training does the Level 2 25 Incident Commander get today to try to combat that --
1231 A: Well -- 2 Q: -- to make sure that the frontline 3 officers know what's happening and that rumours are dealt 4 with when they arise? 5 A: Well, the Level 2 Incident Commanders 6 would have that as part of their training. Both the 7 Connolley Report and the Emergency Preparedness Report 8 has been implemented as in terms of how their training is 9 done, so it would be emphasized. 10 And secondly, when they do their 11 simulations they go through two (2) assessment periods. 12 I would expect that that's covered in the assessment 13 period. So it's really creating some best practices in 14 terms of -- 15 Q: Pardon me? 16 A: It's creating best practices as part 17 of the process. The reviews would cover that as well. 18 Q: And with respect to the -- excuse me 19 for a minute. 20 Could I ask you, Commissioner Boniface, to 21 turn to Tab 7? 22 23 (BRIEF PAUSE) 24 25 Q: And we're going to come back to this
1241 but this is a copy of Exhibit P-336, it's a letter dated 2 July 17, 1996 from then-Commissioner O'Grady to Mr. 3 Maynard (Sam) George, who I know you know. 4 It's at Tab 7. 5 A: Yes. 6 Q: And I understand that you played a 7 role with respect to this letter? 8 A: I did. 9 Q: And can you tell us what role you 10 played? 11 A: I delivered the letter to Mr. George. 12 Q: And at -- at the request of -- 13 A: At the request of Commissioner 14 O'Grady. 15 Q: And that happened in July of 1996? 16 A: Yes, that's correct. 17 Q: And that -- this related to -- the 18 letter related to the issue of memorabilia? 19 A: That's correct. 20 Q: And so you personally delivered it at 21 Kettle and Stony Point to -- 22 A: No, we actually met at a restaurant 23 and I delivered the letter and expressed the apologies on 24 behalf of Commissioner O'Grady. 25 Q: And now, that leads me to another
1251 subject and that is the subject of discipline. And I've 2 got -- in front of you, you'll find two (2) white 3 binders, a white -- groups of documents. 4 5 (BRIEF PAUSE) 6 7 Q: And can you tell us today -- just 8 give us a -- an indication, if you can, as to the -- what 9 the structure, discipline structure was in 1995 and 1996? 10 11 (BRIEF PAUSE) 12 13 A: In terms -- in terms of the structure 14 within the organization? 15 Q: Yes. So what would happen if a 16 member of the public or there was an internal complaint 17 made back in 1995 or 1996. Can you just give us an 18 overview of how that -- how the structure worked? 19 A: A complaint process, and I'm not 20 really adept at all the nuances in '95/'96 -- 21 Q: No, I appreciate that. But -- 22 A: But the -- at that time in the 23 legislation, as I recall it, it separated out what we 24 would call internal complaints and public complaints. 25 The complaint would come in, Professional
1261 Standards would receive the complaint and would assign 2 somebody to investigate. In -- in the -- in the 3 structure of that day, the Professional Standards 4 reported directly to the Office of the Commissioner. 5 And the -- and the complaint would be 6 investigated and a report would be filed by the 7 investigating officer. 8 Q: And at some point there was a 9 discipline committee? 10 A: Yes. 11 Q: And was that in 1995/1996? 12 A: In 1995, when the OPP reorganized, 13 the discipline committee was discontinued. I have not 14 been able to, at least in my search, determine at what 15 point in '95 that shift took place. 16 As the organizational structure changed, 17 the decision was made that the discipline -- discipline 18 committee would be disbanded and the decisions for 19 discipline would be arrived at between the bureau 20 commander and the designate from, for instance, the 21 region; so the regional superintendent. 22 So at what point the discipline committee 23 itself came to an end in '95, I can't say for sure. 24 Q: And in -- so that in 1996, as I 25 understand what you said, that if a public complaint came
1271 in, it would go to Professional Standards? 2 A: Yes. 3 Q: The director of Professional 4 Standards or his or her designate would direct -- assign 5 an investigator. The investigator would file a report. 6 Is that correct? 7 A: That's correct. 8 Q: And that report would go back to the 9 commander of the Professional Standards? 10 A: That's correct. 11 Q: And the report would either 12 recommend -- 13 A: The investigator would make a 14 recommendation and go to the Bureau Commander and the 15 Bureau Commander would then -- I've not been the Bureau 16 Commander, but the Bureau Commander would then make a 17 decision in consultation with the region -- regional 18 designate would likely be a Superintendent. 19 Q: And that would be on a public 20 complaint? 21 A: Yes. 22 Q: And on an internal complaint back in 23 '96? 24 A: My sense is that the process would be 25 similar. They were just, by legislation, separated out.
1281 They may be initiated within the region. The requirement 2 under the Act, as I recall, would be that whoever 3 received it initiates it and sends up the complaint. 4 Or, if you were in an internal complaint, 5 whoever receives information as an individual would file 6 the complaint. 7 Q: And with respect to the discipline 8 process back in 1996 the process as I understand it might 9 result in formal discipline, for example a hearing, is 10 that correct? 11 A: That's correct. 12 Q: Or informal discipline? 13 A: That's correct. By agreement. 14 Q: And by agreement between the person 15 against whom the complaint has been made and Professional 16 Standards? 17 A: That's correct. 18 Q: And the -- and if there were in 19 addition to informal discipline there might be 20 discussions with the party; was that part of the process? 21 A: Yes. It can be a non-disciplinary 22 discussion. But a discussion as a result of the 23 investigation. 24 Q: And to -- the purpose of the 25 discussion would be what?
1291 A: To bring -- to bring the incident to 2 their attention and to view it as corrective in nature. 3 Q: And today in 2006 what is the process 4 for both of -- an internal and an external complaint? 5 A: Essentially what the -- what the Act 6 -- the amendments to the Act, as I recall them, just 7 merged the two (2). And so the process today 8 structurally we're different. The Professional Standards 9 Bureau reports to a provincial commander, a Deputy 10 Commissioner. It does not report to the Office of the 11 Commissioner. 12 And the investigations are conducted at 13 the request of, again, whoever receives a complaint would 14 forward it but Professional Standards would always get a 15 copy of it -- of the complaint and the persons assigned 16 to do the investigation would be Professional Standards 17 Bureau staff. 18 Q: So that the investigation in 1995 or 19 1996 the investigator might not have come from the 20 Bureau itself? 21 A: That's -- that's my recollection. 22 Q: But today the investigator would come 23 from the Professional Standards Bureau staff? 24 A: That's correct. And they're deployed 25 throughout the province. But the reporting relationship
1301 is to Professional Standards. 2 Q: And do those investigators have 3 special training to be investigators with the 4 Professional Standards Branch? 5 A: That's correct. 6 Q: And so their training would be -- 7 would they have separate training to function in that 8 position? 9 A: That's right. 10 Q: And how many investigators or do you 11 know are there today in the Professional Standard Branch? 12 A: I could -- I don't have it right off 13 the top. 14 Q: Okay. Now, back in 1996, if I could 15 ask you to turn to Exhibit P-1051 and P-1052; they're the 16 two (2) documents that are in front of you and the first 17 investigation that I wanted to discuss with you is the 18 question of mugs and T-shirts. 19 A: Yes. 20 Q: And the -- what role did you play, if 21 any, with respect to the investigation that took place in 22 1996 -- excuse me, with respect to mugs and T-shirts and 23 the beer can? 24 A: I had no role at that time to my 25 recollection.
1311 Q: And the -- I understand however that 2 at some point you were provided with a copy of the report 3 of the investigator? And if you could turn to Tab 17 of 4 Exhibit P-1051; that's Volume 1? 5 6 (BRIEF PAUSE) 7 8 Q: Is that correct? 9 A: That's correct. 10 Q: And why were you provided with a copy 11 of this report dated January 8th, 1996? And we know that 12 the name of the investigator which was Sergeant Adkin has 13 been redacted so we know now the name of the 14 investigator. 15 Why were you reported in Sergeant Adkin's 16 report? 17 A: I don't recall specifically but I 18 expect it was because I was becoming the new Regional 19 Commander. 20 Q: And the Regional Commander for 21 Western Region based -- 22 A: For Western Ontario. 23 Q: -- based in London? 24 A: Yes. 25 Q: And I understand that you -- you
1321 reviewed this report? 2 A: Yes. 3 Q: And this report deals with the mugs, 4 with the T-shirts, the arrow on an OPP cruiser, newspaper 5 cartoons, offensive items on a blackboard and the beer 6 can as well as the Pinery/Ipperwash Park policy? 7 And there are some notations on the copy 8 that we have that I understand were made by you? 9 A: That's correct. 10 Q: And if you could turn to page 11, 11 please? 12 13 (BRIEF PAUSE) 14 15 Q: And at the bottom of page 11 there's 16 a paragraph: 17 "It's a matter of note a statement was 18 obtained from Provincial Constable 19 [whose name has been redacted] South 20 Frontenac Detachment. 21 In this -- in his statement he 22 indicates he was in attendance at 23 Pinery Park during the incident and 24 observed the beer can. He further 25 states he is an Aboriginal person who
1331 is not offended by the item in any 2 way." 3 And there's some handwriting on the left 4 of that paragraph, "irrelevant". 5 And is that your handwriting? 6 A: Yes, it is. 7 Q: And do you recall today why you wrote 8 the word, "irrelevant" on that -- inside that paragraph? 9 A: Having re-read it my interpretation 10 would be that I felt that the fact that he was an 11 Aboriginal person not offended was irrelevant to the 12 investigation. 13 Q: And at page 13 there are some notes 14 as well. There's a note beside the first full paragraph 15 although it doesn't -- it doesn't come out clearly but 16 the third paragraph reads: 17 "Investigation revealed the involved 18 officers to be Constable [blank] 19 Detachment and Provincial Constable 20 [blank] Detachment. I interviewed both 21 officers and they indicate the mugs 22 were made up as a memento to the 23 Ipperwash incident. They attempted to 24 come up with a design and having 25 trouble drawing a feather with no
1341 success settled on an arrow and the OPP 2 shoulder flash." 3 And there's a note, a star and a note: 4 "Important." 5 And is that in your handwriting, 6 Commissioner? 7 A: That is. 8 Q: And I know it's a long time ago but 9 today can you recall why you made that note? 10 A: I think it was just to -- because it 11 showed the thought process; that's all. 12 Q: Pardon me? 13 A: It just showed the thought process. 14 I think that's all I meant by it. 15 Q: The thought process of the officers? 16 A: Yeah. 17 Q: And then at the bottom: 18 "When produced and because it had the 19 OPP flash on it they showed it to an 20 OPP inspector who acknowledged the 21 efforts but felt the stick arrow should 22 be -- stick arrow should be dropped. 23 They had the arrow removed, purchased 24 the mugs, and distributed them to MNR 25 staff as a gesture and thanking for
1351 them help and assistance. 2 They indicate there was no intent to 3 insult anyone, nor was it meant as a 4 political or racist statement. [blank] 5 indicated he was very sensitive to 6 First Nations issues having been 7 transferred from Northern Ontario. 8 In the case of Constable [blank] he is 9 an ethnic minority himself; understands 10 the sensitivity and he indicates there 11 is no -- was no intention of causing 12 anyone unnecessary grief." 13 And beside this paragraph the line: 14 "[blank] indicated he was very 15 sensitive to First Nations issues, 16 having been transferred from Northern 17 Ontario." 18 There's a note: 19 "So what?" 20 And is that your note? 21 A: That is. 22 Q: And the next line: 23 "In the case of Constable [blank], he's 24 an ethnic minority himself, understands 25 the sensitivity and indicates there was
1361 no intention of causing anyone 2 unnecessary grief." 3 And there's a note: 4 "Sensitivity lacking." 5 And was that your note? 6 A: That was. 7 Q: And what do -- what were you 8 indicating when you made those notes? 9 A: Just I think exactly what they say, 10 is my -- I concluded that sensitivity was lacking and 11 that the fact that on the previous lines that he was 12 sensitive to First Nation issues, having transferred from 13 Northern Ontario 14 I just didn't make the connection. 15 Q: Didn't make the -- 16 A: I did not make the connection that... 17 Q: Okay. And then on page 14, and this 18 is under "findings" and it's with respect to -- I should 19 have made that clear. 20 All of these notes are really under the 21 coffee mugs section, Commissioner, that starts at page 22 12. At page 14, again, under the -- in the -- with 23 respect to the mugs, there's a reference under findings, 24 second paragraph: 25 "It's necessary to look at the intent.
1371 The two (2) officers [blank and blank] 2 were professional in their actions in 3 producing and distributing the coffee 4 mugs. Historically in the OPP as well 5 as many other police services there had 6 been a tradition to produce a memento 7 of the event. Shirts, mugs, plaques 8 and photographs are only a few of the 9 forms of mementos that have been 10 distributed as a result of major 11 events." 12 And there's some handwriting. 13 "There is no requirement to look at 14 intent." 15 And is that in your handwriting? 16 A: That is my handwriting. 17 Q: And it was your view at the time that 18 there was no requirement to look at intent? 19 A: That's correct. 20 Q: That one looks simply at -- at the 21 actions? 22 A: At the action. 23 Q: And then at page 15, this is under 24 the T-shirts part of the investigation, there's not a 25 handwriting, but just a scribble behind the last --
1381 beside the last -- first two (2) lines in the last 2 paragraph. 3 Do you recall if the -- that note and on 4 the next -- the note on the next page, page 16 -- not a 5 note, but the lines were yours, Commissioner? 6 A: I'm assuming they are, but I don't 7 know exactly what they mean. 8 Q: Okay. So on page 16, where it -- the 9 second full paragraph: 10 "[Blank] was shown two (2) designs, one 11 (1) with an arrow, one (1) with a 12 feather. He stated that the one (1) 13 with the arrow was offensive, but he 14 was not personally offended by the 15 feather." 16 And you've circled that, but you don't 17 know today what that means? 18 A: Sorry, it's circled at? 19 Q: Page 16. I'm on the next page, I 20 think; one page ahead of you. 21 A: I'm -- 16? 22 Q: Hmm hmm. 23 A: I'm on 16, but I don't have anything 24 that's circled. 25 Q: Oh.
1391 (BRIEF PAUSE) 2 3 Q: Sorry. No, I didn't -- My Friends 4 asked if I circled it and I didn't. 5 COMMISSIONER SIDNEY LINDEN: Perhaps we 6 should ask what you meant by it. 7 MR. DERRY MILLAR: Well, it happens from 8 time to time. 9 10 CONTINUED BY MR. DERRY MILLAR: 11 Q: Page 17. There's a line under the 12 heading "Findings", there's some handwriting by the last 13 paragraph on that page. 14 "I find that although there were people 15 offended by the T-shirts -- [by the 16 shirts, excuse me] care and 17 professionalism was used to attempt to 18 ensure that people were not offended by 19 the shirts and the officers' sole 20 purpose was to supply a memento. 21 Unfortunately, the sensitivity of the 22 situation did not allow for this 23 interpretation." 24 And there's some handwriting, "what is the 25 conclusion?".
1401 Is that your handwriting? 2 A: That is correct. 3 Q: And what did that? 4 A: I can only assume I was looking for a 5 more fulsome conclusion. 6 Q: And did you see a copy of the T-shirt 7 or a copy of the mug, back in 1996? 8 A: I've seen what -- a copy of what it 9 looks like. 10 Q: And... 11 12 (BRIEF PAUSE) 13 14 Q: If you could just put on the screen a 15 copy of Exhibit P-4 -- just bear with me for a moment, 16 Commissioner. It's a copy of Exhibit P-458, it's got a 17 wrong number. And is this a copy of the T-shirt that 18 you've -- you've seen? 19 A: That's correct. 20 Q: And so it's the T-shirt with the OPP 21 shoulder flash Ipperwash ERT on the left side, as you 22 look at it, and TRU on the right side '95 and with the 23 white feather lying down? 24 A: That's correct. 25 Q: And when did you see this T-shirt,
1411 Exhibit P-- 2 A: I think it was actually part of the - 3 - the investigation. I'd see the, not the shirt itself 4 but the actual picture of it. 5 Q: During the investigation? 6 A: I assume when I read this. At some 7 point I recall seeing them. 8 Q: Seeing them. And what was your 9 reaction to seeing this T-shirt, the logo on this T- 10 shirt? 11 A: I found it offensive. 12 Q: And why was that, Commissioner? 13 A: Well, the memento itself -- the 14 mementos of the death of somebody is, I think, highly 15 inappropriate. Second, with the feather on its side, to 16 me was insulting. 17 Q: And why was it insulting to you? 18 A: Because it signalled to me -- my 19 normal way of seeing the feather would be standing 20 upright, so it signalled to me the death. 21 Q: Pardon me? 22 A: It signalled to me defeat or the 23 death. 24 Q: Death. And at the time that you saw 25 the T-shirt, did you also see -- this is a depiction
1421 again, P-458, it's part of it, it's a mug. And we 2 understand there was a mug. The bugs (sic) at the top of 3 this isn't very -- well, one set of mugs had the crest 4 and then some other mugs had a crest with an arrow 5 through it. And did you see this photograph back -- 6 A: I saw the depictions. 7 Q: And what was your reaction to either 8 -- either the mug with either of the -- the crests on it? 9 A: Just -- in a general sense I just 10 felt there was -- it was highly inappropriate to do any 11 memento to begin with. And secondly, I found it 12 offensive with the arrow behind the OPP crest. 13 Q: And the -- perhaps that would be an 14 appropriate time to stop for lunch? 15 COMMISSIONER SIDNEY LINDEN: Sounds good. 16 Sounds like a good idea. We'll break for lunch now. 17 THE REGISTRAR: This Inquiry stands 18 adjourned until 1:00 p.m. 19 20 --- Upon recessing at 12:07 p.m. 21 --- Upon resuming at 1:08 p.m. 22 23 THE REGISTRAR: This Inquiry is now 24 resumed, please be seated. 25 MR. DERRY MILLAR: Good afternoon,
1431 Commissioner. 2 Good afternoon, Commissioner Boniface. 3 COMMISSIONER SIDNEY LINDEN: Good 4 afternoon. 5 6 CONTINUED BY MR. DERRY MILLAR: 7 Q: The -- if I could take you back for 8 a moment to the report that we were looking at just 9 before lunch, Tab 17 of Exhibit 1051. And the 10 investigator found that the -- with respect to the arrow 11 on the door, that it was inappropriate, that the beer can 12 was inappropriate, that the officers acted properly 13 regarding the mugs but -- and the 14 T-shirts, although the sensitivity of the situation did 15 not allow for the memento. 16 He recommended non-disciplinary 17 discussions re beer can and arrow on the door, 18 recommended cross cultural training on Aboriginal issues 19 and consideration of the merits of mementos in the future 20 and guidelines re same, and the greater understanding and 21 education on the First Nations issues. 22 And as I understand it, the -- Inspector 23 Parkin recommended non-disciplinary discussions for four 24 (4) officers as set out in the Investigative Report. 25 Did you have anything to do with this --
1441 the penalties that were ultimately assessed? 2 A: Not -- not to my recollection, no. 3 Q: And do you know today what the 4 penalties were that were assessed? 5 A: My -- having reviewed the file, 6 informal discipline was offered, falling -- sorry, 7 failing which, the matter would proceed to a formal 8 hearing. The informal discipline was accepted and 9 administered, and it was an admonishment. 10 Q: And if we could go to Tab 93 of 11 Exhibit P-1052, there's a record of informal discipline 12 and it relates to the beer can. And that provides for a 13 -- that the complaint was sustained and that the 14 Constable be offered an admonishment. 15 And it's your understanding that was 16 accepted? 17 A: Yes. 18 Q: And then at 94 there's a -- a record 19 of -- with respect to the Sergeant who was a supervisor, 20 and that's with respect to the beer can. And again, it 21 was recommended that he be offered an admonishment as 22 part of the informal discipline. If you look at Tab 94. 23 A: That's correct. 24 Q: And that's your understanding he 25 accepted that?
1451 A: Yes. 2 Q: And then at Tab 110 -- 3 A: I'm sorry, 1...? 4 Q: 110. Actually if you go -- could I 5 ask you to turn back. At Tab 95, the -- and it's 6 difficult, if not impossible to tell, but at Tab 95 7 there's another -- it's a record of informal discipline 8 and it's again an admonishment. 9 And it's hard to decipher what -- what's 10 being referred to here, whether it's the T-shirts or the 11 mugs or the arrow, but do you know what this Tab 95 12 refers to? 13 A: No. 14 Q: And again at 96, it's a record again 15 of the informal discipline, and which appears to have 16 been accepted. 17 And at 97 there's a letter dated April 18 18th, 1996 with respect to the arrow, the bull's eye, 19 where the admonishment is recommended by the Bureau of 20 Professional Standards. 21 And it's your understanding, with respect 22 to the arrow and the bull's eye, that's what did happen? 23 A: That's correct. 24 Q: And then at Tab 99 the -- this refers 25 to the Regional Command staff:
1461 "In a constructive atmosphere to ensure 2 they understand the error of their 3 judgment and prevent any re- 4 occurrence." 5 Do you see that? 6 A: Yes. 7 Q: And that related to the -- not the 8 rank and file but their senior officers? 9 A: That's correct. 10 Q: And I note at the bottom the -- of 11 this document signed by -- signed by Mr. -- sorry, then 12 Superintendent Parkin, that: 13 "The new Regional Commander has been 14 given a copy of the report. Training 15 Branch has been provided with a copy. 16 A: "Operational Policy and Planning." 17 Q: "...Policy and Planning have been 18 given a copy. The Commissioner and 19 District Commissioner are going to be 20 given a condensed synopsis for their 21 info. Gwen [I take it] is going to 22 formulate a debriefing session in the 23 region. Please hold for now." 24 And... 25 MR. MARK SANDLER: Perhaps I can assist
1471 My Friend because the difficulty is we're dealing with 2 redacted documents. 3 This document, I can advise My Friend and 4 I -- I believe the Commissioner would know this as well 5 from the review of the unredacted file. Tab 99 is the 6 recommendation from Superintendent Parkin, not in 7 relation to the senior officers, this is the 8 recommendation for non-disciplinary discussions in 9 relation to the four (4) officers involved in the suction 10 cup and involved in the beer can. 11 This recommendation for non-disciplinary 12 action was not accepted, and as a result, informal 13 discipline was imposed upon those four (4) officers. 14 MR. DERRY MILLAR: I'm obliged to My 15 Friend. My -- we do have the unredacted copies, 16 Commissioner. Ms. Vella has been the keeper of those 17 unredacted copies. And because of the nature of what 18 we're doing here in public I'm not -- I don't want to get 19 mixed up with the unredacted copies. 20 21 CONTINUED BY MR. DERRY MILLAR: 22 Q: So part of what the OPP was going to 23 do, at least from this memo, was disseminate the report 24 with respect to these -- this activity, to other parts of 25 the OPP --
1481 A: Yes. 2 Q: -- so that other action could be 3 taken as recommended in the report? 4 A: That's correct. 5 Q: And then the -- at Tab 100 there's a 6 -- a memorandum with respect to the investigation being 7 started. And at Tab 101 is a letter dated April 8 26th, 1996 with respect to the officers being -- 9 accepting their admonishment and having been admonished. 10 11 (BRIEF PAUSE) 12 13 Q: Then at Tab 105 there's a letter 14 dated November 21st, 1996. It's from Provincial Command 15 Operations and it deals with an interview of four (4) -- 16 four (4) officers including Inspector Carson and with 17 respect to the issue of memorabilia. 18 Did you play any role in arranging or -- 19 or did you participate in this meeting? 20 A: I did not participate but I knew that 21 he went to the meeting because I was the Regional 22 Commander at the time. 23 Q: And this was a meeting to discuss 24 with the officers the issue of the production and 25 distribution of memorabilia, as is noted in the letter?
1491 A: Correct. 2 Q: And then at Tab 110 there's a 3 recommendation with respect to the issue of the 4 supervisor and in dealing with the beer can and the -- 5 with respect to the supervisor the recommendation was 6 admonishment? 7 A: That's correct. 8 Q: And do you recall if that was 9 accepted? 10 A: That's my understanding. 11 Q: And then 111 is actually the beer can 12 assembler, as I understand it? Yes. 13 Now, did you have a view at the time as to 14 the appropriateness, or not, of the actions taken as a 15 result of the T-shirts and mugs and the -- 16 A: Sorry, could you repeat that? 17 Q: Did you have a view or do you have a 18 view today? You've expressed your view about the T- 19 shirts and the mugs, that they were inappropriate. 20 And did you have that view back in 1996? 21 A: Yes. I think my comments reflect 22 that. 23 Q: And did you discuss -- do you recall 24 discussing this issue with the -- with then Commissioner 25 O'Grady?
1501 A: I don't recall having a discussion 2 but I would be surprised at some point if I didn't. 3 Q: And we'll get to it with Commissioner 4 O'Grady but there were -- if I could ask you to turn to 5 Tab 10 of the large book. And the same letter is found 6 in Exhibit P-1052 but I think I'd rather use this 7 particular document. 8 This is a -- a letter from D.S. Nagel, 9 Deputy Commissioner, dated December 17th, 1996. And it's 10 a -- a direction to Regional Commanders, Bureau 11 Commanders and Detachment Commanders, indicating that no 12 OPP image shall be created or released without the 13 written authorization of the respective regional or 14 bureau commander, unless authorized by the Commissioner. 15 And were you aware of this letter in 16 December of 1996? 17 A: Yes. 18 Q: And then attached to the next tab, at 19 Tab 11, is a copy of the Police Order that deals, again, 20 with the insignia and puts into effect the policy set out 21 in the December 17th, 1996 letter? 22 A: That's correct. 23 MR. DERRY MILLAR: And perhaps I could 24 ask that the letter dated December 17th, 1996 be the next 25 exhibit?
1511 THE REGISTRAR: P-1723, Your Honour. 2 3 --- EXHIBIT NO. P-1723: Memo from D.S. Nagel, Deputy 4 Commissioner, to Regional, 5 Bureau and Detachment 6 Commanders re. Use of OPP 7 insignia and images, December 8 17, 1996. 9 10 MR. DERRY MILLAR: And the document at 11 Tab 11 be P-1724? 12 13 --- EXHIBIT NO. P-1724: OPP Orders, 6.13.4: Insignia, 14 Release, pages 10 and 11 15 (December 2003 revision). 16 17 18 CONTINUED BY MR. DERRY MILLAR: 19 Q: And is that still the policy of the 20 Ontario Provincial Police? 21 A: It is. 22 Q: And what, if anything, has been done 23 with respect to the recommendation in the -- the report 24 that guidelines be put on the creation of -- guidelines 25 be developed for the creation of memorabilia?
1521 A: It's contained in the policy that 2 they can't use it without permission of the Regional or 3 Bureau Commander. 4 Q: So that the -- no -- no OPP insignia 5 can be used without the Regional or Bureau Commander's 6 approval? 7 A: Correct. 8 Q: And then uses that are permitted are 9 set out on page 2. 10 "Souvenirs, community and charity 11 activities, promotion of Ontario and 12 the OPP, or community orientated 13 recreational and social clubs." 14 And the -- what about -- I take it that 15 memorabilia or T-shirts of a -- of a -- of an incident 16 are still -- are they still being created within the OPP, 17 to your knowledge; do you know? 18 19 A: No. 20 Q: They're not? 21 A: I -- I don't -- in what way do you 22 mean? 23 Q: Well these T-shirts were created as a 24 result, or the T-shirt that we've looked at, we'll get to 25 another one in a moment, were created after the events at
1531 Ipperwash Provincial Park. 2 A: I -- I've had nothing that would 3 indicate they are. 4 Q: So that -- is it -- is it your view 5 that such memorabilia, with or without the OPP crest on 6 it, by OPP officers, as a result of an event, that that's 7 an appropriate thing to do? 8 A: Certainly not as a result of a death. 9 Q: And the next issue I wanted to deal 10 with you -- ask you about was... 11 12 13 (BRIEF PAUSE) 14 15 Q: ...the T-shirt that's been -- this a 16 logo for a T-shirt that's been marked Exhibit P-1494. 17 And that T-shirt was disclosed in April and -- or excuse 18 me, in May. And when did you learn about the existence 19 of a T-shirt with this logo on it? 20 A: I learned about it from my counsel as 21 it became evident here. 22 Q: And when -- what was your reaction 23 when you saw this logo? 24 A: I find it highly inappropriate. 25 Q: And why do you find it highly
1541 inappropriate, Commissioner. 2 A: I think it reflects the 'we' against 3 'them,' Again, the broken arrow I find offensive. I 4 just find it very difficult. 5 Q: And what did you do, if anything, as 6 a result of learning about this -- the T-shirt with this 7 logo on it? 8 A: The investigation's ongoing. 9 Q: And did you initiate the 10 investigation? 11 A: It was initiated -- it initiated 12 after discussion with -- with my Deputy, and Professional 13 Standards has the investigation underway. 14 Q: And so the investigation, as -- as 15 we've heard, is presently underway? 16 A: That's correct. 17 Q: And I take it that, or perhaps I'm 18 wrong, but until the investigation is completed, what you 19 can or cannot do is -- is constrain? 20 A: That's correct. 21 Q: And do you have any idea when the 22 investigation may be -- may be completed? 23 A: No. I have no update. 24 Q: And although these are questions that 25 I will pose to former Commissioner O'Grady, but in
1551 addition to the order that -- that we've marked as 2 Exhibit P-1723, I understand that, as well, the Native 3 awareness training was further enhanced or was -- 4 A: That's correct. These did a review 5 of the time and -- and in attempting to help bring some 6 higher level of sensity -- sensitivity to it. And as 7 you've heard, we've expanded the number of courses over 8 time. 9 Q: And -- 10 A: Availability of courses. 11 Q: -- as well, as I understand it, part 12 of the institutional response was the creation of the 13 Commissioner Select Liaison Council on Aboriginal 14 Affairs? 15 A: That's correct. 16 Q: And we've also heard about -- of the 17 apology to Mr. Sam George and his family? 18 A: That's correct. 19 Q: And if I could take you to Tab 16 of 20 the large book in front of you, and you'll find at Tab 16 21 a copy of Exhibit P-1053, and it's a discipline file 22 relating to Constable Cossitt? 23 A: Yes. 24 Q: And what, if any, role did you play 25 in 1997 with respect to this complaint?
1561 A: I had no role in this. 2 Q: And were you at any time asked for 3 your opinion as to the appropriateness of the disposition 4 of this complaint? 5 A: Not that I recall. 6 Q: And you've reviewed this complaint 7 for the purposes of attending here? 8 A: Yes. 9 Q: And you will note that the -- on page 10 1 they're quoting from His Honour Judge Fraser's 11 decision. In reasons for judgment, page 168 lines 17 to 12 24, His Honour states: 13 "And at this point perhaps I will 14 comment on the testimony of Constable 15 Cossitt. The Crown called his 16 testimony amusing, which is one (1) 17 word; I might choose others. Rather 18 than scrutinize Constable Cossitt's 19 testimony for any grains of truth that 20 might fall out, I have dismissed it as 21 being clearly fabricated and 22 impossible." 23 And with respect to this complaint, can 24 you tell, was this an internal complaint initiated 25 internally?
1571 A: This -- by reading the file, my sense 2 is that this went directly to Professional Standards, was 3 reviewed by a lawyer in Professional Standards and found 4 to be unsubstantiated, in terms of no further action. 5 Q: And if I could take you to the last 6 page, second last page. And this is a computer printout? 7 A: Correct. 8 Q: And can you -- can you tell us what 9 this document is? 10 A: I think it's an intake file and it 11 contains the officer's info and then the allegation, it 12 indicates unsubstantiated, and then a summary of -- of 13 it. 14 Q: And I note that the summary says, in 15 the third paragraph: 16 "The judge made a comment that not -- 17 that did not state any specific concern 18 about Cossitt's testimony." 19 And the -- it then goes on and -- and 20 makes the finding that -- that he did. But you would 21 agree with me that Judge Fraser did make specific 22 comments about Constable Cossitt's testimony? 23 A: Yes. 24 Q: And the -- in fact, he called it 25 "clearly fabricated and impossible", among other things,
1581 which frankly is a specific comment? 2 A: Yes. 3 Q: But the -- do you have a view on this 4 matter or -- today with respect to the discipline? 5 A: I think this matter should have gone 6 to an outside agency to look at. 7 Q: And when you say "an outside agency"; 8 what do you mean by that? 9 A: Either another police service or at 10 least some discussion with a Crown attorney. 11 Q: And why do you -- and why do you say 12 that? 13 A: I think just to give it a more 14 thorough review and certainly a review with -- from some 15 perspective. I think the Crown would be helpful in terms 16 of understanding what the -- how to interpret the 17 comments in relation to an allegation. 18 Q: Okay. Now, I would ask you to turn 19 to -- excuse me for a minute. 20 21 (BRIEF PAUSE) 22 23 Q: At Tab 26 there's a copy of Exhibit 24 P-1606 which is a photocopy of a pin. The actual pin has 25 been marked P-1608.
1591 (BRIEF PAUSE) 2 3 Q: And were you aware that this pin had 4 been created, I believe, in 1997? 5 A: Yes. 6 Q: And how did you come to be aware that 7 the pin had been created? 8 A: I -- I knew it had been created 9 through the OPP Association. 10 Q: And -- but how did you personally 11 become aware of -- from the Association or -- 12 A: I believe I became aware of it from 13 Commissioner O'Grady, but I can't be sure that was the 14 first time. 15 Q: And what was the response of the OPP 16 senior command with respect to this particular pin? 17 A: Commissioner O'Grady put out a letter 18 indicating that this pin could not be worn on the OPP 19 uniform. 20 Q: And did you discuss the -- and if you 21 could turn to Tab 13 there's a copy of a document, May 22 13th, and then handwritten: 23 "1997 Memo to all members re. request 24 the pins for Acting Sergeant Ken Deane 25 be neither worn or produced."
1601 And is that the memo that you're referring 2 to? 3 A: Yes. 4 Q: And the memo itself I understand 5 cannot be located? 6 A: That's correct. 7 Q: And do you recall seeing the memo 8 back n 1997? 9 A: I am certain the memo went out. I'm 10 trying to remember when I would have seen it. But I'm 11 absolutely certain it went out. 12 MR. DERRY MILLAR: And perhaps we could 13 mark this as the next exhibit, sir? 14 THE REGISTRAR: P-1725, Your Honour. 15 16 --- EXHIBIT NO. P-1725: Memo Log record re. Request 17 pins for A/Sgt Ken Deane be 18 neither worn or produced, May 19 13, 1997. 20 21 CONTINUED BY MR. DERRY MILLAR: 22 Q: And at Tab 14 there's a copy of a -- 23 an issue note MSGCS Issue note dated August 20, 1997 and 24 see -- issues the Ken Deane Defence Fund Pin and: 25 "Wearing of the pin as part of the OPP
1611 uniform has not been authorized by the 2 Commissioner of the OPP. Any officers 3 wearing this pin could face 4 disciplinary action." 5 And it goes on to indicate under 6 "summary": 7 "The Ontario Provincial Police 8 Association is advertising on the 9 internet the sale of a Ken Deane 10 Defence Fund Pin to its Members. Pins 11 are being sold to assist in funding the 12 appeal for Ken Deane. 13 The regular OPP uniform is stipulated 14 in Part 2, Section 15.1 and 15.2 Police 15 Orders. Any deviation from this 16 uniform must be approved in advance by 17 the Commissioner." 18 And this document that was -- I understand 19 this document was issued by the office of the 20 Commissioner? 21 A: That's correct. 22 Q: And at the time in 1997 I think you 23 were still Regional Commander in Western Region? 24 A: Western Ontario, that's correct. 25 Q: And did you receive a copy of this
1621 directive? 2 A: I would expect so, yes. 3 Q: And an issue note such as this -- 4 we've heard issue notes go down to the Minister of -- the 5 Ministry of the Solicitor General, but would an issue 6 note like this be distributed among the senior 7 commanders? 8 A: It would be distributed, yes. 9 Q: And -- but the issue note -- the note 10 itself would not -- would it be distributed to rank and 11 file officers? 12 A: No, no. 13 Q: And would it be left to the 14 Commanders then to pass on the message to the rank and 15 file? 16 A: Yes. But they're -- just to go back, 17 they had already had a memo to all members. 18 Q: They had the memo. And this is -- 19 the memo was in May of '97 and so this is a reiteration 20 of the -- of the point made in May of '97? 21 A: Yes. 22 Q: Could I ask this be the next exhibit? 23 THE REGISTRAR: P-1726, Your Honour. 24 25 --- EXHIBIT NO. P-1726: MSGCS Issue Note, The Kenneth
1631 Deane Defence Fund pin, 2 August 20, 1997. 3 4 CONTINUED BY MR. DERRY MILLAR: 5 Q: Now is there an official TRU team pin 6 and -- or logo? And if I could ask you to turn to page 7 25. This is a copy of a -- of Exhibit P-1498 which was a 8 TRU team shirt that was -- the picture was taken of it 9 and the TRU team logo appears on the side of that shirt. 10 Is there an official logo? Is this the 11 official logo? 12 A: That -- that would be the official 13 logo, I believe. 14 Q: And I've been provided with another 15 one that has OPP at the top and it's in colour. Is that 16 another -- I'll show it to you. 17 A: Okay. 18 19 (BRIEF PAUSE) 20 21 Q: Excuse me for a minute, Commissioner. 22 23 (BRIEF PAUSE) 24 25 Q: I just can't put my finger on it so
1641 I'll move on, Commissioner. Now the -- were you aware of 2 a "I support Ken Deane" T-shirt? 3 A: I was aware of it, yes. 4 Q: And that T-shirt appears to -- has on 5 it a symbol, a TRU Team symbol that we've seen and a -- a 6 little symbol that we're told is the Bomb Disposal Unit 7 symbol. 8 Is the Bomb Disposal Unit symbol, it's Guy 9 Fawkes I think, it's the -- have you seen that? 10 A: I haven't had a look at it in the 11 last short while. 12 13 (BRIEF PAUSE) 14 15 Q: I'll have to -- my system's failing 16 me here today but at any rate is there an official Bomb 17 Disposal Unit insignia of the OPP? 18 A: My understanding is there is. 19 Q: There is? And it's Guy Fawkes? 20 A: I'm not sure what it is, I didn't get 21 that far. 22 Q: Okay. Now, if I could ask you to 23 pick up the first -- Volume I, Commissioner, of the 24 material. 25 And I wanted to just ask you to turn to
1651 Tab 1. It's Exhibit P-1051. And this relates to the -- 2 Exhibit P-452 which was a recording, a video recording, 3 of comments made by Detective Sergeant Darryl Whitehead 4 and Provincial Constable James Dyke in July 2003. And I 5 understand you were the Complainant? 6 A: That's correct. That's how it's 7 recorded. 8 Q: And how did this matter come to your 9 attention? 10 A: This matter came to our attention 11 through an FOI request, Freedom of Information Request, 12 that came into the organization with respect to audio, 13 video, and such like around this incident and in the 14 searches for that this tape was found. 15 Q: And we understand from Constable 16 Richardson, I mean Sergeant Richardson, Trevor Richardson 17 testified that he and Mark Dew were listening to the -- 18 this recording for the purposes of the Freedom of 19 Information Request and had reported the comments to -- 20 up the chain of command and -- 21 A: That's correct. 22 Q: -- that was Constable -- Sergeant 23 Richardson's evidence. And is that your understanding? 24 25 A: I didn't realize it was them who was
1661 involved in it but it came to my attention through the 2 chain of command. 3 Q: And then you initiated the complaint? 4 A: I did. 5 Q: And the -- as I understand it the 6 complaint was sent to Professional Standards for 7 investigation? 8 A: That's correct. 9 Q: And the -- what we're looking at now, 10 at Tab 1, is the result of the investigation by 11 Professional Standards? 12 A: That's correct. 13 Q: And they found that the conduct was 14 substantiated? 15 A: Yes. 16 Q: And they found -- at least the 17 investigator found on page 2 that Constable Whitehead was 18 very cooperative and identified the persons observed or 19 heard and at the same time he reports that Constable Dyke 20 did not acknowledge his voice on the -- on the tape? 21 A: That's correct. 22 Q: And the finding that was that they 23 were substantiated, the report I take it was submitted to 24 the Professional Standards Bureau by the investigator? 25 A: That's correct.
1671 Q: And the -- the report -- 2 investigative report does not include a recommended 3 penalty after they -- the report was produced to 4 Professional Standards, what happened with respect to the 5 report? 6 A: Professional Standards Bureau 7 Commander would bring it to a discussion with me, in this 8 case, and with recommendations and -- and proceed with 9 the recommendations. 10 Q: And at Tab 8 of Exhibit 1051, is a 11 copy of a memorandum dated August 26th, 2003. The -- and 12 the recommendation in this document is that: 13 "In determining the appropriate 14 penalty..." 15 And I'm reading from the second paragraph. 16 "...several factors have been 17 considered including the seriousness of 18 the breach, mitigated by your positive 19 employment history and, in particular, 20 your recognition of the seriousness of 21 the offence and the potential damage to 22 the wider reputation of this Force. 23 After -- also after taking into 24 considerations your immediate 25 acknowledgement of your responsibility
1681 in this matter and sincere apologies to 2 the Commissioner and the Force in 3 general the penalty position is 4 informal discipline consisting of 5 twenty-four (24) hours to be deducted 6 from your accumulated credits, 7 attendance at a four (4) day First 8 Nations awareness program to be 9 conducted by First Nations program 10 section. The cost for this program 11 will be at Force expense. Attendance 12 at this program is to be on time 13 deducted from your accumulated credits. 14 Should you wish to accept this informal 15 discipline, please indicate your 16 signature and return to my attention." 17 And at this tab, the next document is a 18 copy of the document signed by Sergeant Whitehead on 19 August the 1st, 2003. 20 Do you see that? 21 A: Yes, that's correct. 22 Q: And the penalty was discussed with 23 you? 24 A: Yes, it was. 25 Q: And why did you think that this was
1691 an appropriate penalty? 2 A: Going back to the penalty, the 3 factors that were included, the seriousness of the 4 breach, mitigated by his employment history, his apology, 5 his clear remorse. The second piece was that the 6 informal discipline of twenty-four (24) hours would be 7 deducted and, in fact, he would submit an additional four 8 (4) days or thirty-two (32) hours out of his bank for the 9 purpose of attending the course at his own -- on his own 10 time. 11 And from a strategy perspective, because 12 of the long delay in this coming to our attention, I was 13 of the view that it was better to get a penalty of this 14 sort and the commitment of First Nation awareness 15 training. Given the time delay I was concerned I could 16 not get any more if I went to a trial if, in fact, I was 17 successful at the Police Act here. 18 Q: And so because of those concerns, you 19 accepted this penalty? 20 A: Yes. 21 Q: And, in fact, the -- the penalty is 22 the four (4) days of attendance at a First Nations 23 awareness program would normally be at -- as part of 24 one's duties, I take it? 25 A: That's right.
1701 Q: And so in this case, Constable 2 Whitehead was going to take it -- I mean, Sergeant 3 Whitehead, was going to take the four (4) days awareness 4 program out of his time, so he would lose time? 5 A: That's correct. 6 Q: And addition to the twenty-four (24) 7 hours? 8 A: That's correct. It's a penalty of -- 9 about -- I'm rounding up, about twenty-eight hundred 10 dollars ($2,800) in total of submitted time. 11 Q: And as I understand it, in 2003 when 12 this matter was dealt with, the -- this investigation was 13 carried out by a Inspector? 14 15 A: Detective Inspector. 16 Q: And normally the investigation would 17 be carried out by a Sergeant or a -- 18 A: That's correct. 19 Q: Not by an inspector? 20 A: No. 21 Q: And in 2003, it's my understanding 22 that once the report comes in today, it would be 23 submitted to the Director of Professional Standards and 24 would be reviewed by three (3) other inspectors who are 25 part of the Professional Standards Bureau?
1711 A: Yes. There would be -- it would be 2 reviewed. They have a team review that would take place 3 now and it would be two (2) or three (3) inspectors 4 depending and a lawyer who is a civilian and the Director 5 of Professional Standards. 6 Q: And the -- and in fact Sergeant 7 Whitehead we've noted accepted the penalty and attended 8 the First Nations Awareness Program? 9 A: That's correct. 10 Q: That's correct. And -- and now what 11 happened with Mr. Dyke? 12 A: My recollection with Constable Dyke 13 was that on the date he was interviewed by the Detective 14 Inspector, was the last day that he worked for us. 15 Q: Okay. 16 A: He was on contract. He had retired 17 from the OPP and had been working on a contract, I think 18 was twenty-four (24) hours a week. So his -- his work 19 came to an end. 20 Q: And so the day he was interviewed, 21 his contract was -- 22 A: He -- he never came back to work. 23 Q: He never came back. And actually if 24 you turn to Tab 6 before we leave this. The apology from 25 Detective Sergeant Whitehead appears as part of that Tab.
1721 Is that not correct, if you look at the last page. 2 A: That's correct. 3 Q: And did you receive a copy of this, 4 Commissioner, or were you advised that apology had been-- 5 A: I believe I was advised and I read in 6 preparation obviously. 7 Q: Now... 8 9 (BRIEF PAUSE) 10 11 Q: And the decision that Constable, then 12 Constable Dyke would not work any further, was that his 13 choice or the OPP's choice? 14 A: No, that was our choice. 15 Q: And -- now I understand that as well 16 during the course of getting ready for the Inquiry after 17 the Inquiry had been called, that certain communications 18 were identified by the -- internally in the OPP that were 19 of concern? 20 A: Yes. 21 Q: And those communications were 22 identified by whom? 23 A: By the team that was preparing for 24 the Inquiry. 25 Q: And when the team identified the
1731 communications that were of concern, what did they do? 2 A: They were sent to Professional 3 Standards for investigation. 4 Q: And Professional Standards 5 investigated the -- 6 A: Yes. 7 Q: And I take it that this happened some 8 time after November 2003, after the Inquiry was called? 9 A: Yes, I believe so, yes. 10 Q: And generally and I'm going to look 11 at some of them in a moment, but generally what was the 12 result of the work of Professional Standards? 13 A: Professional Standards went -- 14 interviewed the people indicated on the -- on the tapes 15 or the audio clips, brought recommendations back in terms 16 of their findings and then discipline was dealt with from 17 there. 18 Q: And the discipline was informal 19 discipline? 20 A: Yes. 21 Q: Or admonishment or discussion? 22 A: Yes. 23 Q: Did any of them -- none of them went 24 to a Police Act hearing? 25 A: No.
1741 Q: And you should find on the inside of 2 one (1) of your -- one (1) of the -- oh here. There's a 3 chart, summary of audio clips that are part of the 4 evidence, and they refer to the -- a number of the clips 5 that we've heard and people have been -- that have been 6 discussed at the Inquiry. 7 And the -- I note that a number of the 8 officers involved, for example Inspector Gordon, Mr. -- 9 Sergeant Korosec, had retired by the time this came to 10 light? 11 A: Yes. 12 Q: And that -- so that there was nothing 13 that the organization could do with respect to retired 14 members? 15 A: That's correct. 16 Q: And the -- just looking at this 17 document -- and perhaps we could mark this as an exhibit, 18 it's... 19 THE REGISTRAR: P-1727, Your Honour. 20 21 --- EXHIBIT NO. P-1727: Summary of Audio Clips that 22 are part of the Evidence. 23 24 CONTINUED BY MR. DERRY MILLAR: 25 Q: For example, Sergeant Cousineau was
1751 the subject of a non-disciplinary discussion? 2 A: That's correct. 3 Q: The second item, September 5th, a 4 civilian member, Ray, was the subject of a non- 5 disciplinary discussion and also received a letter of 6 reprim -- no, there were two (2). There was -- 7 MR. MARK SANDLER: Ray -- 8 MR. DERRY MILLAR: Ray was the member and 9 Al was a civilian member -- 10 THE WITNESS: That's right. 11 12 CONTINUED BY MR. DERRY MILLAR: 13 Q: And Ray, the member, received a non- 14 disciplinary discussion and the civilian member was given 15 a reprimand? 16 A: That's correct. 17 Q: A letter of reprimand. 18 MR. JULIAN FALCONER: Sorry, Mr. 19 Commissioner, I apologize for interrupting My Friend, 20 it's at the stage of entering this as an exhibit. 21 Obviously, the first time we saw this was 22 today. And I simply want to clarify for the record, 23 given the number of time discipline issues have arisen by 24 way of motion and otherwise, if there could be some 25 context on the record put for how it is that this --
1761 these dispositions emerged at this stage? 2 In other words, it's entirely possible the 3 Witness has testified in this proceeding that were the 4 subject of disposition. I have no idea since we just got 5 this document today, and we had no idea that this was 6 going on. 7 And I'm just wondering if some context can 8 be put to this document before it's simply tendered? 9 MR. DERRY MILLAR: Just -- I sent an e- 10 mail back in April of 2006 to My Friends. 11 MR. JULIAN FALCONER: So this is the 12 same? 13 MR. DERRY MILLAR: It's -- yeah, it's the 14 same -- 15 MR. JULIAN FALCONER: All right. Fair 16 enough. 17 MR. DERRY MILLAR: -- to my 18 understanding. 19 MR. JULIAN FALCONER: If -- if this 20 document simply reflects what we received before in a 21 different format, then that's fair enough, I -- I just 22 didn't recognize it. So -- 23 MR. DERRY MILLAR: Yeah. 24 MR. JULIAN FALCONER: -- if that's what 25 My Friend is telling me, that's -- that's --
1771 MR. DERRY MILLAR: That's my 2 understanding. 3 MR. JULIAN FALCONER: Okay. Thank you. 4 Is that correct? Could Mr. Sandler confirm that? 5 MR. DERRY MILLAR: The only thing that 6 was added were three (3) that Mr. Falconer identified 7 that hadn't been identified, was the Cousineau and Wells 8 matter, the Huntley-Briggar matter and the -- although 9 Huntley -- and the Ray and Al, although Ray and Al 10 appeared on the e-mail that I sent to My Friends -- 11 MR. JULIAN FALCONER: Thank you. 12 13 (BRIEF PAUSE) 14 15 CONTINUED BY MR. DERRY MILLAR: 16 Q: Now, why did you accept as a penalty 17 for those that were identified as a -- for disciplinary 18 purposes, and some, I see in the chart, were not, why did 19 you accept, with respect to the officers, a non- 20 disciplinary discussion? 21 A: Well, it would be based on, first, 22 the comments. Or the dilemma with this -- the audio 23 clips, it's the same dilemma we had with the others, is 24 the audio clips are such a long time frame between the 25 time of the occurrence 'til the audio clips came to our
1781 attention, and we, in fact, had these in our possession 2 all that time. 3 So the discussion is based on -- or the 4 discipline response is based in part on the -- sorry. 5 The response is based on the comments as well as weighing 6 all of the factors around this issue. 7 Q: And when you -- I understand the -- 8 the delay and the length of time between when the 9 comments were made and when they were discovered in 2003 10 or -- 11 A: 4. 12 Q: -- 2004, but what other factors did 13 you consider? 14 A: Well, what -- 15 Q: When you say other factors? 16 A: Well, it's -- it would be on what the 17 content of it was, what the content of the interview was, 18 what the response was of the interview in terms of 19 mitigating factors. So all of those would be 20 individually. 21 22 (BRIEF PAUSE) 23 24 Q: And I understand, as well, that the 25 certain conversations were identified by the Inquiry, and
1791 inquiries made, other conversations were identified by 2 the parties, particularly Mr. Falconer, with respect to 3 some of the same conversations that -- that the Inquiry 4 had asked about, and some additional conversations that 5 were disclosed. 6 But I understand that the OPP, in 7 addition, had found some other conversations? 8 A: That's correct. 9 Q: And as a result, those conversations 10 -- of those conversations being brought to your -- the 11 attention of the Professional Standard branch, letters of 12 reprimand were issued to four (4) civilian members? 13 A: That's correct. 14 Q: And four (4) officers received non- 15 disciplinary discussions? 16 A: That's correct. 17 Q: And one officer received informal 18 discipline of eight (8) hours? 19 A: That's correct. 20 Q: And were the considerations with 21 respect to those nine (9) people the same as you told us 22 with respect to the others? 23 A: That's correct. 24 Q: Now, I'd like to turn to a different 25 subject for a moment, and that is the -- I would ask you
1801 to turn to Tab 17 of the large book. 2 3 (BRIEF PAUSE) 4 5 Q: And this is Inquiry document P-626. 6 And it's a copy of Inquiry document 1005368. And it's 7 the director's report with respect to Cecil Bernard 8 George. And I note that in the last page, Peter Tinsley, 9 the then-director, notes that: 10 "Despite these obstacles, and on a more 11 positive note, the SIU's re- 12 investigation of this matter was 13 greatly assisted by the efforts and co- 14 operation of then-Chief Superintendent 15 Gwen Boniface, Detective Inspector R.J. 16 Goodall, and Detective Constable Mark 17 Dew of the OPP. The First Nations 18 witnesses who were re-interviewed in 19 this process are also recognized for 20 their patience and co-operation." 21 Back in 1999, did you receive a copy of 22 this report? 23 A: No. 24 Q: And at the time, it's my 25 understanding that the -- you as the Commissioner of the
1811 OPP, by statute, did not get the report? 2 A: No. 3 Q: And that these matters -- today, 4 that's different? 5 A: No. 6 Q: It's not? You still don't get the 7 report? 8 A: No. 9 Q: And the -- so that the concerns 10 expressed by the SIU, as matters stand, unless they get 11 to you some other way, don't come from as a result of the 12 report? 13 A: That's correct. They -- they send a 14 letter which outlines their decisions. 15 Q: And that letter that is at Tab 18 -- 16 A: That's correct. 17 Q: -- it's Exhibit P-1535? And that's 18 Inquiry Document 1005305. And you did receive this 19 letter? 20 A: I did. 21 Q: And among other things, this letter 22 talks about the -- at the bottom of the first page: 23 "Rather my decision is based on a lack 24 of credible and reliable evidence going 25 to the identity of any individual
1821 officer or officers, and a similar lack 2 of evidence to establish that the 3 injuries, in fact, and in all of the 4 circumstances, resulted from the use of 5 excessive force by the involved 6 officers." 7 And at the top of the next page: 8 "I believe it to be necessary and only 9 fair to inform you that in reaching the 10 above noted decision, I was struck, in 11 review of all the available evidence, 12 by the discontinuity of the statements 13 of the OPP officers who were 14 interviewed as to the level of force 15 applied to Mr. George and the injuries 16 that he was clinically observed to have 17 suffered. I concluded that the level 18 of force actually applied against Cecil 19 Bernard George by various OPP officers 20 during the confrontation which caused 21 his injuries, bore little relation to 22 the picture that emerged from the 23 officers' account of level of force 24 used against Mr. George." 25 And then he goes on in the next paragraph:
1831 "I would like to take this opportunity 2 to draw to your attention to one (1) 3 other concern resulting from this 4 investigation, a major difficulty 5 throughout the investigation, and as 6 noted above, one (1) of the two (2) 7 pisotal -- pivotal factors in the 8 resulting decision was identification, 9 or rather the apparent impossibility of 10 identifying individual officers during 11 the course of the Ipperwash 12 confrontation. Amongst other 13 environmental factors, both Natives and 14 police officers alike stated they 15 cannot identify individual Crowd 16 Management Unit members because of the 17 identity of their uniforms, which 18 apparently bore no visible 19 individualization marks, and the fact 20 that helmets and visors worn made 21 facial recognition impossible. 22 I submit to you that as fundamental 23 principle in our society that public or 24 police officers be accountable for 25 actions taken in the performance of
1841 their duties." 2 And it goes on to talk about identifying 3 marks on the CMU uniforms. And as a result, I don't know 4 exactly when, but was it as a result of this letter that 5 the -- the -- the uniforms were changed to put the names 6 of the officers on them? 7 A: I'm not sure if it was directly as a 8 result of this or as well as the Emergency Preparedness 9 Report, but the names went on the uniform and then became 10 part of, I believe, the 2000 Adequacy Standards as well. 11 So it's -- the numbers are on the helmet 12 and the name is on the uniform. 13 Q: And so that officers are now -- this 14 -- I had forgotten actually, the -- the same issue was 15 raised as part of the Emergency Preparedness Report. 16 A: I believe so. 17 Q: And there was a recommendation in 18 there -- 19 A: Yeah. 20 Q: -- as well. Now what, if anything, 21 did you do as a result of receiving this letter? 22 A: There was no further action to take 23 as a result of this letter. 24 Q: And why not? 25 A: Well the -- as you know, the
1851 investigation had actually gone twice. This was the 2 second investigation that had taken place; it started 3 with my predecessor and then the second one. 4 And the only route that I would have to go 5 after two (2) investigations would be a third 6 investigation on the Police Services Act. And it was my 7 view that there would be nothing more to be gained out of 8 this, given the issues, the identity issue and the 9 conclusion that Mr. Tinsley made around excessive force. 10 Q: And as a result of this letter, did 11 you have a discussion with either Constable Bittner or 12 Constable Cossitt? 13 A: No. 14 Q: And at or around this time, at some 15 point in or around 1999, did you have a meeting and a 16 discussion with Constable Bittner and Constable Cossitt? 17 A: Yes. I was in Western Ontario and at 18 the request of the Superintendent, spoke to them. It 19 actually dealt with -- in my recollection, it dealt with, 20 and it's very clear, the issue of a civil matter we were 21 dealing with at the time on this -- on this issue, and 22 explained very briefly to them that it would be moving to 23 settlement. 24 Q: And this was an action that commenced 25 by Cecil Bernard George?
1861 A: That's correct. 2 Q: And at this -- so you spoke to them 3 about the fact that the matter was going to be settled? 4 A: Yes. 5 Q: And the -- and so why were you 6 meeting to discuss that with them? 7 A: The -- it is -- it is unusual but I 8 happened to be in the area. And the civil matters are 9 always hard to understand. I knew it would be -- at some 10 point go public. They were named parties, as I recall, 11 as was the Commissioner, and I wanted to be clear to them 12 that this matter was being settled, that they would see 13 it publicly and that they needed to understand that 14 that's the direction, as the Force, we were going. 15 Q: And I understand that there was the 16 confidentiality clause in -- 17 A: Yeah, that's my recollection. 18 Q: And so that they didn't even know 19 that the settlement? 20 A: No. 21 Q: Just the fact that there was going to 22 be a settlement? 23 A: That's correct. 24 Q: Now, I would ask that you turn to Tab 25 27 and Tab 28 of the large book, Commissioner.
1871 And at Tab 27 is a copy of P-578 which is 2 a paper we understand was prepared in 1991 by Anne 3 McChesney at the Ministry of the Solicitor General. 4 And at Tab 28 is a copy of Exhibit P-579. 5 It's a document again prepared by the Ministry of the -- 6 in this case Community Safety and Correctional Services, 7 the new name at the time of the Ministry of the Solicitor 8 General, and it was prepared some time in 1998 or 9 following. We don't have the date because of the -- 10 there's a reference to a case that was decided in 1998. 11 And had you seen either of these papers? 12 Are you familiar -- 13 A: I -- I believe at some point I've 14 seen both of these. 15 Q: And the paper that's at Tab 28, 16 Exhibit P-579, does it reflect your understanding of the 17 relationship between you as Commissioner and the Minister 18 and Deputy Minister? 19 A: That's correct. 20 Q: And I know that the Ontario 21 Provincial Police will be making recommendations and 22 submissions as part of the Part 2 process, but I was -- 23 wanted to ask you and give you the opportunity, without 24 in any way derogating from your Part 2, the fact that the 25 Ontario Provincial Police will be making submissions in
1881 Part 2, if there was either anything else you wished to 2 say, or any recommendations that you would care to make 3 at this time? 4 A: I would, if I may. 5 "I'd like to make four (4) 6 recommendations for consideration, and 7 these really relate to the future of 8 First Nations communities and their 9 First Nations police services. 10 First, that there be consideration for 11 a legislative framework for First 12 Nation police services which does not 13 exist today. 14 Secondly, within that legislative 15 framework, that they discontinue the 16 appointment of First Nation officers 17 currently by the Commissioner of the 18 OPP and transition it into appointment 19 by the First Nation Police Service or 20 Police Service Board itself. 21 And thirdly, that the Inquiry recommend 22 increased funding for First Nation 23 police services and those police 24 services who deliver service to the 25 First Nation communities, so that they
1891 can help in building community 2 capacity. 3 And finally, land grievances must be 4 addressed in this country. I would 5 like to ask the Commissioner to ensure 6 that the Federal Government, in his 7 recommendations, is called upon in a -- 8 called upon in a leadership role if 9 communities are to live in peaceful co- 10 existence. These grievances cannot and 11 will not ever be resolved by police 12 services." 13 And we will add more fulsome 14 recommendations by the OPP later. 15 Q: Thank you. Is there anything else 16 you wish to add before I finished? 17 A: Nothing else, thank you. 18 Q: Thank you, those are my questions. 19 Thank you very much, Commissioner, for coming. 20 And My Friends may have some questions. 21 Perhaps we can canvass the parties, Commissioner? And it 22 would be starting with the OPPA. 23 COMMISSIONER SIDNEY LINDEN: OPPA...? 24 MR. IAN ROLAND: Five (5) minutes. 25 COMMISSIONER SIDNEY LINDEN: Five (5)
1901 minutes. I'm sorry, who else has questions, please? Can 2 you -- 3 MR. DERRY MILLAR: The OPPA, Mr. Roland, 4 five (5) minutes. 5 COMMISSIONER SIDNEY LINDEN: Just give me 6 a minute to see who else is here. 7 MR. DERRY MILLAR: Mr. Hinnegan...? 8 COMMISSIONER SIDNEY LINDEN: Mr. 9 Hinnegan...? 10 MR. TREVOR HINNEGAN: Ten (10) minutes. 11 COMMISSIONER SIDNEY LINDEN: Ten (10) 12 minutes for Mr. Beaubien -- whoops. 13 COMMISSIONER SIDNEY LINDEN: I don't see 14 any other government. 15 Mr. Klippenstein...? 16 MR. MURRAY KLIPPENSTEIN: Forty-five (45) 17 minutes to an hour. 18 MR. DERRY MILLAR: Forty-five (45) 19 minutes to an hour for Mr. Klippenstein. 20 COMMISSIONER SIDNEY LINDEN: I'm sorry. 21 I see Ms. Clermont down there on behalf of the 22 Municipality of Lambton Shores. 23 MS. JANET CLERMONT: Ten (10) minutes. 24 MR. DERRY MILLAR: Ms. Clermont, ten (10) 25 minutes on behalf of the Municipality.
1911 COMMISSIONER SIDNEY LINDEN: Mr. 2 Rosenthal...? 3 MR. PETER ROSENTHAL: About two (2) 4 hours, Commissioner. 5 MR. DERRY MILLAR: Mr. Rosenthal, for the 6 Aazhoodena and George Family Group, two (2) -- two (2) 7 hours? 8 MR. PETER ROSENTHAL: Yes, please. 9 COMMISSIONER SIDNEY LINDEN: Mr. 10 Scullion...? 11 MR. KEVIN SCULLION: Twenty (20) to 12 thirty (30) minutes, depending on what goes on before me. 13 MR. DERRY MILLAR: Mr. Scullion, on 14 behalf of the Residents of Aazhoodena, twenty (20) to 15 thirty (30) minutes. 16 COMMISSIONER SIDNEY LINDEN: And Ms. 17 Johnson...? 18 MS. COLLEEN JOHNSON: Twenty (20) to 19 thirty (30) minutes, again depending on the questions My 20 Friends might have. 21 MR. DERRY MILLAR: Ms. Johnson, on behalf 22 of Kettle and Stony Point First Nation and Chiefs of 23 Ontario, twenty (20) to thirty (30) minutes. 24 COMMISSIONER SIDNEY LINDEN: And Mr. 25 Falconer...?
1921 MR. JULIAN FALCONER: Two (2) to three 2 (3) hours. 3 MR. DERRY MILLAR: And Mr. Falconer, on 4 behalf of Aboriginal Legal Services -- 5 COMMISSIONER SIDNEY LINDEN: I'd ask you 6 to try to tighten that up, Mr. Falconer. Will you try to 7 do that? 8 MR. JULIAN FALCONER: I'll do my best. 9 COMMISSIONER SIDNEY LINDEN: We'd like to 10 try to keep the cross roughly the same length as the 11 examination in-chief. I'd like to use that as a 12 yardstick. 13 Mr. -- Mr. Millar took roughly four and a 14 half (4 1/2) hours, so we'll see -- 15 MR. DERRY MILLAR: It adds up to five 16 point eight (5.8) hours at the low end and seven point 17 four (7.4) hours at the high end. 18 COMMISSIONER SIDNEY LINDEN: Well, I'd 19 like to finish Commissioner Boniface tomorrow. 20 MR. DERRY MILLAR: Pardon me? 21 COMMISSIONER SIDNEY LINDEN: I would like 22 Commissioner Boniface to have her testimony completed by 23 the end of tomorrow. 24 MR. DERRY MILLAR: I would hope by -- 25 before the end of tomorrow because we hope to have
1931 Commissioner O'Grady tomorrow as well. 2 COMMISSIONER SIDNEY LINDEN: Yes, so I 3 hope we get to Commissioner O'Grady. So we'll see if we 4 can tighten it up. 5 The times that are estimated are often 6 collapsed, so we'll get started. Shall we start right 7 now or take a break? 8 MR. DERRY MILLAR: Perhaps we could take 9 a short break? If I could move my stuff. 10 COMMISSIONER SIDNEY LINDEN: We'll take a 11 short break. 12 THE REGISTRAR: This Inquiry will recess. 13 14 --- Upon recessing at 2:20 p.m. 15 --- Upon resuming at 2:36 p.m. 16 17 THE REGISTRAR: This Inquiry is now 18 resumed, please be seated. 19 MR. DERRY MILLAR: I have one (1) 20 question that I neglected to ask. It's always the case. 21 COMMISSIONER SIDNEY LINDEN: Yes. 22 23 CONTINUED BY MR. DERRY MILLAR: 24 Q: But going back to Exhibit P-1051 and 25 Tab 17, the report. The recommendation of the report
1941 with respect to the mugs and T-shirts was that there be 2 no action taken. 3 What is your understanding, if any, of 4 whether or not that was acceptable? 5 A: I'm sorry, could you repeat that? 6 Q: The recommendation of Mr. Adkin was 7 that the -- with respect to the mugs and T-shirt, that T- 8 shirt that he was looking at, that there be no action 9 taken with respect to the officers. 10 A: Who were in possession of the T- 11 shirts? 12 Q: Who -- who -- 13 A: Who he identified -- 14 Q: Who identified as having -- 15 A: My understanding from making some 16 inquiries, that some of those officers were spoken to. 17 Q: In a non -- 18 A: In a non-disciplinary discussion. 19 Q: Fashion -- a non-disciplinary 20 discussion. Great. Thank you. Those are my questions. 21 COMMISSIONER SIDNEY LINDEN: Fine. 22 Mr. Roland...? 23 24 CROSS-EXAMINATION BY MR. IAN ROLAND: 25 Q: Commissioner, my name's Ian Roland,
1951 I represent the Ontario Provincial Police Association. I 2 have a couple of questions for you. 3 The first has to do with the TRU team 4 logo. You were asked by Mr. Millar if this was the 5 official logo of the OPP and you indicated it was. 6 As I understand it, though, the OPP 7 doesn't assert any copyright to the logo. That is it 8 hasn't filed with Ottawa, under the Copyright Act, any 9 proprietary right to the logo, first of all? 10 A: I -- I couldn't tell you whether 11 that's accurate or not. It was in place before I was 12 Commissioner. 13 Q: And secondly, I understand that the 14 OPP has not, to date, ever asserted a proprietary 15 interest in the logo. 16 A: You could be correct. 17 Q: And I understand the same holds true 18 with respect to the bomb disposal symbol, the Guy Fox 19 symbol. 20 A: You could be correct, I don't know. 21 I can't answer your question. 22 Q: Finally, in your recommendations, you 23 recommended that there be, as Recommendation Number 2, a 24 -- in the legislative framework, that First Nations 25 officers not be appointed by the OPP.
1961 And I assume, in the legislative framework 2 that you envisaged, there would be a police employer, 3 like Municipal Police Services Boards? 4 A: That's correct. 5 Q: And do you also envisage that the 6 legislative framework should have, as part of it, some 7 oversight body to oversee police officers, chiefs of 8 police and the police employer, like OCCOPS, the Ontario 9 Civilian Commission on Police Services does with respect 10 to municipal police services and indeed with respect to 11 the OPP apart from the -- the Commissioner? 12 A: In -- in fact, in some of the 13 agreements there is some oversight mechanism for those 14 services. So it would be my sense that you would create 15 a legislative framework that mirrors similarly to what 16 they have and as close as -- as the consultation would 17 permit or would conclude is some parallel -- 18 Q: Oversight mechanism like OCCOPS? 19 A: -- into the -- yeah. Yes. 20 Q: Yes. Thank you, those are my 21 questions. 22 COMMISSIONER SIDNEY LINDEN: Thank you, 23 Mr. Roland. 24 Mr. Hinnegan...? 25 MR. TREVOR HINNEGAN: Good afternoon,
1971 sir. 2 COMMISSIONER SIDNEY LINDEN: Good 3 afternoon, sir. 4 5 CROSS-EXAMINATION BY MR. TREVOR HINNEGAN: 6 Q: Good afternoon, Commissioner 7 Boniface. My name is Trevor Hinnegan and I'm one of the 8 lawyers for Marcel Beaubien, who was the local MPP in 9 September of 1995. 10 I just have a few questions for you. My 11 understanding is that in 1995 the OPP essentially policed 12 the rural areas of Ontario, or at least not the major 13 metropolitan centres; is that correct? 14 A: That is correct. 15 Q: And in doing so, the Detachment 16 Commanders at the various Detachments throughout small 17 rural towns such as Forest or Petrolia, say, had as part 18 of their role the responsibility to communicate with 19 local elected officials such as local mayors, MPP's, MP's 20 and local First Nations Band Chiefs; is that correct? 21 A: That would be correct. Still is. 22 Q: And for instance, to give it some 23 more context, if there was an incident of some general or 24 all around community interest in a particular rural 25 community, it would not be at all unusual for a
1981 Detachment Commander to speak to the local elected 2 officials about the particular incident? 3 A: That's correct. 4 Q: And when Deputy Commissioner Carson 5 testified here in June of last year, he described a type 6 of liaison approach by the OPP to policing, whereby the 7 OPP does its best to keep the community informed and to 8 understand any concerns that may be coming from the 9 community itself, so that the OPP can respond to those 10 concerns. 11 And he described it as a two-way feedback 12 process. And part of that two-way feedback or liaison 13 process involves communicating with local elected 14 officials as a type of conduit to the public. 15 Would -- would you agree with -- 16 A: Yes. 17 Q: -- his characterization of it? And 18 so would you also agree that this type of communication 19 is not only appropriate but often time necessary for the 20 OPP to be able to effectively manage incidents of general 21 or all round community interest? 22 A: That's correct. 23 Q: And these -- these types of 24 communications wouldn't necessarily be restricted to just 25 detachment commanders?
1991 A: No, not necessarily, although it 2 would be usual. 3 Q: They could delegate this function or 4 -- or it could even be officers senior to detachment 5 commanders? 6 A: Yes. 7 Q: And in communicating with these 8 elected officials or elected politicians the theory is 9 that the officers have a conduit to and from the public 10 that can be used at appropriate times to assure the 11 public that the OPP is well aware of the issues that are 12 going on in their particular community and so that the 13 OPP can assure the members of the community that they're 14 -- they're doing what they can to alleviate the concerns. 15 A: Yes. 16 Q: We've had some -- some evidence here, 17 I believe it was during the testimony of Don Bell that in 18 May of 1993 Chief Superintendent Coles had communications 19 with local MP Ralph Ferguson and MPP Ellen McKinnons 20 concerning the occupation of the certain lands at Camp 21 Ipperwash by First Nations. And for reference this -- 22 I'm referring to Exhibit 1643. 23 Basically all it says is Chief 24 Superintendent Coles contacted MP Ralph Ferguson 25 regarding incident.
2001 So that's -- that's basically -- and it's 2 not my concern what their communications were or whether 3 or not even they had those communications but my question 4 to you is this: If in fact some communication did take 5 place between Chief Superintendent Coles and the local MP 6 and the local MPP about the takeover of Camp Ipperwash 7 that wouldn't surprise you? 8 A: No. 9 Q: And would that be consistent with the 10 OPP's practice to have senior officers communicating with 11 local elected officials? 12 A: As I said it would normally be 13 detachment commanders but a detachment commander would be 14 a senior officer as well. 15 Q: And those particular instances 16 related to the -- the takeover of the -- the Federal Base 17 in 1993 but can I assume your answer would apply equally 18 to 1995? 19 A: Yes. 20 Q: And therefore, you wouldn't find it 21 unusual or even inappropriate if John Carson was having 22 some communication with local politicians about the 23 occupation of the Provincial Park in September of 1995? 24 A: Obviously as long as it wasn't in the 25 Command Post.
2011 Q: Yes. But on its face communication 2 itself isn't what's inappropriate? 3 A: Depending on the communication. 4 Q: Yes. And you've told the Inquiry 5 about various changes to OPP policy and procedure 6 following the Ipperwash incident. Would you agree that 7 communication between, for example, detachment commanders 8 in the -- the community where an incident might be 9 occurring with local elected officials is still 10 important? 11 A: Yes. And I think you have to keep in 12 mind that in locations in the OPP, probably a hundred 13 locations they have a Police Service Board as well so 14 there's a -- a conduit there as well. 15 Q: And I take it that you wouldn't be in 16 favour -- for example one (1) of your recommendations 17 wasn't that that type of communication be prohibited? I 18 -- I understand you take some issue about the location of 19 the communication and the timing perhaps of the 20 communication? 21 A: I think it's important when -- as 22 detachment commanders to have contacts or contacts within 23 the community including the local MPP and the MP. 24 Q: Thank you, Commissioner, those are my 25 questions.
2021 COMMISSIONER SIDNEY LINDEN: Thank you. 2 Ms. Clermont...? 3 4 (BRIEF PAUSE) 5 6 MS. JANET CLERMONT: Good afternoon, 7 Commissioner. My Friend covered my areas. Thank you. 8 COMMISSIONER SIDNEY LINDEN: Thank you, 9 Ms. Clermont. 10 Mr. Klippenstein...? Nice to see you back 11 after a little hiatus. 12 MR. MURRAY KLIPPENSTEIN: Thank you, 13 Commissioner, nice to be back. 14 15 (BRIEF PAUSE) 16 17 MR. MURRAY KLIPPENSTEIN: Thank you, 18 Commissioner. 19 20 CROSS-EXAMINATION BY MR. MURRAY KLIPPENSTEIN: 21 Q: Good afternoon, Commissioner 22 Boniface. 23 A: Good afternoon, sir. 24 Q: As -- as you're, I believe, aware, I 25 am one of the legal counsel for the Estate of Dudley
2031 George and family of Dudley George. 2 Commissioner Boniface, I noticed in your 3 testimony this morning and this afternoon, an apology 4 from the former Commissioner to Mr. George, regarding 5 some mugs and T-shirts, but I did not hear any 6 acknowledgment from you on the record to the family of 7 Dudley George that the OPP made mistakes on September 8 4th, 5th and 6th of 1995. 9 Was -- was my hearing correct on that? 10 A: I did not speak to those issues in 11 the questioning. 12 Q: Okay. 13 14 (BRIEF PAUSE) 15 16 Q: I'd like to then ask you some 17 questions related to a couple of the grounds that, 18 according to the evidence in the Inquiry that we've 19 heard, were given by the protesters in September of 1995 20 as -- as reasons for their protest. 21 And if I can summarize it, I think the -- 22 the evidence we've heard repeatedly that at least two (2) 23 of the reasons given by the protesters for the occupation 24 was first related to a Native burial ground and secondly 25 related to some kind of assertion that it's our land.
2041 A: Yes. 2 Q: Do those two (2) generally sound 3 familiar to you? 4 A: Yes, generally. 5 Q: Yes. I -- I would like to ask some 6 questions about the first of those grounds, the burial 7 ground assertion, and look at some of the information 8 about a burial ground that came out and specifically ask 9 you some thoughts from a policing perspective about 10 whether the information that has come out would have been 11 assistance -- would have been of assistance to the OPP if 12 it had been available in or about September of '95 and 13 more specifically, how it might have been of assistance 14 or -- or assisted the -- the policing operation. 15 I have given notice to your counsel and 16 provided copies of a number of the exhibits related to 17 the burial ground issue. 18 I think you may have got a package 19 something like this. And, Commissioner, I have a copy 20 for convenience -- 21 COMMISSIONER SIDNEY LINDEN: Thank you. 22 MR. MURRAY KLIPPENSTEIN: -- for you, if 23 you find it useful. 24 COMMISSIONER SIDNEY LINDEN: Thank you. 25
2051 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 2 Q: And these are essentially a number of 3 exhibits already filed with the Inquiry and basically 4 relate to three (3) or four (4) instances in which 5 information about burial grounds in Ipperwash Provincial 6 Park, and by information, I mean what would appear to be 7 evidence, existed but it was not made available or 8 available to the OPP in September 4th, 5th and 6th of 9 1995. 10 But before I ask about those specifics, 11 this is what I'm interested in, taking a step backwards, 12 generally. 13 As I understand it, one role of the OPP in 14 a -- in a situation like this or any other situation, is 15 keeping the peace. Is that -- 16 A: Yes. 17 Q: -- generally accurate? 18 A: That's correct. 19 Q: And a second role for the OPP is 20 enforcing the law; is -- 21 A: Yes. 22 Q: -- that fair? And when we talk about 23 enforcing the law, that's part of the bigger concept we 24 often use of the rule of law; is that -- is that fair? 25 A: Yes.
2061 Q: So when the OPP is enforcing the law, 2 it's part of the basic principle of the rule of law? 3 A: That's correct. 4 Q: And both of those concepts, keeping 5 the peace and enforcing the law, would apply to both non- 6 Natives and to Natives; is that -- is that fair? 7 A: Yes. 8 Q: Yeah. In other words, in a situation 9 when the OPP has a role of keeping the peace, that means 10 keeping the peace whether potential disturbances arise 11 from or amongst Native people or from or amongst non- 12 Native people? 13 A: Yes. 14 Q: Okay. And the same applies for the 15 enforcing the law aspect? 16 A: Yes. 17 Q: Thank you. And with respect to the - 18 - the role of enforcing the law, another aspect of that 19 that the OPP is expected to deal with, is enforcing a 20 court order in -- in various circumstances; is that also 21 fair? 22 A: Yes. 23 Q: Yes. Now I'd like to ask you to look 24 at some of these burial ground documents. And first of 25 all, I'd ask you to turn to page 29 of the handout I gave
2071 you; page 29, top right hand handwritten -- handwritten 2 notation. 3 It looks to be -- it should be a 1937 4 Government letter; does that look right to you? 5 A: Yes, it is, sir. 6 Q: Now the evidence we've heard about 7 this just to summarize it and this is -- has been filed 8 as Exhibit P-674, Inquiry Document Number 1001593, 9 according to the evidence is a letter dated August 13th, 10 1937 from the local Indian Agent at Kettle and Stony 11 Point to -- to an official -- higher official in the 12 Canadian Department of Mines and Resources, Indian 13 Affairs Branch, which talks about the burial grounds. 14 And -- and Commissioner, I'm going to read 15 the paragraphs not to take up too much time, 16 Commissioner, but just so you can understand for 17 subsequent questions, the flavour of it. 18 And the Indian Agent says, quote: 19 "With reference -- with reference to 20 minute of Council of the Kettle and 21 Stony Point Band of the 12th instant 22 recommending that the Department of 23 Indian Affairs request the Ontario 24 Government to reserve the old Indian 25 burial ground on the new Government
2081 Park at Ipperwash Beach. I would 2 approve of this resolution. 3 When cleaning out this Park recently, 4 the engineer discovered an old Indian 5 burial ground and stated that if the 6 Band would make a request to the 7 Provincial Government, he was sure they 8 would be glad to mark off and fence the 9 plot. The Council would like this 10 done." 11 Now according to the evidence at this 12 Inquiry, copies of this letter were not available to the 13 OPP on September 4th, 5th and 6th of 1995. 14 Would you agree with me that it would have 15 been useful to the OPP in its -- its peace keeping and 16 law enforcement functions to have a copy of this 17 information available at that time? 18 A: I would expect so, yes. 19 Q: Let me go through a couple of 20 possible reasons why it -- it might be -- it might have 21 been useful. 22 And would you agree with me that there's - 23 - there's an issue of awareness of the protesters 24 motivations? 25 In other words, if this letter had been
2091 available to the OPP it would have assisted in the 2 policing function by allowing both the Commanders and the 3 officers on the ground to be aware of the motivation 4 behind the -- the protesters in some way? Is that -- is 5 that fair? 6 A: Yes, it would be helpful information. 7 Q: And let me also suggest to you that 8 it would have been useful to have this information from a 9 policing perspective because it would have allowed the 10 OPP to -- to adopt an appropriate degree of flexibility 11 in the approach. 12 In other words, you, the OPP, would have 13 been better able to assess which options to use and which 14 kind of approaches to use if you had knowledge about this 15 background? 16 A: This information would be helpful. 17 Q: And -- and specifically in terms of 18 flexibility of -- of approach; is that fair -- in 19 policing is that -- is that fair? 20 A: Yes. 21 Q: And what about -- thirdly, I'm going 22 to suggest the possible role for patience. In other 23 words, if the OPP had had this information available 24 about potential evidence of a burial ground, the OPP 25 could have better adopted a role or better made the
2101 choice about a possible degree of patience to use in the 2 -- in the policing function; is that fair? 3 A: I think this information would be 4 helpful in -- in decision making. 5 Q: And I think in your framework you've 6 talked about things like patience and I'm asking I guess 7 specifically having this information would help the OPP 8 decide how patient to be, if to be patient at all, or how 9 -- how to use the -- the tool of patience; is that fair? 10 And -- 11 A: Yes, it would fold into the decision 12 making. 13 Q: And -- and specifically it might 14 incline the OPP to a little more patience because it 15 suggests there's something there; is that fair? 16 A: Well, it's an additional factor. 17 Q: Right. And can I also suggest 18 fourthly that this information, this -- this letter as an 19 example would have been useful in terms of policing 20 because it might have allowed a better assessment or a 21 better feeling of perhaps if I can use the term 22 'understanding' or 'fair-mindedness' in the policing 23 function? 24 In other words, I take it that whenever 25 police enforce the law or -- or keep the peace they want
2111 to be fair to the parties, they want to be somewhat 2 understanding; is -- 3 A: That's correct. 4 Q: -- that fair? And having this 5 information would have helped whether the Incident 6 Commander or an officer on the ground knowing about the 7 information in this letter at that time would have helped 8 with a certain degree of understanding about the 9 situation? 10 A: This -- this would have assisted in 11 understanding. 12 Q: Let me -- let me ask you to turn to 13 another page in the -- the materials I gave you and this 14 is at page 36(a). 15 16 (BRIEF PAUSE) 17 18 Q: And this is headed, "Note to File" at 19 the top; do you see that? 20 A: Yes, sir. 21 Q: This is a summary of a researcher and 22 it's entitled, Draft. It's Exhibit P-909, Inquiry 23 Document 8000186, dated October 17th, 1996, and I believe 24 it was by Joanne McDonald. And again I'll just read a 25 couple of sentences quickly so you can get the flavour of
2121 it. 2 The second paragraph says -- refers to 3 Marilyn Dulmage (phonetic); do you see that? 4 A: Yes, sir. 5 Q: I'll just read that: 6 "Marilyn Dulmage of Cornwall, Ontario 7 provided her recollection of the 8 discovery of the bones when she was a 9 young teenager living with her parents 10 at Ipperwash Provincial Park. Her 11 father Arnold Dale was the Park 12 Superintendent from 1947 to 1955." 13 And dropping down to the last paragraph, 14 the first sentence: 15 "Ms. Dulmage remembers that a bulldozer 16 was levelling the site for the 17 construction of the bathhouse in the 18 spring of 1950 or 1951." 19 And turning the page, and the first 20 sentence on the next page says: 21 "During the work period there was a big 22 blow and the skeleton appeared in the 23 sand." 24 Next paragraph: 25 "Arnold Dale took the skull and kept it
2131 on his desk for several months 2 according to Ms. Dulmage. She thinks 3 that the remains of the skeleton were 4 abandoned." 5 Now, just leaving -- leaving it at that 6 for now would you agree with me that it would have been 7 useful in the OPP's policing responsibilities in 1995 8 September to have this information from this Witness in 9 the -- in the knowledge of the OPP commanders and indeed 10 the officers on the ground? 11 A: Yes. 12 Q: And would you agree with me as I went 13 through a number of factors before that it would be -- it 14 would have been useful in part because it would have 15 helped the police understand the motivations of the 16 protestors and it would have assisted the OPP in being 17 flexible and being patient and being fair-minded in its 18 policing function; is that fair? 19 A: This information would be helpful. I 20 don't know what other information they had in detail but 21 I think you're right. 22 Q: Okay. You think that's right? The 23 way I put it is correct? 24 A: Yes. 25 Q: Yes. And I'll take you to one (1)
2141 more example. Before we leave that, the previous page 2 you'll see, which is Exhibit P-908B has a photograph of a 3 Park employee -- I'm sorry this is page 30, handwritten 4 page 35 of the -- you'll see he has a photograph of a 5 Park employee standing next to a skull and a skeleton. 6 This is, in a way, a very powerful 7 photograph; would you agree with that? 8 A: Yes. 9 Q: And again having that information 10 with the OPP in September of '95 for part of the 11 information assessment would have assisted in the 12 policing function; is that fair? 13 A: Yes. 14 Q: Then turning in the package I've 15 provided to you to the very first page, which is Inquiry 16 document 1008093, Exhibit P-822 and it's a fax cover 17 sheet from Darryl Smith, Information Services 18 Coordinator, Ministry of Natural Resources to a number of 19 people, dated September 14th, 1995. 20 Do you see that? 21 A: Yes, sir. 22 Q: And the first two (2) sentences of 23 the fax transmittal say: 24 "The attached is a collection of 25 historical notes I found in my files
2151 relating to the beginnings of Ipperwash 2 Provincial Park. On January 16th, 3 1975, I found these in the third 4 basement of Whitney Block." 5 Which I take to be a reference to the 6 Whitney Block government building in Toronto. 7 And if you turn the page -- turn two (2) 8 pages to the handwritten page 3, at the top left there's 9 the date of August 17th, 1937. This is the handwritten 10 page 3 at the top right. 11 A: No. Handwritten 3, yes. 12 Q: Yes. And do you see the date August 13 17th, 1937? 14 A: Yes. 15 Q: And if you glance at that, you will 16 see that that pertains to the discovery of the alleged 17 burial ground in the Park. 18 19 (BRIEF PAUSE) 20 21 Q: And so it appears from the fax cover 22 sheet that this correspondence about the burial ground 23 was found by the Ministry of Natural Resources employee 24 in January of 1975. 25 Do you see that?
2161 A: Yes, sir. 2 Q: And again, I take it that if in 1970 3 -- that it -- that in September 1995, the files in the 4 government archives from -- from 1975 that contained this 5 material had been available to the OPP, that would have 6 also assisted in the policing function? 7 A: Yes. I would expect it would. 8 Q: Now, the evidence we've heard in this 9 Inquiry suggests that all of these three (3) examples of 10 burial ground evidence or documentation that I've put to 11 you were from the government files. But we have no 12 evidence, I think, that any of this documentation was in 13 First Nations' possession during that period. 14 And I -- would you agree with me that the 15 situation where some of this documentation was in the 16 Government's hands, apparently, but not in the First 17 Nations' hands, is a situation that would have benefited 18 from a little more time in September of '95 to accumulate 19 that kind of knowledge? 20 A: Can I ask you to repeat that? 21 Q: Sure. assuming for a moment that 22 these three (3) instances of documentation were in 23 government files but not in the First Nations' 24 possession, would you agree with me that it would have 25 been beneficial from a policing perspective to have a
2171 little more time in September of '95 to have these sorts 2 of documents surface? 3 A: I'm confused, I guess, in what you 4 mean by "a little more time". It would certainly be in - 5 - in -- to have information that is around these types of 6 issues would be helpful to the policing function. 7 Q: Hmm hmm. 8 A: If that's what you mean. 9 Q: And one of the factors that you've 10 noted as a tool in the framework that you put forward is 11 an appropriate role for patience and to the extent that 12 patience allows documentation such as this to be brought 13 forward to the OPP. 14 That is useful for the policing function, 15 is that fair? 16 A: Yes. 17 Q: In your framework document... 18 19 (BRIEF PAUSE) 20 21 Q: In the document entitled, A Framework 22 for Police Preparedness for Aboriginal Critical 23 Incidents, which is Exhibit P-1710; do you have that 24 available to you? 25 A: Yes, I do.
2181 Q: On page 4 of 11 under the heading, 2 "How to Use this Framework" and the subheading "Pre- 3 critical Incident" you iden -- you or the -- the OPP 4 identify a number of -- of factors or -- or items under 5 the heading "What To Look For"; do you see that? 6 A: Yes, sir. 7 Q: And the first bullet point says: 8 "Real or perceived inequities and 9 privilege or power exists within the 10 community or between the community and 11 society." 12 And in particular I'd like to identify or 13 -- or excerpt from that the reference to: 14 "Real or perceived inequities in power 15 exists between the community and 16 society." 17 And I take it from that that the framework 18 is suggesting that one thing that the OPP should be alert 19 to in a potentially critical situation is whether there 20 are the appearance of unequal or unfair power differences 21 between, for example, the First Nation community and the 22 surrounding society which may indicate some problem. 23 Is that fair? 24 A: Yes, it's one of the considerations 25 that they should look for.
2191 Q: Right. And applying that to the 2 burial ground documents which I've take you through, 3 would you agree with me that the situation that we 4 apparently had where the documentary evidence or 5 potential verification of burial grounds seem to be all 6 in the position or the power and possession of the 7 Government and not in the First Nations, is an example of 8 a difference of -- of power historically about holding 9 that information. 10 A: It -- it could be conceived that, 11 yes. 12 Q: It could be that; is that fair? 13 A: Yeah. 14 Q: And so merely because the First 15 Nation didn't have documentation or doesn't or -- or in 16 the future wouldn't have documentation about the burial 17 grounds doesn't necessarily mean that that's the end of 18 the story. 19 Because it may be that due to the history 20 of Government First Nations relations over the decades it 21 may have been all in Government hands; is that fair? 22 A: Yes. 23 Q: Yeah. 24 25 (BRIEF PAUSE)
2201 Q: Let me turn then to the other type of 2 claim that was made by the protesters in September '95 3 which I mentioned earlier on which is the assertion that 4 it's our land, or some version of that; is that right? 5 Now, I -- I take it you've got enough 6 experience in your academic life and the various First 7 Nations work you did, that you have some general 8 familiarity with the concept of treaties between the 9 Crown and First Nations and the idea that in these treaty 10 exchanges or agreements, First Nations would give up 11 certain rights to share the land and certain reserves 12 would be allocated or guaranteed, or whatever word you 13 want to use, by the Crown to the First Nation; is that 14 fair? 15 A: Yes. 16 Q: Generally speaking? 17 A: Yes. 18 Q: And would you agree with me that that 19 is, from a policing function, the type of information 20 that might be useful to know in a situation where 21 protestors or occupiers are claiming some kind of 22 ownership, if you will, of that land? 23 A: Yes. 24 Q: And would you agree with me, as I 25 walked through some potential factors with you earlier
2211 with respect to the burial ground information, that 2 having knowledge about a previous treaty right to a 3 specific area of land that's the subject to a protest or 4 occupation, having that background knowledge would help 5 the police in terms of understanding the motivations of 6 the protestors, for example? 7 A: Yes. 8 Q: Yes. Would help the police in 9 deciding what type of patience, if any, to use; is that 10 fair? 11 A: Yes. 12 Q: And would potentially help with 13 respect to fair-mindedness or understanding, from the 14 police point of view, about the people who are the 15 subject of the policing action; is -- 16 A: Yes. 17 Q: -- that fair? All right. And when I 18 suggest to you with respect to, for example, the burial 19 ground issue or indeed the treaty rights history of a 20 land that's the subject of the protest, there's no 21 conflict between the OPP taking those factors into 22 account in terms of patience or understanding, and the 23 OPP's role of keeping the peace or enforcing the law; is 24 that fair? 25 A: That's fair.
2221 Q: Thank you. 2 3 (BRIEF PAUSE) 4 5 Q: Would you agree with me that the fact 6 that these instances of documentation about the burial 7 ground in the Park, which I've gone through with you, 8 were not taken to -- taken into account in the OPP 9 decisions and operations in September of '95 because they 10 didn't have them? 11 A: They weren't available to them. 12 Q: Correct. Is evidence that the 13 processes, broadly speaking, did not work in September of 14 '95; is that fair? Should I repeat that? 15 A: Yes. 16 Q: Yeah. Would you agree with me that 17 the fact that these burial ground documents were not in 18 the possession of the OPP and were not taken into account 19 in the OPP and their actions in September of '95, shows, 20 overall, we have to admit, that the processes didn't 21 work? 22 A: I think what it does show -- what it 23 shows is that they didn't have this information to 24 consider -- 25 Q: Right.
2231 A: -- in their decision making, if 2 you're -- if you -- what you say is -- accurately 3 reflects that this was not available to them. 4 Q: And overall, broadly speaking, it's 5 fair to say that, as you said, that given that the OPP 6 didn't have this information about the burial grounds, 7 that shows, given the potential usefulness of this 8 information, that the processes weren't working, overall, 9 because the OPP should have been able to take these into 10 account; isn't that fair? 11 A: I don't know quite what you mean by 12 the processes aren't working. The information would have 13 been -- I'm trying to answer it as best I can. The 14 information obviously would have been helpful into the 15 considerations that the OPP would be making at that time. 16 What I'm unclear on is, I'm not sure what 17 else other information, in totality, that they had. But 18 this would be helpful information, there's no doubt, sir. 19 Q: All right. Those are all the 20 questions I have, Commissioner. Thank you very much, 21 Commissioner Boniface. 22 COMMISSIONER SIDNEY LINDEN: Thank you, 23 Mr. Klippenstein. 24 Mr. Rosenthal...? 25
2241 (BRIEF PAUSE) 2 3 MR. PETER ROSENTHAL: Good afternoon, 4 Commissioner. 5 COMMISSIONER SIDNEY LINDEN: Good 6 afternoon. 7 8 CROSS-EXAMINATION BY MR. PETER ROSENTHAL: 9 Q: And good afternoon, Commissioner. 10 A: Good afternoon. 11 Q: As you know, my name is Peter 12 Rosenthal and I'm representing some of the Stoney Point 13 people under the name Aazhoodena and George Family Group. 14 I gather that this Inquiry would be giving 15 you an unusual view into your force, right -- 16 A: That's correct. 17 Q: -- into the OPP? There normally 18 isn't this kind of big examinations of any organization, 19 including your own, right? 20 A: Be correct. 21 Q: And I would suggest it would have 22 some relevance to you today, even though it's about 23 something that happened ten (10) or eleven (11) years 24 ago, especially since many of the people testifying at 25 this Inquiry are currently officers as well.
2251 A: Yes. 2 Q: So as Commissioner, then, are you, in 3 some sense, monitoring this Inquiry to learn more about 4 the Force and how things can be done better in the 5 future? 6 A: Yes. 7 Q: Now, officers, as you know, have 8 extraordinary powers over other people. The most 9 extraordinary, perhaps, is the power of arrest and the 10 power to use force, up to and including lethal force, 11 right? 12 A: That's correct. 13 Q: And you would recognize, as 14 Commissioner of the OPP, that given those extraordinary 15 powers, there have to be -- has to be some extraordinary 16 monitoring of those powers as well, in order to protect 17 the public. 18 A: Yes. 19 Q: Now, I want to ask you first about 20 monitoring with respect to use of firearms. As you know 21 better than all of us, I'm sure, there are regulations 22 about that and there's a regulation to the Police 23 Services Act that specifically restricts the use of 24 handguns. 25 And it -- there's a regulation, 926, as
2261 you well know, I'm sure -- 2 A: Yes. 3 Q: -- that an officer cannot even draw a 4 handgun, much less fire it, unless there's danger of 5 serious injury or death? 6 A: Correct. 7 Q: And then if an officer does draw a 8 handgun, whether or not he fires it, there must be a use 9 of force report filed out that would inform the command 10 structure in the Force that he or she has drawn that 11 firearm, right? 12 A: That's correct. 13 Q: Now, there does not seem to be a 14 corresponding regulation with respect to the use of a 15 long gun, or rifle. And we have, for example, evidence 16 in this Inquiry, that you may well be aware of, that 17 Marcia Simon and Melva George, for example, when they 18 were telephoning for an ambulance late on the night of 19 September 6th, 1995, were confronted by officers who 20 pointed rifles at them. 21 A: That's correct. 22 Q: You're aware of that evidence? 23 A: Yes. 24 Q: Now, I asked Inspector Skinner if he 25 could see any reason that pointing a firearm, long gun or
2271 whatever, at another human being should not be similarly 2 restricted to the drawing of a handgun, and he said he 3 could see no reason that that should not be the case. 4 So I'm asking you, then, would you agree 5 that the regulations should be expanded to include the 6 pointing of a long gun at someone, as something that must 7 be done only in the same circumstances as drawing a 8 handgun, and also must be reported in the use of force 9 report if it is done? 10 A: Yes. In fact, our -- I would have no 11 objection to it. My understanding is, is that our in- 12 service trainers have actually recommended this as well. 13 Q: Who recommended this? 14 A: Our in-service training. 15 Q: I see. 16 A: So. 17 Q: That you recommend that procedure to 18 officers? 19 A: They're suggesting use of force for 20 both. 21 Q: I see. But so -- so you would then 22 support, would you, if the other Commissioner, making -- 23 making such a recommendation that Regulation 926 be 24 changed to add a phrase, a member -- well, a member of a 25 police force shall not draw a handgun, point a firearm at
2281 a human being or discharge a firearm unless he or she 2 believes, and so on. 3 A: I would have no objection at all. 4 Q: Thank you. And then similarly, the 5 requirement for use of force report in that circumstance 6 of pointing a firearm at a human being. 7 A: Yeah. 8 Q: Thank you. Not only would you have 9 no objection but that would help you to monitor your 10 force properly with respect to use of a firearm, right? 11 A: Yes. 12 Q: Now another sort of general issue is 13 this question of recording of phone calls and 14 transmissions. As I understood your evidence earlier 15 today, you told us that, and now within the OPP, all 16 Level 2 incidents are recorded automatically; is that 17 correct? 18 A: Through the Provincial Communication 19 Centre, those would -- it would be -- calls into the 20 Communication Centre are all recorded today. 21 Q: But then you made a distinction 22 between those of short duration and those of long 23 duration. 24 A: No, you're confusing it. 25 Q: I -- I'm sure I misunderstood, sorry.
2291 (BRIEF PAUSE) 2 3 Q: Right. Yeah. Mr. Millar just 4 whispered it to me, but I'd like you to just clarify 5 again, if you would. 6 A: The calls going into the Provincial 7 Communication Centre are recorded. 8 Q: Right. 9 A: In the -- in a Command Post situation 10 -- it -- 11 Q: Right. 12 A: -- is -- depends, in part, the 13 availability of recorded lines and where the incident is 14 taking place, quite frankly. 15 Q: Right. 16 A: If it's of substantial length and -- 17 or length enough, and it's an appropriate Command Post, 18 because one of the examples was used in a simulation; it 19 may be a car, that you're working out of your Command 20 Post for the earlier part. 21 Q: Yes. 22 A: So where there's a Command Post in 23 place, and obviously for a longer duration than a short 24 term call, then our policy will read that we should, in 25 those cases, where it's practical, be taped.
2301 Q: Right. Now, but you -- you would 2 agree whether -- even if it's a short call, if it's 3 practicable, it should be done. 4 A: Yeah. All -- all I was indicating is 5 it's often not practical on the short call, but -- 6 Q: Yes. 7 A: -- if it's -- if it's possible -- 8 Q: Right. 9 A: -- we're open to it. 10 Q: As to how practical it is might 11 depend upon whether it's of short or long duration. 12 A: Absolutely. 13 Q: But if it's practicable and not -- 14 not -- it doesn't require extraordinary effort that takes 15 away from other things, it should be done, right? 16 A: We would agree. 17 Q: And as Mr. Millar put it to you, as 18 you know from following the Inquiry, we've certainly 19 learned a lot based on the fact that there were many 20 recordings made eleven (11) years ago. 21 A: Yes. 22 Q: Now would you -- would you support 23 some recommendation to that effect, for policing in 24 general in Ontario, it's hard to know exactly how to 25 frame such a regulation perhaps, but -- but that, in
2311 general, where practicable, and of course there may be 2 other considerations that are much more crucial at any 3 given time, but, in general, where practicable, police 4 transmissions, phone call or otherwise, should be 5 recorded and kept indefinitely. 6 A: Where -- where it's practical and in 7 the Command Post, then I would -- we would support it 8 because that's going to be our practice. 9 Q: Well but wouldn't you agree where 10 it's practicable anywhere, as long as it's practicable? 11 A: What do you mean by anywhere? 12 Q: Any -- any time that there are phone 13 calls and/or transmissions being made by police officers 14 in the course of doing their duties with respect to some 15 incident. If it is practicable to keep recordings, won't 16 you do so? 17 A: I think it's just the question of 18 practical is the issue. 19 Q: Yes. 20 A: In -- in the Command Post in -- I was 21 just trying to be helpful. But in the Command Post with 22 the Level 2 incident, our policy will read, where 23 practical that all tape -- all phone lines should be 24 taped. 25 Q: Yes.
2321 A: And so I -- I think that is what fits 2 on practicality. 3 Q: But your concern is with 4 practicality. You agree that -- 5 A: Yes. 6 Q: -- if it's practicable, there's no 7 reason not to record any police transmissions made in the 8 course of their duties? 9 A: I'm just trying get clarity what you 10 mean on any transac -- like any -- anywhere, or...? 11 Q: Well, yeah. There's no particular 12 reason to restrict it to the Command Post, is it? 13 A: Well, I -- 14 Q: I mean if -- 15 A: I -- the practicality of it is the 16 issue, that's all. 17 Q: Yes, except for the practicality. 18 But if there are two (2) officers who have a walkie- 19 talkie and they're communicating back and forth on an 20 incident, and it's somehow practical to easily record 21 that, that should be recorded too? 22 A: Well, my sense is that would be 23 picked up by the Provincial Communications Centre. I'm 24 trying to figure out what -- what we might be missing in 25 terms of --
2331 Q: Right. 2 A: -- your analogy, but the principle I 3 agree with. 4 Q: As a principle you agree -- 5 A: Yeah. 6 Q: -- record if possible? And would you 7 agree also, that -- as a principle, that officers should 8 not try to make it impracticable to record. For example, 9 if an officer is talking on one (1) phone that's being 10 recorded in a matter of business, the officer should not 11 say to the officer at the other end, I'm going to call 12 you back on my cell phone, and then avoid being recorded? 13 A: If it's business related -- 14 Q: It's business related. 15 A: -- in the Command Post environment -- 16 Q: Yes. 17 A: -- it should be on the taped lines. 18 Q: Yes. It shouldn't -- as you 19 mentioned to Mr. Millar, it's not clear how practicable 20 it would be to record cell phones, for example? 21 A: Yes. 22 Q: And in this day and age there are 23 many cell phones, so officers who wanted to avoid being 24 recorded could presumably communicate by cell phone. 25 That should not be allowed, to -- to
2341 purposely avoid being recorded by communicating by cell 2 phone, would you agree? 3 A: For business. 4 Q: Thank you. Now, you've told us, with 5 respect to shield chatter, that it's now been abandoned 6 by the OPP? 7 A: Yes. 8 Q: Was that quite recently done or...? 9 A: My sense is, I go back to the 10 document, I think it was as part of the revisions to the 11 Public Order Unit, I think. 12 Q: I see. 13 A: So I -- I don't think it's recent; I 14 think it's within the last few years. 15 Q: I see. And was that done partially 16 as a result of the experience that the officers had with 17 shield chatter on September 6th, 1995, at Ipperwash 18 or...? 19 A: I -- I can't tell you whether there's 20 a connection or not. 21 Q: But originally the notion of shield 22 chatter came from British practice, is that your 23 evidence? 24 A: Yes, I think that was the original 25 foray to it, but I don't know a lot about it, to be
2351 frank. 2 Q: Okay. Thank you. Now, you spoke 3 briefly about errors in the press release, or the 4 possibility of errors in press releases, and you say you 5 now have people who are better trained, who are 6 specifically trained with respect to press releases; is 7 that correct? 8 A: Well, in two (2) ways, sir, the -- 9 the -- and particularly in an incident involving SIU, the 10 release would actually come out of the Headquarters. 11 Q: Yes. 12 A: And so the person who works there 13 would be trained and clear, and would deal with all SIU 14 calls for the whole province. 15 Q: Yes. But you know something of the 16 press release situation with respect to the events at 17 Ipperwash in 1995, do you? Right? You would -- 18 A: I have some -- some limited 19 knowledge. 20 Q: And do you know that there was a 21 press release put out on that evening that said something 22 to the effect of that: 23 "A private citizen's vehicle was 24 damaged by a number of First Nations 25 people armed with baseball bats. As a
2361 result of this, the OPP Crowd 2 Management Team was deployed to 3 disperse the crowd of First Nations 4 people which had gathered at that 5 location." 6 That's part of the press release that 7 we've had evidence was sent out that night. And the 8 evidence is that John Carson had prepared that press 9 release and that he was anxious to get it out before 10 responding to a request that was waiting for him to speak 11 to the SIU, because he had the understanding that once 12 the SIU was involved he wouldn't be able to say anything. 13 So I'm just reminding you of some of the evidence. 14 Now, as we know also, that was a very 15 misleading press release. We now have clear evidence 16 that it wasn't a private citizen, it was an antagonistic 17 band councillor who was involved. It wasn't a number of 18 people, just one (1) person threw a rock at him, not a 19 baseball bat, and so on. So we -- we have all that 20 evidence. 21 Now, there doesn't seem to be anything 22 about the new procedure that would deal with the problems 23 that led to that press release, right? 24 A: I -- I would have thought it did 25 because I think it speaks to sort of just the specifics.
2371 And then as I indicated -- 2 Q: Oh, yeah. 3 A: -- that the press release would be in 4 practice, shared with the Communications Director for 5 SIU. 6 Q: Sorry -- 7 A: So that's what the practice would be. 8 Q: Yes. The procedure embodied in -- in 9 the police orders, which have now been made Exhibit P- 10 1720 to this proceeding, and I believe might be at Tab 11 11 of your small binder; is that correct? 12 A: No, it's not. 13 14 (BRIEF PAUSE) 15 16 A: Can you help me? 17 Q: Sorry, I believe it's Tab 11 of your 18 small binder that you have. 19 MR. DERRY MILLAR: The small binder. 20 MR. PETER ROSENTHAL: Yes, thank you. 21 THE WITNESS: Sorry. 22 23 (BRIEF PAUSE) 24 25 CONTINUED BY MR. PETER ROSENTHAL:
2381 Q: And then at the second page of the 2 document, at that Tab, which is now P-1720, it says: 3 "News release." 4 And then it describes, roughly, the one 5 generic news release that may be issued, and it says: 6 "Details of the investigation shall not 7 be released." 8 But it is your understanding that, 9 "details of the investigation shall not be released," 10 would preclude, for example, saying that, We marched down 11 the road because a vehicle had been attacked by people 12 with baseball bats, or...? 13 A: It's a -- my experience with them is 14 they're very bare bones. 15 Q: Yes. 16 A: And the -- and as I said, with the 17 sharing of them with SIU, which has just become a 18 practice, is that they're -- it's usually by agreement on 19 what the information is. 20 So if I look at this, it basically just 21 speaks to the occurrence itself in terms of, for 22 instance, a death in custody, if I use that as an 23 example, it would -- 24 Q: Yes. 25 A: -- be just sort of the bare bones.
2391 So I think it does actually reflect just sort of factual 2 basis, but very, very narrow. That would not go to the 3 investigation that SIU would then conduct. 4 Q: So you say you're -- the practice 5 that's developed recently, between the OPP and SIU, is 6 that the press release is shown to the SIU -- 7 A: Yes. 8 Q: -- before it's sent out, in any 9 event? 10 A: Yeah, that's our practice. It's been 11 going, actually, for some time. 12 Q: I see. 13 A: And -- 14 Q: Do you recall from approximately 15 when? 16 A: No. I think it was an initiative by 17 SIU and we were in agreement, if I remember correctly. 18 Q: So was it your understanding, then, 19 that SIU has been negotiating with individual police 20 forces about this issue? 21 A: No, it's not my understanding. I 22 think it's a courtesy that we do to make sure we don't 23 have -- that -- that there's no issue with their -- 24 Q: Yeah. 25 A: -- in terms of doing their
2401 investigation. 2 Q: But -- 3 A: But whether it's done by other 4 agencies, I don't know. 5 Q: Within municipal police forces you're 6 not sure if there are similar arrangements or not? 7 A: No, I don't know. 8 Q: Well, we don't have much evidence 9 about it, obviously, but would you agree it might be 10 sensible for someone to look into that as a possible 11 regulation, rather than leaving it up to individual 12 forces in individual negotiations? 13 A: It's not necessary, being regulation 14 for us, but I don't know what the practice is elsewhere. 15 Q: Okay, thank you. But another aspect 16 of my question, you now have people who are expert on 17 press releases, but would you agree that wouldn't -- that 18 expertise wouldn't necessarily correct false reports 19 being put out? 20 A: I think what it would do -- I mean, 21 my experience now with it would be that when you have 22 somebody who is dealing with it all the time on SIU 23 cases, they would -- 24 Q: Right. 25 A: -- create -- they'd be able to be in
2411 a pattern of being able to know exactly what the proper 2 information would be. 3 So I think it's an improvement. 4 Q: Yes. Okay, thank you. Now, we've 5 all heard about the notion of a code of silence among 6 police officers when an investigation of wrongdoing by 7 one (1) police officer is taking place. 8 Now, if you turn to Tab 18 of the big 9 binder, please. 10 11 (BRIEF PAUSE) 12 13 Q: And that is Inquiry Document 1005305 14 and it's P-1535, an exhibit. And Mr. Millar read the 15 paragraph that I would want to refer you to, to you. 16 It's on the second page of that letter from Peter 17 Tinsley, the director at the time of the Special 18 Investigations Unit, to you. 19 And the second paragraph reports -- I 20 won't read the whole thing, since Mr. Millar did. 21 But just to highlight, that it was a major 22 difficulty throughout the investigation and there was the 23 apparent impossibility of identifying individual officers 24 during the course of the Ipperwash confrontation. 25 And there's the question of the marks, but
2421 then there was also the -- there's the suggestion that 2 here the officers were not completely forthcoming, right? 3 A: Can I ask where you're reading just 4 to be clear? 5 Q: Sorry. I should take you to the 6 previous paragraph, it illustrates my point better. If 7 you turn to the top of the page, the top of the second 8 page: 9 "I believe it to be necessary and only 10 in fair to inform you that in reaching 11 the above noted decision, I was struck 12 on review of all the available evidence 13 by the discontinuity of the statements 14 of the OPP officers who were 15 interviewed as to the level of force 16 applied to Mr. George and the injuries 17 that he was clinically observed to have 18 suffered. 19 I concluded that the level of force 20 actually applied against Cecil Bernard 21 George by various OPP officers during 22 the confrontation and which caused his 23 injuries bore little relation to the 24 picture that emerged from the officers' 25 accounts of the level of force used
2431 against Mr. George. 2 The officers' accounts fell far short 3 of assisting and accurately reconstructing 4 the events surrounding the altercation 5 with Mr. George and I therefore gave 6 them a little weight in resolving the 7 question as to whether the force used 8 against Mr. George was excessive. 9 I appreciate that the particular 10 circumstances of this investigation may 11 have made such a result unavoidable." 12 And he expresses the hope that such a 13 result may be avoided in the future. 14 Now I think I have fairly characterized 15 that as certainly implying that he's suggesting that your 16 officers were not forthcoming in the investigation. 17 A: I think he -- he indicates that the 18 collec -- the collection of information that he got from 19 the officers was difficult to put the picture together. 20 Q: Yes. But you don't also take a 21 criticism of the officers from that? 22 A: I -- I think he was criticizing them, 23 yes. 24 Q: Yes. For not being forthcoming, 25 right? That's a fair interpretation.
2441 A: In getting enough available 2 information I think is how he put it. 3 Q: I'm sorry -- for not -- yes. But a 4 little more precisely we might say he was suggesting they 5 weren't forthcoming; isn't that fair? 6 A: I think that's fair. 7 Q: So this letter was addressed to you 8 as the Commissioner and you indicated that there wasn't 9 any particular followup that you did to this. 10 You explained to us that a followup would 11 require a third investigation, right? 12 A: That's correct. 13 Q: Now you knew that Officer Cossitt was 14 one of the officers involved in the SIU investigation of 15 what happened to Cecil Bernard George, right? 16 A: Yes. 17 Q: So in addition to this general 18 comment by the Director of the SIU about officers 19 involved in general, you would have had also the 20 knowledge that Officer Cossitt had been certainly 21 admonished, one might say, by the Judge in the Ken Deane 22 trial for lack of accuracy in his evidence; is that 23 correct? 24 A: Yes. 25 Q: And then you -- you told us that you
2451 met with Officer Cossitt and another officer in 2 connection with the Cecil Bernard George matter to tell 3 them that the civil matter had been settled, right? 4 A: Yes. 5 Q: Now when you had that meeting or at 6 any other time that you spoke to Officer Cossitt, did he 7 acknowledge to you that he was the officer who knocked 8 Cecil Bernard George to the ground? 9 A: No. 10 Q: I see. And I -- I gather until I'm 11 now putting them together for you, you didn't put those 12 two (2) things together; the question of the veracity or 13 the lack of being forthcoming let's say, of the officers 14 in speaking to Mr. Tinsley and the possibility that 15 Officer Cossitt may not have given accurate evidence at 16 the Ken Deane trial? 17 A: I think I -- I knew Cossitt -- Mr. -- 18 Constable Cossitt was involved in this and I was aware of 19 the evidence at the Ken Deane trial. 20 Q: Yes, but putting them -- the two (2) 21 together which you may not have done at the time, I would 22 suggest to you would give you particular concern. You 23 might think, Gee this officer who was maybe seriously 24 involved in the beating of Cecil Bernard George is 25 somebody that a Judge said wasn't truthful in his
2461 testimony under oath and that might be a problem with 2 this investigation, right? Putting the two (2) together? 3 A: Putting the two (2) together reflects 4 to me the same thing. 5 Q: Okay. Well let me then tell you 6 about some evidence that we had here from Officer 7 Cossitt. I don't know if in your monitoring -- 8 A: No. 9 Q: -- that's come to your attention; I 10 know you have many other things to do as well. 11 But he testified here, in the very spot 12 where you sit, on May 24, 2006, and I'm going to 13 summarize some of his evidence that begins at page 143 of 14 the transcript of that day. 15 He told us that he, in the course of the 16 evening of September 6th, he knocked Cecil Bernard George 17 to the ground as he advanced. And then I confronted him 18 with a transcript of his evidence at the trial of Cecil 19 Bernard George, there was a criminal trial of -- 20 A: Yes. 21 Q: -- Cecil Bernard George, and he was 22 confronted with the testimony there where he had said: 23 "The Staff Sergeant ordered a full 24 punchout of the unit and we proceeded 25 at a faster pace and there was one (1)
2471 Native I seen directly in front. I'm 2 not sure which officer had contact 3 then, but it was just directly in front 4 of me and he had full contact. He went 5 down and... 6 Q: Do you know how that came about? 7 No, I don't." 8 And so on. Now -- and then he agreed he 9 testified to that effect. And then I asked him: 10 "Did you tell the Court then you're not 11 sure which officer had contact with 12 him?" 13 And he answered: 14 "Yes, sir." 15 And then I said: 16 "But you knew you were the officer that 17 had contact with him -- who had contact 18 with him, right?" 19 And he said: 20 "Yes." 21 So he stood right there -- he sat right 22 there, rather, and he told us that he said to the Court 23 he didn't know who had contact with him but he knew that 24 he was the one who did it. 25 And then the next question:
2481 "So you misinformed the Court when you 2 said you weren't sure which officer had 3 contact with him?" 4 Then there's a brief pause, is what the 5 transcript says, and then the question: 6 "You lied under oath, sir. 7 A: No, I didn't, sir, I was telling 8 the truth as best I can recall." 9 Now, that was a rather sharp 10 contradiction. Evaluating the evidence of the Ken Deane 11 trial it would appear one might think that the judge 12 evaluated that accurately, too. But here he admitted 13 that he had told the Court in the trial of Cecil Bernard 14 George he didn't know who had had contact with him, 15 although at the time he knew he was the one who had 16 contact with him. 17 And it's interesting also, if you look at 18 your Tab 17 in your big book, and if you look at -- 19 that's now Exhibit P-626, and look at page 26 of that 20 tab, this is the -- the full SIU report. And I 21 appreciate, as you indicated, that you didn't see that 22 until relatively recently. 23 But at page 26 there is the entry under, 24 "Chris Cossitt," presumably a summary of his evidence as 25 he was interviewed, and he says as he did at the Cecil
2491 Bernard George trial, but different from what he admitted 2 here, that he next observed a front contact officer make 3 full contact with the protestor; or in other words, 4 someone else did. 5 Now, that's about five (5) or six (6) 6 lines under the entry, "Chris Cossitt." He next observed 7 a front contact officer make full contact with this 8 protestor as a result of which the protestor fell to the 9 ground. 10 Sorry, do you want time to read it? 11 A: No, I'm -- I got it. 12 Q: Okay. So you're getting a little 13 more insight, perhaps, into some of the frustration of 14 the investigation of the beating of Cecil Bernard George. 15 And so now my question to you is this, and 16 there are several questions that flow from this. First 17 off, you told us, when looking back at the investigation 18 of his possible perjury at the Ken Deane trial, that you 19 would have thought an outside agency would be -- would 20 have been best to do that investigation? 21 A: In retrospect. 22 Q: In retrospect, yeah. No, and I do 23 appreciate retrospect is much easier than when you're in 24 the middle of things and -- but also we want to look at 25 retrospect in order to form the future as well too --
2501 A: Sure. 2 Q: -- so that we can deal with things 3 better in the future and that, as you know, Commissioner, 4 will make recommendations to that end, hopefully. 5 Now -- so you recognize that in a 6 situation like that an internal investigation may not be 7 adequate? 8 A: Yes. 9 Q: And similar notions led to the 10 formation of the SIU, the idea that in circumstances 11 where a police officer has caused serious injury or 12 death, it shouldn't be internal investigations, it should 13 be done by an external agency? 14 A: That's correct. 15 Q: Right? 16 A: That's correct. 17 Q: And similar -- similar thinking, 18 perhaps, right? 19 A: Yes. 20 Q: So would you agree, that in 21 situations like this, there should be external 22 investigation? 23 There should be something akin to the SIU, 24 or, you know, could be expanding the mandate of the SIU 25 or some other organization, that in situations such as
2511 that, and we'd have to flush out what the situations may 2 be, but that exist, as an organization, to do such 3 investigations? 4 A: Which investigation are you referring 5 to? 6 Q: Well, you had suggested that there 7 should -- should have been an outside investigation of 8 the Cossitt perjury allegation, right? 9 A: I think the -- yes, on that matter, 10 but the outside agency could have been another police 11 force. 12 Q: Well, yeah, so -- 13 A: Or a Crown Attorney. Somebody who's 14 expertise in that area would have been helpful. 15 Q: But there isn't any formal way to 16 have an outside person -- an outside agency do such an 17 investigation, right? 18 You would have to ask some other police 19 force to do it as a courtesy to you, right? 20 A: Yes. And we do the same for them. 21 Q: And you wouldn't have had to do that, 22 in fact it wasn't done, in fact, right? 23 A: That's correct. 24 Q: So I'm suggesting to you that it 25 would appear that it might be worth exploring the
2521 possibility that there be some mechanism set up for 2 situations like that, that has to be defined, where there 3 could be a formal, not only requirement but also 4 availability, of some other organization to do an 5 investigation? 6 A: I don't think you need to formalize 7 it, because I think it's in practice today. In this 8 case, particularly on the SIU investigation, they did it 9 twice. 10 I don't -- I don't know the benefit of 11 formalizing it, but -- because in practice, it's done 12 today. 13 Q: Well, now, you would agree, by the 14 way, that an officer who -- where there is a strong 15 suggestion that he might have lied under Oath, that's a 16 rather serious matter, especially since officers go to 17 Court so often, testifying against people, right? 18 A: I think the -- Judge Fraser's 19 comments are disturbing. It was looked at by the 20 Inspector in Professional Standards -- 21 Q: Right. 22 A: -- for that reason. 23 Q: Right. But part of the transcript 24 that I read to you a few moments ago is even more 25 disturbing, isn't it, where he said, on the one hand,
2531 that when he testified in the Cecil Bernard George trial 2 he knew that he was the one who knocked Cecil Bernard 3 George down, but he testified, as indicated, that some 4 other officer had contact with him. 5 That's even more disturbing, isn't it? 6 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 7 Roland...? 8 MR. IAN ROLAND: Mr. Commissioner, it's 9 not for this Witness to sort out the evidence -- 10 COMMISSIONER SIDNEY LINDEN: No, it 11 isn't. 12 MR. IAN ROLAND: -- it's for you to do it 13 in your report. 14 COMMISSIONER SIDNEY LINDEN: Yes. 15 MR. IAN ROLAND: This witness neither was 16 here to hear the evidence nor is she in a position to 17 sort it out. 18 And certainly My Friend has picked -- 19 picked some selected portions out of it, but it's really 20 not appropriate, with great respect, for this Witness to 21 be commenting on the evidence of another witness and -- 22 COMMISSIONER SIDNEY LINDEN: I -- 23 MR. IAN ROLAND: -- what conclusions 24 should be drawn. 25 COMMISSIONER SIDNEY LINDEN: Yes, I
2541 think -- 2 MR. IAN ROLAND: That's for you to do. 3 COMMISSIONER SIDNEY LINDEN: I think you 4 could put the question in a more generic way, Mr. 5 Rosenthal. 6 MR. PETER ROSENTHAL: Yes. But may I 7 respond. First off, if we read the whole transcript, my 8 point will be made even clearer, Mr. Commissioner, and 9 I'm happy to do so -- 10 COMMISSIONER SIDNEY LINDEN: Well, I'm 11 going to read the transcript -- 12 MR. PETER ROSENTHAL: -- if Officer 13 Cossitt wishes me to.s 14 COMMISSIONER SIDNEY LINDEN: Yes. 15 MR. PETER ROSENTHAL: But secondly, I am 16 not asking her to comment from the point of view of what 17 you may find about that witness. 18 I'm asking from the point of view of 19 dealing with a serious problem. 20 COMMISSIONER SIDNEY LINDEN: Yes. 21 MR. PETER ROSENTHAL: Potentially, and I 22 do want to ask -- 23 COMMISSIONER SIDNEY LINDEN: That's why I 24 say -- 25 MR. PETER ROSENTHAL: -- it more
2551 generically. 2 COMMISSIONER SIDNEY LINDEN: -- if you 3 ask it -- 4 MR. PETER ROSENTHAL: Yes. 5 COMMISSIONER SIDNEY LINDEN: -- in a more 6 generic way -- 7 MR. PETER ROSENTHAL: Absolutely. 8 COMMISSIONER SIDNEY LINDEN: -- it's a 9 legitimate question. 10 MR. PETER ROSENTHAL: Yes, I will, sir. 11 12 CONTINUED BY MR. PETER ROSENTHAL: 13 Q: But you do agree that the possibility 14 of an officer falsely testifying under Oath is 15 particularly serious, since officers often go to Court 16 against many persons, right? 17 A: Yes. 18 Q: So it's not as if, you know, if 19 somebody lied again -- lied one (1) time in Court and 20 they're hardly ever going to be in Court again, it may be 21 serious, but not as serious as a police officer who 22 invariably goes to Court quite a lot, right? 23 A: Absolutely. 24 Q: And -- and whose testimony can affect 25 whether people go to jail and all sorts of other serious
2561 things, right? 2 A: Yes. 3 Q: So I'm suggesting to you now that the 4 contradiction I pointed out to you in the evidence with 5 respect to knocking Cecil Bernard George down, would 6 require some investigation, would it not? 7 A: It did -- it did have an 8 investigation by SIU. 9 Q: No, no. But the contradiction, where 10 Officer Cossitt said at the time that he was testifying 11 at the -- 12 OBJ MR. IAN ROLAND: Mr. Commissioner, I -- 13 I object to this. What -- what My Friend is asking the 14 Commissioner to do, as I understand it, is to conduct an 15 investigation of evidence given here before you. 16 COMMISSIONER SIDNEY LINDEN: Which I 17 don't think is appropriate. 18 MR. IAN ROLAND: Which is not -- which 19 is completely inappropriate -- 20 COMMISSIONER SIDNEY LINDEN: Yes. 21 MR. IAN ROLAND: -- and it's, quite 22 frankly, contrary to Section -- Section 9 of the Public 23 Inquiry's Act in which all of the evidence that's been 24 given has been given, you know, with the implied -- the 25 implied caveat that -- that there's an objection to any
2571 answer that may tend to incriminate. 2 So that's there, and it's quite 3 inappropriate for -- 4 COMMISSIONER SIDNEY LINDEN: I don't want 5 to go there. 6 MR. IAN ROLAND: -- My Friend to now 7 invite the Commissioner to undertake some investigation. 8 COMMISSIONER SIDNEY LINDEN: I don't want 9 to go there, Mr. Rosenthal. You can ask these questions 10 in -- 11 MR. PETER ROSENTHAL: Okay. I -- 12 COMMISSIONER SIDNEY LINDEN: -- a general 13 way -- 14 MR. PETER ROSENTHAL: I'll do it more 15 generically, if I may. 16 COMMISSIONER SIDNEY LINDEN: -- when 17 there's a situation where an officer is alleged to have 18 falsified evidence. 19 MR. PETER ROSENTHAL: Yes. 20 COMMISSIONER SIDNEY LINDEN: I mean 21 that's all you need -- 22 MR. PETER ROSENTHAL: But -- 23 COMMISSIONER SIDNEY LINDEN: -- ought 24 there be some process where that can be investigated 25 without the necessity of triggering it.
2581 MR. PETER ROSENTHAL: Yes. 2 COMMISSIONER SIDNEY LINDEN: I think 3 that's your question. Or something like that. 4 MR. PETER ROSENTHAL: Well -- 5 COMMISSIONER SIDNEY LINDEN: And that's-- 6 MR. PETER ROSENTHAL: Not -- I'm 7 interested in that question but also I am interested, and 8 I'll try to be more generic, but -- but I do want to 9 respond to what Mr. Roland said, that the suggestion is 10 not just -- it doesn't come within the Public Inquiries 11 Act exception, in my view. 12 I'll -- I'll just leave it at that. 13 14 CONTINUED BY MR. PETER ROSENTHAL: 15 Q: But in any event, if you come upon a 16 situation where a police officer -- where there was some 17 strong suggestion that a police officer might have 18 committed perjury, you would regard that as important to 19 investigate, I gather; is that correct? 20 A: Yes. 21 Q: And you would invariably want such an 22 investigation to be done by some outside agency, rather 23 than within the Force? 24 COMMISSIONER SIDNEY LINDEN: She's 25 already said that. She said --
2591 MR. PETER ROSENTHAL: Did she say 2 invariably so? I -- I -- perhaps I didn't understand. 3 COMMISSIONER SIDNEY LINDEN: Well, I'm 4 sorry, I understood that she said that this should have 5 been investigated by an outside -- 6 MR. PETER ROSENTHAL: Yes, she said in 7 that case. 8 COMMISSIONER SIDNEY LINDEN: -- agency 9 in -- 10 11 CONTINUED BY MR. PETER ROSENTHAL: 12 Q: But did -- but may I ask: 13 Generically, you would say that that should always be the 14 case; if there's an allegation of perjury or a related 15 offence by a police officer within the OPP, it should be 16 investigated by someone outside the OPP? 17 A: No, I wouldn't agree with that. I 18 mean it can be done by a different area. In this case, 19 Commissioner O'Grady had indicated in his evidence that 20 he thought it should go to an outside agency, and I think 21 that was probably right, given the number of cases 22 involved here. 23 But in the day-to-day work we may, for 24 instance, Mr. Rosenthal, have our Criminal Investigations 25 Branch do it at the inspector level, or something like
2601 that. 2 Q: I see. 3 A: It would depend on the circumstances. 4 Q: I'm sorry? 5 A: It would depend on the circumstances. 6 Q: Thank you. Now, if you could turn to 7 Exhibit P-1727, and I realize that that's -- that's one 8 of the supplementary documents and I don't have my copy 9 with me. 10 11 (BRIEF PAUSE) 12 13 MR. DERRY MILLAR: Commissioner Boniface, 14 it's the summary of audio clips. 15 THE WITNESS: Thank you. 16 MR. PETER ROSENTHAL: Yes. Thank you. 17 Thank you, Mr. Millar. 18 19 CONTINUED BY MR. PETER ROSENTHAL: 20 Q: And you have that in front of you -- 21 A: I do, sir. 22 Q: -- Commissioner? Thank you. Now, if 23 you turn to the second page of that, the second to last 24 entry there, it records as parties to the conversation, 25 Stan Korosec and Wayde Jacklin. And then the impugned
2611 remark indicated is: 2 "Korosec refers to an earlier 3 conversation he had with Mark Wright, 4 and states: 'We need to amass a fucking 5 army. Do these fuckers up right.'" 6 And then disciplinary response column 7 says: 8 "Sergeant Korosec had retired from the 9 OPP." 10 So that would be the reason for non- 11 action, right, Commissioner; you can't -- 12 A: Correct. 13 Q: -- discipline a former officer? 14 A: That's right. 15 Q: And then no action was taken against 16 Constable Jacklin unsubstantiated meaning I presume that 17 it was found not to be substantiated that he had done 18 anything wrong, is that right? 19 A: That's correct. 20 Q: And presumably because he was only 21 the person who listened to those words rather than the 22 one who said them; is that -- is that a fair conclusion? 23 A: That's correct. 24 Q: But Korosec is as indicated here and 25 as indicated in the transcript and the recording of that
2621 referring to a conversation he had with Mark Wright to 2 that effect about the impugned remarks. 3 So my question is, was there an 4 investigation of Mark Wright with respect to that 5 conversation? 6 A: I don't believe so. 7 Q: And there's also a transcript of Mark 8 Wright telling Incident Commander Carson at one (1) 9 point, Let's just get those fucking guys or words to that 10 effect. 11 We have evidence at this Inquiry that 12 after the shooting Mark Wright had issued instructions, 13 Constable Richardson testified, that officers should 14 arrest everyone who came out of the Army Camp and/or the 15 Ipperwash Park and the incident morphing from somebody 16 throwing a rock at the back of the car to a person being 17 attacked by baseball bats. 18 One might investigate, one might think, 19 Inspector Wright's role with respect to that. 20 Has there been any investigation? 21 MR. MARK SANDLER: With -- with great 22 respect we're mixing four (4) things in there about -- 23 MR. PETER ROSENTHAL: Yes. 24 MR. MARK SANDLER: -- about the 25 appropriateness of -- of the arrest, about information
2631 that Mark Wright communicated on the incident which I 2 suggest My Friend hasn't accurately communicated what 3 Mark Wright's evidence was as to what he communicated. 4 That's just -- it's kind of a hodge podge 5 of all different circumstances and I'm not just -- I'm -- 6 I suggest that's not fair to the Witness. 7 COMMISSIONER SIDNEY LINDEN: Could you -- 8 MR. PETER ROSENTHAL: He didn't wait for 9 the question. 10 COMMISSIONER SIDNEY LINDEN: No, but the 11 premise has got inaccuracies in it so that's why he 12 objected before you got to the question. 13 MR. PETER ROSENTHAL: Well, I -- I 14 believe that -- 15 COMMISSIONER SIDNEY LINDEN: If you put 16 the premise without an inaccuracy -- 17 MR. PETER ROSENTHAL: Well, I don't -- 18 COMMISSIONER SIDNEY LINDEN: --without 19 inaccuracies I don't think -- 20 MR. PETER ROSENTHAL: I don't believe he 21 objected to the accuracy of anything except for my 22 characterization of the -- of what I said was just 23 investigating his role then. 24 But in any event I was just going to ask 25 the following, Mr. Commissioner, and I think My Friend
2641 would have remained seated if he had waited for the 2 question. 3 4 CONTINUED BY MR. PETER ROSENTHAL: 5 Q: My question was, was there 6 investigation, that you're aware of, of the possibility 7 of disciplinary action with respect to Mark Wright, with 8 respect to any of those aspects or any other aspect of 9 his behaviour with respect to Ipperwash? 10 A: No. 11 Q: Thank you. Now, if we could turn 12 please to Exhibit P-1051 which is the first volume of the 13 disciplinary file, the privileged documents? It's always 14 fun to read a document called privileged. 15 Now, if you could please turn to Tab 23 of 16 that document, Tab 23 is a memorandum dated August 28, 17 1995. It's a memorandum to all Park wardens subject 18 Procedures Dealing with First Nations People. 19 And the number 1 under that is headed, 20 First Nations Person in Contravention of a Law and then 21 it reads: 22 "Park Wardens are to be the eyes and 23 ears for the OPP when a First Nations 24 person has contravened the law. Park 25 wardens shall contact the OPP
2651 immediately and advise the officers who 2 are dispatched what offences can be 3 charged and direct the OPP constables 4 to lay the charges." 5 Now, I would put it to you it's very 6 disturbing that there would be a document as recently as 7 1995 one might have thought might appear in 1895, but a 8 document that indicates there'll be special policing of 9 First Nations people; that Park wardens are to be the 10 eyes and ears for the OPP when a First Nations person has 11 contravened the law; not when other people but only a 12 First Nations person. 13 Now, do you agree with me that this is 14 very disturbing? 15 A: Yes. 16 Q: Thank you. Now, this was as the 17 reason it's in this document, of course, is because it 18 was part of the complaint of Mr. Stan Cloud that led to 19 this investigation. 20 Now, if you could turn to Tab 17 is -- as 21 you've seen other parts of, is the report of the 22 investigation and if you turn to page 18 of that, you'll 23 see that it is devoted...all right, page 18 of Tab 17? 24 A: Yes. 25 Q: It's headed "Pinery/Ipperwash Park
2661 policy" and then it says, "Investigation". 2 "Mr. Clodd felt that some of the policy 3 established by..." 4 And then there's redaction. 5 "...was discriminatory to First Nations 6 persons. He felt that the reporting of 7 all incidents involving First Nations 8 persons to supervisors was 9 discriminatory in that it involved only 10 First Nations persons. 11 [And then redacted], Pinery Provincial 12 Park established the policy because of 13 information that First Nations persons 14 would attempt to take over the Park." 15 Now -- and then going to the middle of the 16 page, "findings". 17 MR. MARK SANDLER: Could you please read 18 the rest of that paragraph. 19 MR. PETER ROSENTHAL: Certainly. 20 21 CONTINUED BY MR. PETER ROSENTHAL: 22 Q: It goes on: 23 "Information that First Nations persons 24 would attempt to take over the Park -- 25 of Ipperwash Park. The intent was that
2671 the Ontario Provincial Police would be 2 contacted to deal with First Nations 3 people, so to avoid direct 4 confrontation with the Ministry of 5 Natural Resources employee. 6 The intent was to prevent a problem, 7 not discriminate against anyone." 8 This is the investigator's findings 9 presumably. Now, he didn't seem to have any problem with 10 the -- with the report -- with the policy as phrased, but 11 regardless of that, he goes on to say: 12 "Findings. This policy was drafted by 13 Ministry of Natural Resources personnel 14 and not the Ontario Provincial Police. 15 A letter has been forwarded to 16 [redacted] indicating the issue has 17 been raised during the investigation." 18 Now, two (2) things. First, picking up on 19 what your counsel suggested that I read the rest of that 20 paragraph, I presume it would give you some concern that 21 the OPP investigator would find this document so 22 innocuous that he would describe it as he did rather than 23 recognizing that a document that specifies particular 24 policing of First Nations people is problematic, is that 25 fair?
2681 A: I think what my sense of it would be 2 firstly that the document itself, as you say, the first 3 couple of lines, regarding First Nation police -- people 4 entering the Park would be poorly drafted at the minimal. 5 But the second piece, I think is, he's 6 trying to put in context. I'm assuming from what I see 7 in the document this is an MNR policy, and he's forwarded 8 it to the MNR to make sure that they made the changes 9 that they -- they -- 10 Q: Yes, I understand that. 11 A: -- deem should become necessary. 12 Q: I'm going to -- I'm going to, just in 13 fairness to you, sir, I'm going to show you that it was a 14 joint MNR/OPP policy in a moment. 15 But, in any event, but -- but I'm 16 suggesting that the -- well, it's not clear, I guess, the 17 -- the paragraph, the second paragraph under 18 "investigation": 19 "[redacted] established...[and so on] 20 and the intent was [and so on]..." 21 It's not clear, I guess, whether your 22 investigator who's writing this report is, when he says 23 "the intent was", if he's reporting the views of the 24 redacted person or his own views as to the intent. 25 Right, is that fair?
2691 A: Yes. Yes. 2 Q: Upon -- upon re-reading it, I -- I 3 realize maybe it's not fair to your investigator to -- to 4 indicate, necessarily, that he was saying that was his 5 conclusion of the intent. 6 It might be that he's reporting what the 7 redacted person said was the intent, is that fair? 8 A: It could -- that could be. 9 Q: But -- but then he says it was 10 drafted by MNR and not the Ontario Provincial Police. 11 But in the same book of documents, which were the 12 documents that he had as his investigation, if you look 13 at Tab 39. 14 And Tab 39 is evidently the document that 15 began this investigation or at least played a role in the 16 beginning of the investigation. It's titled, Staff 17 Sergeant K. Bouwman, is that -- do you have the same 18 document? 19 A: Yes. 20 Q: And if turn to the third page of 21 that, the pages aren't numbered but the third page, if 22 you look at the second paragraph right in the middle of 23 that page. Cloud, this is all Stan Cloud who was -- 24 A: Yes. 25 Q: -- the complainant, also talked about
2701 a policy: 2 "That was set this summer by [redacted] 3 and myself in dealing with Native 4 people that entered Ipperwash Park 5 illegally." 6 He felt that part of this policy was 7 discriminatory. So your investigator who said it was an 8 MNR policy had the initiating to you as saying it was a 9 policy set this summer by 'blank' and myself, Officer 10 Bowman -- Bouwman, Staff Sergeant Bouwman. 11 It seems to be a slip in the 12 investigation, fair? 13 A: I think what the investigator is 14 saying is this is an MNR policy and what I would read 15 into this is that it was -- the contribution was by 16 Bouwman. 17 Q: Yes. 18 A: The wording of it is -- 19 Q: Yes. 20 A: -- it leaves a little to be desired. 21 Q: But you would agree that the 22 contribution that Sergeant -- Staff Sergeant Bouwman 23 describes here is sufficient to investigate, would you 24 not? 25 A: I think that the -- the -- I think he
2711 did investigate it because he took the statement from 2 Staff Sergeant Bouwman and he made the evaluations, an 3 MNR policy. And I understand what you're saying in terms 4 of that. 5 That MNR owns the policy, he sent it over 6 to them for them to take the complaint and I'm assuming 7 they would adjust the policy. 8 Q: But now do you have a problem that 9 you think merits serious investigation if an OPP officer 10 together with an MNR employee or any other person, drafts 11 a policy that talks about that other agency working with 12 the OPP to specially police not with respect to 13 occupations, in general, all Native persons, all black 14 persons, all Jews, is that a problem? 15 A: Of course -- of course I would. 16 Q: Of course that's a problem. 17 A: Can you -- can you refer me back to 18 the policy number? 19 Q: Certainly. 20 COMMISSIONER SIDNEY LINDEN: 23. 21 22 CONTINUED BY MR. PETER ROSENTHAL: 23 Q: Tab 23. No I -- I know you would 24 agree with that, Commissioner Boniface. I have enough 25 respect to you -- for you to know that you do.
2721 But it says at Tab 23: 2 "The eyes and the ears of the OPP when 3 a First Nations person has contravened 4 the law." 5 They don't say about possible occupation. 6 Somebody was drinking in the Park when they're not 7 allowed to presumably that -- that would apply -- 8 A: Yes. 9 Q: -- or -- or any other -- and 10 Provincial or criminal offence. It's totally generally 11 phrased and it's instructing MNR employees to be 12 specially vigilante in policing First Nations people. 13 A: Yes, I understand what you're saying. 14 Q: And that is certainly a very serious 15 problem. As I know you recognize it. 16 A: Yes. 17 Q: And therefore the fact that a Staff 18 Sergeant from the OPP helped to draft such a policy, is a 19 very serious matter, is it not? 20 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 21 Sandler? 22 MR. MARK SANDLER: Excuse me. We don't 23 know what this contribution is. 24 COMMISSIONER SIDNEY LINDEN: No. 25 MR. MARK SANDLER: We don't know that he
2731 helped to draft the policy and we don't know if he looked 2 at the written policy -- 3 COMMISSIONER SIDNEY LINDEN: You don't 4 know any of that but he said in his statement 'myself' so 5 he had some role. 6 MR. MARK SANDLER: Some role. That's all 7 I'm saying. 8 COMMISSIONER SIDNEY LINDEN: Well we 9 don't know what role. 10 MR. PETER ROSENTHAL: Well the role that 11 he described of course, that we have at Tab 39, "The 12 policy that was set this summer by 'X' and myself --" 13 Set by 'X' and myself. 14 COMMISSIONER SIDNEY LINDEN: Well I don't 15 want to ready anymore into that than -- 16 MR. PETER ROSENTHAL: We don't know what 17 'set' meant. But in any event, I -- I'll use the word 18 that Staff Sergeant Bouwman apparently, according to this 19 statement used. 20 21 CONTINUED BY MR. PETER ROSENTHAL: 22 Q: You have a problem do you not, 23 Commissioner, I know you do, if an officer of the OPP 24 'set' such a policy in combination with anyone else? 25 COMMISSIONER SIDNEY LINDEN: Perhaps
2741 you'd say 'or participates in the setting'. Participates 2 in the setting he says. 3 MR. PETER ROSENTHAL: Well it says 'set 4 this summer by 'X' and myself. 5 COMMISSIONER SIDNEY LINDEN: Well -- 6 MR. PETER ROSENTHAL: I'm trying to 7 accommodate Mr. Sandler by using exactly the word there. 8 COMMISSIONER SIDNEY LINDEN: I know. 9 10 CONTINUED BY MR. PETER ROSENTHAL: 11 Q: But in any event, do you have a 12 problem with this? 13 A: I have a difficulty with the wording 14 of the policy and the wording of not being some clarity 15 around what the expectation was. So I would agree with 16 you in terms of the wording and the -- the title of it is 17 -- is a poor policy. 18 Q: Well, the entire policy -- 19 A: Yeah. 20 Q: -- is special policing of First 21 Nations people, right? We -- we agreed on that, right? 22 A: Yes. 23 Q: And I -- I thought that you had 24 agreed that clearly that that is offensive, that is not 25 permissible in our multi-cultural society to have special
2751 policing of any particular ethnic group, right? 2 A: Yes, that's correct. 3 Q: And therefore if an OPP officer has 4 some positive involvement in creating such a policy, 5 whatever that involvement may have been, that's a matter 6 of serious concern for you as the Commissioner? 7 A: And the investigator actually 8 identified that and he sent the policy over to the MNR to 9 be corrected. 10 Q: Yes, he -- he sent it over to MNR but 11 he -- he stated -- let's go back to Tab 17 now if we may 12 and page 18 if memory serves on that document. 13 In the findings he says: 14 "The policy was drafted by Ministry of 15 Natural Resources personnel and not the 16 Ontario Provincial Police. A letter 17 has been forwarded to them indicating 18 the issue's been raised [and so on]." 19 So do I read that incorrectly when I say 20 as far as investigating the possibility of discipline 21 with respect to any OPP officers for this policy he's 22 saying no discipline because it was drafted by MNR, 23 right? 24 A: What I'm unclear of is what the input 25 that Staff Sergeant Bouwman had and whether or not he'd
2761 seen the policy in its finality and such like. So I -- 2 I'm not privy to that. 3 Q: Yes, but the investigator doesn't 4 discuss any of that either does he? 5 A: That's correct. 6 Q: Okay. 7 A: But he may know. I don't know. 8 Q: Well, he says it was drafted by MNR 9 personnel and not the Ontario Provincial Police and we 10 have against that what Staff Sergeant Bouwman said was 11 said by him and so on and so forth, right? Now, you want 12 to go back to Tab 23 again? 13 COMMISSIONER SIDNEY LINDEN: I'm not sure 14 if that's going to be helpful, Mr. Rosenthal. 15 MR. PETER ROSENTHAL: Well, Commissioner 16 Boniface started to turn back to it and I'm happy to have 17 her look at it again. It was the third page in. That 18 tab is not numbered I believe -- 19 COMMISSIONER SIDNEY LINDEN: She's -- 20 MR. PETER ROSENTHAL: -- it was the third 21 page in. 22 23 CONTINUED BY MR. PETER ROSENTHAL: 24 Q: Sorry. Sorry, I misdirected you, 25 it's not Tab -- you -- you want the policy or you want
2771 what Bouwman said? 2 A: Just -- it's helpful. The -- the 3 difficulty for me, sir, is that I don't know whether his 4 report contains everything he knows or -- 5 Q: Yes? 6 A: -- or I don't have all the 7 information. 8 Q: But you agree that -- 9 A: I agree that the title, "First 10 Nations person" -- procedures done with First Nations 11 people is inappropriate. I think he took the action to 12 send it over to the policy. How I weigh in what the 13 OPP's input into this is difficult for me given this 14 information. 15 Q: You don't know the extent of the OPP 16 input into it -- 17 A: That's correct. 18 Q: -- from the information here -- 19 A: That's correct. 20 Q: -- and neither do I. 21 A: Yes. 22 Q: If I did I would tell you. 23 A: Yeah. 24 Q: But I would put it to you that the 25 policy itself is disturbing enough and the indication of
2781 some OPP input is sufficient that you would certainly 2 warrant further investigation, is that not true? 3 A: I -- it goes back to my point and I 4 don't know what the investigator knew and so while we 5 have Bouwman's statement and we have the policy my only - 6 - I -- I want to be fair to the investigator. I just 7 don't know what else he knew. 8 Q: So you -- 9 A: But it is -- I mean quite clearly the 10 procedure to -- to have the policy brought to MNR's 11 attention as something they should look into to clarify 12 what Bouwman's role was or not, I don't know if he helped 13 draft, I don't know if it grew out of a conversation. I 14 don't know the extent to which the involvement was. 15 But at the -- you know today would this 16 be something that we would want to see in -- in the OPP 17 as a policy the answer would be no. 18 Q: Yes, and I would put it to you today 19 if you received this report from that investigator and 20 you didn't know anymore than is in the report, you 21 received the report, you would make further inquiries as 22 -- as to the involvement that Staff Sergeant Bouwman or 23 any other OPP officers may have had in drafting this 24 policy, right? 25 A: I would expect I would and I don't
2791 know that he had -- didn't do that. 2 Q: No, but you would -- 3 A: Right. 4 Q: -- make further inquiries to ensure 5 yourself that he had, right? 6 A: Yes. 7 Q: And unless you found that there was 8 virtually no involvement you would have further 9 investigation of that officer, right? 10 A: It depends on what facts you were 11 able to get. 12 Q: Because racism is a very serious 13 problem on a police force, right? 14 A: Absolutely. 15 Q: I know you recognize that, 16 Commissioner, and it is a very serious problem because 17 police officers have all this power and if they have 18 racist ideas and they're dealing with people of -- the 19 members of a group against whom they have those ideas, it 20 could be very dangerous, right? 21 A: Correct. 22 Q: So it's very serious. So, if you 23 have an OPP officer who thinks it's acceptable to 24 collaborate in a policy involving special policing of 25 some racial group, you recognize that as a serious
2801 problem that must be investigated, at least, right? 2 A: Yes. But I think it's -- in 3 fairness, here, if you read into it, the concern was in 4 contravention of the law. 5 Q: Yeah. 6 A: The -- that is -- was an aspect of 7 it. I understand completely the notion of it being 8 directed at First Nation people. 9 Q: Yes. In contravention of the law. 10 You're going back to -- but -- well, if it said, Park 11 wardens are to be the eyes and ears for the OPP when a 12 Jewish person has contravened the law, Park wardens 13 shall, and so on -- 14 A: It would make no difference to me. 15 Q: Make no difference. 16 A: Absolutely. 17 Q: But it's absolutely unacceptable in 18 either case, right? 19 COMMISSIONER SIDNEY LINDEN: She's 20 already agreed with you, Mr. Rosenthal. I think -- 21 MR. PETER ROSENTHAL: Yes, well -- 22 COMMISSIONER SIDNEY LINDEN: -- agreed as 23 much out of this point as you can. 24 MR. PETER ROSENTHAL: With respect, Mr. 25 Commissioner, she agreed --
2811 COMMISSIONER SIDNEY LINDEN: Yes. 2 MR. PETER ROSENTHAL: -- but then she 3 said, well, but it does say contravened the law and -- 4 but anyway, I'm moving on, if I may. 5 COMMISSIONER SIDNEY LINDEN: Now, Mr. 6 Rosenthal, you've been approximately one (1) hour. You 7 estimated two (2). 8 MR. PETER ROSENTHAL: I had estimated two 9 (2). 10 COMMISSIONER SIDNEY LINDEN: Do you think 11 you might be another hour? 12 MR. PETER ROSENTHAL: I think so, sir. 13 COMMISSIONER SIDNEY LINDEN: Then I think 14 we may adjourn early today and I'm just wondering if we 15 should try to have you finish or -- 16 MR. PETER ROSENTHAL: I -- I -- I was 17 told that we may adjourn around 4:30, if that's -- if 18 it's -- 19 COMMISSIONER SIDNEY LINDEN: It's four 20 o'clock. 21 MR. PETER ROSENTHAL: Unless "around" is 22 interpreted very generously, I don't think I would 23 finish. But this would be a place to stop if you like, 24 or I could go -- 25 COMMISSIONER SIDNEY LINDEN: Well, no I--
2821 MR. PETER ROSENTHAL: -- a little bit 2 further. 3 COMMISSIONER SIDNEY LINDEN: -- was 4 hoping that if we did adjourn, you might look at what you 5 have left and perhaps you could tighten it up. 6 MR. PETER ROSENTHAL: I -- 7 COMMISSIONER SIDNEY LINDEN: Perhaps Mr. 8 Falconer could, too, if we had a night to look at it. 9 MR. PETER ROSENTHAL: Okay. 10 COMMISSIONER SIDNEY LINDEN: But I don't 11 want to -- 12 MR. PETER ROSENTHAL: Okay, I -- no, I -- 13 I do undertake, sir, to -- to look it over and try and 14 tighten it as much as possible, I really do. 15 COMMISSIONER SIDNEY LINDEN: Should we go 16 a little further or do you think this would be a good 17 point for you to stop to do a review? 18 MR. PETER ROSENTHAL: It's a good -- it's 19 a good point in the sense of the top -- we just ended 20 that topic and we're -- 21 COMMISSIONER SIDNEY LINDEN: I think it's 22 been a long day for the Witness and for me and for all of 23 us and I think that, in view of the fact that looking at 24 the time estimates, we should be finished with -- 25 MR. PETER ROSENTHAL: Yes.
2831 COMMISSIONER SIDNEY LINDEN: -- 2 Commissioner Boniface perhaps as early as noon and we'll 3 get to Commissioner O'Grady sometime tomorrow. 4 So that being the case, I'm going to 5 adjourn for the day right now. 6 MR. PETER ROSENTHAL: Thank you, Mr. 7 Commissioner. Thank you -- 8 COMMISSIONER SIDNEY LINDEN: And we'll 9 reconvene tomorrow at nine o'clock. Thank you. 10 11 (WITNESS RETIRES) 12 13 THE REGISTRAR: This Public Inquiry is 14 adjourned until tomorrow, Thursday June 15th, at 9:00 15 a.m. 16 17 --- Upon adjourning at 4:20 p.m. 18 19 Certified Correct 20 21 22 ___________________________ 23 Carol Geehan 24 25