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 15th, 2006 25
21 Appearances 2 Derry Millar ) Commission Counsel 3 Susan Vella ) (np) 4 Donald Worme, Q. C ) (np) 5 Katherine Hensel ) (np) 6 Megan Ferrier ) (np) 7 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 ) (np) 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 ) (np) 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. ) Marcel Beaubien 3 Mary Jane Moynahan) (np) 4 Dave Jacklin ) (np) 5 Trevor Hinnegan ) (np) 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 5 GWENNETH MARIE BONIFACE, Resumed 6 Continued Cross-Examination by Mr. Peter Rosenthal 9 7 Cross-Examination by Mr. Kevin Scullion 57 8 Cross-Examination by Ms. Colleen Johnson 72 9 Cross-Examination by Mr. Julian Falconer 87 10 Cross-Examination by Mr. Mark Sandler 295 11 Continued Cross-Examination by Mr. Julian Falconer 306 12 13 THOMAS O'GRADY, (Recalled), Sworn 14 Examination-In-Chief by Mr. Derry Millar 313 15 16 17 Certificate of Transcript 348 18 19 20 21 22 23 24 25
81 EXHIBITS 2 No. Description Page 3 P-1728 Document Number 2000996. MSGCS Issue 4 Note re. OPP crested items, Ipperwash, 5 December 18, 1996. 26 6 P-1729 Provincial Auditor's Report 1998. 213 7 P-1730 Standing Committee on Public Accounts, 8 May 03, 2001 214 9 P-1731 Auditor General's Annual Report of 2005. 214 10 P-1732 Reserved. 300 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
91 --- Upon commencing at 9:01 a.m. 2 3 THE REGISTRAR: This Public Inquiry is 4 now in session, the Honourable Mr. Justice Linden 5 presiding. Please be seated. 6 MR. PETER ROSENTHAL: Good morning, Mr. 7 Commissioner. 8 COMMISSIONER SIDNEY LINDEN: Good 9 morning, Mr. Rosenthal. 10 COMMISSIONER SIDNEY LINDEN: Good 11 morning, everybody. Ready to go? 12 MR. PETER ROSENTHAL: I am, sir. Thank 13 you. 14 COMMISSIONER SIDNEY LINDEN: Good. 15 16 GWENNETH MARIE BONIFACE, Resumed 17 18 CONTINUED CROSS-EXAMINATION BY MR. PETER ROSENTHAL: 19 Q: Good morning, Madam Commissioner. 20 A: Good morning. 21 Q: Could you please turn to Exhibit P- 22 1051 the discipline file. Sorry, did you -- no, you 23 should have a -- did you have a separate book? 24 25 (BRIEF PAUSE)
101 Q: Sorry, I thought you had it in front 2 of you. Just wait a minute, please. 3 4 (BRIEF PAUSE) 5 6 Q: It's Volume I of the discipline that 7 I'm interested in and Tab 17 thereof in which you'll 8 recall is the report of the investigator. 9 And then I'm interested in an item on page 10 16. It says page 16 on -- on the top in -- in writing, 11 right? 12 A: That's correct. 13 Q: Okay. 14 A: I'm sorry, in -- in -- 15 Q: I'm sorry? 16 A: -- in numeral number it -- or page 16 17 in writing? 18 Q: Sorry? 19 A: They don't match. 20 Q: That's right, it's the written words, 21 page 16. 22 A: Thank you. 23 Q: Yeah. The -- the numeral just refers 24 to the tab number, I believe. 25 Anyway, the -- the second paragraph there
111 is -- reads: 2 "[redacted] was shown two (2) designs; 3 one (1) with an arrow, one (1) with a 4 feather. He stated that the one with 5 the arrow was offensive but he was not 6 personally offended by the feather." 7 Now, it would appear then that at least -- 8 there were I believe at least two (2) designs for T- 9 shirts that were known to the investigator: one (1) with 10 an arrow and one (1) with a feather. We can be certain 11 but we have had recently surface a, as you know, a T- 12 shirt with an arrow and it would possibly suggest that 13 that T-shirt was known to the investigator as well. 14 Now, were you aware of that at the time? 15 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 16 Roland...? 17 MR. IAN ROLAND: That's -- My Friend has 18 -- isn't putting the evidence fairly even as we know it 19 because the person who designed the T-shirt with the 20 feather is the same person who designed this T-shirt he's 21 referring to, with the arrow. That person was 22 interviewed in the course of this investigation. 23 No, the -- the person who designed the T- 24 shirt with the feather, also designed a T-shirt with an 25 arrow, that's what this shows.
121 COMMISSIONER SIDNEY LINDEN: But not the 2 T-shirt with the arrow -- 3 MR. IAN ROLAND: Not that T-shirt. 4 COMMISSIONER SIDNEY LINDEN: Oh, another-- 5 MR. IAN ROLAND: A T-shirt with an arrow. 6 And this person has indicated, as we say in the 7 statement, that he had these two (2) designs and showed 8 them to somebody -- 9 COMMISSIONER SIDNEY LINDEN: That hasn't 10 been clear, Mr. Roland. But just -- 11 MR. IAN ROLAND: Then I think it's clear 12 from the statement. This person was interviewed -- this 13 person was interviewed in the course of the 14 investigation. The T-shirt we know of with the arrow -- 15 COMMISSIONER SIDNEY LINDEN: Is a 16 different -- 17 MR. IAN ROLAND: -- was never interviewed 18 -- was never part of this investigation. In other words, 19 it's clear there are two (2) different T-shirts -- 20 COMMISSIONER SIDNEY LINDEN: With an 21 arrow? 22 MR. IAN ROLAND: -- with arrows. 23 COMMISSIONER SIDNEY LINDEN: With arrows? 24 MR. IAN ROLAND: Yes. 25 COMMISSIONER SIDNEY LINDEN: Yes.
131 MR. PETER ROSENTHAL: Well, with respect, 2 do we have -- is Mr. Roland saying that he's basing all 3 that he just told us on this paragraph or does -- he's 4 suggesting to show -- 5 COMMISSIONER SIDNEY LINDEN: I'm not 6 sure. There -- 7 MR. PETER ROSENTHAL: -- other evidence? 8 COMMISSIONER SIDNEY LINDEN: -- may be 9 others. 10 Yes, Mr. Millar...? 11 12 (BRIEF PAUSE) 13 14 MR. DERRY MILLAR: At Tab 41, the -- 15 there's an interview of the -- with the constable, 16 November 1st, 1995 and it talks about the T-shirts were 17 produced with a logo that was found to be offensive. 18 Can you tell me your knowledge? 19 "On September 7th, 1995, I was 20 approached by [blank] to produce an 21 emblem with the OPP shoulder flash with 22 an arrow through it. It had ERT on one 23 side and TRU on the other. Constable 24 [blank] did ask me if I found it 25 offensive. I told (blank) to think
141 about it. I don't remember the exact 2 time seen me again but did show me a 3 revised version of the original emblem. 4 I don't know -- remember if asked if it 5 was offensive, but I may have said I 6 wasn't offended. That was the only 7 emblems I saw. 8 Didn't see the emblems later until when 9 I saw the coffee cups and T-shirts. 10 That's about all I know." 11 The -- but the -- the person that's being 12 referred to here on page 16 is the person who made the T- 13 shirts with the feather -- the ultimate one with the 14 feather and he had one with an arrow. 15 It's quite separate and apart from the -- 16 and I -- the evidence is pretty clear, from the one we 17 got last week or recently with the TRU symbol and the 18 broken arrow and the anvil. 19 COMMISSIONER SIDNEY LINDEN: That was 20 done by Klym. That one was prepared by Klym and he -- 21 MR. DERRY MILLAR: The one prepared by -- 22 COMMISSIONER SIDNEY LINDEN: -- testified 23 -- 24 MR. DERRY MILLAR: -- by Klym. 25 COMMISSIONER SIDNEY LINDEN: -- yes.
151 MR. PETER ROSENTHAL: With respect, Mr. 2 Commissioner, one thing of course is I'm in a great 3 disadvantage compared to My Friends who spoke because of 4 the redaction and I, as opposed to them, don't know who 5 is who in either of these matters. 6 COMMISSIONER SIDNEY LINDEN: Well -- 7 MR. PETER ROSENTHAL: But still, it's not 8 absolutely clear, in my submission, from what was said, 9 that it couldn't have been the other T-shirt with an 10 arrow as well that was shown, because -- 11 COMMISSIONER SIDNEY LINDEN: What is your 12 question, then? 13 MR. PETER ROSENTHAL: But in any event -- 14 COMMISSIONER SIDNEY LINDEN: In any 15 event, get to the point. 16 MR. PETER ROSENTHAL: -- I'll move on. 17 18 CONTINUED BY MR. PETER ROSENTHAL: 19 Q: Was there -- in retrospect now, 20 knowing everything that you know now, does it suppose you 21 that the -- this investigation did not reveal the T-shirt 22 that was revealed at this Inquiry several weeks ago? 23 A: I would have hoped it would have. 24 Q: I'm sorry? 25 A: I would have hoped that it would
161 have. 2 Q: Yes. Now, when an investigation of 3 this type is being undertaken, what authority do the 4 investigators have to request that -- or to insist that 5 officers turn in any such T-shirts so that they can 6 determine the situation? 7 Would there be any authority that they 8 would have to insist that officers come forward with any 9 T-shirts they may have? 10 A: In a general sense, or specifically, 11 to specific individuals? 12 Q: Would they be able to make a general 13 call out? Would you, as Commissioner, be able to say 14 there's an investigation going on. I am instructing all 15 officers who have any T-shirts in relation to Ipperwash 16 to turn them in to their Detachment commanders forthwith. 17 A: My understanding is I don't. 18 Q: Your understanding is you do not have 19 that power? 20 A: That's correct. 21 Q: And that would then limit -- and you 22 don't have the power and the OPP generally doesn't have 23 that power, is your understanding? 24 A: That's correct. 25 Q: And that would then limit the
171 possibility of you doing such an investigation; isn't 2 that fair? 3 A: It would limit the possibility of 4 doing the type of call out you refer to. 5 Q: Yes. But -- and such a call out 6 would undoubtedly have revealed the other T-shirt -- 7 A: Yes. 8 Q: -- given that it was widely 9 distributed, right? 10 A: Presumably, yes. 11 Q: And wouldn't you agree that it would 12 be appropriate for you to have the authority to do such a 13 call out? 14 A: It would have been helpful in this 15 case. 16 Q: Yes. And one can imagine many other 17 cases where it would be helpful? 18 A: Perhaps. 19 Q: So, would that require then some 20 clarification of your authority in order to -- to allow - 21 - you would need some specific authority to be able to 22 summon private property of officers; is that -- is that 23 what the concern would be? 24 A: Yes, that's my understanding. 25 Q: And so if the Commissioner were to
181 recommend -- this Commissioner were to recommend that 2 there be consideration given of giving you such 3 appropriate authority that might be useful in future 4 investigations? 5 A: I think it's something you'd have to 6 think more about in terms of broader implications. 7 Q: Yes. The parameters of such 8 authority would have to be seriously considered? 9 A: And there's significant 10 considerations -- 11 Q: And there would be significant 12 considerations. 13 A: That's correct. 14 Q: It wouldn't be -- you and I couldn't 15 right now design a policy in the next two (2) minutes? 16 A: No. 17 Q: But a recommendation that such a 18 policy be investigated might be appropriate; is that 19 fair? 20 A: I think you may wish to also look at 21 what the current LeSage Report says around what the 22 changes are going to be and I can't speak in detail to 23 that. 24 Q: Yes. So it should be considered in 25 that context as well?
191 A: Yes. 2 Q: Thank you. Now, if you could please 3 look at Tab 11 of your big book, I believe. And there's 4 a document that is now P-1724 and it's some OPP police 5 orders? 6 A: Sorry, I think I got my books mixed 7 up. Yes. 8 Q: The second page of the orders talks 9 about permitted uses for OPP images? 10 A: That's correct. 11 Q: And it says: 12 "OPP images with the proper 13 authorization may be used for..." 14 And then it has several bullet points. 15 And the first entry is souvenirs, right? 16 A: Yes. 17 Q: So do I take it that the items that 18 were designed in 1995 with respect to Ipperwash would be 19 permitted under the new regulations as well, as long as 20 they received the approval of the Detachment Commander? 21 A: No, I think the interpretation on 22 souvenirs would be things like community-service related 23 issues. Gifts that you would give; not in this -- not in 24 this regard. 25 Q: Well, we -- we understand that the T-
201 shirts and mugs were produced as mementos? 2 A: Yeah, I wouldn't put them in this 3 category though, sir. 4 Q: Well, I suggest it might be difficult 5 to argue that they're not souvenirs for the officers -- 6 A: Well, I would -- 7 Q: -- of the event? 8 A: It would certainly not be the 9 intention and it wouldn't get the authorization. The 10 souvenirs here are meant -- the context of it would be if 11 you had visiting dignitaries coming and you -- and I gave 12 a gift to them; it would have the -- a gift to take back; 13 that sort of thing. That's the way I would have 14 interpret it. 15 Q: Well, you agree it's not worded that 16 narrowly certainly? 17 A: It could be clarified if that's 18 helpful. It's clear to me. 19 Q: It's clear to you that it would not 20 include a T-shirt that an officer regarded as a souvenir 21 of his participation in Ipperwash? 22 A: That's correct. 23 Q: And it would not include a mug that 24 an officer regarded as a souvenir -- 25 A: That's correct.
211 Q: -- of his participation? Okay. 2 Thank you. 3 Now, there is a document that I don't 4 believe has been made an exhibit but is in our database. 5 It's Inquiry Document 2000996 and I should like to please 6 to have a copy given to the Witness and to the 7 Commissioner. 8 COMMISSIONER SIDNEY LINDEN: Thank you. 9 MR. DERRY MILLAR: Yes, it is an exhibit. 10 MR. PETER ROSENTHAL: It is an exhibit? 11 Mr. Millar knows these things much better than all the 12 rest of us put together it seems. And so -- 13 MR. DERRY MILLAR: It is around a 14 thousand (1,000) or a thousand and one (1001). If you 15 give me a moment I can just -- 16 MR. PETER ROSENTHAL: Yes. Perhaps, with 17 your permission, Mr. Commissioner, I would go on with my 18 questioning now and Mr. -- 19 COMMISSIONER SIDNEY LINDEN: Carry on 20 with your questions while you find the number. 21 MR. PETER ROSENTHAL: -- Millar will be 22 free to -- 23 COMMISSIONER SIDNEY LINDEN: That's fine. 24 MR. PETER ROSENTHAL: -- because of the 25 exhibit number. Thank you.
221 2 CONTINUED BY MR. PETER ROSENTHAL: 3 Q: Now, this document is an MSGCS issue 4 note dated December 18, 1996, and refers to the issue of 5 OPP crested items Ipperwash. 6 Have you seen this document before? 7 A: I -- I must have at some point, it's 8 in the package. 9 Q: Yes. Now, I gather that these issue 10 notes are given to the Office of the Solicitor General -- 11 the Ministry of the Solicitor General so they can respond 12 to questions from the media and questions -- 13 A: Issue notes go to -- 14 Q: -- in the -- in the House and so on? 15 A: Yes. 16 Q: To give them background information 17 for such responses; is that -- 18 A: Correct. 19 Q: -- that's the function of these 20 notes, correct? 21 A: Yes. 22 Q: Now, the first bullet point in this 23 says: 24 "Unofficial memorabilia bearing OPP 25 insignia was produced in relation to
231 the occupation of Ipperwash Provincial 2 Park in the fall of 1995." 3 Now, you would agree that the memorabilia 4 that the public knew about, at least primarily, were the 5 T-shirts and mugs? 6 A: Yes. 7 Q: And that's what members of the public 8 and the Solicitor General's Ministry would undoubtedly 9 have understood by the memorabilia being referred to in 10 the first bullet point? 11 A: That's correct. 12 Q: And then it says: 13 "Development of these items were ad hoc 14 initiatives of individual members of 15 the OPP and Professional Standards 16 Bureau of the OPP has completed the 17 investigation." 18 But then it says: 19 "Corrective action was taken against 20 four (4) members of the OPP." 21 Now, you've told us that there was no 22 action taken against the makers of the T-shirts and mugs, 23 right? 24 MR. DERRY MILLAR: No, that is not right. 25 THE WITNESS: No.
241 MR. PETER ROSENTHAL: Or was there 2 corrective action taken against the -- the makers of the 3 T-shirts and mugs? 4 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 5 Sandler...? 6 MR. MARK SANDLER: If I can assist. Her 7 -- her evidence was non disciplinary discussions took 8 place in relation to the makers of the T-shirts and mugs 9 and the supervising officers but the only corrective 10 action in the form of informal discipline took place on 11 the suction cup and on the beer can. So -- so My 12 Friend's correct. It's a -- 13 MR. PETER ROSENTHAL: Yes. 14 MR. MARK SANDLER: No, no, he's correct 15 on that aspect of it. 16 MR. PETER ROSENTHAL: Yes, thank you. 17 And I appreciate the more fulsome explanation by My 18 Friend. 19 20 CONTINUED BY MR. PETER ROSENTHAL: 21 Q: So would you agree then that this is 22 misleading in suggesting that corrective action was taken 23 against four (4) members of the OPP for the unofficial 24 memorabilia? 25 A: I think -- I think there's a mistake
251 on it, yes. 2 Q: Yes. And that would tend to give the 3 public more reassurance that appropriate measures had 4 been taken with respect to those unofficial memorabilia 5 than actually was correct, right? 6 A: I -- I think it's -- it's fair to 7 say that the information is not accurate. 8 Q: Yes. And I -- I gather that your 9 position at the time would have been, and upon reflection 10 would have been also, that there should have been some 11 corrective action of a more substantial type taken 12 against the makers of the mugs and the T-shirts, right? 13 A: The corrective action that was 14 recommended I thought should have been higher. 15 Q: Yes. 16 A: That's correct. 17 Q: And but this note might -- might 18 imply that what you thought should have been done was 19 actually done, right? 20 A: I -- I don't recall. 21 Q: Thank you. 22 MR. DERRY MILLAR: Just for the purposes 23 of clarity of the record, the -- Exhibit P-1000 is 24 Inquiry Document 30001775 which is the issue note -- an 25 issue note dated December 18th, 1996, version 6 at 1208.
261 It's a three (3) page document. 2 The -- but it does not have on it the 3 words, "Corrective action was taken against four (4) 4 members of the OPP." Those words appear on Exhibit P- 5 1002, Inquiry Document 2000995 which is the next version 6 of the issue note. 7 And I note that the -- the one that My 8 Friend Used was a 2000996. It looks like the -- the 9 December 18th '96 issue note was revised and the 10 corrective action was put into the next issue note, 11 version 7, January 8th, 1997. 12 MR. PETER ROSENTHAL: Yes. So -- so 13 given that I would suggest that this should be made an 14 additional exhibit so we have the whole evolution of this 15 issue note. 16 COMMISSIONER SIDNEY LINDEN: Yes. Yes. 17 MR. PETER ROSENTHAL: So, thank you. So, 18 may this document -- Inquiry document 2000996 please be 19 made the next exhibit. 20 THE REGISTRAR: P-1728, Your Honour. 21 COMMISSIONER SIDNEY LINDEN: P-1728. 22 23 --- EXHIBIT NO. P-1728: Document Number 2000996. 24 MSGCS Issue Note re. OPP 25 crested items, Ipperwash,
271 December 18, 1996. 2 3 CONTINUED BY MR. PETER ROSENTHAL: 4 Q: Thank you. Now, Commissioner, we've 5 had evidence that after the conviction of Ken Deane and 6 pending his appeal, there were the pins produced and they 7 were sold in order to raise funds to assist him in his 8 appeal, and also there were T-shirts produced that read, 9 "I support Ken Deane", or words to that effect. 10 Now, given the fact that he had been 11 convicted of criminal negligence causing death at the 12 time that those items were being produced and 13 distributed, and given that the Judge, in convicting him, 14 had found that the accused, Kenneth Deane, knew that 15 Anthony O'Brien Dudley George did not have any firearms 16 on his person when he shot him, that the story of the 17 rifle and the muzzle flash was concocted ex post factum 18 in an ill fated attempt to disguise the fact that an 19 unarmed man had been shot, do you agree that it would be 20 -- it was inappropriate for officers to be in that public 21 way, proclaiming support for him at that stage after that 22 conviction? 23 A: I would have preferred that they not. 24 However, I understand the circumstances of the defence 25 fund.
281 Q: Yes. But would you agree there's a 2 difference between contributing to a defence fund by 3 people who might feel that he certainly deserves an 4 appeal and they want to support that appeal on the one 5 hand, and publicly walking around with T-shirts that say 6 "I support Ken Deane" and -- 7 A: Yes, I agree. 8 Q: -- buttons that say it and so on? 9 There's a -- 10 A: Yes. 11 Q: -- difference, right? And from the 12 point of view of concern that you might have, as 13 Commissioner of the OPP, there's an importance 14 difference, is there not? 15 A: Yeah, yes. 16 Q: And which -- would you agree that 17 while it may be excusable to -- to excuse contributions 18 to a defence fund, that as Commissioner of the OPP, you 19 would prevent a public display of support in those 20 circumstances by officers? 21 A: That I would? 22 Q: Yes. If this were to happen 23 tomorrow, same circumstance exactly, would you as 24 Commissioner use your authority to prevent a public 25 display of support by OPP officers for someone who had
291 been convicted of criminal negligence causing death and 2 with the -- including the manner of the conviction that I 3 read out to you? 4 A: I don't believe I'd have the 5 authority to do it. 6 Q: I see. As you know, being a 7 Barrister and Solicitor as well as an officer, that as a 8 Barrister and Solicitor you must -- you must -- you can't 9 perform conduct that's unbecoming a Barrister and 10 Solicitor, outside a courtroom -- 11 A: Hmm hmm. 12 Q: -- in life, in general? Are there 13 any such restrictions on OPP officers, as far as what 14 they can do off duty that might -- might -- given the 15 fact that they are, perhaps, known to be OPP officers, 16 bring discredit upon the Force? 17 A: There's regulations within the Act in 18 regard to conduct and discipline. 19 Q: And would not those regulations give 20 you the authority to stop a public display, I support Ken 21 Deane movement, by OPP officers in those circumstances? 22 A: I wouldn't have thought so. 23 Q: I see. 24 A: I'd have to put greater thought to 25 it, but I wouldn't have thought so.
301 Q: I see. Would you agree then, again, 2 that that matter might be -- that this Commissioner might 3 recommend the study of that matter for future purposes 4 and possible change in regulations or whatever is 5 appropriate? 6 A: I'd leave it to the Commissioner. I 7 -- I don't know that you can go that broad. 8 Q: I'm sorry? 9 A: I don't know that you can go that 10 broad, but -- 11 Q: But it might be worthy -- 12 A: -- the Commissioner could certainly-- 13 Q: -- of investigation. 14 A: -- look at it. 15 Q: Thank you. Now, we've had evidence 16 at this Inquiry that there were OPP officers who were 17 assigned to assign Norm Peel, the lawyer who was 18 defending Ken Deane in his criminal matter. 19 You're aware of that evidence? 20 A: Yes. 21 Q: And we have evidence that they did so 22 for several weeks and then there was instruction from the 23 then-Commissioner that they should cease doing so. But 24 that after that they still helped with filing materials, 25 helping Mr. Peel find his way through the files and did -
311 - and also that they conducted interviews of military 2 personnel and obtained information and were in contact 3 with Mr. Peel back and forth about that and so on after 4 that. 5 As far as you're aware was there any 6 investigation of the possibility of disciplinary 7 imposition upon officers involved in assisting Ken 8 Deane's defence? 9 A: Not that I'm aware of. 10 Q: Now, we also have evidence that with 11 respect to Ken Deane's appeal there were a number of 12 affidavits that were solicited by a Ron Piers who was 13 assisting in the defence. I understand that Ron Piers is 14 a former Deputy Commissioner of the OPP; is that correct? 15 A: That's correct. 16 Q: And you knew him as such did you? 17 A: Yes. 18 Q: Now, evidence before this Tribunal 19 includes that a number of officers were instructed by 20 superior officers to see Mr. Piers during that time 21 period and -- and they gave affidavits to Mr. Piers that 22 were to be used in supporting the appeal of Ken Deane; 23 you're aware of that evidence roughly, are you? 24 A: Generally only. 25 Q: Yes. Now, is that proper behaviour
321 by OPP officers in your view? 2 A: I would expect that -- I don't know 3 the context of the affidavit and I don't know what it 4 relates to so I'm not sure I can be helpful for you in 5 that regard. 6 Q: Well, forgetting the content of the 7 affidavit, let me emphasize certain aspects of it. Done 8 while the officers are on-duty as part of their duties 9 and under instruction of superior officers; does that 10 give you a problem that they were assisting in the 11 defence in that way in those circumstances, forgetting 12 the context of the affidavit? 13 A: Yeah, I understand what you're 14 saying. If I take it outside of the -- of Ken Deane and 15 make it anybody -- 16 Q: Yes. 17 A: -- and an officer had something that 18 is part of a case that they should contribute or are 19 asked to contribute no matter who the lawyer is, I would 20 have thought that we would expect they would do it. 21 Q: I see. And that would have been if a 22 defence lawyer requested it, regardless? 23 A: Well, I would think, anything that 24 serves the purpose of the appeal is appropriate. But 25 because I don't know the specifics of this it's hard for
331 me to comment on the specifics. 2 Q: But what about the situation where 3 senior officers are telling officers to go see Mr. Piers. 4 See if you can assist him? 5 A: Well, I think it depends in context 6 in which the request is made and such like, and I don't 7 know the information well enough, I don't think. 8 Q: Okay. So just to understand what 9 you're saying, I gather you're saying if it -- a defence 10 lawyer requests that an OPP officer give an affidavit 11 then it would be appropriate for that officer to respond 12 and give a true affidavit for whatever purpose it may be, 13 right? 14 A: Well, it depends on the context. I'm 15 not sure -- quite frankly, I'd have to look into it a 16 little further. I'm not sure that I - I'm -- the set of 17 facts would tell me whether it's appropriate or not. 18 Q: Yes. Yes. Let me emphasize a 19 different aspect -- 20 A: Yeah. 21 Q: -- of it then. It appears that there 22 was a rather concerted effort for many officers to be 23 gathered to try to support the appeal of Ken Deane by 24 interacting with Ron Piers on behalf of Norm Peel. 25 Now, would you agree that there's a
341 problem with a concerted effort like that being made as 2 part of officers' official duties in response to the 3 commands from superior officers and so on? 4 A: I think it would be something one 5 should look at, yes. 6 Q: Former Commissioner O'Grady 7 apparently felt at the time that it was inappropriate for 8 the officers to be assigned to assist the defence of Ken 9 Deane as they had been during that several week period. 10 A: Yes. 11 Q: Would you -- but you're not prepared 12 similarly to agree -- you agree with that, by the way? 13 A: Yes. 14 Q: You agree with -- 15 A: Yes. 16 Q: You agree with that decision by 17 former Commissioner O'Grady? 18 A: Absolutely. 19 Q: And would you not similarly agree 20 that a concerted effort to support Ken Deane's appeal by 21 having a number of officers speak with Ron Piers on 22 behalf of Norm Peel and so on would be similarly 23 inappropriate for the OPP to do on paid time? 24 A: I understand exactly what you're -- 25 what you're saying and I'm just trying to measure it.
351 Because there will be times, if I take it outside of Ken 2 Deane, where defence counsel will ask in an appeal to 3 speak to an officer, I would expect, and will be granted 4 that opportunity for that purpose. 5 Q: Yes. Okay. 6 A: Your notion around a concerted 7 effort, I mean it would -- one would have to look at in 8 the -- in the context of what it looks like in -- in 9 order -- and so I understand what you're saying and you'd 10 have to weight it, absolutely. 11 Q: Now, you -- you indicated that you 12 will be using the opportunity afforded by this Inquiry to 13 get insight into your force in a number of ways. 14 Will you then consider that effort as the 15 evidence shows in this case and consider whether or not 16 it was appropriate or not and take appropriate action if 17 it was not appropriate? 18 A: I'll look forward to reading the 19 report from the Commissioner and -- and the detail in 20 that regard. 21 Q: But in addition to the report the 22 report -- there are many, many things of course to deal 23 with here and in addition to whatever the report deals 24 with you have the voluminous evidence at your disposal as 25 well --
361 A: Yes. 2 Q: -- to assist you in further 3 monitoring the Force, right? 4 A: Yes, I agree. 5 Q: And you would agree that that might 6 be an appropriate thing for you to look at given the 7 evidence? 8 A: Absolutely. Absolutely. 9 Q: Now, a related question is to follow. 10 We have evidence that very soon after the killing of 11 Dudley George a number of officers met with Mr. Peel and 12 before they were interviewed by the SIU in particular. 13 And as both a lawyer and a police officer 14 you would recognize that it's important in any criminal 15 investigation to get evidence from witnesses as freshly 16 as possible. 17 A: Yes. 18 Q: Right. Without it being tainted by 19 their knowledge of what other witness may say, right? 20 A: Yes. 21 Q: And different witnesses have 22 different views as to an event that happens and it's 23 important to get each witness' view as unencumbered by 24 other views as possible, right? 25 A: Yes, I would agree.
371 Q: So would you agree that there's a 2 danger if there's one (1) lawyer meeting with a number of 3 officers either meeting with them altogether or even 4 meeting individually with them and discussing an event 5 that there might be purposely or accidentally 6 contamination of some of those witness' evidence? 7 A: Yes, I thought that would be -- the 8 rules of that would be covered by the Law Society. 9 Q: Yes, but just from an investigation 10 point of view you agree that there is that danger? 11 A: Well, I think -- but I think the 12 caveat to that is I think the rule is an idle practice 13 law but I would think -- 14 Q: Okay. 15 A: -- the rules would cover that. 16 Q: But I'm interested in -- in your role 17 as Commissioner of the OPP so -- but you do agree there's 18 a danger of contamination, right? 19 A: There's a -- a -- well, from the 20 officer's perspective the separation is what's done 21 today. In terms of how the lawyers -- the lawyers deal 22 with that and I'm thinking through lawyers who represent 23 co-accused and things like that, it would be the same 24 issue. 25 Q: Yes, the same issue arises there and
381 it might be a danger there as well? 2 A: It could be. 3 Q: But there -- but there is evidently a 4 possible danger, right? 5 A: Yes. 6 Q: Now, what is your protocol right now, 7 if there's an SIU matter with respect to an incident 8 occurs that obviously would warrant an SIU investigation 9 and an officer seriously injures or kills someone? Are 10 the officers immediately segregated after that? 11 A: They're separated, yes. 12 Q: Sorry? 13 A: They're separated or segregated -- 14 Q: Segregated? 15 A: Yeah. 16 Q: Now, is that part of a regulation 17 that they must be segregated or is this just a practice? 18 A: I think it's actually in policy, but 19 it's in the SIU guidelines. 20 Q: In the SIU guidelines? 21 A: Yeah. 22 Q: And so -- but then within that 23 segregation suppose a lawyer says his -- that he or she 24 is retained by ten (10) officer and wants to meet with 25 them all as a group?
391 Would that be permitted or not permitted-- 2 A: No, because they -- they have to be 3 interviewed separately. 4 Q: They'd have to be -- 5 A: They would deal -- the lawyers would 6 then deal directly with the SIU investigators. 7 Q: I see. So -- 8 A: And if that was a difficulty or there 9 was an issue raised then the SIU would call us. 10 Q: So in other words the lawyer would 11 not be permitted to interview the officers until the SIU 12 appears? 13 A: No, but the SI -- they'd be 14 separated. 15 Q: Yes? 16 A: And the lawyers would give advice 17 either by phone or whatever and the SIU would then do the 18 investigation but they -- they have -- I believe they 19 have right to have counsel before they -- depending who 20 they are because we -- you're confusing whether they're 21 subject officers or witness officers -- 22 Q: Yes. There is -- 23 A: -- and all the detail that goes with 24 that. 25 Q: There is that distinction --
401 A: Yes. 2 Q: -- between the subject and witness 3 officers, but of course that distinction is not made 4 until there's some preliminary investigation, right? 5 A: That's correct. 6 Q: By the SIU? 7 A: Yes. 8 Q: The SIU makes that distinction 9 between subject and witness officers. 10 A: That's correct. 11 Q: But officers are allowed to 12 communicate with lawyers prior to the SIU being involved; 13 is that correct? 14 A: Yes. 15 Q: And there's no restriction on whether 16 one (1) lawyer can interview a large number of officers 17 or not before the SIU is involved. 18 A: One (1) at a time, you mean? 19 Q: Well, yes. 20 A: Yes. 21 Q: One 91) at a time is allowed? 22 A: Yeah. 23 Q: But you're saying it -- it's not 24 permitted that they collectively gather to be addressed 25 by a lawyer?
411 A: No, I would think the guidelines 2 won't permit that. 3 Q: That guidelines would not permit 4 that. Are those guidelines somewhere on our database 5 here, or do you know, or somewhere in these materials? 6 A: Sorry, I can't help you in that 7 regard. 8 Q: But these -- these are guidelines 9 that are OPP guidelines or SIU guidelines? 10 A: No, SIU have guidelines that they put 11 out. 12 Q: Okay. And your understanding of the 13 guidelines is that they are mandatory or guidelines? 14 A: Well, my -- my -- tell you in our 15 organization they're mandatory. 16 Q: Thank you. Now, we've had evidence 17 that there were other victims on September 6th, 1995 in 18 addition to Dudley George. There was Cecil Bernard 19 George; you told us that there was a settlement that was 20 confidential with respect to his injuries. 21 A: Yes. 22 Q: Now, as you know, Pierre George and 23 Carolyn George, brother and sister of Dudley George, and 24 a young man had a rather harrowing drive to the hospital 25 trying to get medical attention for --
421 A: Yes. 2 Q: -- Dudley George. And with -- well, 3 you know something about the nature of that drive, I 4 gather, do you? 5 A: Yes. 6 Q: They had a flat tire and a heroic 7 effort to get there by -- 8 A: Yes. 9 Q: -- back roads that turned out to be 10 the most direct route, but unfortunately the flat tire 11 made it a slower route. And then the tire completely 12 coming off the wheel and sparking into Strathroy and 13 finally arriving at the hospital to be grabbed by 14 officers, shoved up against the wall and told they're 15 under arrest and not seeing what happened to their 16 brother. 17 And then you also know about Marcia Simon 18 and Melva George, that they were trying to get an 19 ambulance and so on. 20 Now, in the course of this Inquiry we've 21 had many officers testify about those arrests and a 22 number of them defended those arrests in various ways. 23 Now, would you agree that, in retrospect 24 at least, analysing it, it's clear that there were not 25 reasonable and probable grounds for any of those arrests?
431 A: I haven't been privy to all the 2 evidence. With respect to the arrests at the hospital -- 3 Q: Yes. 4 A: -- I think it's extremely regrettable 5 that they were not able to continue and spend their time 6 with -- 7 Q: Yes. 8 A: -- with the deceased and I understand 9 that and -- and we apologize for that. Now, with respect 10 to the other incident with Marcia Simon, I don't have 11 enough detail and I'll wait -- I have not been privy to 12 all the evidence, and I'll wait to hear the -- the 13 outcome of that. 14 I just don't have a familiarity with that 15 one. I apologise. 16 Q: Yes, well may I first go back to the 17 -- the hospital. You say it's extremely regrettable and 18 that's welcomed. 19 But, of course, if Pierre George and 20 Carolyn George had been firing at police officers an hour 21 earlier then it might still be regrettable, but it would 22 be entirely justifiable, right? 23 A: Right. 24 Q: But you haven't analysed the 25 situation enough to come to the conclusion that the mere
441 fact that they were driving Dudley George to the hospital 2 after this event, did not constitute reasonable and 3 probable grounds to arrest them? 4 COMMISSIONER SIDNEY LINDEN: Well -- yes, 5 Mr. Sandler...? 6 MR. MARK SANDLER: In fairness, that 7 wasn't the position that was advocated, the mere fact 8 that they're driving to the hospital and nothing else. 9 But I think what the Witness has said is 10 that -- that without commenting on an issue that is 11 before you and that you've had conflicting evidence on, 12 namely the existence or absence of reasonable probable 13 grounds; she's apologized for the fact that these people, 14 as it turned out, were deprived of the opportunity to see 15 the deceased and -- 16 COMMISSIONER SIDNEY LINDEN: Yes. 17 MR. MARK SANDLER: -- and I don't know 18 how much further she can go at this -- 19 COMMISSIONER SIDNEY LINDEN: Yes. We've 20 heard a great deal of evidence on this, Mr. Rosenthal -- 21 MR. PETER ROSENTHAL: Yes. 22 COMMISSIONER SIDNEY LINDEN: -- and I'm 23 going to have enough -- enough difficulty sorting that 24 all out. I'm not sure if the Witness can respond to -- 25 MR. PETER ROSENTHAL: Yes, well --
451 COMMISSIONER SIDNEY LINDEN: -- that 2 without having at least as much evidence as we've had. 3 4 CONTINUED BY MR. PETER ROSENTHAL: 5 Q: My Friend suggested that she was 6 saying something which she certainly didn't articulate 7 but -- but I'm interested from the following point of 8 view, both Commissioners, a number of these officers are 9 still on the force. 10 They're going to go arrest somebody 11 tomorrow. It's important for them to understand any 12 restrictions that there may be on reasonable and probable 13 grounds. 14 And I'm suggesting to you, Commissioner, 15 that it is incumbent upon you to analyse the evidence 16 that was given here, and that's independent of the other 17 Commissioner's responsibility to come to conclusions for 18 the purposes of this Inquiry, but to analyse the evidence 19 and see if you have a serious problem as to what 20 officers, including very high rank officers, considered 21 to be reasonable and probable grounds; that's my 22 suggestion to you and what is your response to that, 23 please. 24 MR. DERRY MILLAR: Well, Commissioner, 25 it's not helpful to you to -- to --
461 COMMISSIONER SIDNEY LINDEN: No. 2 MR. DERRY MILLAR: My Friend can make his 3 argument at the end. My Friend -- the Commissioner 4 apologized, clearly apologized with respect to the 5 arrests and the fact that, and in the terms of the 6 individuals, Pierre George and Carolyn George could not 7 see their brother, and it's not appropriate in my view -- 8 it's your job to decide on all of the evidence we've 9 heard if it's -- if you decide to deal with this issue of 10 whether there was reasonable and probable grounds. 11 It doesn't assist you to put this question 12 to this Witness in my estimation. 13 COMMISSIONER SIDNEY LINDEN: I think I 14 agree with that, Mr. Millar. I'm not sure it would be 15 helpful to have her analysing some of the evidence and 16 drawing some conclusions about some of these matters 17 before I have an opportunity to look at it all and assess 18 the evidence. 19 MR. PETER ROSENTHAL: With respect, that 20 was not the thrust of my question. My question was, does 21 she feel she has a responsibility to do that analysis in 22 order to instruct her officers as to what constitutes 23 reasonable and probable grounds. 24 COMMISSIONER SIDNEY LINDEN: Well, she's 25 indicated that she's reviewing the evidence or monitoring
471 the evidence so -- 2 MR. PETER ROSENTHAL: Yes, but she didn't 3 answer that last question because it was objected to. 4 MR. DERRY MILLAR: Well -- and she also 5 said that after the -- the -- you'd issue your report 6 that she and others at the OPP will look at the report 7 which is -- you know, this isn't a -- what we've got to 8 do here is you've got to finish your report -- 9 COMMISSIONER SIDNEY LINDEN: Yes. 10 MR. DERRY MILLAR: -- and I am certain 11 that Commissioner Boniface and the OPP will look at your 12 report when it's finished. And then issues that arises 13 from that report, and it may be this may be one of them, 14 I presume they would look at. 15 COMMISSIONER SIDNEY LINDEN: Yes, I think 16 that's the way it should work. 17 MR. PETER ROSENTHAL: Just one (1) more 18 comment, Mr. Commissioner, that whether or not the 19 Commissioner of the OPP agrees that she would undertake 20 such a consideration might affect recommendations to you 21 as to what direction you should give the OPP. 22 COMMISSIONER SIDNEY LINDEN: Well, so far 23 the questions you've asked in that line have been 24 appropriate, but I think you've gone beyond that. 25 MR. PETER ROSENTHAL: Yes.
481 COMMISSIONER SIDNEY LINDEN: So far 2 you've made that point on some other matters because they 3 weren't quite as controversial; there wasn't quite as 4 much evidence to assess and the Witness was -- 5 MR. PETER ROSENTHAL: Yes. 6 COMMISSIONER SIDNEY LINDEN: -- I think, 7 the Commissioner could give you an opinion. But on this 8 I don't think it's possible given what she has and what 9 she knows. 10 MR. PETER ROSENTHAL: Well, perhaps may I 11 ask it in a more limited way then. 12 13 CONTINUED BY MR. PETER ROSENTHAL: 14 Q: Will your monitoring of the evidence 15 of this Inquiry include consideration of whether or not 16 some officers might have a poor understanding of 17 reasonable and probable grounds? 18 A: Can I just ask you to repeat that, 19 sorry? 20 Q: With your -- you've told us that 21 you're going to be monitoring this Inquiry to learn what 22 you can about your flaws, which would be obviously 23 appropriate, right? 24 A: Right. 25 Q: And so I'm asking you now: Will your
491 monitoring include examining the evidence to determine 2 whether or not it would be useful for you to instruct 3 some officers on the meaning of reasonable and probable 4 grounds? 5 A: Yes. 6 Q: Thank you. Now, you -- you indicated 7 that you apologized to Pierre and Carolyn George, the 8 brother and sister who were driving Dudley to the 9 hospital, but you felt you don't know enough about the 10 situation involving Marcia Simon and Melva George to 11 apologize to them; is that -- did I understand that 12 correctly? 13 A: Yeah. I just don't know enough of 14 the facts, but I certainly would be willing to take a 15 look at it. 16 Q: I see. Well, may I respectfully 17 request that you do so? 18 A: I will. 19 Q: Now, also yesterday Mr. Klippenstein 20 put to you that you hadn't made any acknowledgement to 21 the family of Dudley George that the OPP made mistakes on 22 September 4, 5, and 6 and -- and you answered to the 23 effect that you didn't speak to those issues in your 24 questioning. 25 Do you recall that answer?
501 A: Yes, I -- I'm not sure that I 2 understood clearly his question. I have some comments 3 that I would like to make at the end of my testimony 4 today. 5 Q: And not now? 6 A: Yes, if I may. 7 Q: And that will relate to that question 8 will it? 9 A: Yes. 10 Q: Okay. I'll leave you to it then. 11 Now, what about, the press release I 12 pointed out to you yesterday was very inaccurate and as 13 to what the First Nations people had been doing that led 14 to the officers marching down the road. 15 There was never any correction of that 16 press release in the eleven (11) years since; is that 17 correct? 18 A: I don't -- I don't believe so. 19 Q: No. And would you agree that it 20 would have been appropriate to issue a correction? 21 A: I think if the information had been 22 available. 23 Q: Well, the information became 24 available certainly days afterwards that it was false, 25 right?
511 Within days it was known that there was no 2 person attacked in a vehicle by First Nations people with 3 baseball bats and so on, right? 4 COMMISSIONER SIDNEY LINDEN: Yes? Yes, 5 Mr. Sandler? 6 MR. MARK SANDLER: Philosophically, I -- 7 I can -- I can say I don't think there's any issue about 8 the fact that when a mistake is made in a press release 9 it should be corrected. If it -- if it assists My 10 Friend, it's a little -- 11 COMMISSIONER SIDNEY LINDEN: I think 12 that's the question he's asking. 13 MR. MARK SANDLER: Yeah. It's a little 14 bit complicated by the fact that there actually was 15 correction of some features, you'll recall in the 16 evidence. On the features that concern him there wasn't 17 but on the other hand the SIU had then intervened. 18 It's -- it's more complicated and I'm just 19 pointing out to My Friend if he wants to ask the 20 philosophical question should wherever possible a 21 correction be made when the facts come to light in 22 relation to a press release I have the -- I don't have 23 the slightest difficulty with that. 24 COMMISSIONER SIDNEY LINDEN: I think -- 25 MR. PETER ROSENTHAL: I don't want to
521 deal in philosophy -- 2 COMMISSIONER SIDNEY LINDEN: No. 3 MR. PETER ROSENTHAL: -- in spite of the 4 invitation to do so. 5 6 CONTINUED BY MR. PETER ROSENTHAL: 7 Q: But I -- I do want to deal with this 8 question and perhaps may I continue as follows that there 9 -- there was no correction of those facts as -- as your 10 counsel and you are aware of, right? 11 A: Yes. 12 Q: And I would put it to you that those 13 facts might tend to reinforce in someone who has racist 14 views about First Nations people some stereotypes about 15 First Nations people, right; the idea of they attack 16 somebody with baseball bats in a car, right? It could be 17 a problem, right? 18 A: Right. 19 Q: And so maybe there was a complication 20 with the SIU for a while and so on. Would you agree in 21 retrospect that it would have been appropriate for the 22 OPP to issue a loud and clear correction at some point 23 between 1995 and the present moment? 24 A: That could have been done, yes. 25 Q: Thank you. Now, just briefly, with
531 respect to politicians and the Command Post you indicated 2 that a policy is in the process of being prepared; is 3 that correct? 4 A: That's correct. 5 Q: And that was stimulated by this 6 Inquiry I presume? 7 A: I'm sorry? 8 Q: The -- the consideration of such a 9 policy was stimulated by this Inquiry I presume; is that 10 correct? 11 A: Yes. 12 Q: And do you have a target date as to 13 when that policy might be enforced? 14 A: It will be imminent. It's in the 15 drafting stage. 16 Q: I see. Now, overall you've -- you've 17 looked at this issue on and off for the last eleven (11) 18 years, right? 19 It's something that, before you were 20 Commissioner and since you've been Commissioner, it's 21 something you've had to return to from time to time, 22 right? 23 A: Correct. 24 Q: Can you tell us your opinion as to 25 why the OPP marched down the road that night against the
541 Stoney Point people? 2 COMMISSIONER SIDNEY LINDEN: I'm not sure 3 that's a question that this Witness can answer at this 4 time, Mr. Rosenthal. 5 MR. PETER ROSENTHAL: Well, she can give 6 us her opinion surely? 7 MR. DERRY MILLAR: Well -- but it's not - 8 - that's -- 9 COMMISSIONER SIDNEY LINDEN: Not helpful. 10 MR. DERRY MILLAR: What you're -- 11 COMMISSIONER SIDNEY LINDEN: That's the 12 essence of this Inquiry and it's something I've got to 13 do. 14 MR. DERRY MILLAR: It's not -- excuse me, 15 Commissioner -- 16 COMMISSIONER SIDNEY LINDEN: Yes, sir. 17 MR. DERRY MILLAR: -- I apologize for 18 interrupting. 19 COMMISSIONER SIDNEY LINDEN: I'm sorry, 20 Mr. Millar. 21 MR. DERRY MILLAR: This is the -- that's 22 the -- this is the decision that you have to make and it 23 doesn't assist you to have the opinion of a witness who 24 hasn't heard the two hundred and twenty (220) days' worth 25 of evidence, that -- to be asked a question -- a question
551 that you have to decide. 2 COMMISSIONER SIDNEY LINDEN: It's a 3 question that is the center of this entire Inquiry. 4 We've been sitting here hearing evidence. I hope I can 5 answer it at the end of this. I don't expect this 6 witness to be able to answer that in these circumstances. 7 MR. PETER ROSENTHAL: Well, with respect, 8 Mr. Commissioner, I think it's going to be a difficult 9 question for you to answer on that, but I'm very anxious 10 to read your answer. 11 But this Commissioner has other 12 information and other interactions over the years. 13 Perhaps I will phrase it somewhat differently if I may, 14 and try to see if I can assist. 15 16 CONTINUED BY MR. PETER ROSENTHAL: 17 Q: Would you agree, knowing what you 18 know about policing and knowing what you know about this 19 incident, that given the way they marched down the road 20 that night in the circumstances, it must have been, 21 knowing everything we know, that the political pressure 22 and the notion that they hadn't done their job the first 23 time in keeping people out of the Park, must have 24 consciously or unconsciously somehow played a role in 25 that decision.
561 Wouldn't you agree with that? 2 COMMISSIONER SIDNEY LINDEN: Again, I'm 3 not sure that that's a question that this Witness can 4 answer. She's -- 5 MR. DERRY MILLAR: How can that -- the 6 Witness answer that? 7 COMMISSIONER SIDNEY LINDEN: I don't 8 think she can. I think -- 9 MR. DERRY MILLAR: The witness can't. 10 COMMISSIONER SIDNEY LINDEN: Those are 11 questions that -- 12 MR. DERRY MILLAR: With respect. 13 COMMISSIONER SIDNEY LINDEN: Those are 14 questions that are -- 15 MR. PETER ROSENTHAL: She could answer it 16 "yes," "no" -- 17 COMMISSIONER SIDNEY LINDEN: No, no. 18 MR. PETER ROSENTHAL: -- maybe -- 19 COMMISSIONER SIDNEY LINDEN: No, no. 20 MR. PETER ROSENTHAL: -- or -- 21 COMMISSIONER SIDNEY LINDEN: I don't 22 think it's a proper question to ask, so maybe saying she 23 can't answer it isn't the right way to do it. It's not a 24 proper question to ask, Mr. Rosenthal. 25 MR. PETER ROSENTHAL: Well, and thank you
571 to both Commissioners. 2 COMMISSIONER SIDNEY LINDEN: Thank you, 3 Mr. Rosenthal. You've come in under your time limit, so 4 I'm grateful for that. 5 Thank you very much for making that 6 effort. The next examiner, I think, is Mr. Scullion. 7 8 (BRIEF PAUSE) 9 10 COMMISSIONER SIDNEY LINDEN: Good 11 morning, Mr. Scullion. 12 MR. KEVIN SCULLION: Good morning, Mr. 13 Commissioner. 14 15 CROSS-EXAMINATION BY MR. KEVIN SCULLION: 16 Q: Good morning, Commissioner. 17 A: Good morning. 18 Q: I can advise I too will probably be 19 under my estimate. Mr. Rosenthal's covered a number of 20 areas. 21 Good morning. My name's Kevin Scullion. 22 I represent residents of Aazhoodena, one of whom you met 23 this morning, Mark George. 24 And I'd like to stick mostly with policy. 25 And yesterday you testified about implementation
581 following this event of a major case review; a review of 2 the situation, what went right, what went wrong, that's 3 now part of the OPP's approach to a major incident? 4 A: We talked about the framework 5 yesterday and the emergency service review. I think that 6 would -- 7 Q: Right. 8 A: -- be what you're referring to. 9 Q: Okay. Because an issue that, perhaps 10 me alone, but I've raised a number of times in the 11 Inquiry is with regards to the Serpent Mounds Provincial 12 Park occupation that occurred a couple of days before the 13 Ipperwash Park was occupied. 14 And it seemed that most of the officers, 15 I'm not sure if any of them, were aware of, number 1, 16 that it had occurred and number 2, how it had progressed 17 and been peacefully resolved. 18 I take it from your monitoring, you're 19 aware of that evidence that's come from the officers? 20 A: I -- I've been aware of the reference 21 to Serpent Mounds. 22 Q: Okay. I take it, then, the potential 23 comparison of the Serpent Mounds event versus the 24 Ipperwash event would be something that would be included 25 in what you've referred to in the framework of major case
591 review? 2 A: Well, in the framework itself, I 3 think they looked at a number of different areas and best 4 practices and came up with that. I can't say 5 specifically if they looked at Serpent Mounds but I know 6 there's familiarity with Serpent Mounds with the people 7 who did that piece of the -- of the review. 8 Q: Okay. 9 A: So I'm assuming it's in there. 10 Q: Okay. Because we have heard from 11 members of MNR about a review that they had done and a 12 notation regarding action -- certain actions by 13 Superintendent Buxton in that particular case. 14 And I take it that in doing the review 15 that you're talking about, you're able to then apply a 16 fairly consistent approach to any upcoming events or -- 17 A: Yes. 18 Q: -- potential events? Another issue 19 that we've had a little bit of concern about is the 20 research that seems to have been done by the Incident 21 Commander in this particular into the merits of the 22 ownership issue. 23 A: I'm sorry, the merits of what? 24 Q: The ownership issue -- 25 A: Yes.
601 Q: -- of the Provincial Park. And 2 without getting into the details of what was reviewed and 3 what was found, I'd suggest to you that in doing that 4 kind of limited review, because it's obvious that a more 5 full review could be done if given more time and more 6 resources, that there's certain dangers to knowing part 7 of the situation and not all of the situation when 8 approaching an occupation of this type? 9 A: The more information the better, no 10 doubt about it. 11 Q: Okay. And one of the risks of doing 12 a partial review or a partial background check is that 13 it's possible, and I'm not saying that it happened in 14 this case, but it's possible that the Incident Commander 15 can have a certain mindset going into the occupation 16 regarding the merits of the occupation itself? 17 A: I think that's fair. 18 Q: Okay. And if that is the case, that 19 a certain mindset has become formed, it becomes a little 20 more difficult when you then hear justifications coming 21 from those in the occupation that are contrary to that 22 original mindset? 23 A: That's correct. 24 Q: And I bring it all back to the 25 concept of colour of right that will always come into
611 play in an occupation of this nature. And it's difficult 2 -- it becomes somewhat difficult if you've already 3 researched a little bit but not all into the merits of 4 the colour of right defence? 5 A: Yes. 6 Q: Would you agree with that? 7 A: Yes. 8 Q: Okay. Now, one of your documents, 9 and we'll have to work through the amount of material 10 before you, but in Tab 8 of a small binder, I think it's 11 been referred to, and it's regarding recordings. 12 MR. DERRY MILLAR: P-1715. 13 MR. KEVIN SCULLION: I'm helped with the 14 number, Mr. Commissioner. It's P-1715 but it's Tab 8 of 15 the small binder. And maybe -- I'll just cut to it very 16 quickly. 17 18 CONTINUED BY MR. KEVIN SCULLION: 19 Q: It regards the availability of 20 recording devices for the Command Post, the CMU, the TRU 21 Team and otherwise and I noted that there remains a 22 distinction between the TRU, or the group of TRU members 23 and the recording device available for their activities 24 and what appears to be everybody else? 25 A: Yes.
621 Q: Is there a reason for keeping that 2 separate or -- 3 A: Yes, it's -- it's a frequency that's 4 isolated and it's from a safety perspective. 5 Q: Okay. 6 A: So it's -- it has ability to be taped 7 and is taped but it needs to be isolated from the safety 8 perspective so they can talk to each other. 9 Q: Okay. So that will remain in place 10 for that particular reason? 11 A: Yeah, you can't change -- you can't 12 change it. 13 Q: Okay. Do I take it that it's an 14 automatic taping process or, like in our situation here, 15 it may still be subject to human error? 16 A: I think it is -- still has to be 17 activated. But the -- and it has taping capability that 18 converts to DVD so they're saved -- they're kept. 19 Q: And how -- how would it be activated? 20 Simply by the TRU team being activated or does it still 21 require an individual to flip a switch? 22 A: I think it's the switch -- flipping 23 the switch I think is the technology, but I can't be 24 sure. 25 Q: Okay. Maybe more detail and
631 information you're -- that's available to you. 2 A: Yes. 3 Q: Is there, now or potentially in the 4 near future, the availability of video recording from the 5 OPP's perspective? 6 A: In -- in the vehicle? 7 Q: In the vehicle or otherwise? And I - 8 - I raise that because in the course of the Inquiry we're 9 piecing together what occurred. 10 A: Sure. In the -- within patrol 11 vehicles in the OPP we have in-car cameras that have 12 video capability obviously. Now, we are piloting them in 13 both Toronto Detachment and Kenora Detachment and have, I 14 think, it's eight (8) units in Ottawa Detachment. 15 And once the pilot's finished, if it's 16 successful, which it certainly appears the direction it's 17 going in, we would move to go province-wide. 18 Q: Okay. So it's an issue that's being 19 looked into -- 20 A: Yes. 21 Q: -- and if possible and resources 22 allow for it? 23 A: And it's getting positive -- positive 24 feedback even from our members. So it's -- it's a step 25 in the right direction.
641 Q: Okay. In regards to notes there was 2 a reference to a P-1719 by Mr. Millar which is Tab 12, I 3 believe, of your small binder. And, again, I can 4 reference it very quickly. 5 There appears to be a change in policy 6 that requires the officers to record their notes before 7 the end of their shift unless they have special 8 permission otherwise? 9 A: That's correct. 10 Q: I take it that is a recognition that 11 the longer the issue sits the higher the possibility that 12 there's going to be contamination of what is then put in 13 print by the officer? 14 A: Yes. 15 Q: And -- 16 A: The -- the fresher the information 17 the better. 18 Q: Right. And that contamination can 19 occur not only from the officer forgetting what occurred 20 but also in discussions with other officers and members 21 of the public? 22 A: Yes. 23 Q: All right. Is that new policy being 24 adhered to, to your knowledge? 25 A: To my knowledge, yes.
651 Q: All right. So that is what I would 2 suggest a fundamental change in the note-taking practice 3 from as soon as soon as practical to an absolute 4 deadline. 5 A: Yes. 6 Q: And I take it that that came about in 7 part from what we've gone through in terms of the 8 officers taking notes for this particular incident? 9 A: I'm not sure if it's a direct result 10 but it's a best practice and that's -- I'm -- I'm not 11 sure if it's a direct result but certainly it's best 12 practice for today. 13 Q: Okay. We also heard in the course of 14 our -- the evidence that we heard from politicians that 15 there was in place a certain buffer system between the 16 OPP and upper level politicians such as the Cabinet? 17 A: Yes. 18 Q: I take it from your monitoring you're 19 aware of their evidence regarding that buffer system 20 where they had to go up one (1) side before they got to 21 the politicians and any politician comments had to come 22 back down that buffer system before reaching the Incident 23 Commander? 24 A: Yes. 25 Q: All right. I take it, it's your view
661 that that type of buffering system is important in a 2 situation like this in order to keep the information flow 3 to a -- a minimum or at least to what's important getting 4 to one (1) end of the buffer versus the Incident 5 Commander? 6 A: Yes. 7 Q: All right. A difficult question, but 8 the end result is limit the information flow? 9 A: That's right. 10 Q: In your evidence yesterday there was 11 a reference to part of the Connolly recommendations that 12 the OPP encourage discussions, I guess is a generous 13 term, with the government in regards to land claims? 14 A: Yes. 15 Q: Do you recall that recommendation? 16 A: Yes. 17 Q: I trust that that's one that's been 18 implemented through those resolutions that you talked 19 about yesterday where the OPP is trying to encourage the 20 governments to take an active part in any land claim 21 dispute? 22 A: Yes. 23 Q: And do I take it further to say that 24 not only does that relate to the Provincial Government 25 but the OPP would actively encourage the Federal
671 Government to also take an active part in the land claim 2 situation? 3 A: Absolutely. 4 Q: All right. Just to go back one (1) 5 step, Mr. Hinnegan asked you yesterday in cross- 6 examination, he represented Mr. Beaubien, about various 7 aspects of local politicians passing on information. And 8 my impression was that there didn't seem to be a 9 limitation on a local politician's access to the Incident 10 Commander; is that true? 11 A: I think he would want to -- we would 12 limit it as much as possible and try to deal with 13 somebody else who would deal with the -- the local. 14 The reality is, is that as -- as an 15 incident takes place, especially if it's in the early 16 stages of an incident, I'll take it outside of this 17 context and you put it into some sort of emergency in the 18 community, until you get everything organized those are 19 the -- those are usually, the mayor or whatever, are 20 usually the people who are needing answers just to get 21 the public information out. 22 So it's both limiting I think access on a 23 long-term but also limiting the type of conversation. 24 Q: So it's preferable to have a buffer 25 in place but sometimes at least at -- at least at the
681 outset it's not practical? 2 A: Especially in a small, remote area. 3 Q: Okay. Because we did hear evidence 4 last week from an expert on intelligence and one (1) of 5 the things that he said was an isolation of the Incident 6 Commander would be a best practices -- 7 A: Sure. Absolutely. 8 Q: -- approach. But I take it that 9 that's in a perfect world, having the Incident Commander 10 isolated, and he's -- 11 A: Yeah. 12 Q: -- still subjected to some influences 13 from local politicians as you say? 14 A: Yeah. And just from -- and I don't 15 like to use the word 'influence', but just from an 16 immediate emer -- information out there in order to -- 17 and I take it outside of this context, and if you had a 18 fire on the main street it's quite clear who the players 19 may be in the very early stages of that so -- 20 Q: Okay. I take it -- 21 A: -- you have to be conscious of it. 22 Q: I take it that that's an important 23 part of the training then, that the Incident Commander 24 Level 2 would have at their disposal? 25 A: Yes.
691 Q: And the concept that you're going to 2 have a lot of outside influences is going to be key in 3 that training session? 4 A: Yes. 5 Q: All right. And one (1) last issue. 6 We've heard a lot of tape recordings with Mark Wright's 7 voice on it where there's a lot of, what I would suggest, 8 inappropriate language being used in and around the 9 Command Post. 10 Are you aware of those recordings -- 11 A: Yes. 12 Q: -- and that type of wording? 13 A: Yes. 14 Q: Do I take it from your earlier 15 comments that you'd agree that that type of language in 16 that context is inappropriate? 17 A: It's not helpful, I would agree. 18 Q: Not only is it not helpful, but it's 19 -- it has the potential to inflame a situation, correct? 20 A: Yes. 21 Q: All right. And is that part of the 22 training that OPP are now receiving that in command post 23 and in a stressful situation, that type of language 24 should not only be avoided, but recognition that it could 25 come up and it shouldn't?
701 A: It may not be that specific, but I 2 think the overall training would address, because of the 3 two (2) scenarios they operate, it -- they would, I 4 expect stop and ensure people are conscious of those 5 issues. 6 So I think -- I think the training covers 7 it well. 8 Q: Okay. Part of -- it's Inspector 9 Wright, I think now, part of his evidence came across to 10 me anyways that there was a certain level of what some 11 have referred to as introspective approach to that 12 language that he used ten (10) years ago. And one of his 13 terms was, sort of, that was then; that was my approach 14 then and it's changed now. 15 Do I take it that or perhaps I can ask, 16 was that in your experience, ten (10) years ago, an 17 accepted approach or accepted language in and around a 18 command post situation? 19 A: I wouldn't have thought so, but I 20 hadn't been around a command post when I was at that 21 stage in my career. But I wouldn't have thought so then. 22 Q: All right. I take it, then, that the 23 recordings came as a bit of a surprise to you when you 24 heard them and -- 25 A: Yes.
711 Q: -- the language being used? 2 A: Yes. 3 Q: And I take it, then, that that kind 4 of language, that kind of approach to the issue is not 5 employed in today's OPP? 6 A: No, I don't -- I don't believe so. 7 8 (BRIEF PAUSE) 9 10 Q: My last issue was covered by Mr. 11 Rosenthal regarding the press release and the 12 inaccuracies and any comments you had relating to Mr. 13 Klippenstein's questions I take it you're going to cover 14 at the end? 15 A: If I may, yes. 16 Q: Okay. And thank you, Commissioner, 17 for -- 18 COMMISSIONER SIDNEY LINDEN: Thank you, 19 Mr. Scullion. 20 Ms. Johnson...? 21 MR. KEVIN SCULLION: Thank you. 22 23 (BRIEF PAUSE) 24 25 MS. COLLEEN JOHNSON: Good morning.
721 THE WITNESS: Morning. 2 MS. COLLEEN JOHNSON: Good morning, Mr. 3 Commissioner. 4 COMMISSIONER SIDNEY LINDEN: Good 5 morning. 6 7 CROSS-EXAMINATION BY MS. COLLEEN JOHNSON: 8 Q: I have only a couple of areas that 9 I'll be touching on with you, and to continue with the 10 area that My Friend was dealing with, with regards to 11 training and some of the things that are in place today. 12 In January, the Inquiry benefited from a 13 presentation by the OPP with regards to some of those 14 initiatives and then in March the -- the Chiefs of 15 Ontario -- and I'm sorry, I -- I failed to introduce 16 myself and who I'm representing today. 17 And so I am Colleen Johnson and I am here 18 today for the Chiefs of Ontario -- 19 A: Okay. 20 Q: -- and the Chippewas of Kettle and 21 Stony Point First Nation. 22 And so to continue, I'm sorry, in March 23 there was a further presentation with some recommendation 24 by the Chiefs of Ontario. 25 And I'm wondering if you could elaborate
731 for us -- would you agree that ten (10) years ago there 2 was not an interactive process between any of the 3 political organizations representing Native people in the 4 pro -- Province and the OPP? 5 A: The inter -- I -- I can't speak to 6 what the operational interaction or the interaction that 7 would have been at my level, but I would -- I would have, 8 ten (10) years ago ro twelve (12) years ago, more so 9 because of my role in First Nation policing, interacted 10 with the -- with the organizations like Treaty 3, 11 Anishnaabek police; through that policing portfolio. 12 But I -- as is terms of from the Chiefs of 13 Ontario portfolio, sort of, to the Office of the 14 Commissioner, I -- I'm not familiar that that would have 15 been the case. 16 Q: Okay. And can you tell us how that 17 has changed, today? 18 What kind of proactive things are -- are 19 you involved with specifically around the issues of 20 training of police officers with regards to Aboriginal 21 issues? 22 A: Well, the Native awareness training 23 which we had presented is a four (4) day program that we 24 give and we've covered over two thousand (2,000) 25 officers.
741 Q: Yes, and I think that that was 2 covered in-chief, but I'm looking more specifically for 3 the involvement of the Chiefs of Ontario and how that 4 training specifically is assessed in terms of 5 effectiveness and kept -- well, we'll stop there with 6 that one. 7 How it's assessed in terms of 8 effectiveness; if you're able to use various 9 organizations or outside organizations at all in terms of 10 that? 11 A: We've had some interaction with the - 12 - and I may not get the terminology exactly right, the 13 Centre for Race Relations which was Karen Mock and 14 through her work, had some interaction there. I think 15 there's been invitations extended for others in the -- in 16 other organizations to observe the training and give us 17 any feedback that they would care to. 18 Through the Commissioner's Select Liaison 19 Council the -- through the appointments I have at that 20 table they give us feedback on the training and then, of 21 course, our officers do the assessment of the training as 22 well. 23 Q: But would you agree that Native 24 communities are diverse in terms of cultural, spiritual 25 and those kinds of practices that are followed?
751 A: Yes. 2 Q: Okay. And you've indicated that the 3 training that is undertaken by the OPP currently is 4 strongly Anishnaabek based; is that correct? 5 A: Yes. 6 Q: And can you indicate for us what kind 7 of safeguards are put into place so that officers taking 8 that training understand that the Anishnaabek way is not 9 -- is appropriate for some communities but not for all? 10 A: I think it's coupled two (2) ways. 11 The first is that they -- they cover in their intros 12 around those issues, particularly if we are -- we are 13 either doing training or when we go through the Province 14 we'll speak to, for instance, the Cree communities and 15 such, like the Iroquois communities. 16 So I think they cover in the overview of 17 it. And then when they go to their -- when they're -- 18 they're in their regions, and particularly as recruits 19 going in there, we cover a one (1) day that would be 20 specific to those regions. I think the training has, 21 sort of, done its best to both give the big picture and 22 the small picture and then as they go to their regions 23 they would spend their time. 24 And then as I said yesterday, is that for 25 the new recruits they will go out then and spend two (2)
761 weeks of their first year with a First Nations police 2 service. 3 So what we're trying to do is build the 4 capacity of understanding with some good base foundation 5 information and then -- and then go from there. So that 6 when they're working in their detachment and in their 7 community -- neighbouring community they've a good 8 understanding of that community. 9 Q: And so can you indicate, on an 10 ongoing basis how, other than within the first year, and 11 the opportunity to-date for two thousand (2,000) officers 12 to take that training, how there will be expanded 13 training? 14 A: Well, there would be some regional 15 initiatives that'll be taking place and I'll just use an 16 example. In the north they've just done some two (2) day 17 ones up there. 18 So that what they're trying to do is to 19 meet the broader need for the training and then to try to 20 build on top of that and as we go forward we're very open 21 to suggestions that -- that we have in -- both in terms 22 of partnering or in terms of specifics that the Chiefs of 23 Ontario would have a view we should cover. 24 Q: Now, we've heard evidence, 25 specifically -- well, yesterday, I think, that you --
771 you responded to one of the T-shirts by saying it's a we 2 ag -- it perpetuates a we against them kind of attitude. 3 And we've heard evidence from one of the Native officers 4 involved that he had to point out to someone else in the 5 Forest Detachment that having the T-shirts there was not 6 appropriate. 7 Can you indicate for us what sense you 8 have as you're bringing other Native peoples in to be 9 employees of the OPP as officers and -- and as other 10 personnel, what -- how they function or how successful 11 they are in functioning in that kind of an environment? 12 A: I think the -- I think the 13 involvement -- first the increase in officers has been 14 positive, very positive, for the OPP in terms of 15 Aboriginal representation. And I think second of all the 16 organization and it's members have become more sensitive 17 in terms of understanding the issues and the implications 18 of the -- of the T-shirts issue. 19 And I'm quite confident when I work with 20 and see the Aboriginal officers and the OPP and the work 21 they do as part of their forum and the interaction -- 22 direct interaction I have with them, that they are both 23 strong within the organization but -- and as well as 24 making their way quite well. 25 Q: And is there a process for officers
781 who may be having difficulty within the organization from 2 a racial perspective to bring that to the attention of 3 someone for some assistance? 4 A: Yeah. You can -- you can do it 5 either through, you know, a complaint process or you 6 could do it by bringing it to the attention of your 7 supervisors. 8 I think what has also become clear for the 9 Aboriginal officers as a result of creating the forum and 10 their ability to gather once a year, the mentoring 11 process amongst them has allowed a voice as well, which I 12 think has been an important step forward. 13 So they can really take their issues 14 anywhere. If it's a collective issue I -- I have a forum 15 with them once a year and they bring them to me and I -- 16 I deal with their issues. 17 Q: Can you indicate for us -- and I 18 would suggest to you that issues such as Ipperwash put 19 some Native officers in a particularly difficult position 20 such as having to gather intelligence or being asked to 21 gather intelligence on their own communities or sometimes 22 even within their own family systems. 23 Can you indicate is that still the 24 situation as it seems to have been at that time or are -- 25 have there been considerations to changes being made with
791 regards to putting officers in that kind of position? 2 A: I think it's -- I think it's -- I 3 think we're very sensitive to those issues today in terms 4 of officers' both interest and willingness to perform 5 those roles. And I -- I -- my reflection on it over what 6 I -- what I'm aware of over the last two (2) years would 7 be its -- there's great sensitivity to it. 8 Q: You recognize then that -- that 9 certainly some of the Native officers who were involved 10 at Ipperwash prior to the actual incident that there 11 continues even today to be difficulty in reaching, 12 healing and that kind of thing? 13 A: I think -- I think it's -- it's a 14 tough position for them to be in. 15 Q: And with regards to responding to 16 critical incidents can you indicate for us how it's 17 determined who the frontline officers will be, Native or 18 non- Native, is there consideration given to whether 19 they've had the sensitivity training or not? 20 A: It depends on the incident. Quite 21 clearly we -- it's why we designed the Aboriginal 22 Relations Team. And so in a critical incident your 23 frontline officers, you know, appreciating distance 24 issues and people -- people being -- getting there as 25 quickly as they can, as safely as they can, the
801 Aboriginal Relations Team was established specifically 2 for that purpose to help the initiative -- the incident, 3 whatever, is going on and to ensure that they have a 4 clear picture and can help inform the Incident Commander 5 of any issues they should know about or any nuances that 6 they should know about. 7 And I think -- I don't think, I know, I -- 8 I've seen it in action, it's -- it works well in terms of 9 their ability to grasp those nuances. 10 Q: With regards to the recruitment of 11 Native officers within the OPP can you indicate for us, 12 is it simply at this point in time a concern to recruit 13 more Native officers or is there consideration given as 14 well to advancement of officers within the ranks? 15 A: Yes, absolutely both. We've just 16 completed a promotional process and I think there'll be 17 certainly some opportunities for advancement. 18 The -- I think two (2) fronts of it really 19 is trying to ensure that people are properly mentored or 20 have opportunities for the breadth of jobs in the 21 organization. And that's why we did the emergency 22 services initiative, so that people could see what the 23 opportunities are and where they -- and where they may 24 go. 25 And secondly, it's quite clear to me that
811 you need to have representation at all levels of the 2 organization to the degree that you can, so that you can 3 make sure that there is both understanding, sensitivity 4 and the opportunity to have that type of input at levels 5 of the organization. 6 So, I think we're trying to focus on all 7 of those. 8 Q: Can you indicate for us today what 9 level -- at what levels you have Aboriginal 10 representation at? 11 A: I have Aboriginal representation, the 12 highest level is two (2) acting superintendents at the 13 moment. 14 Q: Those are my questions. Thank you. 15 COMMISSIONER SIDNEY LINDEN: Thank you 16 very much. 17 18 (BRIEF PAUSE) 19 20 COMMISSIONER SIDNEY LINDEN: Good 21 morning. I think we'll take a morning break now. 22 THE REGISTRAR: This Inquiry will recess 23 for fifteen (15) minutes. 24 25 --- Upon recessing at 10:21 a.m.
821 --- Upon resuming at 10:45 a.m. 2 3 THE REGISTRAR: This Inquiry is now 4 resumed. Please be seated. 5 MR. DERRY MILLAR: Commissioner -- 6 COMMISSIONER SIDNEY LINDEN: Yes, sir. 7 MR. DERRY MILLAR: -- as a result of some 8 discussions with counsel -- between counsel and during 9 the course of Mr. Rosenthal's examination of Commissioner 10 Boniface, she indicated that she wanted to make some 11 additional -- make some comments and I think it would be 12 appropriate if she would make those comments now. 13 COMMISSIONER SIDNEY LINDEN: You're 14 prepared to do that now, Commissioner? 15 THE WITNESS: I can do that. 16 COMMISSIONER SIDNEY LINDEN: That's fine. 17 If anything arises out of these comments, Mr. Rosenthal, 18 that you feel obliged to cross-examine on, I think you 19 should have that opportunity. 20 MR. PETER ROSENTHAL: Thank you, Mr. 21 Commissioner. 22 COMMISSIONER SIDNEY LINDEN: Or anybody 23 else who's already examined. 24 MR. MARK SANDLER: Just to be clear, I 25 don't think this is something arising out of what Mr.
831 Rosenthal was asking her and that she answered. She had 2 indicated that she wanted to make some comments at the 3 end of the piece. 4 COMMISSIONER SIDNEY LINDEN: Yes, I heard 5 that. 6 MR. MARK SANDLER: And it was just 7 suggested as a matter of process that maybe it would be 8 more appropriate to do it before the very end. 9 COMMISSIONER SIDNEY LINDEN: I agree with 10 the process. I just said, if something comes out of it. 11 I don't know what the Commissioner is going to say. But 12 if something does I want to give counsel an opportunity 13 to question her on it. 14 MR. DERRY MILLAR: Yeah, I didn't mean to 15 say that it arose out of it, but during that period of 16 time she said she had some more comments, so. 17 COMMISSIONER SIDNEY LINDEN: Yes, she 18 did. All right. 19 Yes, Commissioner...? 20 THE WITNESS: Thank you, Commissioner. I 21 would like to make some comments, if I may, and I want to 22 ensure that people understand the sincerity with which 23 these comments are made. 24 I have held these to the end for a reason 25 and -- but I'm more than willing to put them out now.
841 "My final comments are to the First 2 Nation community. Firstly, and 3 particularly, to Sam George and his 4 family. Firstly, I want to reiterate 5 my predecessor, Commissioner O'Grady's, 6 deepest apology and sympathy to you and 7 your family for the loss of your 8 brother, Dudley. 9 Sam, as I've watched your persistence 10 to, firstly, get an Inquiry, and 11 secondly, attend here every day, I'm so 12 impressed by your commitment for 13 change. T-shirts, mugs, inappropriate 14 comments, more T-shirts, I know have 15 caused you further pain and I deeply 16 regret that. 17 A friend of mine once said to me a few 18 weeks ago, We must look forward. And I 19 assure you and the First Nation 20 community I've done my best to move the 21 OPP to the forefront of policing in our 22 ability to understand aboriginal 23 issues. 24 I await Commissioner Linden's report 25 and commit the OPP to working towards
851 further change. I also acknowledge 2 that through our own officers' 3 testimony, in my own observation, that 4 there have been errors made and we will 5 ensure that we look forward in 6 continuing the change that we have. 7 I make that commitment to you, Sam 8 George, to your family, to the First 9 Nations community and to the Province 10 of Ontario." 11 MR. DERRY MILLAR: Thank you, 12 Commissioner. 13 COMMISSIONER SIDNEY LINDEN: Thank you 14 very much, Commissioner. 15 Now, before we get to Mr. Falconer, does 16 anybody wish to have any questions? 17 MR. PETER ROSENTHAL: No, thank you, Mr. 18 Commissioner. 19 MR. KEVIN SCULLION: I don't have any 20 questions, Commissioner. 21 COMMISSIONER SIDNEY LINDEN: Fine. 22 Mr. Falconer, you're up. Now, Mr. 23 Falconer, could you give me a current estimate as to how 24 long you might reasonably be to do your questioning? 25 MR. JULIAN FALCONER: I took to heart
861 your request that we try to tighten up the examination, 2 but to be honest with you, Mr. Commissioner, I expect 3 it's the two (2) to three (3) hour range that I expected. 4 COMMISSIONER SIDNEY LINDEN: Two (2) to 5 three (3) hours. 6 MR. JULIAN FALCONER: And -- and my 7 record so far is near the top end of the range -- 8 COMMISSIONER SIDNEY LINDEN: Yes, you do. 9 MR. JULIAN FALCONER: -- and I want to be 10 honest with Commissioner Boniface in starting, I don't 11 think I'm going to do a lot better. But it won't be more 12 than three (3) hours; that's the good news and I'll do my 13 best. 14 COMMISSIONER SIDNEY LINDEN: Yes. I just 15 remind you that all of the other cross-examinations -- 16 MR. JULIAN FALCONER: That's right. 17 COMMISSIONER SIDNEY LINDEN: -- taken 18 together are less than two (2) hours. So I ask you, Mr. 19 Falconer, do your best to keep it within that two (2) to 20 three (3) hour range. Thank you. 21 MR. JULIAN FALCONER: And I will. Thank 22 you, Mr. Commissioner. 23 COMMISSIONER SIDNEY LINDEN: Thank you, 24 sir. 25
871 CROSS-EXAMINATION BY MR. JULIAN FALCONER: 2 Q: Good morning, Commissioner Boniface. 3 A: Morning. 4 Q: And you and I have met on a number of 5 occasions and you know that I represent, in these 6 proceedings, Aboriginal Legal Services of Toronto and my 7 name is Julian Falconer. Ms. Murray is also in 8 attendance as my colleague and the Director of the 9 agency. 10 Commissioner Boniface, I want to start by 11 drawing your attention to what I expect you already know. 12 In the mandate of this Commission, signed by Order in 13 Council of the Attorney General, the Commissioner, 14 Commissioner Linden, is directed to making 15 recommendations towards avoiding these -- this kind of 16 tragedy in similar circumstances in the future. You know 17 that? 18 A: Yes. 19 Q: And that's an important goal. To the 20 extent it can be accomplished it's an important goal 21 because it could, (a), save lives and prevent terrible 22 pain in the future, fair? 23 A: Yes. 24 Q: So a number of my questions are going 25 to be directed to that issue, the systemic issue of
881 trying to avoid this in the future, all right? 2 A: Okay. 3 Q: Now, you're familiar with the former 4 Sergeant, or Mr. Seltzer now, Brad Seltzer? 5 A: Yes. 6 Q: And he ended his examination-in-chief 7 with a quote about, If we don't change the direction 8 we're headed we're likely to head and continue to head in 9 that same direction and end there. 10 Do you -- did you hear that evidence? 11 A: I didn't hear that evidence but it 12 doesn't surprise me. 13 Q: And again, you'd agree with me that 14 that same sentiment comes out, which is you -- you've got 15 to look towards avoiding this in the future, but would 16 you agree with me that to avoid it in the future you have 17 to look at the past and figure out what went wrong? 18 A: Yes. 19 Q: All right. And I take it that that 20 issue isn't lost on you; you're a sophisticated police 21 Commissioner and I've put that to you not for you to 22 agree with me but I put it to you that we acknowledge 23 that you are, all right, ma'am? 24 And -- and I say that to you that -- would 25 you agree with me though that you can be a sophisticated
891 person and you can be true and compassionate in your 2 heart but that doesn't necessarily mean you can be an 3 effective engine for change; would -- would you agree 4 with that? 5 You can be good at what you do, you can be 6 honest in your heart, but it doesn't necessarily mean 7 you're an effective engine for change; would you agree? 8 A: I would agree. 9 Q: And would you agree with me that, in 10 part, the issue of being an effective engine for change 11 can lie with you but it also must lie with others? 12 A: Yes. 13 Q: And so there are things you can 14 control, but there are also things out of your control; 15 is that fair? 16 A: That's fair. 17 Q: Now, you've been the Commissioner 18 since 1998, yes? 19 A: Yes. 20 Q: So one (1) of the advantages we've 21 gotten, and there have been many disadvantages with 22 passage of time in these proceedings, but we actually 23 have someone who has had experience with the institution 24 for many years but more importantly for eight (8) years 25 as Commissioner, correct?
901 A: Correct. 2 Q: Would you agree with me that you've 3 encountered some resistance to some of the important 4 changes you are trying to institute at the Ontario 5 Provincial Police? 6 A: Some, yes. 7 Q: All right. Because you're not going 8 to try to be unrealistic and suggest that you've had 9 nothing but cheerleaders in -- in your policies? You're 10 not going to suggest that? 11 A: No. 12 Q: All right. And it is awkward though, 13 isn't it, as a current leader to be identifying pockets 14 of resistance within an institution, because it does 15 nothing but make it more difficult to get along with them 16 if you're identifying them publicly; is that fair? 17 A: That's what leadership is about. 18 Q: And so you've got to manage working 19 with people who don't necessarily agree with you and also 20 testifying in a public proceeding about managing those 21 people, true? That -- that's a challenge, yes? 22 A: I'm sorry, can you repeat that? 23 Q: You've got to manage working with 24 these people that may be pockets of resistance to change 25 and talking about them in a public proceeding. That's a
911 difficult balance to walk, fair? 2 A: Yes. 3 Q: And so I appreciate that and so I'm 4 not -- this isn't about embarrassing you or making your 5 job more difficult but I have to ask you certain 6 questions that I would imagine would be difficult to 7 answer in your current context. 8 First of all, would you agree with me that 9 in terms of some of the changes you have proposed by way 10 of emphasis on Aboriginal initiatives, that there are 11 those in the police service who do not agree that this 12 level of emphasis is appropriate? Do you agree with 13 that? 14 A: I suspect there may be some, but I -- 15 I'm not sure that that's significant. 16 Q: All right. Could you assist me in 17 terms of your experience as to where you have found, I 18 don't need you to name people, but where you have found 19 the most significant resistance in your efforts to 20 institute change? 21 And if I can just preface this comment, 22 this isn't -- I'm sure everything I do, say, and act is a 23 trick question but -- 24 COMMISSIONER SIDNEY LINDEN: Yes. 25 MR. JULIAN FALCONER: -- for a second
921 it's not. 2 3 CONTINUED BY MR. JULIAN FALCONER: 4 Q: I'm talking about barriers to change; 5 that's what -- 6 A: Yes. 7 Q: -- I'm trying to talk to you about. 8 A: Yeah. 9 Q: If the Commissioner is to make 10 recommendations, I assume he might be interested in what 11 are the problems in trying to get these recommendations 12 through and so that's the contest -- context I'm asking 13 you to speak to it, if that helps? 14 A: Exactly. 15 Q: What are some of the barriers or 16 resistances to change? 17 A: I think the -- the barriers are 18 really just understanding. And people -- for 19 individuals, if they are not directly working in some of 20 the issues, trying to figure out the relevance to the job 21 that they do. 22 And so it's both trying to move people 23 forward as in the breadth of their work, as opposed to 24 the position they are currently holding, because they may 25 never have any interaction or any understanding of that.
931 Q: And when those people, who don't 2 necessarily have the -- and it's true to say that that's 3 quite a number of people who don't necessarily have the 4 interaction that other officers have with the Aboriginal 5 community. 6 That's quite a number of OPP officers, 7 correct? 8 A: Well, it depends what your comparator 9 is. But there would be some people more exposed than 10 others, I -- yeah. 11 Q: And when -- when there is a failure 12 to see the relevance of particular initiatives, they're 13 entitled, are they not, through various vehicles, to -- 14 to voice their opposition to the change, yes? 15 A: There's -- there's discussion, but 16 I'm not sure what you mean in terms of voicing 17 opposition. 18 Q: All right. There's discussion -- 19 A: Yeah. 20 Q: -- and I'm trying to understand what 21 the mechanisms for those discussions are. I'm asking you 22 to speak to how does that opposition to change come to 23 your attention? 24 It's not just over a coffee machine or a 25 cooler. There must be more formal things that you can
941 assist us with on how you hear about that opposition. 2 A: Well, it's -- I mean it's a 3 communication issue in a large deployed organization. So 4 it's the -- I think the challenge in a large organization 5 is trying to get the message from the top down to the 6 front line so it's well understood. 7 So, for instance, you can -- you can 8 create dialogues at the local level that would allow 9 question and answers and opportunities for people to both 10 question to understand the issues better, but also to 11 comment on ways that they either see it or don't see. 12 And I think that has helped us in terms of some of those 13 dialogues. 14 Q: All right. Now what you've 15 described, from what I've just heard from you is that 16 there are mechanisms for communicating in which your 17 message is sent down to the front line so that they 18 understand it, fair? 19 A: That's correct. 20 Q: Now how do they communicate back to 21 you, what vehicles do they use to communicate back to you 22 their views on the message? I mean they don't all just 23 say it's a great idea, do they? 24 A: No, but what -- 25 Q: Right.
951 A: -- process -- it depends on what the 2 issue is, but the process we've been going through, 3 certainly in the last while, is -- is -- the last few 4 years, is to have a couple of ways of doing it. 5 Let me first give you kind of how the 6 structure works, is because the senior level of the 7 organization is bureau and regional commanders. So if 8 I'm formally the regional commander in Western Ontario, I 9 would be at that table, I would have an understanding of 10 the direction we're going or -- so if I put myself in his 11 shoes. 12 Q: So those would be the six (6) 13 regional commanders? 14 A: Yeah, but there's bureaus as well. 15 Q: Okay. 16 A: So it's a table of probably twenty 17 (20), twenty-two (22). And then -- so then that message 18 goes down amongst the regional bureau of senior officers 19 that they work with and then that message flows down from 20 there. 21 In our in-service training, which is once 22 a year, a senior level person goes in and -- and will 23 spend some time talking to them, probably a half day, to 24 every group of officers that comes through in-service 25 training, and everybody has to take in-service training.
961 So that's in some ways how we get the -- 2 the message out and the clarity of message. 3 As well, on particular issues, for 4 instance, on issues of diversity where we would be doing 5 round tables in various regions or bureaus, and some of 6 that information is flowed back up. 7 Q: "Some of that information is flowed 8 back up." Explain what you mean by that, please? 9 A: Well, somebody will take a report or 10 report back up on the -- on the outcomes. 11 Q: All right. 12 A: Comments, suchlike. 13 Q: And is that -- so that would be one 14 (1) mechanism whereby you might hear about people's 15 concerns about the policies you're implementing? 16 A: Hmm hmm. 17 Q: Yes? 18 A: That would be one way, yeah. The 19 other would be when the -- when they do the half day 20 session, they come back up to the table and we'll have 21 sort of an updated discussion where we -- where we need 22 to go. 23 Q: All right. Any other mechanisms 24 whereby you hear of or resistence to your proposals are 25 communicated to you?
971 A: Well, you get in day to day, if you 2 have the day to day interaction. I do tables with 3 supervisor level; when they're in for training I do three 4 (3) tables, a class, normally. I haven't in the last 5 couple of months because of other issues. But I try to 6 meet with every group and go through a series of issues 7 with them. And I'll have a group of about ten (10). 8 So it's a good, small group and it's a 9 good perspective of what you're able to create in 10 dialogue. 11 Q: Can you assist me, are there other 12 mechanisms, in your mind, formal or informal, that bring 13 to your attention the level or the nature of resistance 14 to the proposals you're making? 15 A: There's -- there's any number of 16 opportunities. I do a tour out to the detachments every 17 -- try to do it every year to a select group of 18 detachments in various corners of the province, and I'll 19 do impromptu sessions with them. I'll do organized 20 sessions with them. 21 So through various senior levels, through 22 Detachment Commanders conferences, through Commissioned 23 Officers conferences, all those sorts of things that 24 opens up some opportunity for dialogue. 25 Q: All right. I don't want to keep
981 saying, is there any other, I just want to make sure, 2 does that fairly cover what you see as the ways you hear 3 back? 4 A: That's what I can think of at the 5 moment. 6 Q: All right. I'm going to ask you to 7 help me on the role the OPPA plays in terms of 8 communicating to you resistances to change? 9 A: Well, I've an ongoing dialogue with 10 the President, obviously, in my capacity, and I appear 11 before their board meetings twice a year. 12 Q: All right. And do you view the OPPA 13 as having been wholly and completely supportive of the 14 reforms that you've proposed and the policies you've 15 indicated or testified to in response to Mr. Millar's 16 questions? 17 A: I don't believe I've had any 18 resistance in those, no. 19 Q: Okay. Now, I'm going to pass up to 20 you a paper that was prepared for the Commission that we 21 gave notice on entitled, "Challenge, Choice and Change." 22 I'm providing you an excerpt copy and Mr. Commissioner an 23 excerpt copy? 24 COMMISSIONER SIDNEY LINDEN: Do you know 25 what this is, Mr. Millar? I thought we had --
991 MR. DERRY MILLAR: No. 2 MR. JULIAN FALCONER: It's of -- it's one 3 of the papers on your website. 4 COMMISSIONER SIDNEY LINDEN: Yes, but 5 you're not going to cross-examine on the basis of this? 6 MR. JULIAN FALCONER: No, no. No. I'm 7 going to ask the same fashion we've asked in the past 8 questions that relate to the research done and I want to 9 ask some questions of the witness. I don't intend to 10 cross-examine her on the paper. 11 12 CONTINUED BY MR. JULIAN FALCONER: 13 Q: If you could direct your attention, 14 please, Commissioner, to page 13 of the extract that's in 15 front of you. Now, for the record, the paper I'm 16 referring to is entitled, "Challenge, Choice and Change, 17 A report on evidence-based practice and the provision of 18 policing services to aboriginal peoples prepared for the 19 Ipperwash Inquiry." It's dated January 15th, 2005. 20 Could you look at page 13, please? It's 21 halfway down the page and the paragraph starts: 22 "In fact..." 23 Do you see that? 24 A: Yes. 25 Q: Quote:
1001 "In fact, there's some evidence that 2 current recruitment practices, 3 including suitability, interviewing and 4 the use of standard psychological 5 tests, may incorporate cultural biases 6 that have the effect of weeding out 7 potential recruits that do not fit the 8 preconceived image of the [quote] 9 'ideal' [closed quotes] police officer. 10 Notwithstanding the declared emphasis 11 on community policing, a concept 12 officially endorsed by many Canadian 13 police services, the [quote] 'ideal 14 officer' [closed quotes] still 15 demonstrate male toughness and 16 machismo, the ability and willingness 17 to use force, and a capacity to adapt 18 to a paramilitary work environment and 19 lifestyle. Individuals attracted to 20 this type of career are more likely to 21 see problems in society as stemming 22 from a lack of discipline and 23 authority, and therefore more likely to 24 see the use of authority as the 25 solution to problems in the community.
1011 As a consequence they tend to exhibit 2 more authoritarianism and less 3 tolerance for diversity. The 4 conclusions to be drawn from the 5 Winnipeg Police evaluations are 6 consistent with similar studies." 7 Now, stopping there for a moment, can I 8 ask you, first of all, have you -- you did receive a 9 document notice about this paper but had you seen it 10 before? 11 A: No. 12 Q: All right. 13 MR. DERRY MILLAR: Commissioner, the 14 rules of the game, with respect to the Part 2 research, 15 is that they were not to be used as cross -- to be cross- 16 examined on. 17 COMMISSIONER SIDNEY LINDEN: Yes, I 18 understand that. 19 MR. DERRY MILLAR: And I don't know what 20 else My Friend is doing -- 21 COMMISSIONER SIDNEY LINDEN: I'm not sure 22 what he -- 23 MR. DERRY MILLAR: -- besides trying to 24 cross-examine on it. 25 COMMISSIONER SIDNEY LINDEN: When he says
1021 he's asking questions on it, it seems to me -- 2 MR. DERRY MILLAR: And -- and those have 3 been the rules of the game since day one (1). 4 MR. JULIAN FALCONER: Having examined 5 previous witnesses on the Roach Paper, on the four (4) 6 oversight models -- 7 COMMISSIONER SIDNEY LINDEN: Yes. 8 MR. JULIAN FALCONER: -- and put to -- I 9 -- I -- we've done this. I've been asked not to use the 10 paper in a cross-examination style and I don't intend to. 11 And each time that this issue has come up it's almost 12 like we're reinventing the wheel. 13 I address the same concerns and we end up 14 in the same place, which is the reason the Commission 15 ordered research is so that we can read it and ask, in an 16 appropriate way -- 17 COMMISSIONER SIDNEY LINDEN: Use it in a 18 general way. 19 MR. JULIAN FALCONER: Yes, and that's 20 what I intend to do. 21 COMMISSIONER SIDNEY LINDEN: That's fine. 22 But you're quoting specific parts -- 23 MR. JULIAN FALCONER: Well, that's what-- 24 COMMISSIONER SIDNEY LINDEN: -- so we're 25 not sure where you're going --
1031 MR. JULIAN FALCONER: -- I'm supposed to 2 do. 3 COMMISSIONER SIDNEY LINDEN: -- and -- 4 MR. JULIAN FALCONER: We did it last 5 time. Mr. Millar and I agreed on the parts -- 6 COMMISSIONER SIDNEY LINDEN: Okay. 7 MR. JULIAN FALCONER: -- I quoted last 8 time. 9 COMMISSIONER SIDNEY LINDEN: What are you 10 going -- 11 MR. JULIAN FALCONER: Right. I haven't - 12 - but I haven't asked the question yet. 13 COMMISSIONER SIDNEY LINDEN: Let's see 14 where you go. 15 MR. JULIAN FALCONER: Thank you. 16 COMMISSIONER SIDNEY LINDEN: We're a 17 little nervous, Mr. Falconer. 18 MR. JULIAN FALCONER: Fair enough. The 19 only good news I suppose is however nervous I make people 20 it's surely coming to an end soon. 21 MR. JULIAN FALCONER: Commissioner 22 Boniface -- 23 COMMISSIONER SIDNEY LINDEN: No comment. 24 25 CONTINUED BY MR. JULIAN FALCONER:
1041 Q: Commissioner Boniface, I just wanted 2 to know first of all have you -- have you read this 3 passage before? Is this -- just to be fair to you -- 4 A: Last night. 5 Q: Okay. Fair enough. Thank you. And 6 I wanted to ask you some questions about it. I 7 specifically wanted to ask you, when you talked about the 8 "us against them" mentality that some of the memorabilia 9 fostered -- do you remember talking about that? 10 A: Yes. 11 Q: When you talked about that you were 12 referring to that kind of mentality described at page 13 13 weren't you, which is basically there is a -- a form of 14 policing, an authoritarianism form of policing that's an 15 old style of policing that you're trying to discourage in 16 certain circumstances; is that fair? 17 A: Oh, I think that's fair. 18 Q: And part of the problem I take it is 19 that while on the one (1) hand that is a task that is 20 manageable with recruits, is it the same type of 21 challenge with seasoned police officers? 22 Is it the same job to modify that thinking 23 with seasoned police officers? 24 A: I think it's -- it's -- I don't know 25 how to answer you.
1051 (BRIEF PAUSE) 2 3 A: I think as you work through it you 4 may have different approaches that's all. 5 Q: All right. But -- but it is -- the 6 reason I ask you this is would you agree with me that 7 many of the initiatives you spoke to Mr. Millar about and 8 -- are recruitment initiatives, many of them, yes. 9 A: Some of them, yes. 10 Q: All right. And you did refer to the 11 Native Awareness Program, the week long Native Awareness 12 Program that -- 13 A: Yes. 14 Q: -- and -- and the -- and the -- the 15 course of that has been to not only give it to recruits 16 or offer it to recruits but to senior officers in -- in 17 particularly sensitive positions and then with an aim to 18 doing the rest of the service; is that fair? 19 A: That's correct. 20 Q: All right. But leaving aside the 21 week long Awareness Course would you agree with me that 22 an officer of the mould described at page 13 and with 23 that us-against- them type mentality represents a 24 genuinely different species to train than a recruit? 25 A: I think the methodology would be
1061 different, yes. 2 Q: Fair enough. And would you also 3 agree with me on this point that a reality of recruits 4 who join a service or in fact join any institution is 5 they often look to the more senior people for guidance 6 and direction? 7 A: They would -- as a recruit you would 8 -- you would join and have a coach officer. 9 Q: In addition to the formal can we not 10 agree that there's an informal reality that you try to -- 11 there's a tendency for recruits to want to pattern 12 themselves after more senior, more popular officers and - 13 - and in essence be accepted into the fold; isn't that 14 true? 15 A: I think only in part. I think what 16 you see with the more educated recruit that we have today 17 and the period of time they come in which is somewhat 18 different than many years ago you see people who are 19 quite strong in their own belief. 20 Q: Sure. And is that why you say only 21 in part? 22 A: Yes. 23 Q: That that issue -- but even if it's 24 only in part it's still an issue that people get signals 25 and guidance from more senior people, and to some extent
1071 want to fit in? 2 A: Yeah, but I -- I also want to clarify 3 and ensure that you're not assuming all senior people 4 have a certain way of -- 5 Q: Fair enough. And I -- I didn't mean 6 to suggest that. 7 Where I'm going with this is probably 8 pretty obvious, which is can you assist me given the fact 9 that you have different challenges for senior people and 10 given the potential impact senior people have, how do you 11 manage this issue of attempting to modify the behaviour 12 of more senior people within the service who might not be 13 as quote/unquote, "mouldable" as recruits? 14 A: Well, you have -- outside of the 15 training you have -- everybody who comes to the Academy 16 and the people, just to be clear, the people that come to 17 the Academy are not coming there as brand new recruits, 18 they are back there for a series of courses that they 19 would take throughout their career. 20 So they might -- about every five (5) 21 years you take a course that just reinforces the 22 learning. If they're -- they're on any specialised 23 courses, a coach officer's course or whatever, there is 24 information that would be departed to them that is 25 consistent with the direction of the organization's going
1081 and they would have some of that learning while they're 2 there. 3 Similarly, in various regions and bureaus 4 they would have similar exercises going on, depending on 5 what the initiative is that you're referring to or the 6 direction that the organization is going. 7 So there's -- there is opportunity in 8 various areas to be able to do that. 9 Q: And in taking that approach, can you 10 help me with the focus on what we've been discussing, 11 which is the issue of the distinction in modifying what 12 might be ingrained views versus recruits who might not be 13 as ingrained. 14 What is done to address that? 15 See, it's an old-style of policing, the 16 us-against-them. What and how do we address it? 17 A: Well, it would be addressed -- I'll 18 give you an example. If I'm in the -- in -- coming into 19 a course at the Academy and I'm twenty (20) years or 20 twenty-five (25) years of -- and I want that to reflect 21 on those -- that group particularly, but if that is the 22 group then you would get the same sort of messaging that 23 you would get that the recruits would get, only in a more 24 detailed fashion on the direction of the organization; 25 why the priorities are what they are, and how that works
1091 within; what the expectations are of the organization, 2 and -- and sort of an overview of that. 3 That's in every course. There's sort of 4 an ethics piece in every course that allows people, or 5 brings people up-to-date and ensures that they get the 6 message on the direction the organization's going. 7 So -- and you're familiar with this, on 8 the focus on professionalism, those sorts of things, 9 they're done. In their in-service training,, which they 10 would do once a year, which every officer must do, they 11 would get a half a day on that -- those sorts of issues. 12 Q: Can you and I agree that you can then 13 take that group of people that would, for example, have 14 long service and need refreshers or might have some 15 ingrained attitudes, and that those people would -- could 16 potentially benefit and would benefit from those 17 emphasises on ethics and professionalism, and from that 18 you would have a smaller group who would still be 19 resistant to change? 20 That would be a matter of commonsense, 21 agreed? 22 A: In seven thousand (7,000) people, I'm 23 sure there are some. 24 Q: That's right. And so -- and you know 25 that it's important to have initiatives directed at those
1101 who are tougher nuts to crack -- 2 A: Hmm hmm. 3 Q: -- would you agree with that? 4 A: I would agree. 5 Q: And those tougher nuts to crack, it's 6 not just an issue of, you know, a bad apple or something 7 like that. I'm not talking about extremes. 8 I'm talking about people who may well be 9 very popular and influential among younger officers, 10 fair? 11 A: Yes. 12 Q: And -- and so in the case of those 13 who are more strongly resistant, can you assist me, what 14 in your mind is the manner of dealing with those? 15 What in your mind, as you work through how 16 your policies progress, what is the way of dealing with 17 those? 18 A: Well, if we're aware of it, you can 19 actually deal with it directly. If the -- I'll give you 20 an example. 21 In -- if I have my sergeants in and I have 22 an opportunity when I meet with them, the -- the Academy 23 would provide them with information around performance 24 management and those sorts of issues. When I meet with 25 the sergeants, I would get a good sense of, for instance,
1111 where they see the issues. 2 And I want to be fair to the officers out 3 there that communications issues in a deployed 4 organization are always a challenge. And so -- and 5 sometimes it's clarifying the communications. Sometimes 6 it's ensuring that people understand why the direction is 7 what it is and, you know, you would understand. 8 But there are -- there are a number of 9 levels that that can take place and a number of 10 initiatives at the regional level or specifically. And 11 then there's a performance management system that would 12 link to that as well in terms of -- people, for instance, 13 have to cover when they have a performance -- 14 Q: Yes? 15 A: -- a performance evaluation, they 16 would have to have sign-off that they have an 17 understanding of -- of the focus on professionalism in 18 the promise. 19 Q: And when you say the promise, that 20 would be the very document that I asked Ms. Murray to 21 pass up and you so skilfully noticed I had subtly asked 22 for it. 23 And -- and -- and in signing off on those, 24 that's a sort of a -- a renewed emphasis and an effort to 25 further, in essence, assist in modifying or controlling
1121 behaviour; is that fair? 2 A: That's -- I think it's -- it's most 3 important for them to have the communication around what 4 the expectations are. And so what -- I can't remember 5 the exact wording that goes on a performance evaluation, 6 but I think it says I understand the expectations of it 7 and understand the information; something to that effect. 8 Q: I've got the promise document here, 9 the promise of the OPP, dated September of 2002. And I 10 know you probably know the thing almost by heart but I 11 also want to be fair to you in terms of giving you the 12 benefit of the document to have in front of you. 13 Do you have it in your binder? 14 A: I think I do. 15 Q: Sorry. 16 17 (BRIEF PAUSE) 18 19 Q: Could you pull it out please if 20 you've got it in front of you? 21 22 (BRIEF PAUSE) 23 24 Q: Do you have it in front of you? 25 A: I do.
1131 Q: All right. I've misunderstood and 2 thought it was part of the Commission's materials that 3 were put in front of you. 4 So, Mr. Commissioner, I'm going to -- my 5 copy has sidebars but no comments on it. So I'm going to 6 simply put that copy, as a courtesy to you, Mr. 7 Commissioner, in front of you so you can follow the 8 Witness. I've read it and I don't have any difficulty 9 following you. 10 Could you assist me on that -- those 11 portions of the document entitled, The Promise; first of 12 all, the premise behind it and second of all, those 13 portions that you think assist in - in essence conveying 14 expectations? 15 I think that was your point. You drew a 16 distinction between behaviour modification and conveying 17 expectations; is that fair? 18 A: Yes. I -- I think that's fair. 19 Q: All right. And so could you, with 20 some direction towards the promise that you referred to, 21 which is the document in front of the Commissioner now, 22 September 19 -- September 2002; is that right? 23 A: That's correct. 24 Q: Okay. Could you point out those 25 portions that assist in that regard -- that are
1141 informative? 2 A: Can I just back up and say how this 3 came to be? 4 Q: Sure. Absolutely. 5 A: This was -- I spoke about this in the 6 Part 2 process. This came out of discussions with a 7 number of focus groups across the Province, about four 8 hundred (400) people were involved in this including some 9 community groups, as to what their expectations would be 10 of the OPP, both as an employer and as a member of the 11 community. 12 And this document then became -- this 13 rolled into a document and then we put it out as a result 14 of that process. And so what we are attempting to do is 15 really to espouse to our -- both our membership and the 16 public, in terms of their expectation and ours of our 17 members as an organization. 18 Q: All right. And then are there 19 portions of the document, without reading the whole 20 document to the Commissioner, portions of the document 21 that would assist in simply conveying the gist of what's 22 expected? 23 A: I think you can speak to the four (4) 24 issues -- or, sorry, five (5) issues around 25 accountability, respectful relationships, fairness,
1151 courage and caring -- 2 Q: Could you just give the page number 3 you're reading from? 4 A: I'm -- I'm just on the first page. 5 Q: No, I know. I don't have it in front 6 of me, and the Commissioner does now. So you just 7 indicate -- 8 COMMISSIONER SIDNEY LINDEN: Well, you -- 9 MR. JULIAN FALCONER: That's fine. 10 COMMISSIONER SIDNEY LINDEN: You need a 11 copy if you're going to use it. 12 13 CONTINUED BY MR. JULIAN FALCONER: 14 Q: No, no. No. That's fine. You 15 continue, just if you indicate where you are so for the 16 Commissioner; that's all I'm asking? 17 A: Oh okay. Just page 1, sir. 18 COMMISSIONER SIDNEY LINDEN: Yes, I'm 19 with you. 20 THE WITNESS: Accountability, respectful 21 relationship, fairness, courage in caring, continuous 22 learning and diversity. 23 24 CONTINUED BY MR. JULIAN FALCONER: 25 Q: All right. And in -- in essence,
1161 throughout pages 2 through 5, there is a - a development 2 of those principles and an oath of office that an officer 3 takes; correct, in relation to the promise? The last 4 page -- 5 A: Not -- not with -- 6 Q: -- page 5? 7 A: No, that's for Commissioned Officers. 8 Q: Okay. 9 A: So it's senior officers. 10 Q: All right. And the promise and the 11 principle behind the promise is that regardless of 12 whatever -- I mean, in a perfect world everyone would 13 agree with the principles espoused in the promise 14 document; that is they would embrace them, correct? 15 A: Yes. 16 Q: That's a perfect world. But for 17 those who don't get it the expectations, regardless of 18 what they think, are conveyed in clear terms, fair? 19 A: That's right. 20 Q: Now, you'd agree with me that as we, 21 sort of, stove-piped the group I was asking you about, we 22 stove- piped from those who maybe have a, sort of, an old 23 style policing that might actually change their views and 24 attitudes as a result of training, and then we stove-pipe 25 that to a smaller group who still might be what I'd call,
1171 with all due respect, tougher nuts to crack, right? 2 A: Right. 3 Q: Now, in that group of tougher nuts to 4 crack, regardless of how they think they now know what's 5 expected of them, true? 6 A: That's correct. 7 Q: And that would be as of September 8 2002? 9 A: Yes, that was -- that was the 10 beginning of the process, yes. 11 Q: And -- and you deserve a tremendous 12 amount of credit for doing that because with all due 13 respect it's not about criticising or lauding you it's 14 about this makes a lot of sense. 15 But let me ask you, what from an 16 accountability perspective occurs if it should occur or 17 if it should happen that an officer breaks the promise? 18 A: Well, it goes back to the -- it would 19 go two (2) ways around. The -- if it's a discipline 20 matter it's dealt with differently and you understand 21 that I'm sure because that falls under the Police 22 Services Act. 23 If at the -- through -- as they do their 24 performance management as I said to you at the end of the 25 year they would have this and it would be accounted for
1181 in performance. That would be my expectation if indeed 2 it's something that is significant. 3 Q: Now, let's unpack that for a minute. 4 You mentioned that you were sure I understood something 5 and I'm always afraid when a witness says that because I 6 might not. 7 A: I'm just saying in terms of the Code 8 of Conduct under the Police Services Act obvious, sorry, 9 obviously takes precedent if it's a conduct issue. 10 Q: But the Code of Conduct does not 11 incorporate the promise, correct? 12 A: No, because it's legislated. 13 Q: I understand. 14 A: Yes. 15 Q: But for the public record it's 16 important that -- that we understand what this document 17 can and cannot do. 18 A: That's right. 19 COMMISSIONER SIDNEY LINDEN: If the 20 departure is far enough from the promise that it falls in 21 to a discipline then -- 22 MR. JULIAN FALCONER: That's right, but - 23 - but I have -- 24 COMMISSIONER SIDNEY LINDEN: -- it goes 25 into another stream.
1191 MR. JULIAN FALCONER: -- I have to do 2 this in baby steps, Mr. Commissioner, -- 3 COMMISSIONER SIDNEY LINDEN: All right. 4 Okay. 5 MR. JULIAN FALCONER: -- with -- with all 6 due respect. 7 8 CONTINUED BY MR. JULIAN FALCONER: 9 Q: In terms of the promise document 10 though we don't look to the legislation or to the 11 disciplinary code for keeping the promise per se. There 12 is no disciplinary act to breaking the promise of 13 September -- 14 A: No. 15 Q: -- 2002, correct? 16 A: No. 17 Q: All right. And then -- and it, as 18 Mr. Commissioner rightly pointed out if the conduct is 19 egregious enough or it's something that's captured by the 20 Code of Conduct that's a separate matter entirely, 21 correct? 22 A: That's correct. 23 Q: Different stream? 24 A: Yeah. 25 Q: Now, moving to what you call
1201 performance -- I think you said evaluation but I might be 2 wrong. 3 A: It's a performance management system. 4 Q: Yes. As a performance management 5 system has the promise been incorporated into performance 6 reviews as in how has this person fulfilled the promise 7 or more importantly did this person break the promise and 8 the failure to abide by a promise? 9 Has it been seen to be understood by 10 employees represented by the OPPA as a basis for a 11 potential negative performance evaluation? 12 A: Well, this -- the process for 13 performance management, just to be clear, if there's an 14 incident that arises that's performance related not 15 discipline related it may pertain to the promise. It 16 would be filed as the year goes and then at the end of 17 the year it's captured in an annual review. 18 And there's a line and I can't remember 19 the exact wording that actually draws attention to the 20 complete document. It's the final line on it with 21 respect to the promise. 22 Q: All right. So the failure to for 23 example and I'm trying to find the right words, the 24 failure to -- to keep the promise, breaking the promise, 25 could be a basis, an articulable -- basis for a
1211 performance -- a negative performance review? 2 A: What -- my expectation would be the 3 way you would have to do it, you would actu -- because 4 you have to pinpoint the incident or the thing you're 5 referring to. You can't do it in a generalization 6 obviously for -- so you would articulate that. 7 And then I'm -- I'm only assuming they 8 would add something to it that draws it to the promise 9 but as I said there's wording at the bottom of it in 10 relation to the promise and the -- the understanding and 11 a person understands the expectations of the promise. 12 Q: All right. Can -- can you and I 13 agree though to-date there has been no formalized 14 mechanism by which first -- first discipline can be meted 15 out for breaking the promise? 16 There's no formal mechanism for 17 disciplining based on a breach of the promise? 18 A: No, discipline falls under the 19 legislation. 20 Q: And from the performance point of 21 view if an officer is being demoted for misconduct that 22 constitutes discipline, correct? 23 A: That's discipline. 24 Q: Right. So that in the end the 25 promise, breaching the promise by virtue of a form of
1221 misconduct, right, would not be something -- breaching 2 the promise by a form of misconduct would not be 3 something an officer could be disciplined for, right? 4 It could attract no consequences of 5 itself, breaching the promise? 6 A: No, because there's another piece of 7 legislation that does that. 8 Q: All right. 9 A: That supercedes it. 10 Q: Right. Fair enough. Because all of 11 it is -- it's -- it's good to make the promise but it's 12 also important to keep the promise, right? 13 A: That's the performance management 14 system. 15 Q: And the tougher nuts to crack if you 16 stovepipe them down and they still are difficult and I'm 17 not saying this is the majority of officers or indeed a 18 whole bunch of officers, I'm saying but those tougher 19 nuts to crack, at the end of the day if they've really 20 done something wrong breaking the promise cannot be a 21 basis for moving against them. 22 It'll be something else, somewhere else, 23 correct? 24 A: It would be the discipline process, 25 if it's a significant thing, yes.
1231 Q: Now, the performance evaluations have 2 a negative component but they also have a position 3 component; that is, the system of promotion, correct? 4 A: They have a positive as well in terms 5 of if you don't -- in the positive work that they do, 6 it's reflected in the performance evaluation. 7 Q: Fair enough. In other words, in 8 addition or not just promotion -- saying -- giving 9 positive reinforcement -- 10 A: Exactly -- 11 Q: -- to -- about their work. Fair. 12 I'm interested in -- in -- in the promotion of then- 13 Sergeant Mark Wright to Inspector. 14 A: Hmm hmm. 15 Q: And I want to ask you. You have seen 16 enumerable number of examples of inappropriate language 17 and an us-and-them mentality in the tapes that have been 18 disclosed to you as Commissioner, am I not right? 19 In terms of wording used by Mark Wright-- 20 A: I think -- 21 Q: -- am I not correct? 22 A: I think he's indicated in his own 23 evidence that his words were poorly chosen, absolutely. 24 Q: And -- but you have seen that as 25 Commissioner?
1241 A: I've read the evidence. 2 Q: Yes. And it's not just -- I don't 3 want to -- I don't want to tie us to evidence before this 4 Commissioner, because I'm not asking you to step into Mr. 5 Commissioner's -- Linden's feet. 6 I'm talking about tapes that have come to 7 your attention, all right? 8 A: Yes. 9 Q: And most of the tapes that involve 10 now-Inspector Mark Wright were actually not new 11 revelations. They're not like some of the other tapes. 12 They were tapes that the OPP knew about and has had -- 13 have had in their position and recognized the existence 14 of which for a number of years, is that not fair? 15 Conversations between Mark Wright and John 16 Carson on the day of September 6th, 1995. 17 These were not new revelations, were they? 18 COMMISSIONER SIDNEY LINDEN: I'm not sure 19 that this is helpful to me at this stage and -- 20 MR. JULIAN FALCONER: Well, then let me 21 back up -- 22 COMMISSIONER SIDNEY LINDEN: -- you're 23 reaching a point where it's not helpful. 24 MR. JULIAN FALCONER: I'll particularize 25 the question.
1251 COMMISSIONER SIDNEY LINDEN: Well... 2 3 CONTINUED BY MR. JULIAN FALCONER: 4 Q: When Inspector Mark Wright said, 5 "don't you say we go get those fucking guys?", right, or 6 when he said: 7 "We're calling out the marines". 8 Or when he was alleged to have said: 9 "We're amassing a fucking army." 10 Right, these are all us against them type 11 mentality, correct? 12 A: Well, it's inappropriate words, yes. 13 Q: I'm -- I'm going to ask you to -- I'm 14 going to be a bit picky with you about this and in fact, 15 in addition to being inappropriate, it's an us against 16 them mentality, correct? 17 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 18 Sandler...? 19 MR. MARK SANDLER: The difficulty here is 20 that he's -- if he's going to try to have her read what 21 his mentality is, he's given some evidence on that. 22 And he has drawn -- Inspector Wright has 23 drawn a distinction between the inappropriate use of 24 language and his mentality and how -- and how he would 25 manifest it there.
1261 So I'm a little concerned about how this 2 witness is supposed to characterize his mentality. She 3 can only speak to the inappropriateness of the language. 4 I don't know -- 5 COMMISSIONER SIDNEY LINDEN: She's -- 6 MR. MARK SANDLER: -- how much further 7 she can go. 8 COMMISSIONER SIDNEY LINDEN: She's done 9 that. 10 11 CONTINUED BY MR. JULIAN FALCONER: 12 Q: That's fair and if I -- if my 13 question was misunderstood I'm happy to rephrase it. 14 The wording -- the wording used by 15 Inspector Wright reflects that us against them mentality 16 we were talking about, correct? 17 A: As I said, it's poor wording. I 18 agree. 19 Q: No, but I -- I -- I'm sorry, but I'm 20 asking, do you agree with me that it reflects -- the 21 wording reflects that us against them mentality? 22 MR. MARK SANDLER: That was my very 23 objection. 24 MR. JULIAN FALCONER: No, the wording 25 reflects it, not Mark Wright, the wording used, because
1271 this witness has talked about -- 2 COMMISSIONER SIDNEY LINDEN: She -- 3 MR. JULIAN FALCONER: -- the dangers of 4 that mentality and I'm now speaking to an issue that I'm 5 trying to get at without having her judge evidence and 6 those words are inappropriate and they're inappropriate 7 for a reason. 8 I'm allowed to ask her -- 9 COMMISSIONER SIDNEY LINDEN: Just -- 10 MR. JULIAN FALCONER: -- what -- 11 COMMISSIONER SIDNEY LINDEN: -- relax. 12 MR. JULIAN FALCONER: Okay, fair enough. 13 COMMISSIONER SIDNEY LINDEN: Mr. 14 Falconer, just relax. Yes, Mr. Sandler...? 15 MR. MARK SANDLER: By asking, do the 16 words reflect the mentality, he's doing exactly what it 17 is that I objected to and which I understood My Friend 18 was not going to proceed on. 19 I don't find -- and I have to say, apart 20 from that, I say respectfully, I'm not sure that this 21 line is -- is at all helpful -- 22 COMMISSIONER SIDNEY LINDEN: I'm 23 beginning to feel that way, Mr. Sandler. I'm beginning 24 to feel that way. Now, I'm prepared to give Mr. Falconer 25 a lot of leeway because oftentimes I don't see,
1281 initially, what the value or help might be. 2 But I'm beginning to feel that this is 3 beyond the scope of my mandate in Part I. Perhaps some 4 of this might be useful in Part II. 5 A lot of these questions, we are asking 6 ourselves of the OPP in Part II, but I'm not sure that 7 it's necessary for me to get that in this forum. I don't 8 think it's being helpful any more. 9 MR. JULIAN FALCONER: Well, I'll address 10 the wording -- 11 COMMISSIONER SIDNEY LINDEN: I'm asking 12 you to be very careful, because I don't -- 13 MR. JULIAN FALCONER: Fair enough. 14 COMMISSIONER SIDNEY LINDEN: -- think 15 it's being help -- you're being helpful. 16 17 CONTINUED BY MR. JULIAN FALCONER: 18 Q: Now, I remove the word "mentality". 19 Those words reflect -- 20 COMMISSIONER SIDNEY LINDEN: No. 21 MR. JULIAN FALCONER: -- the us and them 22 concern that you had, correct? 23 COMMISSIONER SIDNEY LINDEN: It's with 24 respect to the line of questions, Mr. Falconer. 25 MR. JULIAN FALCONER: Well, you had
1291 indicated that you were prepared to give me some 2 latitude -- 3 COMMISSIONER SIDNEY LINDEN: I'm prepared 4 to give you some leeway -- 5 MR. JULIAN FALCONER: Well -- 6 COMMISSIONER SIDNEY LINDEN: -- but I've 7 given you some. You've been on your feet for three- 8 quarters (3/4's) of an hour and I'm not sure that -- that 9 the time spent is producing anything of any great value 10 to me at the moment. 11 I'm not conducting a management 12 consultant's evaluation of the OPP; that's not my 13 function. So, you know, I'm having some difficulty 14 seeing where this is leading and how this is going to 15 help me. 16 MR. JULIAN FALCONER: May I explain 17 myself, Mr. Commissioner? 18 COMMISSIONER SIDNEY LINDEN: Yes, sir. 19 MR. JULIAN FALCONER: In my respectful 20 submission, it is, of course, helpful for you to know, as 21 Mr. Millar elicited from this witness, what policies she 22 has put in place as a corrective measure, in essence, as 23 a measure for expanding and allowing the service to 24 evolve, partly in response to Ipperwash and partly in 25 response to her own sophisticated view of how policing
1301 should be done. 2 That's helpful and Mr. Millar elicited 3 that evidence. 4 COMMISSIONER SIDNEY LINDEN: At a very 5 high level. 6 MR. JULIAN FALCONER: That's right. 7 COMMISSIONER SIDNEY LINDEN: At a very 8 macro level. 9 MR. JULIAN FALCONER: Fair enough. Fair 10 enough. 11 COMMISSIONER SIDNEY LINDEN: And at that 12 level I think the questions are useful. That's why when 13 you bore down that it becomes a little more difficult in 14 the context of this Inquiry. 15 MR. JULIAN FALCONER: And may I explain? 16 COMMISSIONER SIDNEY LINDEN: Yes, sir. 17 MR. JULIAN FALCONER: So at that macro 18 level Mr. Millar usefully brought it out. But, Mr. 19 Commissioner, if you turn to page 12 of the paper that we 20 were working on, that I put in front of the witness, page 21 12 of that paper addresses, in three (3) paragraphs, the 22 very issue I'm getting at, which is, page 12 addresses 23 the fact that: 24 "Numerous inquiries have resulted in 25 situations..."
1311 You'll see it in the third paragraph of 2 page 12 -- 3 COMMISSIONER SIDNEY LINDEN: Yes. 4 MR. JULIAN FALCONER: -- "resulted in a 5 situations where police were, one, 6 called upon to hire more aboriginal 7 staff --" 8 COMMISSIONER SIDNEY LINDEN: I'm sorry, I 9 don't see where you're reading from but I'm interested -- 10 MR. JULIAN FALCONER: I'm sorry, I 11 apologize. Page 12, third paragraph. 12 COMMISSIONER SIDNEY LINDEN: Yes, I'm on 13 page 12, the third paragraph. 14 MR. JULIAN FALCONER: "In that situation, 15 police were..." 16 COMMISSIONER SIDNEY LINDEN: I don't see 17 that. 18 MR. JULIAN FALCONER: Page 12. This is 19 not of the promise, this is of the paper. 20 COMMISSIONER SIDNEY LINDEN: I've got the 21 paper in front of me. 22 MR. DERRY MILLAR: He didn't take you to 23 that part. He started at page 13. 24 COMMISSIONER SIDNEY LINDEN: No, I know 25 that. But I'm looking at page 12. I'm just looking for
1321 where that is and I haven't found it. 2 MR. JULIAN FALCONER: Is the top of the 3 page, "in summary?" 4 COMMISSIONER SIDNEY LINDEN: "In 5 summary," yes. 6 MR. JULIAN FALCONER: Good. The next 7 paragraph starts, "American..." 8 COMMISSIONER SIDNEY LINDEN: "American..." 9 MR. JULIAN FALCONER: And then the next 10 is "In that situation..." 11 COMMISSIONER SIDNEY LINDEN: Yes, is that 12 what you're reading? 13 MR. JULIAN FALCONER: That's -- that's -- 14 yes. 15 COMMISSIONER SIDNEY LINDEN: All right. 16 I'm sorry. Okay. 17 MR. JULIAN FALCONER: "In that situation 18 police, one, were called upon to hire 19 more aboriginal staff and, two, to 20 implement a more ambitious cross- 21 cultural training program. In the 22 years following the inquiry the 23 Winnipeg police initiated several 24 projects and three (3) reviews 25 completed by Prairie Research
1331 Associates were undertaken in 1992, 2 1994 and '95 in order to assess 3 progress." 4 Just the bottom of the paragraph: 5 "In the 1995..." 6 The last paragraph on the page, because 7 they refer to it in each case: 8 "In the 1995 evaluation respondents 9 said that cross-cultural training was 10 leading to worse relations with 11 Aboriginal people and that the 12 involvement of Aboriginal people in 13 providing the training detracted from 14 the value of the program." 15 And if you look at the two (2) paragraphs 16 above it, Mr. Commissioner, there is references to the 17 challenges that are presented to various police services 18 by some of the policies that this Witness is 19 implementing. And the top down, or getting, as you put 20 it, me bearing down, is about whether the -- and -- and I 21 use the example of Mark Wright, but I prefer to use the 22 Mark Wright statements because that's evidence on a 23 transcript in front of you. 24 There is a concern, stated academically 25 and otherwise, that the Mark Wright style statements, the
1341 us against them mentality, isn't necessarily fixed by 2 these kind of policies or training. And that's where I'm 3 headed. 4 And if it's not fixed that means an 5 incident tomorrow or an incident the next day will result 6 in a second in command who speaks this way, who thinks 7 this way. And if the second in command thinks this way, 8 well, it's not going to be a great surprise that it ends 9 up in an us against them. 10 So my cross-examination is directed 11 towards establishing whether there are systems in place 12 to weed out the us against them type officer. Now, this 13 particular officer was promoted; never informally 14 disciplined, never -- we have nothing. 15 And to -- and -- and it isn't about me 16 going off topic. The mandate of this commission, with 17 respect, is to avoid similar situations in the future. 18 COMMISSIONER SIDNEY LINDEN: I 19 commissioned this paper. So I'm aware of that. 20 MR. JULIAN FALCONER: No, no. Fair 21 enough. 22 COMMISSIONER SIDNEY LINDEN: I commissioned 23 this paper. 24 MR. JULIAN FALCONER: And but what I'm 25 saying the mandate of this commission is to avoid similar
1351 situations in the future. And if the Mark Wrights of the 2 world, as reflected in those statements, I'm talking 3 about the statements and not the man, if the Mark Wright 4 statements are not addressed directly so that the 5 mentality of the second in command is something we've 6 weeded out, then we face the same danger, the same 7 violent struggle. 8 And that's -- that's where my questioning 9 is directed. And I would say -- 10 COMMISSIONER SIDNEY LINDEN: Well, -- 11 MR. JULIAN FALCONER: -- with great 12 respect it's dead on point because I'm trying to point 13 out -- 14 COMMISSIONER SIDNEY LINDEN: I'm having a 15 problem. I'm having a -- 16 MR. JULIAN FALCONER: Okay. 17 COMMISSIONER SIDNEY LINDEN: -- serious 18 problem between Part 1 responsibilities which these 19 hearings are about -- 20 MR. JULIAN FALCONER: Right. 21 COMMISSIONER SIDNEY LINDEN: -- and why 22 this Witness was called as a witness. 23 MR. JULIAN FALCONER: Right. 24 COMMISSIONER SIDNEY LINDEN: And that the 25 evidence that she was given through Mr. Millar's
1361 questions was kept at a very high level -- 2 MR. JULIAN FALCONER: Yes. 3 COMMISSIONER SIDNEY LINDEN: -- for a 4 reason and that's the way we felt that her evidence could 5 be helpful to me in this part -- 6 MR. JULIAN FALCONER: Fair enough. 7 COMMISSIONER SIDNEY LINDEN: -- because 8 as I say there's another part to this Inquiry as you know 9 and you've been active in that part as well and there's a 10 lot of information that I have commissioned. 11 And there's a lot of questions that we 12 have asked the OPP to respond to and some of them are of 13 this nature and they are answering those questions. 14 They're in the process of responding to questions that we 15 put to them, many questions. 16 And, you know, I'm just not sure that -- 17 MR. JULIAN FALCONER: Well, if I can -- 18 my only problem with that, Mr. Commissioner, is what I'm 19 doing is dealing with the facts of Ipperwash and I will 20 not be allowed as we know in Part 2 to deal with the 21 facts of Ipperwash; that's not how we do it. So -- 22 COMMISSIONER SIDNEY LINDEN: Yeah. 23 MR. JULIAN FALCONER: -- what I'm 24 concerned about is this and I can lay it out this way. 25 This Commissioner was in place as of 1998. In fact the
1371 revelations surrounding the statements by Mark Wright on 2 tapes would have in fact happened during her tenure as 3 Commissioner, the same tenure in which this man was 4 promoted. 5 COMMISSIONER SIDNEY LINDEN: Well, I -- 6 MR. JULIAN FALCONER: So -- and so I'm 7 trying to address how if at all -- it may be there's a 8 reasonable explanation for why he would be promoted. 9 COMMISSIONER SIDNEY LINDEN: That's fine. 10 MR. JULIAN FALCONER: It may be he -- 11 he's been addressed about it but we haven't heard about 12 that yet. And -- and my point is you don't avoid violent 13 situations like this in the future by leaving the same 14 people in place one (1) way or another -- 15 COMMISSIONER SIDNEY LINDEN: Yes. 16 MR. JULIAN FALCONER: -- to run the ship. 17 COMMISSIONER SIDNEY LINDEN: Yes, that's-- 18 MR. JULIAN FALCONER: And -- and that's 19 my -- 20 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 21 Millar, would you... 22 MR. DERRY MILLAR: Well, my submission is 23 I agree with you. I think that the -- this isn't about 24 what happened at Ipperwash, these questions and if there 25 are changes -- if you're going to make recommendations
1381 with respect to changes in -- at the OPP or any -- 2 anywhere else it's really part of the Part 2. 3 The -- whether or not -- and if My Friend 4 wishes to make submissions in Part 2 about the promotion 5 process he's -- 6 COMMISSIONER SIDNEY LINDEN: It's 7 perfectly appropriate. 8 MR. DERRY MILLAR: -- it's perfectly 9 appropriate for him to do so and to make those comments 10 but -- and make whatever comments he wishes to make on 11 that but this is not the place for that in my submission. 12 COMMISSIONER SIDNEY LINDEN: Mr. Sandler? 13 MR. MARK SANDLER: Well, I have another 14 difficulty with it and it's a -- and it's a real 15 unfairness to Detective Inspector Mark Wright because we 16 can get into what he was cross-examined on and whether he 17 was asked, you know, did you get it at the time of your 18 promotion and how is it that we know that you got it and 19 -- and what is your state of mind and all of that kind of 20 thing and -- and this is really an attempt -- My Friend 21 keeps saying, I'm just talking about the tapes, I'm not 22 talking -- 23 COMMISSIONER SIDNEY LINDEN: Yeah. 24 MR. MARK SANDLER: -- about Mark Wright. 25 But let's face it, what -- what -- in effect the
1391 inference that's sought to be drawn in whether or not 2 Mark Wright should have been promoted. That's 3 exceedingly unfair to Mark Wright in these circumstances 4 I have to say with great respect. 5 COMMISSIONER SIDNEY LINDEN: And it may 6 be important to me to know, maybe, I don't know that at 7 this point. For Part 2 perhaps I may want to look at how 8 promotions take place and so on but it's not helping me 9 here. 10 MR. MARK SANDLER: I can suggest -- and I 11 don't want to suggest My Friend's questions but I can say 12 that if My Friend wanted to as for example at a macro 13 level what do you do in the promotional process now -- 14 COMMISSIONER SIDNEY LINDEN: Yes. 15 MR. MARK SANDLER: -- to address 16 diversity or machoism or what have you then I think 17 that's perfectly appropriate. 18 COMMISSIONER SIDNEY LINDEN: That's why 19 I'm having a difficulty with this because I agree with 20 that and what Mr. Falconer started out to do at some 21 level is very helpful and this is a subject matter, Mr. 22 Falconer, that you know I have a great deal of experience 23 with in my own career and places that -- 24 MR. JULIAN FALCONER: Yes. 25 COMMISSIONER SIDNEY LINDEN: -- I've been
1401 where I've been heads of agencies and indeed an agent of 2 change and so on. I truly value this information and 3 this area of questioning on a macro level but I don't 4 find it helpful when it gets to the point where it 5 becomes irrelevant for this Part 1 proceeding. 6 MR. JULIAN FALCONER: Fair enough, Mr. 7 Commissioner. Thank you. 8 9 (BRIEF PAUSE) 10 11 CONTINUED BY MR. JULIAN FALCONER: 12 Q: Pursuant to the Commissioner's 13 direction I'm going to move past the so-called Mark 14 Wright statements and work at that general level. 15 COMMISSIONER SIDNEY LINDEN: Try to work 16 at a higher level -- 17 MR. JULIAN FALCONER: Thank you. 18 COMMISSIONER SIDNEY LINDEN: -- and in a 19 more generic way because that's the way the Witness was 20 called. 21 22 CONTINUED BY MR. JULIAN FALCONER: 23 Q: When information about an officer 24 that is a tough nut to crack, a hard case comes to your 25 attention say by way of tapes, how do you address
1411 ensuring that same person doesn't have the same input and 2 contribution into the next serious critical incident? 3 COMMISSIONER SIDNEY LINDEN: That's a 4 fair question. 5 6 (BRIEF PAUSE) 7 8 THE WITNESS: I'm trying to take it out 9 of the context of this. If -- it would be dealt with 10 either through a discipline process or a discussion or 11 some information shared with their supervisor, perhaps, 12 or something like that. 13 14 CONTINUED BY MR. JULIAN FALCONER: 15 Q: All right. 16 A: They don't normally come to my 17 attention. They come up through other areas. 18 19 (BRIEF PAUSE) 20 21 Q: And Mr. Commissioner, from your 22 ruling I infer that it -- it would be contrary to the 23 ruling for me to ask if that happened with Mark Wright; 24 is that fair? 25 COMMISSIONER SIDNEY LINDEN: Yes, I don't
1421 want to go -- 2 MR. JULIAN FALCONER: Okay, I just want 3 to -- 4 COMMISSIONER SIDNEY LINDEN: -- into -- 5 MR. JULIAN FALCONER: -- make sure -- 6 COMMISSIONER SIDNEY LINDEN: Yes, yes. 7 MR. JULIAN FALCONER: -- because I want 8 to put on the record, I think -- 9 COMMISSIONER SIDNEY LINDEN: No, that's 10 fine. 11 MR. JULIAN FALCONER: -- I should be able 12 to ask the question, but you're saying I shouldn't and I 13 want to -- 14 COMMISSIONER SIDNEY LINDEN: Carry on. 15 MR. JULIAN FALCONER: I don't want to 16 argue with you. 17 18 (BRIEF PAUSE) 19 20 CONTINUED BY MR. JULIAN FALCONER: 21 Q: Are you aware of any sums of money 22 that were paid to Ken Deane -- 23 A: Yes. 24 Q: -- by the OPP? Could you please 25 provide the context in which sums of money were paid --
1431 COMMISSIONER SIDNEY LINDEN: I don't know 2 anything about this. Is this an area that's important 3 for me to have to know about? 4 MR. DERRY MILLAR: I can't see how it 5 ever could be -- 6 COMMISSIONER SIDNEY LINDEN: I don't see 7 any relevance to this. 8 MR. DERRY MILLAR: -- important to you. 9 COMMISSIONER SIDNEY LINDEN: I don't see 10 how this has anything to do with what I'm doing here. 11 MR. JULIAN FALCONER: Mr. Commissioner, 12 the witness -- 13 COMMISSIONER SIDNEY LINDEN: Sums of 14 money paid to Ken Deane? 15 MR. JULIAN FALCONER: Well, if monies 16 were paid to Ken Deane by the Ontario Provincial Police 17 following the shooting of Dudley George, and it has 18 something to do -- we have heard evidence that the OPP, 19 through superior officers, have directed assistance in 20 the preparation of his defence. 21 We have determined inappropriate support 22 that's been provided to him at different levels. If it 23 turns out that the OPP has paid large sums of money to 24 Ken Deane, it should be brought out on the record. 25 COMMISSIONER SIDNEY LINDEN: I --
1441 MR. JULIAN FALCONER: We'll determine -- 2 COMMISSIONER SIDNEY LINDEN: -- am 3 baffled. 4 MR. JULIAN FALCONER: -- based on what 5 the witness says, as to whether it's relevant or not. 6 But I -- I can't -- Mr. Millar can't be saying it's not 7 relevant when we don't know the context for the payment 8 of the sums. 9 COMMISSIONER SIDNEY LINDEN: I'm baffled 10 by the question, that's all, at the moment. It just sort 11 of came out of left field. 12 MR. JULIAN FALCONER: No, that's fine. I 13 understand. 14 COMMISSIONER SIDNEY LINDEN: I -- 15 MR. JULIAN FALCONER: I was trying to 16 move on. 17 COMMISSIONER SIDNEY LINDEN: Well, I know 18 you're trying to move on, but I'm just not sure -- 19 MR. JULIAN FALCONER: You got to admit it 20 was quite a move. 21 COMMISSIONER SIDNEY LINDEN: It was quite 22 a leap, it was a leap. It was a leap. Now, is there 23 some context for this? 24 MR. JULIAN FALCONER: Yes, there is. 25
1451 CONTINUED BY MR. JULIAN FALCONER: 2 Q: The context is: Following the death, 3 the shooting death of Dudley George, was or were sums of 4 money paid to Ken Deane by the Ontario Provincial Police, 5 to your knowledge? 6 A: There is, as somebody separates from 7 the organization, there is certain things that flow from 8 that separation. And I don't know what the breakdown is, 9 and I couldn't speak to that. 10 Q: All right. So are you saying as -- 11 as a matter of a severance payment? 12 A: In part, yes. 13 Q: All right. Now, you said "in part." 14 Now first of all, I want to establish, Ken Deane left as 15 a result of a finding of discreditable conduct; is that 16 correct? 17 A: No. He was -- yes, he was -- a 18 finding and -- but he was under appeal. 19 Q: All right. 20 A: I do recall. 21 Q: All right. And secondly, you're 22 saying, "in part," I heard the words, "in part," you 23 said. What was the other part? 24 A: I -- I don't know what the breakdown 25 is. I'd have to look at it.
1461 Q: Not the amount, what was the other 2 basis for payment? 3 A: There was -- in terms of how the -- 4 he was under appeal at the time, and as the time frame 5 would go into appeal until his sentence, I'm not sure how 6 that -- where at what point that financially stopped. 7 So I can't really speak to the question 8 without seeing what the information is. 9 Q: Are you saying that somehow the 10 payments were connected to Mr. Deane's appeal from 11 criminal conviction? 12 A: No. 13 Q: Okay. 14 A: No. 15 Q: So the appeal in respect of the -- 16 A: Discipline matter. 17 Q: -- discreditable -- thank you. And 18 it's -- the next question I have is, subsequent -- or 19 subsequent to the death of Dudley George, Mr. Deane 20 ultimately started his own company; you're aware of that? 21 A: I was aware of that. 22 Q: To your knowledge -- 23 COMMISSIONER SIDNEY LINDEN: Yes, just 24 stop -- 25 MR. JULIAN FALCONER: -- did the OPP --
1471 COMMISSIONER SIDNEY LINDEN: Stop there, 2 Mr. Falconer. 3 MR. JULIAN FALCONER: Well -- 4 COMMISSIONER SIDNEY LINDEN: Stop there, 5 Mr. Falconer. 6 MR. DERRY MILLAR: I -- that -- 7 COMMISSIONER SIDNEY LINDEN: Just a 8 minute. 9 MR. DERRY MILLAR: This cannot be 10 relevant -- 11 COMMISSIONER SIDNEY LINDEN: I don't see 12 how -- 13 MR. DERRY MILLAR: -- under any rubric of 14 the mandate -- 15 COMMISSIONER SIDNEY LINDEN: -- how this 16 is relevant to what I'm doing. 17 MR. DERRY MILLAR: -- at this Commission. 18 Mr. Deane left and Mr. Deane started a company. 19 MR. JULIAN FALCONER: Yes. 20 MR. DERRY MILLAR: And it's absolutely 21 not relevant to the circumstances surrounding the death 22 of Mr. George on September 6th, 1995. 23 COMMISSIONER SIDNEY LINDEN: Yes, I 24 agree. 25 MR. JULIAN FALCONER: Well, if the OPP
1481 paid funds to Mr. Deane's company following his 2 departure, then it could well be relevant. 3 COMMISSIONER SIDNEY LINDEN: It's not an 4 area that I want to explore at this point. It's not 5 helpful to me at all in what I've been asked to do, so 6 I'm going to ask you to move on. 7 MR. JULIAN FALCONER: Thank you. 8 9 (BRIEF PAUSE) 10 11 CONTINUED BY MR. JULIAN FALCONER: 12 Q: You will have been privy to the taped 13 conversations between Ron Fox and John Carson on 14 September 5th and 6th, 1995 as reflected in Exhibit P- 15 444A, that being the simple conversations in which Ron 16 Fox reports on his meetings at the inter-ministerial 17 level and the Dining Room meeting? 18 A: Yes. 19 Q: All right. And obviously, since you 20 have been Commissioner since 1998, in fact, the public 21 revelations of those transcripts would have been during 22 your term as Commissioner, yes? 23 A: That's correct. 24 Q: And I said public revelations as to 25 the Fox Carson transcripts. Now I want to know,
1491 privately, when would you have first learned of the 2 existence of the transcribed conversations between then 3 Inspector Ron Fox and Incident Commander Carson of 4 September 5th and 6th, 1995? 5 A: Could I just look at exactly which 6 ones you're talking about, so I'm clear. 7 Q: Sure. If I could please have P-444A 8 placed before the witness please? Do you have P-444? 9 MR. DERRY MILLAR: No, she doesn't have 10 it yet. 11 MR. JULIAN FALCONER: Oh, I'm sorry. 12 13 (BRIEF PAUSE) 14 15 MR. MARK SANDLER: I might say, we got a 16 notice in relation to these documents between 9:00 and 17 ten o'clock this morning, so it hasn't been done yet. 18 COMMISSIONER SIDNEY LINDEN: 19 Unfortunately we've had some other experiences of that on 20 all sides of the -- all sides of the Inquiry, so there's 21 not much we can do about that now. 22 If you need more time or if Commissioner 23 Boniface needs more time to look at it, we'll just give 24 her more time. I don't want to be unfair. The idea of 25 the rule is fairness; is so that the witness can review
1501 the documents before being asked questions about them. 2 If we have to stop in mid-stream it just 3 wastes time, but we'll do that if we have to. 4 MR. JULIAN FALCONER: I can let the -- 5 we're at, right now, quarter to 12:00. We're going to -- 6 my questioning is going to go over the lunch break. So 7 I'm content if she wants to look at them again over the 8 lunch break, that's fine. 9 It's just they're -- it's such, obviously, 10 a commonly referred to set of conversations -- 11 COMMISSIONER SIDNEY LINDEN: Yes. 12 MR. JULIAN FALCONER: I would have 13 guessed that Commissioner Boniface may well have read 14 those transcripts more than I have. But the bottom line 15 is I'm happy to put off this part of the questioning 16 until after lunch. 17 COMMISSIONER SIDNEY LINDEN: Why don't 18 you do that then and then -- 19 MR. JULIAN FALCONER: Sure. 20 COMMISSIONER SIDNEY LINDEN: -- we'll let 21 her read it over lunch. 22 MR. JULIAN FALCONER: Thank you. 23 COMMISSIONER SIDNEY LINDEN: If there's 24 anything else in that category that she may want to 25 review over lunch, perhaps you'd bring it to our
1511 attention. If there's anything else that you think might 2 come up that she should have a look at. 3 MR. JULIAN FALCONER: Fair enough. I'm 4 sorry, I'm doing things out of order so I want to make 5 sure I... 6 7 (BRIEF PAUSE) 8 9 CONTINUED BY MR. JULIAN FALCONER: 10 Q: I'm going to still talk to you about 11 Mr. Fox but I'm going to skip over the questions about 12 the transcripts. 13 A: Okay. 14 Q: First of all, do you personally know 15 Ron Fox? 16 A: I do. 17 Q: All right. And how long have you 18 known Ron Fox for? 19 A: I would say fifteen (15) years -- 20 fourteen (14) years. 21 Q: All right. And so you're -- and I -- 22 and his involvement in aboriginal policing issues would 23 have been concurrent, to some extent, with your 24 involvement in those issues; is that fair? 25 A: Yes.
1521 Q: All right. And you would have known 2 him through that manner or mechanism? 3 A: Yes. Yeah, that's when I first met 4 him. 5 Q: All right. And in terms of him as a 6 police officer, your experience with Superintendent Fox; 7 positive, negative, can you comment on that? 8 A: Very positive. 9 Q: All right. A responsible individual? 10 A: Yes. 11 Q: Did you find that he was a man taken 12 to flights of fancy or outrages or temper outbursts? 13 A: No. 14 Q: All right. And he held the -- the 15 position of what has been described in some of the 16 evidence and by many witnesses a First Nations Liaison 17 Officer; you know that? 18 A: Yes. 19 Q: And he held that position during the 20 -- the relevant time periods. 21 Now, I want to understand, from the point 22 of view of Commissioner of the OPP, to have an individual 23 who's a seconded police officer, that is in this case 24 seconded to the Office of the Solicitor General, does it 25 make the person any less a police officer?
1531 A: No, they -- they're a police officer 2 at the time. 3 Q: All right. 4 A: Unless they are in a position where 5 they give up their status while they're in a secondment. 6 Q: But that wasn't the case for Ron Fox, 7 was it? 8 A: I don't think so -- 9 Q: All right. 10 A: -- but it wasn't in my time. 11 Q: And when you say, "give up their 12 status," you mean give up, for example, their statutory 13 responsibilities as a police officer pursuant to the 14 Police Services Act? 15 A: Yeah. They're secondment is not in 16 the role as a police officer. 17 Q: Right. Now, in terms of process, 18 because the transcripts and the revelation of the 19 Fox/Carson communications would have occurred during your 20 term, is it fair to say you would have had some occasion, 21 maybe many occasions to consider the relationship that 22 Fox bore to Government and Fox bore to police at the 23 time? 24 A: Yes. 25 Q: All right. And of course, one (1) of
1541 the issues that the Commissioner has to grapple with is - 2 - is the movements of information between the Government 3 and the police at the time, all right? 4 A: Yes. 5 Q: Presently, is there someone in -- in 6 place who occupies, and I'm saying, currently, June 2006, 7 is there someone who occupies a role similar to that that 8 was occupied by Ron Fox in September 1995? 9 A: There is, but not in the Deputy 10 Minister's office. 11 Q: All right. Where is that person now? 12 A: It's in the Assistant Deputy 13 Minister's Office. 14 Q: All right. And that person is a 15 seconded police officer? 16 A: Yes. 17 Q: And you would know, did they renounce 18 their police officer status? 19 A: No. Let me clear though. The role 20 today is narrowed to a negotiator role. 21 Q: All right. And by the way, when I 22 step away and take a piece of paper you should sort of 23 act like I'm not doing it because I am listening to you-- 24 A: Okay. 25 Q: -- and I don't mean to be rude to
1551 you, it's just a -- a bunch of paper floats around my 2 head at once. All right? 3 A: Yeah. 4 Q: Now, Ron Fox occupied that negotiator 5 role, among other things on -- on tripartite agreements 6 involving -- 7 A: Yes. 8 Q: -- Aboriginal policing. So -- 9 A: Among other things. 10 Q: Yes, so he had a number of hats? 11 A: Yeah. 12 Q: And it's your point that today there 13 aren't a number of hats? 14 A: No, they're -- they're narrowed -- 15 the individual in the role today it's narrowed to the 16 negotiator role; they're not in an advisory capacity at 17 all. 18 Q: All right. And to your knowledge, 19 based on what you saw in 1998 -- and I take it as a 20 result of the revelations of -- may I call them the Fox 21 Tapes? 22 A: Sure. 23 Q: All right. As a result of the 24 revelation of the Fox tapes, you would have been duty- 25 bound to make inquiries yourself about the nature of the
1561 communications that happened, yes? 2 A: I listened to the tape. 3 Q: Right. But you -- you had to 4 actually -- you were in power as the Commissioner -- 5 A: Yes. yeah. 6 Q: -- at the time? It was your 7 obligation to become familiar with the issue, yes? 8 A: Yes. 9 Q: All right. And in doing so, can I 10 ask, it was apparent to you, having become familiar with 11 the issue, that Mr. Fox indeed was serving in advisory 12 capacity, correct? 13 A: Yes. 14 Q: And the description by many, 15 including Carson, Parkin, Runciman, and -- and Hansard 16 and Harris -- I'm sorry, Harris and Hansard, right, Mr. 17 Harris and the -- and the Hansards, all of them bear out 18 a description of Mr. Fox as a First Nations Liaison 19 Officer. 20 A: Yes. 21 Q: And that's what you understood his 22 function was at the time? 23 A: Yes. 24 COMMISSIONER SIDNEY LINDEN: Just a 25 minute, Mr. Falconer, I see counsel coming forward on
1571 behalf of -- 2 OBJ MR. ADAM GOODMAN: My objection is -- is 3 very simple. My Friend Mr. Falconer has -- has listed a 4 number of witnesses who have testified as to their 5 impression of what Mr. Fox's role was, however, he didn't 6 mention Mr. Fox's immediate superior's impression of what 7 that role was, Elaine Todres, and that the -- the -- 8 COMMISSIONER SIDNEY LINDEN: I'm sorry. 9 I'm sorry, I didn't hear you, what did you say? 10 MR. ADAM GOODMAN: Mr. Falconer did not-- 11 COMMISSIONER SIDNEY LINDEN: Yes? 12 MR. ADAM GOODMAN: -- mention Elaine 13 Todres' impression of what Mr. Fox's role was and what 14 his -- his reporting duties were, because in her 15 impression they were to her, and her alone. That's my 16 only objection. 17 COMMISSIONER SIDNEY LINDEN: All right. 18 MR. ADAM GOODMAN: That -- that has to be 19 on the record -- 20 COMMISSIONER SIDNEY LINDEN: You put that 21 on the record and that's fine. 22 MR. JULIAN FALCONER: That's fine. Thank 23 you. 24 25 CONTINUED BY MR. JULIAN FALCONER:
1581 Q: Now, you had said -- you gave me an 2 answer that, yes, you understood that was his role. Does 3 My Friend's indications on the record change your answer 4 in any way? 5 A: His role was reporting to the deputy 6 minister. 7 Q: Right. 8 A: He was on secondment to that office. 9 Q: When I asked you a question before, 10 I'd said: Given the evidence of those people, was it 11 also your understanding that he was a First Nations 12 liaison officer? You answered, yes. 13 And what I'm asking you now is: Based on 14 what My Friend just put on the record for clarification; 15 does that change your answer? 16 A: No. he's a First Nation -- he wasn't 17 a liaison, I meant -- I think he was first -- they called 18 it First Nation Advisor at that time. 19 Q: All right. 20 A: In the deputy minister's office. 21 Q: So when I asked, Was it your 22 impression he was a First Nation liaison officer, you're 23 now saying that you -- you'd rather change that to 24 something different, fair? 25 A: Well, let me just clarify why I say
1591 that, because in my terminology, liaison officer is 2 somebody who works in the field, in his -- within the 3 OPP. So I think the title was First Nation Advisor. 4 Q: All right. 5 A: It's -- I'm just trying to be as 6 specific as I can for you. 7 Q: Fair enough. Functionally, or sort 8 of substantively, and you quite fairly answered my 9 question, but functionally, substantively, his role was 10 described as being, among other things, an intermediary 11 between government and police; was that also your 12 understanding of his role? 13 A: Yes. I think -- 14 Q: All right. 15 A: -- that's fair. 16 Q: And so when Ron Fox is reporting back 17 to police about what government is saying, he was, in 18 fact, fulfilling part of his function, wasn't he? 19 A: He was filling part of his -- 20 Q: Yes. 21 A: -- function? No, I think -- 22 COMMISSIONER SIDNEY LINDEN: Just a 23 minute. Just a minute, there's another objection. 24 25 (BRIEF PAUSE)
1601 OBJ MR. ADAM GOODMAN: Well, my objection to 2 this is, the Ron Fox tapes and everything that was on 3 them, I mean, this witness has already testified and Mr. 4 Millar made it clear that she was not involved in the 5 events of September 4th, 5th and 6th and I don't know how 6 it's helpful to the Commission for her to be speculating 7 on -- on these events which -- which she was not a party 8 to at the time. 9 COMMISSIONER SIDNEY LINDEN: Yes, well -- 10 MR. ADAM GOODMAN: And, you know, these - 11 - you know, the findings have to be made, they're going 12 to have to be made by you -- 13 COMMISSIONER SIDNEY LINDEN: Well, yes. 14 MR. ADAM GOODMAN: -- Mr. Commissioner. 15 COMMISSIONER SIDNEY LINDEN: We don't 16 know yet, because we kind of put that off to find out 17 when she first learned about the existence of those 18 tapes, what her position may have been in the OPP at that 19 time and what she may have -- we put that off so. 20 MR. ADAM GOODMAN: Yeah, but to have this 21 witness speculating on what was and was not appropriate, 22 I mean, at this stage I don't think it's helpful. 23 COMMISSIONER SIDNEY LINDEN: Well, I 24 think it -- I think we should have her look at the tape 25 and decide when she saw it before we go any further.
1611 But anyway -- 2 MR. JULIAN FALCONER: We're at noon, Mr. 3 Commissioner. I'm wondering, if I just abandon the area 4 entirely and go back to it later, there's a lack of 5 continuity. So I'm thinking that, given that we're at 6 noon, and the idea is to have her look at them, in any 7 event, maybe this is an appropriate time for the lunch 8 break? 9 COMMISSIONER SIDNEY LINDEN: Well, I 10 think it may put your questions in context or it may 11 determine that they're not helpful, one or the other. 12 So I think we should adjourn. 13 MR. JULIAN FALCONER: I'm hoping it's the 14 former. 15 COMMISSIONER SIDNEY LINDEN: Yes. 16 MR. JULIAN FALCONER: Thank you. 17 THE REGISTRAR: This Inquiry stands 18 adjourned until 1:00 p.m. 19 20 --- Upon recessing at 11:59 a.m. 21 --- Upon resuming at 1:03 p.m. 22 23 THE REGISTRAR: This Inquiry is now 24 resumed. Please be seated. 25 COMMISSIONER SIDNEY LINDEN: Thank you.
1621 (BRIEF PAUSE) 2 3 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 4 Falconer. 5 MR. JULIAN FALCONER: Good afternoon, 6 Commissioner. 7 COMMISSIONER SIDNEY LINDEN: Good 8 afternoon. 9 10 CONTINUED BY MR. JULIAN FALCONER: 11 Q: Good afternoon, Commissioner. 12 A: Good afternoon. 13 Q: In respect of Exhibit P-444A, 14 Commissioner Boniface, did you get an opportunity to look 15 at Tabs 16 and 37? 16 A: I have. 17 Q: All right. And the question that was 18 asked in relation to that document was: When did the 19 transcripts or the nature of -- or the contents of the 20 taped conversation first come to your attention? 21 A: I don't have the exact timeframe, it 22 was during the civil suit process, so around 2003, I 23 think it was in that timeframe. 24 Q: All right. And so needless to say, 25 when this information first came to light it would not
1631 have come to light publicly first, it would have come to 2 light internally first; is that first -- is that fair? 3 A: Yes, I'm not sure it was far apart 4 though. 5 Q: Fair enough. 6 A: Yeah. 7 Q: And so you would have been 8 Commissioner when it came to light internally? 9 A: Yes. 10 Q: Okay. And -- and we have discussed 11 some aspects of Ron Fox's role but it -- that was a 12 foundational question, it was an effort to try to address 13 the fact that it was part of your duties. 14 You would have had an obligation to look 15 into the issue of Mr. Fox's involvement with John Carson 16 the Incident Commander; you would have had to because it 17 came only to light while you were Commissioner, correct? 18 A: Yes. 19 Q: Okay. Did Ron Fox act improperly, in 20 your view, based on him as a subordinate, over which you 21 had responsibility? 22 A: At the time in '95 he was not a 23 subordinate to me. 24 Q: No. In 2003, when his conduct came 25 to your attention, you would have had to look at it,
1641 fair? 2 A: Yes. 3 Q: And you would have had to assess 4 whether he acted improperly? 5 A: Yes. In relation to the discussion 6 that took place with John Carson at that time, it was -- 7 would have been much better for him not to have made the 8 call direct to the Command Post. 9 Q: All right. Now, when you say, it 10 would have been better for him not to have made the call 11 to the Command Post, some of the reasons are really 12 obvious, but we have to do this anyway. Please advise us 13 as to why and how you think that it wasn't handled 14 properly? 15 A: Well, in -- what should have taken 16 place, I believe, and would take place today, is that the 17 information that would come from Ron Fox in that position 18 would go to the Commissioner and the Deputy 19 Commissioner's Office and come down and -- and whatever 20 information was intended to come down would come down and 21 if it wasn't it would not. 22 Q: Now, the information would go to the 23 Commissioner or the Deputy Commissioner, and so can we 24 just for a moment -- we'll just split that up. 25 Let's work on the answer of going to the
1651 Commissioner for moment, all right? 2 A: All right. 3 Q: And -- and obviously in those days it 4 would have been Commissioner O'Grady and now it would be 5 you, correct? 6 A: That's correct. 7 Q: And the idea, then, is that there is 8 expected to be an interface between this officer, Ron 9 Fox, and the police, but the interface is to be at the 10 Commissioner level? 11 A: Yes. 12 Q: Fair enough. Now, you also will have 13 had occasion to review the fact that Chief Superintendent 14 Coles participated in call number two (2) that was at Tab 15 37. And I can refresh your memory in that regard? 16 If you flip to Tab 37, we're not going 17 through detail here I'm just trying to make sure the 18 players are properly identified for you. You'll see at 19 page -- there's printed page numbers in the bottom right 20 corner at Tab 37, page 268. You'll see that there's a 21 reference to -- you see at the bottom: 22 "Well, yeah, the Chief's here if you 23 want to talk to him here. Yeah, okay." 24 You see that? 25 A: Yes.
1661 Q: And then on the phone, if you flip 2 over, you'll see Coles starts talking to Fox; you see 3 that? 4 A: Yes. 5 Q: And the conversation continues for 6 some pages, in discussions of the nature that, in part, 7 were had with Carson, were had with Coles, only I think 8 some of the colourful language didn't quite come off the 9 same way; all right? 10 A: Yes. 11 Q: Does that refresh your memory or do 12 you need -- 13 A: Yes. No, no. I know what you mean. 14 Q: All right. Now, so you'd agree with 15 me that one of the superiors to Carson and, in fact, in 16 terms of rank to Fox, would have knowledge of the 17 existence of communications between Fox and Carson, 18 correct? 19 A: Can you just repeat that, sorry? 20 Q: One of the superiors, that's Coles? 21 A: Coles, okay. 22 Q: Based on what you know from that 23 transcript, he had knowledge of the communications going 24 on between Fox and Carson? 25 A: In a general sense, I would think,
1671 yes. 2 Q: Okay. And but to be fair to Chief 3 Coles, he points out in that conversation, You know, some 4 of the stuff you're saying to Carson here, I don't mind 5 you two (2) talking, but frankly, some of this stuff 6 going the other way is operational and I'm concerned. 7 Call me on another line. 8 All right? That's the gist, I think, to 9 try to be fair to it. 10 Now, the only reason I ask you that is, 11 does it come as a surprise to you that the supervising 12 officer would have no problem with Ron Fox and John 13 Carson talking? 14 A: It depends if he understood the -- 15 the text of the issues they were talking about and what 16 degree, because the other point also is here they were 17 trying to put together an injunction. 18 Q: Right. 19 A: And so, in fairness, if it was around 20 that sort of information I think that would be fair. 21 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 22 Sandler...? 23 MR. MARK SANDLER: There's a basic 24 problem with the premise, the evidence has been that he 25 did have a problem with it and took steps to ensure --
1681 COMMISSIONER SIDNEY LINDEN: Yes. Yes. 2 I'm -- 3 MR. MARK SANDLER: -- that it wasn't 4 happening, so I don't quite understand the basis of the 5 questions -- 6 MR. JULIAN FALCONER: Well, if you look 7 at the transcript, I'm happy to take you to the line: 8 "I don't have a problem with you and 9 John talking, I don't have a difficulty 10 with that [says Coles] but some of the 11 information going up the other way is 12 operational and I have a problem with 13 that." 14 And then he puts an end to the 15 communication, so -- 16 COMMISSIONER SIDNEY LINDEN: Well, I 17 would -- 18 MR. JULIAN FALCONER: -- the inference I 19 drew is that he didn't have a problem with Fox and Carson 20 talking but he now felt that things operational were 21 getting back up the chain. And that was what I took from 22 it; if I'm wrong, I'm wrong. 23 But my sense was Coles didn't have a 24 problem with Fox and Carson talking. 25 COMMISSIONER SIDNEY LINDEN: Well, I
1691 guess it would depend on what they're saying, I guess. 2 MR. JULIAN FALCONER: And that's what the 3 Witness said. 4 COMMISSIONER SIDNEY LINDEN: Yes, okay. 5 MR. JULIAN FALCONER: That's what the 6 Witness said. 7 COMMISSIONER SIDNEY LINDEN: Okay. 8 9 CONTINUED BY MR. JULIAN FALCONER: 10 Q: And the Witness quite rightly pointed 11 out, and that's where I was going next, that the 12 injunction was an issue that had to be discussed at the 13 lower levels, correct? 14 A: Right. 15 Q: And Fox was a mechanism for doing it? 16 A: Correct. 17 Q: And so Fox, in essence, acted as a 18 liaison between government and police, yes? 19 A: Well, between the lawyer and the 20 police. Right? 21 Q: Well, to be fair, you'd agree with me 22 that the tapes reflect the fact that the issue around 23 getting an injunction, what kind of injunction it would 24 be, also came from the inter-ministerial meetings, is -- 25 A: Okay.
1701 Q: -- is that not true? 2 A: I see what you mean. 3 Q: All right. And the inter-ministerial 4 meeting, its very name, tells you is a collection of 5 ministerial representatives making recommendations and or 6 decisions that are then moved down the pipe through Fox 7 to police level, correct? 8 That's what you saw in the transcripts? 9 A: Yeah. I -- but I'm not sure they're 10 a decision making body. 11 Q: Well, that's what I said -- 12 A: Yeah. 13 Q: -- recommendations or decisions? 14 A: Yeah. 15 Q: We -- it would get very grey for you 16 and I to argue. But the point is, they were making 17 recommendations and it included the injunction issue? 18 A: Yes. 19 Q: And that -- 20 COMMISSIONER SIDNEY LINDEN: Sorry, I 21 didn't have the impression that was grey. Are you 22 talking about the inter-ministerial committee now? 23 MR. JULIAN FALCONER: Yes. 24 COMMISSIONER SIDNEY LINDEN: I'm trying 25 to follow you.
1711 MR. JULIAN FALCONER: No, no. 2 COMMISSIONER SIDNEY LINDEN: They made 3 recommendations. 4 MR. JULIAN FALCONER: But the witness has 5 very fairly said I don't know if they're decisions or 6 recommendations. And my only point is that could be grey 7 whether you call it a decision. They clearly made that 8 recommendation, whether they also made that decision 9 depends on where Deb Hutton sits that day and I don't 10 want to get into argument. 11 COMMISSIONER SIDNEY LINDEN: Well, okay. 12 MR. JULIAN FALCONER: That's why I tried 13 to move from there. 14 COMMISSIONER SIDNEY LINDEN: You're not 15 in that and just by saying that you've prompted an 16 objection from Deb Hutton's counsel. 17 MR. JULIAN FALCONER: See, I -- once I 18 get going -- 19 MR. ADAM GOODMAN: That is absolutely 20 inappropriate. 21 COMMISSIONER SIDNEY LINDEN: He's not 22 getting into that. So it's inappropriate, he's not 23 getting into it. Carry on. You're very fast on your 24 feet and you have to be in this room. 25 MR. JULIAN FALCONER: That's right. I
1721 also approve of his colour in suits, Mr. Commissioner. 2 3 CONTINUED BY MR. JULIAN FALCONER: 4 Q: In terms of this flow of information 5 and because of the injunction, you would expect Fox to be 6 doing what he was doing, fair? 7 A: Yes. 8 Q: All right. 9 A: In that role. 10 Q: That's right. 11 A: Yeah. 12 Q: Now you mentioned that an advisor is 13 now occupying a different position than the negotiator 14 today, June 2006. That is there's a -- I take it an 15 advisor who occupies the role and a negotiator who -- and 16 they're not merged anymore, that was your evidence. 17 A: Yeah. They weren't merged, I didn't 18 think. 19 Q: All right. Could you tell me what 20 the title is of the -- today, June 2006, what's the title 21 of the advisor? 22 A: The -- I don't want -- I don't want 23 you to confuse it. He's not an advisor. He's a -- 24 Q: Who's he? 25 A: The individual in --
1731 Q: You mean today. 2 A: In today. 3 Q: Because you were pointing at 444A so 4 I was a little -- 5 A: Oh no, I'm sorry, I'm just talking 6 with my hands. 7 Q: That's right. 8 A: The -- the position -- there's a 9 position in the Ministry which is a liaison type 10 position. And then there's the First Nation negotiator 11 position. Those were the same in -- in 1995 except there 12 was -- it was a broader role for Ron Fox, called the 13 First Nations Advisor. 14 Q: And the person who is today, in June 15 2006, an advisor, their name is, please? 16 A: It's not an advisor, just a liaison 17 position. 18 Q: I apologize. That is my fault. I 19 did listen to you and then I blew it, I apologize. 20 A: It's Inspector Rob Goodfellow. 21 Q: Rob Goodfellow? 22 A: Yes. 23 Q: All right. And the person that is 24 the negotiator, their -- their name, please? It's not a 25 quiz. If you don't know, that's fine. It's my --
1741 A: Yes. Ron Longstreet. 2 COMMISSIONER SIDNEY LINDEN: I don't see 3 why that's important to know the name. 4 MR. JULIAN FALCONER: Well I -- it's 5 about to make itself clear. It's impossible for me to 6 have a meaningful discussion with you if I don't have 7 some names because otherwise we're not going to -- my 8 next questions won't make any sense. They'll be too -- 9 they'll be too vague. 10 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 11 Freeborn, you have an objection? 12 MS. SUSAN FREEBORN: I'm not sure how 13 this witness can address the details of someone who is 14 working for the Ministry. She is with the OPP, 15 Commissioner. 16 COMMISSIONER SIDNEY LINDEN: Yes. 17 MS. SUSAN FREEBORN: And whether -- what 18 Mr. Falconer needs the names of those individuals today, 19 I don't think is -- is useful or relevant. 20 COMMISSIONER SIDNEY LINDEN: Well he's 21 saying it's just to help him to make -- but he doesn't 22 need the names. You could -- 23 MR. JULIAN FALCONER: No. 24 COMMISSIONER SIDNEY LINDEN: -- find some 25 other --
1751 MR. JULIAN FALCONER: If, first of all, 2 Commissioner Boniface doesn't know the name of the 3 negotiator, we don't have to fight about it because we 4 don't know. 5 COMMISSIONER SIDNEY LINDEN: That's fine. 6 So let's move on. 7 MR. JULIAN FALCONER: Right. 8 COMMISSIONER SIDNEY LINDEN: You have to 9 find some other way to describe that person. 10 MR. JULIAN FALCONER: No, that's of the-- 11 MR. MARK SANDLER: She gave it, you didn't 12 hear it. 13 MR. JULIAN FALCONER: I apologize, I was 14 -- there's an objection going on. There was a name. 15 COMMISSIONER SIDNEY LINDEN: It isn't 16 important though. So I think you -- 17 MR. JULIAN FALCONER: No, I'm trying to 18 discern the roles today, Mr. Commissioner, and I want to 19 speak to the functions of these people today with the 20 view to addressing the Fox issue, if I can call it that-- 21 COMMISSIONER SIDNEY LINDEN: Yes. I 22 understand what you're doing. 23 MR. JULIAN FALCONER: -- because I -- I 24 need an 'A' and a 'B' and that's just -- 25 COMMISSIONER SIDNEY LINDEN: I understand
1761 what you're doing -- 2 MR. JULIAN FALCONER: Thank you. 3 COMMISSIONER SIDNEY LINDEN: -- you could 4 do it 'A' and 'B', but that's the only important -- 5 MR. JULIAN FALCONER: It's not very -- 6 it's not very realistic or helpful either. 7 COMMISSIONER SIDNEY LINDEN: No. And if 8 she does know, I don't see harm in having her tell you, 9 if she knows. 10 11 CONTINUED BY MR. JULIAN FALCONER: 12 Q: So the name of the negotiator would 13 be? 14 A: Rob Longstreet. 15 Q: Could you spell that for the record 16 please. 17 A: Longstreet. L-O-N-G street. 18 Q: All right. And does he have a rank? 19 A: He's currently Staff Sergeant. 20 Q: Okay. So he's Staff Sergeant 21 Longstreet. And Officer Goodfellow's rank? 22 A: Inspector. 23 Q: All right, thank you. Now, if the 24 Commissioner were to see to any -- or some of the 25 arguments, my client, ALST, is going to make at the end
1771 of the day, he might consider providing proper 2 definitions to the roles of these individuals, if they 3 don't already have sufficient definition today. Do you 4 understand? 5 In other words, there's no point fixing a 6 mouse trap if it's not broken -- 7 A: Right. 8 Q: -- on the other hand I need to ask 9 you questions about the functions of Inspector Goodfellow 10 and Staff Sergeant Longstreet with a view to determining 11 if today we have what could be a Fox issue or a Fox in 12 other clothing, if you don't mind the expression. 13 So I want to ask you, first of all, in 14 respect of Inspector Goodfellow's functions, Inspector 15 Goodfellow is a seconded police officer of the OPP. 16 A: Yes. 17 Q: And Inspector Goodfellow would be 18 free, I take it, as a -- as a person you've defined as an 19 advisor, he would be free -- 20 A: No. I defined him as a liaison. 21 Q: Liaison. All right. He'd be free to 22 contact your office? 23 A: Yes. 24 Q: Okay. And in the capacity as 25 liaison, he would be free to pass information to you if
1781 you learn at the government level, because that's the 2 point of a liaison? 3 A: Well he works through the Deputy 4 Minister. 5 Q: Fair enough. And in working for the 6 Deputy Minister he would be free to pass on information 7 he learns at the Deputy Minister level, to the 8 Commissioner, because that's his function? 9 A: If that's what she asks him to do. 10 Q: Right. But would you agree with me 11 that Inspector Goodfellow is not a rookie? 12 A: No. 13 Q: How many years experience, roughly? 14 A: Twenty (20). 15 Q: Right. Decades. 16 A: Yes. 17 Q: All right. And it's expected that 18 Inspector Goodfellow's going to use his judgment, and 19 there will be ongoing discourse where he doesn't get a 20 rubber stamp every time he picks up the phone and calls 21 one (1) side of the liaison, is it? 22 A: That's right. 23 Q: Right. So similarly, now -- now we 24 take away the liaison function and we go to Staff 25 Sergeant Longstreet. Staff Sergeant Longstreet, as a
1791 negotiator, his -- his only function, to deal with 2 tripartite agreements? 3 A: That's correct. 4 Q: All right. So in essence, he really 5 does have information flows going back and forth between 6 the police and government but it's all about the delivery 7 of police services, correct? 8 A: Yes. But to be clear, his position 9 is under Assistant Deputy Minister, not a Deputy 10 Minister. 11 Q: All right. So the liaison remains 12 under the Deputy Minister, yes? 13 A: That's correct. 14 Q: And the negotiator under the 15 Assistant Deputy Minister. Now I'd like to go back to 16 Inspector Goodfellow's role. Is the title that he 17 carries, quote/unquote, "Liaison," a formal title? 18 A: I think it is. I -- I -- 19 Q: All right. 20 A: -- can't tell you for sure. 21 Q: And would you agree that in looking 22 at the function Ron Fox served in 1995, that he was, in 23 essence, a hybrid of the two (2) functions served by 24 Goodfellow and Longstreet? 25 A: That wasn't my understanding.
1801 Q: All right. 2 A: I thought -- my understanding was he 3 was strictly on the First Nation issues. 4 Q: Okay. Fair enough. I -- I obviously 5 skipped a step that I shouldn't have. In respect of 6 being a liaison, what are Inspector Goodfellow's 7 responsibilities? 8 I wrongly assumed, and that's the trouble 9 sometimes with that, is that we miss a step. What is he 10 in charge of liaising on? 11 A: He liaises on administrative-type 12 things, for instance, if there's a requirement for -- I'm 13 trying to think of an example that would be a real one. 14 If we're preparing a submission that's 15 going to, for instance, Management Board, then he would, 16 you know, relay back and forth in terms of what the 17 timing might be and some of those issues. Or as issues 18 arise or information or meetings are done, or whatever, 19 will go through his, just because the Deputy's Office, 20 obviously it's busy and may not directly be able to get 21 him or her. 22 Q: All right. And does that include, 23 among other things, Aboriginal issues? 24 A: From the perspective if it was 25 something to do with the tripartite process, then it
1811 would come, sort of, ADM to ADM likely -- sorry, ADM to 2 Commissioner and the -- I'm just going through whether or 3 not there's any Aboriginal issues -- any matters that 4 fall out of this tripartite process may come through him 5 or it may come directly from the Deputy Minister. 6 Q: All right. Now, I'm not -- I'm not 7 sure I've clarified as much as I'd like to but -- but 8 what I -- what I'm concerned with is understanding, to 9 the extent Inspector Goodfellow did perform functions as 10 a liaison on -- or performs functions as a liaison on 11 issues relating to First Nations peoples, the functions 12 of a liaison as currently reflected, and the function of 13 negotiator is reflected, that's consistent with somewhat 14 of a hybrid job that Ron Fox held; is that true? 15 A: Yeah, but he would rarely deal with 16 those issues. 17 Q: Okay. And is it fair to say, though, 18 that the -- the only reason you and I are -- I'm getting 19 muddled, is just because there's things that Goodfellow 20 does outside of First Nations issues, right? 21 A: The majority of his job, if not the 22 vast majority, is outside of that. 23 Q: All right. So who -- but, in fact -- 24 but there's nobody dedicated to liaising on First 25 Nations' issues today?
1821 A: No. 2 Q: All right. And it looks like that's 3 what Ron Fox, among other things, was dedicated to doing? 4 A: That was his primary job, as I 5 understand it. 6 Q: All right. Thank you. I think that 7 clarifies it, though I'm positive there's an objection 8 rolling up. 9 COMMISSIONER SIDNEY LINDEN: Oh, I'm 10 sorry, there is. You're right. 11 MR. JULIAN FALCONER: I could feel it. 12 OBJ MR. ADAM GOODMAN: There -- there is an 13 objection because I don't think My Friend is -- is -- I 14 mean and this -- this underlines the problem with -- with 15 going into issues like this. 16 We've heard evidence from Elaine Todres 17 and there was someone other than Ron Fox dealing with 18 liaison issues in -- in the Ministry and I think My 19 Friend is a bit misleading this -- this Witness. And 20 this shows the -- the problem with -- with putting things 21 to this Witness who was not a -- who was not involved in 22 the events of September of 1995 and putting all kinds of 23 things to her, this is not helpful. 24 These are issues that you're going to have 25 to deal with. In my submission, this is not helpful at
1831 all. 2 COMMISSIONER SIDNEY LINDEN: Well, there 3 was another officer, you're correct and -- 4 MR. ALAN GOODMAN: And -- and My Friend 5 is not -- is not going over the -- the evidence 6 carefully. I mean, Ms. Todres was clear that there was 7 someone else in that role. 8 MR. JULIAN FALCONER: There's a couple 9 of things we have to -- 10 COMMISSIONER SIDNEY LINDEN: You're right 11 about that. 12 MR. JULIAN FALCONER: There's a couple of 13 things we have to understand. I asked my questions of 14 this witness -- 15 COMMISSIONER SIDNEY LINDEN: Yes. 16 MR. JULIAN FALCONER: -- based on the 17 knowledge she gained as a result of her obligation to 18 look into Ron Fox's role. And I'm asking what her 19 understanding was. I'm not asking for final argument 20 from this Witness on the state of the evidence. 21 So my questions are geared to the 22 understanding she had when faced in year 2003 with a very 23 unusual tape about an unusual role. So she went out and 24 did her job and figured out what she thought he did. 25 COMMISSIONER SIDNEY LINDEN: Yes. Yes.
1841 But you're -- 2 MR. JULIAN FALCONER: Based on a fifteen 3 (15) year understanding of the man; that is she also knew 4 him professionally. So that's what I'm interested in. 5 I'm not, sort of -- 6 COMMISSIONER SIDNEY LINDEN: I realize 7 what you're trying to do but sometime when you do that 8 you mis -- you don't mistake, you leave out some evidence 9 that may be -- 10 MR. JULIAN FALCONER: Okay. 11 COMMISSIONER SIDNEY LINDEN: -- useful. 12 MR. JULIAN FALCONER: Fair enough. 13 COMMISSIONER SIDNEY LINDEN: So I think 14 that's what Your Friend was pointing out. 15 MR. JULIAN FALCONER: I appreciate it. 16 COMMISSIONER SIDNEY LINDEN: I think you 17 can carry on. 18 MR. JULIAN FALCONER: Thank you. 19 20 CONTINUED BY MR. JULIAN FALCONER: 21 Q: So in terms of process, would you 22 agree with me that the issue of how Ron Fox was 23 discharging his functions and any difficulties that may 24 have arisen, in part were -- I should take out the word 25 "in part", largely came from the vagaries of his
1851 functions; vagaries of his title? 2 A: What do you mean by the vagaries? 3 Q: Well, it was unclear -- unclear what 4 was Ron Fox's job. When you went back and looked in 2003 5 as to what Fox was supposed to be doing was it clear to 6 you what he was supposed to be doing? 7 COMMISSIONER SIDNEY LINDEN: Ms. 8 Freeborn...? 9 MS. SUSAN FREEBORN: Again, I don't think 10 this is a question that this Witness can answer. He was 11 seconded to the Ministry and the job description was a 12 Ministry job description and it wasn't one that the 13 Commissioner would have had any input in and I don't 14 think it's appropriate for her to comment on it. 15 COMMISSIONER SIDNEY LINDEN: The 16 question -- 17 MS. SUSAN FREEBORN: It's not appropriate 18 for her to comment on whether or not the description of 19 the -- of the position was vague or not. 20 COMMISSIONER SIDNEY LINDEN: Well, I 21 think what he's asking her is for her perspective when 22 she received this information. At that time she was 23 Commissioner; is that right? 24 And you were looking into, or she was 25 looking into or trying to determine what the situation
1861 was. 2 I think that's what you're asking? 3 MR. JULIAN FALCONER: That's correct. 4 MS. SUSAN FREEBORN: Well, I don't think 5 he has established that Ms. -- Commissioner Boniface was 6 actually looking at the -- the -- at the job description 7 at the time. I -- I didn't hear that established that -- 8 COMMISSIONER SIDNEY LINDEN: Well, I -- 9 MR. JULIAN FALCONER: I established that 10 she made -- 11 MS. SUSAN FREEBORN: -- she did actually 12 make those -- 13 MR. JULIAN FALCONER: -- she determined 14 and was required under her job to determine the 15 appropriateness of Mr. Fox's actions. And her inquiries, 16 I asked her, did she take steps to determine and 17 ascertain what happened. 18 And I'm suggesting to her that part of the 19 problem that she ascertained for herself was and she can 20 tell me it was or wasn't, that's up to her to tell me, 21 that part of the problem was, was the -- the vagaries 22 that accompanied his job description. 23 COMMISSIONER SIDNEY LINDEN: From her 24 perspective? 25 MR. JULIAN FALCONER: That's right.
1871 COMMISSIONER SIDNEY LINDEN: She could 2 look at the description -- 3 MR. JULIAN FALCONER: That's right. 4 COMMISSIONER SIDNEY LINDEN: -- if there 5 was one and determine whether or not -- 6 MR. JULIAN FALCONER: Or get it from 7 somebody. But the point is, that was part the problem. 8 COMMISSIONER SIDNEY LINDEN: I don't 9 think that's improper. Carry on. 10 11 CONTINUED BY MR. JULIAN FALCONER: 12 Q: Going back to the question, and I 13 didn't mean to make it overly convoluted, one of the 14 difficulties that arose -- a main difficulty that arose 15 from Mr. Fox's involvement, was the vague nature of his 16 job description; would you agree? 17 A: I don't know what the job description 18 -- like the actual job description was. I didn't look at 19 that part of it. 20 Q: All right. 21 A: I just know from my day to day 22 understanding of the role -- 23 Q: And can you tell me, in terms of your 24 day to day understanding of the role, would you agree 25 that one of the problems with his function was that it
1881 lacked an element of specificity and was vague and -- and 2 that was part of the problem? Would you agree? 3 A: I wouldn't agree that it was vague 4 because I don't know. What I do know, it was a broader 5 role than -- it appears to be a broader role than the 6 negotiator that that's -- and -- 7 Q: Okay. All right. 8 A: -- to what degree that was, I don't 9 know. 10 Q: Okay. Thank you. I'm putting some 11 evidence in front of you that's from the evidence of 12 former Commissioner O'Grady and I -- it is short 13 evidence, Mr. Commissioner. I believe I only have two 14 (2) copies and I apologize. But I'll read it and I think 15 you'll recognize it and I'll give the page numbers. I'm 16 going to give it to the Witness. 17 COMMISSIONER SIDNEY LINDEN: Has the 18 Commissioner seen this before or are you looking -- 19 MR. JULIAN FALCONER: No, it's evidence 20 from -- 21 COMMISSIONER SIDNEY LINDEN: Yes, I know 22 it is but -- 23 MR. JULIAN FALCONER: -- O'Grady. 24 COMMISSIONER SIDNEY LINDEN: -- if you're 25 going to ask her to comment on it --
1891 MR. JULIAN FALCONER: Yeah. 2 COMMISSIONER SIDNEY LINDEN: -- she needs 3 to look at it. 4 MR. JULIAN FALCONER: It's dated August 5 25th, 2005, and I'm looking at page 94. 6 COMMISSIONER SIDNEY LINDEN: Well, if 7 it's more than a sentence or two (2) it's not reasonable 8 to ask her to -- 9 MR. JULIAN FALCONER: I'll -- I'll be 10 reading a portion to her and I'll be asking her as -- as 11 with other witnesses, we've done this before -- 12 COMMISSIONER SIDNEY LINDEN: I know but-- 13 MR. JULIAN FALCONER: -- I'm putting the 14 passage in front of her. 15 COMMISSIONER SIDNEY LINDEN: But when we 16 do that we usually let the Witness know in advance so the 17 Witness can look at it if we -- 18 MR. JULIAN FALCONER: No, there's no 19 document notice around transcripts. 20 COMMISSIONER SIDNEY LINDEN: No, not on a 21 transcript? Okay, well, I'm just saying to be fair if 22 it's -- 23 MR. JULIAN FALCONER: I'll be happy to -- 24 COMMISSIONER SIDNEY LINDEN: -- more than 25 a paragraph it's hard for her to follow that's all.
1901 MR. JULIAN FALCONER: Fair enough. I'm 2 happy to slow down for the Witness if she wants me to 3 slow down. The extract that I put in front of the 4 Witness is page 94 through to page 101. 5 6 CONTINUED BY MR. JULIAN FALCONER: 7 Q: Now, this is cross-examination of 8 August 25th, 2005, in which I am asking former 9 Commissioner O'Grady some questions. But what I want to 10 direct your attention to is the passage that starts... 11 12 (BRIEF PAUSE) 13 14 Q: ...at page 96 at line 6. I'm sorry, 15 line 2 -- page 96 line 2. It's a question by me. 16 And I'm asking Commissioner O'Grady the 17 issues or distinctions or differences between operational 18 and policy matters. And you'll recall that the -- the 19 issue of the political relationship between the OPP and 20 the Ministers was the subject of a paper that Mr. Millar 21 drew to your attention and asked you if you knew about in 22 his questioning of you? 23 A: Yes, yes, sorry. 24 Q: All right. I'm quoting that same 25 paper to former Commissioner O'Grady and I'm asking him
1911 some questions and I just want to ask you to -- to 2 comment on an aspect of the evidence. 3 "Q: And during your entire ten (10) 4 years did you come to any consensus 5 between your political masters on the 6 one (1) hand and you on the 7 difference?" 8 And we're discussing policy and operation. 9 "A: Just generally that I understood 10 that in broad policy matters the 11 Minister could have influence on what 12 the OPP -- what -- what policies the 13 OPP worked under. These were broad 14 policies --" 15 A: Sir? Sorry, I'm missing where you're 16 reading. Where are you reading? 17 Q: Line -- I was at page 96 -- 18 A: Yes. 19 Q: -- question line 2: 20 "And during your entire ten (10) 21 years..." 22 A: Okay. Sorry. 23 Q: That's all right. 24 "Q: And during your entire ten (10) 25 years did you come to any consensus
1921 between your political masters on the 2 one (1) hand and you on the difference? 3 A: Just generally, that I understood 4 that in broad policy matters the 5 Minister could have influence on what 6 the OPP -- what policies the OPP worked 7 under. These were broad policies and 8 that operational matters he did not or 9 she did not. 10 Q: All right." 11 Now, I just want to take you to one (1) 12 other area in this paper and I want to move on. 13 Now, I'm skipping the quote from the paper 14 and I'm -- I'm giving you context because I want to ask 15 you some questions about the next answers. Line 16: 16 "Q: Now, that notion of respecting, 17 do you get from what I get that it's 18 important to respect the chain of 19 communication." 20 And if you go back to the -- the quote 21 it's all about how you have to -- if you look at the 22 quote, ma'am, that's at line 19. Do you see the quote? 23 A: Yes. 24 Q: Could you read it to yourself for a 25 minute so you're comfortable with what I'm putting in
1931 front of you? 2 3 (BRIEF PAUSE) 4 5 MR. MARK SANDLER: I wonder if My Friend 6 could actually read the quote because not having been 7 given any notice we don't have every transcript. 8 COMMISSIONER SIDNEY LINDEN: None of us - 9 - 10 MR. JULIAN FALCONER: No, no, that's 11 fair. 12 COMMISSIONER SIDNEY LINDEN: I don't have 13 it either, so. 14 MR. JULIAN FALCONER: Okay. That's fine. 15 I just asked Mr. Millar to put it on screen. The quote 16 is: 17 "This is not to say that the police 18 have no accountability with respect to 19 specific operational decisions. As 20 noted above, however, at page 13 the 21 Minister's accountability for 22 operational matters may be to require 23 information on what has or will be done 24 rather than as in the policy area to 25 control or direct the actions of the
1941 police. Reporting levels should -- 2 reporting relationships should also be 3 respected in order to avoid any 4 perception of political interference as 5 opposed to the Minister's right to be 6 fully informed on all matters under his 7 or her jurisdiction. Accordingly it 8 would be advisable for the Minister to 9 direct his or her requests for 10 information to the Commissioner." 11 Do you see that? And that's what I asked 12 Commissioner O'Grady. Do you see that? Commissioner 13 Boniface -- 14 A: Yeah. 15 Q: -- do you see that? And it's at page 16 96, 97 that I've been reading from? 17 A: Yes. 18 Q: And Mr. Millar's got it up on screen 19 and I'm grateful for that. 20 "Q: Now, that notion of respecting, 21 do you get from that what I get from 22 that which is, it's important to 23 respect the chain of 24 communication? 25 A: I do.
1951 And the notion that if you buck that 2 chain of communication or override it, 3 especially in the operational area, it 4 could well give rise to a perception of 5 political interference. 6 A: Yes. 7 Q: All right. Now what you'll see is 8 that at page 22 and so you have some 9 context..." 10 And I'll move quickly through this. As an 11 appendix there's some general guidelines apparently 12 created by the author. 13 And I'm going to -- it starts at line 7 14 and this is an example of -- if you'd just leave it up, 15 Mr. Millar. I'm not going to read every line into the 16 record. The bottom line is the author goes on to explain 17 the importance of the chain of command. 18 Is that correct, Commissioner? 19 A: You mean the chain of communication? 20 Q: The chain of communication, that's 21 right. 22 A: Yes. 23 Q: At line 12 the question asked of 24 Commissioner O'Grady, line 12, page 99: 25 "Now you see how there's a repetition
1961 of this notion that bucking the chain 2 of command and communications could 3 result in a perception of political 4 interference. 5 A: Yes. 6 Q: All right. And would you agree 7 with me not only could it result in a 8 perception, it actually represent 9 actual political interference, it 10 could? 11 A: It could. 12 Would you agree with me that what the 13 author is proposing at page 25 that 14 I've just read to you is a notion -- 15 page 20 is the notion of the 16 Commissioner is the person to work 17 through." 18 Do you see that at the bottom of 99? 19 A: Yes. 20 Q: All right. Now just stopping there 21 and -- and the reason I'm bringing this to your 22 attention, first of all is, that's your very point about 23 Ron Fox; isn't it? 24 A: Yes. 25 Q: That Ron Fox -- if things had been
1971 working as they should, should have worked through 2 Commissioner O'Grady; is that not correct? 3 A: Or through the Office of the 4 Commissioner. 5 Q: Fair enough. And top of page 100: 6 "A: Yes. 7 Q: And the idea is if you work through 8 the Commissioner, then the Commissioner 9 can make that judgment call about 10 whether this is operational 11 information. 12 A: Exactly. 13 Q: The idea is that you get to assess, 14 based on your experience and 15 accountability as the leader, whether 16 this is information these Cabinet 17 Ministers should have. 18 A: I agree." 19 Now do -- do you also agree with -- 20 A: I do. 21 Q: All right. And then at line 12, page 22 100: 23 "Q: Now you can't make that call if 24 you don't know the Cabinet Ministers 25 are meeting with your people, correct?
1981 A: That's true. 2 Q: And that's, in essence, what 3 happened with Inspector Fox isn't it? 4 A: From what I know now it seems that 5 is exactly what happened. 6 Q: And it's fair to say that it is 7 essential that that chain of 8 communication be respected so you can 9 be there with your hand on the lever to 10 ensure there isn't an improper overlap 11 between political agendas and political 12 operations. 13 I agree. 14 Q: Having shown you all the 15 information you now know, would you 16 agree with me that unfortunately you 17 were bypassed? 18 A: It would seem that way. 19 Q: And in being bypassed, would you 20 agreed with me the very danger of the 21 author refers to..." 22 23 (BRIEF PAUSE) 24 25 Q: "And being bypassed, the very
1991 danger of the author refers to of a 2 perception of political interference 3 has happened? 4 A: Yes." 5 Now, first of all, may I ask you, leaving 6 aside the factual part of this where Commissioner O'Grady 7 speaks to the dining room meeting and -- and being 8 bypassed, would you agree that that danger of a 9 perception political interference can happen when chains 10 of communication are bypassed as between politicians and 11 police? 12 A: Yes. 13 Q: All right. Now I now want to take 14 you to some of the evidence that the Commissioner has 15 heard. There was a dining room meeting convened by who; 16 remains one of the mysteries I expect the Commissioner 17 will be asked to solve. 18 But having said that there was a dining 19 room meeting on September 6th, 1995 in which the Premier 20 attended, Deb Hutton attended, his advisor, the Attorney 21 General attended, the Solicitor General attended, the 22 Minister of Natural Resources attended; all of whom had 23 their deputies and/or other staff there. In addition, 24 Officers Fox as a liaison officer and the person 25 assisting him, Patrick, were in attendance.
2001 That meeting discussed directly the 2 Ipperwash operation, issues around an injunction and what 3 the views of the Premier were at the time about the 4 occupation, all right? That is not contested. 5 COMMISSIONER SIDNEY LINDEN: If it were, 6 somebody would be on their feet. 7 MR. JULIAN FALCONER: That's right. 8 9 CONTINUED BY MR. JULIAN FALCONER: 10 Q: All right. All of that happened and 11 I'm telling you the evidence that the Commissioner has 12 heard. 13 Now, we have heard from Deputy Solicitor 14 General at the time Todres, that she didn't invite Fox 15 and Patrick there, all right? 16 She says that she didn't have anything to 17 do with them being there, right? Nevertheless they're 18 there. 19 We've -- I read to you a passage and you 20 can take my word for it or somebody would be on their 21 feet, I've read to you a passage where Commissioner 22 O'Grady didn't know about the meeting at the time and 23 views himself as having been bypassed in the chain, all 24 right? 25 A: Yes.
2011 Q: Now, I'm bringing all of this to your 2 attention to ask you a simple question. Would you agree 3 with me that you would be very concerned if during your 4 tenure as Commissioner such a meeting took place without 5 your knowledge? 6 A: Yes. 7 Q: All right. And would you agree with 8 me the reason you would be very concerned is the very 9 dangers of perceptions of political interference that are 10 referred to by Former Commissioner O'Grady? 11 A: Yes. 12 Q: And would you agree with me that in 13 addition to the dangers of perceptions of political 14 interference, given the seconded police officers in the 15 room, there's actual dangers of real -- I'm not saying it 16 happened, but there are dangers of actual political 17 interference; would you agree? 18 A: I -- I think it's perceptions of, I 19 agree with you. 20 Q: But -- and - and I understand how you 21 stop the perceptions because that's -- I understand that. 22 But I'm now moving to something else I want to ask you 23 about, which is you also agree though that while I'm not 24 saying -- I'm not asking you to comment on whether it 25 happened but one of the things that could happen in such
2021 a meeting is there could be actual political 2 interference; that is someone could actually give a 3 direction that a police officer actually followed. 4 Isn't that fair? 5 A: If they actually took it some -- 6 Q: Yes, that's right? 7 A: Yes. 8 Q: And that's a danger? 9 A: Yes. 10 Q: So the danger is not just a 11 perception the danger is of actual political 12 interference, in fact, correct? That's a danger? 13 A: Yes. 14 Q: Okay. Now, have -- has this ever 15 happened to you during your tenure since 1998 that a 16 Premier convened a -- I will rephrase. 17 Has this ever happened to you during your 18 tenure since 1998 that a Premier presided at a meeting of 19 his high ranking cabinet officials with police officers 20 in this fashion to discuss an operational matter? 21 COMMISSIONER SIDNEY LINDEN: Now, just 22 before you answer, Commissioner, Ms. McAleer is on her 23 feet. 24 MS. JENNIFER MCALEER: Just so that we're 25 clear because obviously Commissioner Boniface wasn't at
2031 that meeting and hasn't heard all of the evidence, it is 2 clear on the evidence that it was Premier Harris' view at 3 the time that there were no OPP officers in the room and 4 he wasn't aware of the fact that -- that Mr. Fox or that 5 Mr. Patrick were OPP officers. 6 So, we just want to be clear with respect 7 to hypotheticals -- 8 MR. JULIAN FALCONER: Well -- well -- 9 MS. JENNIFER MCALEER: -- that are put 10 before Commissioner Boniface. 11 MR. JULIAN FALCONER: I have no 12 difficulty with My Friend seeking to clarify the 13 evidence. But to be fair to the evidence, the fact that 14 he was a liaison officer was a matter of observation by 15 Mr. Harris in the house in May of 1996 and -- 16 COMMISSIONER SIDNEY LINDEN: I'm not 17 going to debate the evidence -- 18 MR. JULIAN FALCONER: -- if we're go back 19 and forth on it -- 20 COMMISSIONER SIDNEY LINDEN: -- now. No, 21 no. 22 MR. JULIAN FALCONER: -- but I'm not 23 saying that that makes what My Friend says wrong. 24 COMMISSIONER SIDNEY LINDEN: Yes. 25 MR. JULIAN FALCONER: I'm simply pointing
2041 out that it is a matter of some issue that you will be 2 called upon to determine at the end -- 3 COMMISSIONER SIDNEY LINDEN: I'm not 4 going to -- 5 MR. JULIAN FALCONER: -- which is why I 6 tried not to say one way or the other that he knew or 7 didn't know because, to be honest with you, I think 8 that's an issue of credibility that we'll be arguing at 9 the end. 10 And for me to have said -- I simply asked 11 did a meeting of this nature ever take place during your 12 tenure? 13 COMMISSIONER SIDNEY LINDEN: Well, that's 14 the -- 15 MR. JULIAN FALCONER: That's it. 16 COMMISSIONER SIDNEY LINDEN: -- question. 17 That's fine. That question -- 18 THE WITNESS: There was not to my 19 knowledge. 20 MR. JULIAN FALCONER: Sorry? 21 THE WITNESS: No. 22 23 CONTINUED BY MR. JULIAN FALCONER: 24 Q: All right. Other than the dining 25 room meeting which I take it you will have heard about
2051 since then? 2 A: Yes. 3 Q: Right. Other than that one (1) 4 incidence have you ever heard of such a meeting during 5 your tenure as a senior management police officer taking 6 place to the ignorance of a police commissioner? 7 A: No. 8 Q: No. Now, you would agree with me 9 that when you answered the question that there was 10 nothing about anything that you saw -- actually, I'm 11 sorry, I withdraw the question because there's no easy 12 way to put this without attracting a series of 13 objections. I withdraw the question. 14 I'm going to go somewhere else less 15 controversial. You see how softened up I've become. 16 COMMISSIONER SIDNEY LINDEN: It's nice to 17 see you trying to avoid controversy. 18 MR. JULIAN FALCONER: That's right. 19 You've taught me. I'm in auto-objection. 20 21 (BRIEF PAUSE) 22 23 CONTINUED BY MR. JULIAN FALCONER: 24 Q: If I could put some copies of some 25 documents in front of you. I'm sorry the documents are
2061 kind of bulky so you'll forgive me. I'm going to try to 2 do it in a fashion that's helpful. 3 I'm putting in front of you the -- a 4 portion of the Provincial Auditor's 1998 Report. But 5 there's a copy for the Commissioner and a copy for you, 6 Commissioner Boniface. 7 COMMISSIONER SIDNEY LINDEN: Thank you. 8 9 CONTINUED BY MR. JULIAN FALCONER: 10 Q: I'm also putting in front of you the 11 proceedings of the Standing Committee on Public Accounts 12 dated May 3rd, 2001 in which you, along with Virginia 13 West then Deputy Solicitor General, spoke to the Standing 14 Committee. 15 There's a copy for you, Commissioner 16 Boniface, and for the Honourable Commissioner. 17 COMMISSIONER SIDNEY LINDEN: Thank you. 18 19 CONTINUED BY MR. JULIAN FALCONER: 20 Q: And finally the third part of the 21 package is a -- the Provincial Auditor apparently changed 22 his name to be the Auditor General sometime between '98 23 and 2005 and I know that Mr. Commissioner and/or Mr. 24 Millar will know better when the names get changed than I 25 do.
2071 COMMISSIONER SIDNEY LINDEN: Yes. 2 3 CONTINUED BY MR. JULIAN FALCONER: 4 Q: But there's -- there's an extract of 5 the Auditor General's report of 2005. 6 COMMISSIONER SIDNEY LINDEN: We've had 7 the pleasure of going through this process. 8 MR. JULIAN FALCONER: And the word 9 'pleasure' is no doubt used loosely. 10 11 CONTINUED BY MR. JULIAN FALCONER: 12 Q: Now you received notice of these 13 documents and did you get any opportunity to look at them 14 at all? 15 A: I have not. I don't think I've seen 16 the third one. 17 Q: The third one is the 1995 -- 18 A: Is that -- is it a different colour? 19 Q: Sorry? 20 A: Or cover or something than the ones I 21 got? 22 Q: It's possible. There's three (3) 23 documents basically. They consist of three (3) sets of 24 documents. The one is the 1995 -- I'm sorry, the 1998 25 report of the Provincial Auditor.
2081 The second is your submissions to the 2 Standing Committee of 2001 and the third is the 2005 3 report of the Auditor General. So there's -- 4 A: I didn't get the 2005 one. 5 Q: All right. The portion I'll take you 6 through is -- is -- 7 A: Okay. 8 Q: -- I'll take you through slowly. I 9 knew for the record, we did give notice on it. It 10 doesn't matter. But to be fair to you, so that if we 11 need a break, we need a break, but I -- I did think you'd 12 seen it because we'd given the notice. But we'll go 13 slow. 14 The first issue I want to address with you 15 is -- is really how things operate on an institutional 16 level for the OPP in terms of accountability and 17 oversight. 18 As an arm of the Provincial Government of 19 Ontario, it's fair to say that the Auditor General and/or 20 the Provincial Auditor before, routinely reviews your 21 operations as a part of Government; is that fair? 22 A: That's correct. 23 Q: And -- and that's one accountability 24 mechanism; is that right? 25 A: Yes.
2091 Q: And let me ask you, is that 2 accountability mechanism, does it work? 3 A: Yes. 4 Q: All right. So that you -- you 5 consider the work of the Auditor General to be credible? 6 A: Helpful, yes. 7 Q: All right. And then secondly, you 8 appear through the second document the Standing Committee 9 on Public Accounts submissions, you appear on May 3rd, 10 2001 and make submissions with -- along with the Deputy 11 Solicitor General, Virginia West. 12 And I take it that that form of 13 accountability to the Standing Committee is another 14 mechanism of accountability; is that right? 15 A: Yes, I guess. It would be, yes. 16 Q: All right. And the process that's 17 reflected in the submissions you make to the Standing 18 Committee can -- can -- is there a mirror to that? 19 Is -- is there another committee you 20 report to in the same way? 21 A: No. 22 Q: Okay. So -- and that's why I'm 23 trying to ask -- 24 A: Yes. 25 Q: -- you systemically about this
2101 because -- example, municipally a Chief of Police will 2 report, she will report to a Police Services Board, 3 right? 4 A: That's correct. 5 Q: But there's no Police Services Board 6 and you end up reporting in one fashion or another to a 7 body and it appears that this Standing Committee on 8 Public Accounts is -- is that body; is that fair? 9 A: It's one of the mechanisms. Can I 10 just clarify for you -- 11 Q: Yeah. 12 A: -- though. The -- the OPP after 1998 13 is required to have Police Service Boards under Section 14 10 of the Act, and so there's approximately a hundred 15 (100) Police Service Boards across the Province. 16 Q: And when you say that they're 17 required, you're referring to the shared policing or 18 contracting policing agreements? 19 A: Contracted policing. 20 Q: Yes. And they're required to 21 contract with the Police Services Board and actually 22 submit to their oversight in -- in a manner of speaking. 23 A: The Detachment Commander would report 24 to the Police Service Board. The contract is with the 25 municipality or a group of municipality.
2111 Q: And if I were to try to cut though 2 that bureaucratic nightmare in a way that's helpful to 3 the Commissioner rather than unhelpful, that is to say 4 that in reporting to the municipality to the extent the 5 municipality uses a Police Services Board as the 6 oversight mechanism, you end up reporting to the Police 7 Services Board; is that not correct? 8 A: Yeah. The point I was making; you 9 said the contract was with the Board -- 10 Q: Oh fair enough. 11 A: -- I just want to clarify it was the 12 municipality. 13 Q: Okay. Sorry, Mr. Commissioner, I'm 14 just digging up some notes that I need for this portion 15 of my questioning. 16 17 (BRIEF PAUSE) 18 19 Q: Would you agree with me that in terms 20 of your answer to my last question about reporting to the 21 Committee, that with the exception of the municipal 22 Police Services Boards you report to by virtue of these 23 contract police services, this standing committee 24 represents the -- the committee you report to? 25 A: It would be one (1) of the
2121 mechanisms, yeah. 2 Q: Right. Is there another committee 3 you report to? 4 A: Not committee-wide, no. 5 Q: All right. Now, in terms of the 6 process of the Standing Committee, is it a -- is it a 7 process that happens every week, every month, in terms of 8 you reporting to them? 9 A: No, the -- that's why I said in one 10 (1) form because the Standing Committee is -- as I 11 understand it, is a response that reviews the audit, so 12 you're there at their request. 13 Q: All right. 14 A: That's how I understand it. 15 Q: Is there any committee that you 16 report to, as a matter of course, once a month, once 17 every six (6) months, once a year? 18 A: No. 19 Q: All right. And in fact, my choice of 20 the May 3rd, 2001 Standing Committee Proceedings was 21 quite deliberate because it -- as you put it, it relates 22 to the Auditor General's report of 1998, and then -- and 23 then the 2005. 24 What I'm going to ask, Mr. Commissioner, 25 because I will show that, in my submission, this is
2131 relevant is to file these as the next three (3) exhibits 2 so I can refer to exhibit numbers as I'm dealing with 3 these materials? 4 So I would ask to file the -- 5 COMMISSIONER SIDNEY LINDEN: That's fine. 6 MR. JULIAN FALCONER: -- 1998 report of 7 the Provincial Auditor as the next exhibit, respectively? 8 THE REGISTRAR: P-1730, Your Honour. 9 COMMISSIONER SIDNEY LINDEN: I'm sorry, 10 17 -- 11 THE REGISTRAR: 30. 12 COMMISSIONER SIDNEY LINDEN: 30? 13 THE REGISTRAR: Yes, sir. 14 COMMISSIONER SIDNEY LINDEN: And this -- 15 MR. JULIAN FALCONER: And chronologically 16 -- 17 THE REGISTRAR: 1729. I'm sorry, that's 18 1729. 19 COMMISSIONER SIDNEY LINDEN: 1729. 20 THE REGISTRAR: Yes, sir. 21 22 --- EXHIBIT NO. P-1729: Provincial Auditor's Report 23 1998. 24 25 COMMISSIONER SIDNEY LINDEN: And this --
2141 MR. JULIAN FALCONER: And then 2 chronologically the next exhibit would be the Standing 3 Committee submissions of May 3rd, 2001. 4 THE REGISTRAR: P-1730. 5 6 --- EXHIBIT NO. P-1730: Standing Committee on Public 7 Accounts, May 03, 2001. 8 9 MR. JULIAN FALCONER: And then finally, 10 the report of the Auditor General of Ontario for 2005. 11 THE REGISTRAR: 1731. 12 COMMISSIONER SIDNEY LINDEN: Thank you. 13 14 --- EXHIBIT NO. P-1731: Auditor General's Annual 15 Report of 2005. 16 17 CONTINUED BY MR. JULIAN FALCONER: 18 Q: Now, I want to focus your attention 19 first to Exhibit P-1729 in the 1998 report, and I want to 20 understand something about your -- the initiatives you 21 instituted in policing. 22 Is -- is it fair to say that one (1) of 23 the recognitions you've had to undergo is a recognition 24 of the importance of, I'll call it community oriented 25 policing; is that fair?
2151 A: That's correct. 2 Q: And that indeed, the idea behind 3 community oriented policing is that it focusses on 4 involving communities and identifying and solving law 5 enforcement issues; is that fair? 6 A: Working with the community, yeah. 7 Q: And so the notion of community 8 oriented policing would include whichever communities 9 you're policing, not just First Nations communities but 10 other communities? 11 A: Correct. 12 Q: And that what you've been talking to 13 the Commissioner about, in part, is community oriented 14 policing from a First Nations point of view; fair enough? 15 A: Yes, correct. 16 Q: And -- and isn't it true, in fact, 17 that because of the remote areas the OPP polices relative 18 to other services, what ends up happening is that the 19 communities you police are very often more First Nations 20 communities than any other policing service? You end up 21 having that responsibility more than any other non- 22 Aboriginal police service; isn't that true? 23 A: You mean in the province? 24 Q: That's right. 25 A: Yes.
2161 Q: Although Kenora Police could probably 2 compete with you but... 3 A: The -- I'm just trying to sever out 4 the First Nation Police Services so -- 5 Q: Right. 6 A: Right. Probably in the province we 7 do the most. 8 Q: And so -- and -- and it's simply an 9 example of why community oriented policing is so 10 important. Now, what I wanted to ask you is you've given 11 us examples of how you've attempted to address and 12 remedy, and are remedying, the disproportionate 13 representation of First Nations people in policing, 14 correct? 15 A: Tried to. 16 Q: And that's part of building the 17 bridges? 18 A: That's right. 19 Q: And secondly, how you try to educate 20 First Nations, but perhaps more importantly, non-First 21 Nations officers on First Nations issues, with a view to 22 sensitizing them and educating them, correct? 23 A: Yes. 24 Q: And those are in-service initiatives, 25 correct?
2171 A: That's right. 2 Q: All right. Now, if you could turn to 3 page 233 of P-1729, please. Page 233 of -- of the first 4 document, which is the 1998 report. 5 A: Right. 6 7 (BRIEF PAUSE) 8 9 Q: It actually addresses a section 10 called community policing. And what this document is, so 11 we're clear, Mr. Commissioner, and I know you've seen 12 these before, P-1729 is a chapter of the 1998 Provincial 13 Auditor's report, the chapter that deals with the OPP. 14 COMMISSIONER SIDNEY LINDEN: Yes. 15 16 CONTINUED BY MR. JULIAN FALCONER: 17 Q: And so what the Provincial Auditor 18 chose to do in 1998 was to focus on community policing 19 among one (1) or two (2) other areas, and you'll see that 20 at page 233, under the subtitle -- I'm sorry, page 235, 21 under the subtitle "Community Policing." 22 Do you see that? 23 A: Me? 24 Q: Commissioner Boniface? 25 A: Yes.
2181 Q: Okay. And I want to read you a 2 paragraph and then ask you a question about it. 3 "Since the late 1970's the philosophy 4 of community policing has been adopted 5 by many police forces throughout North 6 America. 7 Amendments to the Police Services Act 8 in 1990 included the requirement for 9 Ontario Police forces to provide 10 community-oriented policing services. 11 Various definitions exist with regard 12 to the activities that encompassed 13 community-oriented policing. In 14 essence, community-oriented policing 15 focusses on involving communities in 16 identifying and solving law and order 17 issues in their areas." 18 So you can see I'm not very original. And 19 you'd agree with that paragraph? 20 A: Yes. 21 Q: Right. Now, in terms of community- 22 oriented policing, it was mandated legislatively in 1990, 23 but indeed in 1998, is it not true that the Provincial 24 Auditor felt that the service was, in fact, deficient? 25 A: I think, yes, the Auditor said we
2191 should be doing more. 2 Q: If you could look at page -- the last 3 paragraph of page 235. 4 "While the OPP has indicated that it is 5 implementing a more integrated 6 community policing approach to service 7 delivery, we noted that approximately 8 eight (8) years has elapsed since 9 community policing was first required 10 by the Police Services Act. It has 11 taken the OPP a considerable length of 12 time to develop community policing 13 service delivery processes and related 14 officer training." 15 If you look at the paragraph above it. 16 "We noted several examples of effective 17 community policing initiatives for 18 problem solving and reporting that had 19 been carried out by some Detachments. 20 However, we found that the processes 21 and measures described above had yet to 22 be implemented in most of the 23 Detachments we visited." 24 Do you see that? 25 A: Yes.
2201 Q: Now, this reality that there were 2 policies or measures that had been put in place but they 3 had yet to be invoked in the majority of the Detachments, 4 that was a notion that you had to take on, as a new 5 Commissioner in 1998, true? 6 A: Yes. But you need to appreciate the 7 structural changes taking place at the same in 1998. 8 Q: All right. 9 A: Which was the transition from the -- 10 most of our communities without police service boards, 11 between 1998 and 2000 the boards come in place. 12 Roughly that time frame. There was change 13 in the police services Act in 1998. 14 Q: Right. 15 A: And the change went to an issue 16 around equitable financing, is how they referred to it, 17 and the boards come into place. 18 Q: Okay. 19 A: In that regard. 20 Q: And in terms of the process or the 21 deficiency identified by the Provincial Auditor at the 22 time, would you agree with me that you actually addressed 23 the deficiencies that were addressed in Exhibit P-1730, 24 which is the May 3rd, 2001 Standing Committee submissions 25 that you made --
2211 A: Yes. 2 Q: -- several years later? 3 A: Probably. 4 Q: All right. Could you flip to that, 5 please? 6 Now, the only thing I want to emphasise 7 here, so -- for clarity's purpose, because it's going to 8 be quite cumbersome, is that there is a criticism that 9 you've got the talk right, right; you got policies but 10 they don't seem to be making it to the Detachment level. 11 That's the criticism, is it not? 12 A: No. No, I think the criticism, as I 13 -- as I recall it was that the -- they were originally 14 designed to do a programming out of Headquarters so that 15 people could access and work the programming down. 16 As he said in, I think the second page, 17 the second point you made to me, is some Detachments are 18 doing what they're doing locally, but it may not 19 interconnect with the broader organization. 20 Q: All right. And to be fair to you, if 21 you look at page 2 of Exhibit P-1730, which is the 22 Standing Committee submission, you're addressing the 23 Auditor's concerns. 24 In other words, three (3) years later, 25 you, as Commissioner, or to be fair, two and a half (2
2221 1/2) years, you as Commissioner are now talking to them 2 about what you're doing. 3 You've been summonsed about it, right? 4 A: Yes. 5 Q: And they -- they know that there's 6 this Auditor's Report and they want to hear what you're 7 doing about community policing, fair? 8 A: Right. 9 Q: So at the second page, under Ms. Gwen 10 Boniface, because what happens is, of course, the Deputy 11 Solicitor General makes introductory remarks and at the 12 second page you address the -- the Committee. 13 Do you see that? 14 A: Yes. 15 Q: Halfway down the page: 16 "Good morning, Committee members and 17 Provincial Auditors." 18 A: Yeah. 19 Q: So obviously the Auditor's is. That 20 --that sure helps. And -- and the Deputy ended her 21 remarks with a statement about accountability and a 22 partnership approach to service delivery. 23 "To that end community policing is a 24 fundamental principle under which the 25 OPP delivers its service.
2231 Detachment Commanders are not only 2 accountable to the Province but 3 directly to the communities they serve. 4 The changes in 1997 of the Police 5 Services Act significantly altered the 6 business accountability relationship 7 for the OPP." 8 Do you have that -- this Ms. -- Ms. 9 Commissioner -- 10 A: Yes. Yeah. 11 Q: "In 1997 the OPP reported to twenty- 12 eight (28) Police Services Boards. 13 Today the OPP's governing authorities 14 include not just the Minister, the 15 Solicitor General and the Province, but 16 now eighty-seven (87) Police Boards and 17 Municipal Councils who contract with 18 the OPP for police service, and another 19 two hundred and seventy-six (276) 20 communities that pay for OPP services 21 without a contract." 22 And that's why I said, to be fair to you, 23 the answer you're giving me, in part, reflects what you 24 said, I guess it's a source of relief, it reflects what 25 you said in the Standing Committee five (5) years ago,
2241 fair? 2 A: Yeah. 3 Q: And today you talked about a hundred 4 (100) Police Services Boards. I take it -- 5 A: It's increased. 6 Q: Right from eighty-seven (87) to a 7 hundred (100)? 8 A: Yeah, roughly. 9 Q: Now I think it -- with great respect, 10 I think it's very important that you explain to Mr. 11 Commissioner, how you become accountable to these Police 12 Services Boards. That is, is Gwen Boniface capable of 13 being summonsed before these Police Services Boards to 14 account for policies being used by the OPP? 15 A: Detachment Commander reports to the 16 Police Service Board. I have an interaction with the 17 Police Services Boards once a year at their annual 18 conference. 19 Q: In -- 20 A: But it's not a -- it's not a formal 21 relationship, if that's what you're looking for; formal 22 in terms of legislative. 23 Q: And in terms of -- and I apologize I 24 didn't mean to cut you off. You said Detachment 25 Commanders report to these Police Services Boards.
2251 Can Police Services Board fire a 2 Detachment Commander? 3 A: No. The employer/employee 4 relationship is with us. 5 Q: All right. Can a Police Services 6 Board give a direct order to a Detachment Commander? 7 A: No. They would be for the policy 8 oversight issues, for the -- unique to the community. 9 Q: And -- and you'd agree with me that 10 that stands in contrast -- 11 COMMISSIONER SIDNEY LINDEN: Yes. Just-- 12 MR. JULIAN FALCONER: -- for example, to 13 the relationship -- 14 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 15 Roland...? 16 MR. IAN ROLAND: Just so we know, that 17 isn't something that Municipal Police Services Board can 18 do either. 19 COMMISSIONER SIDNEY LINDEN: No. 20 MR. IAN ROLAND: They can't fire Chiefs 21 and they can't give orders to Chiefs, so. 22 COMMISSIONER SIDNEY LINDEN: Yes. 23 MR. JULIAN FALCONER: In fact, that's -- 24 with great respect, that's inaccurate. Police Services 25 Boards are legislatively mandated and allowed to give
2261 orders to the Chief. 2 They cannot give orders to any other 3 member of the Service but they are legislatively mandated 4 to give orders to the Chief. That is who they give 5 orders to. There's absolute -- I mean I'm happy to help 6 My Friend at the break with the Police Services Act but 7 that's who they're mandated -- I suspect Commissioner 8 Boniface, in her evidence, would confirm the same thing. 9 They're not entitled to give orders on 10 operational matters, of course. 11 THE WITNESS: Yes. 12 COMMISSIONER SIDNEY LINDEN: Yes. 13 MR. JULIAN FALCONER: But they hire and 14 fire chiefs and they're entitled to give orders directly 15 to the chief, and he is the only one in the service that 16 are entitled to give orders directly to him. 17 COMMISSIONER SIDNEY LINDEN: All right. 18 MR. IAN ROLAND: My Friend is wrong. 19 COMMISSIONER SIDNEY LINDEN: Not 20 operational. 21 MR. IAN ROLAND: They hire chiefs they 22 don't fire chiefs, they can't fire chiefs and they can't 23 -- he's right, they can't give operational orders to 24 chiefs. 25 MR. JULIAN FALCONER: But they can give
2271 orders to chiefs -- 2 COMMISSIONER SIDNEY LINDEN: All right. 3 We've narrowed it down. 4 MR. JULIAN FALCONER: Right. 5 COMMISSIONER SIDNEY LINDEN: They can't 6 fire them and they can't give them operational direction. 7 MR. JULIAN FALCONER: A Police Services 8 Board is free not to renew a contract with the Chief of 9 Police. 10 COMMISSIONER SIDNEY LINDEN: That's just 11 not the same thing as firing. 12 13 CONTINUED BY MR. JULIAN FALCONER: 14 Q: Fair -- fair enough. Fair enough. 15 But the -- the real point I was asking you is: Are 16 Police Services Boards entitled to give orders, policy or 17 otherwise, to Detachment Commanders? 18 A: The specific wording, and I'm not 19 sure what it is, but the reporting relationship is to the 20 Police Service Board. There is local -- local policy 21 that can be established in terms of priorities for the 22 community and such like. 23 You'd have to go to Section 10 of Act to 24 get the exact wording of it. 25 Q: Now in terms of their relationship
2281 with you, the answer is they can't give orders to any -- 2 A: I don't have a formal reporting 3 relationship. 4 Q: All right. Now in circumstances 5 where the Commissioner makes an order to a Detachment 6 Commander, or a direction to a Detachment Commander, 7 Commissioner, as in the Commissioner of the OPP -- 8 A: Hmm hmm. 9 Q: -- that order would override any 10 order or direction a police services board gave that 11 Detachment Commander; is that not true? 12 A: Yeah, you would have to look at how 13 the section -- they have a limit in terms of the 14 oversight. 15 Q: I only ask you that because I -- I 16 want to be clear that while you have to work with Police 17 Services Boards and -- and you're mandated to 18 legislatively work with them, the truth is, they don't 19 represent a civilian oversight body over the OPP, for 20 example, the way police services boards do over municipal 21 police services -- 22 A: They're -- they're two (2) different 23 sections, two (2) different responsibilities. 24 Q: Fair enough. Now, in terms of how 25 you answered the question in front of the Standing
2291 Committee about accountability, I've read one (1) 2 paragraph, you go on to at page 3, and this is meant to 3 deal with the community policing issue, you go on at page 4 3 of Exhibit P-1730 to state the following, third 5 paragraph: 6 "We are one (1) of the first Ontario 7 police services to directly survey the 8 citizens of our community on the 9 quality of our service delivery. The 10 OPP's Policing for Results Survey was 11 designed to measure the level of 12 community satisfaction with OPP 13 services and to gather information on 14 local public safety concerns." 15 Skipping a paragraph: 16 "Having said that, the Provincial 17 Auditor made a number of 18 recommendations. Specifically the 19 recommendations covered the following 20 three (3) broad areas: community 21 policing, human resource management, 22 and provincial revenues from municipal 23 police services. 24 The Provincial Auditor made three (3) 25 specific recommendations related to
2301 community policing, firstly, that we 2 fully implement the process developed 3 for identifying and prioritising police 4 serve to meet community service 5 expectations. 6 Secondly, that we identify and 7 disseminate best practices in community 8 policing, monitor detachments. 9 And thirdly, that we measure the 10 effectiveness of community policing 11 activities against established 12 criteria." 13 Would you agree with me that, ultimately, 14 Commissioner Boniface, at the Standing Committee you were 15 giving some level of explanation and assurance as to what 16 you were doing to address the Auditor's recommendations; 17 is that fair? 18 A: Yes. 19 Q: And that, in particular, one (1) of 20 the things you identified was the development of a centre 21 with respect to research and development on community 22 policing? 23 A: That's correct. 24 Q: And you expected and felt that that 25 would be a method for monitoring quality control on
2311 community policing? 2 A: It was -- no. It was to be a best 3 practices so that people in the field could actually 4 reach out and access that -- 5 Q: All right. 6 A: -- if they had a program they wanted 7 to -- to avail themselves of or such like. 8 Q: You go on to say, and this is the 9 last paragraph I'm reading from this, Mr. Commissioner, I 10 know it's difficult and I'm going to try to go fast 11 through this. 12 "Our best practice warehouse includes 13 all of our successful community 14 initiatives and includes national and 15 international best practices on 16 community policing. Our officers can 17 access this warehouse to see what 18 creative solutions worked in other 19 communities and to apply those 20 successes to their own communities." 21 Now, I tried to be somewhat thorough in 22 reading some of what you said because I don't want to 23 simply not give you the benefit of -- of some of what you 24 said. But isn't it true that, in fact, in the year 2005, 25 as -- as reflected by Exhibit P-1731, that the Auditor
2321 General's report indicates that much, if not all of the 2 work, much of the work that was expected to be done on 3 community police -- policing services still had not been 4 done? 5 A: I think it reflects -- and I haven't 6 -- as I said I haven't read this to reacquaint myself, 7 but it was part of the process of transferring into a 8 business planning process. So it's captured differently, 9 it's not in a best practices warehouse framework in 2006. 10 Q: Well -- 11 A: If that's helpful. 12 Q: -- if you could turn to the second 13 page of P-1731, the 1995 audit, page 241 -- 14 A: Hmm hmm. 15 Q: -- under, "Significant developments 16 since the last time of our audit." 17 A: Right. 18 Q: Page 241. 19 THE REGISTRAR: Year 2005. You said 20 1995. 21 MR. JULIAN FALCONER: I apologize. Thank 22 you, Mr. Registrar. 23 24 CONTINUED BY MR. JULIAN FALCONER: 25 Q: In respect of the 2005 audit at
2331 page -- 2 A: I'm -- I'm sorry, what page are you 3 at? 4 Q: 241. If you look at the top right 5 corner they're -- they're difficult to make out, they're 6 black bordered. 7 A: Okay. 8 Q: They're designed to trick us all. So 9 on the right corner you see page 241 and it lists the 10 significant developments since the time of our audit. 11 "Since our last audit in 1998 a number 12 of significant developments or 13 initiatives have impacted on the OPP's 14 delivery of police services. These 15 include: 16 1. The passage of Regulation 399 under 17 the Police Services Act which -- which 18 establishes minimum service standards 19 for all police services in Ontario, 20 including standards in such areas as 21 crime prevention, law enforcement, and 22 maintenance of public order. 23 2. The establishment within OPP of the 24 Corporate Quality Assurance Unit that 25 conducts reviews of OPP operations to
2341 assess compliance with legislative 2 requirements and with applicable 3 policies and procedures." 4 Now, I'm just going to ask you to look at, 5 first of all, page 242, to flip over, the audit objective 6 and scope. 7 A: Yes. 8 Q: "Our audit objective..." 9 This is half way down first column, page 10 242: 11 "Our audit objective was to assess 12 whether the OPP's police services: 13 1. Were delivered with due regard for 14 economy and efficiency. [and] 15 2. Of a quality that complied with 16 regulation 399 and related police 17 orders and procedures." 18 Under "Summary," the next column: 19 "While several issues from our last 20 audit, such as the use of overtime and 21 billing to municipalities, have been 22 largely addressed, in other areas such 23 as staff deployment, shift scheduling 24 and the implementation of --" 25 A: Hmm hmm.
2351 Q: "-- community oriented policing 2 principles, much work remains to be 3 done." 4 And if you could flip over to the next 5 page, 243. 6 A: Yes. 7 Q: The second column. 8 A: Yes. 9 Q: Starting with, "There was little 10 evidence..." 11 A: Yes. 12 Q: "There was little evidence that the 13 objectives of community-oriented 14 policing were being met at some 15 Detachments, and no minimum 16 requirements had been established to 17 guide Detachments in the consistent 18 implementation of community-oriented 19 policing and solicitation of community 20 input. 21 Also, there were no internal measures 22 in place to evaluate the effectiveness 23 of community-oriented policing." 24 The bottom of the page: 25 "The OPP's three (3) quality assurances
2361 processes involving inspections and 2 self-assessments were not implemented 3 fully and on schedule." 4 And if you go back to... 5 6 (BRIEF PAUSE) 7 8 Q: I'm sorry. If you go to 252, if you 9 flip to 252. At 252, the second paragraph of column 1. 10 So that black corner of the page, left side. 11 "In response to a recommendation in our 12 1998 annual report, the OPP --" 13 A: I'm sorry. I missed where you're 14 reading. 15 Q: No problem. 252, second paragraph, 16 first column: 17 "In response..." 18 252, left corner -- 19 A: Oh, sorry. 20 Q: No problem. 21 "In response to a recommendation in our 22 1998 annual report, the OPP indicated 23 that it would co-ordinate support and 24 monitor implementation of community- 25 oriented policing.
2371 However, at the time of our current 2 audit, the unit responsible for this 3 had been disbanded, and we noted no 4 evidence of other types of overall co- 5 ordination or monitoring of the ongoing 6 implementation of community-oriented 7 policing principles. 8 In our view, this gap contributed to 9 the confusion regarding the 10 requirements of community-oriented 11 policing and to a significant variance 12 in implementation." 13 I read you those portions to try to be, at 14 least, complete. I've finished reading the portions and 15 I -- and I'm not suggesting for a minute there aren't 16 things that are positive that the auditor says, but -- 17 A: Hmm hmm. 18 Q: -- in respect of community-oriented 19 policing, isn't it true that gaps were identified in '98 20 and that the point of the 2005 auditor's report is that 21 those gaps are still there and that the Detachment level 22 is still not implemented; isn't that the point? 23 A: That's not how I see it. I see it a 24 different way. I think the -- there is work to be done, 25 absolutely.
2381 But the point is, the Police Services 2 Boards came into place. Some of the work is being done 3 through the Boards because as -- as I indicated, the 4 Section 10 Boards work differently. 5 The auditor and the design in 1998 was a 6 design that was going to be corporately held and then 7 feed in from there. 8 Then the hundred (100) Police Services 9 Boards came in, and so I think it would only be fair to 10 say that there is work being done at the local Detachment 11 level. 12 What we have to address is being able to 13 better monitor what that is and then pull it together 14 back up. But it does come up just -- I know it sounds 15 convoluted, but it does come back through those Boards 16 and so in some ways what the Board sees as the community 17 policing priority for the area is how the Detachment 18 commander works. 19 COMMISSIONER SIDNEY LINDEN: Now just -- 20 MR. JULIAN FALCONER: 8252. 21 COMMISSIONER SIDNEY LINDEN: I just want 22 to ask a question. The '98 audit report, you were called 23 to speak to the Standing Committee in 2001 and you made 24 your explanation there. 25 THE WITNESS: Yes. I was --
2391 COMMISSIONER SIDNEY LINDEN: I just would 2 like to know if this particular one, 2005, have you 3 spoken to this to any Standing Committee? 4 THE WITNESS: No. No. 5 COMMISSIONER SIDNEY LINDEN: If and when 6 you do, the explanation you're giving here -- 7 THE WITNESS: Yes. 8 COMMISSIONER SIDNEY LINDEN: -- would be 9 something you would say, because I would like -- 10 THE WITNESS: I'll walk -- I would walk 11 them through the process. 12 COMMISSIONER SIDNEY LINDEN: Right. 13 THE WITNESS: But the -- 14 COMMISSIONER SIDNEY LINDEN: So that's 15 what you're doing now for Mr. Falconer and for us, I 16 presume. 17 MR. JULIAN FALCONER: That's right. 18 COMMISSIONER SIDNEY LINDEN: This is -- 19 MR. JULIAN FALCONER: In part, but also 20 what I'm also trying to do is examine, in the context of 21 community-oriented policing which is, obviously, from the 22 First Nations point of view, very important as they are 23 being policed by the OPP. 24 COMMISSIONER SIDNEY LINDEN: No, but this 25 is the Provincial Auditors observation.
2401 MR. JULIAN FALCONER: That's right. 2 COMMISSIONER SIDNEY LINDEN: The 3 Commissioner hasn't yet responded to it. 4 MR. JULIAN FALCONER: No, that's fair, 5 but I do want to make a point. If you look at 252, it 6 starts -- that paragraph I read, if you look, the -- the 7 second paragraph: 8 "In response to a recommendation to our 9 1998 Annual Report, the OPP indicated - 10 -" 11 I don't know if you have that. 12 COMMISSIONER SIDNEY LINDEN: Yes, I did. 13 MR. JULIAN FALCONER: It's page 252. 14 COMMISSIONER SIDNEY LINDEN: I'm looking 15 at it. 16 MR. JULIAN FALCONER: Yeah. So 17 obviously, first of all, they start with: 18 "The response by Commissioner Boniface 19 to '98." 20 Then they move to what they perceived as 21 remaining a gap. In other words, they hear of these 22 Police Services Boards, because that's why I took 23 Commissioner Boniface to that, to show her she told them. 24 COMMISSIONER SIDNEY LINDEN: Yes, I am 25 aware of that.
2411 MR. JULIAN FALCONER: Just like she told 2 us. And they hear of it but now they make this 3 recommendation. I haven't read this part to you. It's 4 252, if you look in the left corner. Look at the 5 recommendation at the bottom -- 6 COMMISSIONER SIDNEY LINDEN: Yes. 7 8 CONTINUED BY MR. JULIAN FALCONER: 9 Q: -- Commissioner Boniface. The first 10 column. 11 "To ensure that all Detachments are pro 12 actively dealing with community 13 concerns and are complying with 14 community oriented policing principles, 15 the Ontario Provincial Police should: 16 1. Establish minimum requirements to 17 guide Detachments in the consistent 18 implementation of community oriented 19 policing services. 20 2. Coordinate and monitor the ongoing 21 implementation of community oriented 22 policing principles and the achievement 23 of related objectives across the 24 Province. [and] 25 3. Periodically evaluate the
2421 effectiveness of community oriented 2 policing program service delivery and 3 if necessary take corrected action." 4 My simple point that I want to ask you 5 about, first of all, have you implemented these 6 recommendations? 7 A: I can't tell you for sure if we had 8 and what stage we would be at. 9 Q: All right. And secondly, would you 10 agree with me that the message being delivered to you by 11 the Auditor General of Ontario in 2005, with the benefit 12 of your 2001 submissions and the 1998 report, is that you 13 have to institute standards for the Detachment level to 14 see the kind of product at the ground that you so 15 articulately deliver at the high end. 16 Is that not fair? 17 A: Yeah. There's -- there's three (3) - 18 - three (3) -- in the three (3) recommendations, there's 19 -- I would say that what they're saying is to give them 20 some guidelines or requirements to guide the Detachment 21 so it's consistent. 22 And secondly, to monitor the ongoing 23 implementation and then thirdly, as it says, to -- to 24 evaluate and -- 25 COMMISSIONER SIDNEY LINDEN: Just a --
2431 I'm sorry to interrupt you, Mr. Falconer, but this is 2 important to me too. 3 MR. JULIAN FALCONER: No, no. This is 4 helpful. 5 COMMISSIONER SIDNEY LINDEN: Now, I 6 presume that at some point you will be given an 7 opportunity to comment on whether or not you've done 8 anything with this recommendation. 9 THE WITNESS: We -- we report back. 10 COMMISSIONER SIDNEY LINDEN: At some 11 point in time there may be another Standing Committee in 12 attendance -- 13 THE WITNESS: Yes. 14 COMMISSIONER SIDNEY LINDEN: -- in which 15 you'll be asked how you've done with these 16 recommendations. I assume that. 17 THE WITNESS: Yes. 18 19 CONTINUED BY MR. JULIAN FALCONER: 20 Q: Well, and -- and you've raised an 21 important point, Mr. Commissioner. So I ask you, Madam 22 Commissioner -- and I apologize, I'm trying to keep the 23 record clear. 24 I ask you this: The last time you 25 reported in May 2001, you testified it was at their
2441 invitation, yes? 2 A: Yeah. What they do is they -- I'm 3 not sure invitation's the right word. They -- 4 Q: Summons? 5 A: They summon you before the Committee. 6 Q: Fair enough. And it isn't a process 7 you initiate? 8 A: No. 9 Q: And so we are left to infer that, as 10 of 2005, let's be fair to it, we're almost halfway 11 through 2006, assuming a year has gone by, you haven't 12 been summonsed to report? 13 A: No. I think the -- yeah, I have not. 14 Q: All right. And again, would you 15 agree with me that, for example, in respect of a 16 Municipal Chief of Police for whom somebody's identified 17 flaws in how they deliver policies, that they're, in 18 fact, summonsed one (1) a month to report to the Board, 19 not on a specific issue every month, but that they have 20 to report, generally, once a month to a Police Services 21 Board, would you agree with that? 22 A: Well I -- I would draw a different 23 comparison. The -- in the OPP, because we have to put 24 in a business plan to the Ministry and we have to meet 25 certain criteria, or we set our objectives and then we
2451 have to report every year. 2 But we report quarterly in on our process 3 -- or progress that's being made on those objectives. 4 So there's really a secondary process. 5 But is there -- if you were talking about, is there a 6 body you appear before, you're correct. 7 Q: All right. Now I want to move on -- 8 and -- and by the way, there's nothing about what we've 9 discussed so far that excludes First Nations people from 10 this analysis. 11 That is, community oriented policing is 12 intended to be aimed at First Nations people as well as 13 other communities, agreed? 14 A: Yeah, that's correct. 15 Q: Okay. 16 COMMISSIONER SIDNEY LINDEN: I just want 17 to remind you, Mr. Falconer, you're roughly two and a 18 half (2 1/2) hours. 19 MR. JULIAN FALCONER: That's right. And 20 I was actually -- I have -- this would actually be a good 21 time for a break. I -- I don't -- it could well be me 22 but the air -- this has been a tough slog, so -- 23 COMMISSIONER SIDNEY LINDEN: That's fine. 24 I'll be happy to take a break now but you -- 25 MR. JULIAN FALCONER: Okay.
2461 COMMISSIONER SIDNEY LINDEN: -- would 2 have -- 3 MR. JULIAN FALCONER: Half an hour. 4 COMMISSIONER SIDNEY LINDEN: -- no more 5 than a half hour left. 6 MR. JULIAN FALCONER: Yeah, that's right. 7 COMMISSIONER SIDNEY LINDEN: That's fine. 8 We'll take a break. 9 THE REGISTRAR: This Inquiry will recess 10 for fifteen (15) minutes. 11 12 --- Upon recessing at 2:17 p.m. 13 --- Upon resuming at 2:32 p.m. 14 15 THE REGISTRAR: This Inquiry is now 16 resumed. Please be seated. 17 COMMISSIONER SIDNEY LINDEN: I 18 understand, Mr. Falconer, that you've indicated to 19 Commission Counsel that you need another fifteen (15) 20 minutes but that you would assure us that you would be 21 done by 3:15? 22 MR. JULIAN FALCONER: That's correct. 23 COMMISSIONER SIDNEY LINDEN: That's fine. 24 COMMISSIONER SIDNEY LINDEN: Thank you, 25 Mr. Commissioner.
2471 2 CONTINUED BY MR. JULIAN FALCONER: 3 Q: Commissioner Boniface, there has been 4 some time now spent on the -- on the role of police 5 services boards and it's going to come as no surprise to 6 you where I'm going next in terms of my questioning. 7 I think it's fair to say you will have 8 been monitoring the evidence and know that my client, 9 Aboriginal Legal Services of Toronto, has raised with a 10 number of witnesses the possible benefits of some form of 11 oversight body akin to a police services board though I - 12 - though I don't say one (1) size fits all, that among 13 other things would have the benefit of acting as a buffer 14 between government on the one (1) hand, and police on 15 other hand. 16 And so that's where I want to go next and 17 -- and that's why it was important to review 1729 through 18 1731, the exhibits. 19 I do want to say something on the record 20 because it was brought to my attention during the break. 21 The date of the Auditor's report of -- of 2005, was a 22 December 2005 date, so when I said a year that's 23 inaccurate, it would be six (6) months. The date didn't 24 present itself on the face of the report for me which is 25 why I -- perhaps there should be some auditing of the
2481 dating of the Auditor's reports. 2 The -- the place I want to go next in 3 terms of areas then is to ask you first of all, you were 4 provided notice that the July 2004 draft paper by 5 Professor Roach for models of police/government 6 relationships may be something we ask you about, fair? 7 A: Yes. 8 Q: And knowing you, both informally in 9 discussions I've had with you before and through this 10 process I -- I suspect that you've developed some views 11 on oversight models? 12 A: Yes. 13 Q: All right. And to give you, you 14 know, some credit in this, you will have had an 15 opportunity to consider at some length the issue of -- of 16 oversight models given the fact that this has arisen for 17 the last six (6) or seven (7) months in the context of 18 this Inquiry; is that true? 19 A: That's correct. 20 Q: All right. So rather than me give 21 you a bunch of leading questions that, you know, given my 22 need to control, I'm going to give up the reins and 23 simply ask you to, if you can, assist the Commissioner 24 with your views on the benefit of an oversight body akin 25 to a police services board though not identical, in the
2491 form of a buffer between government and police service, 2 the Ontario Provincial Police. 3 A: The -- the -- essentially my sense is 4 that the -- whatever a body could look like or -- or may 5 look like there's always going to be pluses and minuses. 6 I -- I don't hold -- I'm sure it was Mr. Falconer who was 7 saying, I'll hold the Police Service Board model out as 8 exactly the -- the idea that works. 9 But I think as the Commission considers 10 its work it will be I think helpful to do and see some 11 comparators between the operation of a police service 12 board and what is in the public fray compared to what the 13 current model looks at, and determine whether or not 14 there's sufficient differences that would make one want 15 to see something different. 16 I -- I'm of two (2) minds of this in terms 17 of things that function well -- function well and -- and 18 often it's -- it's a reflection of exactly what the 19 framework is that it works within. 20 So I -- I don't -- I think there's Police 21 Services Boards with pluses and minuses. There's Police 22 Services Boards generally that operate very effectively 23 and others that may not. 24 However, I think that's the avenue that's 25 important to look at in terms of what is a model that
2501 would work best and how that model could function within 2 the context of really two (2) issues that I think are 3 really important for the Commission to understand. 4 And that is the OPP has two (2) mandates. 5 They have a Provincial policing mandate and they have a 6 municipal policing mandate. 7 In the municipal policing mandate, you see 8 the hundred (100) -- I think it's a hundred and one (101) 9 Police Services Boards that we have in place for part of 10 them. And then for a series -- or a number of 11 municipalities, we have community policing committees 12 that operate in advisory capacity. And then for the 13 Provincial side of our business, which are our highways, 14 our major investigation, multi-jurisdictional 15 investigations, there's a different part of the OPP. 16 So, somewhere in the model, as is 17 indicated, whatever way you make that work it has to 18 interact with that Section 10 of the Police Services Act 19 and all those small -- smaller Boards. And it has to 20 have some recognition that the Provincial side of the OPP 21 does specialised work and that work is often done in 22 joint force operations. 23 So there's a lot of layers of -- that one 24 would look at to make it function well and I guess my -- 25 my final point would be that is the really significant
2511 importance of making it function well. 2 So whatever framework one would consider, 3 you'd have to make sure it functions better than the 4 function is today. 5 Q: And would you agree that if a 6 recommendation were made about the existence of an 7 overview mechanism, akin to a Police Services Board, that 8 it would be important to -- to be representative, among 9 other things, of the communities that they serve? 10 A: Yes. 11 Q: And given the unique position that 12 First Nations people occupy as far as being policed by 13 the Ontario Provincial Police, would you agree with me 14 that one consideration ought to be to some form of fixed 15 representation of First Nations persons on such an 16 oversight Board? 17 A: If you went to a Board model I'd be 18 delighted to see Aboriginal representation. 19 Q: All right. In terms of your 20 response, one of the things that you didn't say was that 21 a Police Services Board model is a bad thing. You didn't 22 say that? 23 A: No. 24 Q: Okay. And would you agree with me 25 that when I did refer to a buffer as a benefit, but there
2521 is another benefit which is that as Police Services 2 Boards operate municipally right now, they actually 3 conduct a significant portion of their business in public 4 that -- 5 A: Yes. 6 Q: -- that's an advantage? 7 A: Yes. 8 Q: And that in conducting a significant 9 portion of their business in public, they create both 10 access to policing for the community, yes? 11 A: Yes. 12 Q: And secondly, they create an element 13 of transparency to how the Police Services are run? 14 A: Yes. 15 Q: Now, we have a Standing Committee 16 that will convene and, on occasion, may summons you to 17 appear before them. 18 A: That's correct. 19 Q: You'd agree with me that that's a 20 very different level of both access and transparency than 21 the way Police Services Boards work? 22 A: I would agree. 23 Q: In terms of the functions of Police 24 Services Boards the Chief of Police municipally reports 25 to them, correct?
2531 A: Yes, that's my understanding. 2 Q: And while you and I went over this 3 and I will have to take some responsibility for botching 4 my questions before, so I just want to be clear with one 5 (1) question. While they can't order the Chief 6 operationally, they are mandated to give orders to the 7 Chief on policy matters? 8 A: That's my understanding, yes. 9 Q: And therefore -- and they also have 10 the responsibility of hiring Chiefs of Police, yes? 11 A: Yes. 12 Q: And they get to decide if a contract 13 of a Chief of Police is renewed? 14 A: I don't -- I'm assuming they do, yes. 15 Q: Now, having said all of that, you 16 right now, and you know, Commissioner Boniface is -- is, 17 in terms of the way she addresses issues is something 18 that it would be very hard to be critical of as a person 19 and her good intentions, all right? 20 So no one's suggesting we're only talking 21 about Commissioner Boniface. But over the course of time 22 there will be good Commissioners and bad Commissioners; 23 that's just life, correct? 24 A: Correct. 25 Q: Commissioners are people, they
2541 reflect microcosms of our society; we will have good ones 2 and we'll have bad ones, right? 3 A: Yes. 4 Q: Would you agree with me that one of 5 the advantages of a Police Services Board model would be 6 that a Board could actually require an element of 7 reporting to them in public that doesn't exist right now 8 for the OPP by virtue of their Commissioner? 9 A: Yes. 10 Q: Okay. On the issue of oversight, 11 there is a portion in the Roach -- Professor Roach's 12 paper that I want to read to you and ask you for comment 13 on because it relates directly to the issue. 14 And interestingly enough, you referred Mr. 15 Rosenthal to the LeSage Report and Professor Roach has 16 the -- has the not surprising honour of being quoted by 17 former -- Associate Chief Justice LeSage or Chief Justice 18 LeSage in respect of -- of this quote and I want to read 19 it to you. Page 2 of the -- Professor Roach's paper, 20 quote: 21 "The relationship between the police 22 and the Government is a matter of 23 fundamental constitutional significance 24 in any state. 25 It is particularly challenging in a
2551 country such as Canada which is free 2 and democratic and committed to the 3 rule of law. 4 On the one hand the idea that the 5 police are law unto themselves is 6 unacceptable in a democracy that prides 7 itself on restraint and the use of 8 coercive state sponsored force and on 9 accountability for the use of such 10 powers. 11 On the other hand, the idea that the 12 police are directed by the Govern -- 13 Government of the day raises concerns 14 about improper partisan concerns 15 influencing or appearing to influence 16 the machinery of justice. 17 There is a need to respect and balance 18 both the principles of independence and 19 accountability and to do so in a manner 20 that advances our aspirations to be a 21 democratic nation that is governed by 22 law." 23 Do you agree with that proposition? 24 A: Yes. 25 Q: And so in the end, the problem
2561 becomes how do you create some distance but not too much 2 distance; is that right? 3 A: Yes. 4 Q: And Municipal Police Services Boards 5 are actually a more recent invention than, for example 6 being accountable to a Solicitor General, right? 7 They -- they represent, sort of, the new 8 Police Services Act model dating back to the '70's; is 9 that not right? 10 A: I don't know that, but you could be 11 right. 12 Q: And it's -- it's fair to say that the 13 manner of reporting by the OPP to the Solicitor General 14 is an age old chain of reporting; is that -- 15 A: It's been in place forever. 16 Q: Yeah. And Police Services Boards 17 quite simply represent a more modern form of oversight, 18 yes? 19 A: Sure. 20 Q: All right. And the reason I ask you 21 that is because society changes over time, the people we 22 police change and the police themselves change, correct? 23 A: Correct. 24 Q: What would have been acceptable, that 25 is offering a Deputy Minister as a buffer between the
2571 Minister and the police, what would have been acceptable 2 50 of 75 years ago may not be as clear from an optics 3 point of view today in 2006; would you agree? 4 A: I would agree. 5 Q: And so if there is an investigation 6 or a problem because of political interference, it's very 7 difficult from an optics point of view to rise in the 8 House and say to someone, It's okay, my Deputy Minister 9 has it under control and she's my buffer? 10 That's problematic; isn't it? 11 A: I don't understand why you say -- you 12 say that. Can you just back up. 13 Q: Okay. Let me back up. I tried to 14 jump some steps. Mr. Commissioner knows where I'm going 15 I think because of previous questioning. 16 But right now as the matters presently 17 stand, the Deputy Minister, Deputy Solicitor General, 18 represents the buffer between you, the Commissioner, and 19 the Minister of Canadian Social Safety. Am I getting it 20 wrong? The Min -- 21 A: No, you're right. 22 Q: Okay. The name keeps changing on and 23 so I apologize. And what was the Solicitor General. 24 That buffer between the Minister and the police is the 25 Deputy Minister, right?
2581 A: That's correct. 2 Q: And it is a difficult thing to 3 communicate to the unsophisticated who don't have a lot 4 of expertise just from a public optics point of view, 5 that that is an arms length buffer given it's their 6 Deputy Minister, would you agree? 7 A: Yes, I would. 8 Q: Okay. That's all I'm asking. But 9 that in fact is the state of affairs today, correct? 10 A: That's correct. 11 Q: The role of the Auditor wouldn't have 12 to change would it in terms of routinely or regularly 13 auditing the Ontario Provincial Police if you've got some 14 oversight Board? 15 It would still be a useful function 16 wouldn't it? 17 A: Yes. I'm not sure. You'd have to -- 18 you'd have to separate out the OPP I would think from 19 government if you put the Board in place. I don't know 20 how you would interconnect everything, but I would expect 21 that the Auditor to -- the Auditor General today does 22 agencies or other entities of government. I don't know 23 that for sure but I expect they do. 24 25 (BRIEF PAUSE)
2591 Q: In terms of the four (4) models of 2 police/government relationships identified by Professor 3 Roach are you able to assist us on whether there's a 4 model of the four (4) models that -- that you found, sort 5 of, the most appropriate? 6 A: No, but I think it's -- yes, he says 7 I think very eloquently some -- it's a grey area. You 8 can have combinations of models and such like -- and so I 9 think as you sort through Mr. Roach's paper which is a 10 good read is trying to sort out what would work in an 11 agency like ours that is different than the municipal. 12 There's got to be some combination of model. 13 Q: And the reason for the -- one (1) of 14 the important differences is the regional spread across 15 the Province, true? 16 A: It's -- it's the -- the geographic 17 spread but it's also the two (2) separate roles, the 18 municipal policing side which is the local policing side 19 and the -- the specialized area which serves the whole 20 province. So it's a little more complex that's all. 21 Q: Fair enough and that's a very good 22 point and I apologize for missing it. But one (1) of the 23 things we know for example is that a policing service 24 that consists of seven thousand (7,000) officers, not a 25 dissimilar figure to yours, the Toronto Police Service --
2601 A: Hmm hmm. 2 Q: -- actually uses a municipal police 3 services board, fair? 4 A: Absolutely. 5 Q: And so numbers alone aren't the 6 number but -- 7 A: No. 8 Q: -- regional disparity could be? 9 A: It could just be -- you may have to 10 just modify it that's all. I don't it as a hurdle. 11 Q: And -- SIRC -- and I said seven 12 thousand (7,000) officers; I think it's seven thousand 13 (7,000) members. SIRC, the review body for CSIS -- 14 A: Yes. 15 Q: -- has to deal with a CSIS that's not 16 only in Toronto -- 17 A: Yes. 18 Q: -- or a CSIS that's not only in 19 Regina, right? 20 A: Yes, but one might argue -- I'm not 21 arguing, but one might argue it's a single function. 22 Q: Sure. And all of those should be 23 taken into account. 24 A: Yeah. 25 Q: But as the current sitting
2611 Commissioner today you don't say to yourself when this is 2 being discussed, this is a bad thing? 3 A: No. 4 Q: Okay. Thank you. I want to discuss 5 briefly with you the discipline records and I say 6 "briefly" because you've been asked numerous questions by 7 Mr. Rosenthal and others so I'm going to be fairly quick 8 on it, but I have a couple of questions. 9 If you could look at Exhibit P-1053. This 10 is the records that deal with Mr. Cossitt. 11 THE WITNESS: Do you know what the tab 12 is? 13 14 (BRIEF PAUSE) 15 16 MR. DERRY MILLAR: Tab 16 in the large 17 binder. 18 MR. JULIAN FALCONER: Tab 16 of the large 19 binder. I thank Mr. Millar for that. 20 21 (BRIEF PAUSE) 22 23 CONTINUED BY MR. JULIAN FALCONER: 24 Q: Now, the questions I'm about to ask 25 you about this have not been asked of you; that's my only
2621 assurance to you. I'm not trying to make you repeat. 2 P-1053, the Cossitt -- the so-called 3 Cossitt investigation, it has some features that haven't 4 necessarily been discussed in your evidence today. 5 We had the benefit of the evidence of 6 Officer Cossitt and it was his evidence that he never 7 formally received a complaint. Did you know that? 8 A: Yes. 9 Q: Now, you've already testified that it 10 would have been better if this went -- if this were not 11 in-house, correct? 12 A: I'm sorry? 13 Q: It would have been better if this 14 were not in-house? 15 A: Yes. 16 Q: And so I want to give you the benefit 17 of that that you did say that. And so I took from that 18 that the optics of having the OPP investigate one (1) of 19 their own in relation to a finding of the nature that His 20 Honour Judge Fraser made were not good and it should been 21 done externally, correct? 22 A: Yes. 23 Q: Fair enough. But now I need to deal 24 with a little more of the issues or problems that -- that 25 I -- I need to understand.
2631 How can a complaint be made and not 2 formally conveyed to the officer being investigated? 3 A: Well, I don't think there was a 4 complaint made. 5 Q: Okay. 6 A: I think what happened here is it was 7 referred, and it wasn't me so it's hard to assume, but I 8 think it was referred for a review to see whether there 9 should be an investigation. But it was referred from 10 within and then the review of the investigation -- or 11 sorry, the review of the file or the decision then said 12 they didn't think that we -- you should go further. 13 I think that's what it -- I think that's 14 what the process was. 15 Q: So there was never an internal 16 complaint? 17 18 (BRIEF PAUSE) 19 20 Q: See, I'm looking at -- 21 A: I don't -- I don't think so. 22 Q: I'm looking at a document called, 23 Complaint Intake Form -- 24 A: I -- 25 Q: Now, that -- I understand --
2641 A: -- there was. 2 Q: -- that's not the -- that's not the 3 end of it. That doesn't mean it's so, but it's sure a 4 good start for thinking that there's a complaint. 5 It says, "Complaint intake form". Now -- 6 and it also says -- do you see the front page? 7 A: Yeah, you could be right. I 8 apologize. 9 Q: I -- 10 A: You -- 11 Q: I don't know if this means there was 12 a complaint. 13 Can you help me? Does this mean there 14 was? And I'm not being facetious. I want -- 15 A: Can I ask you which page you're 16 looking at? 17 Q: Yeah, it's this front page of that 18 tab. 19 20 (BRIEF PAUSE) 21 22 Q: Do you see at the top, "Complaint 23 Intake form"? 24 A: Yes. I'm trying to read through it - 25 - the --
2651 Q: All right. 2 A: -- photocopy. 3 4 (BRIEF PAUSE) 5 6 A: I would -- I can only -- I assume 7 from the fact that there's a form and it is filled out, 8 it's just redacted, that there is, in the notes at the 9 bottom would have initiated it into Professional 10 Standards which is what the next document is. 11 Q: All right. So going back to my 12 question, can you assist the Commissioner on how it is 13 that a complaint could be commenced but never formally 14 provided to the officer? 15 You may not know, or you may know of a 16 process that explains it. I don't know, I'm just asking. 17 A: Yeah. I -- well, I'm trying to 18 think. And I don't know how it would happen. I know in 19 this case that it went within the -- the Professional 20 Standards area was reviewed by the inspector in there, 21 who -- who is a lawyer and I'm assuming from his advice 22 it -- it ended there. 23 COMMISSIONER SIDNEY LINDEN: This pre- 24 dates your term as Commissioner. 25 THE WITNESS: Yes, yes.
2661 2 CONTINUED BY MR. JULIAN FALCONER: 3 Q: Fair enough. But you mentioned that 4 it was reviewed by an inspector who's a lawyer and you 5 also mentioned in evidence yesterday to Mr. Millar that 6 one of the changes to the internal complaints process -- 7 A: Yes. 8 Q: -- of the OPP is that Professional 9 Standards investigators or members of Professional 10 Standards are the ones that look at complaints, correct? 11 A: Yes. 12 Q: But in fact that -- and that's what 13 happened in the Cossitt case? 14 A: Yes. 15 Q: Right. So we don't -- we're not -- 16 we're not going to see -- the mere fact of it being a 17 rule that says Professional Standards people are going to 18 look at it, that wouldn't change the face of this report, 19 because that's exactly what happened, isn't it? 20 A: It's a -- it is -- was looked at 21 internally. The change that would take place today that 22 may have not in this case is that it would go before a 23 group of internal people led by a superintendent. 24 Q: All right. Now, what I want to ask 25 you about is -- is, have you had an opportunity to look
2671 at this document? 2 You took over as Commissioner the next 3 year, and I take it you feel some sense of responsibility 4 to understand what happened, correct? 5 A: Yes. 6 Q: Did you take -- take an opportunity 7 to review this report of October 20th, 1997? 8 A: No. 9 Q: You've never read it? 10 A: No. I had not seen it until we came 11 here. 12 Q: And -- 13 A: And prepared for coming here. 14 Q: Okay. And in your preparations, you 15 would have read it? 16 A: Yes. 17 Q: Now, I asked Mr. Cossitt some 18 questions but let me get straight to the point. I took 19 him through his cross-examination by the Crown Attorney, 20 Ian Scott, who let's say didn't give him an easy ride, 21 all right? 22 And of the whatever number of pages, 23 twenty-five (25) pages of cross-examination or slightly 24 less, the vast majority of the cross-examination was 25 dedicated to this officer claiming that he had seen a
2681 Molotov cocktail, all right? 2 A: Yes. 3 Q: And that this Molotov cocktail claim 4 didn't have a history to it reflected in notes, et 5 cetera. He was cross-examined vigorously on it and it 6 was put to him that he had concocted it, right, in 7 essence? 8 And I put it to -- to Cosset that it was 9 quite memorable for him and he said absolutely, it's 10 never happened to him before and that, yes, he remembers 11 that's what happened. 12 And I put it to him that when you got a 13 call that you were being investigated internally, you 14 assumed you were being investigated for misleading people 15 about the Molotov cocktail and he agreed with me. 16 Do you see any reference in this report to 17 addressing the evidence that the Crown Attorney elicited 18 about the Molotov cocktail or the concerns the Crown had 19 about the Molotov cocktail, because I can't find it. 20 That's why I'm asking. 21 A: No. I didn't see it. 22 Q: You see, the concern I have is, it 23 appears whoever did this so-called investigation, 24 conveniently ignored the major area the witness was 25 challenged on. I took the -- I used the word
2691 "conveniently," I'm sorry. 2 3 (BRIEF PAUSE) 4 5 Q: Mr. Millar, rightly point -- I should 6 -- first of all, let me edit out the word "conveniently." 7 The person authoring this report did not address any -- 8 the existence of corroborating evidence or reasons to 9 believe or not believe the issue around the Molotov 10 cocktail. 11 There is an exception, and you'll see a 12 reference to burning objects: 13 "Burning objects thrown by First 14 Nations persons were of more concern to 15 Cossitt than a Molotov cocktail which 16 did not ignite. This is a factor in 17 how the events were reported by 18 Cossitt" 19 That's a blank statement reflecting his 20 evidence. But you'll see through the report that talks 21 about the facts, there's various indications or indicia 22 of corroboration by different witnesses; do you see that? 23 Lacroix, Deane and others, they talk about muzzle flashes 24 and a whole series of things? 25 A: Yes.
2701 Q: But there's no discussion about 2 corroboration about the Molotov cocktail? 3 4 (BRIEF PAUSE) 5 6 Q: Now, where I'm going with this and 7 what I want to truly ask, is this: If a lawyer, or 8 Inspector, or anybody develops a report that is quite 9 deficient in how it addresses a serious investigative 10 issue, such as someone has been alleged to have 11 fabricated their evidence, first of all, when they're 12 called upon to do that, would you expect that that person 13 would consider interviewing the Crown Attorney that 14 elicited the evidence and put to the witness that they 15 were lying? 16 A: I think that's fair. 17 Q: Right. Would you also expect that 18 this kind of complaint would actually be formally served 19 on the officer? 20 A: The officer would be notified, I 21 would expect. 22 Q: You'd expect it to be formally 23 served; wouldn't you? Your evidence is he was informally 24 notified by telephone. 25 A: His evidence is?
2711 Q: Yes. 2 A: Okay. 3 Q: That's it. 4 A: Well, that would be -- he was -- I'm 5 sorry, because I'm not aware of what his evidence was. 6 Q: Okay. He was informally notified by 7 telephone. Is there not a process for serving complaints 8 on officers? 9 A: Yes. They would -- I -- I would 10 think they would normally get a copy of this intake or 11 something that would officially notify them. 12 Q: That's right. And you'd expect that 13 to happen? 14 A: Yeah. 15 Q: Would you agree with me that this 16 report is actually an advocacy piece defending Cossitt 17 and explaining why his version of events is actually 18 corroborated; that this is an advocacy piece? 19 A: I think the report could have been 20 more fulsome. 21 COMMISSIONER SIDNEY LINDEN: She's not 22 going to say it was an advocacy piece, Mr. Falconer. I 23 don't think -- 24 MR. JULIAN FALCONER: All right. I -- 25 COMMISSIONER SIDNEY LINDEN: -- you need
2721 to press that, that's your choice of words. 2 MR. JULIAN FALCONER: That's right. And 3 that's my suggestion. 4 COMMISSIONER SIDNEY LINDEN: Yes, well -- 5 6 CONTINUED BY MR. JULIAN FALCONER: 7 Q: And in saying that it, "could have 8 been more fulsome," the reason you're saying it could 9 have been more fulsome is that the author of the report 10 could have put the other side of the analysis, such as 11 Judge Fraser's side of the analysis, or Mr. Scott's side 12 of the analysis? 13 A: Yes. It isn't -- Judge Fraser's 14 comments are on the front of the intake. 15 Q: The comment is, but the evidence that 16 led Judge Fraser to make the finding he did, is not 17 referred to; correct? 18 A: And -- no, the -- to be fair the 19 assumption I'm making is that they read the decision. 20 Q: I want to ask you about the -- and 21 just to finish off this on Cossitt, P-1053, if it had 22 come to your attention, this kind of report, so when we - 23 - all we have to do is really scoot to November 1998, 24 twelve (12) months later, if twelve (12) months later you 25 got a report like this that, as you put it, quote, "could
2731 have been more fulsome" close quotes, what would be the 2 procedure you would do to quality control this product? 3 A: It would normally come in in this 4 form and then they would do a full investigation in the 5 same way they would do any other investigations. This 6 would not -- a report would not necessarily come to my 7 desk, but in this case, and I think as Commissioner 8 O'Grady said, we may have considered, (a), to send it 9 outside, or -- or, as I thought, some consultation with 10 the Crown Attorney at some point, in terms of getting -- 11 it ought to be a different Crown Attorney, obviously. 12 But in terms of what direction to go. 13 Q: Right. But to try to focus you a bit 14 on the point of my question, I'm asking: Assuming you go 15 this report -- 16 A: Right. 17 Q: -- I'm trying to -- 18 A: Oh, the report's completed, you mean? 19 Q: Yes, this is the report. This is the 20 document you received on your desk. You say, are we 21 looking into this, this finding that he fabricated 22 evidence? You're told -- you're -- you're up high, 23 you're in Orillia -- it's Orillia, right? 24 Q: Yes. 25
2741 CONTINUED BY MR. JULIAN FALCONER: 2 Q: You're in Orillia, you hear -- you -- 3 you find out about the judgment. You go, Are we on this? 4 Are we looking into this? Somebody's been alleged, very 5 publicly, to have fabricated evidence. 6 Would this document make its way to you, 7 this -- this report of October 20th, 1997? 8 A: It may. 9 Q: And if it did, this less than fulsome 10 report, as you described it, what would you do in 11 response to this kind of report? 12 A: It would likely be sent back down. 13 Q: For what? 14 A: For some further report. 15 Q: It's inadequate, isn't it? 16 A: Yes. 17 Q: All right. 18 COMMISSIONER SIDNEY LINDEN: Are you on 19 your last area now, Mr. Falconer? You've got fifteen 20 (15) minutes. 21 MR. JULIAN FALCONER: Fifteen (15) 22 minutes. 23 COMMISSIONER SIDNEY LINDEN: I don't want 24 to keep reminding you so I'm just assuming -- 25 MR. JULIAN FALCONER: No, no, that's
2751 fair. 2 COMMISSIONER SIDNEY LINDEN: -- you're 3 going to be done at 3:15. 4 MR. JULIAN FALCONER: I'm reluctant to 5 use the words, "last area," because once you and I came 6 to a misunderstanding. I have fifteen (15) minutes left 7 and I definitely will not take longer. 8 COMMISSIONER SIDNEY LINDEN: That's fine. 9 MR. JULIAN FALCONER: That's the only 10 thing I can say that will be assistance to you. 11 COMMISSIONER SIDNEY LINDEN: That's good 12 enough. 13 14 CONTINUED BY MR. JULIAN FALCONER: 15 Q: Can you please turn to Exhibit P- 16 1051. You'll have the book that -- 17 A: No. 18 Q: -- and it's the large book and it's - 19 - I'm looking -- I'm asking you to turn to what is page 20 17 of that book, so it's -- you've got it as Tab 17; 21 that's the difficulty with our different -- it's -- it's 22 Privileged Documents Volume I. It's the discipline 23 records Volume I, P-1051. 24 A: That's this, I think. 25 Q: Thank you. Now, if you turn to Tab
2761 17, this is the letter that you've indicated you received 2 January 8th, 1996, that you -- you initialled comments 3 on, Tab 17. Do you have that? 4 A: Yes. 5 Q: Now, you helped Mr. -- 6 A: I did not receive this on January 8th 7 though. 8 Q: Okay. When did you receive it? 9 A: Well, this would have -- I did at 10 some time in the next few months in preparation for going 11 to the region. January 8th, 1996, I wasn't the Regional 12 Commander. 13 Q: All right. So could you assist me 14 just without pinning a day, what -- roughly what month, 15 what year? 16 MR. DERRY MILLAR: Just to assist My 17 Friend and Commissioner Boniface, if you -- in Volume 2, 18 Tab 99 has a reference to the memo from Mr. Parkin dated 19 March 11, 1996, and there's the note at the bottom of 20 that, March 25th/'96: 21 "The new Regional Commander of West Region 22 has been given a copy of this report." 23 So -- 24 THE WITNESS: Yes. 25 MR. JULIAN FALCONER: That's fair.
2771 THE WITNESS: That's around the end of 2 March. 3 MR. JULIAN FALCONER: Thank you, Mr. 4 Millar. 5 6 CONTINUED BY MR. JULIAN FALCONER: 7 Q: Now, would you agree with me that 8 there are numerous options available to you when 9 receiving a report of this nature, in other words, on how 10 to deal with it? 11 A: Yes. 12 Q: And by March 1996, had this matter 13 been disposed of? 14 A: I believe so. 15 Q: All right. So let's back up for a 16 moment. When you say you believe so, I've just -- I need 17 to understand, is there any element of certainty about 18 this? Because, for example, if you had a role in 19 confirming this institutional response to this conduct, 20 that's different than if you came after the fact and it 21 had already been done? 22 A: No, I -- I believe I came after the 23 fact. 24 Q: So you had no role in affirming the 25 disposition?
2781 A: No, no. Chief Coles would have 2 received this report. 3 Q: All right. Would you agree with me 4 that, based on the annotations you made about the 5 relevance of certain considerations and some of the 6 comments reflected in this eighteen (18) or nineteen (19) 7 page document, that the officer, Adkin, did not have the 8 most sophisticated approach to issues of race that you 9 would have wanted to see in someone investigating this? 10 A: Well, I think my comments reflect 11 that I think there was some weight given to things like 12 intent that didn't need to be. 13 Q: And while I understand you're in a 14 difficult position, you're a leader of a service that's 15 ongoing and you're speaking on the public record, and I'm 16 not trying to embarrass you, but at the same time I won't 17 -- I -- I think it's important to establish whether 18 there's options when the work is of this level of 19 quality. 20 A: The work -- if -- if it's helpful, 21 the work investigation today would be more fulsome than 22 this. 23 Q: All right. So you're saying that 24 there are quality control mechanisms for these kinds of 25 investigations that didn't exist in 1996?
2791 A: I don't know what existed in 1996 at 2 that time in the Professional Standards area, but today 3 there's been a lot of changes to the Professional 4 Standards area and there's a -- we have in there, for 5 instance, a CIB criminal investigation inspector who's 6 spent his career doing that and he reviews the complaints 7 to make -- or the files, to make sure that they're full 8 and assist the investigators. 9 And so people investigating today, just to 10 be -- just to be clear, would be Professional Standards- 11 type people who are trained in that way to do the 12 investigations. 13 That would be their -- their full time 14 jobs. 15 Q: This is what I want to ask you. I -- 16 I understand that the investigation, from the point of 17 view of, for example, the role of CIB, so the 18 rigorousness of the investigation or the competence of 19 it -- 20 A: Right. 21 Q: -- could -- the quality of that could 22 be addressed. But what I respectfully suggest to you, 23 Commissioner, is that the January 8th, 1996 report 24 doesn't just show a deficiency in investigative 25 competence, it shows a lack of sensitivity and/or
2801 understanding of issues of race. 2 Do you agree with me? 3 A: I think there could have been greater 4 understanding at that point in time, but it is 1996. 5 Q: That's true, but, now, it is 1996, 6 and now we're 2006. So I'm asking you to tell the 7 Commissioner what it is in 2006 that makes you confident 8 that your Professional Standards investigators today have 9 an understanding of complaints around issues of race that 10 they didn't have in '96? 11 COMMISSIONER SIDNEY LINDEN: She -- yes, 12 Mr. Sandler...? 13 MR. MARK SANDLER: Yes, Commissioner. 14 Just to be clear, she's given this evidence before. It's 15 not a comparison between Professional Standards officers 16 in 2006 and back then. 17 That wasn't even a Professional Standards 18 officer so -- and she's given that testimony. So just to 19 be clear on that. 20 She had indicated that back then there was 21 a process where the matters are not necessarily 22 investigated by someone within the Professional Standards 23 Bureau -- 24 COMMISSIONER SIDNEY LINDEN: Yes. 25 MR. MARK SANDLER: -- but might be
2811 investigated by someone within the region. 2 COMMISSIONER SIDNEY LINDEN: Yes. Well 3 she went at some length describing the differences 4 between the situation in '95 and the situation now. 5 6 CONTINUED BY MR. JULIAN FALCONER: 7 Q: Thank you. Again, going back a step 8 so that the question is more precisely framed, what about 9 the Professional Standards people that are in place in 10 the year 2006, would en -- whether or not the person who 11 authored this was a Professional Standards person, what 12 about the people in the year 2006 gives us some comfort 13 about their sophistication in managing issues of race. 14 A: They would -- first of all, they 15 would have -- have had the Native awareness training. 16 Q: Yes. 17 A: Secondly, they would be -- they would 18 be trained in Professional Standards and internal 19 investigations, that would be part of their training. 20 Thirdly, they're -- they are a fairly 21 diverse group. 22 And fourthly, if the matter was sensitive 23 around a First Nation issue, they may very well have a 24 First Nation officer with them. 25 Q: So it's your evidence, then, that
2821 these are the kinds of things that you would like to 2 think would be in place for this kind of investigation? 3 A: I would hope, yes. 4 Q: But you'd also agree with me that 5 there is no formal requirement, as in a rule or 6 regulation, in place today? 7 A: No, you're right. 8 Q: And if Mr. Commissioner were of the 9 mind, based on arguments by various parties, to actually 10 try to assist you to make a recommendation in this area, 11 that there be consultation with diversity experts within 12 the service to address Professional Standards issues that 13 raise issues of race, would you have any problem with 14 that? 15 A: No, not at all. 16 Q: And if that were made mandatory, 17 would you have any problem with that? 18 A: How would you make it mandatory? 19 Q: That is, in issues -- in complaints 20 that raise issues of race, Professional Standards shall 21 ensure the appropriate consultation -- 22 A: Oh, sure. 23 Q: -- with diversity experts within the 24 Ontario Provincial Police. 25 A: Yes. And I suspect, quite frankly,
2831 that's the practice now. 2 Q: But you know and I know -- 3 A: Yeah. 4 Q: -- making it a rule is comfort -- 5 A: Sure. 6 Q: -- for everyone. 7 A: Yeah, absolutely. And some of those 8 investigators may very well be from the diverse groups as 9 well. 10 Q: So much the better. 11 A: Yes. 12 Q: Thank you. Now, I want to quickly 13 ask you something, the last area about the mugs and T- 14 shirts. 15 It's the last one, although Mr. Sandler 16 may have something, so you can't blame me for that. 17 Now, I'm -- we have heard evidence that 18 Officer Dougan, who had memorabilia, Officer Korosec, who 19 had memorabilia, Officer Graham, Officer Zupancic, 20 Officer Jacklin, Officer Huntley, Officer Hebblethwaite, 21 these people had memorabilia, you never asked them, 22 right? 23 You know that some of these players were 24 significant players in the enforcement initiative at the 25 operation, right?
2841 A: Yes. 2 Q: You must, when you heard that, have 3 been scratching your head as to why they wouldn't have 4 been approached, fair? 5 A: Yes. 6 Q: And have you determined -- you're 7 doing another investigation as it relates to 8 Hebblethwaite, fair enough, but -- I'm sorry, the 9 Hebblethwaite T-shirt. You're doing an investigation as 10 it relates to the anvil T-shirt, correct? 11 A: Correct. 12 Q: And it emerged with Officer 13 Hebblethwaite so I wanted -- My Friend's quite fair in 14 saying it's not the Hebblethwaite shirt but it sprung 15 from there. 16 You are not doing an investigation into 17 what I'm going to respectfully tell you that my client 18 will argue at the end of the day was a sham 19 investigation? We will argue that at the end of the day 20 that this was a sham investigation in not approaching 21 those people. 22 You're not doing one, but have you made 23 any determinations on how this could have happened? 24 A: How -- 25 Q: How all these people could not have
2851 been approached? 2 A: No. I haven't made inquiry in that 3 regard. 4 Q: In your own mind, as you sit here 5 today, is there a plausible explanation for why none of 6 these people would have been approached about the 7 memorabilia. 8 A: The only thing I can think of is the 9 -- as you start to look at the information, one led to 10 the other. I don't know what the process of the 11 investigation was and he actually felt that he had 12 concluded. That's the only thing I can think of. 13 Q: But you'd agree with me that standard 14 basic investigative principles, are that if you're 15 looking into the existence of memorabilia, you would ask 16 the officers that were involved in the incident whether 17 they had any? 18 A: You could, yes. 19 Q: Well, to be fair, Commissioner 20 Boniface, it's not, "you could" -- 21 A: Yes. 22 Q: -- you would -- 23 A: Yes. 24 Q: -- correct? 25 A: Yes.
2861 Q: So, in essence, you still don't know 2 of any reason why this wasn't done? 3 A: I don't, no. 4 Q: Could I suggest a reason? And I want 5 to hear your reaction to it. I'm going to suggest to you 6 that this investigation was a form of damage control, not 7 by you, but was a form of damage control by the 8 investigator who deliberately conducted a sham 9 investigation. 10 Can you assist me on your response to 11 that? 12 A: I don't believe so. 13 Q: Do you have a reason to know that 14 didn't happen that way? 15 A: I know the investigator and I don't 16 think he would do that intentionally. 17 Q: Did you ask him why he failed to 18 approach all these people? 19 A: No, because I didn't know about it 20 until we came -- 21 Q: Fair enough. 22 A: -- to this. 23 Q: But since it came to your attention, 24 did you ask him why he didn't approach all these people? 25 A: He's not with the force anymore.
2871 Q: I see. I have a number of page 2 references that all do the same thing, and for the 3 record, I'm going to read the page numbers onto the 4 record and then I'm going to ask you a general question, 5 all right? 6 Exhibit P-426 is the handwritten scribe 7 notes, and at pages, and I'm reading this onto the record 8 and I'm sorry to be boring, but I'm going -- if you -- P- 9 426 should be in front of you. It's the handwritten 10 scribe notes. 11 THE REGISTRAR: Black binder. 12 MR. JULIAN FALCONER: Black binder to 13 your left. 14 MR. DERRY MILLAR: Actually, the 15 handwritten scribe notes are P-427. It's the typed that 16 are P-426. 17 MR. JULIAN FALCONER: I took a 50/50 run 18 at it, Mr. Commissioner. It just shows you my luck. And 19 I'm -- I'm -- it's going to be very quick. 20 THE WITNESS: I just need to find it 21 first. 22 23 CONTINUED BY MR. JULIAN FALCONER: 24 Q: That's fine. 25 A: And I'm unclear what --
2881 Q: Sure. P-4 -- 2 A: -- which binder. Oh, I see. 3 Q: Thanks. P-427. They're a series of 4 hand -- the handwritten scribe notes that pertain to the 5 Ipperwash operation, all right? At pages 389 -- 6 A: So I -- but I have them typed; is 7 that the same thing? 8 Q: No. 9 THE REGISTRAR: Second tag, Commissioner. 10 The second tag. 11 12 CONTINUED BY MR. JULIAN FALCONER: 13 Q: Do you have them? 14 A: Yes. 15 Q: All right. At pages 389, and this is 16 for the record, all right; 389, 392, 395, 396, 399, 400, 17 401, 402, 423, 432, 433, 438, 450, 471, 474 and 478. At 18 each of these pages there is a handwritten -- a portion 19 of handwritten notes that simply is not reproduced in the 20 typed version of the scribe notes which are exhibit P- 21 426, which are part of that binder, all right? 22 In each case a portion of the handwritten 23 notes have been edited. In many of the pages I'm 24 referring to there are references to hearing 25 communications from Ministries or Ministers or the
2891 existence of political heat, as examples. 2 Now, what I want to ask you is: A lot of 3 these passages would appear to be passages that are 4 somewhat embarrassing. And what I want to know from you 5 is can you assist me on how, in respect of this 6 operation, if you know, and you may not know, it could 7 happen that portions of handwritten scribe notes could be 8 omitted from the typed version. 9 COMMISSIONER SIDNEY LINDEN: Now, just 10 before you answer, Mr. Sandler, you have an observation. 11 MR. MARK SANDLER: There's so much that's 12 misleading in that question, with great respect. 13 COMMISSIONER SIDNEY LINDEN: Well -- 14 MR. MARK SANDLER: One (1) of the things 15 that we did in the exercise is demonstrate that the 16 differences between the handwritten notes and the 17 typewritten notes was not confined even to comments that 18 My Friend would describe -- 19 COMMISSIONER SIDNEY LINDEN: No, I know 20 that. 21 MR. MARK SANDLER: -- as -- as 22 contentious here. Sometimes there were additional things 23 in the typewritten -- 24 COMMISSIONER SIDNEY LINDEN: Yes. 25 MR. MARK SANDLER: -- notes that weren't
2901 in the -- 2 COMMISSIONER SIDNEY LINDEN: Yes. 3 MR. MARK SANDLER: -- handwritten notes. 4 Sometimes it was the reverse. Sometimes -- and I went 5 through some -- 6 COMMISSIONER SIDNEY LINDEN: Yes. 7 MR. MARK SANDLER: -- of these that 8 showed and Mr. -- Mr. Millar did during the -- 9 COMMISSIONER SIDNEY LINDEN: Yes. 10 MR. MARK SANDLER: -- examination-in- 11 chief of John Carson -- 12 COMMISSIONER SIDNEY LINDEN: I -- 13 MR. MARK SANDLER: -- things that were 14 completely innocuous. 15 COMMISSIONER SIDNEY LINDEN: Yes. 16 MR. MARK SANDLER: So that 17 characterization about these many things that would be 18 embarrassing and so on just isn't borne out on the 19 evidence -- 20 COMMISSIONER SIDNEY LINDEN: Yes. 21 MR. MARK SANDLER: -- with -- with great 22 respect. 23 COMMISSIONER SIDNEY LINDEN: Perhaps -- 24 MR. MARK SANDLER: Now, if My Friend 25 wants to ask a systemic question --
2911 COMMISSIONER SIDNEY LINDEN: Which I 2 thought he was doing. 3 MR. MARK SANDLER: -- about scribe notes 4 -- about scribe notes and how one might prevent the 5 problem in the future and so on, about discrepancies 6 between the two (2); but the characterizations are very 7 unfair. 8 COMMISSIONER SIDNEY LINDEN: Which I 9 thought -- 10 MR. JULIAN FALCONER: All right. That's 11 fine. 12 COMMISSIONER SIDNEY LINDEN: Thank you, 13 Mr. Sandler, that's what I thought you were doing, Mr. -- 14 MR. JULIAN FALCONER: That is what I'm 15 doing. 16 COMMISSIONER SIDNEY LINDEN: Yes. 17 MR. JULIAN FALCONER: And -- and we can 18 leave for argument -- 19 COMMISSIONER SIDNEY LINDEN: Yes. 20 MR. JULIAN FALCONER: -- that issue. 21 That's fair. That's fine. 22 COMMISSIONER SIDNEY LINDEN: That's 23 right, just -- 24 25 CONTINUED BY MR. JULIAN FALCONER:
2921 Q: So the portions omitted have 2 certainly caused concern to my client and -- and I 3 suspect to others and so I want to ask you, in terms of 4 systemic issues surrounding the creation of scribe notes, 5 first of all you've indicated that now there is a rule in 6 place whereby the Incident Commander is to initial each 7 page -- 8 A: And confirm. 9 Q: -- on each day? 10 A: That's correct. 11 COMMISSIONER SIDNEY LINDEN: Mr. Sandler, 12 just ask the question. You're past 3:15 and you -- 13 MR. JULIAN FALCONER: I have -- 14 COMMISSIONER SIDNEY LINDEN: -- don't 15 have to go through it all. Just ask the question. 16 MR. JULIAN FALCONER: I am. 17 COMMISSIONER SIDNEY LINDEN: Well, you're 18 going through a lot of other things. 19 MR. JULIAN FALCONER: All right. That's 20 fair enough. 21 22 CONTINUED BY MR. JULIAN FALCONER: 23 Q: I take it that what you said -- 24 described, the initialling process, is one (1) safety 25 feature to try to prevent against omissions that
2931 shouldn't have happened; is that fair? 2 A: That's correct and both the 3 initialling process which means that they have to do a 4 full read of the page and then the second one is that the 5 scribes are trained, and for the Level 2 Incident 6 Commanders they do a week of training. 7 Q: The person who types the handwritten 8 scribe notes, how do you control whether they make 9 omissions or not? 10 A: Well, I suspect they're the same 11 person because the -- I -- I don't know that for sure so 12 I -- it's a good point. I'll check on that but the -- 13 they're civilians and I suspect they take the scribe 14 notes and -- and will make them into the typed version 15 but they keep both. 16 Q: Would you be prepared to do this 17 because the issue that we're concerned -- I'm concerned 18 with is the variation between the handwritten -- 19 A: Sure. 20 Q: -- notes and the typed notes. Would 21 you be willing to assist through your Counsel by advising 22 us as to what safeguards you'd be willing to cooperate 23 with in ensuring that that doesn't happen anymore? 24 A: Sure. 25 Q: All right. Because you'd agree with
2941 me that a recommendation designed to ensure that the 2 typed notes are an accurate reflection of the handwritten 3 notes is important? 4 A: Absolutely. 5 Q: Thank you. The last area I want to 6 ask -- 7 COMMISSIONER SIDNEY LINDEN: You're 8 finished, Mr. Falconer. 9 MR. JULIAN FALCONER: Fair enough. 10 COMMISSIONER SIDNEY LINDEN: You're 11 finished now. You've made a commitment to me -- 12 MR. JULIAN FALCONER: That's true. 13 COMMISSIONER SIDNEY LINDEN: -- that you 14 would be done by 3:15. 15 MR. JULIAN FALCONER: That's true. 16 COMMISSIONER SIDNEY LINDEN: It's past 17 that now so you do not have another area. I would be 18 grateful if you would cease right now. 19 MR. JULIAN FALCONER: Fair enough, Mr. 20 Commissioner. 21 COMMISSIONER SIDNEY LINDEN: Thank you. 22 I've tried to be tolerant. 23 MR. JULIAN FALCONER: No, no, no, that's 24 fine. 25 COMMISSIONER SIDNEY LINDEN: It isn't
2951 fair to raise a new area five (5) minutes after you said 2 you'd be finished. 3 MR. JULIAN FALCONER: No, that's fine. 4 That's fine. Thank you for your -- your assistance. 5 COMMISSIONER SIDNEY LINDEN: Thank you. 6 7 (BRIEF PAUSE) 8 9 COMMISSIONER SIDNEY LINDEN: You have 10 some questions, Mr. Sandler? 11 MR. MARK SANDLER: Yes. I will not be 12 very long at all. 13 14 (BRIEF PAUSE) 15 16 COMMISSIONER SIDNEY LINDEN: How long 17 will you be, Mr. Sandler? 18 MR. MARK SANDLER: Five (5) to ten (10) 19 minutes. 20 COMMISSIONER SIDNEY LINDEN: Thank you. 21 22 CROSS-EXAMINATION BY MR. MARK SANDLER: 23 Q: I hope those are welcome words. 24 Commissioner Boniface, you were being 25 asked by My Friend, Mr. Falconer, about the methods that
2961 exist within the OPP to deal with what he characterized 2 as the -- as the hard nuts that might exist and might be 3 resistant to -- the kind of training that you've 4 described in some detail both at the forum and here. 5 And -- and you describe some of those 6 methods and -- and in passing, the word 'promotion' was 7 discussed but really not developed. And what I'm 8 interested in is, in the current regime when a hard nut 9 officer, to use his term, would come up to for promotion 10 what would there be about the promotion process today 11 that would address the concerns raised by Mr. Falconer? 12 A: In the promotional process today they 13 would -- a person seeking promotion and I'll use Sergeant 14 to Staff Sergeant as an example, they would go before -- 15 they'd first of all complete an exam and -- and then they 16 would go before a Board. 17 The Board isn't -- is made up of a diverse 18 group of the organization of senior people that we've 19 selected who have the qualities that we believe are 20 consistent with the focus on professionalism. And they 21 would go through a series of questions, what that would 22 determine at the end of the day whether they are suitable 23 to move to the next rank or not. 24 Once they -- if they were successful in 25 both of those, they would then have to apply for
2971 positions and appear before another process in order to 2 be successful for a specific position. 3 Q: And -- 4 A: But the materials that -- or the 5 materials that they would be directed to look at, to 6 study from, would be ones consistent with the focus on 7 professionalism, the promise and other areas of policing. 8 Q: And as I understand it, now that the 9 framework has formed part of the -- the police orders 10 that exist, that they now -- the framework now figures 11 prominently in what officers seeking promotion in 12 appropriate areas are expected to know and respond to as 13 part of that promotional process. 14 Am I right? 15 A: That would be correct. 16 Q: And apart from the framework, I 17 gather that a component of the promo -- promotional board 18 process includes questions of officers seeking promotion 19 regarding how they would manage or address Aboriginal 20 issues? 21 A: Absolutely. 22 Q: Now, just as a matter of interest, 23 Mr. Millar elicited from you that you currently have over 24 seven thousand (7,000) employees, including over five 25 thousand (5,000) deployed officers.
2981 Can you give Commissioner Linden some 2 sense of how many of those deployed officers were 3 recruited and hired by the OPP post-Ipperwash? 4 A: Okay. Yeah, we would have -- I'm 5 doing the math quickly in my head, Your Honour. Just 6 give me a minute. 7 We would have, in 19 -- from 1996 to 2006, 8 we would have hired probably close to twenty-five hundred 9 (2,500) of those officers. 10 Q: So half of the officers that are 11 currently deployed with the OPP are officers that have 12 been recruited and hired post-Ipperwash? 13 A: Yeah. It would be close to that. 14 Q: And I won't take you to it, but 15 Exhibit 1708 was filed before the Commissioner and that's 16 the chart, mangled as it was, as it was reproduced, of 17 the chronology of screening and training for Aboriginal 18 issues. 19 And just so that it's clear, that number 20 of twenty-five hundred (2,500) keeps increasing as 21 recruits are hired -- 22 A: That's right. 23 Q: -- and people leave the Force every 24 year, am I right? 25 A: That's correct.
2991 Q: And that chronology doesn't simply 2 reflect your -- your wishes, that now represents what you 3 expect a recruit, through the process, to be getting? 4 A: That's correct. 5 Q: All right. Now, I'm going to deal 6 with a couple of quick topics. Mr. Scullion asked you -- 7 MR. JULIAN FALCONER: I'm not objecting. 8 I just thought this might be an appropriate time in the 9 record. I -- I neglected to do something which is, the 10 promise wasn't filed as an exhibit. And given where Mr. 11 Sandler is in his test -- examination, I just thought 12 that might make sense to do it now. I realize that I 13 should have -- if an exhibit number could be put aside 14 for it, we'll get a full copy -- 15 COMMISSIONER SIDNEY LINDEN: I'm sorry, I 16 can't hear you, Mr. Falconer. 17 MR. JULIAN FALCONER: I apologize. If an 18 exhibit number could be reserved -- 19 COMMISSIONER SIDNEY LINDEN: Yes. 20 MR. JULIAN FALCONER: -- for it, we'll -- 21 we'll put a full copy in, would that be appropriate? 22 COMMISSIONER SIDNEY LINDEN: That's fine. 23 MR. JULIAN FALCONER: The document 24 entitled, The Promise? 25 THE REGISTRAR: P-1732, Your Honour.
3001 --- EXHIBIT NO. P-1732: Reserved. 2 3 CONTINUED BY MR. MARK SANDLER: 4 Q: Mr. Scullion asked you about Serpent 5 Mounds, and in response to his questions, you indicated 6 that you -- you expect, as part of the framework that 7 consideration would be given to the treatment of other 8 Aboriginal-related incidents. 9 So that, for example, in today's day and 10 age, if a Serpent Mounds were occurring contemporaneously 11 with an Ipperwash, you'd expect that those are matters to 12 be considered by those involved in the critical incident; 13 am I right? 14 A: That's correct. 15 Q: And I take it another way in which 16 that kind of comparative analysis would occur, is that 17 for every level 2 incident and every critical incident 18 that now occurs, there's a mandatory review, right? 19 A: Correct. 20 Q: And what would you expect would occur 21 at that mandatory review insofar as discussion takes 22 place about like incidents? 23 A: Well, they'd be doing compare -- I 24 mean, it's a best practices exercise in looking for 25 comparators of issues so that you can build your capacity
3011 and understanding on -- on issues you should be aware of 2 or things you may think about. 3 Q: And I take it that process would be 4 enhanced by the fact that you now have shrunk the number 5 of Level 2 Incident Commanders and indeed there's also a 6 very small number of POU Commanders so that -- that 7 facilitates the sharing of that kind of information in a 8 small group. 9 Is that fair? 10 A: That's correct. Absolutely. It's a 11 smaller group and they would be easier to learn from each 12 other. 13 Q: All right. Now I'm just going to ask 14 you several questions about Dyke and Whitehead. Officer 15 Dyke, you indicated, had his contract terminated and just 16 to be clear, you said that that was at the instance of 17 the OPP that he did not work another day regardless of 18 how many days were left on his contract. Is that right? 19 A: That's correct. 20 Q: And I take it in the ordinary course, 21 these contract officers are often renewed as well. 22 A: That's correct. 23 Q: Any consideration given to renewing 24 his contract? 25 A: No.
3021 Q: Quite clear as to that? 2 A: Clear. Very clear. 3 Q: And in relation to Officer Whitehead, 4 you described the factors that informed the decision was 5 made about what informal discipline would be imposed upon 6 him. 7 And one of the other factors that I do 8 wish to bring through you to Commissioner Linden's 9 attention is the jurisprudence on the area. Could you 10 speak to that briefly? 11 A: Just in terms of when we make 12 decisions around those types of issues, we look to what 13 the other case law would tell us. And I felt that in the 14 combination it was consistent with what the case law was. 15 Q: And again without trying to summarize 16 all of the jurisprudence in this area, you're familiar 17 for example with the Deviney (phonetic) Decision. 18 A: Yes. 19 Q: And -- and as well the appellate 20 rights that exist to OCCOPS and in a very general way 21 could you describe how the sentencing or penalty 22 decisions by your adjudicator compare with -- with OCCOPS 23 in these kinds of issues? 24 A: We find in our -- that our 25 adjudicators are -- are usually -- their decisions are
3031 usually tougher than the appeal processes. 2 Q: All right. Now I'm going to ask you 3 one question about the -- the T-shirts that were more 4 recently brought to your attention. And you've expressed 5 through counsel how shocked and appalled you were by both 6 the discovery of that T-shirt at this stage and its 7 character. 8 And you've given your evidence as to that. 9 Mr. Millar asked you about the fact that there is an 10 ongoing investigation and as a result no -- no other 11 action can be taken at this time. 12 Is there action contemplated in relation 13 to the Force as a whole that would follow the completion 14 of that investigation? 15 A: Yes. In -- in His Honour's ruling he 16 had indicated request of me to consider in terms of 17 having the memorabilia, I believe he said, destroyed or 18 whatever. 19 And I am prepared to do that but I will 20 not do it until the investigation is finished because 21 it's evidence at the moment. 22 Q: So as a matter of fact, I mean, that 23 material has already been drafted to go out to all -- 24 A: Yes. 25 Q: -- police officers but that you don't
3041 want to direct police officers to destroy items when an 2 investigation is ongoing? 3 A: That's correct. 4 Q: That might pose a little bit of a 5 problem. All right. 6 COMMISSIONER SIDNEY LINDEN: Thank you. 7 8 CONTINUED BY MR. MARK SANDLER: 9 Q: You made reference to a role that 10 Karen Mock had -- had played in relation to evaluation of 11 work being done by the OPP. 12 Could you just explain to His Honour what 13 -- what that was? 14 A: In her former capacity with the 15 Centre for Race Relations, we had some involvement with 16 her, invited her or her staff to come up and sit in on 17 the Native Awareness training. And I believe some staff 18 members did that. 19 And I had some -- a meeting with her and 20 there is some work and some discussions taken place at 21 the time between our academy and our First Nation 22 programs. 23 Q: Thank you very much. Those are all 24 the questions I have. Thank you, Commissioner. 25 COMMISSIONER SIDNEY LINDEN: Thank you
3051 very much, Mr. Sandler. Do you have any re-examination? 2 MR. DERRY MILLAR: Commissioner, no I 3 don't. I wish to -- 4 COMMISSIONER SIDNEY LINDEN: Okay. Just 5 before you thank her, I would like to say something. 6 If you wouldn't mind, before you leave, 7 Commissioner, if you wouldn't mind speaking to Mr. 8 Falconer to see the area that he wished to raise at the 9 end that I didn't let him. 10 If it's important and if he could do it 11 expeditiously, I'm prepared to consider it. After two 12 (2) years I don't want to cut somebody off who has 13 something that's important and can be done expeditiously. 14 So I'd be grateful, Mr. Millar, if during 15 the break you would speak to him and if it is I'll be 16 prepared to hear it. So if you would stay just for a few 17 minutes. 18 We're going to take a short break now. 19 MR. DERRY MILLAR: Okay. 20 COMMISSIONER SIDNEY LINDEN: Thank you. 21 THE REGISTRAR: This Inquiry will recess. 22 23 --- Upon recessing at 3:31 p.m. 24 --- Upon resuming at 3:39 p.m. 25
3061 THE REGISTRAR: This Inquiry is now 2 resumed. Please be seated. 3 COMMISSIONER SIDNEY LINDEN: I understand 4 you have less than five (5) minutes, Mr. Falconer? 5 MR. JULIAN FALCONER: That's correct. 6 COMMISSIONER SIDNEY LINDEN: That's fine 7 then, I'm not going to become arbitrary after two (2) 8 years so we'll hear you five (5) minutes. 9 MR. JULIAN FALCONER: Well, you're very 10 fair, Mr. Commissioner, thank you for that. 11 12 CONTINUED CROSS-EXAMINATION BY MR. JULIAN FALCONER: 13 Q: I'm going to -- I -- I've got a 14 transcript that is -- is up on the screen that I -- in 15 talking to your counsel, Commissioner Boniface, it may be 16 easier for you to focus this right down to the issue, 17 which is this. 18 On May 9th, 2006, former Staff Sergeant 19 Lacroix who headed CMU on September 6th, 1996, testified 20 in answer to questions I asked him about the unexpected 21 reaction of the crowd he was seeking to manage as leader 22 of the Crowd Management Unit and I had asked him and he 23 had sort of drawn a contrast from a soccer crowd or 24 Stanley Cup hockey crowd, just so the soccer crowd knows 25 hockey crowds do it too and -- and that -- and in the
3071 Aboriginal context where people are defending what they 2 believe is an ancestral right or protecting what they 3 believe they should be protecting for their children. 4 And he said it was a very different crowd 5 and he said that the training relation to that issue had 6 not been anything he had received. 7 Now I know that the Public Order Unit is a 8 new philosophy. Now, you did give some evidence to Mr. 9 Millar about this issue but could I ask you, from the 10 perspective of what we know so far about what Public 11 Order Unit is being trained on, first of all at the 12 present time the Public Order Unit specifically as a 13 group is not being trained on the issue of crowd control 14 as it relates to Aboriginal occupations; is that true? 15 A: I can't tell you the answer for that. 16 Q: All right. Would you agree with me 17 that Staff Sergeant Lacroix's -- and I can take you 18 through his evidence; I'm trying to do this short form -- 19 A: That's okay. 20 Q: -- would you agree with me that Staff 21 Sergeant Lacroix's evidence rings rather true that -- 22 that people with this level of First Nations ties to the 23 lands and to the issues you would expect them to react 24 differently than a crowd brought together over a sporting 25 event that had run amok?
3081 A: Yes. 2 Q: And so would you agree with me that 3 to the extent there isn't a training component worked 4 into the Public Order Unit training specifically to 5 address the different issues that the Aboriginal 6 communities in an occupation setting might rise there 7 should be? 8 A: Can I just clarify because I want to 9 make sure I'm clear in this. 10 In the -- the Public Order Units are 11 emergency response trained. They get the Native 12 Awareness Course as the first week of their nine (9) week 13 course. 14 Q: Yes, that's right. 15 A: In the context of that issue there's 16 a land claim treaty issue. Whether -- or discussion 17 that's led. Whether the next eight (8) weeks 18 specifically goes into those issues I can't -- I can't 19 get into that detail for you but -- 20 Q: And -- and that's fair, but to the 21 extent it isn't there would you agree with me it should 22 be? 23 A: Absolutely. 24 Q: And where -- I -- I want to end with 25 this is to -- to ask you this. One (1) of the quite
3091 compelling things that Staff Sergeant Lacroix said was 2 that, you know, we've traditionally been used to, you get 3 their leader and they disband. 4 And I had asked him, I said, but that's in 5 circumstances where the crowd isn't related to their 6 leader, that each family member -- and he had actually 7 went on to testify that this was a -- a very unique 8 aspect to -- 9 A: Hmm hmm. 10 Q: -- for example the First Nations 11 occupations, that these people are tied by family and 12 ancestry together and getting their leaders, so to speak, 13 is not what is going to diminish their resolve? 14 A: Yes. 15 Q: And you'd agree with me that that 16 would be a matter that would uniquely be dedicated to the 17 Public Order Unit as an issue rather than just general 18 Native awareness training; would you agree? 19 A: That -- that's correct. 20 Q: Okay. 21 A: And as part of the integrated 22 response mechanism the Incident Commander would be 23 working with the Aboriginal Liaison Officer and that 24 would be one (1) of the issues stressed. So at the 25 actual incident that would be -- they would be seeking
3101 that advice from Inspector George. 2 Q: And that would become the sensitive 3 person, the incident commander, working with potentially 4 a First Nations person that can educate them but the 5 people in charge of Crowd Management, right, at the Crowd 6 Management level, and I know it includes an incident 7 commander now -- 8 A: Yes. 9 Q: -- and the people involved, would you 10 agree with me, they should be trained on these issues? 11 A: I would agree with you and I -- what 12 I'm -- my point would be is I think when they do the 13 scenarios, they do two (2) scenarios as part of their 14 training. I believe that they would cover off that in a 15 scenario. 16 To the extent that they don't cover it 17 off, I'm happy to take a look at it and make sure it's 18 closed off for you. 19 Q: Thank you. And I thank you, Mr. 20 Commissioner, for you indulgence. 21 COMMISSIONER SIDNEY LINDEN: Thank you, 22 Mr. Falconer. Thank you, Mr. Falconer. 23 MR. JULIAN FALCONER: I hope that was 24 important enough. 25 COMMISSIONER SIDNEY LINDEN: I think it
3111 was important. 2 MR. JULIAN FALCONER: I had some 3 trepidation when you underlined importance. 4 COMMISSIONER SIDNEY LINDEN: No, that was 5 important. Thank you, Mr. Falconer. 6 MR. JULIAN FALCONER: Thank you. 7 MR. DERRY MILLAR: Commissioner, I wish 8 to -- I have no re-examination. I wish to thank 9 Commissioner Boniface for coming today and yesterday and 10 giving her evidence. 11 COMMISSIONER SIDNEY LINDEN: I'd like to 12 do the same. Thank you very much for coming and giving 13 us your evidence. 14 THE WITNESS: Thank you, Your Honour. 15 16 (WITNESS STANDS DOWN) 17 18 COMMISSIONER SIDNEY LINDEN: We will now 19 move on to our next witness. 20 MR. DERRY MILLAR: Yes. If we could just 21 have two (2) minutes to clear some of the material off 22 that desk then we can -- 23 COMMISSIONER SIDNEY LINDEN: Should we 24 just stay in place? 25 MR. DERRY MILLAR: Sure. I would just
3121 stay in place. 2 COMMISSIONER SIDNEY LINDEN: Let's just 3 stay in place. 4 5 (BRIEF PAUSE) 6 7 COMMISSIONER SIDNEY LINDEN: Good day, 8 sir. 9 10 (BRIEF PAUSE) 11 12 COMMISSIONER SIDNEY LINDEN: I would like 13 to break this afternoon, Mr. Millar, some time around 14 five o'clock, if you would keep that in mind. Some time 15 around five o'clock. A few minutes before or after is 16 fine, but I don't want to go too late. 17 MR. DERRY MILLAR: Yes, sir. 18 COMMISSIONER SIDNEY LINDEN: I think when 19 we start at nine o'clock in the morning, breaking at 5:00 20 is okay. 21 MR. DERRY MILLAR: Yes, sir. 22 23 (BRIEF PAUSE) 24 25 MR. DERRY MILLAR: Can we place before
3131 the witness, P-1052 and P-1051 as well, please. 2 3 (BRIEF PAUSE) 4 5 MR. DERRY MILLAR: And Mr. Registrar, 6 perhaps we will administer the Oath again. 7 THE REGISTRAR: Very good, sir. 8 9 THOMAS O'GRADY (Recalled), Sworn 10 11 MR. DERRY MILLAR: Commissioner, just for 12 everyone's benefit, we've -- the last time that -- when 13 Mr. O'Grady was here in August of 2005, it was agreed 14 that he would return after the discipline issue was dealt 15 with to deal with all questions that related to 16 discipline and that is why he's back today. 17 COMMISSIONER SIDNEY LINDEN: Thank you 18 very much. 19 20 CONTINUED EXAMINATION-IN-CHIEF BY MR. DERRY MILLAR: 21 Q: Now, Commissioner, I mean, Mr. 22 O'Grady, the -- at some point in time after September 23 1995, you learned that there were memorabilia that had 24 been created with respect to the events at Ipperwash 25 Provincial Park?
3141 A: That is correct. 2 Q: And can you tell us when you learned 3 about that, sir? 4 A: I'm not sure of the -- the exact 5 date. 6 Q: Perhaps I could assist you in this 7 way. The -- there is a -- did you learn about it before 8 the investigation or after the investigation? 9 A: I think that there was even public 10 comment about it before the investigation and the 11 investigation was underway and I would have learned about 12 it probably just before any media reports on it. 13 Q: Because if you look at Tab -- I know 14 it's a long time ago. If you look at Exhibit P-1051, 15 sir, at Tab 17. 16 At Tab 17 is the report of the 17 investigation with respect to a number of issues. And we 18 know now that this was a -- what's been unredacted from 19 this document is the name of the investigator, it was 20 Sergeant Adkin. 21 And this report is dated January 8th, 1996 22 and it deals with a number of items; an arrow on an OPP 23 cruiser door, offensive items on a blackboard, newspaper 24 cartoons, beer can, coffee mugs, T-shirts and Park 25 policy.
3151 And does this assist you, the date of the 2 report, as to when you may have learned about this, sir? 3 A: It would be likely before the date of 4 the report. Some of the items I learned about, some of 5 the issues I learned about at different times. 6 Q: Okay. And the -- what was your -- I 7 take it that at some point you received the -- did you 8 receive the -- the report that appears at Tab 17? 9 A: I'm not sure that I did. 10 Q: And at some point in time were you 11 shown the T-shirts and the mugs -- or at least 12 photographs of the T-shirts and mugs that, among other 13 things, had been produced? 14 A: I was shown photographs. 15 Q: And up on the screen is a copy of 16 Exhibit P-458 which is the -- a copy of the -- a T-shirt. 17 And is this the T-shirt that you saw back in 1996? 18 A: I believe it is. My recollection was 19 that the word 'Ipperwash' was there, that there was a 20 feather on the bottom and that there was an indication of 21 two (2) OPP units and the year, '95. 22 Q: And what was your reaction when you 23 saw this -- the logo on this T-shirt, sir? 24 A: Well, I thought it was extremely 25 inappropriate given that it related to a very tragic set
3161 of circumstances and a death, and I felt it was most 2 inappropriate and I was aware that an investigation was 3 ongoing. 4 Q: And did -- what did the feather, that 5 appears on the logo, lying on its side mean to you, if 6 anything, sir? 7 A: I -- I -- basically I had no idea of 8 the significance of a feather on its side. I did, and I 9 was very aware that First Nations have great reverence 10 for the Eagle feather, and so any misuse or 11 misrepresentation of what might be construed as an Eagle 12 feather would be seen as very inappropriate. 13 Q: And the -- on the screen is now a 14 copy of the -- on the top there's a mug that has the OPP 15 crest, Team Ipperwash '95, and at the bottom there's a 16 second OPP shoulder flash with an arrow through it that - 17 - we understand there was some mugs prepared with that 18 crest on it as well. 19 And did you see this photograph? 20 A: Yes, I did. 21 Q: And what was your reaction when you 22 saw the photographs of the -- the mug and the -- the 23 flash with an arrow through it? 24 A: Well, basically the -- the same 25 reaction as I had to the one with the feather on it,
3171 given that the arrow was going through the OPP flash. 2 Again, I just thought it was very disrespectful and 3 inappropriate. 4 Q: And when were you apprised, sir, with 5 respect to -- were you apprised, actually, at some point, 6 that there was a -- there had been prepared an arrow -- 7 there had been a -- an OPP cruiser with a bull's eye on 8 it and a -- an arrow stuck on the side? 9 A: It would be sometime after I had seen 10 these; and I can't recall the exact date, but it would be 11 sometime after that. And I guess, from my point of view, 12 I saw these issues as, sort of, lumped together -- 13 Q: And -- 14 A: -- as being inappropriate behaviour. 15 Q: Pardon me, sir? 16 A: As being inappropriate behaviour. 17 Q: And the -- again, there were some 18 offensive items on a blackboard, some newspaper cartoons, 19 then, as well, a beer can that had an OPP yellow tape 20 around it with the feathers in it and a hole; were you 21 apprised of that, sir? 22 A: I don't recall cartoons, but I 23 certainly recall the issue of the can and the hole in it 24 and feathers and I believe some yellow OPP tape used for 25 -- usually for securing scenes.
3181 Q: And what role, if any, did you play 2 in the decision with respect to what discipline should be 3 -- should be meted out, if any, with respect to these 4 issues? 5 A: Well, at some point in time the 6 Director of Professional Standards Branch, who reported 7 directly to me, would have come to my office and 8 described the results of the investigation and would have 9 proposed a course of action that would have been his 10 advice as to the process that should be taken, for my 11 information. 12 At that particular time, in considering 13 the issue, with respect to the first two (2), the T- 14 shirts and the mugs, it was in the scope of my knowledge 15 that over the years, that when OPP forces gathered in any 16 -- any place for a project or for any large gathering 17 with respect to activities, it wasn't -- it was the usual 18 thing that some type of memorabilia to commemorate that 19 was made. 20 So it wasn't -- it wasn't a surprise to me 21 that something of -- of the nature of memorabilia would 22 be made. So the first concern I had was that, as an 23 organization, and when I say, "as an organization," since 24 I'm responsible for it myself, I felt that I had failed 25 in ensuring that there was perhaps some stricter policy,
3191 I suppose, over the years, since nothing 2 of this nature had come to my attention, I didn't see it 3 as being an issue. But I should have foreseen that if we 4 had a gathering of that size, that somebody is likely to 5 do something that's inappropriate without some guidance. 6 So I felt that we should have had some policy and that 7 responsibility came back to me. 8 Secondly, because of the very contentious 9 nature of the issues at Ipperwash, again, I should have 10 realized that there could have been some inappropriate 11 memorabilia made up. And I should have issued a direct 12 order at that time, warning people of the sensitivity of 13 the activities that they were involved in and the 14 possibility of bringing disrepute on the force, simply 15 because I knew that something of that nature -- I should 16 have remembered that something of that nature was a 17 distinct possibility. 18 I did neither one of those things and as a 19 result I felt that that was an organizational failing of 20 the OPP, and that people had not been properly advised of 21 the pitfalls of these sorts of things in advance, which 22 might have prevented it. 23 So I found that that was an organizational 24 failing and the organization should accept it. In 25 addition to that, I -- I felt that it was extremely
3201 disrespectful. And being in charge of the -- of the -- 2 of the force, I felt that, as the Commissioner, I owed a 3 -- an apology to -- to Mr. George, to the George family, 4 and to the First Nations community -- the whole First 5 Nations community across Canada. 6 And to attempt to address these issues, I 7 did require a policy which was eventually put in place 8 that would tighten the rules on use of this type of thing 9 as far as the use of force insignia, and that the policy 10 indicated that authority had to be obtained from the 11 Commissioner through the Commissioner's representatives, 12 the regional or Deputy Commissioner; Regional Commander 13 or Deputy Commissioner. 14 I also prepared a letter of apology to Mr. 15 George and had it delivered by the current Commissioner, 16 who it was my clear understanding had a good relationship 17 with Mr. George, and if she delivered the letter to him 18 it would be -- be well received. 19 And in addition to that, I felt that I 20 should reduce it to writing, that verbally saying 21 something is one thing, but I wanted him to have 22 something in writing that was clear and unambiguous as to 23 the apology. 24 And lastly, I required -- or had media 25 releases go out, which were published quite widely, that
3211 I had apologised to the George family and to the First 2 Nations community across Canada. 3 And that was widely broadcast. 4 Q: And as well, as I understand it, as 5 part of the institutional response, you created the 6 Commissioner select Council on Aboriginal Affairs? 7 A: I did, and I did that in consultation 8 with the current Commissioner who, in actual fact, was 9 the individual who suggested that this would be a good 10 process. And having adopted the idea that we would form 11 such a Council, we then contacted various respective 12 people in the First Nations community, and had 13 conversations with them as to the best way to go about 14 it. 15 And I believe that we had about five (5) 16 members of the First Nations community on the 17 Commissioner's Select Committee on First Nations Affairs. 18 In addition to that, and it was wise that 19 I had consulted with First Nations, because they were 20 very insistent that they always like to maintain a 21 connection with the Federal Government, for whom they 22 believe have a fiduciary responsibility for First 23 Nations, and this -- this was resolved by having the RCMP 24 officer who was responsible for Ontario at that time, 25 also sit on the Council.
3221 And that Council was set up to exchange 2 ideas to have the First Nations representatives learn 3 more about the Ontario Provincial Police. But the main 4 benefit was to -- to me, and to members of the OPP, to 5 gather advice in -- in -- for future activities that 6 might involve First Nations and the police. 7 Q: And, as well, as I understand it, 8 there was created a Native Awareness training program? 9 A: Yes. The Native awareness program 10 began, in fact I think we were already doing that, but 11 certainly after Ipperwash we speeded up the process to 12 attempt to, firstly, give priority to those officers that 13 were interacting with First Nations, but the idea was to 14 generally spread the -- the four (4) day First Nations 15 awareness program out across the province. 16 Q: And lastly, there was a -- a 17 resolution passed by the Chiefs of Police with respect to 18 land claims that -- I think that you brought forward to 19 the Chiefs of Police? 20 A: Yes. I believe I was the -- on the 21 executive of the president of the Canadian Association of 22 Chiefs of Police at that time, and we discussed it as a 23 group. And we were very much of the view that while the 24 First Nations and the police very often came in contact 25 over these things, and very often in very contentious
3231 nature, that certainly, the police could not resolve it, 2 and that if it was to be resolved, it would need to be 3 done by Provincial and especially Federal Governments 4 working in conjunction with -- with First Nations 5 leadership to resolve these issues. 6 In addition to that, the resolution 7 suggested that we should work more closely with those in 8 charge of First nations police services across Canada 9 and, in fact, many of the heads of First Nations police 10 services now are members of the Canadian Association of 11 Chiefs of Police and meet with them on a regular basis. 12 Q: And the resolution is -- you have it 13 in front of you -- 14 A: Yes. 15 Q: It's Exhibit P-622. 16 A: Yes. 17 Q: And it's entitled, "First Nations 18 land claims?" 19 A: Yes. 20 Q: Now, the result of the report, I 21 understand that your -- your view was that there was an 22 institutional failing and there needed to be an 23 institutional response. 24 But the -- the investigator found that the 25 arrow on the door was inappropriate, the beer can was
3241 inappropriate, that the -- but that the mugs and T-shirts 2 lacked sensitivity and -- but did not find that they were 3 -- they were lack of -- amounted to misconduct. 4 The investigator had recommended to 5 Superintendent Parkin at the time that the four (4) 6 officers involved in the mugs and not in -- the four (4) 7 officers involved in the beer can and the arrow, be -- 8 have non- disciplinary discussions, the -- or 9 Superintendent Parkin recommended that. 10 It's my understanding that recommendation 11 was not accepted, informal discipline was accepted -- was 12 proposed, and that for those four (4) officers there 13 would be an admonishment. And that was proposed. 14 Did you take part in any of these 15 discussions? 16 A: Well I was aware of -- of -- they 17 were brought to my attention by the Director of 18 Professional Standards in the normal course of events. 19 I -- I think -- my understanding was that 20 the -- the beer can and the feathers and the tape and the 21 arrow against the cruiser with the bull's eye, that it 22 was -- there were four (4) officers involved there. 23 I think there were three (3) Constables 24 and a -- and a Supervisor. The Supervisor's involvement 25 was that he saw what was happening and he did nothing.
3251 And so it's my understanding that those 2 four (4) were given informal discipline, which they 3 accepted. And part of that is that they admit or give an 4 understanding that they realize what they did was most 5 inappropriate and that it obviously was seen as racist, 6 and an indication that they understand that that -- that 7 they were wrong in what they had done. 8 They were also ordered to take the 9 remedial training at the Native Awareness courses. And 10 my understanding is that's what they did. 11 The -- there were as I understand -- as I 12 recall, three (3) officers, one (1) that was involved in 13 producing the T-shirts, and two (2) that were involved in 14 producing the mugs. And they were given remedial 15 discussion and counselling, and they were also ordered to 16 take the Native awareness training. And my understanding 17 is that, in fact, they did. 18 Q: So even though the investigator, with 19 respect to those officers, had not recommended any -- any 20 discipline, whether informal or non-disciplinary 21 discussions, that, in fact, those officers were spoken to 22 in non-disciplinary discussions and attended the Native 23 Awareness -- 24 A: As I recall, Professional Standards 25 did not agree with that recommendation and the
3261 information they gave to me was that the process would go 2 as I have just described. 3 Q: And as well, it's my understanding, 4 and at Tab 105 of the second book in front of you, Mr. 5 O'Grady, you'll find -- it's Volume II. At Tab 105 6 there's a letter, it's dated November 21st, 1996, and 7 this relates to discussions among senior -- the senior -- 8 senior officers involved at Ipperwash with respect to the 9 memorabilia. 10 And what role, if any, did you play in 11 bringing -- in the fact -- in the fact that the four (4) 12 officers, including John Carson, had non-disciplinary 13 discussions with a senior officer? 14 A: Well my understanding, during the 15 course of being briefed by the Director of Professional 16 Standards, was that during the course of the 17 investigation, the three (3) officers involved in the 18 production of the T-shirts and the mugs felt that they 19 had made requests or discussed with one (1) or all of the 20 four (4) officers what they were going to do with respect 21 to memorabilia, and they felt that they had been given 22 authority to go ahead, that that was okay. 23 Certainly the senior officers didn't see 24 it that way, but whether they liked it or not they had 25 allowed the situation to develop and had not curtailed
3271 it, and as a result discussions -- counselling was held 2 with them. 3 And again, the indication that I got, that 4 was with Deputy Commissioner Boose, who was their 5 immediate supervisor, and the feedback that I got was 6 that they had indicated that they fully understood and 7 that they realized that they had to be more vigilant in 8 the future. 9 I believe they also attended Native 10 Awareness Training. 11 Q: And was it your decision or Deputy 12 Commissioner Boose's decision that the four (4) officers 13 would be -- be spoken to by Deputy Commissioner Boose, as 14 he then was? 15 A: I think that Deputy Commissioner 16 Boose felt since he was responsible for that area, that 17 he was the appropriate officer to speak to them, and he 18 did. 19 Q: And with -- excuse me, with respect 20 to this issue -- I put in front you that little blue 21 book, that little book, the folder of -- of some 22 documents. 23 And there's a document, it's Exhibit P-998 24 and beside -- with it there should be P-999? I hope that 25 it's in order, sir? If it isn't I have another one
3281 that... 2 3 (BRIEF PAUSE) 4 5 A: I don't have a P -- 6 Q: Perhaps what we could do, sir, is if 7 you could take that blue one back and fold everything in 8 that blue folder together, I know what's happened, I've 9 added since I gave you that folder, and close it up and 10 on the right-hand side, on top of the Kleenex box there's 11 another folder and -- 12 A: 998? 13 Q: 998, the first document. And 998 is 14 a -- is a copy of Exhibit P-998, Inquiry Document 15 2001000? 16 A: Yes, I have it. 17 18 (BRIEF PAUSE) 19 20 Q: And this is an issue note that 21 appears to -- it's on April 3rd, 1996, and it refers to: 22 "Unofficial memorabilia bearing OPP 23 insignia was produced in relation to 24 the occupation of Ipperwash Provincial 25 Park in the fall of 1995. Development
3291 of these items were ad hoc initiatives 2 of individual members of the OPP. The 3 Professional Standards Bureau of the 4 OPP is conducting an investigation. 5 Enhanced training in cultural 6 sensitivity is being conducted and 7 related policies are under review. The 8 Special Investigations Unit is 9 investigating the death of Anthony 10 "Dudley" George, and in light of that 11 investigation and pending civil action, 12 further comment would be 13 inappropriate." 14 And this document P-998 was issued by your 15 office, sir? 16 A: Yes, it was. 17 Q: And sent down to -- do you know what 18 was done with it? In the normal course would it have -- 19 A: In the normal course of events it 20 would go to the Deputy Minister's office for distribution 21 to the Minister. 22 Q: And would it -- at the time, would a 23 document such as this have also been sent to senior 24 commanders, the regional commanders? 25 A: Not necessarily.
3301 Q: Depending on whether they needed it 2 or not? 3 A: Yes. 4 Q: And if you look on page 2, at the top 5 of the page, what is being responded to here, in 6 particular, is the -- the coffee mug and the T-shirt that 7 we've seen. And then it's noted that: 8 "The Professional Standards Bureau of 9 the OPP is conducting an internal 10 investigation. Investigation was 11 initiated in October 1995 after a 12 member of the public expressed concern 13 to an OPP officer. The member of the 14 public refused to make an official 15 complaint." 16 And that complaint became the internal 17 complaint by Superintendent Parkin? 18 A: That's correct. 19 Q: And then it goes on: 20 "The OPP has developed and is 21 delivering a four (4) day presentation 22 for members in relation to First 23 Nations culture and spirituality. 24 Members assigned to duties involving 25 First Nations people or detachments in
3311 proximity to a First Nation territory 2 would be given priority status to 3 receive this training, which is an 4 enhancement to the general cultural 5 awareness training given to all police 6 officers." 7 A: Correct. 8 Q: And that's the training that we just 9 spoke of? 10 A: Yes. 11 Q: And at 498 -- excuse me, the next 12 document's P-999, and I discussed this with -- or this 13 was discussed with Mr. Runciman when he was here. Do you 14 -- this appears to be a response prepared for a question 15 period in the House. 16 And did you have anything to do with 17 respect to the creation of P-999? 18 A: Not that I recall. 19 Q: Okay. And then the next document, P- 20 622, which we've discussed, the resolution with respect 21 to the Chief of Police. And the next documents' P-336, 22 and that is the apology that you spoke about earlier that 23 you gave to Mr. George? 24 A: Yes. 25 Q: And that you had asked, as you told
3321 us a few moments ago, that Commissioner Boniface -- you 2 asked Commissioner Boniface to deliver to Mr. George on 3 your behalf? 4 A: Yes. 5 Q: And the next document is P-620, and 6 this is Inquiry Document 1001252. And this is the 7 creation of a press release with respect to the creation 8 of the Council on Aboriginal Affairs? 9 A: Yes. 10 Q: And that's the Council that you've 11 just -- you spoke about earlier as part of the 12 institutional response? 13 A: Yes. It lists and it describes the 14 Council members at that particular time. 15 Q: And the next document is a document, 16 P-1000. And again, this one's dated December 18th, 1996 17 and it relates to the four (4) officers being -- 18 accepting admonishment as corrective action. And the -- 19 it would appear that -- from what we've learned now, that 20 the officers who received admonishment, were for the beer 21 can and arrow, which doesn't appear in this particular 22 document P-1000? 23 A: Yes, I believe that -- this document 24 is inaccurate in that regard. 25 Q: And the next document is P-1000 and
3331 there's also P-453. There's the -- P-1001 is December 2 26th, 1996 and I believe that's the Toronto Star article. 3 And I believe that the next, P-453, is the policy -- 4 apology issued for Ipperwash memorabilia, and that was 5 from the Sarnia Observer and the Canadian Press. 6 And I believe -- the date on that I don't 7 have, but in or around the same time. And this refers to 8 the general apology that you gave to aboriginal people? 9 A: Correct. 10 Q: And then the next document I have is 11 P-1002 which adds another line to the P-1000 MS Issue 12 note: 13 "Corrective action was taken against 14 four members of the OPP." 15 But again, this didn't distinguish between 16 the -- it referred just to the mugs and T-shirts and 17 didn't refer to the beer can? 18 A: Yes, T-shirts. 19 Q: And the last -- on the last page of 20 it there are two (2) other articles reproduced with 21 respect to the apology -- the general apology that you 22 gave? 23 A: Yes. 24 Q: And the next document is P-1723 and 25 it's a letter dated December 17th, 1996, and it is,
3341 again, part of the institutional response, the -- that 2 provides: 3 "That except where authorized by the 4 Commissioner, no OPP image shall be 5 created or released without the written 6 authorization of the respective 7 regional or bureau commander." 8 A: Yes. 9 Q: And this was intended to prevent the 10 use of the OPP crest or the OPP insignia without being 11 authorized by a senior member of the Force? 12 A: Correct. 13 Q: And again, that was part of the 14 institutional response? 15 A: Yes, it was. 16 Q: And the -- during the -- during the 17 time you were Commissioner, I believe you -- your last 18 day of -- as Commissioner was May 31st, 1998? 19 A: Officially, yes. 20 Q: Officially -- your official date of 21 retirement. And I'm showing you up on the screen, 22 there's a copy of P-1494 and it's a logo from a -- 23 another T-shirt that was recently came to the attention 24 of the Commission and was marked as an exhibit. 25 And during the period of time that you
3351 were Commissioner, did you -- were you aware of this T- 2 shirt? 3 A: I was not. I had no knowledge of 4 that. 5 Q: And when did you first become aware 6 that there was a T-shirt with this logo on it? 7 A: I think when I got some briefing 8 documents to attend here a few days ago. 9 Q: And so that -- prior to that, you had 10 no knowledge? 11 A: No, I did not. 12 Q: And what is your reaction, sir, as 13 having been the Commissioner at the time, in 1995, to 14 this -- to this logo? 15 A: Well, it's probably worse than all 16 the others that precede it. 17 Q: And why do you say that, sir? 18 A: Well, you have a broken arrow and you 19 have an anvil and it's certainly indicates a 20 confrontational approach between that particular unit of 21 the OPP and First Nations. 22 That's -- that's what I would derive if I 23 was looking at it and I'm certain that First Nations 24 would see it that way, also. 25 Q: And the symbol at the top, do you
3361 under -- recognize that as the TRU team symbol? 2 A: Yes, I do. 3 Q: And the broken arrow, what does it 4 signify to you? 5 A: Well, I think it indicates something 6 has been broken and if the -- if the arrow is supposed to 7 represent First Nations then the conclusion is 8 inescapable. 9 Q: And -- but during the period of time 10 -- you -- this had not -- this had not come to your 11 attention while you were Commissioner? 12 A: No, I had not seen it. 13 Q: Now, one thing that did come to your 14 attention was a pin that was produced after Ken Deane was 15 -- was convicted in -- on February 28th, 1997? 16 A: Yes. 17 18 (BRIEF PAUSE) 19 20 Q: Excuse me, sir, it was April 28th, 21 1997. 22 A: Okay, I know it was after he was 23 convicted. 24 25 (BRIEF PAUSE)
3371 Q: And up on the screen is a copy of 2 Exhibit P-1608, or a photograph of P-1608, the pin. And 3 when did yo become aware of the -- the pin had been 4 created, sir? 5 A: I'm not sure of the date. I -- 6 having learned that it was the subject of discussion 7 here, I searched my brain to -- to think if I could 8 remember back to anything about it. And the best that I 9 can recall, I'm not sure exactly when it was, but I think 10 it must have been some time in the early spring or spring 11 of 1997 and I attended a meeting with representatives of 12 the OPPA in Belleville and I know that the pin was 13 discussed at that point. 14 And whoever brought it to my attention by 15 the OPPA -- OPPA, certainly knew that to wear anything on 16 your uniform required the Commissioner's authority and 17 that was the reason for bringing it to my attention. 18 Would this be something that could be worn 19 on the uniform because it was being sold to raise funds 20 on behalf of Mr. Deane's appeal. And I indicated then 21 verbally that I would not be giving permission for it to 22 be worn on the uniform; that it should not be and I think 23 I indicated my reasons why. 24 When I returned to the office, I caused a 25 memo to be written which I signed, just so there would be
3381 no mistake as to what my direction was. And that memo 2 was subsequently circulated. 3 Q: To the -- to the members of the 4 Force? 5 A: Yes. 6 Q: And do you recall today -- we have 7 been unable to locate a copy of the memorandum, sir, but 8 do you recall today your reasons for not -- directing 9 that the pin not be worn on a uniform of a police 10 officer? 11 A: Well, it was my feeling that an 12 officer wearing that pin, and should they encounter a 13 First Nations person in the course -- ordinary course of 14 an investigation and the First Nations person was aware 15 of -- of the background for creating the -- the pin, or 16 what the pin stood for, would certainly -- could 17 certainly form the opinion that they might not get a -- 18 an appropriate investigation or assistance or whatever 19 might be required from the OPP at that time, that they 20 could form that -- that view that the OPP was biassed in 21 that area. 22 And that's why I asked them to not be worn 23 on the uniform. 24 Q: And I've put in front of you a copy 25 of Exhibit P-1725, that simply records that on May 13,
3391 1997 there was a memo to all members: 2 "Request pins for Acting Sergeant Deane 3 be neither worn or produced." 4 And do you recall asking that they not be 5 produced, sir? 6 A: I don't specifically recall that. 7 There was some -- some doubt in my mind. I thought that 8 I could -- that I had the authority, and believed that I 9 had the authority to order it not to be worn on the 10 uniform, but what people put on their own private clothes 11 might not be subject to my authority. 12 My feeling was that the -- the only way it 13 would arise is if somebody was in -- not in uniform and 14 wearing it and was the subject of a complaint by somebody 15 who was offended by it. And if that was to occur, then 16 it would be investigated with respect to discipline in 17 the -- in the service, and results -- each case would 18 produce an individual result. 19 Q: And, excuse me for a minute, sir. 20 21 (BRIEF PAUSE) 22 23 Q: The next document -- the next, excuse 24 me, the next document in the pile is a copy of Exhibit P- 25 172. And this is an issue note that is dated August
3401 20th, 1997 and it refers the Ken Deane Defence Fund pin. 2 "Wearing of the pin as part of the OPP 3 uniform has not been authorized by the 4 Commissioner of the OPP. Any officers 5 wearing this pin could face 6 disciplinary action." 7 And it goes on to say that: 8 "The OPPA is advertising on the 9 internet the sale of Ken Deane Defence 10 Fund pin to its members. Pins are 11 being sold to assist in funding the 12 appeal for Ken Deane. The regular OPP 13 uniform is stipulated in Part 2, 14 Section 15.1 and 15.2 police orders, 15 any deviation from this uniform must be 16 approved in advance by the 17 Commissioner." 18 And was that document created and 19 distributed by your office, sir? 20 A: Yes, it was. 21 Q: And that's -- that would go to the 22 Solicitor General? 23 A: Yes, it would. 24 Q: Do you know if that document was well 25 circulated to your senior commanders?
3411 A: I believe it was. 2 Q: And again, that was you response to 3 the potential wearing of the pin on the uniform? 4 A: Yes. 5 Q: And the -- we've heard some evidence 6 that there was produced I -- a T-shirt, "I support Ken 7 Deane," and were you aware of that, sir? 8 A: No. 9 Q: And that T-shirt, which we have a 10 photograph that I can't seem to put my finger on at the 11 moment, it was a photograph that said, "I support Ken 12 Deane," and had a copy of the TRU Team logo on one (1) -- 13 it was a short-sleeved shirt, so one (1) arm, and the 14 Bomb Unit Guy Fox logo on the other arm. 15 And that's -- that -- you were not aware 16 of that, sir? 17 A: I was not aware of it. 18 Q: And we've heard some evidence that 19 serving officers assisted Norm Peel in the -- as part of 20 their duties with respect to the defence of Kenneth 21 Deane... 22 23 (BRIEF PAUSE) 24 25 Q: Well, My Friend's right, it's not
3421 this -- 2 COMMISSIONER SIDNEY LINDEN: It really 3 isn't discipline. 4 MR. DERRY MILLAR: I -- I accept that. 5 6 CONTINUED BY MR. DERRY MILLAR: 7 Q: Now at P-1053 the -- there's a copy 8 of the complaint form with respect to Constable Cossitt. 9 And were you -- have you seen this before, or were you 10 aware of this back in 1997? It should be the last 11 document there, sir. 12 A: Yes, I've got the document. I'm not 13 aware of the document but I was briefed on the Cossitt 14 matter. 15 Q: And what were you told about the 16 Cossitt matter back in -- is this back in 1997, sir? 17 A: Yes. 18 Q: And what were you told about the 19 Cossitt matter? 20 A: Well, I was made aware of the fact 21 that the presiding judge at the Deane trial had indicated 22 that he believed that Cossitt had fabricated evidence; 23 that was his view. 24 It was investigated through Professional 25 Standards Branch and again, I would imagine was the
3431 Director of Professional Standards Branch that would have 2 briefed me. 3 As my memory serves me, he indicated that 4 the -- the main allegation would be one of perjury and 5 that he had received legal advice from a lawyer within 6 Professional Standards Branch. 7 And there were a number of reasons that he 8 felt they shouldn't proceed on it. I recall him 9 indicating that his legal advice was that perjury was a 10 very complex issue, very difficult to prove and that he 11 thought there would be difficulty in this instance. 12 He, in all likelihood, although I can't 13 remember the reasons now, indicated that there were other 14 factors which led him to -- to provide the advice and 15 indicate that from his point of view, the -- the process 16 was going to end at that point. 17 And -- for the -- because of the distance 18 in between, I am not particularly aware of all of the 19 reasons but I know that in the end, I agreed with him. 20 When I reflect on this case and I have seen some of these 21 documents now, it seems to me that I would -- that I was 22 -- that I should have ordered an outside investigation, 23 another Police Force from outside simply because this was 24 a highly charged emotional issue. 25 And members of our Force felt very
3441 strongly about it and I think there could have been a 2 public view that -- that perhaps the OPP could not be 3 unbiased in their approach to it and I would have been 4 much better served had I asked an outside Police Force to 5 investigate and provide me with a -- a recommendation. 6 It may not have been any different than 7 the recommendation I got but I certainly would be on 8 firmer ground today had I done that. And in the normal 9 course of events, when those types of investigations are 10 done before the police windup their investigation, they 11 usually consult legal advice. 12 Especially focussed on the issue, so in 13 this issue it would be perjury, so that they would have 14 the best legal advice to support their investigative 15 conclusions before making a recommendation. 16 That's what I should have done, I did not. 17 Q: And at the time, sitting here today, 18 do you recall ever having seen P-1053, the documents 19 that compose it, sir? 20 A: I do not, other than having seen it 21 in the last day. 22 Q: Thank you, those are my questions, 23 Commissioner. 24 COMMISSIONER SIDNEY LINDEN: Thank you 25 very much. Does anybody wish to ask Commissioner -- I
3451 still call you Commissioner O'Grady. 2 Any questions? Mr. Rosenthal, Mr. 3 Falconer? Mr. Rosenthal how long might you be. 4 MR. PETER ROSENTHAL: About a half an 5 hour. 6 COMMISSIONER SIDNEY LINDEN: About a half 7 hour? And Mr. Falconer? 8 MR. JULIAN FALCONER: About the same, 9 half an hour. 10 COMMISSIONER SIDNEY LINDEN: About a half 11 hour. 12 MR. DERRY MILLAR: Okay, Mr. Rosenthal 13 will be thirty (30) minutes and Mr. Falconer will be 14 thirty (30) minutes. 15 Thank you very much -- 16 COMMISSIONER SIDNEY LINDEN: Thank you 17 very much. 18 MR. DERRY MILLAR: -- Mr. O'Grady. 19 COMMISSIONER SIDNEY LINDEN: You have a 20 witness for tomorrow? 21 MR. DERRY MILLAR: I have a witness for 22 tomorrow who's going to be very short. 23 COMMISSIONER SIDNEY LINDEN: Or -- 24 MR. DERRY MILLAR: I don't think -- 25 COMMISSIONER SIDNEY LINDEN: -- may be
3461 short. 2 MR. DERRY MILLAR: Well, I don't know. 3 May be short. 4 COMMISSIONER SIDNEY LINDEN: Yes. Would 5 it be all right if we -- you want to get done. I assume 6 you want to get finished and -- 7 THE WITNESS: I'm in your hands, sir. 8 COMMISSIONER SIDNEY LINDEN: No, I assume 9 you'd want to -- it's just late and I'm tired, but I 10 think we can at least do Mr. Rosenthal. 11 MR. DERRY MILLAR: Sure, or if 12 Commissioner O'Grady's going to come back tomorrow 13 morning -- I'm in your hands, sir. 14 COMMISSIONER SIDNEY LINDEN: Are you 15 available to come back tomorrow morning? 16 THE WITNESS: Yes, I am. I'm retired, 17 sir. 18 COMMISSIONER SIDNEY LINDEN: Yes. If we 19 can do him in one (1) hour, half hour for Mr. Rosenthal, 20 and a half hour for Mr. Falconer and get to your next 21 witness at ten o'clock, would that be okay? 22 Do you think you'd be able to complete 23 your witness in one (1) day tomorrow, starting -- 24 MR. DERRY MILLAR: Oh, yeah -- 25 COMMISSIONER SIDNEY LINDEN: -- at 10:00?
3471 MR. DERRY MILLAR: -- we -- for sure. 2 It's -- he's -- we should. 3 COMMISSIONER SIDNEY LINDEN: Well, I 4 would like that. If we could possibly do that, then I 5 would prefer to adjourn now. 6 MR. DERRY MILLAR: Thank you. 7 COMMISSIONER SIDNEY LINDEN: When we 8 start at nine o'clock I find I start getting tired now at 9 4:00, 4:30. So if it isn't absolutely necessary, I'd 10 like to adjourn. 11 MR. DERRY MILLAR: If necessary we'll sit 12 until we'll done tomorrow night. 13 COMMISSIONER SIDNEY LINDEN: We'll stay - 14 - we'll stay here tomorrow until we finish that witness. 15 So now we will adjourn until tomorrow 16 morning at nine o'clock. 17 MR. DERRY MILLAR: Thank you very much, 18 sir. 19 THE REGISTRAR: This Public Inquiry is 20 adjourned until tomorrow, Friday June the 16th, at 9:00 21 a.m. 22 23 (WITNESS RETIRES) 24 25 --- Upon adjourning at 4:36 p.m.
3481 2 3 4 Certified Correct 5 6 7 8 9 10 ___________________________ 11 Carol Geehan 12 13 14 15 16 17 18 19 20 21 22 23 24 25