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 16th, 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 ) (np) 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 ) Point First Nation 23 Colleen Johnson ) (np) 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. ) (np) 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 ) (np) 25 Patrick Greco ) (np)
61 APPEARANCES (cont'd) 2 3 David Roebuck ) (np) Debbie Hutton 4 Anna Perschy ) (np) 5 Melissa Panjer ) (np) 6 Adam Goodman ) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
71 TABLE OF CONTENTS 2 PAGE NO. 3 List of Exhibits 8 4 Opening Comments 9 5 6 THOMAS O'GRADY (Recalled), Resumed 7 Continued Cross-Examination by Mr. Julian Falconer 10 8 Continued Cross-Examination by Mr. Peter Rosenthal 54 9 Continued Cross-Examination by Mr. Mark Sandler 80 10 Continued Re-Re-Direct Examination by Mr. Derry Millar 87 11 12 JOHN CARSON (Recalled), Sworn 13 Continued Examination-In-Chief by Mr. Derry Millar 94 14 Continued Cross-Examination by Mr. Peter Rosenthal 98 15 Continued Cross-Examination by Mr. Julian Falconer 125 16 Continued Cross-Examination by Mr. Mark Sandler 188 17 18 19 20 Certificate of Transcript 194 21 22 23 24 25
81 EXHIBITS 2 No. Description Page 3 P-1733 Toronto Globe and Mail article "After 4 Stonechild: Rebuilding Trust," October 5 29, 2005. 54 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
91 --- Upon commencing at 9:02 a.m. 2 3 THE REGISTRAR: This Public Inquiry is 4 now in session, the Honourable Mr. Justice Linden 5 presiding. Please be seated. 6 COMMISSIONER SIDNEY LINDEN: Good 7 morning. 8 MR. DERRY MILLAR: Commissioner -- 9 COMMISSIONER SIDNEY LINDEN: Good 10 morning, everybody. 11 MR. DERRY MILLAR: -- before we begin I 12 just wanted to make an announcement about next week. 13 The -- on Monday we're going to have Stan 14 Thompson followed by Mrs. Hannahson and then we're going 15 to, on Tuesday when we're done with Ms. Hannahson, read 16 in the summary and file the exhibits with respect to 17 Kenneth Deane, and then do a summary with respect to Mrs. 18 Jago who has unfortunately passed away. And then the -- 19 on Thursday we were hoping to call the DND witnesses but 20 the -- for a variety of reasons that can't be done on 21 Thursday. They'll come on the following Monday which is 22 the 26th. 23 COMMISSIONER SIDNEY LINDEN: 26th. 24 MR. DERRY MILLAR: And -- and so we won't 25 be sitting next Thursday so I just wanted to let
101 everybody know. 2 COMMISSIONER SIDNEY LINDEN: And we're 3 not sitting Wednesday either. 4 MR. DERRY MILLAR: We're not sitting 5 Wednesday because of -- 6 COMMISSIONER SIDNEY LINDEN: Aboriginal 7 Day. 8 MR. DERRY MILLAR: -- it's National 9 Aboriginal Day and so we'll be sitting Monday and Tuesday 10 next week. 11 COMMISSIONER SIDNEY LINDEN: Thank you 12 very much, Mr. Millar. 13 COMMISSIONER SIDNEY LINDEN: I understand 14 that you two have switched order which -- 15 MR. PETER ROSENTHAL: That's what I 16 understand, sir. 17 COMMISSIONER SIDNEY LINDEN: That's fine. 18 19 THOMAS O'GRADY (Recalled), Resumed 20 21 CONTINUED CROSS-EXAMINATION BY MR. JULIAN FALCONER: 22 Q: Good morning, Mr. O'Grady. 23 A: Good morning, sir. 24 Q: It was a long time ago, but I'm still 25 Julian Falconer and I still act for Aboriginal Legal
111 Services of Toronto. 2 A: Yes, indeed. 3 Q: There were some documents sent by way 4 of notice to Commissioner Boniface and then sent lastly 5 last night to you and I just want to make sure you got -- 6 you got your copies -- 7 A: Yes, I have two (2), one (1) is -- 8 beginnings, heading, "Lack of Transparency." 9 Q: Yes. 10 A: And the other one is, "After 11 Stonechild." 12 Q: All right. What I propose to do is 13 I'll just distribute those copies. I have hard copies 14 here for the Commissioner and Commission Counsel. 15 MR. DERRY MILLAR: Perhaps I could rise 16 at this point just to -- Mr. O'Grady's back to deal with 17 discipline issues and the discipline files. 18 These -- both of these matters that My 19 Friend has submitted -- one's from 2005 October the other 20 is from May 11th, 2006. The Commissioner, former 21 Commissioner, retired in 1998 and I'm having some 22 difficulty understanding how this relates to these 23 discipline files and that's the only basis upon which he 24 was recalled. 25 MR. JULIAN FALCONER: When My Friend said
121 this -- I have half an hour so I -- the first thing is -- 2 COMMISSIONER SIDNEY LINDEN: Okay. I'll 3 stop the clock for a couple of minutes while you explain 4 to me why you need to ask these questions on the issue of 5 discipline. 6 MR. JULIAN FALCONER: Thank you. Thank 7 you. Okay. But I -- with great respect and I know we're 8 all trying to move quickly but with great respect I 9 haven't asked any questions yet. 10 And it's best -- and it's best for me to 11 ask a question based on a document; that way people know 12 where I'm going right away and it makes it easier. 13 Because otherwise we're sitting there discussing these 14 documents in the air and I'd rather not do that, I'd 15 rather start my questioning. 16 And if it's not relevant or it doesn't 17 appear to be relevant to the discipline issue then -- 18 then we dispense with it. But I assure you, Mr. 19 Commissioner, half an hour is half an hour and I'm only 20 interested in the discipline issue and that's where I'm 21 going. 22 COMMISSIONER SIDNEY LINDEN: That's all I 23 need to hear. That's fine. 24 MR. JULIAN FALCONER: Thank you. 25 COMMISSIONER SIDNEY LINDEN: Let's carry
131 on. 2 3 (BRIEF PAUSE) 4 5 CONTINUED BY MR. JULIAN FALCONER: 6 Q: Mr. O'Grady, you indicated that when 7 news of the memorabilia and I'm going to be general for a 8 moment, but news of the memorabilia first came to your 9 attention, you were offended; is that fair? 10 A: That's correct. 11 Q: And so I take it -- there are some 12 areas of your recollection, specifically I'm talking 13 about many months ago when you testified, where your 14 recollection was a little bit hazy. But I take it you do 15 have a pretty clear memory of how you reacted in your own 16 mind when this memorabilia came to your attention? 17 A: Yes. 18 Q: And that's because I -- I take it you 19 don't see or you're not offended in that way by the 20 actions of your officers everyday. 21 A: That's true and -- 22 Q: All right. And it's also fair to say 23 that the reason among other things, you chose to put an 24 apology in writing in the fashion that you did and have 25 it delivered by -- at the time Officer Boniface, was
141 because you wanted to send a message of how serious it 2 was to you. 3 A: That's true. 4 Q: And can you assist me. Just in terms 5 of timing, how would you -- based on your evidence 6 yesterday, can you give me a month and a year roughly 7 that would have happened; that you would have had your 8 first recollection of seeing the memorabilia, of it 9 coming to your attention? 10 A: I -- I'm not entirely sure. There 11 were some -- if -- if you go by the date on the letter it 12 would have been sometime before that. 13 Q: All right, fair enough. The date on 14 the letter is July 17th, 1996. 15 A: Yes. 16 Q: I -- do you basically -- I don't like 17 to use colloquials but you -- do you peg the -- the time 18 that this came to your attention with almost that letter 19 because you wrote the letter very quickly after? 20 A: Well, I think it would have been a 21 month or a few months before that -- before -- I think I 22 would have been waiting for the result of the 23 investigation to be sure of my grounds before I wrote the 24 letter. 25 Q: That's fair. All right. Now, the
151 reason I ask that is I want to -- I want to get a sense 2 of the timing. So in and around early 1996 you would 3 have had a sincere and deep appreciation of the 4 seriousness of the offensive memorabilia, yes? 5 A: Yes. 6 Q: And in and around early 1996 it would 7 have been clear to you that these were actions, that is 8 the actions of the officers in producing and distributing 9 the memorabilia, these would have been actions that in 10 your mind would bring the service into disrepute? 11 A: Absolutely. 12 Q: And those are two very clear thoughts 13 in your mind at the time; not today when you're 14 apologizing which I'm taking away from that, but -- but 15 then? 16 A: Yes. 17 Q: Okay. Clear in your mind? 18 A: Yes. 19 Q: All right. Now there's a -- an 20 excerpt of a transcript of the evidence of then-Solicitor 21 General Runciman who you in effect reported to; is that 22 fair? 23 A: Yes. 24 Q: All right. So I'm going to hand up a 25 copy. And I'm at January 11th, 2006, if Mr. Millar could
161 help me out in terms of the screen. I'm at January 11th, 2 2006, evidence of Mr. Runciman, page 21. 3 And for Mr. Sandler's purposes I'm giving 4 him a copy as well, but that means I don't end up giving 5 Mr. -- 6 COMMISSIONER SIDNEY LINDEN: Mr. 7 Falconer, when you walked away I'm sure that our 8 transcript wouldn't pick that up. 9 MR. JULIAN FALCONER: I apologize. 10 COMMISSIONER SIDNEY LINDEN: That's fine. 11 MR. JULIAN FALCONER: For Mr. Sandler's 12 purposes, I'm giving him a copy but it does mean I don't 13 give Mr. Millar a copy if that's -- Mr. Millar can follow 14 on the screen I appreciate it. 15 16 CONTINUED BY MR. JULIAN FALCONER: 17 Q: All right. Now, I'm -- we don't have 18 much time together this morning, which I suspect is not 19 the worst news you've ever heard, but in terms of process 20 what I'm going to do is take you through this transcript 21 as quickly as I can because I want to bring home to you 22 how the Solicitor General, who you reported to on this 23 issue, how he saw the issue as a result, in part, of your 24 reporting, all right? 25 Now, at page 21, line 4, do you remember -
171 - I'm asking you first, Mr. O'Grady, do you remember 2 going over yesterday with Mr. Millar Exhibit P-998, the 3 briefing note? 4 A: Yes, I believe I did. 5 Q: And -- and -- and you went over with 6 Mr. Millar the accuracy of that briefing note? 7 A: Yes. 8 Q: All right. And the only reason is 9 because here we see the briefing note in play; that is 10 Mr. Runciman is talking about his information based on 11 that in -- now, we know but we didn't then when we 12 questioned him. Now we know, inaccurate briefing note 13 and that's starting when I want to bring your attention 14 to. 15 Question at line 4, page 21: 16 "Q: Now, you have actually, and I'm 17 trying not to refer to documents too 18 much, just based on the document Mr. 19 Millar showed you yesterday, the April 20 3rd, '96 briefing note, you remember, 21 Mr. Dunfield (sic) creates a briefing 22 note for you on the issue and then 23 there's a house note as well? 24 Duffield. 25 Yes.
181 Duffield" 2 Now, going further down the page there's a 3 reference you see at line 24 to P-998, okay? 4 A: Yes. 5 Q: At line 9, page 22: 6 "Q: You'd agree with me that it was 7 anticipated as a result of looking at 8 this document, the -- the briefing note 9 and P-999 which is located in the small 10 folder of materials that the -- you 11 remember you were prepared by way of 12 potential House questions? 13 Yes. 14 Okay. You'd agree with me that it was 15 anticipated that you may have to speak 16 to the issue of the mugs and T-shirts 17 affair in the house? 18 A: That's right. 19 Q: This is an example, would you 20 agree with me, of a Solicitor General 21 recognizing that individual acts of 22 misconduct may well give rise to issues 23 of a public nature requiring him to 24 respond? 25 A: I agree with that."
191 Now, I ask you, sir, you appreciated that 2 at the time, did you not, that, in fact, the nature of 3 the circumstances around the death of Dudley George and 4 then the memorabilia in the wake of that tragedy would be 5 a matter of public concern that may well require the 6 Solicitor General to speak to it? 7 A: Yes. 8 Q: And you knew that at the time? 9 A: Yes. 10 Q: So that the creation of P-998 and P- 11 999 were in the context of knowing that these are matters 12 that the Solicitor General could well have to address in 13 the house? 14 I haven't dealt with who created them by 15 the way yet. I don't know if that's what Mr. Millar's 16 about to -- I simply said the creation of those briefing 17 notes would be in the context that you, as Commissioner, 18 knew the Solicitor General may well have to deal with in 19 the house, yes? 20 A: Yes. 21 Q: And briefing notes, as a whole, 22 sometimes they're created by your office and sometimes 23 they're not, correct? 24 A: Yes. 25 Q: But in a matter such as this, that
201 you saw as this serious, am I safe in inferring that you 2 would have, at least, seen these briefing notes? 3 A: I may have. But certainly I knew 4 about it. I had a great deal of trust in Mr. Duffield 5 and he did this all the time and it may be that I did or 6 didn't. 7 8 (BRIEF PAUSE) 9 10 Q: Now, P-999, Mr. Millar tells me, the 11 evidence is came from Mr. Runciman's office. But is it 12 not fair to say that whether it comes from Mr. Runciman's 13 office or your office it's a matter that directly 14 concerns your office -- your officers, right -- 15 A: Yes. 16 Q: -- involved in misconduct of a 17 serious nature, you generally would try to make sure you 18 saw the briefing note that went to the Solicitor General? 19 A: Well, I'd certainly be aware of it. 20 Q: Fair enough. P-998 is a different 21 briefing note, correct? 22 You should have it right in front of you. 23 24 (BRIEF PAUSE) 25
211 Q: I'm putting two (2) copies -- Mr. 2 Millar's concerned that I've confused your evidence and 3 to be fair to you, I may have. It doesn't make the half 4 an hour any easier but let's get it right. 5 I'm putting -- I'm putting P-9 -- do you 6 have P-998 and P-999? 7 A: I'm looking here to see if I do. 8 9 (BRIEF PAUSE) 10 11 Q: Do you have them in front of you now? 12 A: I have 998 in front of me. 13 Q: All right. Now, P-998 the evidence 14 is it was created by the -- by the Commissioner's Office, 15 your office; is that fair? 16 A: Yes, I see Phil Duffield's name on it 17 and I see Nancy Mansell's name on and I know who they 18 both are. 19 Q: P-999 would have been created by the 20 Office of the Solicitor General, true? 21 A: That's 998. 22 Q: Here, I've got a single page. You 23 just have to grab it. 24 A: 999, yes, I have it now. 25 Q: Okay. Thanks. It's because I have
221 only half an hour to do this and this is all going to 2 just go south on us. 3 P-999 was created by the Office of the 4 Solicitor General and that was the document I was asking 5 because of the nature of your reporting responsibilities 6 to the Solicitor General and because this involved a 7 matter of serious misconduct, in your mind you would have 8 been aware of the contents of the briefing note to the 9 Solicitor General? 10 A: Well, I would have been aware quite 11 likely of 998. 999 I see no identifiers on it as to who 12 prepared that and whether I was aware of this one or not 13 I'm not sure. 14 Q: All right. Did you make it part of 15 your practice to know what the Solicitor General was 16 briefed about in terms of the conduct of your officers? 17 A: Generally? Yes. 18 Q: Okay. That -- that's why I'm asking. 19 A: Yeah. 20 Q: All right. Now, at page 29 -- 21 actually yes, page 29 line 20 of the same transcript I 22 had in front of you, all right? 23 We're still at January 11th, 2006, my 24 cross-examination of former Solicitor General Runciman, 25 line 20, question -- you have it in front of you?
231 A: Yes, I do. 2 Q: Okay. It's page 29 line 20: 3 "Q: Are you familiar with the fact 4 that the course of action adopted by 5 the Ontario Provincial Police in 6 respect to the mugs and T-shirts affair 7 was to proceed by way of informal 8 discipline? 9 A: Yes. 10 Q:..." 11 Now, I put some documents in front of you 12 and in particular I've put a package of documentation 13 that includes a definition section used by the Ontario 14 Provincial Police in respect of their Standing Orders. 15 The title of it is, Ontario Provincial Police Orders 16 Definitions and Acronyms. 17 Next question line 9, sir: 18 "Q: All right. Could you please turn 19 to the definition of informal 20 discipline, please?" 21 Question, line 17: 22 "Would you agree with me that the 23 definition used by the Ontario 24 Provincial Police by way of policy for 25 informal discipline is quote, ' a
241 corrective action that may be taken in 2 relation to a complaint that does not 3 involve allegations of a serious 4 nature?' 5 A: I do." 6 Now first of all, I put it to you, sir, 7 that part of your job in satisfying yourself of the 8 nature of the corrective measure is to know what the 9 rules were for applying corrective measures, true? 10 A: True. 11 Q: And you would have known what the 12 definition and the guidelines were for meting out 13 informal discipline? 14 A: Generally. 15 Q: Well, when you say "generally" the 16 reason I -- I want to be very clear. This is a rule in 17 the Standing Orders and -- and you're in fact responsible 18 for issuing those orders am I not correct? 19 A: True. 20 Q: Right. Quote: 21 "A corrective action that may be taken 22 in relation to a complaint that does 23 not involve allegations of a serious 24 nature." Close quotes. 25 Was that your knowledge at the time that
251 informal discipline was reserved for matters that were 2 not of a serious nature? 3 A: I'm not sure. 4 Q: Would you agree with me that's it's 5 less than ideal for you to be signing off on dispositions 6 around discipline if you don't know the criteria for the 7 disposition? 8 A: Well, what I knew then and what I 9 recall now, it's a long time ago -- 10 Q: Fair enough and -- and -- 11 A: -- and so I'm -- I'm doing my best to 12 recollect, but that's the best I can do. 13 Q: All right. But my question to you 14 though was different. My question to you: It's less 15 than ideal if you didn't know the definition of the 16 criteria that would apply to determine if informal 17 discipline was appropriate? 18 A: It would certainly be -- make things 19 difficult. 20 Q: Yes. And so backing up a step I'd 21 ask you to probe your memory. Did you know that informal 22 discipline -- and you have said you're having difficulty 23 remembering and I accept that you'd said that and I'm 24 going to ask you once again to think about it. 25 This was a matter that was serious to you
261 at the time? 2 A: It was serious to me, yes. 3 Q: Did you take or make an effort to 4 know what your rules, your standing orders were with 5 respect to meting out informal discipline? 6 Did you take that time to establish or 7 figure that out? 8 A: I can't recall now. 9 Q: Well, and let me ask you another 10 thing. In the issuance of informal discipline on other 11 matters for other officers is it possible that you would 12 have signed off on informal discipline not knowing what 13 the criteria were for informal discipline? 14 A: Well, I have a -- had a unit which 15 was well staffed that worked on those issues all the 16 time. And in my position, I had to depend on their 17 guidance as I -- as I received their advice and so on, in 18 disposing of -- of various issues and I'm assuming that I 19 depended on that at that time, but I can't recall. 20 Q: Okay. Having said that, are we now 21 therefore in a position where, looking at the wording 22 that I've just read to you, in front of you, line 20, 23 page 30 a correc -- from your orders quote: 24 "A corrective action that may be taken 25 in relation to a complaint that does
271 not involve allegations of a serious 2 nature." 3 This wording does not strike a familiar 4 cord with you? 5 A: No. 6 Q: Okay. And in saying that I want you 7 to follow me as I read on, question at page 30, line 25: 8 "Would you agree with me..." 9 And this is to the Solicitor General that 10 you report to. 11 "Q: Would you agree with me that was 12 the operation definition for the use of 13 informal discipline? 14 A: I'm not sure that I was familiar 15 with the definition. 16 Q: At the time? 17 At the time. 18 Q: Fair enough. So you'd agree with 19 me that in an ideal world, if you were 20 assessing the quality of the corrective 21 action taken by the OPP, you'd want to 22 know the definition of when informal 23 discipline is appropriate to use. 24 A: I had no difficulty with the 25 discipline that was applied."
281 Now there's an exchange amongst -- between 2 Commissioner and myself. And then line 12, page 32, if 3 you would just go to the next page, line 12. There's two 4 (2) pages per page. But line 12, page 32: 5 "Q: I'll repeat the question --" 6 A: Just a moment, sir. I have -- 7 Q: No problem. 8 A: Oh, yes, yes. I -- 9 Q: Page 32. It's not your fault, sir. 10 A: It's on -- it's on the same page. 11 Q: Yeah. Not very easy to follow. 12 A: Line? 13 Q: 12. 14 "Q: I'll repeat the question, could 15 you please answer. 16 A: No, I wouldn't. I don't see that 17 as the role of a Solicitor General or 18 Minister with an arm's length 19 organization to be involved in the 20 nitty gritty of the administration of 21 that organization and that's 22 essentially what you're talking about 23 in my view." 24 Then the next question: 25 "Q: Could you please turn to the
291 definition of misconduct of a serious 2 nature. In the same package that I 3 handed you there's a definition of 4 misconduct of a serious nature; could 5 you turn to that definition please?" 6 Next page, page 33: 7 A: I'm there. 8 Under the title, Misconduct of a 9 Serious Nature, do you see the 10 definition? 11 Quote, 'An allegation that an employee 12 has: 13 1. Committed a criminal offense; 14 2. Been charged with a criminal 15 offense; or 16 3. Engaged in conduct which may be 17 adversely affect the reputation of the 18 OPP or the morale of its employees.' 19 A: Yes." 20 Stopping there, were you familiar that 21 misconduct of a serious nature was defined in your 22 regulations as, quote: 23 "Among other things an allegation that 24 an employee has engaged in conduct 25 which may adversely affect the
301 reputation of the OPP." 2 Were you familiar that that was how 3 misconduct of a serious nature was defined? 4 A: I probably was. 5 Q: All right. Now you'd agree with me, 6 in fact you said it today at the outset, that the 7 production of this memorabilia in your view adversely 8 impacted on the reputation of the OPP? 9 A: Yes. 10 Q: And you said that it adversely 11 impacted on the reputation of the OPP in a serious way, 12 yes? 13 A: Yes, I think so. 14 Q: All right. Would you agree with me 15 that if we just take these definitions that we have in 16 front of us, the first definition of a informal 17 discipline reserved for matters that aren't serious, and 18 the second definition of what is serious, that looking at 19 those right now, it is not an appropriate fit to have 20 meted out informal discipline in respect of any of the 21 mugs and T-shirts memorabilia looking at these 22 definitions and knowing about the conduct that you know, 23 it wasn't a good fit? 24 A: I think in ap -- what we're talking 25 about here is our policy. It's not a legislated statute,
311 it's a policy. And I think in applying any policy, one 2 has to look at all of the circumstances and it does not 3 prevent an individual from using the policy in the most 4 appropriate manner. 5 It doesn't -- it isn't so rigid that it 6 can't be used in a manner that the individual using it 7 feels is in the best interest of management of the -- of 8 the Force and dealing with the public. 9 And I think that in -- in much of our 10 policy, I viewed it that way. 11 Q: So as far as you're concerned, if I'm 12 to understand you correctly, with the regulation in place 13 that said informal discipline is reserved for those 14 matters that are not serious and a definition that tells 15 you what serious matters are, including acts that bring 16 the reputation of the service into disrepute, 17 notwithstanding the existence of that wording you still 18 feel informal discipline was the route to go in respect 19 of those items being the beer can and the -- the -- the 20 cartoon? 21 That those items, right, would have been 22 appropriate for informal discipline? 23 A: I felt that in all the circumstances 24 that that was the best application. My intention was to 25 try my best to change behaviour and at the same time not
321 build resentment in our officers against members of First 2 Nations community. And that was my intention and I 3 thought that application, done quickly, was the best 4 approach. 5 Q: And I want to understand this though, 6 you would agree with this that -- that at minimum, the 7 informal discipline sent the message that there was some 8 steps taken, correct? 9 A: Yes. 10 Q: And that's why you thought it was at 11 least an acceptable approach because anything less than 12 informal discipline would put you in a situation where it 13 looked like you did nothing? 14 A: Yes. If you took the formal route, 15 the settlement of it, the disposition of it may have been 16 many months, perhaps longer than that down the road, and 17 I wanted to deal with it expeditiously. 18 19 (BRIEF PAUSE) 20 21 Q: Now, the T-shirt with the feather, 22 the records reflect -- the T-shirt with the feather, you 23 testified yesterday you knew it would be offensive to 24 First Nations people and so that was in your mind when 25 you decided that the approach of informal discipline
331 would make sense to you because it was important to send 2 a signal, correct? 3 MR. MARK SANDLER: No -- 4 MR. JULIAN FALCONER: No, I'm -- I'm 5 asking a question and I understand where My Friend's 6 about to go but I'm going to briefly speak to him to 7 caution him. 8 MR. MARK SANDLER: I didn't realize I get 9 cautioned. 10 COMMISSIONER SIDNEY LINDEN: Now -- 11 MR. JULIAN FALCONER: Well, because I 12 don't want him to pollute the questioning, that's all. 13 COMMISSIONER SIDNEY LINDEN: Mr. 14 Falconer, please be cool, be cool. 15 MR. JULIAN FALCONER: All right. Okay, 16 fair enough. 17 COMMISSIONER SIDNEY LINDEN: Yes, yes? 18 MR. JULIAN FALCONER: Can you give me a 19 brief indulgence with Mr. Sandler? 20 COMMISSIONER SIDNEY LINDEN: Yes, I will. 21 22 (BRIEF PAUSE) 23 24 MR. JULIAN FALCONER: I'll rephrase my 25 question. I'll rephrase my question. I'll rephrase my
341 question. 2 3 CONTINUED BY MR. JULIAN FALCONER: 4 Q: You said before that you were of the 5 view that informal discipline was the minimum that could 6 be done to send a signal in terms of the misconduct in 7 issue, correct? 8 COMMISSIONER SIDNEY LINDEN: No, he 9 didn't say it was the minimum. I didn't hear that. 10 MR. JULIAN FALCONER: Fine. I'll 11 rephrase what I thought you said. 12 COMMISSIONER SIDNEY LINDEN: Yes, Mr. -- 13 MR. JULIAN FALCONER: I do not like My 14 Friend -- 15 COMMISSIONER SIDNEY LINDEN: Excuse me, 16 Mr. Falconer, Mr. Sandler has an objection. I need to 17 hear it. 18 MR. JULIAN FALCONER: Well, if Mr. 19 Sandler's objection conveys a concern that I have about 20 the Witness' last answer that I've already conveyed to 21 Mr. Sandler and ultimately tailors the Witness' evidence 22 then that concerns me. 23 COMMISSIONER SIDNEY LINDEN: Well, I need 24 to hear what Mr. Sandler has to say, Mr. Falconer. 25 So, Mr. Sandler, sir?
351 MR. MARK SANDLER: My Friend -- I am very 2 cognisant of what My Friend is trying to do here. And My 3 Friend lumps everything together in one (1) category and 4 if he separates out what -- what was done in relation to 5 the various items instead of lumping them in and then 6 saying, aha, I've caught you on something, I know exactly 7 where this is going and -- 8 MR. JULIAN FALCONER: That's all right, I 9 can do that. 10 MR. MARK SANDLER: -- and -- and he 11 hasn't been fair to the Witness. 12 MR. JULIAN FALCONER: Well, I can do what 13 Mr. Sandler is asking -- 14 MR. MARK SANDLER: You know, this 15 misconduct we -- 16 MR. JULIAN FALCONER: We don't -- 17 MR. MARK SANDLER: -- four (4) different 18 items of misconduct. 19 MR. JULIAN FALCONER: No, I -- I hear 20 what he's saying and that's fine. So the T-shirts off. 21 22 CONTINUED BY MR. JULIAN FALCONER: 23 Q: What was the disposition you thought 24 at the time was handed out -- meted out in respect of the 25 T-shirt with the fallen feather on it?
361 A: There was a corrective discussion. 2 Q: So it wasn't informal discipline? 3 A: It would be informal discipline but 4 it was a corrective discussion. 5 Q: So, in your mind a corrective 6 discussion was informal discipline? 7 A: It could be construed as -- as 8 informal discipline. 9 Q: You see, when you say "it could be 10 construed", you have a set of rules, correct? 11 A: Yes. 12 Q: All right. All I want to know is not 13 what things could be construed as, I want to know if 14 under your rules that informal discussion was informal 15 discipline or not? 16 COMMISSIONER SIDNEY LINDEN: Mr. 17 Falconer, I heard him say that this was a policy. And I 18 heard him say that as the head of the agency he had a 19 responsibility to interpret the policy responsibly for 20 all interests; that's what I heard. 21 So if you're going to ask him questions 22 you have to put back what he was saying to you. 23 MR. JULIAN FALCONER: Yes. I've put the 24 regulations -- 25 COMMISSIONER SIDNEY LINDEN: There are
371 many interests in resolving these kind of matters. 2 They're very difficult, as you know, and... 3 MR. JULIAN FALCONER: I put the 4 regulations as an exhibit in these proceedings -- 5 COMMISSIONER SIDNEY LINDEN: Yes. 6 MR. JULIAN FALCONER: -- that constitute 7 standing orders and -- and legislatively regulatory 8 provisions that defined informal discipline. 9 10 CONTINUED BY MR. JULIAN FALCONER: 11 Q: So having said that I just need to 12 understand something. Do you think that you rules were 13 such that the corrective discussion constituted at the 14 time informal discipline? 15 A: If you look at what was written it 16 doesn't mention but in -- in my view that is a form of 17 informal discipline. 18 Q: All right. 19 A: And that's the way I saw it. 20 Q: Could you please direct your 21 attention to the document entitled, After Stonechild: 22 Rebuilding Trust, dated October 29th, 2005? 23 A: Yes. 24 Q: Now, this is a letter to the editor 25 of the Globe and Mail from former Chief Christine
381 Silverberg, retired chief of the Calgary Police Service. 2 If you just look at the second page you'll 3 see the second column has her name and title, "Christine 4 Silverberg, retired chief of the Calgary Police Service." 5 This is the document; it looks like this. 6 The title's, After Stonechild: Rebuilding Trust. 7 A: Yes, I have it. 8 Q: Oh, I see, you've got a different 9 version. You have an electronic version so what I'll do 10 is I'll -- I'll provide to you a copy of the version I'm 11 working with, that way you'll be in a position to use the 12 same item. 13 14 (BRIEF PAUSE) 15 16 Q: Do you have it in front of you? 17 A: I do. 18 Q: All right. Now, you see the second 19 page, second column, "Christine Silverberg, retired chief 20 of the Calgary Police Service?" 21 A: Yes. 22 Q: All right. First of all are -- are 23 you -- were you ever familiar with Chief Silverberg? 24 A: Very much so. 25 Q: All right. And your views of her
391 credibility as a police leader in the community? 2 A: She was an excellent chief. 3 Q: All right. And there are some words 4 that I want to put to you by Chief -- former Chief 5 Silverberg and -- and obviously this is a -- a letter in 6 the wake of the report from the Stonechild Inquiry, but 7 there are some words concerning accountability and 8 ethical conduct of officers that I want to ask you about 9 and find out if you agree. 10 In the third paragraph of the letter from 11 former Chief Silverberg she states the follows; third 12 paragraph, first page, first column, starts with, "For 13 police agencies..." 14 A: Yes? 15 Q: My Friend Mr. Millar says it looks 16 like an article rather than a letter. These things 17 generally appear in the Op-Ed portion of a newspaper and 18 I would say that that's what it amounts to and Mr. Millar 19 may be right but I want to be -- I want to be fair and 20 not suggest that this is anything other than obviously 21 the opinions of former Chief Silverberg -- 22 COMMISSIONER SIDNEY LINDEN: Yes. 23 MR. JULIAN FALCONER: -- however we 24 characterize those. 25 COMMISSIONER SIDNEY LINDEN: Yes.
401 2 CONTINUED BY MR. JULIAN FALCONER: 3 Q: Third paragraph, first column, first 4 page, quote: 5 "For police agencies to reflect and 6 value diversity within and outside 7 their ranks and for Aboriginal peoples 8 and others to gain trust in the public 9 complaint system will take strong 10 leadership and police services 11 governing bodies and municipal and 12 provincial governments. 13 It is not good enough to blame the 14 system. The excuse that fostering real 15 change is like moving a tugboat around 16 in a stream doesn't wash. We can no 17 longer dodge our failure to create the 18 legislative framework of accountability 19 necessary to support strong leadership 20 committed to modern policing 21 approaches." 22 First of all, can I ask you: Do you agree 23 with that statement? 24 A: It seems quite reasonable to me. 25 Q: All right. At the next column, first
411 main paragraph that starts with, "Police services." 2 "Police services structured..." 3 Do you follow me? 4 A: Yes. 5 Q: Second column. 6 A: Yes -- yes I found it. 7 Q: "Police services structured along 8 traditional command and control lines 9 emphasize elaborate rules and 10 regulations, a model that simplifies 11 police tasks, erodes police officer 12 discretion and minimizes the importance 13 of decision making based on core 14 values." 15 16 (BRIEF PAUSE) 17 18 Q: "Serving communities starts with 19 value-based policing approach. A 20 community policing organizational 21 structure is fundamentally different 22 from the command and control model, yet 23 is still tough on crime. Command and 24 control is essential in many aspects of 25 policing, but law enforcement agencies
421 must put less emphasis on hierarchal 2 rules and more on outcomes. Ultimately 3 we want a police service that takes 4 active responsibility for ensuring 5 proper performance of duties and 6 officers committed to core values as 7 their basic way of operating. 8 A few weeks of training won't achieve 9 this. It will take continual 10 reinforcement through recruiting, 11 evaluation, promotion, supervision, and 12 discipline systems. To be ethical and 13 act ethically is first and foremost a 14 choice. If we want ethical behaviour 15 we need a climate that fosters such 16 behaviour. It won't happen by add-on 17 programs alone, laudable as they may 18 be. Introducing race relations 19 programs into an intemperate 20 environment may salve the conscience 21 but does nothing to change the 22 fundamental structure systems and 23 processes the organization that support 24 a discriminatory culture." 25 Do you agree with that quote?
431 A: Yes, I agree. But I -- I would like 2 to comment in that that would be a very admirable goal 3 and is one that I would subscribe to. Accomplishing it 4 takes time, takes effort and even after effort and time, 5 it is not necessarily -- it is not necessarily something 6 that can be accomplished in its fullness. 7 But it's a -- it's a -- an absolutely 8 admirable goal and one I'd subscribe to. 9 COMMISSIONER SIDNEY LINDEN: Now, I want 10 to remind you, Mr. Falconer, you're at a half hour. So I 11 hope that you are coming close. You chose to read that 12 and that takes time -- 13 MR. JULIAN FALCONER: Thank you. 14 COMMISSIONER SIDNEY LINDEN: -- but I 15 mean I hope that you will keep in mind -- 16 17 CONTINUED BY MR. JULIAN FALCONER: 18 Q: Now, you would agree with me, that 19 first and foremost you would agree with me, that what the 20 author is saying here is that true ethical policing 21 involves taking issues head-on -- 22 A: Right. 23 Q: -- acknowledging misconduct, as an 24 example -- 25 A: Yes.
441 Q: -- and showing improving values, 2 ethical values in your officers, yes? 3 A: Yes. 4 Q: Now I ask you, sir, to reflect on 5 this. If you are of the view that the memorabilia 6 created in the wake of the death of Dudley George was a 7 form of serious misconduct that brought the repute of the 8 Ontario Provincial Police -- that brought the reputation 9 into disrepute, how could you possibly be sending that 10 signal to your officers by providing corrective 11 discussions to them and some courses? 12 A: My view was and I notice that former 13 Chief Silverberg here indicates that we should not be 14 bound by elaborate rules and regulations, that we should 15 be able to do what we think is the right thing. 16 And in this particular instance, I thought 17 that the approach that we were taking would accomplish 18 what we wanted to accomplish which was to ensure that the 19 officers realized what they were doing was wrong, to get 20 an acknowledgement from them that they understood that 21 and to get them on the road to understanding much better 22 the -- the hurt and the harm that they had done First 23 Nations by their activities and by providing them with 24 some type of education that would make them better 25 understand that.
451 And finally to do that in a way that 2 wouldn't drive them into deep seated resentment which 3 would come to light later on but would get them off on 4 the right track and better relationship with First 5 Nations. 6 And I think to a degree that was 7 accomplished and I think that that was the right choice 8 in this instance. 9 COMMISSIONER SIDNEY LINDEN: Mr. 10 Falconer, that's the essence of the answer that he gave 11 some time ago. 12 MR. JULIAN FALCONER: Fair enough. 13 COMMISSIONER SIDNEY LINDEN: He's 14 elaborated on it now. 15 MR. JULIAN FALCONER: Fair enough. P- 16 1494 -- 17 COMMISSIONER SIDNEY LINDEN: And I hope 18 that you're going to bring this to a close. 19 MR. JULIAN FALCONER: I am. 20 21 CONTINUED BY MR. JULIAN FALCONER: 22 Q: Exhibit P-1494 is up on the screen. 23 It's the logo of the T-shirt that was produced recently 24 in May of this year; the logo that you'd indicated you 25 thought was I take it, offensive and in fact reflected a
461 confrontational approach to -- to the matter of the 2 operation at Ipperwash, true? 3 A: I think I said that, yes. 4 Q: Right. Now what I want to ask you is 5 this: That T-shirt was never disclosed to you and never 6 came out of the initial investigation that you mandated 7 and requested, correct? 8 A: I never learned of it. 9 Q: Right. We have learned that Officers 10 Dougan, Korosec, Graham, Zupancic, Jacklyn, Huntley, 11 Hebblethwaite, Root, Bittner, York, all of these officers 12 intricately involved in the operation at Ipperwash, had 13 memorabilia but were never approached by your 14 investigators about the memorabilia they had. 15 Do you have any explanation for why the 16 investigation would have been deficient in that area? 17 A: I have no explanation. 18 Q: Would you agree with me that had 19 Officer Hebblethwaite, who had the T-shirt, been 20 approached he -- this T-shirt would have come to your 21 attention? 22 A: It may very well have happened. 23 Well -- 24 Q: You would expect it to if he's 25 approached and the memorabilia's turned over, you would
471 have seen the T-shirt. 2 A: That -- that would be making the 3 assumption on my part that he would do that and I -- I 4 really don't know. I would hope he would. 5 Q: Fair enough. Now the reason I ask 6 you that is this: Would you agree with me that T-shirt, 7 P-1494, is of such an offensive nature that informal 8 discipline would have been inappropriate? 9 COMMISSIONER SIDNEY LINDEN: I think 10 you've used your time. You've used your welcome and I 11 would be very grateful if you would conclude this. He 12 didn't see this. He had nothing to do with this -- 13 OBJ MR. MARK SANDLER: I have a more 14 fundamental objection and that is, the matter is under 15 investigation. Is My Friend deliberately trying to taint 16 the ongoing investigation by getting opinions solicited 17 on what should happen on it. 18 COMMISSIONER SIDNEY LINDEN: I mean, I 19 don't know. I -- 20 MR. MARK SANDLER: I mean, that's just so 21 fundamentally unfair. 22 COMMISSIONER SIDNEY LINDEN: I don't need 23 any more on this line. 24 MR. JULIAN FALCONER: Well, I -- I -- 25 COMMISSIONER SIDNEY LINDEN: Not with a
481 witness who's testified. I don't need any more on this. 2 MR. DERRY MILLAR: Well, I wish to echo 3 the comments of Mr. Sandler. As Commissioner Boniface 4 has said, this investigation -- the investigation into 5 this T-shirt is undergoing -- is on -- ongoing and any 6 questions that may cause that investigation or whatever 7 happens as a result of that investigation, to be subject 8 to challenge or any other thing as a result of questions 9 asked by this T-shirt -- about this T-shirt to this man 10 would be, in my respectful submission, wrong. This -- 11 COMMISSIONER SIDNEY LINDEN: Do you have 12 anything to add to that, Mr. Roland? I see you're 13 standing on your feet. 14 MR. IAN ROLAND: I want to speak to My 15 Friend about something else to correct the record. 16 COMMISSIONER SIDNEY LINDEN: Fine. 17 MR. JULIAN FALCONER: Mr. Sandler's 18 suggestion that I would want to deliberately taint the 19 investigation was an unfortunate suggestion. There's 20 nothing wrong with objecting. 21 The context is a very unique one. Mr. 22 Millar, on the one hand, in examination-in-chief, asks 23 the Witness what is your reaction to this T-shirt? That 24 was a question that Mr. Millar, your counsel, asked of 25 the Witness.
491 And I follow up with: Having now read you 2 the rules of informal discipline you'd agree with me that 3 wouldn't have been one of the options you could have 4 possibly used in the face of this T-shirt? 5 Now, how is it that Mr. Millar can ask, on 6 the one hand, the Witness what his reaction to it is as a 7 former Commissioner, but I can't ask what he would have 8 done as a former Commissioner? 9 Now, Mr. Sandler may be right. It's a 10 very difficult line to draw but to suggest somehow I'm 11 intentionally trying to taint an investigation is an 12 unfortunate choice of words and he should withdraw it. 13 The second point is the unfortunate 14 position we're in is a position due to the failures of an 15 OPP investigation in the first place many years ago. We 16 wouldn't be here worried about a concurrent investigation 17 at this Inquiry if the job had been done properly years 18 ago. 19 So to put this all on my back and on my 20 shoulders and to suggest that I'm the one that's the 21 problem here, with great respect, is unfair and 22 unfortunate. If Mr. Sandler's got a point, he's got a 23 point. But it's really -- 24 COMMISSIONER SIDNEY LINDEN: Mr. -- 25 MR. JULIAN FALCONER: -- if Mr. O'Grady
501 can be asked, what do you think of this T-shirt, as your 2 counsel did then my simple what would you have done 3 knowing what you thought, it might be right and it might 4 be wrong. 5 I hear what Mr. Sandler is saying, the 6 other part, but taking the personal shots is completely 7 unnecessary. 8 COMMISSIONER SIDNEY LINDEN: You've said 9 that, Mr. Sandler. 10 MR. DERRY MILLAR: May I add something? 11 COMMISSIONER SIDNEY LINDEN: Mr. 12 Falconer, I'm sorry. 13 MR. DERRY MILLAR: The -- I agree with 14 Mr. Falconer that people should not make personal shots 15 and I don't -- and -- and -- Mr. Falconer is entitled to 16 his concerns about that. 17 But there is a difference between asking 18 the former Commissioner what this -- his reaction to P- 19 1494, that question, and the question what would you do - 20 - what would you have done about it when you were 21 Commissioner? 22 There is a substantial difference -- 23 COMMISSIONER SIDNEY LINDEN: Yes. 24 MR. DERRY MILLAR: -- between the two. 25 And --
511 MR. JULIAN FALCONER: concede the point. 2 I concede that point. 3 COMMISSIONER SIDNEY LINDEN: That's the 4 point. That's the point here, Mr. Falconer. 5 MR. JULIAN FALCONER: Well, no, it's not. 6 Not when you start accusing me of deliberately trying 7 to -- 8 COMMISSIONER SIDNEY LINDEN: Well, I 9 think it is. 10 Yes, Mr. Sandler? 11 MR. JULIAN FALCONER: -- taint 12 investigations. 13 COMMISSIONER SIDNEY LINDEN: Please, Mr. 14 Falconer. Please, Mr. Falconer. 15 MR. MARK SANDLER: If it assists -- if it 16 assists My Friend I take the position that the effect of 17 his questions would be to taint an ongoing investigation, 18 and if I said that -- that I attribute an improper 19 intention to him, I withdraw it. I didn't intend to say 20 that. If I said it, I withdraw it. That's not my 21 concern but it doesn't invalidate the objection. 22 COMMISSIONER SIDNEY LINDEN: No, that's 23 fine. Where are we? 24 MR. JULIAN FALCONER: The spot we are is 25 that Mr. Roland's raised something that's quite fair. In
521 my list of officers I referred to as officers who were 2 not approached and asked about memorabilia Stan Korosec 3 was in that list which is accurate. 4 But inaccurately as a group of officers 5 who had memorabilia Stan Korosec didn't end up having 6 memorabilia. He was never approached but he didn't end 7 up having the memorabilia. I think that fairly corrects 8 that. 9 COMMISSIONER SIDNEY LINDEN: That's fine. 10 Okay, now, Mr. Falconer, I've said for the last ten (10) 11 minutes, I'd like you to bring your examination to a 12 conclusion. Are you on the last question? 13 MR. JULIAN FALCONER: Yes. 14 COMMISSIONER SIDNEY LINDEN: And if it is 15 what is it? What is your question? Let's see if we can 16 get an answer that isn't a question that Mr. Millar has 17 specifically objected to. 18 What is the question you're asking of this 19 Witness now? 20 21 CONTINUED BY MR. JULIAN FALCONER: 22 Q: First I want to confirm with you that 23 do you agree, Mr. O'Grady, that the sentiments and views 24 expressed by former Chief Silverberg are (a) laudable 25 ones and (b) to be strongly considered by any leader of a
531 police institution in this country? 2 A: I agree. 3 COMMISSIONER SIDNEY LINDEN: He's already 4 answered that. He answered that, that he agreed. 5 MR. JULIAN FALCONER: You know, to be -- 6 to be fair, Mr. Commissioner -- 7 COMMISSIONER SIDNEY LINDEN: That's fine. 8 MR. JULIAN FALCONER: -- I just -- I 9 don't -- I -- if I ask a question in a different way 10 which I just did it is for a reason with great respect 11 and -- and I -- you asked me to close and I am closing. 12 COMMISSIONER SIDNEY LINDEN: I heard that 13 question perhaps, maybe a word or two (2) words in a 14 different order. 15 MR. JULIAN FALCONER: That's true. 16 COMMISSIONER SIDNEY LINDEN: But the 17 essence of the question has been asked and answered. 18 All right, it's easier to let you go ahead 19 and finish. 20 MR. JULIAN FALCONER: Thank you. 21 COMMISSIONER SIDNEY LINDEN: Go ahead and 22 finish. 23 MR. JULIAN FALCONER: On that basis I 24 propose to file the, "After Stonechild: Rebuilding 25 Trust" article from the Globe and Mail as the next
541 exhibit. 2 COMMISSIONER SIDNEY LINDEN: Thank you. 3 THE REGISTRAR: P-1733, Your Honour. 4 5 --- EXHIBIT NO. P-1733: Toronto Globe and Mail 6 article "After Stonechild: 7 Rebuilding Trust," October 8 29, 2005. 9 10 MR. JULIAN FALCONER: That concludes my 11 questions. Thank you, Mr. O'Grady. 12 COMMISSIONER SIDNEY LINDEN: Thank you. 13 Thank you, Mr. Falconer. 14 Mr. Rosenthal...? 15 16 (BRIEF PAUSE) 17 18 MR. PETER ROSENTHAL: Good morning, Mr. 19 Commissioner. 20 COMMISSIONER SIDNEY LINDEN: Good 21 morning, sir. 22 23 CONTINUED CROSS-EXAMINATION BY MR. PETER ROSENTHAL: 24 Q: Good morning, Mr. Former 25 Commissioner.
551 Now, first to follow up a bit on the mugs 2 and T-shirts, not this T-shirt but the T-shirt that you 3 were aware of back in 1996. 4 Now, you told us that with respect to the 5 production of the mugs and T-shirts there were what you 6 termed, "corrective discussions" with the officers; is 7 that correct? 8 A: Yes. 9 Q: There was no admonishment to the 10 officers, that's a more formal thing, right? 11 A: Corrective discussion. 12 Q: Yes, but there was no admonishment in 13 particular? 14 A: No. 15 Q: And admonishment -- 16 A: I'm sure that in the corrective 17 discussion they would -- it would be pointed out to them 18 that what they did was wrong and did they understand 19 that? 20 Q: Yes. 21 A: So from the point of view of 22 definition of admonishment is that the -- the dictionary 23 definition of admonishment? Probably. 24 Q: But there was also a formal notion of 25 admonishment at the time as something that would stay on
561 one's record for two (2) years -- 2 A: For two (2) years. 3 Q: -- and so on. 4 A: That did not occur. 5 Q: That did not occur, that's for sure. 6 Now, you told us, I believe, that Mr. 7 Duffield was working under your supervision generally 8 when he issued press releases and -- 9 A: He worked from my office. 10 Q: -- issue notes? And -- and he would 11 generally if -- if he were for example sending a note to 12 the Solicitor General's office it would be with your 13 approval presumably? 14 A: He would comment to me that he was 15 doing it and -- and generally what the content was. 16 Q: Yes. 17 A: He wouldn't necessarily always show 18 it to me. He was a very competent individual and I 19 relied on him heavily. 20 Q: Now, we have a document that has 21 appeared in several different forms and I have one (1) 22 form of it. It apparently went through several 23 incarnations. If you could please give one (1) to the 24 Commissioner and one (1) to Mr. O'Grady? 25 The document that I've just handed up to
571 you, sir, is Exhibit P-1728 to this proceeding. It's 2 Inquiry Document 2000996. 3 And you'll recall, Mr. Commissioner, that 4 there were several versions of this document? 5 COMMISSIONER SIDNEY LINDEN: Yes, I do 6 recall that. 7 8 CONTINUED BY MR. PETER ROSENTHAL: 9 Q: Now, sir, this is an MSGCS Issue Note 10 dated December 18, 1996; is that correct? 11 A: Yes. 12 Q: And it's -- underneath it does say: 13 "For staff contact Phil Duffield --" 14 A: Yes. 15 Q: "-- and Branch office of the 16 Commissioner." 17 A: Yes. 18 Q: So this is an issue note that would 19 have been put out by Mr. Duffield -- 20 A: Yes. 21 Q: -- in the -- in the manner that you 22 were discussing a moment ago? 23 A: Yes. 24 Q: Now, the -- the first bullet point 25 there is:
581 "Unofficial memorabilia bearing OPP 2 insignia was produced in relation to 3 the occupation of Ipperwash Provincial 4 Park in the fall of 1995." 5 A: Yes. 6 Q: And the fourth bullet point says: 7 "Corrective action was taken against 8 four (4) members of the OPP." 9 A: Yes. 10 Q: Now, you would agree that the 11 unofficial memorabilia that was being discussed were the 12 mugs and the T-shirts? 13 A: From the first bullet point, that 14 appears to be correct. I believe this issue note to be 15 wrong. 16 Q: I see. You -- you've looked at this 17 issue note -- 18 A: Yes. 19 Q: -- recently, is that correct? 20 A: Yes. 21 Q: And you agree it's wrong? 22 A: Yes. 23 Q: And in fact, you agree, do you not, 24 sir, as Commissioner Boniface did yesterday, I believe, 25 were you here for her testimony yesterday?
591 A: Not all of it. 2 Q: Were you here for the part where she 3 agreed that it was misleading? 4 A: It's wrong. 5 Q: Yes. And it suggests that corrective 6 action was taken against four (4) members of the OPP for 7 producing the unofficial memorabilia, right? 8 A: Yes. 9 Q: And that was not so. 10 A: Corrective action was taken against 11 the members that created the T-shirt and mugs. But in 12 this particular instance, as you'll see in the summary, 13 they talk about a Sergeant and three (3) constables, and 14 the Sergeant and three (3) Constables were responsible 15 for producing the beer can with paraphernalia around it, 16 and also the suction arrow on the door of a cruiser, and 17 the constables were the ones that did it and the Sergeant 18 was aware of it and did nothing. 19 And so those four (4) received informal 20 discipline and had it on their record for two (2) years. 21 Q: Yes. 22 A: The T-shirts and the mug were 23 corrective action. It did not go on their record, but 24 indeed there was corrective action taken with respect of 25 it.
601 Q: Yes. Now -- but you agree it's 2 misleading in suggesting that corrective action was taken 3 against four (4) members for the mugs and T-shirts, 4 right? But that -- right? You did agree to that? 5 That's what's misleading about this, right? 6 A: It's just focussed on the wrong 7 people. 8 Q: Yes. And the wrong aspect -- the 9 wrong incident. 10 A: It -- it's wrong. 11 Q: Yes. But then also in -- in the 12 summary it says, the second bullet-point: 13 "The four (4) officers have accepted an 14 admonishment as corrective action and 15 this will remain on their records for 16 two (2) years." 17 So would you agree with me, sir, that what 18 this issue note would convey to the Solicitor General, 19 and that he would then presumably convey to other people, 20 based on this note, would be that with respect to the 21 mugs and T-shirts, four (4) officers received corrective 22 action and that corrective action included an 23 admonishment that would be on their records for two (2) 24 years. 25 That's the -- the impression that a person
611 would get, right? 2 A: That's correct, because it's wrong. 3 Q: Yes. But that is the impression and 4 you acknowledge now that it's wrong. 5 A: Yes. 6 Q: Did you ever correct that impression 7 at any time between December 18, 1996 and today, sir? 8 A: It really never came to my attention 9 in between these times, and just a recent time, when I 10 was preparing myself to come here, I realized that that 11 has to be wrong. 12 Q: Yes. But you didn't realize at any 13 time until recently. 14 A: I did not. 15 Q: And you understood that this would 16 give members of the public the impression that there had 17 been some, at least somewhat substantial discipline 18 against the officers who produced the mugs and T-shirts? 19 A: I'm not sure that members of the 20 public would have any understanding of the approach that 21 the OPP was taking as to corrective action or informal 22 discipline. 23 I'm not sure that members of the public 24 would -- would really be aware of that. All they would 25 know was that there was some type of action taken in
621 respect to that. 2 Q: Thank you. Now, if you could please 3 turn to one of the discipline volumes, P-1051, the first 4 volume. 5 A: Yes. 6 Q: And Tab 23 of that volume. 7 8 (BRIEF PAUSE) 9 10 Q: Tab 23, sir, is a document dated 11 August 28, 1995. A memorandum to all Park Wardens: 12 "Subject: Procedures dealing with First 13 Nations people." 14 And subparagraph 1 reads: 15 "First Nations person in contravention 16 of the law, Park Wardens are to be the 17 eyes and ears of the OPP when a First 18 Nations person has contravened the law. 19 The Park Warden shall contact the OPP 20 immediately and advise the officers who 21 are dispatched what offenses can be 22 charged and direct the OPP Constables 23 to lay the charges." 24 Now, sir, were you at the Inquiry when I 25 asked Commissioner Boniface about this document, sir?
631 A: I'm not sure that I was. 2 Q: This document was, as it's inclusion 3 in this volume indicates, part of the investigation of 4 possible disciplinary action done way back when. At the 5 time, sir, were you aware of this document? 6 A: No. This document appears to have 7 been produced by the Ministry of Natural Resources. 8 Q: Yes, well, I'll come to that, sir. 9 But when the report of this investigation was completed, 10 you read it, did you not, sir? 11 A: I can't recall. 12 Q: You would not have read -- 13 A: I don't know. I cannot recall. 14 Q: Well, when there is an investigation, 15 especially one that had -- where there was such public 16 interest in it that it required issue notes to the 17 Solicitor General, and so on, would you not, inevitably, 18 read the report of that investigation, sir? 19 A: Not necessarily. 20 Q: Not necessarily. 21 A: No. 22 Q: So you may not have even read the 23 report of the investigation at the time? 24 A: Of this particular investigation? 25 Q: Of -- of the -- there was one (1)
641 report. Perhaps to help refresh your memory you could 2 turn to Tab 17 of this same volume? At Tab 17 you'll 3 find a document dated January 8, 1996 addressed to the 4 Regional Commander Western Region re Internal complaint 5 actions of OPP personnel during Project Maple at 6 Ipperwash, Complainant Superintendent Parkin, Western 7 Region. 8 And then that document goes on for some 9 nineteen (19) pages and it's then signed by D.W. Adkin, 10 Staff Sergeant who was the person who conducted this 11 investigation? 12 A: Yes. 13 Q: And that's the report I'm talking 14 about. You would have certainly read that, would you 15 not, sir? 16 A: I doubt it very much. 17 Q: You doubt that you -- 18 A: I don't recall reading this and I 19 doubt very much if I would. 20 Q: I see. 21 COMMISSIONER SIDNEY LINDEN: I'm sorry, 22 Mr. Rosenthal, you've confused me a bit. You were 23 referring earlier to Tab 23 which was the procedure 24 dealing with First Nations? 25 MR. PETER ROSENTHAL: Yes. No, but then
651 -- then I was now referring to Tab 17, sir. 2 COMMISSIONER SIDNEY LINDEN: I know that. 3 So you're no longer on that? I wasn't sure where that 4 was. Is that -- 5 MR. PETER ROSENTHAL: Well, I'm going to 6 return to a question on that but -- 7 COMMISSIONER SIDNEY LINDEN: Okay. 8 MR. PETER ROSENTHAL: -- I interrupted 9 because I wanted to try to refresh the Commissioner's 10 memory as to whether or not he had read the report of the 11 overall investigation. 12 COMMISSIONER SIDNEY LINDEN: The overall 13 investigation. I see. 14 MR. PETER ROSENTHAL: Yes. This 15 investigation -- 16 COMMISSIONER SIDNEY LINDEN: Okay. 17 18 CONTINUED BY MR. PETER ROSENTHAL: 19 Q: You'll -- I should inform you, sir, 20 that this report speaks to a number of issues, including, 21 as Mr. Commissioner has reminded us, Tab 18 -- or Tab 23, 22 excuse me. And Tab 23 is discussed at page 18 of this 23 document, and perhaps you could turn to it? The page is 24 written in words at the top of the page, it says: 25 "Page 18, Pinery/Ipperwash Park
661 Policy." 2 Do you see that, sir? 3 A: I have number eighteen (18) and it's 4 dated 27th November, 1995. 5 Q: Sorry, sir, the -- some of the 6 numbers are -- the handwritten numbers are the tab 7 numbers. I'm still in the previous tab, Tab 17, but the 8 next to last page of that tab on which it's written in 9 writing, "page 18." 10 A: Yes. 11 Q: And that is headed, "Pinery/Ipperwash 12 Park Policy," sir? Are we on the same page now? 13 A: It's number seventeen (17) and it's 14 typed "page 18." 15 Q: Yes. And it says, "Pinery, slash -- 16 A: Yes. 17 Q: -- Ipperwash Park Policy." 18 A: Yes. 19 Q: Is that correct? And that reports 20 that Mr. Cloud, who was the complainant with respect to 21 several of the issues investigated by this investigator, 22 felt that some of the policy established was 23 discriminatory to First Nations people. He felt that the 24 reporting of all incidents involving First Nations 25 persons to supervisors was discriminatory in that it
671 involved only First Nations persons. 2 And that's evidently referring to the 3 document that I showed you earlier at Tab 23 about 4 policing First Nations people. 5 A: Yeah, well, I see recommendations at 6 the bottom -- 7 Q: Yes. 8 A: -- and those are recommendations 9 certainly that I'm familiar with and agree with, and it 10 talks about the beer can and the arrow on the cruiser 11 door. And I've mentioned that earlier that I was aware 12 of that. 13 It's just the issue under twenty-three 14 (23) that I'm not familiar with, other than the extent of 15 looking at this document. 16 Q: I see. So you reviewed this document 17 only in anticipation of the Inquiry -- 18 A: Yes. 19 Q: -- but you don't recall whether or 20 not you would have reviewed it ten (10) years ago? 21 A: I don't think I've ever seen it. 22 Q: I see. Well, will you agree that 23 there is a serious problem with any policy that 24 specifies, as it says at Tab 23, that Park Wardens are to 25 be the eyes and ears for the OPP when a First Nations
681 person has contravened the law? 2 A: I guess in my reading of it, the 3 first thing that jumps out at me is it seems to fit the 4 definition of racial profiling; that's number 1. 5 Q: Yes. 6 A: Secondly, I'm not sure of the -- of 7 the good that would be obtained from this. It would 8 appear that the approach was dealing with a concern that 9 there might be an occupation of a park, and that this was 10 a method of intelligence gathering, and I'm not sure 11 exactly looking for violations commit -- allegedly 12 committed by First Nations persons. I'm not sure exactly 13 even what the value of that intelligence would be, unless 14 it was something in relation to preparation to occupy the 15 Park. 16 But in any event, focussing just on First 17 Nations because it could have been anybody, but just 18 focussing on First Nations would seem to me to be racial 19 profiling. 20 Q: Yes. And therefore a matter that, 21 had you been aware of it, and had you had the 22 understanding that there was some OPP involvement in 23 creating this policy, you would have certainly caused to 24 have been seriously investigated; is that fair? 25 A: I would have been concerned about it
691 but I -- I say in the first instance, on the face of it, 2 it's not OPP policy, it's -- it's prepared for Ministry 3 of Natural Resources. And that may very well be why I 4 wasn't aware of it. 5 Q: Yes. 6 A: So -- 7 Q: Except -- except, sir -- 8 A: -- I really have to stop there. 9 Q: Just -- I'm not going to belabour the 10 point, but just to inform you that we do have -- that 11 there is evidence at Tab 39, which you need not turn to 12 that: 13 "The policy was set this summer by 14 [some redacted name] and myself." 15 And the "myself" is Staff Sergeant K. 16 Bouwman of the OPP, okay? 17 So in spite of what is said by the 18 investigator, in concluding that it was a Natural 19 Resources policy, in the very documents that the 20 investigator compiled, there is the assertion by Staff 21 Sergeant Bouwman that that policy was set this summer by 22 someone else and himself. 23 So I presume if you'd been aware of that 24 you would have caused that to be seriously investigated; 25 is that correct, sir?
701 A: I think I would, yes. 2 Q: Thank you. Now, sir, we've had 3 evidence throughout the Inquiry of a number of efforts by 4 OPP officers to assist Ken Deane in his defence. And 5 we -- 6 COMMISSIONER SIDNEY LINDEN: Just a 7 minute. 8 MR. PETER ROSENTHAL: -- and -- 9 COMMISSIONER SIDNEY LINDEN: Just a 10 minute, Mr. Rosenthal. 11 MR. MARK SANDLER: This is not the -- the 12 breadth of what he was brought back here to testify 13 about, with great respect, the whole Ken Deane issue and 14 assistance and so on. 15 COMMISSIONER SIDNEY LINDEN: It doesn't 16 have anything to do with discipline; is that the -- 17 MR. MARK SANDLER: This is not a 18 discipline issue, with great respect. And one can 19 convert anything into a discipline issue by saying, And 20 should there be have been discipline for it, but with -- 21 with great respect, this really isn't discipline. 22 COMMISSIONER SIDNEY LINDEN: It's -- 23 MR. PETER ROSENTHAL: Well, with respect, 24 it doesn't require much conversion with respect to this 25 one, Mr. Commissioner. I -- I was going to put -- may I
711 just explain where I would be coming from to former 2 Commissioner O'Grady. 3 The fact that he had, evidently, according 4 to the evidence, become aware at some point that there 5 were two (2) officers, formerly full-time, apparently, 6 assisting the Ken Deane defence, and then he had 7 instructed that that be stopped. But then, nonetheless, 8 we have evidence that that continued in various ways. 9 And I was going to ask him if he had been aware of that, 10 would that have been the subject of discipline? 11 And with great respect, I believe that is 12 not the kind of a stretch that My Friend was suggesting, 13 and it is -- it is a question of correcting and 14 controlling officer behaviour by disciplinary procedures. 15 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 16 Millar...? 17 MR. DERRY MILLAR: I agree with Mr. 18 Sandler. The -- I was actually going to ask some 19 questions about this yesterday until Mr. Sandler reminded 20 me, vocally, that the -- that my question, which was 21 basically the same question as Mr. Rosenthal, did not fit 22 within the -- the agreed upon ground rule for bringing 23 him back. 24 COMMISSIONER SIDNEY LINDEN: The 25 understanding that we have.
721 MR. DERRY MILLAR: And so I did not 2 proceed because we agreed to bring back the Witness for a 3 limited purpose. And my question I didn't pursue because 4 my question was outside, in effect, the box. And My 5 Friend's outside the box as well. 6 MR. PETER ROSENTHAL: With great respect, 7 Mr. Commissioner, I -- I would suggest that your counsel 8 yielded too easily. 9 And I would ask you to consider, Mr. 10 Commissioner, the fact that we have evidence that -- that 11 Commissioner O'Grady at the time gave a certain order 12 about this, and we have evidence that, nonetheless, 13 continued the assistance to Mr. Deane. 14 And it certainly would be a disciplinary 15 matter. 16 COMMISSIONER SIDNEY LINDEN: I'm aware of 17 the evidence, Mr. Rosenthal. I don't want to go there. 18 I think that we've got a very narrow box for recalling -- 19 MR. PETER ROSENTHAL: Yes. 20 COMMISSIONER SIDNEY LINDEN: -- 21 Commissioner O'Grady and there's been lots of issues that 22 have come to light subsequent, that could possibly be the 23 subject of discipline. 24 I agree with you, this particular one may 25 not be as much of a stretch as others. But I just don't
731 want to go there. I don't want to open that up so I 2 would ask you to move on. 3 MR. PETER ROSENTHAL: Well, with respect, 4 Mr. Commissioner, I would also think that it might be of 5 great assistance to you in dealing with this issue, 6 ultimately. 7 COMMISSIONER SIDNEY LINDEN: I think I 8 have enough information now to deal with that issue. 9 MR. PETER ROSENTHAL: Okay. Thank you. 10 11 CONTINUED BY MR. PETER ROSENTHAL: 12 Q: Now, there was some consideration, at 13 least a possible discipline against P/C Cossitt for his 14 testimony at the Deane trial. You were aware of that? 15 A: Yes. 16 Q: And Officer Cossitt testified at this 17 proceeding, as you may be aware. And you'd agree with 18 me, sir, that it's very important that an officer be 19 truthful when he's testifying in court because officers' 20 testimony can lead to people going to jail, for example, 21 right? 22 A: That's true. 23 Q: And an officer who's willing to 24 fabricate evidence is a very dangerous officer to have on 25 the Force; do you agree?
741 A: True. 2 Q: Now he testified here with respect to 3 his evidence at the trial of Cecil Bernard George. You 4 may recall there was a man named Cecil Bernard George who 5 was allegedly beaten very badly by OPP officers and who 6 then was -- was also tried criminally as a result of this 7 incident. 8 Do you recall? His name was Slippery or 9 Cecil Bernard George, sir. 10 A: Yes, I think I do. 11 Q: Now P/C Cossitt, at the trial of 12 Cecil Bernard George, had testified that Mr. George was 13 knocked down by some officer who had contact with him 14 directly in front of him; in front of he, P/C Cossitt. 15 And he testified he wasn't sure how that 16 happened. But then he acknowledged here that he had been 17 the person who had had contact with Cecil Bernard George 18 and knocked him down. 19 And then he was asked specifically: 20 "Now sir, did you tell the court then, 21 I'm not sure which officer I had 22 contact with him. 23 A: Yes, sir. 24 Q: But you knew you were the officer 25 who had contact with him, right?
751 A: Yes." 2 So you -- 3 MR. IAN ROLAND: Just -- just -- My 4 Friend hasn't given the Witness the benefit of all of the 5 evidence of P/C Cossitt and there is, I think, on the 6 totality of evidence, some real doubt whether P/C Cossitt 7 ever came into contact with Cecil Bernard George. 8 If you take his evidence all through the 9 piece and Cecil Bernard George's and other evidence, 10 there's a real doubt whether P/C Cossitt came into 11 contact with Cecil Bernard George at all. 12 MR. PETER ROSENTHAL: With great respect, 13 Mr. Commissioner, there is no doubt but -- 14 MR. DERRY MILLAR: Well -- but in 15 addition, what we're here to ask questions about is P- 16 1053 which is the evidence of Constable Cossitt at the 17 Deane trial. 18 MR. PETER ROSENTHAL: Well with respect, 19 Mr. Commissioner -- 20 COMMISSIONER SIDNEY LINDEN: This is an 21 issue that came up long after we agreed to recall -- 22 MR. PETER ROSENTHAL: Yes. 23 COMMISSIONER SIDNEY LINDEN: -- 24 Commissioner O'Grady on a very narrow ground. 25 MR. PETER ROSENTHAL: But I was going to
761 -- I was within one (1) sentence of finishing what I 2 wanted to put to him and it was an accurate statement of 3 the evidence. 4 COMMISSIONER SIDNEY LINDEN: Yes. 5 MR. PETER ROSENTHAL: I'm reading exactly 6 in quotation. 7 COMMISSIONER SIDNEY LINDEN: I'm going to 8 assume that you're going to put the evidence accurately 9 when you finished the question, but it isn't necessary 10 for you to because it really is raising an issue that was 11 not in existence at the time that we agreed to recall 12 Commissioner O'Grady for a very narrow ground. 13 So I think that the -- Mr. Millar is 14 right, the issue regarding Cossitt had to do with his 15 testimony at the Deane trial. 16 17 CONTINUED BY MR. PETER ROSENTHAL: 18 Q: Commissioner Boniface testified that 19 in her view there should have been an external 20 investigation of P/C Cossitt's testimony at the Deane 21 trial; were you aware of her testimony to that effect, 22 sir? 23 A: I was. And so did I. 24 Q: You -- you agreed with that as well? 25 A: I said that yesterday.
771 MR. DERRY MILLAR: He testified to that 2 in-chief. 3 4 CONTINUED BY MR. PETER ROSENTHAL: 5 Q: Yes. Now, sir, you were the 6 Commissioner, why didn't you arrange that there be an 7 external exam -- investigation? 8 A: Because I'm not perfect and I was 9 wrong. 10 Q: I see. And if you had been perfect? 11 A: I would have ordered one (1). 12 Q: You would have ordered one (1). And 13 you would have ordered that that investigation be done by 14 whom, sir? 15 A: Well, I would have selected an 16 outside agency. There are many competent organizations 17 that could do it. 18 And as I said yesterday, in addition to 19 that, I would have suggested to the outside agency that 20 before they reached their conclusions, that they speak to 21 legal counsel with expertise in perjury, because I 22 understand it's a very complicated and difficult offence 23 to prove. 24 Q: And the outside agencies that you 25 would have considered would have been other police
781 forces? 2 A: Yes. 3 Q: And any other kinds of agencies? 4 A: Off the top of my head, that's what I 5 would have had in mind. And I had done that before and I 6 should have done it in this instance. 7 Q: So it could have been a municipal 8 police force or perhaps -- 9 A: It could have been a municipal. It 10 could have been the RCMP. 11 Q: The RCMP. Was there any 12 consideration by you or anyone, that you're aware, of 13 possible disciplinary action against now Inspector Mark 14 Wright? 15 MR. DERRY MILLAR: How does that arise 16 from the discipline files? It doesn't. 17 COMMISSIONER SIDNEY LINDEN: It doesn't. 18 It doesn't. It's another matter that is beyond the scope 19 of my narrow grounds. We have to keep our grounds where 20 we agreed to -- 21 MR. PETER ROSENTHAL: Yes, sir. 22 COMMISSIONER SIDNEY LINDEN: -- otherwise 23 we'll be here forever, Mr. Rosenthal. 24 MR. PETER ROSENTHAL: With great -- 25 COMMISSIONER SIDNEY LINDEN: That was not
791 the basis of recalling Commissioner O'Grady. 2 MR. PETER ROSENTHAL: With great respect, 3 sir, the basis was discipline, not -- 4 COMMISSIONER SIDNEY LINDEN: Well, we had 5 a much -- 6 MR. PETER ROSENTHAL: -- the four (4) 7 corners of the discipline file -- 8 COMMISSIONER SIDNEY LINDEN: -- narrower 9 understanding. 10 MR. PETER ROSENTHAL: -- but discipline. 11 COMMISSIONER SIDNEY LINDEN: But 12 discipline could be everything and that is not the 13 understanding that we have. 14 MR. PETER ROSENTHAL: Well, okay, I had a 15 certain understanding, Mr. Commissioner, but, of course, 16 yours prevails. 17 COMMISSIONER SIDNEY LINDEN: Thank you. 18 MR. PETER ROSENTHAL: And thank you very 19 much. Thank you, sir. 20 COMMISSIONER SIDNEY LINDEN: Thank you 21 very much. 22 Do you have any questions for -- 23 MR. MARK SANDLER: Yes, just very 24 briefly. 25 COMMISSIONER SIDNEY LINDEN: How long do
801 you think you might be, Mr. Sandler, because I was 2 going -- 3 MR. MARK SANDLER: Three (3) minutes. 4 COMMISSIONER SIDNEY LINDEN: How many? 5 MR. MARK SANDLER: Three (3) minutes. 6 COMMISSIONER SIDNEY LINDEN: Oh, then we 7 can do it. I was going to have a break but three (3) 8 minutes is fine. 9 MR. MARK SANDLER: All right. 10 11 CONTINUED CROSS-EXAMINATION BY MR. MARK SANDLER: 12 Q: Could I take you to two (2) 13 documents. One (1) is the issue note that's Exhibit P- 14 1002, and you should have that in front of you. It's the 15 one dated January 8th, 1997. 16 A: 1002. I think I have it here. 17 Q: And just while Commissioner O'Grady 18 is looking for that I'd also ask that P-453, which is a 19 newspaper article, "Apology issued for Ipperwash 20 memorabilia," be placed before him? He may have it up 21 there. 22 MR. DERRY MILLAR: He has it. 23 MR. MARK SANDLER: But he's been given a 24 lot of documents. 25 COMMISSIONER SIDNEY LINDEN: I have the
811 article but what was the other document you asked us to 2 look at? 3 MR. MARK SANDLER: P-1002. 4 COMMISSIONER SIDNEY LINDEN: 1002. 5 MR. MARK SANDLER: Yes. It's the issue 6 note for January 8th, 1997. 7 COMMISSIONER SIDNEY LINDEN: I have it. 8 Yes. MR. MARK SANDLER: Mr. Rosenthal, I 9 believe, cross-examined on that document. 10 COMMISSIONER SIDNEY LINDEN: Yes, I have 11 it. 12 MR. DERRY MILLAR: He crossed -- Mr. 13 Rosenthal -- 14 COMMISSIONER SIDNEY LINDEN: Mr. 15 Rosenthal was cross-examining on 1728, I thought. Yes, 16 the -- 17 MR. DERRY MILLAR: Mr. Rosen -- 18 MR. MARK SANDLER: The content in this 19 regard is the same, so that's fine. 20 21 CONTINUED BY MR. MARK SANDLER: 22 Q: If you have 1002? 23 A: Yes, I do. 24 Q: And the valid point has been made 25 that the -- that the issue notes that were prepared in
821 this regard failed to differentiate between the T-shirt 2 and mug action that was taken and the action taken in 3 relation to the beer can and the suction cup, and you've 4 acknowledged that? 5 A: Yes, it's just twisted. 6 Q: I simply want to point out to you 7 that if one looks at the summary and you began to deal 8 with this, the summary actually contains -- the summary 9 contains in the first bullet: 10 "There are reasonable grounds to 11 believe that a Sergeant and three (3) 12 Constables acted improperly in that 13 they created illustrations or materials 14 that were insensitive and 15 unprofessional while at Ipperwash. The 16 four (4) officers have accepted an 17 admonishment as corrective action and 18 this will remain on their records for 19 two (2) years." 20 That is perfectly accurate, that those 21 four (4) officers created illustrations or materials and 22 that they received an admonishment; am I right? 23 A: That is correct. 24 Q: The -- the difficulty here is not 25 relating it back and differentiating out the T-shirts as
831 opposed to those, right? 2 A: Yes. 3 Q: Now, if I can look at with you 4 Exhibit P-453 which is the newspaper article that had to 5 do with the apology issued for the Ipperwash memorabilia. 6 Do you have that? 7 A: Yes, I do. 8 Q: And I'm just looking at the last 9 couple of paragraphs because the substance of the article 10 is -- is the apology that you issued for inappropriate 11 memorabilia made by officers at Ipperwash. 12 But I simply point up, near the end it 13 says: 14 "The six (6) officers who produced the 15 memorabilia have been told their 16 actions were unprofessional, Sergeant 17 Blace said but they will not face 18 official sanctions because they should 19 not be made scapegoats for something 20 that was an organizational shortcoming 21 relating to our policy and training 22 issues." 23 And -- and the point's been made. We've 24 had some discussion about distinctions between informal 25 discipline and -- and non-disciplinary action and -- and
841 one (1) of the things that you said to Mr. Falconer was 2 that you weren't sure that -- that the public would 3 necessarily get those -- those nuances; am I right? 4 A: I don't think they would. 5 Q: But -- but the message that was being 6 communicated was that coupled with an apology the 7 approach that was being taken to the public memorabilia 8 was one (1) of dealing with it as institutional failings 9 rather than official sanctions? 10 A: Correct. 11 Q: Is that right? 12 A: That's correct. 13 Q: All right. Thank you, those are all 14 my questions. 15 COMMISSIONER SIDNEY LINDEN: Thank you 16 very much, Mr. Sandler. Mr. Millar...? 17 MR. DERRY MILLAR: I just -- 18 COMMISSIONER SIDNEY LINDEN: Oops. 19 MR. PETER ROSENTHAL: Sorry. 20 COMMISSIONER SIDNEY LINDEN: We just 21 about had an accident there. Are you all right? 22 MR. PETER ROSENTHAL: Yes, thank you. 23 Excuse, Mr. Commissioner, I -- I do 24 believe that Ms. Esmonde has found the portions of the 25 transcript; that I was correct in suggesting that the
851 matter of discipline generally, not just these discipline 2 files, is what was deferred when we were examining this 3 Witness in the first instance. 4 And there's a discussion between Mr. 5 Millar and Mr. Falconer on August 23rd, 2005, around page 6 20 is -- is one (1) part of it. And -- and in particular 7 on page 20 in the middle of that discussion Mr. Falconer 8 says at line 21 on page 20 August 23rd '05: 9 "And so matters of discipline is what 10 we're deferring our cross-examination 11 on?" 12 And -- and so on. Now, we were talking 13 specifically about the discipline policy and T-shirts 14 but -- 15 COMMISSIONER SIDNEY LINDEN: That's 16 right. 17 MR. PETER ROSENTHAL: -- but told -- 18 COMMISSIONER SIDNEY LINDEN: That's 19 right. 20 MR. PETER ROSENTHAL: -- generally the 21 matters of discipline were deferred. 22 COMMISSIONER SIDNEY LINDEN: Well, we 23 didn't say that but we had an understanding what we were 24 referring to. I certainly did. 25 MR. PETER ROSENTHAL: Well, with respect
861 I -- I believe that both the words and certainly my 2 understanding, I don't know about Mr. Falconer's, was 3 that the matter of discipline was what was deferred and 4 therefore I would request the right to ask the several 5 questions that I had asked earlier. 6 COMMISSIONER SIDNEY LINDEN: I'm not 7 prepared to open the whole area up right now. We had a 8 very limited understanding and that's -- 9 MR. JULIAN FALCONER: Mr. Commissioner, I 10 didn't rise before because I thought Mr. Rosenthal dealt 11 with it adequately and you'd ruled but -- so I can 12 refresh your memory I expressed the concern at the time 13 that if I simply reserved my questioning on the issue of 14 the mugs and T-shirts in the blind, that is I had no idea 15 what the discipline records showed that I would be unduly 16 -- and so I asked no questions about discipline -- 17 COMMISSIONER SIDNEY LINDEN: It was about 18 the discipline -- 19 MR. JULIAN FALCONER: -- with the view to 20 deferring all questions on discipline until we had the 21 records because we didn't know what they disciplined on. 22 COMMISSIONER SIDNEY LINDEN: Thank you. 23 MR. JULIAN FALCONER: So that was -- that 24 was why we did not restrict it to -- to memorabilia. It 25 isn't -- it's because we didn't know what they
871 disciplined on. 2 COMMISSIONER SIDNEY LINDEN: I need a 3 break, Mr. Falconer. 4 MR. JULIAN FALCONER: Fair enough. 5 COMMISSIONER SIDNEY LINDEN: I need a 6 break. 7 MR. JULIAN FALCONER: Okay. 8 COMMISSIONER SIDNEY LINDEN: We're going 9 to take a break now. We'll talk about this if you need 10 to later on. Thank you. 11 THE REGISTRAR: This Inquiry will recess 12 for fifteen (15) minutes. 13 14 --- Upon recessing at 10:19 a.m. 15 --- Upon resuming at 10:35 a.m. 16 17 THE REGISTRAR: This Inquiry is now 18 resumed. Please be seated. 19 MR. DERRY MILLAR: Commissioner, I just 20 have one question for Commissioner O'Grady. 21 COMMISSIONER SIDNEY LINDEN: Yes, sir. 22 23 RE-RE-DIRECT EXAMINATION BY MR. DERRY MILLAR: 24 Q: Former Commissioner O'Grady. Could 25 you turn to Tab 17 of Exhibit P-50 -- 1051. Page 8 and
881 that page 18. 2 3 (BRIEF PAUSE) 4 5 Q: And under "Recommendations" the -- 6 there were three (3) recommendations set out and the 7 first two (2): 8 "The Ontario Provincial Police 9 investigate and pursue the needs for 10 cross -- cross cultural training on 11 Aboriginal issues." 12 And the second: 13 "The Ontario Provincial Police should 14 consider the merits of the practice of 15 the manufacturing of mementos as 16 keepsakes and major events. Possibly 17 as -- the time has come that guidelines 18 need to be established." 19 Those two (2) recommendations were picked 20 up by you in part of the institutional response? 21 A: That's correct. 22 Q: First it was the expansion of the 23 Native Awareness training? 24 A: Yes. 25 Q: And secondly, perhaps not guidelines
891 as suggested in the recommendation but guidelines with 2 respect to the use of the OPP insignia? 3 A: That's correct. 4 Q: Those are my questions. I wish to 5 thank you very much for coming, sir. 6 COMMISSIONER SIDNEY LINDEN: Thank you 7 very much. Thank you very much, Commissioner O'Grady for 8 coming back and giving us the benefit of your evidence. 9 Thank you, sir. 10 THE WITNESS: Thank you. 11 12 (WITNESS STANDS DOWN) 13 14 MR. DERRY MILLAR: Now the next witness 15 is going to be Deputy Commissioner Carson and he's being 16 recalled. And while he's coming up, we need to simply 17 remove most of that material except the two (2) large 18 books. 19 20 (BRIEF PAUSE) 21 22 MR. DERRY MILLAR: The two (2) large 23 books stay. 24 25 (BRIEF PAUSE)
901 MR. DERRY MILLAR: And before we start 2 again with Deputy Commissioner Carson, I just want to 3 make sure there's no misunderstanding as a result of a 4 question that I was asked about Monday. 5 We are going to call Stan Thompson and 6 after Stan Thompson, Fran Hannahson. But I do not expect 7 that we will finish both of them on Monday. The 8 question, was well if you finish those two (2) on Monday, 9 what are we going to do on Tuesday? 10 And that's not my anticipation. I 11 anticipate that we'll go over with the evidence into 12 Tuesday. So I just want to make sure -- 13 COMMISSIONER SIDNEY LINDEN: Those two 14 (2) witness', we've got two (2) days set aside for them. 15 MR. DERRY MILLAR: And plus the read-ins. 16 COMMISSIONER SIDNEY LINDEN: And plus the 17 read-ins. Yes, I -- 18 MR. DERRY MILLAR: I just want to make 19 sure everybody understand that. 20 COMMISSIONER SIDNEY LINDEN: Okay. 21 MR. DERRY MILLAR: Now -- 22 COMMISSIONER SIDNEY LINDEN: Welcome 23 back, Inspector Carson. 24 MR. JOHN CARSON: Good morning. Thank 25 you, sir.
911 THE REGISTRAR: Good morning, Inspector 2 Carson. 3 COMMISSIONER SIDNEY LINDEN: I said 4 Inspector. Deputy Commissioner, I'm sorry, sir. 5 THE REGISTRAR: Yes, Deputy Commissioner, 6 good morning, sir. 7 THE WITNESS: Thank you. 8 9 JOHN CARSON (Recalled), Sworn 10 11 MR. DERRY MILLAR: Commissioner, may I 12 just put on the record the basis on which we are 13 recalling Mr. -- Mr. Carson. And there was an e-mail 14 exchange between myself and My Friend, Mr. Falconer, and 15 a copy of which was distributed to all of the other 16 parties. And it's June 17th, 2005, 4:18 p.m. 17 "Dear Julian: 18 Further to our discussion today with 19 respect to the cross-examination by you 20 on behalf of ALST with respect to the 21 issue of racism in the OPP in 1995 and 22 the discipline of Detective Constable 23 Whitehead and Detective Constable Dyke 24 and related discipline files and the 25 issue of mugs and T-shirts and related
921 discipline files, we have agreed that 2 your cross-examination on this issue 3 will be deferred until after the issue 4 of the discipline files is dealt with 5 relating to Detective Constable 6 Whitehead and Detective Constable Dyke 7 and the mugs and T-shirts on the 8 following basis. 9 1. Commission counsel commits to 10 recall Deputy Commissioner Carson as of 11 right for your cross-examination. 12 You do not need to make an application. 13 2. You will have the same right to 14 cross-examine when Deputy Carson is 15 recalled as you would if you examined 16 him now. 17 In other words, if an objection could 18 be made now by a party or Commission 19 Counsel it can be made when Deputy 20 Carson is recalled. 21 The intent is to preserve the rights of 22 all parties and simply defer the 23 examinations and 24 3. Commission Counsel will recall 25 Deputy Commissioner Carson -- Carson as
931 soon as practical after the issue of 2 discipline files is determined and 3 that's the basis upon which we're 4 recalling." 5 Now, Mr. Rosenthal, at the time this was 6 discussed, on the record, that we'd reach an agreement 7 indicated that he wished to reserve his right to cross- 8 examine as well. And so -- 9 COMMISSIONER SIDNEY LINDEN: On the same 10 basis as set out in this letter? 11 MR. DERRY MILLAR: It would be on the 12 same basis. 13 COMMISSIONER SIDNEY LINDEN: Yes. 14 MR. DERRY MILLAR: And -- and at the time 15 I don't know if anyone else did, but I don't know if 16 anyone else has any questions. I think that it would be 17 reasonable on the same basis if others had questions that 18 perhaps they might because they didn't have these 19 discipline files at that time. 20 COMMISSIONER SIDNEY LINDEN: Well, I 21 recall Deputy Commissioner Carson was on the Witness 22 stand for nineteen (19) or twenty (20) days. 23 MR. DERRY MILLAR: He was on nineteen 24 (19) or twenty (20) days. 25 COMMISSIONER SIDNEY LINDEN: Nineteen or
941 20 so -- 2 MR. DERRY MILLAR: But if -- but the 3 issues that relate -- 4 COMMISSIONER SIDNEY LINDEN: No, I -- 5 MR. DERRY MILLAR: -- within the four (4) 6 corners of this -- 7 COMMISSIONER SIDNEY LINDEN: I understand 8 that. But -- 9 MR. DERRY MILLAR: We're not picking you 10 up, sir. Maybe you can pull the -- 11 COMMISSIONER SIDNEY LINDEN: You're not 12 picking me up? I'm sorry. What I was going to ask is, 13 do you have any questions of the -- 14 MR. DERRY MILLAR: I have just one (1) 15 question -- 16 COMMISSIONER SIDNEY LINDEN: Okay. 17 MR. DERRY MILLAR: -- that should have 18 been asked the last time but wasn't after all of those 19 days of questions. But on this issue I didn't ask it and 20 partly I didn't have these documents either but I know 21 about the issue. 22 23 CONTINUED EXAMINATION-IN-CHIEF BY MR. DERRY MILLAR: 24 Q: I understand, Deputy Commission -- 25 Deputy Commissioner Carson, that you had a discussion
951 with a senior officer with respect to the issue of T- 2 shirts or memorabilia? 3 A: Correct. 4 Q: And that senior officer was then 5 Deputy Commissioner Boose? 6 A: That's right. 7 Q: And when did that happen, sir? 8 A: That would have been after the 9 completion of the investigation into the mugs and T- 10 shirts. 11 Q: And there's a -- if you could turn to 12 Exhibit P-1052 which is Volume II. That's the one that's 13 -- and turn to Tab 105 -- 14 COMMISSIONER SIDNEY LINDEN: I think you 15 mean is it 1025? 16 MR. DERRY MILLAR: 1052. 17 COMMISSIONER SIDNEY LINDEN: 52? 18 MR. DERRY MILLAR: Yes. Thank you. 19 COMMISSIONER SIDNEY LINDEN: And what tab 20 number? 21 MR. DERRY MILLAR: Tab number 105. 22 COMMISSIONER SIDNEY LINDEN: Thank you. 23 24 CONTINUED BY MR. DERRY MILLAR: 25 Q: And this is a letter dated November
961 21, 1996 and -- where the author of the letter, which we 2 now know is Deputy Commissioner Boose at the time: 3 "As per your direction I've reviewed 4 the report entitled, Internal Complaint 5 Ipperwash, with a view to identifying 6 which serving Commissioned Officer 7 would have had knowledge of the 8 production and distribution of 9 memorabilia related to the Ipperwash 10 incident. That review along with some 11 follow up calls to clarify points led 12 me to interview four (4) officers 13 regarding this subject. Those four (4) 14 officers were..." 15 And you were one (1) of the officers. 16 "And in each instance I reviewed the 17 facts and discussed the need to be 18 culturally sensitive and the 19 expectation that our Commissioned 20 Officer corps was to lead by direction 21 and example. I'm confident that our 22 officers have learned from this 23 experience and that will serve to guide 24 them in the future." 25 Now, with respect to that letter of
971 November 21st, 1996 can you place when in relation to 2 that letter your discussion was? 3 A: It would have been in and around that 4 time. I can't give you an exact date. I -- I don't 5 believe I was ever provided a copy of this memo so I had 6 nothing to refer to. But I certainly recall that I did 7 have the meeting with Deputy Boose and we discussed the 8 memorabilia and how we might avoid the situation in the 9 future. 10 Q: Thank you. Those are my questions, 11 Commissioner. 12 COMMISSIONER SIDNEY LINDEN: All right. 13 Now, perhaps I should ask, Mr. Rosenthal, -- 14 MR. PETER ROSENTHAL: I believe I -- I'll 15 go first. 16 COMMISSIONER SIDNEY LINDEN: Yes, but -- 17 MR. DERRY MILLAR: Perhaps we could 18 just -- 19 COMMISSIONER SIDNEY LINDEN: Just make 20 sure there's nobody else before we carry on. Does 21 anybody else, other than Mr. Rosenthal and Mr. Falconer, 22 have any questions to ask Deputy Commissioner on this 23 issue? 24 MR. DERRY MILLAR: And we have the two 25 (2) of them, perhaps we could ask My Friends their
981 estimated length of time. 2 MR. PETER ROSENTHAL: About thirty (30) 3 minutes. 4 MR. DERRY MILLAR: Mr. Rosenthal, thirty 5 (30) minutes. 6 COMMISSIONER SIDNEY LINDEN: Mr. 7 Falconer...? 8 MR. JULIAN FALCONER: Thirty (30) minutes 9 to an hour. 10 MR. DERRY MILLAR: Mr. Falconer, thirty 11 (30) minutes to an hour. Thank you. 12 COMMISSIONER SIDNEY LINDEN: Thank you. 13 Thank you, Mr. Falconer. 14 15 (BRIEF PAUSE) 16 17 MR. PETER ROSENTHAL: Good morning again, 18 Commissioner. 19 COMMISSIONER SIDNEY LINDEN: Good 20 morning, sir. 21 22 CONTINUED CROSS-EXAMINATION BY MR. PETER ROSENTHAL: 23 Q: Good morning, Deputy Commissioner. 24 A: Good morning, sir. 25 Q: I should like to ask you about some
991 aspects of Exhibit P-1051. 2 And first I'd like to turn please to Tab 3 23 of that exhibit. I believe you were sitting in the 4 audience a few moments ago when I referred former 5 Commissioner O'Grady to this tab. 6 This tab is dated August 28th, 1995, 7 memorandum to all park wardens: subject; procedures 8 Dealing with First Nations People. 9 Do you have that in front of you, sir? 10 A: Yes, I do. 11 Q: Now, you would have been aware of 12 this document or the -- at least the rough content of the 13 document back in August of 1995 I take it; is that 14 correct? 15 A: I'm not sure I can agree with that. 16 Q: But you were the Incident Commander 17 with respect to Ipperwash at this time period; is that 18 correct? 19 A: Correct. 20 Q: And -- well perhaps if you turn to -- 21 A: If I could just point out, sir, if -- 22 if this is a memorandum to park wardens I'm assuming 23 you're referring to Ministry of Natural Resources park 24 wardens? 25 Q: Yes.
1001 A: I had no control or direction to park 2 wardens. 3 Q: Yes, I appreciate that, sir, but -- 4 A: Okay. 5 Q: -- perhaps if you could turn to Tab 6 39 and then we'll return to this document. 7 At Tab 39 is evidently a statement of 8 Staff Sergeant K. Bouwman? 9 A: Yes. 10 Q: Now, you knew Staff Sergeant Bouwman 11 at the time, sir? 12 A: Yes, he was the Detachment Commander 13 at Forest. 14 Q: Forest Detachment Commander? 15 A: Correct. 16 Q: And as such he would have been one 17 (1) of the important command officers that you would have 18 worked with, with respect to Ipperwash Provincial Park? 19 A: That's correct. 20 Q: And -- and the Army Camp, with 21 respect to the whole Ipperwash business? 22 A: Correct. 23 Q: Now, according to this statement if 24 you turn three (3) pages in -- I don't believe these 25 pages are numbered. At three (3) pages in, in the middle
1011 of the page it reads: 2 "Cloud also talked about a policy that 3 was set this summer by [blank] and 4 myself in dealing with Native people 5 that entered Ipperwash Provincial Park 6 illegally. He felt that part of this 7 policy was discriminatory [and so on]." 8 So evidently based on the evidence we have 9 we don't know exactly what was meant by "set this summer" 10 but certainly there was some involvement in the making of 11 that policy by Staff Sergeant Bouwman. 12 Is that a correct inference, sir? 13 A: That -- that's what it appears, yes. 14 Q: Yes. 15 A: Yes. 16 Q: And presumably this was after you and 17 your colleagues were aware that there was a possibility 18 that on Labour Day or sometime close to there, there 19 would be a movement into the Park by some of the Stoney 20 Point people? 21 A: Well, this time a policy through the 22 summer there was concerns in the Park itself while it was 23 operating in July/August, so I'm assuming that this is 24 around policy between the Ministry of Natural Resources 25 and our local Detachment --
1021 2 Q: Yeah. 3 A: -- in regards to that I would 4 suspect. 5 Q: I see. You -- you would have thought 6 that this was not so much with respect to the intended -- 7 or the possible takeover of the Park but rather with 8 respect to other policing issues in the summer? 9 A: There was -- there was a significant 10 amount of concern, particularly after the July 29th 11 incident with the Military Base around the safety and 12 well-being of -- of tourists/campers using the Provincial 13 Park -- 14 Q: I see. 15 A: -- and it was at that time that we 16 had added additional patrols in -- in and around that 17 area. So I'm -- I'm making some assumption that this 18 would be the issues that came to light because of the 19 Ministry of Natural Resources' concerns about the issues 20 of safety at that time. 21 Q: I see. So not so much with respect 22 to possible takeover of the Park but with respect to the 23 actual policing of the Park itself during July and 24 August? 25 A: Correct.
1031 Q: And so you as Incident Commander 2 surely would have been at least aware of Sergeant -- 3 Staff Sergeant Bouwman having some connection to Ministry 4 of Natural Resources with respect to that issue? 5 A: Well, I'm sure that he would have 6 shared with me that he had developed some protocols with 7 them, sure. 8 Q: Yes. And now looking at this 9 protocol, back at Tab 23, it's entitled, Procedures 10 Dealing with First Nations People. 11 Now, you indicate you're sure he would 12 have shared with you something of the protocol. You may 13 or may not have actually seen this written document 14 though; is that correct? 15 A: That -- that's fair. 16 Q: And do you have a specific memory of 17 seeing this document? 18 A: No, I don't. 19 Q: But the idea that Park Wardens were 20 to be vigilante and be the, as it says "the eyes and ears 21 of the OPP" with respect to contravention of the law, you 22 would have been aware of that idea at least? 23 A: Well, we certainly would have asked 24 for their co-operation to advise us of information so we 25 could deal with these issues of course, yes.
1041 Q: Yeah. So -- so the notion that Park 2 Wardens are to be the eyes and ears of the OPP when a 3 First Nations person has contravened the law would have 4 been a concept that Staff Sergeant Bouwman would have 5 shared with you that he was going to be asking MNR 6 personnel to adopt. 7 A: In all likelihood. 8 Q: And then it continues: 9 "Park Warden shall contact the OPP 10 immediately and advise the officers who 11 are dispatched what offenses can be 12 charged and direct the OPP Constables 13 to lay the charges." 14 So again, that would be consistent with 15 the procedure as you would have understood that working? 16 A: That's fair. 17 Q: And then subparagraph 4, Reporting 18 Incidents to Supervisors: 19 "Park Warden shall report all minor 20 incidents involving First Nations 21 people by leaving a message on Don 22 Matheson's call answer telephone at 23 [redacted] and shall also leave a 24 message on Les Kobayashi's call answer 25 telephone."
1051 And then it says, on the other hand, it 2 says: 3 "If the incident is serious, Park 4 Warden shall immediately contact Les 5 Kobayashi at his residence and Don 6 Matheson at..." 7 So that seems to suggest an internal 8 reporting within MNR in addition to the earlier proviso 9 that they should contact the OPP immediately, correct? 10 A: Yeah, that's what it indicates, yes. 11 Q: Now, sir, do you see any problem with 12 a directive that Park Wardens ought to be the eyes and 13 ears of the OPP when a First Nations person has 14 contravened the law; a special directive about policing 15 First Nations person? 16 A: Well, I think you have to put it into 17 context. 18 Q: Yes? 19 A: The Park Wardens have a 20 responsibility in regards to enforcing some Provincial 21 Statutes within the Park. That's their role and 22 responsibility. 23 Q: Yes? 24 A: Given the issues that were occurring 25 relative to the Military Base and the concern for safety
1061 around some of the occupiers from the Military Base, it 2 seems to make sense that when those individuals involved 3 in the occupation of the Military Base had issues within 4 the Provincial Park that we would need to know that. 5 So I -- I can understand why there would 6 have been -- would have been some discussion and a 7 request to be informed when there were issues that come 8 to their attention. 9 Q: And you notice that it's not 10 restricted to First Nations people who are occupiers of 11 the Army Camp. It says First Nations people, right? 12 A: That's what the directive says, yes. 13 Q: Yes. Suppose that there was a 14 directive that said Park Wardens are to be the eyes and 15 ears of the OPP when a Jewish person has contravened the 16 law, would that give you some pause, sir? 17 A: When there -- when there would be any 18 serious offense, the -- the OPP would be notified to 19 investigate. In this particular case, I mean this -- 20 this was an outstanding issue that we were attempting to 21 address in the interest of public safety and around the 22 issues that were occurring, so clearly the memo has been 23 written specific to that. 24 Q: Now, this was -- "contravened a law" 25 would include, for example, contravening the laws against
1071 drinking alcohol in parks, for example, too, right? 2 A: I'm sorry? 3 Q: Contravening a law would include 4 provincial and criminal offences, presumably, right? 5 A: Well, that would certainly be a 6 contravention of the law, yes. 7 Q: Yes. It generally talks about 8 contravention of law that would include the laws 9 governing he use of provincial parks as well as criminal 10 laws, right? 11 A: Sure. That's -- that's fair. 12 Q: And presumably there are other people 13 who might contravene a law in the Pinery or Ipperwash 14 Provincial Park who are not First Nations people, right? 15 A: Sure. 16 Q: And this directive indicates that 17 park wardens should be the eyes and ears of the OPP, only 18 with respect to First Nations people, right? 19 A: That's what it says. Yes. 20 Q: And you don't even, in retrospect 21 now, sir, see a problem with that? 22 A: As I indicated, I think you have to 23 understand the perspective of -- of what we -- or what we 24 -- what the discussion was relative to. There is always 25 a need to be vigilant for any contraventions of the law,
1081 regardless of who it is. 2 Q: Yes. 3 A: But for the issues that the 4 Detachment Commander was obviously asking for them to 5 report through to us, was specific to the issues relative 6 to the First Nations issues and I would suggest 7 particularly related to the occupation of the military 8 base. 9 Q: There's no such limitation in the 10 statement? 11 A: No. And I'm making some assumptions 12 that that is the type of discussion that would have taken 13 place and why the focus on First Nations. 14 Q: But would you agree that even if that 15 were the basis for it, it is extremely inappropriate, in 16 a multi-cultural society, to have a directive that 17 persons of a particular ethnic group should be specially 18 policed? 19 A: Well, there's no doubt that different 20 wording could have been used. But it is, I suspect, that 21 they were trying to direct their attention to the 22 occupiers of the military base, which, in likelihood, 23 they would have come to some conclusion were primarily 24 First Nations people. 25 Q: But even if it were occupiers of the
1091 military base, if they were specially policed, with 2 respect to all laws, that would be offensive, wouldn't 3 it? 4 A: I don't see where there is a 5 suggestion of there being a specialty police. It's being 6 asked, where there are contraventions of the law in 7 relation to those people, to be brought to the OPP's 8 attention. 9 Q: You don't see this as special 10 policing of First Nations people, sir? 11 A: No, sir. 12 Q: I see. In spite of the fact that it 13 says: 14 "Park wardens are to be the eyes and 15 ears for the OPP when a First Nations 16 person is contravening the law." 17 And that, to you, does not imply special 18 policing of First Nations people? 19 A: We placed undercover officers in the 20 Provincial Park, as you, I'm sure, are aware, specific to 21 the concerns raised by the Ministry of Natural Resources. 22 And it was around the issues of behaviours that had been 23 taking place around Matheson Drive, the Military Base and 24 some activity that occurred onto and in conjunction with 25 people who were using the Ipperwash Provincial Park.
1101 This -- this here particular type of 2 direction would be in relation to working cooperatively 3 with the Ministry of Natural Resources, sir. 4 Q: I see. Now, can us, and you may not 5 recall this many years later, but can you tell us how 6 many First Nations persons were charged as a result of 7 this directive, sir? 8 A: I -- I don't -- I couldn't tell you 9 for sure, sir. 10 Q: Thank you. Now, if you could please 11 turn to Tab 43 of the same volume? Tab 43 is headed 12 "John Carson" and there's a statement there. And first, 13 have you reviewed that statement recently, sir? 14 A: Yes, I have. 15 Q: And you agree that it's an accurate 16 report of the statement that you would have given many 17 years ago? 18 A: Well, it's the statement that was 19 taken by Staff Sergeant Adkin over the telephone. 20 Q: Yes. And is it an accurate report of 21 what you said at that time, sir? 22 A: Sure. 23 Q: So it reads, in part: 24 "He was speaking with Staff Sergeant 25 [redacted]. When he heard about the
1111 arrow he commented, There better not 2 be." 3 Now, that was the arrow with respect to 4 what, with respect to a mug or a T-shirt? 5 A: That was specific to the mugs. 6 Q: The mug. 7 A: Yes, sir. 8 Q: So that was the design of the mug 9 that included an OPP crest with an arrow through it -- 10 A: That was -- 11 Q: -- or behind it? 12 A: That was my understanding, yes. I -- 13 I didn't see a mug, I was being told about the mug -- 14 Q: I see. 15 A: -- by -- by the Staff Sergeant. 16 Q: You were given a verbal description 17 of it. 18 A: Correct. 19 Q: And when he mentioned the arrow you 20 said -- 21 A: Well -- 22 Q: -- That better not be? 23 A: Well, maybe I can make myself very 24 specifically clear on -- on that -- 25 Q: Yes.
1121 A: -- particular issue. I was at the 2 detachment at Forest. 3 Q: Right. 4 A: I -- I attended for some other reason 5 but I wasn't in command at the detachment. 6 Q: Okay. 7 A: As I was walking out of the 8 detachment through the general office leading into the 9 garage area, a Staff Sergeant from out of town informed 10 me about the mug with the arrow through the shoulder 11 flash, and I stopped in my tracks and -- and I turned to 12 him, and I was probably slightly more emphatic than the 13 report suggests, that they better not be making those 14 kinds of mugs. 15 Q: So more -- almost in the direction of 16 an order -- 17 A: Well, I guess -- 18 Q: -- I suggest to you? 19 A: -- in all honesty, probably in the -- 20 probably with some expletive attached to it. 21 Q: I see. Okay. We've heard enough 22 expletives in this Inquiry and we don't need another one. 23 A: I can appreciate that. 24 Q: And it continues, the report of your 25 interview continues:
1131 "You understood the potential of what 2 the arrow could cause or you felt that 3 [redacted] was aware of sensitivity." 4 So what -- what did you understand the 5 potential that the arrow could cause? 6 A: I said it was simply inappropriate. 7 Q: But what do you mean by the 8 potential, the potential offensiveness of it or...? 9 A: Well, I mean you have to appreciate 10 this is a -- the synopsis of a telephone interview -- 11 Q: Yes. 12 A: -- so I don't know exactly what I 13 said or how I said it -- 14 Q: Yes. 15 A: -- but in my view, the arrow and the 16 shoulder flash is simply inappropriate and insensitive to 17 everyone involved, plain and simple. 18 Q: Everyone meaning -- including your 19 officers as well as the -- 20 A: The First Nations people and the -- 21 and the police officers involved, yes. 22 Q: I see. Why do you come to that 23 conclusion that the arrow along with the shoulder flash 24 is insensitive to both parties? 25 A: Because -- well, I just think it
1141 simply is. 2 Q: Okay. You can't assist us as to your 3 thinking as to why? 4 A: I -- I don't know how to explain it 5 other than to say that I just think it's totally 6 inappropriate. 7 Q: Okay. Then this report continues: 8 "He was showed a T-shirt and has one." 9 That's correct, is it? 10 A: I -- I had one, yes. 11 Q: Yeah. Well at the time of the 12 interview you had one? 13 A: Right. 14 Q: And it says you were showed a T- 15 shirt. What does that refer to? Who showed you? 16 A: I -- I don't know what that refers 17 to. 18 Q: I see. In any event, at the time of 19 the interview you possessed a T-shirt? 20 A: Correct. 21 Q: And that a T-shirt that we've seen 22 pictures of which included an arrow horizontally at the 23 bottom; is that correct? 24 A: No, I believe it was a feather, sir. 25 Q: Sorry, a feather at the bottom. Yes,
1151 thank you. 2 A: Yes, correct. 3 Q: Mr. Millar not only knows where 4 everything is he can read my mind as to what's coming up. 5 So it's -- it's now on the screen and that's a more or 6 less accurate picture of the T-shirt that you purchased? 7 A: Yes. I did not purchase it. 8 Q: You didn't purchase it? 9 A: No, sir. 10 Q: You were given it as a gift? 11 A: Correct. 12 Q: And who gave you this T-shirt, sir? 13 A: Well, I -- I can't tell you the name 14 of the officer but it was an officer from out of town who 15 -- who I didn't know. 16 Q: Thank you. Yes, Mr. Millar very 17 properly suggests that I indicate that what is currently 18 on the screen for this discussion is P-458. 19 So it was an officer from out of town, you 20 say? 21 A: Correct. I -- I believe, as I 22 indicated in my earlier evidence, I was again on another 23 occasion at the detachment in Forest and I was leaving 24 the -- the area, going to my police vehicle which was 25 parked in a parking lot adjacent to the Forest
1161 Detachment, and as I was walking across the parking lot 2 an officer from out of town, who I didn't know 3 personally, approached me and he asked me if I -- that I 4 was one (1) of the Incident Commanders and I said, Yes, I 5 -- I had been one (1) of the Incident Commanders. 6 And he said we had some T-shirts made and 7 here's one for you. And I took the T-shirt and tossed it 8 into the trunk of my car with my other kit. 9 Q: So he had a stack of T-shirts that he 10 was distributing? 11 A: Yes. He -- he was selling to other 12 officers, as I understand it now. 13 Q: I see. So he was selling them at the 14 Forest Detachment to other officers, but you he gave a 15 complimentary copy. 16 A: That's right. 17 Q: Did you notice where in the 18 Detachment he was selling them? Was -- was there a 19 counter somewhere there? 20 A: No. Well I -- I'm assuming he was 21 selling them there. I got the impression that they were 22 distributing them to other officers. But my encounter 23 with him was in the parking lot and I can't be 100 24 percent accurate, but it seems to me that -- that he had 25 retrieved from a cruiser nearby.
1171 Q: I see. Now if you could, please, 2 sir, turn to the second discipline volume and Tab 105 3 thereof. 4 A: I'm sorry, tab? 5 Q: Tab 105 of the second volume which is 6 P-1052. This is a document you were asked about a few 7 moments ago by Mr. Millar, and a written report of, one 8 might say counselling by the Deputy Commissioner with 9 respect to this matter. 10 A: Well I -- I would differ in the 11 interpretation. 12 Q: Okay. How would you characterize it? 13 A: It was to be a non-disciplinary 14 discussion around the issue of the memorabilia. 15 Q: I see. And the words that you've 16 chosen you chose carefully because they have a technical 17 meaning within police disciplinary processing? 18 A: Well I -- I would just like to make 19 it very clear that from a personal point of view, when -- 20 when I was informed that Deputy Boose had requested I 21 attend for this non-disciplinary discussion, that I 22 protested strongly from the perspective that when one 23 goes to a senior officer's office for a discussion, it's 24 hard not to have an air of discipline to it in -- in the 25 junior officer's mind.
1181 And I would suggest that was certainly on 2 my mind. And when Chief Coles spoke about it that I 3 should attend, I was certainly questioning the reason and 4 was there some indication that I was being found 5 responsible or being disciplined in some way. 6 And he -- and he assured me, in no 7 uncertain terms, it wasn't discipline. 8 Q: Yeah. 9 A: And I suggested to him that it felt 10 like that to me. And in fact, my understanding is that 11 Chief Coles and Deputy Boose had a subsequent discussion 12 about that, and I was assured, strongly assured, that 13 this had no discipline connotation to it whatsoever. 14 Q: I see. So what was, just in brief 15 summary, the content of the discussion, the non- 16 disciplinary discussion. 17 A: The -- the non-disciplinary 18 discussion basically was around the report that had been 19 provided by the investigator, some of the findings and -- 20 and my statement, which you've reviewed, and my 21 involvement. 22 And -- and I -- I can assure you I recall 23 that meeting to the point that I also explained to the 24 Deputy that the statement to the good Staff Sergeant 25 around the arrow and the shoulder flash had some stronger
1191 connotations than the report indicated. 2 And the majority of the discussion was 3 how, as police leaders, we can ensure that this kind of 4 thing doesn't happen again and make sure that our 5 officers, you know, appreciate the -- the issues that 6 this creates and to -- to ensure that we move forward in 7 a positive way. 8 Q: Now you had told the investigator 9 earlier that you saw nothing wrong with the T-shirt that 10 we just looked at a photograph of, right? 11 A: At -- at the time I hadn't really 12 turned my mind to it, quite frankly. 13 Q: Yes. In the course of your 14 discussion with Deputy Commissioner Boose, was there a 15 discussion as to whether there was something wrong with 16 that T-shirt? 17 A: Well there's -- there's no doubt 18 about it. By the -- by the time that discussion had 19 taken place, I certainly understood where the 20 sensitivities were and certainly had changed my view on 21 that. 22 Q: I see. And you came to the view that 23 there was something wrong with that T-shirt? 24 A: There's -- there's certainly no -- no 25 doubt about it that there is from the perspective that
1201 clearly it could be perceived in a negative fashion and 2 be deemed insensitive by others, despite, you know, the 3 intent of the officers involved to not create that kind 4 of an environment. 5 Q: Well, how -- how do you know that 6 there was an intent by the officers involved to not 7 create that? 8 A: It was in the report. 9 Q: I see. And so just from the report 10 is -- you're concluding that from the report? 11 A: Yes. 12 Q: I see. But you recognize that it was 13 very inappropriate and might be regarded as extremely 14 offensive by First Nations people? 15 A: I can appreciate that, yes. 16 Q: And was there discussion in the 17 course of your meeting with the Deputy Commissioner at 18 the time of how inappropriate it was? 19 A: I can assure you that he -- he 20 understood, I think very clearly, that I got the message. 21 Q: I see. Now, as you undoubtedly have 22 heard, at this Inquiry another T-shirt has surfaced? 23 A: Yes. 24 Q: That shows a TRU symbol against a 25 broken arrow against an anvil; you're aware of that --
1211 that - 2 A: I am now. Yes. 3 Q: -- image? Yes. 4 A: Yes. 5 Q: And, again, Mr. Millar kindly puts it 6 on the screen and it is Exhibit -- 7 MR. DERRY MILLAR: P-1494. 8 MR. PETER ROSENTHAL: P-1494. 9 10 CONTINUED BY MR. PETER ROSENTHAL: 11 Q: Now, sir, in the period around ten 12 (10) years ago, did you see some of these T-shirts? 13 A: No, sir. 14 Q: Never saw one? 15 A: Never saw one. 16 Q: With respect to the other T-shirt, 17 the one that you had, you saw other officers wearing it 18 from time to time? 19 A: Never. 20 Q: Never. 21 A: I've never seen anyone with one. 22 Q: Did you wear it from time to time? 23 A: Never. 24 Q: I see. And you told us that you 25 don't possess it any longer?
1221 A: Correct. 2 Q: When did you give up possession? 3 A: Well, when all this came to light, 4 when all this controversy occurred. 5 Q: You mean with respect to the Inquiry 6 or with respect to the investigation ten (10) years -- 7 A: No, ten (10) years ago. 8 Q: Ten (10) years ago. Now, at the 9 meeting with the Deputy Commissioner, was the policy that 10 I pointed you to earlier about policing of First Nations 11 people, was that discussed at all, sir? 12 A: The Ministry of Natural Resources? 13 Q: Yes, the policy that we looked at a 14 few moments ago? 15 A: I don't believe he would have even 16 been aware of that. I -- I -- no, I don't believe so. 17 Q: Well, it was part of the discipline 18 file here, as we've seen. And it was -- 19 A: It -- it wasn't -- I don't recall 20 discussing that point. 21 Q: I see. And it was -- perhaps I 22 should indicate to you, going back now to Tab 17 of P- 23 1051, if you look at page 18 of that document, several 24 pages from the end, and at page 18, it's written in words 25 "page eighteen," don't be confused by the number 17 which
1231 is the tab number? 2 A: Page 18? 3 Q: Yes. 4 A: Yes. 5 Q: Page 18 is headed, "Pinery/Ipperwash 6 Park Policy." 7 A: Yes. 8 Q: And begins: 9 "Mr. Cloud felt that some of the policy 10 established by redacted was 11 discriminatory to First Nations people. 12 He felt that the reporting of all 13 incidents involving First Nations 14 persons to supervisors was 15 discriminatory in that it involved only 16 First Nations persons." 17 Now, the findings of the investigator with 18 respect to that policy are -- occur in the middle of that 19 page: 20 "This policy was drafted by Ministry of 21 Natural Resources personnel and not the 22 Ontario Provincial Police, although it 23 has been forwarded to [redacted] 24 indicating the issue has been raised 25 during the investigation. It was
1241 provided for his information to do with 2 as he sees fit." 3 Now, that seems to ignore what I pointed 4 you to earlier at Tab 39 about Staff Sergeant Bouwman and 5 being involved in setting the policy, as he said. 6 But in any event, this one (1) part of the 7 investigator's report, and so now given that I ask you 8 again, just for clarity, and I believe your answer will 9 be the same, but this was not discussed at all at your 10 meeting with the Deputy Commissioner? 11 A: No. I have no recollection of that 12 whatsoever. 13 Q: Thank you. Now, with respect to the 14 investigation of possible perjury by PC Cossitt, were you 15 interviewed at all with respect to that investigation, 16 sir? 17 A: No. 18 Q: And did you have any input into that 19 investigation? 20 A: None. 21 Q: Thank you very much. 22 Thank you, Mr. Commissioner. 23 COMMISSIONER SIDNEY LINDEN: Thank you 24 very much, Mr. Rosenthal. 25 MR. DERRY MILLAR: Commissioner, could I
1251 just have two (2) minutes? I need to get something from 2 the office before we start the next cross-examination. 3 COMMISSIONER SIDNEY LINDEN: Should we 4 just stay in place -- 5 MR. DERRY MILLAR: Yes. 6 COMMISSIONER SIDNEY LINDEN: -- or do you 7 want to take a short...? 8 9 (BRIEF PAUSE) 10 11 MR. DERRY MILLAR: Thank you, 12 Commissioner. 13 COMMISSIONER SIDNEY LINDEN: Thank you. 14 Mr. Falconer...? 15 16 (BRIEF PAUSE) 17 18 CONTINUED CROSS-EXAMINATION BY MR. JULIAN FALCONER: 19 Q: Good morning, Deputy Commissioner 20 Carson? 21 A: Good morning, sir. 22 Q: I'm still Julian Falconer and I still 23 act for Aboriginal Legal Services of Toronto. 24 Deputy Commissioner Carson, in terms of 25 the areas of questions I'm going to be asking you about
1261 it relates to one (1) issues of race generally as they 2 pertain to the Ipperwash matter, all right, and (2) more 3 narrowly as they relate to the records, the discipline 4 records that were ultimately produced. Right? 5 You've had a chance to review these 6 discipline records have you? 7 A: Yes. 8 Q: Okay. Now, I want to start with 9 understanding what you know or don't know about the 10 investigation into the conduct of Whitehead and Dyke. 11 You would have been I take it Deputy 12 Commissioner when public revelations were made about the 13 -- the tapes; is that fair or...? 14 A: No, sir, that's not correct. 15 Q: All right. What would your role or 16 position have been when public revelations about the 17 Whitehead/Dyke statements were -- were -- came to light? 18 A: I -- I believe and I think if you can 19 provide me the date it seems to me it was -- 20 Q: Sure. 21 A: -- '03 but during '03 I was a Bureau 22 Commander of Information Technologies. 23 Q: All right. So if we could for a 24 moment look then at Exhibit P-1051 Tab 1 of that? You 25 should have tabs, right? Do you have tabs for your --
1271 A: Yes, sir. 2 Q: Okay. So if you turn to Tab 1 3 there's a report and it refers to a date of complaint and 4 you see the date of complaint is July 25th, 2003, so why 5 don't we peg that as a -- as a starting point, fair? 6 A: Fair enough. 7 Q: All right. And you would have been a 8 Bureau Commander at that time? 9 A: That's right. 10 Q: When did you become Deputy 11 Commissioner? 12 A: November 10th, 2004. 13 Q: All right. Now, when would it have 14 come to your attention that these two (2) officers 15 Whitehead and Dyke had engaged in the conduct attributed 16 to them? 17 A: When would it become? 18 Q: Yeah. 19 A: I'm not sure. It would have 20 certainly been around that time in July I suppose but -- 21 Q: I -- 22 A: -- I -- I'm not even sure of the 23 circumstances of how I found out but it wasn't like 24 someone reported to me that this had occurred and I 25 should be aware of it sort of thing. I'm not sure how I
1281 was informed. 2 Q: All right. And I appreciate you 3 would not -- did -- did you play a formal role in the 4 investigative dispositions; that is the dispositions of 5 discipline as they relate to Whitehead and Dyke? 6 A: None. 7 Q: All right. But having said that of 8 course, you were the Incident Commander at the material 9 time so you took more than a passing interest? 10 A: Oh, of course. 11 Q: And you took more than a passing 12 interest because the conduct that they were alleged to 13 have engaged in, happened on your watch? 14 A: That's ex -- sure. 15 Q: Under your command? 16 A: Correct. 17 Q: So could we go to Tab 1 and in 18 particular I want to read to you, the statements 19 attributed to Whitehead and Dyke and ask you some 20 questions about them. 21 I'm at Tab 1 and I'm at the second page of 22 the report. Do you see the second page? 23 A: Yes, sir. 24 Q: It quotes: 25 "The first part of the video tape and
1291 it indicates that the members were 2 posing as members of the press. Some 3 of this part of the recording appears 4 to be consciously focussed shortly 5 after the video recording turns to a 6 blue screen. Not recording images but 7 the audio recording continued. 8 Near the end of the recording, we can 9 hear comments such as 10 [quote/unquote]'fat fuck', chanting hey 11 how are you, just a great big fat 12 fucking Indian." 13 We had this plan. If we got five (5) 14 or six (6) case of Labbatt's 50, we 15 could bait them. Then we could get 16 this big net in a pit. Creative 17 thinking works in the south with 18 watermelons." 19 I take it you would have become familiar 20 in the year 2003 that these comments were made by Officer 21 Dyke? 22 A: Yes. 23 Q: All right. Next -- well let me -- 24 let me just pause there and not -- not jump around too 25 much. Let me ask you something about Dyke and Whitehead.
1301 Detective Sergeant Don Bell, he was in 2 essence your designate in charge of intelligence at the 3 Ipperwash Park incident, correct? 4 A: So to speak, yes. 5 Q: All right. And at page 34 of his 6 examination-in-chief by Ms. Vella on June 7th, 2006. I'm 7 at line 1, it's two (2) questions and answers, it's quite 8 brief. Question, and this is Ms. Vella in-chief asking 9 Detective Sergeant Don Bell questions: 10 "Q: Now under Project Maple as it 11 operated from September 1st to 6, 1995, 12 whose job was it on the intelligence 13 team to check facts? 14 A: To check facts? 15 Q: Verify them. 16 A: Certainly in the intelligence 17 office at that time it was myself, 18 Darryl Whitehead, Jim Dyke to a degree. 19 The information if it came in was 20 received by a particular officer. It 21 was incumbent upon them to follow up on 22 it and ensure that the information that 23 they received was 24 accurate." 25 That's the answer by Detective Sergeant
1311 Don Bell. Is he accurate in -- in the way he describes 2 the roles of Whitehead and Dyke? 3 A: That's fair. 4 Q: All right. And so backing up a step, 5 if I may ask you a question. Would you agree with me 6 that in relying upon intelligence officers to check 7 facts, you know and expect them to exercise their 8 judgment? 9 A: Sure. 10 Q: And of course as now a Deputy 11 Commissioner and as a long standing police officer, you 12 know that the exercise of judgment by a police officer is 13 premised in large part on that officer's ability to be 14 detached and free as much as possible from bias? 15 A: Fair enough. 16 Q: And for example, you know, that -- 17 let's move right out of Ipperwash Park for a moment and 18 let's get on the road. 19 You know that if a police officer sees a 20 vehicle and he pulls that vehicle over, the vehicle could 21 have a broken tail light and the officer could walk up to 22 the car and say, sir, you have a broken tail light. I 23 need to see you license et cetera, and undergo an entire 24 examination of that person within the confines of the 25 Highway Traffic Act.
1321 And if the reason he pulled the person 2 over was for a broken tail light, there would be no 3 problem, correct? 4 A: Absolutely. 5 Q: But if on the same facts, that is on 6 the same facts, he sees a broken tail light but the real 7 reason he pulled the person over was he saw a very 8 luxurious car and an African Canadian male in a fancy 9 track suit sitting in the front and the reason he pulled 10 him over is he thought he may have a potential drug bust, 11 that would be a pretext stop, correct? 12 A: Correct. 13 Q: And so you could have the very same 14 facts but in the one(1) hand exercising the discretion 15 the officer would be acting properly. 16 But on the other hand with a bias, a built 17 in bias he would be acting improperly, correct? 18 A: The officer should exercise his 19 duties relative to the behaviour he observes as opposed 20 to the person themselves. 21 Q: Exactly. And all of that is to say 22 and this is of no surprise to you and you know where I'm 23 going with this, is that you relay upon a police officer 24 exercising their enforcement functions to do it based on 25 facts and not their prejudices?
1331 A: Correct. 2 Q: What steps did you take following the 3 revelations about Whitehead and Dyke's statements to 4 determine what role they had in cultivating or dealing 5 with facts that were getting back to you as Incident 6 Commander in September 1995? 7 A: What did I do in 2003? 8 Q: Yes. 9 A: Well, there was nothing I could do 10 relative to what had already taken place in 1995, sir. 11 Q: Let me give you an example of what 12 I'm asking you. At any time did you go to one (1) of 13 your superiors and say, we should be looking into or we 14 need to know what Whitehead and Dyke had by way of 15 information they fed us? 16 Was there any effort on your part to find 17 out what responsibility they played for the information 18 you received? 19 A: No. 20 Q: Did you do anything? 21 A: No. 22 Q: Right. I'm looking at this 23 investigation report and nowhere in it do I find an 24 interview of you directed at determining how much and to 25 what extent you relied upon information from Whitehead
1341 and Dyke, am I right? 2 A: That's correct. 3 Q: So no one came to you as Incident 4 Commander and said, Whitehead seems to have biases about 5 big fat fucking Indians, what did he say to you or 6 provide to you by way of information you may have relied 7 on, no one did that? 8 A: No, that wasn't reviewed. 9 Q: Pardon me? 10 A: That was not reviewed, to my 11 knowledge. 12 Q: In addition to not going to you when 13 you say that wasn't reviewed, you'd agree with me that in 14 addition to not going to you, to your knowledge it has 15 never actually been assessed what role Whitehead and Dyke 16 had in filtering information to the Incident Commander, 17 that's never been assessed? 18 A: Well, I think if you go back to what 19 Sergeant Bell, now Inspector Bell told you, I believe he 20 was the officer in charge of the intelligence and it 21 would be up to him to analyse information that was 22 brought forward and to place the level of veracity or the 23 level of, grasping for terminology here, the -- 24 Q: Well, the terms he used, the 25 information if it came in and was received by a
1351 particular officer it was incumbent upon them to follow 2 up on it and ensure that the information that they 3 received was accurate? 4 A: Yes. So that not only accurate but 5 intelligence information comes in in many forms and 6 sometimes it's difficult to determine if it is valid 7 information, rumour information, as to how much weight 8 you can apply to it. And that's part of their role as an 9 intelligence unit. 10 Q: And it's what you expected of them at 11 the time? 12 A: Sure. Yeah. 13 Q: And -- and you had no reason, for 14 example, you didn't have a window into Whitehead or Dyke 15 and let's focus for a moment on the Dyke statements, all 16 right, because the Dyke statements are extreme, agreed? 17 A: Absolutely. 18 Q: They're racist, aren't they? 19 A: Yes, they are. 20 Q: Right. So you didn't have a window 21 into that kind of racist thinking by Dyke? 22 A: No. 23 Q: And -- 24 A: In fact, if I can, Constable Dyke -- 25 I -- I knew Constable Dyke actually for several years. I
1361 found his comments extremely out of character for the 2 type of language I'd ever heard come from that man all 3 the time I've ever known him. 4 I -- I can't believe in my presence -- or 5 I don't -- I don't recall ever in my presence where he 6 was one who would even in a normal course of conversation 7 use swear words. 8 So when I heard -- when I heard this tape 9 I was quite astounded, to say the least. 10 Q: Fair enough. But can you and I agree 11 on something; that we can be surprised about what people 12 do out of our -- out of our company? 13 A: Absolutely. 14 Q: And that doesn't mean that that 15 person -- that doesn't mean that that person doesn't have 16 the proclivity, the negative proclivity we've just 17 learned? 18 A: I would agree. 19 Q: And so people have to live with the 20 consequences of their actions? 21 A: Absolutely. 22 Q: So if Dyke speaks in terms of First 23 Nations people when he thinks he's not being recorded, 24 them as "big, fat, fucking Indians"; right, it shows a 25 racist state of mind?
1371 A: It shows his views, absolutely. 2 Q: Well, you were careful there. You 3 said "it shows his views". I put it to you it shows a 4 racist state of mind, those words? Let me add several 5 other words to those words. Quote: 6 "We had this plan. If we got five (5) 7 or six (6) cases of Labatt's 50 we 8 could bait them then we could get this 9 big net and a pit. Creative thinking. 10 Works in the south with watermelons." 11 That depicts a racist state of mind, 12 agreed? 13 A: Yes. 14 Q: All right. Now, having said that, 15 the aspect that I'm interested in from the point of view 16 of an Incident Commander is that in this case you now 17 know, we went into all of the different things and you 18 spent many days doing your best in terms of addressing a 19 lot of questions. You did yeoman's duties as the 20 Witness. 21 So we're not going to re-tread but we do 22 know that you ended up with inaccurate information about 23 the actions of First Nations people as they pertained to 24 the car, the -- the incident involving the -- a single 25 stone being thrown at a car?
1381 A: Correct. 2 Q: It morphed into five (5) to ten (10) 3 natives with bats attacking a vehicle of a private 4 citizen. 5 It morphed, didn't it? 6 A: Hmm hmm. Correct. 7 Q: And you to this day still don't know 8 how it morphed? 9 A: That's correct. 10 Q: We also know that there are 11 individuals who were attributed to have had AK-47's and a 12 whole realm of fancy automatic -- 13 COMMISSIONER SIDNEY LINDEN: Mr. 14 Falconer, just calm down. 15 MR. JULIAN FALCONER: Sorry. And -- 16 COMMISSIONER SIDNEY LINDEN: Ask the 17 questions. Just calm down. 18 MR. JULIAN FALCONER: I apologize. 19 COMMISSIONER SIDNEY LINDEN: That's fine. 20 MR. JULIAN FALCONER: It's called body 21 English and I'll just slow it down. 22 23 CONTINUED BY MR. JULIAN FALCONER: 24 Q: We also know there are individuals 25 who allege to have had weapons and it evolved into a
1391 whole slough of automatic weaponry. 2 We know that too, right? 3 A: Well, I think you heard evidence 4 where that information came from. 5 Q: That's right. Now, we know from the 6 press release that you, sir, issued, do you remember you 7 called it a -- a gap? There was a gap or a window. 8 You called it a window to issue a press 9 release? 10 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 11 Falconer, Mr. Sandler has a... 12 MR. MARK SANDLER: I suspect you know 13 what I'm going to suggest. 14 COMMISSIONER SIDNEY LINDEN: I'm not sure 15 but I want to hear what you have to say. 16 MR. MARK SANDLER: I'm suggesting that 17 we're far beyond the scope of the agreement as to why 18 Deputy Commissioner Carson is here. I really think this 19 is just revisiting so many issues that we've already 20 dealt with, with great respect. 21 And -- and we have to have some sort of a 22 touchstone -- 23 COMMISSIONER SIDNEY LINDEN: Yes. 24 MR. MARK SANDLER: -- to what the 25 evidence has been about Dyke's involvement as well, I
1401 mean this Witness testified previously -- I mean the 2 OPP's been criticized for the limited reliance upon 3 intelligence that was placed and upon the fact that this 4 wasn't intelligence-driven action and then now -- now 5 we're getting into this issue. 6 And with great respect there's no 7 evidence that would support -- the car had nothing to do 8 with Dyke. The information on the car and the like. And 9 we're just so far afield with great respect. 10 COMMISSIONER SIDNEY LINDEN: Yes. 11 MR. JULIAN FALCONER: Well, first of all 12 I -- I don't accept that we're far afield. Whether the 13 example I chose as one (1) of the examples of 14 misinformation is directly traceable to Dyke and 15 Whitehead is -- is arguable because on the one (1) hand 16 it's not. I -- I accept -- 17 COMMISSIONER SIDNEY LINDEN: I don't see 18 it being even arguable at this point. 19 MR. JULIAN FALCONER: Well, I was trying 20 to explain why. 21 COMMISSIONER SIDNEY LINDEN: Yes, okay, 22 go ahead. 23 MR. JULIAN FALCONER: On -- on the one 24 (1) hand it's arguable in the sense that the information 25 did not filter through them --
1411 COMMISSIONER SIDNEY LINDEN: Well, -- 2 MR. JULIAN FALCONER: -- to the Incident 3 Commander. It didn't. 4 COMMISSIONER SIDNEY LINDEN: No, that's 5 right. 6 MR. JULIAN FALCONER: On the other hand 7 either the failure to do the job around the information 8 or the failure to act as the filter as they should have 9 could well have been a conscious decision, that is I 10 don't care. I don't care if they're depicted as savages. 11 COMMISSIONER SIDNEY LINDEN: There's -- 12 MR. JULIAN FALCONER: I don't care. 13 COMMISSIONER SIDNEY LINDEN: There's no 14 evidence to support that at this point. 15 MR. JULIAN FALCONER: Well, there's 16 evidence to support -- 17 COMMISSIONER SIDNEY LINDEN: Just -- 18 MR. JULIAN FALCONER: -- that they 19 harboured racist attitudes and how those racist attitudes 20 played out at Incident Command is what I'm exploring so I 21 -- I can move on -- 22 COMMISSIONER SIDNEY LINDEN: That's fine, 23 carry on. 24 MR. JULIAN FALCONER: -- and do this in a 25 way that --
1421 COMMISSIONER SIDNEY LINDEN: Move on. 2 MR. JULIAN FALCONER: -- doesn't put 3 emphasis on that single fact. 4 COMMISSIONER SIDNEY LINDEN: Yes, carry 5 on. 6 7 CONTINUED BY MR. JULIAN FALCONER: 8 Q: Where I'm headed, Deputy Commissioner 9 Carson, is that it becomes very difficult to go backwards 10 and figure out where each kernel of information came from 11 and who should have looked at it and who should have 12 determined its reliability or simply accepted it on its 13 face. 14 It's very hard to work backwards, isn't 15 it? 16 A: Sure. 17 Q: And therefore, it is absolutely 18 essential that there be a certain level of integrity to 19 the people who are filtering information on the spot as 20 decisions are being made minute by minute and second by 21 second, correct? 22 A: Yes, we depend on the integrity of 23 our officers every day. 24 Q: That's right, but in a high-risk 25 incident where you're making decisions by the minute your
1431 filters for information are absolutely crucial, agreed? 2 A: I accept the information as valid if 3 it's put forward to me. I expect it to be information 4 with integrity. 5 Q: Would you agree with me that while it 6 is difficult to work backwards and figure out what was 7 bad information due to poor filters involving Whitehead 8 or Dyke it is extremely troubling that the kind of racist 9 attitudes as reflected in the Dyke statements would be 10 attached to a filter for information for Incident Command 11 at Ipperwash Park on September 6th, 1995? 12 A: Certainly not what we want. 13 Q: It's extremely troubling, isn't it? 14 A: Absolutely. 15 16 (BRIEF PAUSE) 17 18 Q: At Tab 6, if you could turn to Tab 6 19 please of the same volume that you were on. So it's P- 20 1051, it's Volume I. 21 And what Tab 6 is, is a statement by 22 Officer Darryl Whitehead. 23 Do you have that in front of you? 24 A: Yes, I do. 25 Q: All right. Now at Tab 6 the second
1441 page in because I don't see page numbers. But the nature 2 of the copying on mine may be the reason. 3 Do you see that? 4 A: Yes. 5 Q: Second page in? There -- there are 6 no numbers. I apologize actually. If you could go to 7 the third page in. My apologies, Deputy Commissioner. 8 If you could go to the third page in. 9 Fourth to last paragraph. I'm sorry, fifth to last 10 paragraph. So if you go to the middle and it says "At 11 tape count 02:6:04." 12 Do you see that? 13 A: Yes. 14 Q: "At tape count 02:6:04 There is an 15 utterance which I believe is my voice." 16 Now you -- you appreciate, sir, that -- 17 that is Deputy Commissioner Carson, we're talking about 18 now Darryl Whitehead. 19 So these are statements that Darryl 20 Whitehead acknowledges he made, all right? 21 A: Okay. 22 Q: "At tape count 02:6:04 there is an 23 utterance which I believe is my voice 24 in which I state [quote] "big fat 25 fuck".[close quote]. I have no
1451 independent recollection who or what 2 this comment is directed towards. 3 At tape count 02:6:36 there is an 4 utterance which I believe is my voice 5 which I state [quote] "This is a burial 6 ground, let's do some donuts on the 7 burial ground where our ancestors are 8 buried." [close quotes] 9 This comment was made as a result of 10 observing occupiers within the Base and 11 there are vehicles doing donuts in 12 areas they considered sacred. 13 This activity is depicted on this tape 14 and tape count 853 at tape count 15 02:7:38 we exit the vehicle and speak 16 with an unknown person. He asked, is 17 the press still down there to which I 18 replied, [quote]"No, just this big fat 19 fucking Indian". Close quotes. 20 We're agreed these are racist statements, 21 correct? 22 A: Correct. 23 Q: Now would you agree with me that in 24 terms of process, in terms of process, that overt racist 25 acts by OPP officers in positions capable of influencing
1461 Incident Commanders is something that represents a 2 serious matter? 3 A: It would certainly give a serious 4 concern of course. 5 Q: Right. And it represents a serious 6 matter that would impact on the reputation of the 7 service, yes? 8 A: Of course. 9 Q: Now what we've heard from 10 Commissioner Boniface is that the -- the disposition in 11 relation to Whitehead, Dyke no longer contracts with the 12 OPP. 13 A: Right. 14 Q: Amounts to involvement in courses, 15 some of which I think he bore the expense of to be fair 16 to the facts and secondly, a docking of twenty-eight 17 hundred dollars ($2800) in a bank. 18 You're familiar with that as a 19 disposition? 20 A: Yes. He received twenty-four (24) 21 hours that was deducted from his overtime bank and plus 22 he, I believe deducted an additional thirty-two (32) 23 hours to attend the Awareness Program on his own time. 24 Q: Fair, okay. Okay. And -- and when 25 we talk about this bank, you're a Deputy Commissioner
1471 now, so that I'm able to ask you questions from two (2) 2 sides. 3 I was at Incident Commander a little while 4 ago and John Carson now it's John Carson as Deputy 5 Commissioner, all right? 6 A: Right. 7 Q: We're -- we're shifting a little bit 8 but it's over issues of race and it's over issues of 9 discipline. 10 A: Right. 11 Q: May I understand then can you tell 12 the public because yes, there was a discussion yesterday 13 about the bank or the hours or the day before but 14 frankly, it's still a little bit hazy. 15 When you say 'bank' what is happening? Is 16 -- is and I don't think this is happening but is 17 Whitehead writing a cheque for twenty-eight hundred 18 dollars ($2800)? 19 A: Okay. Well what happens is when an 20 officer works overtime, they have an option, a) they can 21 elect to take it immediately for pay or b) they can elect 22 to put it into a bank. 23 So for instance, an officer may have in a 24 month have worked fifty (50) hours overtime. So he may 25 have or she may have elected to put that in the overtime
1481 bank and use it hour for hour to take compensating time 2 off at another day. 3 Or at another time, they can elect to have 4 those hours paid out the same way they would have at an 5 initial election to be paid at the time that was earned. 6 So those hours, hour for hour are of the 7 same value if you would, as their paycheck to -- to make 8 it quite simple. 9 In this case the twenty-four (24) hours is 10 deducted from the overtime bank of his work that he has 11 accumulated hours for. I don't know, is that clear? 12 Q: Yes, thank you very much. 13 A: Okay. 14 Q: That was helpful. And I'm sure many 15 knew that but I thought it should be on the record. Now, 16 having said that, what that means then is a credit that 17 he had for overtime paid is applied and the value of the 18 credit approximates twenty-eight hundred dollars ($2800)? 19 A: That sounds about right. 20 21 (BRIEF PAUSE) 22 23 Q: Would you forgive a person in the 24 public or Sam George or someone for thinking that a 25 twenty-eight hundred dollar ($2800) deduction from an
1491 overtime credit plus some courses for the kind of racist 2 statements depicted in these records seems a rather light 3 disposition? 4 Would you forgive someone for thinking 5 that? 6 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 7 Sandler...? 8 MR. MARK SANDLER: I just want to point 9 out something, and I may not be able to stop the cross- 10 examination, but we had here Commissioner Boniface who 11 was responsible for the decision made as to what the 12 discipline should be and wasn't asked about any of this. 13 And I think that's very unfortunate 14 because, as My Friend said in cross-examining her, she's 15 a sophisticated Commissioner. She was involved in the 16 decision making. She was here prepared to explain why 17 she made those decisions. 18 COMMISSIONER SIDNEY LINDEN: Yes, and -- 19 MR. MARK SANDLER: And never cross- 20 examined on the points that are now being cross-examined. 21 COMMISSIONER SIDNEY LINDEN: And Deputy 22 Commissioner Carson had no involvement in these matters. 23 MR. MARK SANDLER: And he had no 24 involvement. 25 COMMISSIONER SIDNEY LINDEN: Yes. Yes,
1501 Mr. Millar...? 2 MR. DERRY MILLAR: Well, I agree with Mr. 3 Sandler that this type of question should have been put 4 to Commissioner Boniface who was the person responsible. 5 COMMISSIONER SIDNEY LINDEN: Yes...? 6 MR. JULIAN FALCONER: Counsel isn't -- 7 counsel doesn't have to declare a witness that they do a 8 cross-examination on. 9 COMMISSIONER SIDNEY LINDEN: No. 10 MR. JULIAN FALCONER: So we're clear, 11 Commissioner Boniface did assist us yesterday and the day 12 before and she assisted us in the sense that this was the 13 disposition she thought was reasonable because, frankly, 14 if it went to a trial of a discipline hearing that there 15 would be no greater penalty at the end of a trial. 16 She said that and I accept that. That 17 doesn't change my questioning of this officer, a Deputy 18 Commissioner who relied on these people at Incident 19 Command, about whether the -- 20 COMMISSIONER SIDNEY LINDEN: That's got 21 nothing to do with it, Mr. Falconer. I mean, please, try 22 to keep your questions focussed. 23 MR. JULIAN FALCONER: Well, the -- I'm -- 24 I am going somewhere with this and it is -- it's 25 important because to the extent this clearly impacted on
1511 the integrity of this officer's operation in September -- 2 COMMISSIONER SIDNEY LINDEN: I don't see 3 any connection at the moment. 4 MR. JULIAN FALCONER: Well, I -- 5 COMMISSIONER SIDNEY LINDEN: 6 Notwithstanding your questions, I don't. There's -- 7 MR. JULIAN FALCONER: There's no 8 connection between the integrity of the operation and 9 having two (2) intelligence officers be racists? 10 COMMISSIONER SIDNEY LINDEN: No, no, no. 11 That's not -- 12 MR. JULIAN FALCONER: With great respect 13 that's -- 14 COMMISSIONER SIDNEY LINDEN: - no, that's 15 not what I said. 16 MR. DERRY MILLAR: Well, that's not what 17 the Commissioner said. 18 COMMISSIONER SIDNEY LINDEN: No, that's 19 not what I said. 20 MR. DERRY MILLAR: But -- but -- you 21 know, the -- the question that was asked has nothing to 22 do with the -- the comments that My Friend just made. 23 COMMISSIONER SIDNEY LINDEN: Yes, that's 24 right. 25 MR. DERRY MILLAR: And the objection is
1521 to the question to this Witness, was that a good enough - 2 - in effect, was that a good enough penalty given -- 3 COMMISSIONER SIDNEY LINDEN: That's 4 right. 5 MR. DERRY MILLAR: -- the seriousness and 6 that's the kind of question that should have been put to 7 the actual person in charge who was here yesterday. 8 COMMISSIONER SIDNEY LINDEN: Yes, you can 9 argue this later. It's got -- 10 MR. JULIAN FALCONER: No, no -- 11 COMMISSIONER SIDNEY LINDEN: This witness 12 had nothing to do with it. 13 MR. JULIAN FALCONER: No, but I was 14 specifically told that the issue of racism in the OPP was 15 a matter that I could reserve for questioning of -- 16 COMMISSIONER SIDNEY LINDEN: And you are. 17 You're asking these questions. 18 MR. JULIAN FALCONER: Right. And I'm now 19 dealing with how the OPP deals with acts of racism. And 20 it may be that they are unfairly fettered. It's not that 21 people can't object today, they can. I'm not saying I 22 have an unfettered right to ask questions. 23 COMMISSIONER SIDNEY LINDEN: Of course, 24 not. 25 MR. JULIAN FALCONER: What I'm saying --
1531 what I am saying is that how -- the OPP may well be 2 fettered by adjudicative precedent that doesn't allow 3 them to go any further. But I want to bring that out and 4 I can use the Deputy Commissioner to bring it out just as 5 well as I can use the Commissioner. I don't have to 6 choose which witness. 7 I'm not being unfair. I'm not asking him, 8 did you make this decision and criticize him. I'm saying 9 would he agree with me that given the fact that it 10 appears he couldn't do more, that it seems rather light; 11 that's all. 12 MR. DERRY MILLAR: Well, the question 13 should have been put to the person who was here. This 14 isn't a trial. This isn't a trial where My Friend can, 15 you know, do whatever -- you know, make these legalistic 16 points. 17 COMMISSIONER SIDNEY LINDEN: That's -- 18 MR. DERRY MILLAR: What we're trying to 19 do is to help you -- 20 COMMISSIONER SIDNEY LINDEN: Yes. 21 MR. DERRY MILLAR: -- do your job. 22 COMMISSIONER SIDNEY LINDEN: It's all 23 about an investigation and it's all about what I need. 24 And at this point I don't think I need this -- this 25 answer from this Witness.
1541 MR. JULIAN FALCONER: Fair enough. 2 3 CONTINUED BY MR. JULIAN FALCONER: 4 Q: When you testified during your 5 previous evidence, Deputy Commissioner Carson, you 6 testified that the individuals involved in the mugs and 7 T-shirts incidents as we knew them then, which has 8 morphed, you'd agree, right? 9 A: Yes. 10 Q: Right. As we knew them then it 11 involved the T-shirt with the fallen feather and it 12 involved the mugs. You testified that they were the 13 subject of informal discipline. 14 Do you remember saying that? 15 A: That was my belief, yes. 16 Q: All right. And I take it you now 17 know that that's inaccurate? 18 A: Correct. 19 Q: All right. Now, as -- if -- if I 20 could have Exhibit P-1005, I'm having it placed before 21 the Witness. 22 Now, I'm the one who has 1005 I realize. 23 I haven't given it back to the Registrar so I'll put it 24 in front of the Witness. 25 COMMISSIONER SIDNEY LINDEN: Do I have a
1551 copy of it somewhere, Mr. Falconer? 2 MR. JULIAN FALCONER: I have P-1005. 3 MR. DERRY MILLAR: Oh, My Friend has P- 4 1005. 5 MR. JULIAN FALCONER: Yes. I hijacked it 6 and I'm now returning it. I will take -- thank you. 7 I've made some copies of the extracts I -- 8 I want to ask you about to try to make this a little 9 easier, sir? So you can leave that with -- with 10 Commission Counsel; that would be the best person who has 11 that for now. All right. 12 13 CONTINUED BY MR. JULIAN FALCONER: 14 Q: I'm going to place some extracts in 15 front 16 of you, Deputy Commissioner, to understand first of all 17 what you understood the rules were then and what you 18 understand them to be now. 19 And the package should be in the following 20 order: first the definitions section. This is all from 21 Exhibit P-1005; the definitions section for the Standing 22 Orders under the Ontario Provincial Police, a police -- 23 the Police Services Act amendments, and the Police Orders 24 on -- on Professional Standards. There are three (3) 25 extracts I'm putting in front of the Witness.
1561 COMMISSIONER SIDNEY LINDEN: Have you got 2 a copy for me? Would you take this -- 3 MR. JULIAN FALCONER: Yes, I have a copy 4 for you, Mr. Commissioner. 5 COMMISSIONER SIDNEY LINDEN: Would you 6 take the original, Mr. Falconer, you may need it. 7 MR. DERRY MILLAR: Pardon me? 8 COMMISSIONER SIDNEY LINDEN: You may need 9 the original. 10 MR. DERRY MILLAR: No, this is our copy, 11 that one. 12 COMMISSIONER SIDNEY LINDEN: Oh, okay. 13 MR. DERRY MILLAR: No, but the copy of 14 the package -- 15 COMMISSIONER SIDNEY LINDEN: This is the 16 Registrar's copy? 17 MR. DERRY MILLAR: That's right. Now... 18 MR. JULIAN FALCONER: My suggestion is, 19 Mr. Commissioner, that you take my extracts just because 20 I've extracted the pages rather than having to shuffle 21 through everything. 22 COMMISSIONER SIDNEY LINDEN: That's fine. 23 MR. DERRY MILLAR: And just for purposes 24 of clarity of the record P-1005 is the police orders as 25 they stood in 1995. The one (1) that says, "Ontario
1571 Provincial Police Orders Definitions and Acronyms," I 2 think are from a later date although they -- they carry 3 through but at any rate I have -- I haven't looked at 4 that. And I'm not certain if the Police Services Act 5 amendments up to June 2005 are actually part of P-1005? 6 MR. JULIAN FALCONER: No, they're not. 7 They're not. 8 MR. DERRY MILLAR: Okay. 9 MR. JULIAN FALCONER: The idea was to 10 have the old -- the law as best as we could to have it 11 stand. Now, I had asked My Friends from the OPP if they 12 knew of a correction to this to tell me because I -- and 13 I have over these months never received a correction to 14 1005 as the rules as best as we could find them. 15 16 CONTINUED BY MR. JULIAN FALCONER: 17 Q: And I'm going to draw your attention 18 to a number of things to -- to clarify something with you 19 as a Deputy Commissioner today and as the relevant 20 Incident Commander back then. 21 First of all could I ask you this? Would 22 you agree with me that throughout your tenure since 1995 23 you have always understood that informal discipline was 24 intended to be -- and you can follow with me if you like 25 on the -- on the definitions section page 3 but:
1581 "A corrective action that may be taken 2 in relation to a complaint that does 3 not involve allegations of a serious 4 nature." 5 Has that always been your understanding of 6 what's informal discipline? 7 A: That's a general understanding, yes. 8 Q: All right. And you're a Deputy 9 Commissioner now and you'd agree with me that this isn't 10 -- this notion of definitions under the Ontario 11 Provincial Police orders, it's meant to -- to be 12 followed, yes? 13 A: That's right. 14 Q: All right. And then secondly in 15 addition to that definition of informal discipline if you 16 flip over the Police Services Act section, Section 64 17 involving complaints about police officers' conduct, I'm 18 just going to raise this to your attention. 19 It will be the second extract and I was 20 quite careful of just giving you the page I thought would 21 be helpful to you; there's two (2) pages. 22 The first one is 64(1): 23 "Subject to 59(3), (4), and (5) the 24 Chief of Police shall cause every 25 complaint made about the conduct of an
1591 officer other than the Chief of Police 2 or Deputy Chief of Police to be 3 investigated and the investigation to 4 be reported on in a written report." 5 So every time there is a complaint it's 6 expected that that happens, correct? 7 A: Yes. 8 Q: All right. And then the next page 9 under Subsection 64(11) and you flip to the next page and 10 you'll see "11". 11 "If at the conclusion of the 12 investigation on review of the written 13 reports submitted to him or her the 14 Chief of Police is of the opinion that 15 there was misconduct or unsatisfactory 16 work performance but it was not of a 17 serious nature the Chief of Police may 18 resolve the matter informally without 19 holding a hearing, [et cetera, et 20 cetera]." 21 Again, I simply bring to your attention 22 that the Police Services Act itself does the same thing, 23 does it not? It removes from the realm of informal 24 discipline, matters of a serious nature. 25 That was your understanding at the time
1601 and it's still your understanding today, correct? 2 A: Well, I -- I think you have to look 3 at it in broader terms than just that I mean, as a 4 general statement I would agree. But -- 5 Q: Okay. And that's -- I'm staying 6 general for now. 7 A: Okay. 8 Q: I'm just taking you through the 9 provisions to make sure you and I agree -- 10 COMMISSIONER SIDNEY LINDEN: I think you 11 have -- Mr. Falconer, I think you have to let the Witness 12 answer. 13 14 CONTINUED BY MR. JULIAN FALCONER: 15 Q: Well that's fine. I didn't mean to 16 cut you off but in a general proposition that's where I 17 was at. But if you want to continue -- 18 COMMISSIONER SIDNEY LINDEN: He didn't 19 finish his answer. 20 21 CONTINUED BY MR. JULIAN FALCONER: 22 Q: But if you want to continue, please 23 continue. 24 COMMISSIONER SIDNEY LINDEN: Mr. Falconer, 25 he --
1611 MR. DERRY MILLAR: Yeah, he should be 2 entitled to finish his -- 3 COMMISSIONER SIDNEY LINDEN: -- hasn't 4 finished his answer. 5 THE WITNESS: It's just that there's 6 certain options open to the Chief of Police or the person 7 in charge relative to informal discipline and depending 8 on the -- and -- and the informal process allows someone 9 to try and resolve an issue at the first opportunity by 10 using an informal process. 11 As opposed to forcing someone to a 12 hearing where there is agreement, there's an issue and 13 people agree, including the complainant, that the issue 14 is resolved by coming to some common understanding. 15 And I guess I would use an example where 16 maybe during a traffic stop, maybe some improper language 17 was used and the person stopped would be satisfied if the 18 officer apologized. 19 So the informal discipline approach is -- 20 is used in -- in a number of ways. So while it is 21 certainly for the -- at the front end for lesser matters, 22 at the end of the day there may be times when by 23 agreement that the informal process still applies 24 although the allegation is -- is certainly serious. 25 I'm not sure if that makes sense.
1621 2 CONTINUED BY MR. JULIAN FALCONER: 3 Q: Yes, it does. It's helpful. Now -- 4 COMMISSIONER SIDNEY LINDEN: Mr. 5 Falconer, just before you move on, you quoted a Section. 6 I didn't get it. After 64.1. 7 MR. JULIAN FALCONER: Sub 11. 8 COMMISSIONER SIDNEY LINDEN: Sub 11. 9 MR. JULIAN FALCONER: Yes, that's of the 10 second page of the extract. 11 COMMISSIONER SIDNEY LINDEN: That's fine, 12 okay. Yes, I've got it now. 13 14 CONTINUED BY MR. JULIAN FALCONER: 15 Q: Now the third package I put in front 16 of you as part of P-1005 is the Police Orders 17 Administration Part 1. Do you see that? 18 A: Yes. 19 Q: And it says 1995? 20 A: Right. 21 Q: Now -- and -- and under Part 1, 22 Professional Standards, do you see that? 23 A: Yes. 24 Q: Section 281.1. 25 A: Correct.
1631 Q: And this -- this Police Order. This 2 isn't a discretionary issue, these are orders, is that 3 not right? 4 A: Correct. 5 Q: Okay. 6 COMMISSIONER SIDNEY LINDEN: Just before 7 you go on, what's the status of an order? In other 8 words, what do you mean an order? Could you help me? 9 THE WITNESS: Well maybe I should 10 explain. Police orders are for a lack of a better term, 11 are a set of guidelines provided to the organization so 12 officers have an understanding of the policies and 13 procedures that are expected of them. 14 15 CONTINUED BY MR. JULIAN FALCONER: 16 Q: Is a standing order a guideline? 17 A: Correct. 18 Q: Is it a mandatory guideline? 19 A: It depends. There -- there may be 20 some that will have terminology to the point that one 21 shall can do certain things and others are more general 22 in nature depending on the type of circumstances it's 23 attempting to describe. 24 Q: Thank you for that. Now, at the 25 second page 281.1 under Professional Standards so the
1641 second page of the package. 2 A: Yes. 3 Q: "It has been long recognized that the 4 degree of esteem which a police service 5 possesses is directly attributable to 6 the image presented by its members. 7 The conduct of a member both on duty 8 and off duty is scrutinized and applied 9 to the OPP as a whole. 10 The more professional the conduct 11 displayed, the higher the esteem in 12 ensuing appreciation and co-operation. 13 Similarly this atmosphere generates 14 greater personal pride and the members 15 in the OPP which in turn generates a 16 higher standard of conduct." 17 I take it you agree with that? 18 A: Sure. 19 Q: It's a rather motherhood statement 20 but it's an important statement, isn't it? 21 A: Very much so. 22 Q: And in particular I -- I draw to your 23 attention that the --" the conduct of a member both on 24 duty and off duty", the second line. Do you see that? 25 A: I'm sorry. Oh yes, yes, yes.
1651 Q: "Is scrutinized and applied to the 2 OPP as a whole." 3 So you would agree with me that there's an 4 appreciation within the OPP that what an officer at times 5 does personally, may well impact on the -- on the service 6 as a whole and the reputation of the service? 7 A: I would agree. 8 Q: And that in fact for example if you 9 turn to the -- to the fourth page in, if you go to the 10 fourth page in, under Member Conduct, 283.1. 11 "The following general rules are 12 provided to apprise members of expected 13 conduct." 14 283.1, fourth page. 15 A: Yes. 16 Q: Under Professional Standards. 17 A: Yes. 18 Q: "Members should all times respect the 19 dignity to the OPP, it's uniform, their 20 associates and the public." 21 This is the fourth page in on that police 22 orders. I don't know if you have that, Mr. Commissioner. 23 COMMISSIONER SIDNEY LINDEN: Yes, I think 24 I do. 25 MR. JULIAN FALCONER: It's the fourth
1661 page in and it says, "Part 1, Professional Standard," at 2 the top of the page. 3 COMMISSIONER SIDNEY LINDEN: Yes, I think 4 I'm with you. 5 MR. JULIAN FALCONER: Okay. 6 7 CONTINUED BY MR. JULIAN FALCONER: 283.1 refers to: 8 "Members respecting the dignity of the 9 public" 10 Right? 11 A: Correct. 12 Q: And then number two: 13 "A member's personal behaviour shall be 14 above reproach both on and off duty and 15 not bring discredit upon the reputation 16 of the OPP." 17 So again there's an appreciation with the 18 OPP, both in 1995 and today, that the personal conduct of 19 its members, on and off duty, can and may well bring the 20 service into disrepute? 21 A: Sure. I think that would be agreed 22 to by all police agencies. 23 Q: Now, what I would ask you is this: 24 Would you -- could you also tell me if you agree that, in 25 fact, the notion of a serious complaint is dealt with,
1671 both where you saw in that definition of informal 2 complaints; that is they're not for matters of a serious 3 nature. 4 But if you flip to the third page of the 5 document I have in front of you right now under forty 6 (40), they deal with what a serious complaint is. And 7 could you look at the third page? 8 A: Which -- 9 Q: Of the document you have in front of 10 you. So the third page of that document; do you have it 11 there? 12 A: Okay. Yes. 13 Q: Okay. And that document is the, 14 "Police Orders 1995," so it's part of 1005. 15 "Part 1, Police Orders." 16 So the third page deals with: 17 "Under Professional Standards .40, 18 serious complaint." 19 You see that halfway down? 20 A: Yes. 21 Q: "Serious complaint means an 22 allegation that an employee..." 23 And the last one is the one I want to ask 24 you about: 25 "... has been of such conduct to
1681 potentially affect the reputation of 2 the OPP or the moral of its employees 3 adversely." 4 Do you see that? 5 A: Yes, see that. 6 Q: And prior to that, a bullet above: 7 "has been of such conduct that because 8 of media or community attention it may 9 result in an adverse high profile." 10 Now you'd agree with me that the 11 memorabilia incidents, trying to use a neutral term, the 12 memorabilia incidents as well as the Whitehead Dyke 13 statements, all would classify under both the third and 14 fourth bullets? 15 A: Yes. 16 Q: All right. Would you agree with me 17 that one (1) of the principles, hallmarks of the rule of 18 law, and you're a Deputy Commissioner, I ask you that, 19 sir, as a Deputy Commissioner, that one of the hallmarks 20 of the rule of law is that public officials must always 21 act according to the rules and regulations that govern 22 their conduct? They must always fall within those rules? 23 A: Of course. We're held to the highest 24 standard. 25 Q: That's right. And that in delivering
1691 discipline for breaking the rules, it's equally important 2 that you follow the rules at that time? 3 A: I would agree. 4 Q: And that the message you send will be 5 scrutinized by other members, depending on what signal 6 you send to the officers who commit a transgression? It 7 will be seen by other officers, yes? 8 A: Sure. 9 Q: And that discipline's intended to be, 10 among other things, deterrent in nature? 11 A: Yes. 12 Q: And the reason I ask you that is when 13 you talked about one (1) of the advantages of an informal 14 process you said it would help a complainant, for 15 example. I took you to mean complainant, you didn't say 16 complainant, but it would help the complainant not have 17 to go to hearing and it could be resolved, right? 18 A: Correct. 19 Q: But in this memorabilia incident 20 there's no complainant, per se, it ends up as an internal 21 complaint, correct? 22 A: Fair. 23 Q: So with great respect, the only real 24 person it helps, by going this informal route, is the 25 police officers that committed the misconduct, true?
1701 A: Yes, but I think you have to look at 2 discipline in a much broader nature than just what the 3 penalty says. If you look at the penalty in and of 4 itself, I don't think you really have an appreciation for 5 the overall impact of this whole approach to discipline. 6 I mean, discipline has a penalty attached 7 to it. There's also other objectives in a discipline 8 process. One (1), not only does the person receive a 9 penalty when found guilty, but the other part is taking 10 accountability. 11 And there has -- or hopefully where an 12 officer has clearly understood what the transgression is, 13 has learned from it and has moved on and hopefully 14 continues or can be a productive employee for the 15 organization and the public. 16 So the penalty, in and of itself, is only 17 one (1) part of a discipline process in the penalty 18 phase, I would suggest. 19 Q: Thank you. 20 COMMISSIONER SIDNEY LINDEN: As I 21 understand it, Mr. Falconer, there's not just a 22 complainant and the subject officer, it's the institution 23 as well that must be considered. 24 MR. JULIAN FALCONER: And that's a fair-- 25 COMMISSIONER SIDNEY LINDEN: I think
1711 that's what Commissioner O'Grady said. 2 MR. JULIAN FALCONER: And -- and that's a 3 fair point. 4 5 CONTINUED BY MR. JULIAN FALCONER: 6 Q: But I must ask you this: In a 7 circumstance where it's an internal complaint, you -- you 8 -- there is no -- no -- no complainant qua victim? And I 9 use the word "qua" because I'm a lawyer who doesn't know 10 how to speak. 11 So let's back up. There is no complainant 12 who represents what you would call traditionally a 13 victim, correct? 14 A: In the very narrow definition of your 15 definition of victim, yes, there is not a third party 16 complainant, as such. 17 Q: And therefore, for example, if -- let 18 me give you an alternative. 19 If Sam George had known about the TRU Team 20 symbol, breaking an arrow over an anvil, as a means of 21 commemorating Ipperwash and he had laid a complaint, I'm 22 going to suggest to you he would both be a complainant 23 and a traditional victim, agreed? 24 A: Yes, absolutely. 25 Q: And he would have a voice in the
1721 process, agreed? 2 A: Yes, he would. 3 Q: And what the legislative provisions I 4 have gone over with you indicate, is that that voice of 5 the victim of the people effected, their input has to be 6 sought and their consent has to be obtained, correct? 7 A: Yes, they have -- they have standing 8 in the process. 9 Q: That never happens in the kind of 10 processes reflected in 1051 and 1052? 11 A: No, not in the internal process. 12 Q: Now, I want to now move to an area 13 that is of some evidence. It's about the pins, all 14 right? 15 A: Oh, yes, hmm hmm. 16 Q: Now, did you yourself purchase a pin? 17 COMMISSIONER SIDNEY LINDEN: I'm sorry. 18 Yes, Mr. Sandler...? 19 MR. MARK SANDLER: With great respect, 20 this is not a discipline issue at -- at all. This hasn't 21 been dealt with in the context of discipline. You 22 haven't described it in your ruling as a -- as a racism 23 relation -- related issue. This is just completely out 24 of bounds, with great respect. 25 COMMISSIONER SIDNEY LINDEN: Yes, it's
1731 something that came up subsequent to our arrangement, so 2 I don't see how it could have been contemplated either. 3 MR. MARK SANDLER: But this is -- the pin 4 -- I mean -- 5 COMMISSIONER SIDNEY LINDEN: I -- 6 MR. MARK SANDLER: -- if he's going to 7 raise it as a context of why officers weren't disciplined 8 for wearing the pins -- we had two (2) Commissioners 9 here, if he's going to raise it in the context of 10 racism... 11 Your Honour's given a ruling that I 12 suggest doesn't permit this to fall within that rubric. 13 COMMISSIONER SIDNEY LINDEN: Well, I -- 14 MR. MARK SANDLER: This is far afield. 15 COMMISSIONER SIDNEY LINDEN: -- I did see 16 the pins in a different way than the mugs and T-shirts 17 and I made that statement in the ruling that I made. 18 Yes, Mr. Millar, did you -- 19 MR. JULIAN FALCONER: My submission, Mr. 20 Commissioner, is whether we -- you know, I get -- I -- I 21 hear, in response to me at times, this is not a trial, we 22 can't get too legalistic because we have to do this as an 23 investigation and do it right. 24 COMMISSIONER SIDNEY LINDEN: Yes, you're 25 right.
1741 MR. JULIAN FALCONER: The idea of the 2 agreement read onto the record was that discipline 3 matters, as they pertain to memorabilia, would be dealt 4 with in the questioning at this stage. And the issue of 5 racism in the OPP as it pertained to Ipperwash would be 6 dealt with at this stage. That was the theory behind my 7 reserving all my questions. 8 Now, memorabilia has come up since, 9 example the can, the yellow tape, the arrow on a door, 10 all memorabilia we had no idea about when we made this 11 agreement, but they all obviously are reflected in 12 records that have now come up and we've properly been 13 able to ask witnesses. 14 Now, one can say that the pin isn't a 15 memorabilia the same as the can, but to be fair, the -- 16 the same words that are used towards me about legalistic 17 splittings of hairs in trials are appropriate now. 18 This gentleman is a Deputy Commissioner. 19 Pins were circulated and we've how had some information 20 about the context of their circulation and I have some 21 questions for him. 22 I first want to know, as an Incident 23 Commander did he purchase the pin? I want to know that 24 from him. And -- and I say that as memorabilia goes it's 25 a different form of it but it's in that category.
1751 And all -- and all I'm really asking is, I 2 don't have a lot of questions but I would like to ask 3 them. 4 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 5 Millar...? 6 MR. DERRY MILLAR: Well, in your ruling 7 that you made last week you treated -- you did not 8 classify the pin as memorabilia as part of your ruling. 9 COMMISSIONER SIDNEY LINDEN: Yeah. 10 MR. DERRY MILLAR: You treated it as 11 something different, the pin that was created after 12 Kenneth Deane was convicted, the Kenneth Deane Defence 13 Fund pin. 14 COMMISSIONER SIDNEY LINDEN: Yes, it was 15 created to financially support the appeal, not as 16 memorabilia. 17 MR. IAN ROLAND: Mr. Commissioner, I 18 remind you as well that this pin is not something new, 19 it's been in the database for three (3) years. 20 COMMISSIONER SIDNEY LINDEN: Well, thank 21 you, Mr. Roland. That's fine. Now, I don't see -- 22 MR. JULIAN FALCONER: I have five (5) or 23 six (6) questions, but this relates from the point of 24 view of my Client and I would respectfully suggest other 25 Aboriginal interests.
1761 COMMISSIONER SIDNEY LINDEN: I -- 2 MR. JULIAN FALCONER: The issue of 3 bearing a pin in this fashion and, for example, it being 4 sold to Academy recruits and/or others who obtained it, 5 and how it was dealt with, is -- is relevant. 6 And may I add -- 7 COMMISSIONER SIDNEY LINDEN: Relevant how 8 and relevant why? 9 MR. JULIAN FALCONER: Well relevant in 10 the same way Mr. Millar asked Mr. O'Grady about it 11 yesterday, the identical same way. 12 COMMISSIONER SIDNEY LINDEN: Well -- 13 MR. JULIAN FALCONER: Just yesterday we 14 canvassed with Mr. O'Grady the issue of the pin at the 15 time and I'm canvassing this gentleman over the issue of 16 the pin. Calling it memorabilia or not calling it -- 17 frankly, it's obviously an artifact after the fact that 18 is -- is symbolic and potentially offensive to certain 19 members of the communities. 20 And I'm ask -- I need five (5) or six (6) 21 questions. But, you know, it was relevant for Mr. 22 O'Grady yesterday and I say it's equally relevant today. 23 MR. DERRY MILLAR: Well in fairness to My 24 Friend Mr. Falconer, I did ask those questions of Mr. 25 O'Grady.
1771 COMMISSIONER SIDNEY LINDEN: Yes, I'm 2 thinking the same thing. Okay. Ask your five (5) 3 questions. 4 MR. JULIAN FALCONER: I hate it when I 5 give a specific number because everybody counts. 6 COMMISSIONER SIDNEY LINDEN: What you -- 7 you can't take -- 8 MR. JULIAN FALCONER: I wish I wouldn't - 9 - I wish I wouldn't do that. 10 COMMISSIONER SIDNEY LINDEN: No. The 11 problem is you can't take yes for an answer. 12 13 CONTINUED BY MR. JULIAN FALCONER: 14 Q: There's a furniture maker that hits 15 the furniture too many times with his hammer and it tends 16 to damage the furniture, and I apparently might qualify 17 in that same category. 18 Did you purchase a pin, Deputy 19 Commissioner Carson? 20 A: Yes, sir, I did. 21 Q: Pardon me? 22 A: Yes. 23 Q: And at what time would you have 24 purchased the pin? In other words, what year, roughly? 25 A: Well quite frankly, I couldn't tell
1781 you. I don't know off the top of my head what year the 2 pins were produced. But when the pins were produced, 3 some members of the -- the OPP Association were selling 4 them for the -- to support the legal appeal. 5 So as -- as part of the fund raiser I was 6 approached if I was interested -- if I would buy a pin to 7 support the legal fund. So I donated my ten dollars 8 ($10) and they gave me a pin. 9 COMMISSIONER SIDNEY LINDEN: Yes, that's 10 fine. 11 12 (BRIEF PAUSE) 13 14 CONTINUED BY MR. JULIAN FALCONER: 15 Q: There is a -- we heard evidence 16 yesterday from Mr. O'Grady. And I'd ask, could Exhibits 17 P-1725 and 1726 be placed in front of the Witness? 18 19 (BRIEF PAUSE) 20 21 COMMISSIONER SIDNEY LINDEN: Keep in mind 22 you're time estimate, Mr. Falconer. 23 MR. JULIAN FALCONER: I understand. 24 COMMISSIONER SIDNEY LINDEN: I don't like 25 to keep bothering you but I just --
1791 MR. JULIAN FALCONER: No, that's fair 2 COMMISSIONER SIDNEY LINDEN: -- ask you 3 to keep your mind on it because -- 4 MR. JULIAN FALCONER: Thank you. 5 COMMISSIONER SIDNEY LINDEN: -- we rely 6 on your estimate. You said a half hour to an hour. 7 You're about ten (10) minutes short of an hour. 8 MR. JULIAN FALCONER: Thank you. 9 10 CONTINUED BY MR. JULIAN FALCONER: 11 Q: Did you hear or read Mr. O'Grady's 12 evidence yesterday concerning the Ken Deane defence fund 13 pins? 14 A: No. 15 Q: Now Mr. O'Grady indicates that a memo 16 was sent out and you'll see P-1725, though the memo is 17 not accessible, apparently a memo to all members re 18 request pins for Acting Sergeant Ken Deane be neither 19 worn or produced. 20 Were you aware of that memo? 21 A: Yes, I was. 22 Q: Now you would have been of what rank 23 at that time? 24 A: Inspector. 25 Q: And you knew that the Commissioner
1801 neither wanted the pins worn nor produced, correct? 2 A: He issued a -- a memo subsequent to 3 the production of them. 4 Q: By the time the memo had been issued, 5 had you purchased the pin yet? 6 A: Yes. 7 Q: All right. Following the receipt of 8 the memo, what, if anything, did you do with the pin? 9 A: What did I do with it? 10 Q: Yes. 11 A: I didn't wear it. 12 Q: Did you keep it? 13 A: I may still have one, I'm not sure. 14 I have probably a thousand pins at home. 15 Q: All right. Now I want to ask you 16 something. In terms of your role as Deputy Commissioner 17 now, do you agree with me that there could be a 18 difference between John Carson deciding to buy a pin for 19 ten dollars ($10) to support the appeal of Ken Deane, and 20 the OPPA approaching recruits at the OPP Academy and 21 offering the recruits the pins? 22 Would there be a difference? 23 A: Yes. 24 Q: Could you assist me on what the 25 difference, in your mind, would be?
1811 A: Well, first of all, when the pin was 2 produced, as is I understand it, was part of a fund 3 raising campaign to raise funds for the legal appeal. 4 When you get into the recruits coming into 5 a class, and I'm not sure of all the circumstances but to 6 the best I understand it, if someone goes in and sells -- 7 solicits to or attempts to sell to the recruits, I 8 suspect some explanation would have to be attached to 9 that. 10 And I don't think it's appropriate in a 11 recruiting -- for a young recruit to be part and parcel 12 of that type of discussion at that point in their career, 13 quite frankly. 14 They're very amenable and very -- they're 15 very amenable to influence by seniors, correct? 16 A: Very much so. 17 Q: They want to fit in, correct? 18 A: They do. 19 Q: And there is a great danger that they 20 would basically feel that they would have no choice but 21 to -- to purchase that pin, correct? 22 A: I'm not so sure I would phrase it 23 that way as opposed to a desire to -- to belong. 24 Q: Fair enough. And for all those 25 reasons, it wouldn't be appropriate to do a distribution
1821 to recruits at the academy; that wouldn't be appropriate? 2 A: That would be my position. 3 Q: As Deputy Commissioner today, June, 4 and I always get the dates wrong, 14th, (sic) 2006, do 5 you know if that was done? 6 A: I don't know that -- 7 Q: I told you I'd get it wrong. June 8 16th, 2006; do you know if that happened? 9 A: I know that some were sold in the 10 academy but the process around the recruit and exactly 11 how the -- the dynamics of that, I don't have the exact 12 details. 13 Q: And how do you know that some were 14 sold in the academy? 15 A: Just some discussion I had with the 16 Commissioner. 17 Q: All right. And so I take it some 18 investigation has occurred in respect of the pins? 19 A: I believe there's been some inquiries 20 made. To what degree I've not -- I -- you know, I'm kind 21 of -- because of some other issues, been kind of out of 22 the loop on that issue recently. 23 Q: I just -- I need to understand one 24 (1) thing, one (1) of the things that I went over with 25 you quite carefully in P-1005 is the issue of the fact
1831 that the OPP, in orders it issues, in the rules it makes, 2 appreciates that in off-duty time or in personal time 3 there are actions by OPP officers that can impact on the 4 reputation of the service, correct? 5 A: Yes. 6 Q: And I -- and I approach this from the 7 point of view of this pin. You have an individual who 8 has been convicted in respect of the death of a First 9 Nations person, with finding by a judge that that First 10 Nations person was unarmed, all right? 11 Because that is the context for the April 12 1997 conviction of Kenneth Deane, all right? Is that 13 fair? Have I fairly accurately apprised -- 14 A: You're accurate so far. Yes. 15 Q: Right. And you would have known that 16 in April 1997? 17 A: Yes, I did. 18 Q: Ken Deane's entitled to -- a right to 19 appeal like anyone else? 20 A: I would hope so. 21 Q: Yes. And Julian Falconer may well, 22 not necessarily Ken Deane, may well be a lawyer who acts 23 for somebody on appeal that no one likes, right? And 24 that's the important of procedure and process, fair? 25 A: Fair enough.
1841 Q: But, would you agree with me that 2 once senior officers start sponsoring the defence of an 3 individual in a very high profile, contentious matter, 4 start sponsoring or assisting in sponsoring his defence 5 in relation to a conviction where he was found to have 6 killed an unarmed First Nations person, that problems 7 arise in terms of the credibility of the service? 8 A: I -- I'm not sure that I would agree 9 with that context. I mean, at the point in time when the 10 -- the pin was developed, it was developed to develop a 11 fund raising campaign to assist the appeal which could 12 have, quite frankly, gone either way. I mean it's -- 13 Q: That's fair. 14 A: -- it's certainly an unknown factor. 15 Q: Right. 16 A: So there certainly was no belief, 17 certainly not on my part and I certainly never heard 18 anyone else, as to -- that the pin had any representation 19 of the outcome of the incident itself. 20 It was just a vehicle in order to raise 21 funds for the appeal process to go forward. 22 COMMISSIONER SIDNEY LINDEN: Yes. 23 MR. JULIAN FALCONER: Okay, now -- 24 COMMISSIONER SIDNEY LINDEN: You're way 25 beyond five (5) questions, by the way.
1851 MR. JULIAN FALCONER: I understand. 2 COMMISSIONER SIDNEY LINDEN: But then 3 you're right on with that -- 4 MR. JULIAN FALCONER: But I didn't -- I 5 did not have -- 6 COMMISSIONER SIDNEY LINDEN: I 7 understand. I'm not holding you to five (5) questions 8 but you're way beyond it and you're almost at your hour 9 outside limit. So I just want to remind you. 10 MR. JULIAN FALCONER: Thank you. 11 12 CONTINUED BY MR. JULIAN FALCONER: 13 Q: Would you agree with me, Deputy 14 Commissioner Carson, that however you describe it now, 15 and your point simply is the appeal could have gone the 16 other way, at the time that you purchased the pin, Acting 17 Sergeant Ken Deane was convicted and was found guilty, 18 yes? 19 A: Yes, he was. 20 Q: All right. So there's no issue about 21 a presumption of innocence? 22 A: Right. 23 Q: Okay. Now, from a community policing 24 perspective; that is picture yourself, sir, meeting with 25 members of the community tomorrow as Deputy Commissioner;
1861 would you agree with me that in terms of building bridges 2 with First Nations communities, it is a difficult thing 3 to explain that you would be assisting in sponsoring the 4 Ken Deane Appeal Fund? 5 COMMISSIONER SIDNEY LINDEN: Stop there 6 and let him answer. 7 Yes, sir...? 8 THE WITNESS: As a Deputy Commissioner I 9 have -- I would suggest I -- I probably would have had a 10 different view on it today than I had towards it in 1997. 11 I mean, clearly all of these things have brought a lot of 12 issues to light. 13 In 1997 it was simply attempting to 14 provide some assistance in a fundraising campaign of 15 someone who had the legal right to go forward in an 16 appeal. There was no intentions to be negative or have 17 any reflection on the outcome of the incident as a result 18 of a person's right to an appeal. 19 The pin itself was a TRU team symbol with 20 a badge number, which to the general public could never 21 be recognized as anything other than a TRU Team pin with 22 a number. And -- and unless you knew Ken Deane 23 personally, there's no way that you could even have 24 associated that number with Ken Deane, in any fashion. 25 So I -- you know, when you look at the
1871 other symbols, the -- the T-shirts -- I mean I appreciate 2 there's relationships that bring it back to the incident. 3 The pin was simply a pin which is an appropriate pin that 4 had the number on it, and it was just a vehicle to assist 5 them in their fundraising campaign. 6 So as a Deputy Commissioner would I 7 support that today? No, not a chance, but as an 8 inspector in 1997 those -- those thought processes that I 9 would certainly be mindful of today, never crossed my 10 mind in that context. I don't know if that makes sense 11 or not but. 12 13 CONTINUED BY MR. JULIAN FALCONER: 14 Q: It -- it does and then I -- and I 15 thank you for that and I understand your answer. 16 Assuming you wouldn't support it today, if 17 the Commission was concerned about making recommendations 18 to address this issue -- you see the quandary, obviously, 19 is you -- you don't want to be telling -- you're dealing 20 with freedom of expression, you're dealing with people's 21 personal rights to make choices on how they live, but 22 you're also dealing with the reputation of a large police 23 institution. 24 In that dynamic, if the Commissioner were 25 contemplating recommendations on attempting to create
1881 guidelines or rules surrounding what is and is not 2 appropriate to be, (a), selling to recruits at an 3 academy, and (b), to be wearing in any context or 4 advancing in any context, could you assist me on when you 5 say, as Deputy Commissioner you now see that it's not 6 appropriate, what is the rule that you would contemplate 7 developing to make sure that it didn't happen? 8 Because if we agree it's not appropriate, 9 our next step is to figure out how do we make sure it 10 doesn't happen again. 11 A: I don't have a silver bullet answer 12 for you, sir. 13 COMMISSIONER SIDNEY LINDEN: I -- 14 MR. JULIAN FALCONER: Fair enough. I 15 just wanted his contribution on that. 16 COMMISSIONER SIDNEY LINDEN: That's fine. 17 MR. JULIAN FALCONER: Thank you for your 18 time. 19 COMMISSIONER SIDNEY LINDEN: Thank you 20 very much, Mr. Falconer. 21 Yes, Mr. Sandler...? 22 MR. MARK SANDLER: Very brief. 23 24 CONTINUED CROSS-EXAMINATION BY MR. MARK SANDLER: 25 Q: Just in response to the last
1891 questions that Mr. Falconer asked you, over and above the 2 issue that -- that you indicated that as Deputy 3 Commissioner you wouldn't support it today, let's just 4 put another variation on it just to make it clear. 5 Whether as an inspector back then, or as a 6 Deputy Commissioner today, had Ken Deane's conviction 7 been upheld in the Court of Appeal, and then a pin had 8 been offered to you, would you have accepted it under 9 those circumstances? 10 A: Absolutely not. And I guess just in 11 that context maybe I wasn't as clear as I could have 12 been. 13 I mean, clearly, as a -- there's -- 14 there's a higher standard of onus on the commissioned 15 officer ranks in -- in the perspective of leadership, and 16 -- and as an inspector you would certainly be expected to 17 -- to carry that higher level of standard. 18 Q: And I just want to turn to another 19 issue and that's the Dyke and Whitehead issue. And 20 without minimizing at all the seriousness of the comments 21 that -- that Dyke and Whitehead made, and -- and as you 22 acknowledged to Mr. Falconer, the importance of integrity 23 of information that you're getting from officers that's 24 unbiassed -- when you were here last time for nineteen 25 (19) to twenty (20) days as preparation for your
1901 testimony, you reviewed, literally, thousands of pieces 2 of paper; did you not? 3 A: Yes, I did. 4 Q: And that included all of the scribe 5 notes that were material; am I right? 6 A: Yes. 7 Q: Various reports, intelligence and 8 occurrence reports; am I right? 9 A: Correct. 10 Q: The testimony of many people; am I 11 right? 12 A: In many different trials. 13 Q: All right. And what I want to ask 14 you is this. Is you testified to Commissioner Linden, I 15 don't want to go over this testimony again, about -- 16 about the limited role that intelligence played in -- in 17 your decision making process back then. And it won't 18 surprise you that that's been the subject of some 19 discussion here. 20 But even leaving that aside, from your 21 review of all of the documentation and all of the 22 materials that you have seen over the course of this 23 Inquiry, are you aware of any information that came from 24 Dyke and Whitehead that influenced the decisions that you 25 actually made as Incident Commander --
1911 COMMISSIONER SIDNEY LINDEN: I think the 2 question is okay. It was the windup. 3 MR. MARK SANDLER: -- on September the 4 6th? 5 COMMISSIONER SIDNEY LINDEN: The windup 6 was quite extensive, Mr. Sandler. 7 MR. MARK SANDLER: The windup was windup. 8 It was -- 9 COMMISSIONER SIDNEY LINDEN: The question 10 is for -- 11 12 CONTINUED BY MR. MARK SANDLER: 13 Q: I'm getting tired. Just answer the 14 question and ignore my preamble. 15 A: No, I was not influenced. 16 Q: Thank you. 17 COMMISSIONER SIDNEY LINDEN: Thank you 18 very much. 19 Mr. Millar do you have re-examination? 20 MR. DERRY MILLAR: Commissioner, I have 21 no re-examination. I wish to thank Deputy Commissioner 22 Carson for coming back and testifying again. 23 And before we close -- 24 COMMISSIONER SIDNEY LINDEN: I would like 25 to repeat that again. We thanked you before for your
1921 long attendance, we thank you for coming back. Thank you 2 very much. 3 4 (WITNESS STANDS DOWN) 5 6 MR. DERRY MILLAR: Just on a housekeeping 7 matter, on Monday, I've been requested by counsel for Ms. 8 Hutton that when Ms. Panjer examined Trevor Richardson on 9 June 8th, she discussed Inquiry Document 2001441 with him 10 and neglected to make an exhibit. And we'll deal with 11 that on Monday and make it an exhibit. 12 COMMISSIONER SIDNEY LINDEN: That's fine. 13 MR. DERRY MILLAR: And those are -- 14 COMMISSIONER SIDNEY LINDEN: I take that 15 we can -- 16 MR. DERRY MILLAR: We have no other 17 witnesses for today, sir. 18 COMMISSIONER SIDNEY LINDEN: -- we can 19 adjourn for the day. 20 MR. JULIAN FALCONER: Is there any 21 possibility of getting a clean copy of the, 22 quote/unquote, "Promise," because we reserved an exhibit 23 number for it yesterday? 24 COMMISSIONER SIDNEY LINDEN: Oh, I'm sure 25 that you can get that. You don't need to --
1931 MR. JULIAN FALCONER: Is that possible, 2 could I? We just have a marked copy. Is there some -- I 3 just want to -- 4 MR. DERRY MILLAR: Well if it's on our 5 website -- 6 MR. JULIAN FALCONER: Okay. 7 MR. DERRY MILLAR: -- which I think it 8 is, we can print out a copy and have the clean copy 9 provided to the Registrar on Monday. 10 MR. JULIAN FALCONER: Thank you. 11 MR. MARK SANDLER: And if not, I'll 12 provide it. 13 COMMISSIONER SIDNEY LINDEN: That's fine. 14 MR. DERRY MILLAR: But I think that we 15 can get one off the website. 16 MR. JULIAN FALCONER: Thank you. 17 COMMISSIONER SIDNEY LINDEN: Thank you 18 very much. We will adjourn now and we reconvene on 19 Monday at ten o'clock. 20 MR. DERRY MILLAR: Monday morning at ten 21 o'clock. 22 COMMISSIONER SIDNEY LINDEN: Monday 23 morning ten o'clock. Thank you all very much. Thank you 24 very, very much. 25 THE REGISTRAR: This Public Inquiry is
1941 adjourned until Monday, June the 19th at 10:00 a.m. 2 3 --- Upon adjourning at 12:22 p.m. 4 5 6 7 Certified Correct 8 9 10 11 12 13 ___________________________ 14 Carol Geehan 15 16 17 18 19 20 21 22 23 24 25