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 20th, 2005 25
21 Appearances 2 Derry Millar ) Commission Counsel 3 Susan Vella ) (np) 4 Donald Worme, Q. C ) (np) 5 Katherine Hensel ) (np) 6 7 Murray Klippenstein ) The Estate of Dudley 8 Vilko Zbogar ) (np) George and George 9 Andrew Orkin ) (np) Family Group 10 Basil Alexander ) Student-at-Law 11 12 Peter Rosenthal ) Aazhoodena and George 13 Jackie Esmonde ) Family Group 14 15 Anthony Ross ) (np) Residents of 16 Kevin Scullion ) (np) Aazhoodena (Army Camp) 17 William Henderson ) Kettle Point & Stony 18 Jonathon George ) Point First Nation 19 Colleen Johnson ) (np) 20 Cameron Neil ) 21 22 Kim Twohig ) (np) Government of Ontario 23 Walter Myrka ) (np) 24 Susan Freeborn ) (np) 25 Michelle Pong )
31 APPEARANCES (cont'd) 2 Janet Clermont ) Municipality of 3 David Nash ) (np) Lambton Shores 4 5 Peter Downard ) The Honourable Michael 6 Bill Hourigan ) Harris 7 Jennifer McAleer ) (np) 8 9 Ian Smith ) (Np) Robert Runciman 10 Alice Mrozek ) (np) 11 Harvey Stosberg ) (np) Charles Harnick 12 Jacqueline Horvat ) 13 Douglas Sulman, Q.C. ) Marcel Beaubien 14 Trevor Hinnegan ) 15 16 Mark Sandler ) Ontario Provincial 17 Andrea Tuck-Jackson ) Ontario Provincial Police 18 Leslie Kaufman ) (np) 19 20 Ian Roland ) (np) Ontario Provincial 21 Karen Jones ) Police Association & 22 Debra Newell ) (np) K. Deane 23 Ian McGilp ) (np) 24 Annie Leeks ) (np) 25 Jennifer Gleitman ) (np)
41 APPEARANCES (cont'd) 2 3 Julian Falconer ) (np) Aboriginal Legal 4 Brian Eyolfson ) Services of Toronto 5 Julian Roy ) (np) 6 Clem Nabigon ) (np) 7 Adriel Weaver ) (np) Student-at-Law 8 9 Al J.C. O'Marra ) Office of the Chief 10 Robert Ash, Q.C. ) (np) Coroner 11 12 William Horton ) Chiefs of Ontario 13 Matthew Horner ) 14 Kathleen Lickers ) (Np) 15 16 Mark Frederick ) (np) Christopher Hodgson 17 Craig Mills ) (np) 18 Megan Mackey ) (np) 19 Erin Tully ) 20 21 David Roebuck ) (Np) Debbie Hutton 22 Anna Perschy ) (np) 23 Melissa Panjer ) 24 Danya Cohen-Nehemia ) (np) 25
51 TABLE OF CONTENTS 2 Page 3 Exhibits 6 4 5 JOHN FREDERICK CARSON, Resumed 6 Continued Cross-Examination by Mr. Peter Rosenthal 9 7 8 9 Certificate of Transcript 289 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
61 LIST OF EXHIBITS 2 Exhibit No. Description Page No. 3 P-476 Document No. 1005653 Handwritten 4 notes of Provincial Constable R. 5 Zupancic September 06/'95 22:19 6 hours to 23:01 hours. 116 7 P-477 Document No. 1004972 Examination-in 8 chief of Mr. John Carson pages 07 9 to 77 W. Warren George Trial 10 September 29/'97 159 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
71 --- Upon convening at 10:30 a.m. 2 3 THE REGISTRAR: This Public Inquiry is 4 now in session. The Honourable Mr. Justice Linden 5 presiding. Please be seated. 6 MR. DERRY MILLAR: Good morning, 7 Commissioner. 8 COMMISSIONER SIDNEY LINDEN: Good 9 morning. 10 MR. DERRY MILLAR: There are two (2) 11 things before we begin. The first is -- I was talking to 12 Murray this morning -- Murray Klippenstein, and Andy 13 Orkin has broken ribs but he's recovering at home so we 14 wish him well on his recovery. 15 And secondly, with respect to the cross- 16 examination, the parties will have seen an exchange of 17 e-mails with respect to the issue of the discipline 18 files. And Mr. Rosenthal who had some questions with 19 respect to that, that issue is going to defer his cross- 20 examination until after Mr. Falconer does his cross- 21 examination subsequently when that matter is dealt with. 22 COMMISSIONER SIDNEY LINDEN: That's fine. 23 MR. PETER ROSENTHAL: I'll defer my 24 cross-examination of that issue alone. 25 COMMISSIONER SIDNEY LINDEN: On that
81 issue. 2 MR. PETER ROSENTHAL: Yes. 3 COMMISSIONER SIDNEY LINDEN: Yes. Okay. 4 Just before you begin, Mr. Rosenthal, I just have a 5 couple of comments I -- I want to make. Can you hear me; 6 is the mike close enough? 7 As many of you -- all of you are aware, in 8 1996 a former Governor General, Romeo LeBlanc (phonetic) 9 declared June 21st as National Aboriginal Day. June 21st 10 was selected because of the cultural significance of the 11 Summer Solstice, the first day of summer, and the longest 12 day of the year. 13 The intent, in 1996, of proclaiming 14 National Aboriginal Day was to recognize the contribution 15 of Aboriginal people to Canadian society and to the 16 fabric of Canada. Out of respect for the significance of 17 this day, to Aboriginal communities and for the fact that 18 it is often reserved for ceremonies and celebration, the 19 Inquiry will not sit tomorrow. 20 We will resume hearings on Wednesday, June 21 22nd at nine o'clock, and in coming weeks it may be 22 necessary for us, depending on how things go, to sit 23 later on some days to make up for lost time. 24 In the meantime, I would like to wish all 25 of our Aboriginal colleagues and communities a meaningful
91 day tomorrow with friends and family. 2 I have a few other comments to make, but 3 I'll make them after Deputy Carson finishes his evidence. 4 Yes, Mr. Rosenthal...? 5 MR. PETER ROSENTHAL: Thank you very much 6 Mr. Commissioner. Good morning. 7 COMMISSIONER SIDNEY LINDEN: Good 8 morning. 9 10 JOHN FREDERICK CARSON, Resumed 11 12 CONTINUED CROSS-EXAMINATION BY MR. PETER ROSENTHAL: 13 Q: Good morning, Deputy Commissioner 14 Carson. 15 A: Good morning, sir. 16 Q: Now before we were so politely 17 interrupted at the end of the last day's testimony, we 18 had examined a meeting that you attended with several of 19 your colleagues and MPP Beaubien in August of 1995, do 20 you recall that, sir? 21 A: Yes. 22 Q: And then you had indicated that to 23 the best of your recollection you didn't meet again, or 24 speak again with Mr. Beaubien until early September; is 25 that correct?
101 A: Correct. 2 Q: Now, there is a phone call that was 3 transcribed that I should like to turn you to, and this 4 is in the logger tapes Exhibit P-444A, and it's at Tab 4 5 of that volume. 6 At the top of this transcript it says; 7 John Carson and Unknown Staff Sergeant. I believe in the 8 course of your direct evidence you acknowledged that the 9 'Unknown Staff Sergeant' was actually known to be Wade 10 Lacroix, is that correct? 11 A: Correct. 12 Q: And this call was evidently made on 13 September 5th, 1995, at 8:20 in the morning? 14 A: Right. 15 Q: Now, about -- in -- in the middle you 16 come on, and then Staff Sergeant Lacroix indicates 17 towards the bottom of the page: 18 "I just received a phone call from the 19 MPP quite irate. Not at us." 20 Is that correct, sir? 21 A: That's what -- that's what it says, 22 yes. 23 Q: What did you understand; I'm not sure 24 if I understand what that means. He's irate about 25 something, but not at you; is that what was meant?
111 A: Correct. 2 Q: That's what you understood? 3 A: Yes. 4 Q: And he's irate about something, you 5 understood, and then you say right, indicating you 6 understood; is that correct, sir? 7 And then Staff Sergeant Lacroix indicates: 8 "Ah, he's going to call here." 9 And then you respond: 10 "You're being recorded by the way, 11 we're on recorded lines here." 12 I put it to you that it occurred to you 13 when he was discussing political involvement that you 14 wanted to warn him that this was being recorded and other 15 people might, in future, see what he said. 16 Isn't that correct? 17 A: I wanted to warn him that we were on 18 recorded lines and he would not normally expect to be 19 recorded; our administrative lines are normally not 20 recorded at all. 21 So, as you'll see in a number of calls, 22 numerous people are advised that the lines are in -- are 23 under recording. 24 Q: Yes, and -- and numerous people are 25 not advised as well, isn't that correct? Some of the
121 transcripts you advise people, some you don't, right? 2 A: Well, I think what you'll find is 3 there was a point when I was of the impression that the 4 lines were not recorded, and in fact that wasn't the 5 case. 6 Q: Well, we'll look at some of those 7 calls later, perhaps, but I put it to you that from the 8 transcript it appears -- it was -- you didn't, right at 9 the very beginning, advise Staff Sergeant Lacroix it's a 10 recorded line, it was only after he informed you that he 11 was going to be talking about the MPP who was quite 12 irate, right? 13 A: That's the point that I -- I made 14 mention that the lines were recorded. 15 Q: And then continuing on the next page 16 of the transcript, Staff Sergeant Lacroix advises you: 17 "He wants me to brief him, he's going 18 to call the Premier and say this is 19 ridiculous." 20 You heard those words at that time, sir? 21 A: Yes. 22 Q: And then you say "yes", and then 23 Staff Sergeant Lacroix: 24 "And I want something done." 25 So, did -- did you take from that, that
131 MPP Beaubien was going to inform the Premier and say that 2 what was ridiculous was the lack of OPP action with 3 respect to this matter? 4 A: I think the issue was the take over 5 of the Park itself, as opposed to the OPP action. 6 Q: Yes, but what was ridiculous about 7 the take over of the Park; was he not complaining that 8 what was ridiculous, in his view, was your failure to act 9 more decisively about it? 10 A: I had no reason to believe that. 11 Q: You had no reason to believe that; I 12 see. 13 And then the Staff Sergeant Lacroix says: 14 "And I want something done." 15 Did you understand that Staff Sergeant 16 Lacroix -- Lacroix was communicating to you that MPP 17 Beaubien wanted you, the OPP, to do something about the 18 situation? 19 A: No, I didn't -- that's not -- that's 20 not my understanding. 21 Q: That's not what you understood? 22 A: No. 23 Q: What did you understand by "I want 24 something done"? 25 A: Well, my understanding is that this
141 information is what Lacroix is telling me that him and 2 Beaubien had spoken of earlier; it wasn't that I was 3 supposed to do anything. 4 Q: Well, what was the nature of the 5 "something done" that you understood? 6 A: He -- apparently he was going to call 7 the Premier to say he wanted something done. 8 Q: Yes, and didn't you understand that 9 the "something done" he wanted was decisive action 10 against the persons in the Park? 11 A: I didn't know what he had in mind -- 12 Q: I see -- 13 A: -- as far as what he wanted done, 14 sir. 15 Q: And you didn't have any inkling that 16 that was the notion, is that correct, sir? 17 A: I did not know what he wanted done. 18 Q: I see. Now, sir, I gather from your 19 previous evidence that you felt there was nothing 20 improper about you, as Incident Commander, discussing 21 operational matters with politicians such as Mr. 22 Beaubien, is that correct? 23 A: That's not exactly how I -- I put it. 24 I don't think there's any problem with having a 25 discussion with the Member of Parliament to assure him
151 that we are doing everything that we can. 2 When you talk about operational matters, 3 there's no way that I would discuss with him the strategy 4 or exactly what we may or may not do. 5 Q: Well, we'll look at some of what you 6 did discuss with him and then perhaps we'll consider 7 whether or not you did or did not violate what you just 8 said. 9 But, that's -- in your position, as 10 Incident Commander, is what you're answering, is that 11 correct? 12 A: Correct. 13 Q: And I would take it that you would 14 not want to have officers under your command speaking 15 directly to politicians about the incident, is that fair? 16 A: That's fair, for -- for the most 17 part. I mean, I don't want them talking about specific 18 issues of what we're doing. 19 Q: Well, in fact, though, you directed 20 Staff Sergeant Lacroix to speak to MPP Beaubien, is that 21 correct? 22 A: I directed him to? 23 Q: Yes. 24 A: I'm not sure I directed him to. 25 Q: Well sir, if you would continue on in
161 the transcript to page 12 of the same document, about a 2 third of the way down the page: 3 "How do you want him to call, to call 4 me or what? [from Lacroix]. 5 Carson: I'd prefer that." 6 A: Well, that's fair. If he -- if -- if 7 Beaubien was going to call, I'd prefer he call Lacroix, I 8 simply don't have time to -- to talk to most of these 9 people, so if he's looking for information or there was 10 some information we can provide to assist him, I'd prefer 11 that Lacroix does it. 12 Q: So, you did direct Lacroix to 13 communicate with him, did you not sir? 14 A: In that vein, yes. 15 Q: Yes. And Lacroix was acting under 16 your command, is that correct, sir? 17 A: He was a Detachment Commander at 18 Petrolia, he wasn't working in the Incident itself at 19 that point. 20 Q: But when you tell him to do that, 21 that's a command that he should follow, is that not 22 correct? 23 A: Sure. 24 Q: Yes. 25 A: Sure.
171 Q: And you didn't, at this point at 2 least, instruct him at all as to any restrictions on what 3 he should communicate to MPP Beaubien, is that correct? 4 A: That's fair. 5 Q: And on the same page of the 6 transcript you indicate that you were already getting 7 calls last night from Rosemary UR, is that correct? 8 A: Correct. 9 Q: And she was the Federal Member of 10 Parliament for the district, is that correct? 11 A: Right. 12 13 (BRIEF PAUSE) 14 15 Q: Sir, if you could turn please to the 16 scribe notes, which are Exhibit P-426 Inquiry Document 17 1002419. 18 MR. DERRY MILLAR: It's Tab 12 of the 19 book -- 20 MR. PETER ROSENTHAL: Of your -- 21 MR. DERRY MILLAR: Oh, you've got your 22 own copy? 23 24 CONTINUED BY MR. PETER ROSENTHAL: 25 Q: Thank you. And that's the version
181 that's in a slightly different pagination than our 2 version, so I'm going to be looking at 9:25 a.m. and on 3 September 5, which in our version begins at page 24. 4 A: Yes. 5 Q: Now, this describes a meeting, that 6 according to the scribe notes, took place at 9:25 in the 7 morning on September 5th, 1995, is that correct? 8 A: Correct. 9 Q: And it indicates a number of persons 10 present at the meeting, a number of officers including 11 yourself? 12 A: That's right. 13 Q: And turning the page in our 14 pagination, so it's somewhat of a way down in the course 15 of the description of that meeting, there is a notation 16 which -- the way it's -- the context suggested it was you 17 who advised that, I would suggest to you, that advised 18 that Staff Sergeant Lacroix has been in touch with Marcel 19 Beaubien, local Member of Parliament, he is updating the 20 Premier on the situation. 21 Am I correct, sir, in interpreting that as 22 indicating that you advised those gathered that Staff 23 Sergeant Lacroix had been in contact with Marcel 24 Beaubien, local Member of Parliament, and he's updating 25 the Premier on the situation?
191 A: Correct. 2 Q: So this, evidently, given the timing, 3 it's an hour or so after the phone call from Lacroix, was 4 your report to this gathering of the phone call that you 5 -- we have just discussed, is that correct? 6 A: Correct. 7 Q: I believe when Mr. Klippenstein was 8 examining you, you indicated in hindsight, perhaps it 9 wasn't such a good idea to advise people of this, is that 10 -- was that what you said, sir? 11 A: Well, if I had to do it over again, I 12 wouldn't have advised them. 13 Q: Why not? 14 A: Because it just creates a debate here 15 today. 16 Q: I see. Well why did you advise them 17 at the time? 18 A: Because my intention was to advise 19 them of information that I had. So they were up to speed 20 on what I knew in regards to any information surrounding 21 the event. 22 I mean, there's going to be a lot of media 23 attention and obviously -- well, maybe not obvious to 24 yourselves, but clearly a lot of the members involved in 25 this, such as Korosec, and Mark Wright, and others, were
201 well aware of -- of a host of issues that had occurred in 2 -- in Lambton County around not only the Park, but the 3 Base, and CFB Ipperwash and Walpole Island. 4 And I wanted to keep them as up to date as 5 -- as I could with what information I had. 6 Q: And in particular you informed them 7 then that Mr. Beaubien was updating the Premier on the 8 situation and they -- you meant to communicate to them 9 that the Premier was watching what was happening here, 10 correct? 11 A: That's -- that's what they would 12 hear. 13 Q: That's what you expected them to take 14 from your advice on that then? 15 A: Well I wanted them to understand this 16 -- this is a serious event and -- so -- so that's the 17 level of attention this is getting. 18 Q: Yes. Now if we could in the same 19 document -- sorry -- go to -- the pages, in our 20 pagination, 69 to 71 and I'm sorry I didn't write down 21 the times here. So with your indulgence, it's on 22 September 6th, yes, at 18:42, September 6th. Yes it's 23 page 69 in our version, and I'm not sure what page it is 24 in your -- 25 A: Yes. I -- I -- Yes, I found it yes.
211 Q: So this, evidently, is notes of a 2 meeting attended by Inspect Linton, yourself, Les 3 Kobayashi, and Mr. Beaubien; Is that correct? 4 A: Right. 5 Q: And so now this is late in the day of 6 September 6th, shortly before you left the area to go to 7 dinner, is that correct? 8 A: Correct. 9 Q: And the scribe notes indicate that 10 Marcel Beaubien advised that he had sent a fax to the 11 Premier advising of his intentions, and that he wanted a 12 return phone call regarding his intentions; is that 13 correct; do you see that, sir? 14 A: Yes. 15 Q: Now who's the "his" there, as you 16 understood it? The fax to the Premier advising of 17 Beaubien's intentions, and he wanted a return phone call 18 regarding the Premier's intentions? 19 A: To tell you the truth, ten (10) years 20 later, I -- I don't know. I mean he sent a fax to the 21 Premier, obviously with some concerns, and he was looking 22 for a call back. 23 Q: Yes. 24 A: Exactly the expectations that Mr. 25 Beaubien had, quite frankly I don't even recall the
221 comment, other than it's in the notes here. 2 Q: Of course, when I'm asking you about 3 these things, I don't expect you to read Mr. Beaubien's 4 mind, but I'm asking you is for your understanding as to 5 what was being communicated to you and what is recorded 6 in the scribe notes. 7 Now, a bit further down, or up in our 8 version, towards the beginning of page 70 in our version: 9 "Marcel Beaubien advised that property 10 owners are very concerned, they are 11 frustrated and feel that they are not 12 being treated equally." 13 And then it suggests -- and then the next 14 sentence is: 15 "John Carson states that there -- it's 16 not a land claim." 17 So, did -- did you not feel that you 18 should somehow advise Mr. Beaubien that the cottagers 19 shouldn't be frustrated, everything is in hand here. 20 A: Well I think that's exactly what I 21 said. 22 Q: Well it -- it says that you stated 23 that there is not a land claim. Wouldn't that tend to 24 inflame the passions of cottagers, rather than lessen 25 any passions?
231 A: All I can do is state the facts, sir. 2 COMMISSIONER SIDNEY LINDEN: Just a 3 minute, Mr. Sandler has a comment. 4 MR. MARK SANDLER: I think, with respect, 5 if Mr. Rosenthal's going to put a suggestion -- 6 COMMISSIONER SIDNEY LINDEN: Yeah. 7 MR. MARK SANDLER: -- that he did not 8 calm the waters by indicating things, he should read the 9 entire scribe note for that meeting. 10 COMMISSIONER SIDNEY LINDEN: Yes. 11 MR. PETER ROSENTHAL: Well, with respect, 12 your Honour, this is cross-examination -- 13 COMMISSIONER SIDNEY LINDEN: Yes. 14 MR. PETER ROSENTHAL: -- and the scribe 15 notes don't tell the whole story. It's a question of his 16 recollection and the scribe notes, and -- 17 MR. MARK SANDLER: Well -- 18 MR. PETER ROSENTHAL: -- I would 19 respectfully point out, sir, that looking at the 20 transcript from last day's evidence, there were a number 21 of times when Mr. Sandler rose -- rose. 22 I respect Mr. Sandler very much, and he's 23 doing what he thinks for his client, but sir, there was 24 not one actual objection in all his risings last time, 25 and it's a question of suggesting inadvertently, perhaps,
241 to the witness possible answers. 2 And I would respectfully request -- 3 COMMISSIONER SIDNEY LINDEN: Hmm hmm. 4 MR. PETER ROSENTHAL: -- that I be 5 allowed to cross-examine. 6 COMMISSIONER SIDNEY LINDEN: Well, carry 7 on Mr. Rosenthal. 8 MR. PETER ROSENTHAL: Thank you, sir. 9 10 (BRIEF PAUSE) 11 12 MR. PETER ROSENTHAL: Except I forget 13 exactly where I was. Give me one moment, sir. 14 15 CONTINUED BY MR. PETER ROSENTHAL: 16 Q: I was suggesting to you, sir, that 17 this passage suggests that your response at the -- at the 18 time that he advised you that they were very agitated or 19 very concerned, frustrated, that you said: 20 "Yeah, well there isn't any land 21 claim." 22 And I -- I was suggesting -- you agree 23 that you did say that at about that time in the 24 discussion, sir? 25 A: Yeah, there is -- there was no land
251 claim, that's a fact. 2 Q: Yes, yes, that's a fact. 3 A: Sure. 4 Q: Well, it's a fact, as you understood 5 it. Of course, the persons that were in the Park had a 6 different view, but -- but I'm suggesting to you, sir, 7 that your stating that, at that point, would have tended 8 to inflame rather than calm the alleged frustration of 9 the cottagers. 10 A: I disagree. 11 Q: You disagree? You thought that would 12 have a calming effect, or a neutral effect? 13 A: No, all I'm telling you is I -- I 14 explained the facts as I knew them, and that's exactly 15 what I would intend to do. 16 I'm not going to provide information to 17 calm waters that is not factual in nature. I think you 18 can see that in the paragraph previous, I explained to 19 Mr. Beaubien that we were working towards the injunction 20 the next morning, and explained to him a number of -- of 21 issues, including the fact that I wanted everything to be 22 done as safely as possible. 23 Q: Yes. Now, sir, two (2) paragraphs 24 down from where we were it reads: 25 "Inspector Linton questioned if there
261 was anything from the Solicitor 2 General. Marcel Beaubien advised that 3 they were meeting today." 4 You see that, sir? 5 A: Whereabouts? 6 Q: Two (2) paragraphs -- not the 7 paragraph we were at, where you state there's no claim, 8 and not the one -- the short one right after that, but 9 the one below that. 10 A: Oh, correct, yes. 11 Q: "Inspector Linton questioned if there 12 was anything from the Solicitor 13 General. Marcel Beaubien advised that 14 they were meeting today." 15 Now, sir, that suggests that you, meaning 16 the collective you, Inspector Linton and you and the 17 other officers, were expecting some direction from the 18 Solicitor General. 19 Is that not fair? 20 A: No, it's not fair. 21 Q: So what -- what -- what did he want 22 from the Solicitor General? 23 A: Quite frankly, I don't know what he 24 was looking for from the Solicitor General, but he's -- 25 he's -- he asked -- what this says is he's asking MPP
271 Beaubien if he'd heard anything from the Solicitor 2 General. 3 Obviously he's asking about communications 4 that he has had. 5 Q: Yes. 6 A: So I'm -- I'm not sure I can 7 appreciate the relevance of a discussion with Marcel 8 Beaubien and the Solicitor General having anything to do 9 with the OPP. 10 Q: Well, sir, you were at this meeting-- 11 A: Correct. 12 Q: -- of which these are notes, right? 13 A: Right. 14 Q: And you were the Officer in charge of 15 the whole Incident, right? 16 A: That's right. 17 Q: And the way the scribe notes read, 18 Inspector Linton questioned if there's anything from the 19 Solicitor General. 20 So that was a request, by him, for some 21 information about something from the Solicitor General, 22 right? 23 A: Correct. 24 Q: And you didn't understand at the time 25 what he was looking for?
281 A: I didn't -- there was no further 2 commentary to that question, according to the notes here, 3 and I don't recall any comment from Mr. Beaubien in 4 regards to any discussion with the Solicitor General. 5 Q: No, but what it says is that Marcel 6 Beaubien advised that they were meeting today. So I 7 would suggest to you that suggests that whatever question 8 Inspector Linton wanted answered from the Solicitor 9 General, Marcel Beaubien was indicating there's no answer 10 yet, because they're meeting today. 11 Isn't that a fair reading, sir? 12 A: Well, there was a meeting today, but 13 I'm not sure who the meeting was with. 14 Q: No, but -- 15 A: So I mean -- so I don't know what the 16 context of what Mr. Beaubien's response is, quite 17 frankly. 18 Q: And you didn't ask him at the time? 19 A: No, I didn't. 20 Q: Now, continuing further in these 21 notes then sir, skipping two (2) larger paragraphs and 22 then going to the one after that, that begins "Marcel 23 Beaubien". 24 "Marcel Beaubien states that he doesn't 25 mind taking controversy if the
291 situation can't be handled by police 2 services, something has to be done to 3 handle the situation." 4 To which you respond according to the 5 scribe notes: 6 "John Carson states that we want it 7 resolved, but we don't want anyone to 8 get hurt. Wants everything that can be 9 done to stress the point of no one 10 getting hurt. 11 John Carson also stated that we have a 12 lot of good people, two teams on ground 13 at a time, officers doing a great job." 14 So do I understood correctly sir, that you 15 are indicating that contrary to the suggestion of Mr. 16 Beaubien, this can be handled by the police services, and 17 you're in the process of doing so; is that fair? 18 A: That's fair. 19 Q: Now as I understood your evidence 20 early in these proceedings but I may be mis-remembering, 21 but that -- that you took it if the situation couldn't be 22 handled by police services, there might be a question of 23 calling the military; is that -- 24 A: Well I think -- and again, I'm just 25 going by memory so -- that same time was -- was the issue
301 in Gustafson Lake, and there was media coverage of 2 Military involvement out there in regards to some of 3 their equipment. 4 So I'm not sure -- my best guess is that 5 he may have been referring to similar issues. 6 Q: So he -- he's suggesting, in other 7 words, that if it's not appropriately handled by the 8 police, then even though it may be controversial, they 9 might do something like calling the military in to handle 10 it; is that correct? 11 A: I guess that's a possibility. 12 Q: That's what -- that's what you 13 understood as one of the possibilities? 14 A: Well I can't tell you what I 15 understood. I'm telling you today, this is my best guess 16 that the only thing I could think that he might have been 17 referring to. 18 Q: Yes. 19 A: I -- I don't recall this specific 20 discussion at the time. 21 Q: You don't recall the specifics now, 22 or you're suggesting that given the context and 23 everything you know, it's reasonable that that's what you 24 would have taken at the time, although you don't 25 specifically remember; is that fair?
311 A: Fair enough. 2 3 (BRIEF PAUSE) 4 5 Q: So that, I would suggest to you sir, 6 would have put some pressure on you. Here you're the 7 Incident Commander, you're being told that politicians, 8 who have presumably the authority to call out military 9 forces, might do so if they feel that you're not handling 10 the situation decisively enough. 11 Wouldn't that put a fair amount of 12 pressure on you, sir? 13 A: Quite frankly, not it does not. I -- 14 I have a job to do. I have a Commander to report to, and 15 that's who I concern myself with. If the -- if the 16 Region Commander, the Commissioner of the Ontario 17 Provincial Police, feels there's a better way of doing 18 it, and chooses to relieve me of that Command and do it a 19 different way, that's certainly their decision. 20 And that's not something as the Incident 21 Commander that I can be concerned about. 22 Q: Now sir, on the next page of our 23 notes, but it -- and it's towards the end of the 24 description of this meeting, there is a sentence: 25 "Les Kobayashi advises that there is
321 great communication between the MNR and 2 the OPP." 3 See that, sir? 4 A: Sure. 5 Q: Now, what about the propriety of that 6 kind of communication between the MNR and the OPP with 7 respect to operational matters; is that appropriate in 8 your view? 9 A: We probably got into more discussion 10 than we really needed to. Given -- we had a -- a very 11 strong relationship with the Ministry of Natural 12 Resources because of the two (2) significant parks in the 13 area here. 14 And Mr. Kobayashi being the superintendent 15 of those parks, he -- he was certainly involved in many 16 of our discussions here given that they were the ministry 17 with the vested interest around the property itself. 18 Q: Yes. But -- but you knew also, did 19 you not sir, that he would be in close communication with 20 other persons in the Ministry of Natural Resources 21 including political persons within that -- 22 A: Well -- 23 Q: -- Ministry? 24 A: -- I'm certainly not concerned -- 25 well, how the people in his Ministry used the information
331 that -- that he provides to them. 2 Our concern was that the Ministry of 3 Natural Resources had the information so they could seek 4 the injunction that was necessary. 5 So, it was -- it was essential that they 6 be involved so that they could carry out that process. 7 Q: Now, sir, as I understand it from the 8 way the documents were given to us, that there was a 9 handwritten part of the scribe notes that wasn't 10 transcribed when it was typed, that's in reference to 11 this meeting, and we have it in our Volume at the next 12 page. 13 I believe it's page 472 of the handwritten 14 notes, but what I'm referring to is attributed to MB 15 which presumably is Marcel Beaubien: 16 "Premier is in constant touch, good 17 communications." 18 Now, sir, do you agree that that is in the 19 handwritten scribe notes? 20 A: If you say they are, they are. I 21 don't have them in front of me here, but I -- I know 22 there has been some information, not necessarily appears 23 in the transcribed notes. 24 MR. DERRY MILLAR: You have to go to -- 25 Commissioner --
341 COMMISSIONER SIDNEY LINDEN: Hmm? 2 MR. DERRY MILLAR: The Deputy 3 Commissioner needs to go to Tab 12, excuse me, Tab 13 of 4 the black book in front of him. It's Exhibit P-427, 5 Inquiry Document 100152. 6 The handwritten notes are there and it 7 starts at page -- this particular conversation starts at 8 page 468 of those handwritten notes. 9 10 (BRIEF PAUSE) 11 12 COMMISSIONER SIDNEY LINDEN: Thank you 13 for pointing that out, Mr. Millar. 14 MR. PETER ROSENTHAL: Thank you, Mr. 15 Millar, as always for your assistance -- 16 COMMISSIONER SIDNEY LINDEN: 460? 17 MR. PETER ROSENTHAL: -- and sir, yes, it 18 is at page 472 of that Volume. 19 THE WITNESS: Okay. 20 21 CONTINUED BY MR. PETER ROSENTHAL: 22 Q: At the very top of the page, I 23 believe. Is that at the top of your page, 472, sir? 24 A: Yes, yes, yeah. 25 Q: "M.B.: Premier is in constant touch,
351 good communications." 2 Is that correct? 3 A: That's what it says, yes. 4 Q: And M.B. does refer to Marcel 5 Beaubien? 6 A: I believe so, yes. 7 Q: And then the next line there is: 8 "L.K. Great com. [Presumably short for 9 communications] between MNR and OPP." 10 Right? 11 A: Right. 12 Q: And that did make it -- its way into 13 the typed version -- 14 A: Right. 15 Q: But the sentence: "Premier is in 16 constant touch, good communication", did not; is that 17 correct? 18 A: That's correct. 19 Q: Can you give us any explanation as to 20 why it would not, sir? 21 A: Absolutely none. 22 Q: I see. And would you agree with the 23 benefit, perhaps of the assistance of the written scribe 24 notes, that you were informed by Marcel Beaubien that the 25 Premier is in constant touch, and there's good
361 communication? 2 A: With him I guess. 3 Q: Presumably good communication -- 4 A: With Beaubien. 5 Q: -- between the Premier and -- 6 A: Beaubien. 7 Q: -- Mr. Beaubien? 8 A: It sounds like it. 9 Q: That's what you understood? 10 11 (BRIEF PAUSE) 12 13 Q: Now, sir, you certainly sensed that 14 Mr. Beaubien's position was that he wanted more or less 15 immediate action taken against the occupiers, isn't that 16 correct? 17 A: He thought they should be out of the 18 Park. 19 Q: Yes, and you sensed that he wanted 20 you to take immediate action, right? 21 A: He never, ever indicated that I 22 should do anything in particular. 23 Q: But you sensed from everything he did 24 do, that that was his view, did you not? 25 A: He was working with his colleagues on
371 that, and I explained to him how we were moving towards 2 the injunction, and he seemed supportive of that. 3 Q: Well, sir, I -- I'm not sure where 4 you have the discovery transcripts, these were given to 5 us as separate documents, I believe, without Inquiry 6 document numbers, I believe. 7 And I'll be referring to your discovery of 8 July 25, 2001, at pages 185 and 186 of the transcript of 9 that discovery. 10 COMMISSIONER SIDNEY LINDEN: Do we have 11 that in front of us? 12 MR. DERRY MILLAR: I don't know if he's 13 got it or not. 14 15 (BRIEF PAUSE) 16 17 MR. DERRY MILLAR: I don't believe he 18 does. Commissioner, I'll go get it. 19 COMMISSIONER SIDNEY LINDEN: Well, I 20 don't know, do you want to... 21 MR. PETER ROSENTHAL: Sorry. 22 COMMISSIONER SIDNEY LINDEN: I don't... 23 MR. PETER ROSENTHAL: It's û it's 24 directly relevant to what I just asked sir, but û- 25 COMMISSIONER SIDNEY LINDEN: But I'd like
381 him to have the document in front of him. 2 MR. PETER ROSENTHAL: Oh û- oh no, 3 certainly sir. Yes, I appreciate that. 4 COMMISSIONER SIDNEY LINDEN: How long 5 will it take, Mr. Millar; should we break? 6 MR. DERRY MILLAR: A few minutes. 7 MR. PETER ROSENTHAL: I apologize, Mr. 8 Commissioner, I didn't realize he didn't have it in front 9 of him. 10 11 (BRIEF PAUSE) 12 13 COMMISSIONER SIDNEY LINDEN: Here is Mr. 14 Millar now. 15 MR. PETER ROSENTHAL: Thank you. 16 Question 576. 17 THE WITNESS: Thank you. 18 19 CONTINUED BY MR. PETER ROSENTHAL: 20 Q: Now, Mr. Commissioner, to make sure 21 that we're all on the same page, perhaps I can indicate 22 that we're looking at the transcript of the discovery of 23 Mr. Carson taken on July 25, 2001, and it's going to be 24 page 185 of that, and its question number, as you know, 25 the questions in the discovery are numbered by question;
391 it's question number 576. 2 And sir, I would be now reading that to 3 you, and asking you if you gave that answer to that 4 question on that occasion, and at -- question 576 reads: 5 "Mr. Beaubien has written some fairly 6 forceful letters that are on the record 7 about this occupation, and from those 8 letters I û well, in those letters I 9 see him taking the position that there 10 should be more or less immediate action 11 taken û taken against the occupiers." 12 Did he express that view in the meeting? 13 And sir, just for context, the previous question suggests 14 that it was the meeting that we were just talking about; 15 did he express that view in the meeting? 16 And your answer as recorded is: 17 "I certainly sensed that that was his 18 position, yes." 19 Now, did you give that answer to that 20 question, at that time, sir? 21 A: Yes, sir. 22 Q: And were you under oath at the time, 23 sir, when you gave that answer? 24 A: Yes, I was. 25 Q: Thank you. And would you agree that
401 you gave me a quite different answer a few moments ago? 2 COMMISSIONER SIDNEY LINDEN: He's not 3 finished yet, Mr. Sandler. 4 MR. SANDLER: Now, I'm going to express 5 it as an objection so My Friend is under no 6 misunderstanding. The very next answer û 7 COMMISSIONER SIDNEY LINDEN: That's fine. 8 MR. MARK SANDLER: -- specifically 9 clarifies what he means -- 10 COMMISSIONER SIDNEY LINDEN: Well I -- 11 MR. MARK SANDLER: -- and My Friend 12 doesn't read it to him. 13 COMMISSIONER SIDNEY LINDEN: Well I 14 thought he wasn't finished yet. Were you going to -- 15 MR. MARK SANDLER: No. He went -- 16 COMMISSIONER SIDNEY LINDEN: -- continue 17 reading or were you done, Mr. Rosenthal? 18 MR. MARK SANDLER: I mean that's just 19 unfair if you look at 577 and 578 --. 20 COMMISSIONER SIDNEY LINDEN: I don't have 21 that transcript in front of me. But I assumed that you-- 22 MR. PETER ROSENTHAL: With respect, it's 23 not unfair, and I'm happy to look at the next one. I 24 asked him, the record will show what I asked and what he 25 answered, and I believe that I asked him essentially
411 within a word or two of exactly question 576 and he gave 2 a quite different answer. 3 But we'll save that for argument -- 4 COMMISSIONER SIDNEY LINDEN: Carry on. 5 MR. PETER ROSENTHAL: -- and I'm happy to 6 go onto the next question, sir. 7 COMMISSIONER SIDNEY LINDEN: What is the 8 next question? 9 MR. PETER ROSENTHAL: If your counsel 10 wishes me to, as he apparently does. 11 12 CONTINUED BY MR. PETER ROSENTHAL: 13 Q: You were asked, were you not, sir, 14 also question 577: 15 "And so he was -- he was advocating 16 that the OPP should take aggressive 17 action against the protesters more or 18 less immediately, is that fair?" 19 And your answer: Well he wasn't 20 advocating we do anything in 21 particular. He just felt something 22 needed to be done. The people in the 23 community are very upset you know, and 24 this should be allowed to be. 25 The people in the area felt that we
421 weren't doing enough and that type of 2 thing, and he was, in my estimation, 3 relaying those concerns." 4 Now, sir, did you give that answer to that 5 question, under oath, at that time? 6 A: Yes, I did. 7 Q: Thank you. 8 COMMISSIONER SIDNEY LINDEN: If you read 9 the whole thing -- 10 11 CONTINUED BY MR. PETER ROSENTHAL: 12 Q: And the next one. Okay, I'll read 13 you the whole -- the whole transcript. Question 578 -- 14 by the way, I would suggest to My Friends that they do 15 have the right to re-examine, but question 578: 16 "Fair to say that his position to you 17 was that the OPP should use force to 18 remove the protesters from the Park? 19 A: No, at no time did it come -- ever 20 come across like that. There was no 21 insinuation of how we go about it. I 22 explained to him that we were using in 23 the process of a Court injunction, 24 there was going to be a hearing the 25 next morning; he was aware of that.
431 And that we were, you know, progressing 2 through the steps, and that the 3 approach we were doing was the legal 4 way, and it was the right way to go 5 about doing this." 6 Did you give that answer to those 7 questions, sir? 8 A: Yes. 9 COMMISSIONER SIDNEY LINDEN: When you 10 read the whole thing, Mr. Rosenthal, it sounds a lot like 11 the evidence he's giving today. 12 MR. PETER ROSENTHAL: With respect, Mr. 13 Commissioner -- 14 COMMISSIONER SIDNEY LINDEN: I'm just 15 saying that's what it sounds like to me. And I think if 16 you just read one question and the answer, it does give a 17 misleading impression. So -- 18 MR. PETER ROSENTHAL: With -- with great 19 respect, Mr. Commissioner, I don't believe that's the 20 case and I'm happy -- 21 COMMISSIONER SIDNEY LINDEN: That's fine. 22 MR. PETER ROSENTHAL: -- to argue it now 23 or -- or -- 24 COMMISSIONER SIDNEY LINDEN: We'll argue 25 it in due course.
441 MR. PETER ROSENTHAL: -- in submissions. 2 COMMISSIONER SIDNEY LINDEN: I'm glad you 3 put it all to him and -- 4 MR. PETER ROSENTHAL: It's all In the 5 record, and we will have it for our final submissions. 6 But with great respect, sir, may I just say that the 7 question was -- immediate action was the original 8 question, and he said yes to that in the discovery, he 9 said no to it with me here today. 10 And then Mr. Klippenstein in discovery 11 asked him about aggressive action and force, he back 12 tracked. 13 COMMISSIONER SIDNEY LINDEN: That's for 14 argument, I agree with you, Mr. Rosenthal -- 15 MR. PETER ROSENTHAL: Yes. Right. 16 COMMISSIONER SIDNEY LINDEN: -- but it's 17 important to have read the whole thing to him in context. 18 MR. PETER ROSENTHAL: Well -- 19 COMMISSIONER SIDNEY LINDEN: And you've 20 done that now. 21 MR. PETER ROSENTHAL: -- well with 22 respect -- 23 COMMISSIONER SIDNEY LINDEN: Thank you. 24 MR. PETER ROSENTHAL: -- that could have 25 been done in re-examination, in any event, I'm prepared
451 to move on, if I may. 2 COMMISSIONER SIDNEY LINDEN: Good. 3 4 (BRIEF PAUSE) 5 6 MR. DERRY MILLAR: Actually just so that 7 -- in case it comes up again, I disagree with that 8 assertion of My Friend. I think if you ask a question 9 from a discovery, you have to ask all of the questions 10 that relate to the question you ask. 11 COMMISSIONER SIDNEY LINDEN: Well he's 12 done it now. So let's move on. 13 MR. PETER ROSENTHAL: If Mr. Millar 14 really wants me to do that, then we're going to be here 15 for weeks and weeks, sir. These discoveries go on and 16 on. But in any event, sir, I'll move on if I may. 17 COMMISSIONER SIDNEY LINDEN: We'd rather 18 go on and on than not be fair to a witness so we have to 19 decide. 20 MR. PETER ROSENTHAL: Well okay, I shall 21 err in that direction, sir; I shall do that. 22 23 CONTINUED BY MR. PETER ROSENTHAL: 24 Q: Now, sir, if you could turn please to 25 Exhibit P-410 which are your handwritten notes.
461 (BRIEF PAUSE) 2 3 A: What date are you referring to, sir? 4 Q: And I'm going to be looking at page 5 55 of -- of that document please. And the date is 6 September 6th, 1995, and it's under the time 14:10. 7 A: Correct. 8 Q: Now, sir, this appears to be a report 9 of the -- one of the phone calls, the second one with 10 Inspector Fox, is that correct? 11 A: Yes, it is. 12 Q: And you noted with respect to that 13 phone call, met -- the last phrase that refers to that 14 phone call, evidently: 15 "Meet at legislative building" 16 And then two (2) words I can't make out, 17 can you make out those first two? 18 A: Deputy Boose. 19 Q: Sorry? 20 A: Deputy Boose. 21 Q: I see, and slash Sol. Gen. -- 22 A: Sol. -- Sol. Gen. -- 23 Q: -- meaning Solicitor General? 24 A: Correct. 25 Q: And Premier.
471 A: Correct. 2 Q: Is that correct? 3 A: Correct. 4 Q: Okay. So you recorded in your notes 5 that Mr. Fox had met with the Premier in particular? 6 A: Right. 7 Q: Now, shortly after the meeting that 8 you had with MPP Beaubien that we were looking at, you 9 left to go out for dinner, as you've told us, is that 10 correct? 11 A: Correct. 12 Q: And then after you returned, and 13 we've had some evidence about phone calls that you made 14 or received before you returned, but after you returned, 15 there was ultimately some decision to have the crowd 16 management union -- unit march down East Parkway Drive 17 towards the Stoney Point people, right? 18 A: Right. 19 Q: Now where in the scribe notes is 20 there an indication of when that decision was made, and 21 what the reasons for it were? 22 A: I don't believe you'll find that 23 specifically in the scribe notes. 24 Q: No, and now is that not a serious 25 omission, sir?
481 A: A serious omission? 2 Q: Yes. 3 A: There were -- Inspector Linton and I 4 had a discussion. I'm not sure where the scribe person 5 was at that particular moment in time. I don't have an 6 explanation as to why it didn't get into the scribe 7 notes, but there was certainly no reason why it couldn't 8 have got into the scribe notes. 9 Q: Well, sir, didn't you tell us in your 10 testimony several weeks ago, that you normally tell the 11 scribe that if anybody provides you with information that 12 you're making decisions on, or if I give direction, I 13 want that captured. 14 Those -- those are the things that were 15 particularly important. Sometimes information would come 16 in from various sources, and so on, and the scribe may be 17 directed to make a note of this. 18 Isn't -- isn't -- wasn't it your evidence, 19 sir, and isn't it a fact, that the scribe notes are 20 supposed to contain all very important decisions? 21 A: That -- that's what they're supposed 22 to contain, yes. 23 Q: Yes, so this is a serious omission is 24 it not, sir? 25 A: It's an omission. I can't explain to
491 you why there is the omission. Like I said, Inspector 2 Linton and I had a discussion. 3 At this point in time, the scribe is 4 working with Inspector Linton, not myself. I came back 5 into the Command Post, had a discussion with Linton, and 6 then I went forward to the -- to the TOC site -- 7 Q: So -- 8 A: I don't have an explanation as to 9 what the scribe was doing at that particular point in 10 time, as I -- 11 Q: Sir, you had a discussion with Linton 12 -- with Linton and is that the discussion in which it was 13 decided that the officers would march towards the Park? 14 A: Correct. 15 Q: I see. So that was immediately upon 16 your return from dinner, sir? 17 A: We got back, or I got back to the 18 command post and Linton and I had the discussion of how 19 we're going to deal with this particular issue. 20 Q: And you determined at that time, did 21 you, that you would have the crowd management unit -- 22 unit march down East Parkway Drive, banging on their 23 shields, and approach the Park? 24 A: Yes, we decided at that point that 25 we're going to -- going to deploy the TRU team officers
501 to go down and -- and provide cover, and have a look at 2 the -- the kiosk, and that we would take crowd management 3 down there and go down into the parking lot. 4 Q: So you determined at that time that 5 if the kiosk was not a problem, in the sense of possible 6 danger to the officers marching down East Parkway Drive, 7 you would have them march down East Parkway Drive as they 8 eventually did, is that correct? 9 A: Correct. 10 Q: So this is at about what time that 11 evening, sir? 12 13 (BRIEF PAUSE) 14 15 A: I arrived back at the Command Post, 16 according to the notes, at approximately 20:29 or 8:29 17 p.m. 18 Q: I see. And that's when you had this 19 discussion with Inspector Linton, sir? 20 A: Right. 21 Q: And you have notes about arriving 22 back, but your notes don't say anything about this 23 discussion either, do they, sir? 24 A: No. 25
511 (BRIEF PAUSE) 2 3 A: Now, in all fairness to the scribe, 4 there's a number of people who are reporting information 5 in and I'm not sure what he was tied up with at the 6 moment, but as you can see, there's a number of issues -- 7 Q: Sure. 8 A: -- happening at that time that he was 9 trying to capture. 10 Q: But, sir, would you agree that the 11 most important decision to record was the decision to 12 march on the Stoney Point people? 13 A: It is an important decision, and I'm 14 telling you I made that decision. 15 Q: Yes. But was -- was it not 16 important, given the importance of police officers' notes 17 generally, and the scribe notes in particular, to record 18 the making of that decision and the reason or reasons for 19 which it was made? 20 A: There would be no -- the scribe notes 21 would say what the decision was made -- what the decision 22 was. The scribe notes are not going to have a -- a 23 commentary about the discussion that leads to that 24 decision, necessarily. 25 Q: I see. So the scribe notes report
521 commentaries about conversations with the Premier and so 2 on, but it's not -- it wouldn't contain commentary about 3 why a decision was made to march on the number of people. 4 A: I didn't say it wouldn't necessarily. 5 Q: I see. Well, in fact, shouldn't they 6 necessarily contain that, sir, if they are to do the 7 function that police officers' notes are supposed to do 8 in general and scribe notes in particular? 9 A: It would be helpful if it was there, 10 but clearly it's not. 11 Q: Yes. And there's nothing in your 12 notes either, is that correct? 13 A: No, I didn't make any notes. 14 Q: Well, you made some handwritten notes 15 that you just referred to, is that correct? 16 A: At two o'clock in the afternoon, I 17 made notes. 18 Q: Yes -- 19 A: But I did not make any notes around 20 this particular decision that you're discussing right 21 now. 22 Q: Yes. 23 A: Right. 24 Q: And can you give us an explanation as 25 to why you didn't put it into your notes, given the
531 importance of that decision? 2 A: I did not make any notes. As I said 3 before, the scribe captured the majority of the notes for 4 the incident commander. 5 The incident commanders normally do not 6 make notes. I would not have even made notes of the 7 telephone call at 14:10 in the afternoon, if the scribe 8 had been present. 9 But as I explained before, I was in a 10 meeting with Chief Superintendent Coles and 11 Superintendent Parkin, and the scribe had been excused 12 from the room while we had that discussion and it was 13 during that period that the telephone call came in. 14 Q: Thank you. Now -- 15 A: And quite frankly, even this notepad 16 or not my -- are not -- they're scratch notes I made as 17 opposed to my official notes. 18 Q: Yes. 19 A: Quite frankly, I had no -- there was 20 no obligation on me to keep this scratch pad whatsoever. 21 It is not part of my official notes. 22 Q: In any event, with all the notes that 23 you are aware of, the scribe notes, your scratch pad and 24 so on, there was no recording of your making of that 25 decision --
541 COMMISSIONER SIDNEY LINDEN: You've 2 already asked that question, he's already answered it. 3 MR. PETER ROSENTHAL: Yes, sir. 4 COMMISSIONER SIDNEY LINDEN: You already 5 asked it. 6 MR. PETER ROSENTHAL: Yes, sir, but -- 7 COMMISSIONER SIDNEY LINDEN: I don't 8 think you have to ask it again. 9 MR. PETER ROSENTHAL: Okay, thank you, 10 sir. I will move on, but... 11 12 CONTINUED BY MR. PETER ROSENTHAL: 13 Q: Now, sir, with respect to the calling 14 in of the TRU team, Project Maple, and we have a document 15 with that title, that's Exhibit P-424 describes the -- 16 the plan that had been put in place well prior to these 17 events in case a situation eventuated such as actually 18 did -- 19 A: Right. 20 Q: -- is that correct? 21 A: Correct. 22 Q: Now, sir, I don't believe that these 23 -- this document is paginated. In my copy it's not, but 24 there is a -- it's tabbed and there is a tab ERT/TRU and 25 about five (5) pages into that there is a heading "TRU
551 Operational Plan, Ipperwash". 2 Do you have that page, sir? 3 A: Correct. 4 Q: And, sir, roughly in the middle of 5 that page, there's a section entitled: "Main Action 6 Plan", and reads as follows: 7 "Western region TRU to be activated if 8 weapon usage occurs. Eastern region 9 TRU to be activated as secondary unit." 10 Do you agree that's there, sir? 11 A: Yes, it is. 12 Q: Now that there would suggest, would 13 it not, that unless there is weapon usage, the TRU is not 14 to be activated, is that a fair reading? 15 A: No. 16 Q: It's not a fair reading? 17 A: No. 18 Q: So it was anticipated, even when you 19 made this operational plan, that TRU might be brought in, 20 even if there was no weapons usage? 21 A: No, that's not what it says. 22 Q: No? I -- I thought it said the 23 opposite, sir, and I put it to you, but û- I'm asking 24 you, does it not say the opposite? 25 Does it not say that they'll be brought in
561 only if weapons usage occurs? 2 A: No, the main action plan says û- 3 refers to a weapon. There are û- as you can see, there's 4 a main action plan, immediate action plan and alternate 5 action plan. The main action plan û- the û- the way TRU 6 prepares their plans is, given a particular scenario, 7 they have û- they û- create a plan based on various 8 expectations. 9 Q: Yes? 10 A: The main action plan is a weapon- 11 related plan. And there's a number of alternate issues 12 that could arise that would require TRU used in a variety 13 of û- of different ways. 14 So, you know, to û- to take any one (1) of 15 these and say, Well, this is how it was going to be used 16 or was not going to be used is totally inaccurate and û- 17 and quite frankly erroneous. 18 Q: So, are you then saying, sir, that at 19 the time this plan was drawn up, it was thought that TRU 20 might be used even if there was no weapons usage? 21 A: Not necessarily, no. 22 Q: That it might be used even if there 23 was no weapons usage, is that your evidence? 24 A: It's possible if we had an assignment 25 that fit their skill sets.
571 Q: And that's û- that's your 2 understanding of the way the plan was made when this 3 document was created? 4 A: Sure. 5 Q: Thank you. Now you told us that your 6 instructions to the sniper team that you called in was 7 just to make observations, not be operational, is that 8 correct? 9 A: Right. 10 Q: Now, sir, practically speaking, what 11 does that mean in the sense that if a TRU member under 12 your command following your instruction to just make 13 observations, but not get operational, goes down a 14 highway, is that TRU member then supposed to not do 15 anything other than observe unless you or some other 16 commanding officer gives him a different command? 17 A: Well, what we're talking about here 18 is what they're assignment is. Every police officer has 19 the authority to do certain things if they're faced with 20 certain circumstances. However, the assignment was for 21 TRU to move forward and observe the kiosk and provide 22 observation cover for the crowd management team. 23 Q: Yes. Now when did you change the 24 command to the TRU team from observe to observe and 25 cover?
581 A: In û- in a TRU team operation, on an 2 observation assignment, "cover" is implicit in that. 3 Q: I see. So then, sir, it appears that 4 your evidence is that there's no difference at all in 5 telling the TRU team, go down there for observation or go 6 down there and do your job? 7 A: No, no. It's û- it's very much 8 different. It's very much different. 9 Q: Well, how is it different, sir? 10 A: Well, I could use the example, if 11 there was a barricaded gunman in a residence, you û- you 12 deploy a TRU team on the residence. The TRU team will go 13 in and provide the inner secure û- inner perimeter 14 security and based on information and direction from the 15 incident commander, they may or may not û- I mean, 16 ideally, the individual would surrender and û- and walk 17 out of the residence unarmed and surrender to the 18 Tactical Team, but in some cases that isn't û- that isn't 19 the case and for a variety of reasons it may be necessary 20 to actually enter the residence and make a û- an arrest. 21 And that is û- when I talk about going 22 operational is when they will actually take an aggressive 23 position to do an entry and û- and effect the arrest. 24 Q: Yes, and for the sniper team, their 25 operation is often shoot, right?
591 A: Every police officer's in that same 2 position. 3 Q: Sir, we went through this last time 4 and you agreed that they're specially trained and brought 5 in especially to those situations where they might have 6 to shoot; right? 7 A: Every officer may have to shoot. 8 Q: And there's no difference between the 9 sniper team and ordinary officers in that respect, sir? 10 A: Any officer who feels their life or 11 the life of another is in danger, has the same obligation 12 under Section 25 of the Criminal Code. 13 Q: Sir, did you read your evidence from 14 last time? 15 A: I'm sorry? 16 Q: Did you read your evidence from last 17 time in these proceedings, sir? 18 A: No, I didn't. 19 Q: You didn't read it over? 20 A: No, I didn't. 21 Q: I see. Well, do you recall saying, 22 acknowledging that the sniper team has special training 23 in situations where it's likely or more -- more like than 24 in other situations, that someone might have to be shot? 25 A: Of course that's the case. That's
601 why they're put in that position because there's a high 2 level of danger there and they're there specific because 3 of the degree of danger. 4 Q: Of course, and that's what you said 5 the last day, sir, and that's quite different I would 6 suggest to you from your answer two (2) minutes ago here 7 today. 8 A: And every officer has that same 9 obligation if there isn't a TRU team member in position 10 to do that. 11 Q: Anyway, let's move on, sir. You told 12 them that their instructions were to observe, is that 13 correct? 14 A: Correct. 15 Q: And I would suggest to you that to a 16 naive person, that might suggest, look but don't snipe 17 unless the command is changed. 18 Do you agree that's the meaning of 19 observe but not be operational? 20 A: That's not -- that's not my 21 definition, may be yours. 22 Q: That's not what you meant by observe 23 but not be operational? 24 A: I expect them if someone comes into 25 harms way, that they will carry out their duty which
611 they're obliged to do. 2 Q: So then I suggest to you, sir, that 3 you're saying observe and but not be operational has the 4 same -- sorry? 5 MR. DERRY MILLAR: He said "tactical." 6 7 CONTINUED BY MR. PETER ROSENTHAL: 8 Q: He said tactical this time. My Friend 9 provides me, it was operational other times and not be 10 tactical is the same command as walk down the highway and 11 do your job including observation; no? 12 A: I'm not sure I understand your 13 question any more. 14 Q: It was my understanding, sir, and you 15 seem to be denying this, that when you instructed the TRU 16 team, they were to be only doing observation; that was 17 some limitation on what they were supposed to do and, in 18 particular, they were not supposed to carry out their 19 sniper function unless there was a further order that 20 made them tactical or operational. 21 A: I never said they could not carry out 22 their sniper function. 23 Q: Yes, sir. You never did change that 24 original order to them, did you, sir? 25 A: No, sir. Their role never changed.
621 Q: Well they did kill someone, did they 2 not, sir? 3 A: They did. 4 Q: Is that within your understanding of 5 observation, sir? 6 A: That's -- 7 COMMISSIONER SIDNEY LINDEN: That's an 8 unnecessary question now, we know -- 9 MR. PETER ROSENTHAL: Sir? 10 COMMISSIONER SIDNEY LINDEN: -- I don't 11 think that question is necessary. 12 MR. PETER ROSENTHAL: It may not be 13 necessary but it's very fair, in my respectful 14 submission, sir. 15 COMMISSIONER SIDNEY LINDEN: Well -- 16 MR. PETER ROSENTHAL: It may be obvious 17 but -- 18 COMMISSIONER SIDNEY LINDEN: I think it's 19 obvious -- 20 MR. PETER ROSENTHAL: Yes, I think so, 21 sir. 22 COMMISSIONER SIDNEY LINDEN: -- that's why 23 we're all here. 24 MR. PETER ROSENTHAL: Yes. But it's 25 obvious, sir, with respect, sir, that it went way beyond
631 observing and they killed someone. 2 COMMISSIONER SIDNEY LINDEN: Are you 3 finished on this point or are you still on -- 4 MR. PETER ROSENTHAL: Sir? 5 COMMISSIONER SIDNEY LINDEN: -- are you 6 still on this point or are you on another point? 7 MR. PETER ROSENTHAL: I -- I'm moving to 8 a related but different point. 9 COMMISSIONER SIDNEY LINDEN: I'm going to 10 take a break now. 11 MR. PETER ROSENTHAL: Oh, I'm happy to, 12 sir. 13 COMMISSIONER SIDNEY LINDEN: Thank you. 14 THE REGISTRAR: This Inquiry will recess 15 for fifteen (15) minutes. 16 17 --- Upon recessing at 11:36 a.m. 18 --- Upon resuming at 11:54 a.m. 19 20 THE REGISTRAR: This Inquiry is now 21 resumed. Please be seated. 22 COMMISSIONER SIDNEY LINDEN: Mr. 23 Rosenthal...? 24 MR. PETER ROSENTHAL: Thank you, Mr. 25 Commissioner.
641 MR. MURRAY KLIPPENSTEIN: Commissioner, I 2 wonder -- I just rise having mentioned this to -- to Mr. 3 Millar, if I could just mention something. 4 COMMISSIONER SIDNEY LINDEN: Do you want 5 to wait for Mr. Millar, get Mr. Millar's attention? 6 MR. MURRAY KLIPPENSTEIN: I just with the 7 greatest of respect to, Commissioner, wish to express a 8 bit of concern on -- on behalf of the Estate of Dudley 9 George and the Family and I -- I know this isn't -- this 10 is more an issue -- a concern in potentiality rather than 11 actuality. 12 But given the sensitivity of some of the 13 issues that Mr. Rosenthal is approaching and particularly 14 the issue of how a sniper team who was charged with -- 15 with the task of observation ended up killing somebody, 16 and I just am concerned that he not be unduly restricted 17 in his questioning and, in my respectful submission, he 18 is, given the gravity of what -- what is under 19 examination, being very polite and reasonable, if -- and 20 -- and -- and substantive and focussed. 21 And I certainly -- and the family has not 22 forgotten that a previous Court has found that several of 23 the officers who were involved in the shooting were 24 completely untruthful in their testimony. 25 And I'm not suggesting this particular
651 witness is, but the -- the Courts used very strong 2 language and said that Sergeant Deane, who shot an 3 unarmed man, lied about it, lied to the SIU and the Court 4 and concocted a story, post facto to cover it up -- 5 COMMISSIONER SIDNEY LINDEN: I am 6 familiar with that, Mr. Klippenstein. 7 MR. MURRAY KLIPPENSTEIN I just -- I 8 just -- 9 COMMISSIONER SIDNEY LINDEN: I don't 10 think I am restricting Mr. Rosenthal's cross-examination. 11 MR. MURRAY KLIPPENSTEIN I don't believe 12 so. I just am concerned that he may have that 13 perception, perhaps mistakenly, but I -- 14 COMMISSIONER SIDNEY LINDEN: I doubt if 15 he does, but if he does we'll just carry on and we'll see 16 what happens. 17 MR. MURRAY KLIPPENSTEIN Thank you very 18 much. 19 COMMISSIONER SIDNEY LINDEN: I think if 20 you have an objection to make, you'll make it, but at the 21 moment I don't see any problem. 22 I think Mr. Rosenthal's questions have 23 been, for the most part, focussed and relevant and 24 useful. 25 MR. MURRAY KLIPPENSTEIN Thank you.
661 COMMISSIONER SIDNEY LINDEN: It takes 2 time and we're going through it. 3 MR. PETER ROSENTHAL: I should dare speak 4 myself. I don't -- I don't know if he does, either. I 5 thought I had a little bit of a flack, but I thought it 6 was fine and we'd got out what was important and I'm 7 happy to continue. 8 9 CONTINUED BY MR. PETER ROSENTHAL: 10 Q: In any event, sir, we're in the 11 scribe notes. I should like to look at the scribe notes, 12 Exhibit 426, Inquiry Document 1002419 for September 6, at 13 20:49. 14 MR. DERRY MILLAR: Page 76 15 MR. PETER ROSENTHAL: Page 76 in my 16 version. Oh here's the -- 17 18 CONTINUED BY MR. PETER ROSENTHAL: 19 Q: Anyway, sir, I should like to look at 20 20:49. The second entry under that time is the command 21 that we just discussed before the break: 22 "John Carson: All we are doing is 23 observation. We are not going tactical, 24 let's get that straight." 25 Then, sir, if we move three (3) paragraphs
671 down: 2 "John Carson: We are using TRU to go 3 in and get an eye. If they're just 4 having a campfire, let's leave them. 5 Why go in the dark?" 6 Now, sir, you told us that you never 7 changed the earlier command that I just read again. 8 Did you ever change this command, sir? 9 A: No. 10 Q: So were they having a campfire or 11 what was your understanding as to what they were doing 12 when the TRU observed them? 13 A: They were out on the parking lot and 14 on the roadway. 15 Q: Yes, were they attacking anyone? 16 A: There was no one there at that point. 17 Q: Yes. Were they doing anything 18 unusual? 19 A: Carrying bats or bat-like objects, as 20 I understand. 21 Q: And how many did you understand had 22 bat-like objects at that time, sir? 23 A: I couldn't give you a number. 24 Q: No. And where is your recording or 25 the scribe recording of the report that you got back from
681 the TRU observers? 2 A: As was indicated earlier, the 3 recording for the TRU radio network malfunctioned and so, 4 in fact, there is no recording of their transmissions. 5 Q: Yes. Where are the scribe notes, 6 where are your notes, where are any notes that will 7 assist us as to what you learned about the TRU 8 observations that made you have the officers mark down 9 that -- march down that road that night, sir? 10 A: I don't have any notes of that 11 portion. 12 Q: There's nothing that reflects that at 13 all in all these documents, as far as I've been able to 14 tell, and that's as far as you've been able to tell, too? 15 Is that correct, sir? 16 A: Correct. 17 Q: Now... 18 COMMISSIONER SIDNEY LINDEN: Mr. Sandler 19 wants to get your attention, or my attention. 20 MR. MARK SANDLER: I just want to 21 indicate that I'm not suggesting it's unfair. My Friend 22 will say it's not an objection, but I want to be clear 23 here. 24 Deputy Commissioner Carson should not be 25 expected, as part of his mandate, to know --
691 COMMISSIONER SIDNEY LINDEN: Everything 2 that's in all of the documentation. 3 MR. MARK SANDLER: -- all the notes that 4 exist, because I will be putting to him -- 5 COMMISSIONER SIDNEY LINDEN: Yes. 6 MR. MARK SANDLER: -- some notes that 7 relate to that very issue. 8 COMMISSIONER SIDNEY LINDEN: Well, he -- 9 MR. MARK SANDLER: And I just want to be 10 clear -- 11 COMMISSIONER SIDNEY LINDEN: -- can be 12 asked -- 13 MR. MARK SANDLER: My Friend's entitled 14 to ask the question -- 15 COMMISSIONER SIDNEY LINDEN: He -- yes, 16 that's fine. 17 MR. MARK SANDLER: And so that he's under 18 no -- 19 COMMISSIONER SIDNEY LINDEN: There's 20 nothing that he's aware of. 21 MR. PETER ROSENTHAL: I asked "as far as 22 you're aware". 23 COMMISSIONER SIDNEY LINDEN: That's fine. 24 25 CONTINUED BY MR. PETER ROSENTHAL:
701 Q: And that's as far as you're aware to 2 this very instant, is that correct, sir? 3 A: That's fair. 4 Q: Now, you've got no information other 5 than there were people standing out in the Sandy Parking 6 Lot, perhaps û- perhaps a few carrying things, right? 7 A: I'm sorry. 8 Q: As far as what the TRU reported back, 9 as far as you understood, there was nothing else 10 happening there except for people standing around, maybe 11 some with bats or sticks, is that right? 12 A: Right. 13 Q: So, sir, that's not having a 14 campfire, but it's not doing anything either, is it, that 15 requires officers to march on them, is it? 16 A: Well, there's certainly the 17 potential, sir. 18 Q: Potential? Sorry, what did you say, 19 sir; my hearing is not good. 20 A: That's what I said. There was 21 certainly the potential. We were concerned for a number 22 of issues there. 23 Q: You state that one (1) of the 24 concerns was about the nearby cottages, right? 25 A: Correct.
711 Q: And especially, there's one (1) 2 cottage that's quite -- relatively near to the Sandy 3 Parking Lot, is that fair? 4 A: Yeah, it's adjacent to. 5 Q: But sir, I would put it to you that 6 the TRU team could have kept on observing, and observing, 7 and observing and see if any of what you consider to be 8 potential danger was realized before you had officers 9 march on those people; what do you say to that, sir? 10 A: Well, that was certainly an option, 11 but the intention was to use a Crowd Management Unit to 12 go down and move them back into the Park. 13 Q: I understand that, sir. That became 14 the intention later on, but would you agree, sir, that 15 what you are reported as saying, and what you acknowledge 16 you did say: "if they're having a campfire, let's leave 17 them. Why go in the dark?" would suggest that if that 18 had been followed, you would have just left them all 19 night unless the TRU observers saw something that really 20 represented a danger, isn't that fair? 21 A: Fair enough. 22 Q: Why didn't you do that sir, just wait 23 and let the TRU team keep observing rather than march 24 those officers down that roadway? 25 A: Because I was satisfied the activity
721 in that area required the team to go down and move them 2 back in to the Park. 3 Q: Because of potential violence, is 4 that what you're telling us, sir? 5 A: Right. 6 Q: And that potential was no different 7 at the time they marched down from the time several hours 8 earlier when Mark Wright said he observed persons in the 9 parking lot in similar circumstances, isn't that fair? 10 A: Fair. 11 Q: And that potential had not been 12 realized at all in that several hour period, isn't that 13 right? 14 A: No one had stumbled into the area, I 15 mean, that was one (1) of the issues. We didn't want 16 someone else to come around that corner and be confronted 17 by the individuals there, and we didn't want anyone to û- 18 or the cottages to come into any harm up there. 19 Q: Yes. And as far as people coming 20 down that road, were you afraid that some of the 21 cottagers might march down the road in an attempt to 22 displace the persons in the Park? 23 A: Well, that was certainly a potential, 24 but we certainly felt, at that point in time, that Mark 25 Wright's meeting with them earlier in the afternoon had
731 dissuaded them, for the short-term anyway. 2 Q: I see. So, you say you were afraid 3 that someone might go into that area and become a victim 4 of violence, is that what your evidence is, sir? 5 A: Well, we didn't want that to happen, 6 yes. 7 Q: Yes. But you had observation posts 8 at various places approaching that area, did you not, 9 sir? 10 A: Correct. 11 Q: And so, wouldn't the reasonable way 12 of û- of dealing with that possible concern to have been 13 to warn anyone who was marching down the road, driving 14 down the road, or whatever, as they came to the 15 observation post that it might be dangerous to proceed? 16 A: Correct. That's fair. 17 Q: And that would have been a safe way 18 of dealing with that potential, would it not, sir? 19 A: That û- that's one (1) option. 20 Q: Yes. And if you had chosen that 21 option, Dudley George would not be dead, isn't that fair, 22 sir? 23 24 (BRIEF PAUSE) 25
741 Q: Is that not fair, sir? 2 A: Well, it û- it's very obvious what 3 the alternative is. 4 Q: Is that not fair, sir? 5 A: That's a fact. 6 Q: That's a fact. So, this was a very 7 serious error on your part, was it not sir, that resulted 8 in the death of a human being, is that not fair, sir? 9 A: I don't believe there was an error on 10 my part. 11 Q: I see. You agree that the same 12 objective could have been attained by officers at the 13 observation posts warning any persons that they should 14 not go down that road, isn't that fair? You said that 15 before. 16 A: Yes, I did. 17 Q: And so you don't agree that it was an 18 error not to choose that way of handling it, as opposed 19 to the way you did handle it, sir? 20 A: In hindsight that's easy to say. 21 Q: Yes. Well in hindsight, do you agree 22 it was an error in hindsight, sir? 23 A: No. I -- I wouldn't agree it's an 24 error in hindsight. 25 Q: I see. It's easy to say in hindsight
751 for other people, but for you, sir, is that correct; 2 that's what you meant by it's easy to say in hindsight? 3 A: You don't have all the facts -- we -- 4 we dealt with the situation as we had it at that time. 5 And at that time it -- we felt that was the best 6 decision. 7 Q: I appreciate, sir, that's the 8 decision you made. But would you not agree in hindsight, 9 it was an error? Everybody makes errors and did you not 10 make a grievous error that night, sir? 11 A: No, sir. 12 Q: Now, we have a document entitled 13 Chatham Logger Tape, which is Exhibit P-438. I believe 14 it was given as a separate document, I don't believe it 15 has an inquiry document number. 16 COMMISSIONER SIDNEY LINDEN: Did you say 17 428 or 438? 18 MR. PETER ROSENTHAL: P-438, sir. 19 COMMISSIONER SIDNEY LINDEN: 438... 20 21 CONTINUED BY MR. PETER ROSENTHAL. 22 Q: Do you -- I don't know if you have 23 that in some other form, sir -- thank you -- the exhibit 24 copy. 25 A: Thank you.
761 Q: Now, sir, this logger tape at the 2 heading says that it's from the time period 10:27 p.m. to 3 11:10 p.m. of September 6th, 1995, is that correct? 4 A: Right. 5 Q: And you recognize this as being more 6 or less an accurate transcript of calls that were made at 7 that time period, is that correct? 8 A: I believe so, yes. 9 Q: And you would have been hearing what 10 was heard on this channel, is that correct, sir, that 11 evening? 12 A: Right. 13 Q: So you would have heard for example 14 as -- as it begins Officer Lacroix saying: 15 "CMU advance, slow pace, should be 10th 16 of a K." 17 Is that correct? 18 A: Right. 19 Q: And you as the Incident Commander 20 would be monitoring this to determine whether they were 21 following your instructions, and to perhaps give specific 22 orders depending upon the circumstances that eventuated, 23 is that correct? 24 A: That's fair. 25 Q: Now, before you had those officers
771 march down the road, did you parade the officers in some 2 way and give them some briefing, some instructions as to 3 what to do, sir? 4 A: No. 5 Q: No, that would have been an option? 6 A: No. It's -- that -- that's Staff 7 Sergeant Lacroix's responsibility. 8 Q: I see. So you gave your orders to 9 Staff Sergeant Lacroix? 10 A: Correct. 11 Q: And also to Staff Sergeant Skinner, 12 is that correct? 13 A: Correct. 14 Q: And -- and Lacroix in charge of the 15 CMU officers, right? 16 A: Right. 17 Q: And Skinner in charge of the TRU team 18 officers? 19 A: Right. 20 Q: And you in overall charge, exercising 21 your command through those two (2) officers? 22 A: Right. 23 Q: So then you heard Officer Lacroix 24 say, and I'm now about the middle of the first page of 25 this transcript:
781 "Okay, good news. They've got rocks 2 and sticks piled up and we all know we 3 can beat that. Rocks and sticks, 4 that's an odd bailiwick." 5 So, you heard that, sir? 6 A: I believe so, yes. 7 Q: And you understood that this was 8 confirming what you thought about these people that they 9 were not people who were going to have guns trained at 10 you, although they might have some rocks and sticks, 11 right; that's what you understood, is that correct? 12 A: The -- we knew there was potential 13 for firearms. 14 Q: Yes. But you didn't expect these 15 people, you told us the other day, to train firearms on 16 you, right? 17 A: I didn't -- didn't expect it from the 18 people that we knew. 19 Q: Yes. 20 A: I -- I think the way I explained it 21 is there was always a concern about the outside 22 influence, and we knew there was availability of 23 firearms. 24 Q: But if you thought there was a 25 realistic chance that people would be in a position to
791 fire on the officers marching down the road, you would 2 not have marched them down the road, isn't that right? 3 A: That's fair. 4 Q: Yes. So, at that time, you thought 5 the danger of that was rather small, right? 6 A: Correct. 7 Q: And I would put it to you that when 8 you heard Staff Sergeant Lacroix talk about rocks and 9 sticks being built up and in û- in our bailiwick, that 10 would have confirmed your feeling that probably there's 11 not going to be danger of firearms, isn't that fair? 12 A: Well, it û- it was his commentary 13 about rocks and sticks being there, and that they could 14 deal with that. 15 Q: Yes. That was something you were 16 prepared to deal with, as opposed to, you were not 17 prepared to have the CMU march down that road if they 18 were going to be facing fire from firearms, right? 19 A: Correct. 20 Q: Right? Okay. So now û- but then he 21 says: 22 "All we have to worry about is little 23 brown stocks and black barrels." 24 What does he mean by that, do you know? 25 A: Well, he's referring to a firearm,
801 obviously. 2 Q: So, he says: 3 "We do it û- we have to worry about 4 little brown stocks and black barrels, 5 too?" 6 Is that what he was saying; is that what 7 you understood, sir, at the time? 8 A: That û- that's what it says. 9 Q: But I would put it to you that in any 10 event, at that moment, you did not think there was a 11 serious danger of people firing on your officers, or you 12 would have told them to stop, correct? 13 A: Fair enough. 14 Q: Now, you're marching down the road 15 and you are in communication through the voices that 16 you're hearing, and the TRU team members were making 17 observations at this time still, is that correct? 18 A: Yes, they were. 19 Q: And there were four (4) such persons? 20 A: Actually, there were six (6). 21 Q: Six (6) persons? 22 A: In total, yes. 23 Q: Six (6) in total? And one (1) of 24 them was Kenneth Deane? 25 A: Correct.
811 Q: And Kenneth Deane was second in 2 command of the TRU on that evening, is that correct? 3 A: He was acting Sergeant, yes. 4 Q: Acting sergeant? 5 A: Yes. 6 Q: But he was second to Staff Sergeant, 7 if I get the rank right, Skinner -- 8 A: Correct. 9 Q: û in commanding the TRU team, right? 10 A: Correct. 11 Q: So, second in command is a fair 12 description, is it not? 13 A: Yes, sure. 14 Q: And so, as far as the observation 15 aspect of the sniper team, did you û- did you at this 16 point get back any observations from them reflected 17 anywhere, or in your memory as to what was actually going 18 on in the Sandy Parking Lot as the CMU officers were 19 marching down East Parkway? 20 A: Well, there was reports coming back 21 as to the activity that was taking place in the parking 22 lot. 23 Q: There were reports of that? 24 A: Yes. 25 Q: And it was your understanding that it
821 was a situation, as you described here a little while 2 ago, some people standing in the Sandy Parking Lot, some 3 perhaps with sticks or bats? 4 A: Fair enough. 5 Q: Is that correct? 6 A: Yes. 7 Q: Now, on page 4 of this transcript, at 8 the fourth entry there, it says Deane, but then I believe 9 you corrected it, as saying that probably it was Skinner 10 who -- who said that, and it's really "TOC" rather than 11 "TAC" û- a CMU person û- 12 "TOC to CMU: Person down the road does 13 have a weapon, does have a weapon." 14 Right? 15 A: Right. 16 Q: Now, sir, if that was Skinner's 17 voice, Skinner was with you back in the MNR parking lot, 18 is that correct? 19 A: Right. 20 Q: So, he would not have been reporting 21 his own observation, he would have been reporting the 22 observation of one (1) of the officers under his command, 23 is that correct? 24 A: Right. 25 Q: So, it would have been û- it would
831 have been one (1) of the members of the sniper team? 2 A: Right. 3 Q: And did you not get the information, 4 sir, that the member of the sniper team who reported that 5 to Officer Skinner was, in fact, Staff û- Officer Kenneth 6 Deane? 7 A: I û- I can't confirm to you which 8 officer reported back. I know that information came 9 back, that's û- that's the information, but the -- which 10 officer reported I couldn't tell you. 11 Q: And wasn't it your understanding at 12 the time, or shortly there afterward, that the officer 13 who did that reporting was, in fact, Kenneth Deane? 14 A: It could have been. 15 Q: It was your understanding at the 16 time, was it not, sir? 17 A: I -- I have no recollection of which 18 officer reported that. 19 Q: I see. Now, shortly thereafter, 20 another third of the way down the page we see Skinner 21 saying: 22 "CMU from TAC 1, are you holding your 23 position?" 24 And an answer from Officer Hebblethwaite: 25 "TAC, yes, he's holding position."
841 So, they were, I believe, and correct me 2 if I'm wrong, following your instructions that if there 3 was any serious danger of firearms that eventuated, they 4 were to hold off and not get engaged in something that 5 might result in an officer being shot, right? 6 A: At the point that you're referring 7 to, they -- they were at a halt. 8 Q: Yes. 9 A: Yes. 10 Q: Oh, did -- they halted though, did 11 they not, because of the report that there might be 12 someone with a weapon? 13 A: Sure. 14 Q: Yes. 15 A: Correct. 16 Q: Yes. 17 A: Correct. 18 Q: So, perhaps -- I'm sorry, perhaps I 19 didn't express myself very well, but that was in 20 accordance with your instructions, was it not, that if, 21 as you're marching down the road it appears that there is 22 substantial danger of being fired at with a weapon, you 23 should halt or retreated -- not continue down the road. 24 Isn't that fair? 25 A: Yes, as the information come back we
851 would assess it and take whatever action was necessary 2 and in this case there was believed to be seen a weapon 3 and they were told to halt. 4 Q: Yes, but the action necessary that 5 you would suggested to them if they did have some 6 evidence of a weapon, was not to fight it out, but to 7 hold back and try and avoid any exchange of gunfire, 8 isn't that fair? 9 A: Oh sure, sure. 10 Q: And they were apparently following 11 your instruction at this point? 12 A: Correct. 13 Q: When they were told that there was 14 someone with a weapon, they stopped -- 15 A: Right. 16 Q: -- they continued, right? 17 A: Sure, yeah. 18 Q: And then later on, on that page, it's 19 Skinner says: 20 "Subject is believed to be armed. 21 Hebblethwaite: Copy that, one subject 22 armed, long gun. 23 Skinner: 10-4." 24 But then, a few minutes later under the 25 heading on the next page, current time 10:46 p.m.
861 "Skinner: CMU confirmed the subject 2 has a stick that has been confirmed by 3 Romeo, stick." 4 You heard that at the time, sir, did you? 5 A: Yes. 6 Q: So what you understood at the time 7 and what you understand even after all these years, is 8 that that was an indication that the CMU or officers from 9 the CMU had observed the person who had been reported to 10 have a gun, and found that, in fact, it was a stick not a 11 gun, that that person had in his hand, right? 12 A: No, you're inaccurate in your -- in 13 your assessment -- 14 Q: Sorry -- 15 A: You're inaccurate in your assessment. 16 This is Skinner reporting to the CMU that it's confirmed 17 to be a stick. 18 Q: Oh, I see, I'm sorry. 19 A: So it's the TRU team reporting to 20 Skinner, Skinner's relaying it to the -- to the ERT 21 commander. 22 Q: I see, thank you. The punctuation 23 isn't here and so you're suggesting I should have read 24 that: 25 "CMU confirmed the subject has a stick.
871 It's been confirmed by Romeo, stick." 2 Is that correct? 3 A: Right. 4 Q: By Romeo, stick? 5 A: Right. 6 Q: So in other words, it was Skinner 7 informing the CMU that it was a mistake to report it that 8 a person had a gun, in fact that person had a stick 9 instead? 10 A: Right. 11 Q: And this was reported by Romeo, 12 confirmed by Romeo that it was a stick. 13 Do you -- did you understand at the time 14 or do you understand now who Romeo was? 15 A: I'm not sure who had which call sign. 16 Q: I see. But you heard this at the 17 time -- 18 A: Right. 19 Q: And you, I gather, would have been 20 relived that there was not a gun, it was a stick 21 instead -- 22 A: Yeah. 23 Q: Is that fair? 24 A: Sure, that's fair. 25 Q: But, sir, would you also not have
881 been concerned that one of your officers, one of your 2 sniper team observers, had reported that someone had a 3 gun and that report was an error? 4 Would that have not made you concerned? 5 A: I -- I'm -- I certainly don't 6 understand why I would be concerned. 7 Q: Well, I would put it to you, you 8 might be concerned because the next time that sniper saw 9 someone and he thought that person had a gun, he might 10 shoot him and kill him and you might be worried that 11 somebody who made that mistake might be a little bit over 12 anxious and it might be dangerous. 13 That didn't occur to you, sir? 14 A: No, sir. I would much rather that we 15 halt the crowd management team because somebody had a 16 stick, as opposed to letting the team go down the road, 17 if they believe they actually had a weapon. 18 Q: Yes, but I'm suggesting to you, sir, 19 that leaving that same sniper observer as an observer, 20 when that person had incorrectly told all of the officers 21 someone had a gun was dangerous because it indicated that 22 person with that mentality was still there observing; you 23 don't see any danger in that, sir? 24 A: I -- I disagree with your assessment 25 totally.
891 Q: I see. Now, in any event, after it 2 was confirmed to be a stick rather than a gun, they 3 continued marching down the road, correct? 4 A: Right. Right. 5 Q: And that would be in accordance with 6 your instructions -- 7 A: Right. 8 Q: -- once there -- there was no longer 9 that apparent danger, they should continue, right? 10 A: Right. 11 Q: Now, and I continue on the next page 12 then of the transcript, it's page 6 now we're up to. And 13 two thirds of the way down the page, there's an entry 14 attributed to Lacroix. "They're on provincial property". 15 Now you understood that, sir, did you not, 16 as meaning they were in the Park? 17 A: Right. 18 Q: Yes. So at that point, he reported 19 to you, they were in the Park, right? 20 A: At that point, yes. 21 Q: Yes. And this is apparently at 22 10:48. 23 A: Correct. 24 Q: Now, sir, you -- or shortly after 25 10:43.
901 MR. MARK SANDLER: 10:53. 2 MR. DERRY MILLAR: Yeah, it's after 10:48 3 the -- this is a moving transcript and this transcript 4 simply has the wrong times. 5 MR. PETER ROSENTHAL: Yes, that -- that's 6 very fair, Mr. Commissioner. It's -- 7 COMMISSIONER SIDNEY LINDEN: Some time -- 8 9 CONTINUED BY MR. PETER ROSENTHAL. 10 Q: Some time we can be fairly certain, 11 between 10:48 and 10:54 on that evening, is that correct, 12 sir? 13 A: Sure. 14 Q: So he reported to you they're on 15 provincial property, right? 16 A: Right. 17 Q: Meaning not in the Sandy Parking Lot 18 anymore, but back in the Park, right? 19 A: Right. 20 Q: Better than having a campfire in the 21 parking lot, they're even back in the Park, right? 22 A: Right. 23 Q: So why didn't you instruct them to 24 back off at that point, sir? 25 A: I did.
911 Q: You did; I see. Where is that, sir? 2 A: You'll see, take up a defensive 3 position. 4 Q: Take up defensive position? 5 A: Right. They moved back away from the 6 parking lot. They had come in around the -- to the 7 corner, and the individuals on the parking lot went back 8 into the Provincial Park -- 9 Q: I see. 10 A: -- and then they took a defensive 11 position which was back away from the -- out by the 12 roadway as -- as I understand it. 13 Q: Okay. And then -- 14 A: So -- so they did take up a defensive 15 position, and -- and in fact move back as you suggest. 16 Q: And how did they then start with 17 shield chatter? 18 A: How? 19 Q: Why? 20 A: Well, I wasn't there at --- at the 21 time, but as I understand it, they were taking rocks, and 22 fire brands, and things being thrown at the them from the 23 fence. 24 Q: I see. So they were still very 25 visible to the people in the Park?
921 A: Right. 2 Q: But why didn't you tell them to back 3 away from that area entirely to leave those people alone 4 because they weren't doing anything? 5 A: If they -- and that's exactly what we 6 -- we did do eventually. The -- the idea here was to 7 hold the defensive position if they stay in the Park then 8 it's exactly what would happen; the team would be marched 9 back up the road to the -- to the TOC site. 10 Q: And it's your evidence, sir, did you 11 instruct them to begin to have shield chatter, and march 12 on them? 13 A: No. 14 Q: You didn't instruct that? 15 A: No. 16 Q: Well you -- they took up a defensive 17 position -- 18 A: Correct. 19 Q: -- were you involved in changing from 20 that defensive position to approaching people in the 21 Park, sir? 22 A: No. 23 Q: You were not -- you were the Incident 24 Commander and you were not involved in that decision, 25 sir?
931 A: No. The staff sergeant on the ground 2 has to make that assessment because he is the eyes there 3 to make those decisions; that's -- that is his function. 4 Q: And -- and that was Lacroix? 5 A: Right. 6 Q: And he didn't consult with you at all 7 about that, sir? 8 A: No. 9 Q: He just started marching on them with 10 shield chatter? 11 A: Correct. He had -- he was reacting 12 to the situation that he was facing. 13 Q: Well, sir, you weren't there. You 14 don't know what he saw, right? 15 A: You are asking my opinion and I'm 16 trying to do my best to fill both sides of this -- 17 Q: No, sir, I'm not asking you -- 18 MR. DERRY MILLAR: With respect, My 19 Friend can't have it both ways. 20 COMMISSIONER SIDNEY LINDEN: No. 21 MR. DERRY MILLAR: He can't say he did X, 22 but then when he gets an answer, say well you weren't 23 there. 24 COMMISSIONER SIDNEY LINDEN: You weren't 25 there.
941 MR. DERRY MILLAR: He wasn't there and we 2 know that. And so -- 3 COMMISSIONER SIDNEY LINDEN: You have to 4 take all the answers in that context. 5 MR. PETER ROSENTHAL: With respect, Mr. 6 Commissioner, I'm asking what this officer knew and did. 7 And I asked him if he gave any orders during that time 8 period and he said no. 9 COMMISSIONER SIDNEY LINDEN: Yes. 10 MR. PETER ROSENTHAL: And I want to -- 11 and I'm -- he can't tell us what was in Lacroix's mind or 12 what Lacroix saw, and I'm not asking him to, sir. 13 COMMISSIONER SIDNEY LINDEN: No but on 14 other occasions during your examination -- 15 MR. PETER ROSENTHAL: If -- if I did, 16 then I did -- 17 COMMISSIONER SIDNEY LINDEN: You have. 18 MR. PETER ROSENTHAL: -- inadvertently, 19 sir, -- 20 COMMISSIONER SIDNEY LINDEN: That's fine. 21 MR. PETER ROSENTHAL: -- and I don't 22 intent to do that. 23 COMMISSIONER SIDNEY LINDEN: Okay. 24 MR. PETER ROSENTHAL: And there may -- 25 there may have been a misunderstanding. And maybe I
951 didn't express myself very well, sir. 2 3 CONTINUED BY MR. PETER ROSENTHAL: 4 Q: But, officer, to make it clear: I 5 want to know what you did, and what you thought, and what 6 you saw on that night, okay, directly, from your 7 evidence. 8 A: Hmm hmm. Sure. 9 Q: And sir, you've told us that during 10 the period you heard them say -- you heard Skinner say: 11 "take up a defensive position" right? 12 A: Right. 13 Q: And then you heard Lacroix several 14 minutes later perhaps, say "shield chatter" right? 15 A: Correct. 16 Q: But we don't know exactly how much 17 time perhaps, but -- 18 MR. DERRY MILLAR: We do know. We do 19 know. On the document that I've provided to My Friends, 20 it's just simply an outline, we know exactly it was one 21 (1) minute later, at 2254 is where shield chatter comes 22 in. 23 MR. PETER ROSENTHAL: Okay. That's fine. 24 25 CONTINUED BY MR. PETER ROSENTHAL:
961 Q: So, one (1) minute later. 2 3 (BRIEF PAUSE) 4 5 Q: And -- sorry, sir, you're reviewing 6 some documents, are you sir? 7 A: I'm just reading the transcript here. 8 Q: Oh, certainly, I'm -- I'm happy to 9 give you time to do that, sir, if you wish. 10 COMMISSIONER SIDNEY LINDEN: Do you wish 11 to -- 12 THE WITNESS: Go ahead. Go ahead. 13 14 CONTINUED BY MR. PETER ROSENTHAL: 15 Q: So, My Friend, Mr. Millar, who knows, 16 says that one (1) minute later Lacroix said, and it was 17 broadcast and you heard it, "shield chatter", right? 18 A: Correct. 19 Q: And you told us that in between 20 Skinner's saying "Take up a defensive position" and 21 Lacroix saying "Contact Squad, back up slowly" you did 22 not give any orders; is that correct? 23 A: Correct. I'd -- I'm not sure how the 24 shield chatter fits in here. 25 Q: Yes.
971 A: I mean -- I -- I mean, I wasn't -- 2 I'm not there to -- to see who's doing what at that 3 point. 4 Q: Yes. But you heard him say "shield 5 chatter" right? 6 A: Sure. Oh yes. 7 Q: And you knew that that was something 8 that was done when the Crowd Management Unit is going to 9 march on a group of people; right? 10 A: Possibly. 11 Q: Is there any other time that it was - 12 - that it would be done in this kind of a context, sir? 13 A: Just to demonstrate their presence, 14 that's all. 15 Q: I see. So they could have been just 16 standing back and doing shield chatter? 17 A: That's possible, yes. 18 Q: For all you knew at the time? 19 A: It -- it's possible. 20 Q: But in any event, it's to demonstrate 21 your presence; is that not correct? 22 A: Right. 23 Q: And that's quite different, would you 24 agree, sir, from withdrawing if they're only having a 25 campfire?
981 A: Yes. 2 Q: Yes. So, did Officer Lacroix disobey 3 your instructions then, sir, because he didn't see 4 anything going on in the parking lot, but he didn't back 5 off, he stood there and did shield chatter. Wasn't that 6 disobeying your instructions, leave if they're only 7 having a campfire? 8 COMMISSIONER SIDNEY LINDEN: Mr. 9 Sandler...? 10 MR. MARK SANDLER: My Friend has mixed 11 periods, he's mixed what Lacroix knows, and what this 12 officer knows, and frankly, the evidence is not that 13 nothing was happening during that period. 14 So, that is just about as unfair a 15 question as one can imagine, phrased like that. 16 MR. PETER ROSENTHAL: Well Mr. Sandler 17 has a very limited imagination if that's the most unfair 18 question he can imagine. 19 MR. MARK SANDLER: I'm sorry, there was 20 some last day that I thought were unfair. 21 MR. PETER ROSENTHAL: But, what he's 22 saying, Mr. Commissioner, -- 23 COMMISSIONER SIDNEY LINDEN: Come back 24 and ask the question again, -- 25 MR. PETER ROSENTHAL: I'm happy to break
991 it down more. 2 COMMISSIONER SIDNEY LINDEN: -- and break 3 it down. 4 5 CONTINUED BY MR. PETER ROSENTHAL: 6 Q: Now, sir, you agree that your 7 instructions were essentially: Go down there, if they're 8 just having a campfire, don't do anything; right? 9 A: Right. 10 Q: And you didn't mean it had to be a 11 campfire, you meant if they're not doing anything that 12 looks dangerous, in the Sandy Parking Lot, come back and 13 we'll deal with it tomorrow, with the injunction; right; 14 that's what you meant? 15 A: Fair. 16 Q: And so you learned at perhaps, and 17 I'm sure Mr. Millar will tell me the seconds, but at 18 about 10:52 perhaps, that they were on Provincial 19 property, meaning they were in the Park; right? 20 MR. DERRY MILLAR: 10:53. 21 MR. PETER ROSENTHAL: Three...? 22 23 CONTINUED BY MR. PETER ROSENTHAL: 24 Q: I knew he'd have it, it's fifty three 25 (53). So at 10:53, on the evening of September 6, 1995,
1001 you knew that these people were in the Park; right? 2 A: Right. 3 Q: And I want to ask you, sir, when you 4 learned that, why did you not radio Lacroix and Skinner 5 and say: back away from the area, don't have any 6 confrontation with these people, don't do anything that 7 will provoke anything, they're back in the park, let's 8 just observe from a far away distance? 9 A: They û- they had just ran back into 10 the Park. They were instructed to take a defensive 11 position and if they stayed in the Park, that's quite 12 frankly, exactly what would happen. 13 Q: Sir, did you have any evidence that 14 they had run back into the Park? 15 A: Yes, it was my understanding they had 16 been out on the roadway and in the parking lot, and when 17 the team advanced up the road, they retreated back into 18 the Park as I understand it. 19 Q: And how did you get that 20 understanding, sir? 21 A: Well, some of it would have come back 22 up the TRU network by the observer teams. 23 Q: So, not on this tape? 24 A: Right. 25 Q: But on some other tape, sir?
1011 A: Right. 2 Q: And what information did you get on 3 some other tape about them running back into the lot, 4 sir? 5 A: That's my -- 6 Q: Into the Park, I mean, sir. 7 A: Well, my understanding is, they were 8 on û- out in the roadway, in the parking lot with sticks; 9 that information came from the TRU team observers. 10 Q: All right. 11 A: And as I explained earlier, there is 12 no tape because their machine malfunctioned that evening. 13 Q: Yes. 14 A: So, is there a transcript of it; no, 15 there's not. 16 Q: So, was û- was the chain of command 17 on this evening that you were to give instructions to 18 Skinner, and Skinner give instructions to the CMU? 19 A: Right. 20 Q: Do I have that right? 21 A: Well, that's how it was working yeah 22 -- for the most part, yes. I mean, I could have -- 23 Q: Well -- 24 A: I could have picked up the microphone 25 for the Crowd Management Team and û- and done it as well.
1021 Q: Sir, the OPP is -- operates on a 2 command structure, does it not, sir? 3 A: Exactly. 4 Q: And officers have to follow the 5 commands of superior officers, right? 6 A: Right. 7 Q: And you are the Incident Commander 8 this night, right? 9 A: That's û- that's right. 10 Q: And it's your responsibility to make 11 sure that what happens is what you think is the safest 12 and best thing to happen, right? 13 A: Correct. 14 Q: And you were, on that evening, giving 15 your commands to Skinner with the understanding that 16 Skinner would pass on, as appropriate, those commands to 17 the CMU through Lacroix, is that correct? 18 A: That's fair. He û- he was handling 19 the communications there. 20 Q: And so -- 21 A: But that didn't preclude myself from 22 picking up the mic. if I desired, and û- and in one (1) 23 case I, in fact, do that. 24 Q: So, you could have picked up the mic. 25 and gotten into this transcript as well?
1031 A: I could have. 2 Q: And I'm asking you, sir, then, why 3 you did not do that when you were informed that they are 4 back on provincial property? 5 A: Because, as I explained to you, I 6 told them to take up a defensive position, and we were 7 going to see if they were going to stay in the Park. 8 Q: You û- you told them that -- to take 9 up a defensive position so they'd keep them in the park? 10 A: Well, I think you see on page 6, 11 Skinner says: 12 "10-4. Take up a defensive position." 13 Q: Yes. Now, sir, what was your 14 understanding as to how far away from the Park fence the 15 officers were at this time? 16 A: When they û- which û- 17 Q: When û- when û- you heard the 18 command, "Take up a defensive position"? 19 A: Well, I believe they had gone up into 20 the parking lot, fairly closely to the fence. 21 Q: So we -- I'm asking what your 22 understanding was at the time, sir, and your 23 understanding at the time was that they were fairly close 24 to the fence in this defensive position? 25 A: No. In the defensive position? No.
1041 There's two (2) different things here, please. 2 Q: Sure. Let me make my question very 3 clear. You heard Skinner say: "10-4. Take up a 4 defensive position", right? 5 A: Right. 6 Q: At that moment, what was your 7 understanding as to where they were û- 8 A: In -- 9 Q: û- where the most forward officer 10 was? 11 A: They would be in the parking lot, 12 somewhere in reasonably close range to the fence line I 13 would suspect. 14 Q: I see. And then, Lacroix says: 15 "Contact squad back up slowly." 16 Is that correct? 17 A: Right. 18 Q: And you heard that at the time? 19 A: Right. 20 Q: And what was your understanding as to 21 where they backed up to? 22 A: Well, I would suspect, and I û- I û- 23 and only from my knowledge of the geography, they would 24 back up towards the roadway, or towards the û- the 25 property line where the cottages are on the far side of
1051 the parking lot. 2 Q: But at the time, sir, you got no 3 information as to where they were; how far they were from 4 the Park, is that what you're telling us? 5 A: I don't believe so. There's nothing 6 here to indicate exactly where they were other than û- 7 Q: There's nothing here. Did you have 8 any other source of information that would have told you 9 at that time, how far they were from the Park fence? 10 A: I could have received information 11 from the TRU team side, but exactly what it was I û- I 12 couldn't recall today. 13 Q: Now, sir, I would put it to you that 14 you would have known that a large body of officers 15 standing close to the Park fence would, in the context of 16 everything that had happened up to then, be quite 17 provocative, is that not fair? 18 A: Provocative? They were in the Park. 19 I -- I don't know what's provocative about them being 20 outside of the Park. 21 Q: Well, sir, if the officers were five 22 (5), ten (10), fifteen (15) metres from them, standing in 23 a large group facing them, that wouldn't -- in -- in your 24 view at the time, that would not have been provocative? 25 Is that --
1061 A: I don't see what you see provocative 2 in that. 3 Q: I see. Well we'll look at some of 4 the surrounding evidence in a bit. But, anyway, they're 5 on provincial property, they back up slowly, you don't 6 know how far they backed up, but your understanding is 7 they were what, Fifteen (15), twenty (20) feet from the 8 fence at that time, from the Park fence? 9 A: When they took a defensive position? 10 Q: When they took -- when they -- at -- 11 at the furthest they got before they initiated shield 12 chatter? 13 A: Oh -- I -- I have no idea what their 14 position was at the time. I mean -- they may have got 15 into a defensive position then initiated shield chatter. 16 They may have done shield chatter while they backed up. 17 I have no idea. 18 Q: And at the time you had no idea? 19 A: Well I probably -- I probably was 20 aware of it as it was happening, but I mean, as I sit 21 here today I -- I have no idea. 22 Q: But you didn't see these people 23 right? 24 A: Of -- of course not. 25 Q: And your main information was from
1071 the communications that we're looking at -- at a 2 transcript of, right? 3 A: Yes. 4 Q: Yes. Now... 5 6 (BRIEF PAUSE) 7 8 MR. PETER ROSENTHAL: With your 9 indulgence, Mr. Commissioner, may I have a moment please? 10 COMMISSIONER SIDNEY LINDEN: Sure. 11 12 (BRIEF PAUSE) 13 14 MR. MARK SANDLER: I just suggested, and 15 this is my -- this is my fault perhaps, we actually do 16 have logged notes from Officer Zupancic who -- that might 17 assist My Friend instead of asking the witness this kind 18 of question. 19 COMMISSIONER SIDNEY LINDEN: Sometimes 20 your interventions are helpful in that respect. 21 MR. PETER ROSENTHAL: It may be. But I 22 should like a moment to review, sir, if I may, sir. 23 COMMISSIONER SIDNEY LINDEN: Yes, that's 24 fine. 25
1081 (BRIEF PAUSE) 2 3 MR. DERRY MILLAR: We're referring to 4 1005653. 5 COMMISSIONER SIDNEY LINDEN: Yes. Do you 6 want to talk to -- do you want to speak to me, Mr. Ross, 7 or one of the other -- 8 MR. ANTHONY ROSS: Yes, Mr. Commissioner. 9 Mr. Commissioner, I am -- I am very much concerned about 10 the number of documents, government documents that where 11 in the control of the OPP, that were -- that have been 12 dribbled out to us, and if there's more documents that 13 should be delivered to us -- 14 MR. DERRY MILLAR: They're in the 15 database. Wait a second. That's just simply unfair. 16 MR. ANTHONY ROSS: Oh no, it's not 17 intended to be unfair. I might be mistaken -- 18 MR. DERRY MILLAR: Yes. 19 MR. ANTHONY ROSS: -- but it's not 20 intended to be unfair. 21 COMMISSIONER SIDNEY LINDEN: Perhaps you 22 should have a conversation. We don't need to do this on 23 the record. Why don't you have a conversation and tell 24 me. 25 MR. DERRY MILLAR: Well -- but this --
1091 this document is in the database. 2 COMMISSIONER SIDNEY LINDEN: Yes. 3 MR. DERRY MILLAR: And Mr. -- Mr. Sandler 4 simply pointed out to me, I pointed out to My Friend, Mr. 5 Rosenthal, that this might be of assistance because it is 6 in the database. 7 COMMISSIONER SIDNEY LINDEN: It's in the 8 database. 9 MR. ANTHONY ROSS: Well then my 10 apologies, Mr. Commissioner. 11 COMMISSIONER SIDNEY LINDEN: That's fine. 12 MR. ANTHONY ROSS: It's just that the way 13 it came out, it appeared that it was a non-disclosed 14 document, thank you. 15 COMMISSIONER SIDNEY LINDEN: Thank you 16 Mr. Ross. It's helpful if counsel speak to each other 17 rather than -- than to me on -- on these kind of matters, 18 you can sort them out. That's fine. 19 MR. PETER ROSENTHAL: Yes. I -- I do 20 recognize there are different possibilities in respect to 21 different aspects of the evidence, sir. 22 23 CONTINUED BY MR. PETER ROSENTHAL: 24 Q: Are you reviewing Constable 25 Zupancic's notes now? Oh sorry, no -- I -- he was
1101 looking at something, I just wanted to know what that 2 was. 3 Now sir, there was a Constable Rick 4 Zupancic, I think his name is? 5 A: Yes. 6 Q: And was he with you in the tactical 7 operation centre during this? 8 A: Yes. He was in the back of the TRU 9 team van. 10 Q: He was in the back of the TRU team 11 van, and where were you? 12 A: I was in the right front seat. 13 Q: Right front seat. My Friend, Mr. 14 Millar, suggested putting it on the screen and that's 15 fine, it's on the screen. 16 17 (BRIEF PAUSE) 18 19 MR. DERRY MILLAR: Perhaps, Commissioner, 20 in fairness to My Friend, it might be an appropriate time 21 to take the lunch break a little bit early, and then we 22 can create a hard copy for Mr. Rosenthal. 23 COMMISSIONER SIDNEY LINDEN: Are there 24 other documents in this category, Mr. Rosenthal, we 25 could --
1111 MR. PETER ROSENTHAL: Sir, I was unaware 2 of this document, I must confess. 3 COMMISSIONER SIDNEY LINDEN: Okay. 4 MR. PETER ROSENTHAL: You recall that it 5 came out as a result of Mr. Sandler's suggestion, and 6 that there aren't others that I'm aware of, sir. 7 COMMISSIONER SIDNEY LINDEN: If there are 8 other documents that you are aware of that you would like 9 to use, we'll make copies of them over the lunchbreak. 10 MR. PETER ROSENTHAL: Oh, I -- I have 11 disclosed all documents, that I am aware of, that I want 12 to put to this witness. 13 COMMISSIONER SIDNEY LINDEN: That's fine. 14 Right, we'll take a lunch break now. 15 MR. DERRY MILLAR: Thank you, sir, and 16 we'll get a copy for both My Friend, Mr. Rosenthal, and 17 the witness. 18 THE REGISTRAR: This Inquiry stands 19 adjourned until five minutes to 2:00. 20 21 --- Upon recessing at 12:41 p.m. 22 --- Upon resuming at 1:56 p.m. 23 24 THE REGISTRAR: This Inquiry is now 25 resumed, please be seated.
1121 COMMISSIONER SIDNEY LINDEN: Good 2 afternoon. 3 MR. PETER ROSENTHAL: Good afternoon. I 4 should acknowledge that it was of assistance for Mr. 5 Sandler to provide this particular document. 6 COMMISSIONER SIDNEY LINDEN: That's good, 7 good news. 8 MR. PETER ROSENTHAL: And it was also of 9 assistance for Mr. Millar to suggest breaking at that 10 point so that we could organize these. 11 12 CONTINUED BY MR. PETER ROSENTHAL: 13 Q: Now, sir, am I correct in 14 understanding that there were two (2) different channels 15 operating that night with respect to police 16 communications; one that was the CMU channel, basically, 17 and the other the TRU channel. 18 Is that fair? 19 A: There are two (2) distinct, separate 20 networks. 21 Q: Two (2) different networks, yes. 22 A: Right. 23 Q: And one CMU and one TRU? 24 A: Correct. TRU team has it's own radio 25 network.
1131 Q: Yes. And as you were sitting in the 2 Tactical Operations Centre, you were able to hear both 3 the communication channels, is that correct? 4 A: Correct. 5 Q: And we have the recording of the 6 Chatham logger tape, which is Exhibit P-438, that was the 7 CMU network? 8 A: Right. 9 Q: And for technical reasons then, I 10 gather, you don't have any information about -- we do not 11 have a recording of the other channel? 12 A: I can explain why it's not recorded. 13 Q: Oh, sorry -- 14 A: I have explained that before, but I 15 can explain it again, if you like. 16 Q: If it's very brief, please do so. 17 A: Well, the TRU team truck has a 18 recorder in the back of the van -- 19 Q: Right. 20 A: -- the -- the one in which I was 21 seated. The truck stalled, the -- the tape recorder had 22 been on record, but as in a lot of tape recording 23 machinery, you have to push play and record together, to 24 work. 25 When the truck started up and truck
1141 recycled up, the -- the recorder came back on -- 2 Q: Right. 3 A: Unfortunately, you have to push the 4 record button. It was on play but not record -- didn't 5 record with it. You'd have re-start the record function, 6 the wheels were rolling, and the officer was of the 7 impression that it was working as it was supposed to. 8 Q: Thank you. And at -- at about what 9 time did it first stop playing that evening? 10 A: Oh, that was right at the start when 11 I first got in the truck. 12 Q: When you first got in the truck? 13 A: Right. 14 Q: It wasn't playing at that -- 15 A: No, no. No, when the truck stalled. 16 Q: When the truck stalled? 17 A: Right. 18 Q: So that was when you got in the 19 truck? 20 A: Right, it stalled while I was -- when 21 I first arrived in the truck. 22 Q: So there should be a recording of the 23 TRU channel up until that moment? 24 A: Fair enough, should be. 25 Q: And that -- and that would be
1151 sometime around 8:00 -- 8:00 something, sir, that 2 evening? 3 A: Whenever the officer activated the 4 recorder, I don't know what time that was. 5 Q: No, but the time of the stalling that 6 stopped the recording you said was when you were -- when 7 you first entered the truck, did I -- 8 A: Right. 9 Q: -- understand you correctly? 10 A: Right, right. 11 Q: And that would have been shortly 12 after 8:00 p.m. on that evening, sir? 13 A: No. 14 Q: I'm sorry -- 15 A: That would have been after I arrived 16 at the TOC site. 17 Q: Yes, at about what time then, just 18 approximately, sir? 19 A: I believe I indicated I arrived there 20 at 21:45. 21 Q: I see. 22 A: I'm not sure what time I got into the 23 truck itself, but it was some time after 9:45. 24 Q: I see. So some time after 9:45 you 25 entered the truck, the truck stalled, thereby stopping
1161 the recording, and when it was started again, 2 subsequently, it wasn't on record? 3 A: Right. 4 Q: Is that correct? 5 A: Correct. 6 Q: Thank you. Now, then the information 7 that your Counsel provided just before the break is a 8 document entitled Log Notes of Provincial Constable R. 9 Zupancic, and I understand that you've had the 10 opportunity to review this over the break. 11 Is that correct, sir? 12 A: Yes, sir. 13 Q: And is it correct that these notes 14 were taken by Constable Zupancic while he was listening 15 to the network, the TRU network, that we don't have a 16 recording of? 17 A: Correct. 18 Q: May I suggest, Mr. Commissioner, that 19 this be made an exhibit to these proceedings? I believe 20 that everyone has been given a copy by My Friend. 21 THE REGISTRAR: Exhibit P-476, Your 22 Honour. 23 COMMISSIONER SIDNEY LINDEN: P-476. 24 25 --- EXHIBIT NO. P-476: Document number 1005653,
1171 Handwritten notes of Prov. 2 Const. R. Zupancic Sept 06/95 3 22:19 to 23:01. 4 5 MR. PETER ROSENTHAL: Thank you. 6 COMMISSIONER SIDNEY LINDEN: Would you 7 like to come up? We've been doing this, Ms. Jones. I 8 think I can anticipate what you're going to say, but... 9 MR. PETER ROSENTHAL: Oh, sorry. 10 MS. KAREN JONES: Mr. Commissioner, I 11 apologize for interrupting, I thought I heard that 12 everyone has been given a copy? 13 COMMISSIONER SIDNEY LINDEN: Oh. 14 MS. KAREN JONES: I'm not sure anyone 15 else has been given a copy, I could be in error. 16 MR. PETER ROSENTHAL: I -- I was 17 mistaken. I -- I had thought that that was the case and 18 that is what I said. 19 COMMISSIONER SIDNEY LINDEN: All right, 20 then. I suppose we could put it up on the screen. 21 MR. DERRY MILLAR: We're going to put it 22 -- we can put it up on the screen if My Friend -- it's 23 Inquiry Document 1005653. 24 MR. PETER ROSENTHAL: Thank you. And I 25 believe My Friend could put it up on the screen, is that
1181 correct, sir? 2 COMMISSIONER SIDNEY LINDEN: 1005653. 3 MR. PETER ROSENTHAL: Oh, there it is. 4 COMMISSIONER SIDNEY LINDEN: There it is 5 on the screen now. 6 7 CONTINUED BY MR. PETER ROSENTHAL: 8 Q: Thank you. Now, sir, because this is 9 handwritten, I'll ask for a little more assistance from 10 you than I might otherwise. 11 It appears to begin at 22:19, is that 12 correct? 13 A: Yes. 14 Q: And that would mean at 10:19 in the 15 evening? 16 A: Correct. 17 Q: And this is the evening of September 18 6th, 1995? 19 A: I -- I'm assuming that's -- yes. 20 Q: That's your understanding -- 21 A: Yes. 22 Q: -- from reading this over? 23 A: Right. Yes. These -- these aren't 24 my notes. I just want you to be clear -- 25 Q: Yes. I appreciate that.
1191 A: -- that this is somebody else's 2 document, not mine. 3 Q: Now, you're -- at the time these -- 4 these networks were in operation, you were sitting in the 5 trailer; you were able to hear both networks, is that 6 correct? 7 A: Right. 8 Q: Were you more listening to one (1) or 9 the other or you were trying to listen to both? 10 A: I can't really say I was listening to 11 one more than the other. If -- whichever one was 12 transmitting, I was certainly trying to pay attention to 13 whatever was coming in. 14 Q: Yeah. Occasionally there might be 15 simultaneous transmissions, is that correct? 16 A: I'm sorry? 17 Q: Occasionally there might be 18 simultaneous transmissions from -- 19 A: Sure. 20 Q: -- both networks. 21 A: Oh, for sure. 22 Q: Which would create a difficulty in 23 trying to monitor both? 24 A: Correct. 25 Q: But often there'd be just one (1) or
1201 the other coming in and in that case you would 2 concentrate on what was coming in, is that fair? 3 A: Correct. 4 Q: Now, it begins -- doesn't it say, 5 "farmer?" What's the first word? 6 A: Yes. Yes, it does. 7 Q: And farmer for... 8 A: Spud. 9 Q: What is meant by that, sir? 10 A: It's nicknames of the officers. 11 Q: I see. "Farmer" is one (1) officer 12 and "Spud" another one? 13 A: Right. 14 Q: And so, that means that Farmer is 15 calling Spud and saying that -- 16 A: Yeah. 17 Q: -- he was separated for some -- for 18 minutes? Is that it? 19 A: That's what it appears, yes. 20 Q: And then, Skinner instructs them to 21 link up? 22 A: Correct. 23 Q: And then, according to my review of 24 this -- this -- these notes, these two (2) officers, Spud 25 and Farmer, were concerned about two (2) people walking
1211 on the roadway, is that correct? 2 A: Yes. 3 Q: And these were First Nations people, 4 I gather? 5 A: I presume, yes. 6 Q: And it turned out that there was 7 nothing untoward that happened with either of those 8 people even though the officers were concerned that 9 something might happen, is that a fair summary? 10 A: Yeah. There was concern that the -- 11 the people were trying to search them out in the bush, 12 and then there was also some indication that they were 13 watching up the road as the Crowd Management Team 14 approached. 15 Q: I see. So did you conclude, at the 16 time, that these were people who were trying to figure 17 out what the police were doing? 18 A: That's fair. 19 Q: Is that what you concluded at the 20 time, sir? 21 A: Well, I can't -- I can't tell you 22 what my conclusion was at the time, I mean they -- they 23 were there, they were watching, and then when the Crowd 24 Management Team approached, they -- they ran back towards 25 the Park, I think --
1221 Q: Yes. 2 A: -- as the notes indicate. 3 Q: Yes. 4 A: Right. 5 Q: And is that consistent with your 6 memory, sir? 7 A: Yes, that's fair. 8 Q: Now, at 22:24, on the first page of 9 this document, it reads: 10 "Carson advises CMU to move up the road 11 toward Ipperwash." 12 Is that correct, sir? 13 A: Right. 14 Q: And -- and that is a correct that's - 15 - and approximate time is correct when you advised the 16 CMU to move up the road towards Ipperwash, is that 17 correct? 18 A: Sure. 19 Q: Now a little bit after that, it 20 reads: 21 "Spud tells Farm to freeze." 22 That's presumably farmer? 23 A: Correct. 24 Q: Do you know what was going on there? 25 A: I suspect somebody was right on top
1231 of his site. 2 Q: I see. And then there's some 3 discussion, I don't know that we necessarily have to go 4 through all of it, about Spud watching those two (2) 5 people that we talked about, right? 6 A: Well and there's other ones here, it 7 talks about two (2) people being up near a house. 8 Q: Yes. Well -- yeah and now if we turn 9 to the second page -- 10 A: Right. 11 Q: At that top of that it says, "Tex to 12 TAC 2, right? 13 A: Correct. 14 Q: And Tex is Acting Sergeant was he? 15 A: Right. 16 Q: And then under that it says 17 something, kilometre, can you recall or? 18 A: It looks like it's -- well it reads 19 to me as: 20 ".5 kilometre up TAC 2." 21 Q: I see. 22 A: "Two (2) males walking towards the 23 CMU." 24 Q: I see, yes. And then Alpha -- Alpha 25 refers to the team that included Sergeant Deane, is that
1241 fair? 2 A: I'm not sure who the two (2) officers 3 were that were the Alpha team. 4 Q: Well, sir, I'm not sure, and if you 5 can't assist us with this, then we'll ask Detective 6 Sergeant Skinner who would undoubtedly know. 7 But was it not the case that there were 8 three (3) different teams, a Sierra 1, a Sierra 2, and an 9 Alpha team, is that fair? 10 A: Right, right. 11 Q: And the Sierra 1 team had two (2) 12 officers in it, and Sierra 2 team, two (2) officers in 13 it. 14 A: Right. 15 Q: I -- I believe that the officers in 16 Sierra 1 were Officer Irvine and Officer Strickler, is 17 that correct, sir; do you know that? 18 A: I -- I couldn't -- like which team 19 was using what call sign, I -- I really can't verify, 20 sir. 21 Q: Okay. So you don't recall which 22 officers, and I won't pursue that with you, sir. 23 A: Well -- yeah, that's something that 24 Skinner would be intimately aware of, and not something 25 that I would turn my mind to, who has what call sign.
1251 Q: That's fine. And -- and then there 2 was the Alpha team and you don't recall whether or not 3 Sergeant Deane was part of the Alpha team, sir? 4 A: I don't know. 5 Q: Okay. In any event when it says Tex, 6 that's Sergeant Deane, right? 7 A: Correct. 8 9 (BRIEF PAUSE) 10 11 Q: My Friend, Mr. Millar, reminds me, 12 and this is one thing I was sort of vaguely aware of, I 13 don't know what you do, but I know something. But -- and 14 he suggested I maybe put it to the witness that, in fact, 15 sir, we know there was a Sierra 1 and Sierra 2 as you 16 recollect? A: Right. 17 Q: And it's our understanding from the 18 evidence that -- that will come, some of it, that there 19 were two (2) Alpha teams as well, each consisting of two 20 (2) officers. Is that consistent with -- 21 A: I can't be 100 percent sure. I -- I 22 know there was at least three (3) but there may have been 23 a 4th one there. 24 Q: I see. In any event we'll clarify 25 that with subsequent witnesses I presume. Now at 22:35,
1261 towards the end of the entry for that time, it reads: 2 "2 forward observers have spotted CMU, 3 and are running back to Park. Carson 4 and CMU advised." 5 Is that correct, sir? 6 A: Yes. 7 Q: And these were those -- those two (2) 8 First Nations people apparently who had been looking 9 around. They apparently, according to this, upon seeing 10 the CMU ran back to the Park, right? 11 A: Right. 12 Q: That's what you understood at the 13 time? 14 A: Sure. 15 Q: Now going to the next page then, on 16 the top thereof, at time 22:44 it -- it reads, "CMU 17 advancing from Tex"; is that correct, sir? 18 A: Yes. 19 Q: And what that meant, and what you 20 understood at the time it meant was that Tex, in other 21 words Officer Deane had informed -- was -- was saying on 22 the -- on this channel, that the CMU was -- is advancing. 23 Is that correct? 24 A: Correct. 25 Q: And then it continues:
1271 "Subject has a weapon or a weapon 2 appears -- appeared to be a rifle or 3 bow." 4 Is that correct, sir? 5 A: Right. 6 Q: So does that help to refresh your 7 memory, sir, as to who was the source of the information 8 that a subject had a weapon appearing to be a rifle or 9 bow, and I would suggest to you it suggests that it was 10 probably Tex or Officer Deane? 11 A: It appears he reported it. Whether I 12 would have recognized his voice at that time, or somebody 13 passed it over to me just -- 14 Q: Right. 15 A: I'm not sure which, but -- but 16 obviously from here, that's where it comes from. 17 Q: That's where it appears to come from 18 as far as we can tell -- 19 A: Correct. 20 Q: -- and you don't, ten (10) years 21 later, remember for sure? 22 A: I can't -- 23 Q: Is that fair? 24 A: I can't be sure. 25 Q: Yes. But that is also consistent
1281 with what you heard afterward, isn't that fair? 2 A: Quite frankly, I haven't had these 3 discussions with those officers, sir. 4 Q: I see. 5 A: To this day. 6 Q: Okay, thank you. And then at 22:47 7 it says: 8 "Five (5) persons gather in gate site." 9 Now, did you take it at the time, sir, and 10 do you take it now, in fact, to have meant that -- that 11 meant that there were five (5) First Nations persons who 12 were inside the Park, but the near the gate of the Park? 13 A: I'm not sure what -- exactly where 14 this refers to. 15 Q: You're not sure whether it would 16 refer to in or outside of the Park? 17 A: I -- I'm not sure. 18 Q: But presumably it means near the gate 19 of the Park, is that what you understood at the time, 20 sir? 21 A: That's fair. 22 23 (BRIEF PAUSE) 24 25 Q: And then the next entry, at 22:48 is
1291 from Farmer and Spud; do you recall who those officers 2 were, by the way, sir? 3 A: Spud would be Constable Jim Irvine -- 4 Q: I see. 5 A: And the other officer would be, I 6 believe, Constable Bill Klim. 7 Q: I see, thank you. And they were 8 members of the TRU team, is that correct? 9 A: Correct. 10 Q: And the sniper part of the TRU team? 11 A: I'm not sure what their call sign 12 was, which one is and isn't qualified for that duty. 13 Q: I see. So am I correct in 14 understanding this is indicating that those two (2) 15 officers reported that the subject was close, and we -- 16 OPP officers, therefore, should stay quiet, and the 17 subject is carrying a stick and a radio. 18 Is that what you understood at the time, 19 sir? 20 21 (BRIEF PAUSE) 22 23 A: Well, the stay quiet refers to, I 24 suspect, a TRU team member who is concealed close to 25 where these First Nations people are at that point.
1301 Q: I see. Not -- not necessarily all 2 the OPP officers, but all the -- 3 A: No, no, this -- this is communication 4 within the TRU team, not -- not to the -- 5 Q: Not to the CMU certainly. 6 A: Right. 7 Q: And so, one (1) or two (2) of the TRU 8 team officers were communicating with each other that 9 because the subject is close, they should be quiet, is 10 that correct? 11 A: Correct. 12 Q: To avoid detection, presumably, by 13 that subject? 14 A: Right. 15 Q: And then "stick and radio is 16 carried", they were indicating that this subject person 17 was carrying a stick and a radio, right? 18 A: Correct. 19 Q: And then on to the time 10:52, what 20 is that first entry, SC, I believe it is. 21 A: It looks like Sierra 2. 22 Q: Sierra. 23 A: S -- 24 Q: I see. 25 A: They would call it in as Sierra 2.
1311 Q: So it would be Sierra and Alpha? 2 Sierra 2 and Alpha, meaning those two (2) different -- 3 A: Two (2) different elements. 4 Q: Right. "-- can cover"? 5 A: Correct. 6 Q: And it says, "can cover CMU". 7 A: Yes. 8 Q: And you would have, at the time, 9 understood that someone was communicating; that those two 10 (2) units can perform the function of covering the CMU as 11 it went down the roadway. 12 Is that correct? 13 A: Yes. 14 Q: And you didn't -- apparently, at that 15 time, discuss with anyone, any possible difference 16 between covering and observing; is that correct? 17 A: No. 18 Q: And then, "CMU advised by Skinner", 19 does that mean that they -- they were advised of that 20 fact that those two (2) units could cover the CMU? 21 22 (BRIEF PAUSE) 23 24 A: I don't believe any communication 25 would have gone to the crowd management team about the
1321 cover issue. 2 Q: I -- I -- well I -- I was asking if 3 you could help us, and you may not be able to, but 4 understand what's meant by CMU advised by Skinner. 5 A: Oh, I think what you're talking about 6 there is, it says a stick and radio was carried, and that 7 Skinner is advised. And I think you'll see that Skinner 8 advises that it's a stick. 9 Q: Yes. And several of My Friends point 10 out that in fact we don't necessarily have to turn to it 11 in the Chatham logger tape, Skinner says, Alpha and 12 Sierra 2 can cover your position. 13 Do you wish to look at that, sir; that's 14 on page 6 of the Chatham logger tape at the very first 15 entry. 16 A: Correct. 17 Q: So -- so that's a reflection of the 18 same piece of information that Officer Skinner advised 19 the CMU that he would be covered by -- they would be 20 covered by these two (2) units? 21 A: Right. 22 Q: And then it says that: 23 "The CMU at the gate pushed the parties 24 back to Park, minor skirmish pushed 25 Natives back."
1331 Is that correct, sir? 2 A: That's what it says, yes. 3 Q: And so -- now these are the notes 4 that Constable Zupancic was taking as he was listening to 5 the TRU network, right? 6 A: Right. 7 Q: And was he specifically assigned to 8 take notes of that network? 9 A: Well, he was the Communication 10 Officer for the -- for the TRU team. He would not be 11 required to take notes because he would have been, like 12 the rest of us, of the view that the tape was rolling, 13 and would have captured it in real time. 14 Q: Right. 15 A: But these are notes that he made for 16 himself relative to that. 17 Q: Yes. And we'll have to ask Constable 18 Zupancic how much he feels he captured of the 19 communications and so on. You -- you can't assist us on 20 that can you, sir? 21 A: I'm sorry. 22 Q: Ten (10) years later? 23 A: I have no idea. 24 Q: Now and then it says, "Twenty (20) 25 yards from gate CMU." Right?
1341 A: Correct. 2 Q: So you understood at some time 3 shortly after 10:52, that the CMU unit was twenty (20) 4 yards from the gate; is that correct? 5 A: Yeah. It appears that the CMU -- it 6 says here: 7 "CMU at the gate. Pushed parties back 8 to Park. Minor skirmish. Pushed 9 Natives back." 10 Then it says: 11 "Twenty (20) yards from the gate CMU." 12 Q: Right. 13 A: "And command advised to take 14 defensive position." 15 Q: Yes. 16 A: So -- so it appears that they're 17 twenty (20) yards back from the fence. 18 Q: And the gate would have been the gate 19 to Ipperwash Provincial Park? 20 A: Well I'm not sure which gate they're 21 talking about. If it's the -- like the actual -- because 22 the -- the gate, like the -- the actual vehicular 23 entrance that you go into the Park, is actually off of 24 Army Camp Road; it's not in that parking lot. So there's 25 another page wire gate in that area, or there was.
1351 Q: So you at the time didn't know which 2 gate they were talking about either? 3 A: I can only assume that he's talking 4 about the -- the fenced area, that's the boundary of the 5 Park in that parking lot; that's my best guess. 6 Q: And that would have been your guess 7 at the time? 8 A: I would think so. 9 Q: So at the time you would have been 10 taking from what you heard on this network, that at this 11 time, after they pushed the Natives back into the Park, 12 and when they were advised to take a defensive position, 13 they were twenty (20) yards, approximately, from the gate 14 that was in the Sandy Park -- separating the Sandy 15 Parking Lot from Ipperwash Provincial Park? 16 Q: Right. And you did not do that 17 advising did you, of the CMU to take a defensive 18 position? 19 A: I'm sorry? 20 Q: You -- you did not give any, I 21 gather, you did not, yourself, give any direct commands 22 to any of the officers who were near the Sandy Parking 23 Lot, or the Park during this time period, is that fair? 24 A: When Skinner transmitted to the team 25 to take up a defensive position, that would have been
1361 under my direction. 2 Q: You would have told Skinner to do 3 that? 4 A: Yeah. Tell him to take a -- take a 5 defensive position. 6 Q: I see. But you -- you wouldn't have 7 got on the radio yourself? 8 A: No. I didn't. He was handling that 9 piece. 10 Q: Okay. And then under that it says: 11 "Tex TOC original barricaded gate has 12 been removed." 13 First off Tex again refers to Acting 14 Sergeant Deane? 15 A: Right. 16 Q: And TOC is the tactical operations 17 centre? Does that mean that -- 18 A: I -- it's the -- 19 Q: Sorry? 20 A: It's the -- it's the TRU team van 21 he's talking to. 22 Q: The TRU team and -- so -- and that 23 means that he was certainly giving this information to -- 24 A: To Zupancic. 25 Q: -- TOC. Yeah. And do you know what
1371 barricade he's talking about, do you know what that was? 2 A: I'm not sure. 3 Q: Okay, and then the next page, it says 4 at 22:59, "the CMU has moved back to the pavement". 5 A: Correct. 6 Q: And then at 23:01, "CMU overheard 7 starting a charge, get back, go, go"; right? 8 A: Correct. 9 Q: So we can try to mesh this 10 information with the Chatham logger tape that we were 11 looking at earlier, and we see a number of points of 12 contact as this event was unfurling that evening, right? 13 A: Right, right. 14 Q: Now, I -- I should like to, then, if 15 I could, turn back to that logger tape, the transcript 16 thereof, which is Exhibit P-438. 17 Do you still have a copy of that in front 18 of you, sir? 19 A: I'm sorry? 20 Q: Do you have a -- a copy of the 21 Chatham logger tape in front of you? 22 A: Oh, yes, yes. 23 Q: Yes. 24 A: I got it here. 25 Q: If we look please at the top of page
1381 7, it says: "Current time, 10:55", so I'm not sure how 2 accurate these times are, but we're close in time to the 3 entries on the other network that we were discussing. 4 And I believe that you testified that the 5 -- the first entry there is incorrectly ascribed to 6 Hebblethwaite, it really was Officer Lacroix, is that 7 correct, sir? 8 A: I believe so, yes. 9 Q: That's what you believe from 10 listening to the tape? 11 A: That -- that's what it sounds like to 12 me. 13 Q: Yeah. And that information, from 14 whichever officer it came from, is that the badgers are 15 within the bounds of the Park, and you understood that to 16 mean that the people who had been in the parking lot were 17 now within the Park, is that correct? 18 A: Right. 19 20 (BRIEF PAUSE) 21 22 Q: And then if we turn the page, to page 23 8, the second entry attributed to Lacroix is "ready, 24 ready, go, go." 25 And that according to this -- the time
1391 from this, I understand, is approximately 22:58 or :59. 2 Is that and according to the other note by Constable 3 Zupancic -- 4 A: Yes. 5 Q: -- it was 23:01. There might be a 6 minute or two (2) difference, but it's around that time? 7 A: Correct, that's fair. 8 Q: Now, the "go, go", you understood 9 that as meaning that there was going to be a punch out, 10 right? 11 A: Right. 12 Q: And as I understand it, sir, a punch 13 out is a -- that's a term that's used by Crowd Management 14 Units in Ontario at least, is that -- 15 A: Yes. 16 Q: -- correct? 17 A: Yes. 18 Q: By municipal and provincial police 19 forces? 20 A: Right. 21 Q: Is that correct? 22 A: Yes. 23 Q: And it means that a number of 24 officers in a group quickly go towards a portion or all 25 of the crowd; is that a fair description?
1401 A: Yes, that's -- that's fair. 2 Q: And as they do so, they generally 3 have batons out, is that correct? 4 A: Yes, of course. 5 Q: And -- and they're going -- sometimes 6 they are going to try to arrest someone, and sometimes 7 they are going to just try to scare someone off or beat 8 someone off with batons, is that fair? 9 A: Any of the above. 10 Q: Any of the above would be possible -- 11 A: Well, the -- 12 Q: -- uses? 13 A: -- the -- the idea is, is that 14 they'll retreat in the opposite direction. 15 Q: The idea is to have the people 16 retreat or to arrest them? 17 A: Sure, sure. 18 Q: A punch out is often called when the 19 main intention is, if possible, to arrest people, is that 20 correct? 21 A: That too, yes. 22 Q: Now, do you know -- did you know at 23 the time how many different punch outs took place in the 24 course of this evening? 25 A: I only heard the one called.
1411 Q: You just heard the -- and that's the 2 call that we just referred to? 3 A: Right. 4 Q: And you understood at the time that 5 that was a call for a punch out? 6 A: Right, I heard Lacroix give that, 7 yes. 8 Q: Yeah, he didn't use the word "punch 9 out", but he said "go, go" -- 10 A: Right, right. I heard -- yes, I 11 heard that command, yes. 12 Q: And you -- and you knew that that 13 meant a punch out? 14 A: Well, that's what it sounded like. 15 Q: Yes. And as far as you were aware on 16 that evening, then, as far as you were aware, that was 17 the only punch out? 18 A: Correct. 19 Q: And what did you understand at the 20 time was the purpose of that particular punch out? 21 A: Well I -- I couldn't tell you what -- 22 what the -- what the intention was because I couldn't -- 23 I -- I couldn't see the other side of that. That was 24 something that had, you know, if you weren't there, you 25 weren't privileged to the -- what was happening.
1421 Q: So you would have understood it was 2 punch out and it could have been then for any of these 3 several purposes that you indicated punch outs are called 4 for? 5 A: Well if -- if -- if he's calling a 6 punch out, in all likelihood the occupiers have advanced 7 some for some reason. 8 Q: Well but a punch out is an advance on 9 the other people, really -- right? 10 A: Not necessarily. I mean, if -- if 11 the occupiers are in the Park there was no reason for a 12 punch out, because there's no one in the parking lot. 13 Q: Yes. But a punch out means a number 14 of officers advancing quickly towards other people, isn't 15 that fair? 16 A: Right. 17 Q: Yes. And it's possible in some 18 situations, officers might be attacked by other people 19 and might be fighting back in some way, right; but that's 20 not a punch out? 21 A: I -- I lost you there. 22 Q: I'm just trying to clarify because I 23 thought your -- one of your earlier answers might have 24 been confusing on this point. But that a punch out -- a 25 punch out means officers advancing, right?
1431 A: Correct, correct. 2 Q: Okay. Now -- so there was this punch 3 out that you were aware of at around 11:00 p.m. on that 4 evening, and then -- trying to see how much information 5 we can get from the two (2) documents as to what happened 6 after that. 7 It's towards the end of the Exhibit P-476, 8 Constable Zupancic's notes that the similar wording is 9 used, and that would have meant that punch out, right; at 10 23:01? 11 A: Yes. 12 Q: And then the only -- there are only 13 two (2) other lines in those notes -- sorry, three (3) 14 other lines after the punch out, is that correct? 15 A: Right. 16 Q: And it reads after that: 17 "Alpha advises CMU advance has--" 18 Can you understand that, sir? 19 A: Yes. It says: 20 "Alpha advises CMU advance has one 10- 21 92." 22 Q: Has one 10-92? 23 A: Correct. 24 Q: What does that mean then, sir? 25 A: It means they have one person in
1441 custody. 2 Q: I see. So would this mean then that 3 -- first off, this information was being transmitted by 4 the officers assigned to the unit Alpha, is that correct? 5 A: Yes. Yes, it would appear as -- yes. 6 Q: And what they were informing those on 7 the TRU network was that the CMU punch out in effect, led 8 to an arrest of one (1) person; is that correct? 9 A: Right. 10 Q: And at the time you didn't know 11 anymore than that, is -- is that correct? 12 A: Correct. 13 Q: And given everything that we now 14 know, that you now know, undoubtedly that refers to the 15 arrest of Cecil Bernard George, is that correct? 16 A: Correct. 17 Q: And then it says, "Alpha repeat a 10- 18 92 with CMU." Is that -- I gather that's just a 19 confirmation of the fact that there was an arrest made, 20 is that correct? 21 A: Correct. 22 Q: Now on the Chatham logger tape, 23 Exhibit P-438, there is more information after the punch 24 out time, is that correct, sir? 25 A: Yes.
1451 Q: And that includes shortly after 11:00 2 p.m., at 11:02 p.m., a suggestion of an ambulance, is 3 that correct? 4 A: Correct. 5 Q: And then at the very bottom of page 6 8, Lacroix is said to have said, "Shots fired, shots 7 fired"; is that correct? 8 A: Yes. 9 Q: So within several minutes at least of 10 the punch out, there had been shots fired and a call for 11 an ambulance, is that correct? 12 A: Right. 13 Q: Now sir, you told us that one of the 14 concerns that led you to having the officers march down 15 the road that night was the cottagers, right; the nearby 16 cottagers, right? 17 A: Correct. 18 Q: And in particular, there was, and I 19 believe still is, a cottage relatively near to the Sandy 20 Parking Lot, right? 21 A: Yes, there is. 22 Q: But I would put it to you that, in 23 fact, the evidence shows and we'll turn to it, that you 24 learned, at about 22:34, that there was no one home in 25 that cottage; isn't that correct, sir?
1461 A: Well, that's very possible. 2 Q: So I -- I'd like to look at that. 3 That's in the logger tapes, 444(b) -- sorry, it's Exhibit 4 P-444(b). 5 6 (BRIEF PAUSE) 7 8 A: Which -- which tab are we at? 9 Q: I'm sorry, sir, it's Tab 55. 10 11 (BRIEF PAUSE) 12 13 Q: Now this is reported to be a 14 telephone call between you and Mark Wright, is that 15 correct? 16 A: yes, it is. 17 Q: And this is at 22:34 on the evening 18 of September 6th, is that correct? 19 A: Yes, it is. 20 Q: So approximately a half an hour, or a 21 little bit less than a half an hour before the 22 confrontation that resulted in the death of Dudley 23 George, is that correct? 24 A: Right. 25 Q: And if you look in the middle of the
1471 page, or slightly below the middle, attributed to you: 2 "Yeah, is -- did we hear back on who 3 lives in that house on the corner, or 4 if they've had a phone number in 5 there?" 6 You recall your saying that, sir, or 7 that's roughly accurate? 8 A: Sure, that's what it says, yes. 9 Q: And the house on the corner meant the 10 house we were discussing, is that correct, sir? The -- 11 A: Sure. 12 Q: -- nearest one to the Sandy Parking 13 Lot? 14 A: Yes, it is. 15 Q: And then Officer Wright responds: 16 "Yeah, I think Inspector Linton was 17 talking to the guy in the house." 18 You say, "yeah". Background talking, and 19 then Wright: 20 "No, we found out who he is, but we 21 have... Wright [turn to the next page] 22 We found out who he is, but he's not 23 home." 24 And you say, 25 "Okay, so there's nobody home; are you
1481 sure of that?" 2 And Wright says: 3 "Yeah." 4 And -- and then Wright: 5 "Are you still there, John? 6 Carson: Yeah, yeah. 7 Wright: We got his name, his number, 8 he's not there. 9 Carson: Okay, okay, okay. 10 Wright: Okay. 11 Carson: Okay, so okay. That's good. 12 Thanks." 13 So I would put it to you that you were 14 being informed by Officer Wright that nobody was home in 15 that cottage, right? 16 A: Right. 17 Q: And you were glad about that, because 18 that removed any possible danger to someone who might 19 have been home, isn't that fair? 20 A: Correct. 21 Q: That's why you said "good". 22 A: Correct. 23 Q: But I would suggest to you it also 24 lessened any conceivable need to march on the Sandy 25 Parking Lot, wouldn't you agree, sir?
1491 A: No, not at all. 2 Q: Well, sir, that's the only cottage 3 that's right near the Sandy Parking Lot, isn't that so, 4 sir? 5 A: Yeah, it's the first one, yes. 6 Q: Yes. And so, sir, if there was 7 nobody at that cottage, wouldn't some simple observation 8 of the people have been enough to protect anyone who 9 conceivably could have been in danger at further away 10 cottages? 11 A: Correct, but we didn't want damage to 12 those cottages, either. 13 Q: I see. So you marched down the road 14 to prevent damage to that cottage? 15 A: Well, I'm just telling you that is 16 one of the issues, as well. 17 Q: But the -- human beings are more 18 important than cottages, aren't they, sir? 19 A: Absolutely. 20 Q: And the main concern was human life 21 and human safety in this situation, isn't that right? 22 A: Of course. 23 Q: Yes. And that's why you were glad 24 there was nobody in the cottage, right? 25 A: Absolutely.
1501 Q: But also that should have made you 2 more reluctant to use force against the First Nations 3 people who were there. 4 A: No, the -- the issue wasn't -- the 5 issue was that we want to make sure that no one was in 6 the cottage that was going to come stumbling out into the 7 situation that the police were involved in right outside 8 their door. 9 We wanted to make sure they were aware of 10 what was going on so that they could either stay inside 11 the house, or we could have somebody evacuate them. 12 Q: Now, sir, your instructions on that 13 evening to the Crowd Management Unit going down that 14 roadway, were to either force people back into the Park, 15 or arrest them if they were in the Sandy Parking Lot; is 16 that correct? 17 A: Right. 18 Q: And that's what you communicated to 19 Officer Lacroix and he -- if he followed your 20 instructions, would have communicated that to his 21 officers? 22 A: Correct. 23 Q: And they were to march down there at 24 about eleven o'clock at night; it was dark, right? 25 A: Correct.
1511 Q: Very dark. Very dark, right? 2 A: It was dark. 3 Q: And they were to march down there and 4 either force the people -- any people who might be in the 5 Sandy Parking Lot back into the Park, or arrest any such 6 people, is that correct? 7 A: Correct. 8 Q: And if they were to arrest him -- 9 arrest them, what charge would they arrest them under, 10 sir? 11 A: Well, it's like we were talking about 12 earlier about the -- them being out in the street with 13 the -- the bats and the damage to the car. It would have 14 been for possession of weapons dangerous. 15 Q: Sir, that damage to the car, however 16 caused, had happened several hours earlier, is that not 17 correct? 18 A: Yes. 19 Q: Are you suggesting that the officers 20 would have had reasonable and probable grounds to arrest 21 anyone they found in the parking lot for damage to that 22 car several hours earlier? 23 A: No. 24 Q: No. Of course not, right? So, they 25 couldn't arrest them for that, could they?
1521 A: If they were out in the parking lot 2 with bats, and they had a confrontation with the 3 officers, they would be arrested for weapons dangerous, 4 sir. 5 Q: I see. So, you answered a few 6 minutes ago, mischief, but that was not appropriate, 7 right? 8 COMMISSIONER SIDNEY LINDEN: Yes? 9 MR. MARK SANDLER: I think he's mixing 10 the questions. He said, would it be appropriate to 11 arrest all of them in the parking lot regardless of and - 12 - and that's what Deputy Commissioner Carson responded 13 to. 14 15 CONTINUED BY MR. PETER ROSENTHAL: 16 Q: Well, we'll see the transcript then, 17 Mr. Commissioner and we'll see, but perhaps I'll clarify 18 that, sir. 19 Did you indicate that marching down the 20 road, if they got to the Sandy Parking Lot, they could 21 arrest people for mischief to the car; did you tell me 22 that a few minutes ago, sir? 23 A: No, I don't think that -- I said that 24 was one (1) of the issues of them being there in the 25 parking lot with sticks like they were when the car was
1531 damaged -- 2 Q: I see. 3 A: -- when Mark Wright came along and 4 observed them in the parking lot with sticks. 5 Q: So, you didn't say that they could be 6 arrested for mischief? 7 A: Not in relation to the car, specific, 8 no. 9 Q: I see. Okay. Well, we'll look at 10 the transcripts, perhaps I mis-remembered, sir. 11 But in any event, you -- you agree that it 12 would not have been proper to arrest anyone for mischief 13 to the car based on their being in the Sandy Parking Lot 14 several hours later, isn't that fair? 15 A: That's fair. 16 Q: And in fact, to arrest anyone for 17 mischief to the car, you would have had to have examined 18 the detailed statement of the victim of any mischief, and 19 tried to determine who may or may not have participated 20 in that mischief before you'd have reasonable ground to 21 arrest them, right? 22 A: That's fair. 23 Q: And you had not done that examination 24 at this time, so you certainly would not suggest to an 25 officer that you had reasonable and probable grounds to
1541 arrest anyone for that mischief, right? 2 A: Fair enough. 3 Q: Fair enough. Now, and what -- what 4 was the other -- what -- what -- what was your 5 instruction, sir, to Officer Lacroix as to what he should 6 arrest them for? 7 A: Well, I -- I don't -- I don't have 8 any notes relative to what I briefed him on. I explained 9 to him about the damage to the car, the experience that 10 Mark Wright had down there, and that he was to go down 11 there with a Crowd Management Unit and preferably clear 12 them back into the Park. 13 Q: But you also instructed him to make 14 arrests, is that not correct, sir? 15 A: If -- if that -- if that was 16 necessary, yes. If he -- if he found people there with - 17 - with -- with weapons, and they had to arrest them, then 18 yes, they would have to be arrested. 19 Q: Well, what were your instructions, 20 sir, as to what he should arrest them for, for weapons 21 dangerous; is that all? 22 A: To tell you the truth, my -- by 23 memory I cannot tell you with any certainty exactly what 24 I said to Staff Sergeant Lacroix. 25 Q: Well, sir, what possible charges
1551 could you have possibly suggested he arrest them for? 2 3 (BRIEF PAUSE) 4 5 Q: Sir, you know the whole situation 6 now, you're a senior officer in the OPP. You were 7 concerned about legality you told us. You didn't want to 8 go in there without an injunction. 9 A: Right. 10 Q: You sent these officers down the road 11 and told them to arrest people, on what charges sir? 12 A: Well, off the top of my head, weapons 13 dangerous comes to mind, but I can't tell you exactly 14 what our conversation was that evening, I tried to 15 explain that to you. 16 Q: Well, would you agree, sir, that for 17 weapons dangerous, a person would have to have something 18 that looked like a weapon -- 19 COMMISSIONER SIDNEY LINDEN: Well -- 20 MR. PETER ROSENTHAL: -- in their 21 possession to be arrested. 22 THE WITNESS: Well, and we have the 23 transcripts -- 24 COMMISSIONER SIDNEY LINDEN: You've 25 already gone over that. You've already gone over that.
1561 You've already established that he would have had to have 2 the statement seen, determine who did it; you've already 3 asked those questions. 4 MR. PETER ROSENTHAL: Mr. Commissioner, 5 with great respect, he has given several different 6 answers as the record will show, and I'll point to a 7 transcript where he gave an entirely different answer in 8 a few minutes. 9 COMMISSIONER SIDNEY LINDEN: Will you? 10 MR. PETER ROSENTHAL: And this witness 11 must have this credibility examined, sir, and I -- if 12 it's necessary, I'll point to a bunch of transcripts. 13 May I please continue, sir? 14 COMMISSIONER SIDNEY LINDEN: Well -- 15 MR. PETER ROSENTHAL: This is appropriate 16 cross-examination in my respectful submission. 17 COMMISSIONER SIDNEY LINDEN: Well what 18 are you going to ask him about now? 19 20 CONTINUED BY MR. PETER ROSENTHAL: 21 Q: I was going to ask, sir, is it not 22 the case that if you were to instruct people in these 23 circumstances to arrest for weapons dangerous, you would 24 have had to instruct the officers only if someone had a 25 baseball bat, or a stick, or some sort of weapon, or
1571 something similar in his or her hands; is that not 2 correct? 3 A: And that's exactly what had been seen 4 by Staff Sergeant Wright. 5 Q: Well, sir, was it your understanding 6 that every person standing in the parking lot had a bat 7 in his or her hand? 8 A: Not necessarily. 9 Q: No. And did you instruct Officer 10 Lacroix that he could not arrest someone who was just 11 standing in the parking lot unless they had something 12 that might be considered a weapon dangerous before they 13 make such an arrest? 14 A: No, we didn't have that kind of a 15 specific discussion I'm sure. 16 Q: No. In fact you told him to arrest 17 everyone in the parking lot unless they run back into 18 Park, didn't you? 19 A: I can't tell you for sure if I said 20 that or not. 21 Q: And I'm suggesting you told them to 22 arrest them without any possible grounds whatsoever, sir; 23 isn't that fair? 24 A: I don't believe so. 25 Q: I see. Well let's look, if we may,
1581 at Tab 29, sir, of your -- your binder, which is the 2 transcript of the criminal trial and Regina and Warren 3 George, it's Inquiry Document 1004972. 4 MR. DERRY MILLAR: And it's large -- the 5 large black binders, it's binder number 2, Deputy Carson. 6 COMMISSIONER SIDNEY LINDEN: I'm sorry, 7 which binder is it? 8 MR. DERRY MILLAR: Binder number 2 of the 9 -- there's the ones with tabs on it that -- yeah, that 10 one. 11 COMMISSIONER SIDNEY LINDEN: What tab 12 number? 13 MR. DERRY MILLAR: Tab 29. 14 COMMISSIONER SIDNEY LINDEN: 29? 15 16 (BRIEF PAUSE) 17 18 CONTINUED BY MR. PETER ROSENTHAL: 19 Q: Now just to close off the weapon 20 dangerous, just to make sure we're on the same page with 21 that, sir, the charge is possession of a weapon dangerous 22 to public peace, informally known as weapons dangerous, 23 is that correct? 24 A: Correct. 25 Q: And it requires possession of a
1591 weapon dangerous to the public peace, and that's what you 2 understood at the time and you understand now, is that 3 correct? 4 A: Right. 5 Q: Now, I would suggest to you that you 6 gave quite different answers to similar questions at the 7 trial of Mr. Warren George. 8 MR. PETER ROSENTHAL; And Mr. 9 Commissioner, I referred to portions of this transcript 10 for a different purpose, different portions earlier. I 11 don't believe I made it an exhibit at the time and that 12 was an error and I would suggest that I should like to 13 make an exhibit if I may? 14 COMMISSIONER SIDNEY LINDEN: Is the part 15 that you referred to before included in this part? 16 MR. PETER ROSENTHAL: Yes, it is. 17 COMMISSIONER SIDNEY LINDEN: The -- 18 MR. PETER ROSENTHAL: It's the -- the 19 transcript at Tab 29, Mr. Registrar, I should like to 20 make an exhibit to these proceedings. 21 THE REGISTRAR: Very good, sir, P-477, 22 Your Honour. 23 COMMISSIONER SIDNEY LINDEN: P-477. 24 25 --- EXHIBIT NO. P-477: Document number 1004972
1601 Examination-in-chief of Mr. John Carson 2 pages 07 to 77 W. Warren George Trial. 3 Sept 29/97. 4 5 COMMISSIONER SIDNEY LINDEN: What page 6 are you referring to now, Mr. Rosenthal? 7 8 CONTINUED BY MR. PETER ROSENTHAL: 9 Q: Now I should like to ask you, sir, 10 for context to begin on page 54, please. And you're -- 11 this is in the course of a cross-examination by defence 12 counsel at that trial, and beginning on about line 21 of 13 page 54. Defence counsel Mr. House asked you: 14 "I see, so the actual marching through 15 the Sandy Parking Lot that was not a 16 punch out as far as you're concerned. 17 A: Not just a forward movement, no. 18 A punch out is an over aggressive move, 19 to move forward, and very quick 20 movement. Staff Sergeant Lacroix is 21 much better able to explain--" 22 and so on. 23 A: Which -- which page are you at, sir? 24 Q: I'm sorry? 25 A: Which page are you at?
1611 Q: Page 54, sir. Beginning -- I was 2 reading beginning at about line 21. That's not what I'm 3 focussing on now, I was just trying to set the context. 4 So you -- you are discussing the issue of 5 a punch out, or something that maybe is not quite a punch 6 out but occurring at about this time on September 6th, 7 1995, during the time period we were talking about; is 8 that correct, sir? 9 A: I believe so, yes. 10 Q: I just want to get us into that 11 context. And you answer, at the bottom of page 54: 12 "The punch out is called as a result of 13 behaviour that they are confronted 14 with." 15 And the questioner, Mr. House says: 16 "Right." 17 And then you say: 18 "A: And anyone who gets -- finds 19 themself in contact with that team, may 20 very well be arrested, yes." 21 And then Mr. House terminates his cross- 22 examination, 23 "All right, those are my questions, 24 thank you." 25 But the Court, the Judge asked you a
1621 question and he says: 2 "May I ask a question? Arrested for 3 what?" 4 And you say: 5 "I'm sorry?" 6 The Court says, "Arrested for what, what 7 would they be arrested for?" 8 And you answer: 9 "Well, the whole issue there was, it 10 was basically an unlawful assembly, is 11 how this thing started. 12 There were sticks and rocks and once 13 the team gets there and firebrands 14 being tossed at the members, so it was 15 as a result of that activity that the 16 punch out was called in the first 17 place, so that is what they were -- are 18 trying to deal with at that time, at 19 that point, is the fact that they had 20 been assaulted and took a barrage of 21 rocks et cetera, while they were 22 standing in the sand lot. So the 23 arrest would be a result of those types 24 of activities." 25 And the Court, the Judge continues:
1631 "Mr. House's question seems to be 2 premised on the fact that somebody may 3 be standing there, may not have thrown 4 a stick, may not have thrown a rock. 5 What would they be arrested for? 6 A: Well, I don't have the answer to 7 that, because it would be up to the 8 individuals involved as to the activity 9 that was taking place. I can't 10 speculate." 11 Now first, I'm going to continue, sir, but 12 did you give those answers to those questions on this 13 occasion, sir? 14 A: Those are my answers, yes. 15 Q: And you were under Oath at the time? 16 A: Yes, I was. 17 Q: And then -- then the Court invites 18 Mr. House whether -- to ask any questions that may 19 emanate from the Court's questions and he indicates he 20 would like to. 21 And you had raised the question of 22 unlawful assembly as we noticed a moment ago. Mr. House, 23 beginning on the next page, says: 24 "Officer, since you have raised this 25 question of unlawful assembly, isn't it
1641 the case that before an assembly is 2 unlawful, there has to be a... " 3 And the Court interjects: 4 "Proclamation." 5 Mr. House says: 6 "Proclamation." 7 And you say: 8 "Yes, I believe so." 9 But -- did you give that answer to that 10 question, sir? 11 A: Correct. 12 Q: So at the time, you believed that for 13 an unlawful assembly, there had to be a proclamation 14 before one could be charged with participation in an 15 unlawful assembly; is that correct? 16 A: That's fair. 17 Q: And then Mr. House continues: 18 "And was any proclamation --" 19 And you answer: 20 "No, no, there wasn't." 21 And Mr. House -- 22 "Just listen to the question, so it's 23 down in the record. Was any 24 proclamation given, that you are aware 25 of, that night?
1651 A: No." 2 You gave that answer to that question; is 3 that correct, sir? 4 A: Right. 5 Q: So at the time, you didn't think that 6 there could be a lawful arrest for unlawful assembly, 7 right, because of the lack of a proclamation? 8 A: Right. 9 Q: And are you telling us now, sir, that 10 you cannot recall and you have no note that will help you 11 to recall what you instructed Officer Lacroix to arrest 12 these persons for if he made arrests in the sandy parking 13 lot? 14 A: This -- this particular passage here 15 that you're talking to, is in regards to the -- when the 16 punch out occurred. 17 It's my understanding that the officers 18 had taken a defensive position, had taken rocks and 19 firebrands and the occupiers came out of the park and 20 charged at the crowd management team. 21 That's what this passage speaks to. 22 Q: Sir, what I was questioning you about 23 was your order to Lacroix that, when he went to the sandy 24 parking lot, he should either arrest people or make sure 25 they go back into the Park; right?
1661 That was your order, right? 2 A: I believe so, yes. 3 Q: Yes. And I was asking you, what 4 basis you instructed him he might have for making an 5 arrest, right -- 6 A: Was that -- 7 Q: û- that's the context here, sir. 8 A: Right. 9 Q: So that was before any interchange 10 took place between the crowd management unit -- unit -- 11 sorry, I don't think I did that -- between the crowd 12 management unit and the First Nations people; isn't that 13 correct? 14 A: Correct. 15 Q: So it had nothing to do with any 16 rocks they may have thrown at them that night, right? 17 This is before that happened? 18 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 19 Sandler...? 20 MR. MARK SANDLER: Well, Commissioner, I 21 don't -- I don't know if you see what's happening here, 22 My Friend puts a passage to Deputy Commissioner Carson 23 where he's talking about post punch-out and what the 24 justification would be for arresting and so on. 25 And now, he's being criticized for -- for
1671 dealing with a passage that deals with a different 2 scenario. 3 My Friend can ask him again what 4 instructions he gave to Lacroix before they go into the 5 parking lot. You've had an answer to that, I think three 6 (3) -- 7 COMMISSIONER SIDNEY LINDEN: Yes. 8 MR. MARK SANDLER: -- or four (4) times 9 already. 10 COMMISSIONER SIDNEY LINDEN: Yes. 11 MR. MARK SANDLER: But to put this 12 passage and to say that somehow that he should be 13 criticized because it doesn't speak to the issue when 14 it's a different time frame, and I should say that 15 elsewhere in the transcript that time frame that My 16 Friend is asking him about is dealt with, but I will deal 17 with it in examination; I've learned my lesson. 18 MR. PETER ROSENTHAL: Yes. And I'll tell 19 you right now, sir, the point of my doing that, because 20 he referred to unlawful assembly, but he acknowledged 21 that, in that transcript, that he didn't think he had the 22 possibility of unlawful assembly because of lack of 23 proclamation. 24 In fact, I don't know if you know that 25 now, sir, you're wrong, for an unlawful assembly you
1681 don't need a proclamation. But, in any event, I'm moving 2 on. 3 COMMISSIONER SIDNEY LINDEN: You're 4 moving on, so just move on. Thank you, Mr. Rosenthal. 5 6 (BRIEF PAUSE) 7 8 MR. PETER ROSENTHAL: Mr. Horton made 9 another good point that -- 10 COMMISSIONER SIDNEY LINDEN: Mr. Horton's 11 turn is coming. 12 MR. PETER ROSENTHAL: I'm sorry? 13 COMMISSIONER SIDNEY LINDEN: Mr. Horton's 14 turn is coming. 15 MR. PETER ROSENTHAL: Okay. Yes. Thank 16 you. Sir, but -- and Mr. Commissioner, the fact that I 17 may have asked the question does not necessarily mean I 18 can't ask it again when he keeps on changing his answers. 19 COMMISSIONER SIDNEY LINDEN: Well... 20 MR. PETER ROSENTHAL: And, with respect, 21 sir, the bottom line question here is what he instructed 22 Lacroix -- 23 COMMISSIONER SIDNEY LINDEN: Yes. 24 MR. PETER ROSENTHAL: -- he could arrest 25 people for as he went to the Park and he mentioned
1691 several -- he mentioned mischief, but agreed he couldn't 2 do that unless they had a bat. 3 And then he mentioned unlawful assembly, 4 but he thought it needed a proclamation and I want to ask 5 him one (1) more time for the record, sir, because this 6 is what led to those people marching down that roadway. 7 And given his answers, I want to ask him 8 one (1) more time what charges did you say to Lacroix he 9 could make if he arrested people in the sandy parking lot 10 as he followed your instructions of going down that road 11 and either arresting people or chasing them back to the 12 Park? 13 COMMISSIONER SIDNEY LINDEN: I think he's 14 answered the question, but I'm going to let you ask it 15 again and let him answer it again, but I think you've 16 asked it. 17 At some point, Mr. Rosenthal, at some 18 point asking questions again is not permitted, so at some 19 point it is if it's justified. 20 MR. PETER ROSENTHAL: Sir -- 21 COMMISSIONER SIDNEY LINDEN: I don't 22 think we disagree. I think you've asked that question 23 and had an answer, but if it's that critical to you in 24 your cross-examination. 25 MR. PETER ROSENTHAL: Thank you, sir.
1701 And, I certainly agree at some point, we just might have 2 a difference as to what point. 3 COMMISSIONER SIDNEY LINDEN: All right. 4 MR. PETER ROSENTHAL: But I'm not going 5 to belabour it much further, but sir -- 6 COMMISSIONER SIDNEY LINDEN: You were 7 going to move on. 8 9 CONTINUED BY MR. PETER ROSENTHAL: 10 Q: Can you tell us now what charges, if 11 any, you suggested to Sergeant Lacroix he could arrest 12 people for if he followed your instructions to arrest 13 those who remained in the sandy parking lot? 14 A: I can't tell you today, with any 15 certainty, exactly which charges we discussed. It was 16 clear that there had been damage to a vehicle and Mark 17 Wright had observed people with sticks in that parking 18 lot -- 19 COMMISSIONER SIDNEY LINDEN: That's 20 enough. 21 THE WITNESS: -- and I instructed him 22 that he would go down and clear that parking lot and one 23 (1) of the charges that may be presented, obviously, is 24 possession of weapons dangerous, given the activity that 25 already had taken place, the majority of which is going
1711 to be his judgment as to the activity that's taking place 2 when he arrives. 3 COMMISSIONER SIDNEY LINDEN: You 4 indicated you were going to move on. 5 6 CONTINUED BY MR. PETER ROSENTHAL: 7 Q: Just -- just one (1) follow-up if I 8 may, sir. 9 Is it your evidence, sir, that you did not 10 suggest to Sergeant Lacroix the possibility of unlawful 11 assembly as a charge? 12 A: To tell you the truth, I -- I cannot, 13 with any certainty today, tell you whether I did or I did 14 not. 15 Q: And, sir, would you agree that the 16 purpose of scribe notes and officers' notes, in general, 17 would seem to require that something as important as 18 that, as to what charges you're sending a number of 19 officers down the road to arrest a number of people on, 20 should be recorded? 21 A: It would be very helpful, but when it 22 comes to making an arrest, the officers themselves are 23 going to have to make a judgment based on the 24 circumstances they are faced with. 25 Q: Now...
1721 (BRIEF PAUSE) 2 3 MR. PETER ROSENTHAL: Your indulgence, 4 Mr. Commissioner, one second. 5 6 (BRIEF PAUSE) 7 8 CONTINUED BY MR. PETER ROSENTHAL: 9 Q: Now what, sir, in your view at the 10 time, was your legal authority for clearing people from 11 the sandy parking lot, whether they were to be arrested 12 or just chased back to the Park? 13 Why did they not have the right to stand 14 in the sandy parking lot? 15 A: Well they didn't have the right to 16 stand in the parking lot with bats and -- and be there in 17 a threatening nature. 18 Q: And did you instruct Officer Lacroix 19 that he should ensure that no one was standing there with 20 bats in a threatening nature, but anybody who was just 21 standing there quietly would be allowed to remain in the 22 parking lot, sir? 23 A: I don't believe we had that 24 discussion. 25 Q: No, the record doesn't suggest any
1731 such discussion, does it? 2 A: No, it doesn't. 3 Q: And, in fact, you ordered Sergeant 4 Lacroix to clear them all from the parking lot; did you 5 not, sir? 6 A: Correct. 7 Q: Yes. Whether they were behaving 8 lawfully or unlawfully, isn't that correct, sir? 9 MR. MARK SANDLER: I'm sorry for rising 10 again. 11 COMMISSIONER SIDNEY LINDEN: No, don't -- 12 MR. MARK SANDLER: My Friend has put 13 earlier in the cross-examination that -- that he -- that 14 he put to them to clear them unless they're just having a 15 picnic. 16 And he made all these allegations about 17 what that means to have a picnic. So having suggested 18 that -- 19 COMMISSIONER SIDNEY LINDEN: Well, he -- 20 MR. MARK SANDLER: -- now, he's 21 suggesting something that's completely incompatible with 22 his earlier suggestion. 23 COMMISSIONER SIDNEY LINDEN: Well, if 24 he's asking a question now, I think it's a perfectly 25 legitimate question.
1741 MR. PETER ROSENTHAL: Thank you. 2 COMMISSIONER SIDNEY LINDEN: You want to 3 ask the question again? 4 MR. PETER ROSENTHAL: Thank you. 5 6 CONTINUED BY MR. PETER ROSENTHAL: 7 Q: Would you agree, sir, I'm not sure I 8 remember exactly which question, Mr. Commissioner, sorry. 9 COMMISSIONER SIDNEY LINDEN: It was about 10 arresting all, whether they had bats or not. 11 MR. PETER ROSENTHAL: I'm sorry? I -- I 12 do -- no, I do -- yes, thank you. And that objection was 13 not appropriate and I -- 14 COMMISSIONER SIDNEY LINDEN: Well, I'll 15 have to -- 16 MR. PETER ROSENTHAL: û- weÆll deal with 17 it if necessary, sir, but -- 18 COMMISSIONER SIDNEY LINDEN: -- rule on 19 the appropriateness of the objection. 20 MR. PETER ROSENTHAL: No, but it's -- it 21 served the function of -- 22 COMMISSIONER SIDNEY LINDEN: Carry on. 23 MR. PETER ROSENTHAL: -- distracting me 24 and distracting -- 25 COMMISSIONER SIDNEY LINDEN: Sometimes --
1751 MR. PETER ROSENTHAL: -- the witness. 2 COMMISSIONER SIDNEY LINDEN: Sometimes 3 it's helpful, so we'll just carry on. 4 5 CONTINUED BY MR. PETER ROSENTHAL: 6 Q: Now, sir, I was asking you, I 7 believe, if there was -- if you had, at the time, any 8 basis for chasing somebody out of that Park if that 9 person was just sitting there, standing there, not armed 10 in any way? 11 A: If that was the case, we wouldn't 12 have needed to go in there with the crowd management 13 team, sir. 14 Q: Sir, the crowd management team was 15 marching down that roadway; right? 16 A: Right. 17 Q: It was your understanding that there 18 were or might be some First Nations people in that 19 parking lot; right? 20 A: Right, we had information being fed 21 back through the û- well as we just reviewed in the 22 transcripts, that they were on the roadway with a stick. 23 It was determined it wasn't a firearm, it was a stick, 24 which confirmed exactly what we were talking about in the 25 first place.
1761 Q: Yes. And then, your instructions 2 were to Lacroix to clear that parking lot of First 3 Nations people; right? 4 A: Right. 5 Q: And I'm suggesting to you, sir, and - 6 - and when I asked you on what legal basis, you indicated 7 if someone had a baseball bat and was threatening people, 8 that person could be charged with weapons dangerous; 9 right? 10 A: Right. 11 Q: And that would be a justification for 12 clearing them from the parking lot or arresting them; 13 right? 14 A: Right. 15 Q: But then I'm suggesting to you, sir, 16 that you did not put any such restriction on Staff 17 Sergeant Lacroix, you said, Clear the parking lot of all 18 the First Nations people. 19 That's correct; right? 20 A: Correct. 21 Q: And that would have included any 22 people who might have been just sitting, might have even 23 been just having a campfire, even though, as your Counsel 24 reminded you earlier, you had said we won't do anything 25 if they're just having a campfire; right?
1771 A: Right, that's why we had the officers 2 on observation. 3 Q: Yes. But your instructions to 4 Lacroix when he finally marched down there was, Clear 5 them out of that Park. 6 A: Correct. 7 Q: Camp fire or not; right? 8 A: No. 9 Q: There was no restriction on it; 10 right? 11 A: If -- if there had simply been the 12 camp fire setting, the TRU team would have reported it 13 back and there would have been no order to move the crowd 14 management team up the road. 15 Q: Are you saying, sir, that you did not 16 give Lacroix orders before they were very far down the 17 road that their mission was to clear the sandy parking 18 lot of First Nations people? 19 A: Right. 20 Q: You're denying that? 21 A: No. No. 22 COMMISSIONER SIDNEY LINDEN: No, he's 23 agreeing. 24 25 CONTINUED BY MR. PETER ROSENTHAL:
1781 Q: You agree that you gave them that 2 order? 3 A: Yes, yes, sure I did. 4 Q: Yes. So the mission was to clear the 5 sandy parking lot of First Nations people whether they 6 were behaving lawfully or unlawfully, right? 7 A: It was to clear the parking lot. 8 Q: And I'm asking you what legal basis 9 you had to do that if they were behaving lawfully? 10 A: Well in my view what was reported 11 back to us, there -- there was unlawful activity 12 happening there. 13 Q: It had earlier been -- several hours 14 earlier some unlawful activity according to the reports, 15 right? 16 A: Right. 17 Q: Well, just because there's some 18 unlawful activity in a certain location that some time 19 does not does it, give you reasonable grounds to clear 20 off -- clear from that area anyone who might be there 21 several hours later? 22 A: Not necessarily. 23 Q: And in this context you thought it 24 did? 25 A: We had observer teams in place and I
1791 felt the information coming back met the criteria. 2 Q: And what information was coming back 3 at that point, sir, that met the criteria? 4 A: As -- as I explained -- 5 COMMISSIONER SIDNEY LINDEN: We've gone 6 over that. We've gone over that, Mr. Rosenthal. 7 MR. PETER ROSENTHAL: Well, sir -- 8 COMMISSIONER SIDNEY LINDEN: We've gone 9 over this information. 10 MR. PETER ROSENTHAL: Yes but what 11 happened, sir -- 12 COMMISSIONER SIDNEY LINDEN: You may not 13 like it. It may not be enough for you and that's your 14 argument. But he has answered these questions. 15 MR. PETER ROSENTHAL: With great respect, 16 Mr. Commissioner, as I'm sure the transcript will show, 17 and it's easier to parse it in the transcript than it is 18 as it's going on, this officer has continually changed 19 his evidence about the reason that he ordered Lacroix to 20 go down there and what he ordered them to do. 21 And as he changes, he keeps on shifting on 22 various things. And that will be apparent, sir, from the 23 transcript. 24 COMMISSIONER SIDNEY LINDEN: He's -- he's 25 agreed with you -- he's agreed with your suggestion that
1801 he -- 2 MR. PETER ROSENTHAL: I'm sorry? 3 COMMISSIONER SIDNEY LINDEN: He's agreed 4 with your last suggestion that he asked Officer Lacroix 5 to go down and arrest -- 6 MR. PETER ROSENTHAL: Yes. 7 COMMISSIONER SIDNEY LINDEN: -- and clear 8 the Park? He's agree with that. 9 MR. PETER ROSENTHAL: And then I'm trying 10 to probe what legal basis there may be and I want him to 11 acknowledge, sir, that there was no legal basis. 12 COMMISSIONER SIDNEY LINDEN: Well he may 13 not acknowledge that. 14 MR. PETER ROSENTHAL: And he may not 15 acknowledge that. 16 COMMISSIONER SIDNEY LINDEN: But you've 17 asked it and I understand that's what you're trying to 18 do. 19 MR. PETER ROSENTHAL: Yes. 20 COMMISSIONER SIDNEY LINDEN: But you 21 can't just keep asking the question. 22 MR. PETER ROSENTHAL: Yes. 23 COMMISSIONER SIDNEY LINDEN: Whether you 24 get an answer or not. You can't just keep asking him. 25 MR. PETER ROSENTHAL: Absolutely, sir.
1811 But the fact that he keeps on giving different answers. 2 Every time I ask the question does affect his credibility 3 very substantially. 4 COMMISSIONER SIDNEY LINDEN: Well we'll 5 deal with that, you know, at the end, but in the meantime 6 you've got to ask proper questions. You've asked that 7 question, you got an answer. It may not be the answer 8 you like. I think you've asked the question often 9 enough. 10 MR. PETER ROSENTHAL: Well with respect, 11 I shall move on now. But, Mr. Commissioner, I just want 12 to make the point. That when the witness like this who 13 changes his answer so much and the transcripts 14 demonstrate that, you must be allowed if you're doing 15 cross-examination as several times from several different 16 points of view to try and get the truth. 17 COMMISSIONER SIDNEY LINDEN: Well I'm 18 not sure how much he's changed his answers but there's 19 been some adding or subtracting or whatever, but -- 20 MR. PETER ROSENTHAL: Well, sir, with 21 respect, perhaps we should take a break from my cross- 22 examining him and we should -- I'll go over the 23 transcript from last time and show you how incredible 24 this witness has been to form a basis for my doing a more 25 probing cross-examination.
1821 COMMISSIONER SIDNEY LINDEN: I think 2 you've gone as far as you can go on this point. And I'd 3 like to move on. 4 MR. PETER ROSENTHAL: Thank you, sir. I 5 -- I'll move on for now then, sir. 6 COMMISSIONER SIDNEY LINDEN: Yes, thank 7 you. 8 MR. PETER ROSENTHAL: Now -- 9 COMMISSIONER SIDNEY LINDEN: I mean it's 10 ten (10) years ago and for some answers to be not exactly 11 the same, would not surprise anybody. 12 MR. PETER ROSENTHAL: Sir -- 13 COMMISSIONER SIDNEY LINDEN: You've 14 acknowledged that and so has he. 15 MR. PETER ROSENTHAL: With respect, his 16 answers differ much more than that. And they're with an 17 obvious purpose. 18 COMMISSIONER SIDNEY LINDEN: You can deal 19 with that when the time comes. But now I would -- 20 MR. PETER ROSENTHAL: Yes, but I need to 21 get the evidence and I need to do that by cross- 22 examination, sir. 23 COMMISSIONER SIDNEY LINDEN: I think you 24 have enough evidence on this point. 25 MR. PETER ROSENTHAL: I will move to the
1831 next point. 2 3 CONTINUED BY MR. PETER ROSENTHAL: 4 Q: Sir, you were aware at the time, that 5 there had been several different situations in the -- in 6 the previous couple of days at which the First Nations 7 people occupying the Park were given an indication that 8 you, the OPP, viewed them as trespassers, is that 9 correct? 10 A: Correct. 11 Q: They were informed several times that 12 they were trespassing and the information was not relayed 13 as fully as you would have liked but there was some 14 conveying of that information on several different 15 occasions; is that correct? 16 A: Right. 17 Q: During the period September 4, 5 and 18 6; is that correct? 19 A: Correct. 20 Q: Now you and your evidence in-chief I 21 believe, said words to the affect of they should have 22 known that what you wanted was that they go back to the 23 Park or something like that. 24 Was that your evidence, sir? 25 A: I'm sorry?
1841 Q: Was it your evidence, and is it your 2 evidence right now, that somehow the First Nations people 3 should have known as the CMU was marching down the 4 roadway on that fateful night that all you wanted was for 5 them to go back in the Park, and if they went back into 6 the Park, there'd be no problem; it's your understanding 7 that they should have known that, sir? 8 A: Yes. 9 Q: And you answered Mr. Millar when he 10 suggested why didn't you have a megaphone that would tell 11 them if you wanted them to do that, you said, well, maybe 12 in hindsight it would have been a good idea, right? 13 A: Correct. 14 Q: Now, sir, we had evidence from a 15 number of First Nations people at this Inquiry including 16 David George. Did you know David George, sir? 17 A: I'm not sure if I knew -- I may have, 18 or I'm not sure. It doesn't ring a bell off-hand. I'm 19 not sure which one he is. 20 Q: Now, he was asked -- and I'll read 21 you a portion of his evidence. He was asked on October 22 21st, 2004, beginning of page 80 about line 20: 23 "Q: And then later that evening when 24 the police were marching down the road 25 and to end the "shield chatter", as
1851 they call it, did they tell you 2 anything? Did they make any 3 announcement, we want you to stay in 4 the Park or anything to that effect? 5 A: No. They never said nothing. 6 They were just barking orders at their 7 own people, and there was like, I don't 8 know, there was one (1) guy that was 9 walking around, he looked like he was 10 pretty pumped up. He was shaking his 11 arms around like that, just stomping 12 around. He was -- looked like he was 13 mad, but then nobody said nothing to 14 us. 15 Q: And so you -- did you have any 16 idea as to what they wanted of you at 17 that point and what they were intending 18 to do? 19 A: We assumed they were there to take 20 us out of the Park or something, kick 21 our ass." 22 Now, sir, I would suggest to you that 23 those of us who had the opportunity of seeing David 24 George's testimony would have found him a very 25 intelligent and credible witness. Well, some of My
1861 Friends disagree, but -- 2 COMMISSIONER SIDNEY LINDEN: It isn't 3 necessary for you to do the editorializing, he -- that's 4 what he said. 5 MR. PETER ROSENTHAL: That -- well -- 6 COMMISSIONER SIDNEY LINDEN: It's the 7 editorial comment that is unnecessary. 8 MR. DERRY MILLAR: It's unfair to this 9 Witness. Whatever one may think of another witness -- 10 COMMISSIONER SIDNEY LINDEN: Yes. 11 MR. DERRY MILLAR: -- to say to a witness 12 that's in the stand, we think "X" or "Y". I think it's 13 fair if -- 14 COMMISSIONER SIDNEY LINDEN: To put the 15 evidence to him. 16 MR. DERRY MILLAR: -- you put the 17 evidence of the Witness -- 18 COMMISSIONER SIDNEY LINDEN: And move on. 19 MR. DERRY MILLAR: -- without the 20 editorial comments, which... 21 MR. PETER ROSENTHAL: And I shall try to 22 withdraw my editorial comments -- 23 COMMISSIONER SIDNEY LINDEN: Thank you. 24 MR. PETER ROSENTHAL: -- and do what Mr. 25 Millar agrees is fair.
1871 COMMISSIONER SIDNEY LINDEN: Thank you. 2 3 CONTINUED BY MR. PETER ROSENTHAL: 4 Q: Now, sir, I would suggest to you 5 that that evidence that I read to you, regardless of who 6 gave it, is very reasonable evidence, and I would put to 7 you the following, sir -- 8 COMMISSIONER SIDNEY LINDEN: It's 9 evidence. It's evidence. 10 MR. PETER ROSENTHAL: Yes. I'm going to 11 put a proposition to him, Mr. Commissioner if I may. 12 COMMISSIONER SIDNEY LINDEN: Okay. 13 That's fine. Whether the evidence is reasonable or 14 unreasonable, it's evidence. You read it to him, now 15 you're going to ask him a question about it. 16 MR. PETER ROSENTHAL: Mr. Commissioner -- 17 COMMISSIONER SIDNEY LINDEN: That's fine. 18 MR. PETER ROSENTHAL: -- if you would 19 wait a moment, with great respect, you'll see why I'm 20 introducing it in this way. 21 COMMISSIONER SIDNEY LINDEN: I will. 22 MR. PETER ROSENTHAL: And this is cross- 23 examination, Mr. Commissioner, in my respectful 24 submission -- 25 COMMISSIONER SIDNEY LINDEN: I'm trying
1881 to let you cross-examine. 2 MR. PETER ROSENTHAL: I agree about the 3 editorial comment, but I do have a right to put that 4 evidence. 5 COMMISSIONER SIDNEY LINDEN: We're trying 6 to let you cross-examine. Carry on. 7 8 CONTINUED BY MR. PETER ROSENTHAL: 9 Q: Thank you. Now, sir, that was Mr. 10 George's evidence, we have evidence from other witnesses 11 as well. 12 Now, I -- I put to you the following, sir, 13 that you should have known, and you must have known in 14 the context when those people had been told they were 15 trespassers by your officers, that a number of your 16 officers marching on them in the circumstances that you 17 ordered the march, would have led at least many of them 18 to believe that the officers were coming to take them out 19 of the Park, or to arrest them, or to do something to 20 them other than allow them to stay in the Park. 21 What's your response to that, sir? 22 A: Yes. It's a possibility. 23 Q: And you didn't realize at the time 24 that it was a very realistic possibility, sir? 25 A: It's a possibility.
1891 Q: But isn't it enough of a possibility 2 that you had to, in any proper performance of your 3 duties, if your goal was to keep them in the Park, inform 4 them of that goal? 5 A: If we could have had a communication 6 with them, I would have loved to have informed them 7 exactly. 8 Q: And you couldn't have had a bullhorn, 9 sir? 10 A: I didn't have a bullhorn. 11 Q: And you couldn't get a bullhorn? 12 A: I'm telling you, I didn't have one. 13 Q: No. You made extensive efforts to 14 get armoured vehicles, right, sir; is that correct? 15 A: Yes. 16 Q: And you didn't have a bullhorn? 17 A: No, we didn't have one there. 18 Q: Did the thought occur to you that 19 perhaps we should inform these people by bullhorn, if you 20 stay in the Park, there's no problem here? 21 A: I never considered a bullhorn. 22 Q: And you didn't consider informing 23 them, did you? 24 A: We certainly tried to communicate 25 with them on a number of occasions.
1901 Q: But as you marched down the road that 2 night, and you say your intention was simply to keep them 3 in the Park, you did not take any steps whatsoever to 4 attempt to inform them of that intention, did you, sir? 5 A: Correct. 6 Q: Did it cross your mind that it might 7 be appropriate to take such steps, sir? 8 A: I had no reason to believe there was 9 anyway of getting the information to them. I had a 10 number of people working, trying to develop 11 communication, and it just simply did not happen. 12 Q: Would you agree, sir, that a 13 reasonable way of getting that information would have 14 been to have an officer in front of the group with a 15 bullhorn, saying, if you simply stay behind the Park 16 fence, there won't be any problem. 17 Do you agree that would be a reasonable 18 way, sir? 19 A: That's -- that's an option. 20 Q: That's an option, sir? 21 A: Yes, it is. 22 Q: And you could have obtained a 23 bullhorn if you had thought of that option, could you 24 sir? 25 A: Yes, I could have.
1911 Q: And if you'd done that option, 2 there's a good likelihood, would you agree, that Dudley 3 George would not be dead, sir? 4 A: We don't know that. 5 Q: We don't know that. Now, sir, can 6 you explain what would be an apparent contradiction 7 between your concern about having a legal basis for 8 dealing with the First Nations people towards the 9 beginning, September 4, 5, and early 6, and your lack of 10 investigating the details, at least, of any legal basis 11 for dealing with them as you did, in the evening of the 12 6th? 13 A: I'm not certain I understand your 14 question. 15 Q: I'm sorry, that was a rather 16 cumbersome question, and I'm sorry for that. 17 I asked you early on in my cross- 18 examination of you last day, sir, about your concern 19 about the possible colour of right and your need for an 20 injunction, to make sure you had a firm legal basis for 21 anything you did. 22 You recall that line of questioning, sir? 23 A: Right, right. 24 Q: And I'm suggesting to you that's in 25 stark contrast to what appears to be a relative, at
1921 least, lack of concern about any legal authority for 2 doing what you did on the night of September 6th, with 3 respect to them being in the Park. 4 You understand my concern there, sir? 5 A: I -- I disagree with your -- your 6 proposition. 7 Q: I see. And your -- your view is that 8 you gave a similar attention to legal concerns about what 9 happened on the evening of September 6th as you did to -- 10 A: I would suggest to you -- I -- quite 11 frankly, I don't see any other option available to us. 12 Q: Well, you agreed earlier, sir, that 13 there was another option of stopping people at the 14 observation points, isn't that right? 15 A: That's one of the options, yes. 16 Q: So there were other options -- other 17 possibilities, right? 18 A: If -- if those cottages had have been 19 damaged or if anyone had have stumbled into that area, I 20 would have had a situation that would have been simply 21 untenable for -- 22 Q: Yes. 23 A: -- anyone to deal with. 24 Q: Yes, there would have been such 25 incredible pressure from the Premier's office and from
1931 the MPPs that you would not, perhaps, have survived on 2 the Force if something like that had happened; isn't that 3 fair, sir? 4 A: I didn't believe that whatsoever. 5 Q: Now, in respect to legal basis for 6 things, or legal bases for things, there were -- at the 7 time of the helicopter incident, there were searches of 8 various First Nations' people by OPP officers, is that 9 correct, sir? 10 A: Searches of their person? 11 Q: Of individual First Nations -- well, 12 their property, at least, is that correct? 13 A: Of their property, oh yes. 14 Q: Yes. And -- and then we had during 15 the cross-examination of your Counsel, Ms. Tuck-Jackson, 16 of Carl Tolsma who appeared as a witness in these 17 proceedings on February 21st, 2005, at page 171 there was 18 the following portion of the transcript: 19 "Q: Okay, I anticipate, sir, that 20 we're going to hear that not longer 21 after 2:30 in the morning, you actually 22 met with John Carson? 23 A: I probably did." 24 This is in connection with the helicopter 25 incident, a couple of years before the events that we
1941 were recently talking about. 2 "Okay, and I anticipate that we're 3 going to hear from Deputy Carson that 4 when he met with you, he explained to 5 you that any vehicle leaving the 6 property would have to be checked, if 7 the driver wanted to be able to remove 8 the car from the property and... 9 A: Yes." 10 And he says he recalls being told that. 11 Now, my first question to you, sir, about 12 this, is: is that correct? In other words, did you -- do 13 you agree that you explained to Mr. Tolsma that any 14 vehicle leaving the property would have to be checked if 15 the driver wanted to be able to remove the car from the 16 property? 17 A: Correct. 18 Q: And then the question continues: 19 "All right. And then if there was any 20 resistence. 21 A: They'd be arrested." 22 A: Correct. 23 Q: And the question then continues by 24 Ms. Tuck-Jackson: 25 "They would be arrested, thank you.
1951 Because it would considered, I'm going 2 to suggest he told you, a form of 3 obstruction." 4 And you answered "yes". Sorry, Mr. 5 Tolsma, answered "yes". And do you agree, sir, that your 6 counsel at that time was accurately paraphrasing, from 7 your perspective, the conversation you had with Mr. 8 Tolsma? 9 A: That's fair. 10 Q: And then the question continued -- 11 sorry. May I ask a question then first? So you 12 suggested to Mr. Tolsma that anyone driving a vehicle 13 away would be arrested for obstruction, is that correct? 14 A: If they tried to leave the base 15 without being examined, yes. 16 Q: And by obstruction you meant 17 obstructing a police officer in the execution of his 18 duty, sir? 19 A: Correct. 20 21 (BRIEF PAUSE) 22 23 Q: Now was it your instructions to 24 search the cars of those persons then? 25 A: If -- if they didn't volunteer a
1961 search, they would be -- they have to stay at -- inside 2 the Military Base. 3 Q: I see. So the alternatives that you 4 offered to the people at that point were either stay 5 inside the military base, or consent to a search of your 6 vehicle? 7 A: Right. 8 Q: What about your person? 9 A: We didn't have that discussion I 10 don't believe. It was -- it was the vehicles in 11 particular we were concerned about. 12 Q: I see. And how long was that rule in 13 effect? 14 A: Until the search warrant arrived. 15 The military base was secured as a crime scene at that 16 point in time. 17 Q: Now, in your view you had reasonable 18 grounds to arrest someone for obstruct police, if that 19 person did not voluntarily submit to a search in their 20 vehicle? 21 A: Correct. 22 Q: Did you at any time seek a warrant 23 for the searches of those vehicles, sir? 24 A: Not for the vehicles, no. 25 Q: Why did you not seek a warrant to
1971 give you legal authority to search those vehicles? 2 A: Well -- well maybe I better correct 3 that. We -- we were in the process of getting a search 4 warrant at that time. The crime scene was secured, and 5 the warrant was being obtained to allow us to -- to 6 conduct a search of the facilities there. 7 If any vehicle desired to leave, they 8 wanted a consent search, they were allowed to leave. 9 Otherwise, they would stay, and they would be searched 10 pursuant to the warrant. 11 Q: Well is the warrant that you were 12 seeking, did it include the right to search the vehicles? 13 A: I couldn't tell you off the top of my 14 head. I have no idea. 15 Q: Now you say there was a warrant being 16 sought. 17 A: Right. 18 Q: Was the warrant ever obtained? 19 A: Yes. 20 Q: The warrant was -- do you recall when 21 it was obtained, sir? 22 A: When? It was through the -- 23 Q: In the course of the evening, at what 24 time approximately, sir? 25 A: Well the search warrant was executed
1981 just after daybreak, around 8:00 or nine o'clock in the 2 morning, so it was through the night that it was prepared 3 and obtained. 4 Q: And in the process of executing that 5 search warrant, did the officers search vehicles as well 6 as the buildings? 7 A: I couldn't tell you that. I wasn't 8 on the ground when the search was conducted. 9 Q: I see. And you don't recall now if 10 the warrant included the right to search vehicles? 11 A: You're asking the wrong person, quite 12 frankly. 13 Q: But in any event you did inform Mr. 14 Tolsma as indicated? 15 A: Sure. That if anyone wanted to 16 leave, they were more than welcome to leave but they 17 would have to submit to a consent search of their vehicle 18 so they could leave. 19 Q: Now if we could turn to a different 20 matter please. Exhibit 444(a) which is the first of the 21 logger tapes, Tab 21 thereof. 22 23 (BRIEF PAUSE) 24 25 MR. PETER ROSENTHAL: Mr. Sandler has
1991 made his second good suggestion in the course of the 2 entire Inquiry. He's suggests it might be time for a 3 break, sir, and I'm happy to agree with that. 4 COMMISSIONER SIDNEY LINDEN: Thank you 5 very much. We'll take a break now. 6 THE REGISTRAR: This Inquiry will recess 7 for fifteen (15) minutes. 8 9 --- Upon recessing at 3:21 p.m. 10 --- Upon resuming at 3:38 p.m. 11 12 THE REGISTRAR: This Inquiry is now 13 resumed, please be seated. 14 COMMISSIONER SIDNEY LINDEN: Mr. 15 Rosenthal... 16 MR. PETER ROSENTHAL: Thank you, Mr. 17 Commissioner. 18 19 CONTINUED BY MR. PETER ROSENTHAL: 20 Q: I should like to turn, if I may, to 21 Exhibit 444(a) which is the first of the logger tapes, 22 and I'll be looking at Tab 21 thereof. 23 24 (BRIEF PAUSE) 25
2001 Q: Beginning at about page 161 of that 2 transcript. 3 4 (BRIEF PAUSE) 5 6 Q: Now, I want to ask you, sir, about a 7 portion of the conversation beginning with the last line 8 on page 161 attributed to you: 9 "Carson: So anyway, that's about it. 10 I see we have one (1) other complaint, 11 I guess, on the go here." 12 Sorry, I -- I should have put this in the 13 context, sir, that it's on September 5, 1995, at 16:04 in 14 the afternoon. 15 So, sometime in the afternoon of September 16 5th, is that correct, sir? 17 A: Yes. 18 Q: And then, sorry -- on page 161 you 19 indicate: 20 "So anyway, that's about as I see it. 21 We have one (1) public complaint, I 22 guess, on the go here from some First 23 Nations person who didn't like having 24 and being asked for identification at a 25 checkpoint, and they're dealing with
2011 that." 2 And then Superintendent Parkin asks you, 3 "Well, what authority are we using to 4 ask for an ID -- ask for ID?" 5 And you say: 6 "Ah, I'd have to check with the crime 7 guys, but -- ah, I'm not really sure 8 right off the top of my head without 9 trying to string you a line here." 10 Is that an accurate transcript, sir, more 11 or less? 12 A: Correct. 13 Q: So at this point, you had ordered 14 your officers at checkpoints to stop First Nations people 15 and ask them for identification, is that correct? 16 A: They were checking driver's -- I 17 don't -- I'm not sure of the context of the complaint, if 18 it was a complaint from a driver or a passenger or what 19 the complaint was. 20 So I'm not sure what the context of -- 21 Q: Yeah, but this was -- and it -- by 22 this point in time, evidently, whatever else, you had 23 instructed your officers at the checkpoints to ask people 24 for identification, isn't that correct? 25 A: The drivers.
2021 Q: Just the drivers? 2 A: I believe it was just the drivers. 3 They -- they were stopping vehicles, asking the drivers 4 for identification and they were asking for information 5 from the other ones if they would -- if they would -- 6 Q: I see, oh -- and the non-drivers were 7 not being asked for identification, sir? 8 A: I'm not sure, quite frankly. 9 Q: Well, you answered Superintendent 10 Parkin, but first I just want to clarify. 11 These checkpoints were in operation prior 12 to this phone call, right, sir? 13 A: I'm sorry? 14 Q: The checkpoints were in operation 15 prior to this phone call, right? 16 A: Right. 17 Q: And your instructions to the officers 18 manning the checkpoints were that they were supposed to 19 ask some of the people, at least, in the vehicles, for 20 identification, right? 21 A: Right. 22 Q: And you're not sure now whether it 23 was everyone in the vehicle, or only the drivers, is that 24 fair? 25 A: Correct. I am sure it would be the
2031 drivers, but I'm not sure if there was any discussion 2 regarding the passengers or if they were just asked to 3 voluntarily identify themselves. 4 Q: Yes. But now, when your asked by 5 Superintendent Parkin, what authority are we using to ask 6 for ID, you didn't know, isn't that right? 7 A: Correct. 8 Q: So, are you telling us, sir, that you 9 assigned your officers to ask for identification at 10 checkpoints, but you didn't know any legal authority for 11 doing that at the time you assigned them? 12 A: The -- the criminal officers, 13 depending on the -- the -- the check point, depending 14 whether or not it was a driver or a passenger, I'm not 15 sure in this context if we were talking about drivers or 16 if we were talking about all the occupants of the 17 vehicle. 18 So, I didn't want to tell him we were 19 getting identification for all the -- the occupants 20 because I didn't know and I didn't know what instructions 21 the crime officers had provided to the checkpoints. So, 22 I wanted to make sure I understood what he -- what he was 23 looking for. 24 Q: Sir, would you agree that the answer 25 to the question I asked you is, "yes," namely, the
2041 question, being: At the time that you instructed the 2 officers to man these checkpoints and ask for 3 identification, you did not know what legal authority 4 they may have had to ask for such identification? 5 A: I knew there was no problem asking 6 for identification for the drivers and that -- that's 7 very clear under the HTA; that's -- that's a non-issue in 8 my view. 9 Q: Well, why didn't you answer that to 10 Superintendent Parkin instead of saying, I'm not really 11 sure off the top of my head without trying to string you 12 a line here? 13 A: Because I didn't know if we were 14 talking about all of the passengers or if we were just 15 talking about the driver and we didn't get into a big 16 discussion about it. 17 Q: Sir, at the time you knew something 18 about that complaint evidently; isn't that correct? 19 A: I knew there was a complaint, I did 20 not know the circumstances of the complaint. 21 Q: I see. 22 A: I knew there was an issue around 23 identification, but the circumstances of what the 24 identification was, I did not know -- 25 Q: You understood --
2051 A: -- so I was in no position to say, 2 This person who has complained is a driver, a passenger 3 or otherwise. 4 Q: You understood, sir, when Parkin 5 asked you the question: Well, what authority are we 6 using to ask for ID, he meant that as a general question, 7 not just with respect to that one (1) complainant; isn't 8 that fair, sir? 9 A: Well, the discussion came as a result 10 of me informing him there's a complaint. 11 Q: Yes. But did you not take his 12 question to be a general question: What authority are 13 we using to ask for ID as we stop people at these 14 checkpoints? 15 A: That's a general question, yes. 16 Q: A general question? 17 A: Sure. 18 Q: Requiring a general answer that might 19 have had some specifics, for example, if it's a driver, 20 it's because of this; if it's not a driver, this or 21 whatever, right? 22 A: Right. 23 Q: But you didn't know any specifics, 24 you said, Well, you're going to have to check with the 25 crime guys, right?
2061 A: Right. 2 Q: So, am I not correct, sir, that you, 3 when you assigned the officers to man those checkpoints 4 and ask for ID did not know what legal basis, if any, 5 they may have had for asking for that ID? 6 A: Well, they, as well as myself, would 7 all know that they have the authority to ask under the 8 Highway Traffic Act for identification from a driver. 9 Q: They all know, but you weren't sure 10 right off the top of your head? 11 MR. MARK SANDLER: I'm sorry to keep 12 rising. 13 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 14 Sandler...? 15 MR. MARK SANDLER: On page 163 this very 16 issue is dealt with. 17 MR. PETER ROSENTHAL: Yes, indeed, and 18 I'm coming to that, Mr. Commissioner, and this is cross- 19 examination. 20 COMMISSIONER SIDNEY LINDEN: All right. 21 Carry on. 22 MR. PETER ROSENTHAL: Now, with respect, 23 we'll come to that, Mr. Commissioner. 24 COMMISSIONER SIDNEY LINDEN: All right. 25 MR. PETER ROSENTHAL: But I'm exploring
2071 his statement. I'm not really sure off the top of his 2 head, in September of 1995, sir, when this was all fresh 3 in his mind, and he's giving, I would suggest, answers 4 that require further scrutiny. 5 6 CONTINUED BY MR. PETER ROSENTHAL: 7 Q: Sir, is it not fair for us to take 8 from this that you didn't know at the time what legal 9 basis there may be? 10 A: I didn't know what legal basis they 11 were applying to the incident in particular. 12 Q: I see, we have your evidence, sir. 13 Let's turn now, to the page your Counsel wants us to turn 14 to, 163. 15 At the top of page 163, Superintendent 16 Parkin says: 17 "I guess we could say we're trying to 18 direct the orderly movement of 19 traffic." 20 Now, I would put it to you, sir, that you 21 understood at the time and it's clear from the transcript 22 that Superintendent Parkin was trying to help you to find 23 some reason that would try to justify asking people for 24 ID at checkpoints, is that not fair? 25 A: That's what we're talking about, yes.
2081 Q: About trying to find a reason, right? 2 A: Not trying to find a reason, we had 3 already assigned crime people to insure that everybody 4 had their authority. I wasn't privileged to that 5 discussion as to what they were actually directed or -- 6 or information that was shared with them. 7 Q: When were your -- did you first 8 instruct your officers to operate these checkpoints and 9 ask people for ID, sir, what day and approximate time? 10 A: Well, they would have been doing it 11 since Monday morning. 12 Q: Monday morning, September 4? 13 A: Right. No, 5th. 14 Q: September 5th? 15 A: The checkpoints weren't established 16 until after the late -- early -- early morning of the 17 5th. 18 Q: So you're saying Tuesday, September 19 5th? 20 A: Right. 21 Q: And so they've been it since the 22 morning and it's now approximately four o'clock in the 23 afternoon when you're having this phone call, right? 24 A: Correct. 25 Q: And I would put it to you that it's
2091 clear from the transcript that you and Superintendent 2 Parkin are trying to find some possible justification for 3 stopping these people and asking them for ID, is that not 4 fair, sir? 5 A: Yeah. He asked the question until 6 we're discussing the authorities. 7 Q: But it's already been in operation 8 for several hours, is that correct? 9 A: Right. 10 Q: So he says: 11 "I guess we could say we're trying to 12 direct the orderly movement of 13 traffic." 14 And you say: 15 "Yep and ensure the public safety." 16 Right? 17 A: Correct. 18 Q: And then he suggests, "And we can ask 19 anybody for a driver's licence." Right? 20 A: Correct. 21 Q: And you say, "That's right." 22 And he says, "Hm, okay." 23 And you say: 24 "But I know the crime guys have 25 pursued the authorities in that."
2101 You seem to be pretty comfortable with 2 that? You know, what did you mean by that, sir? 3 A: The criminal officers looked at 4 various things than what the different authorities were. 5 Q: What do you mean by authorities? You 6 say sometimes the law by authorities, we mean legal 7 cases? 8 A: No. Just the -- the different 9 statutes that may apply. 10 Q: And what statues did you have in 11 mind, sir; the Highway Traffic Act? 12 A: Well you can -- you can ask any 13 driver for a driver's licence under the Highway Traffic 14 Act. 15 Q: Sir, would you agree that it's an 16 improper use of the powers under the Highway Traffic Act 17 to ask somebody for ID for a different purpose than the 18 purpose of the Traffic Act? 19 A: I don't think it's inappropriate to 20 ask. They're operating a vehicle, they can be asked for 21 a driver's licence, simple reason that they are driving a 22 vehicle. 23 Q: But, sir, would you agree that to do 24 that under the Highway Traffic Act, it should be for 25 Highway Traffic Act purposes. It shouldn't be that
2111 you're using the power under the Highway Traffic Act to 2 investigate for example, Native people for some other 3 manner. 4 Do you agree with that, sir? 5 A: No. If they're driving a car, 6 they're required to produce a driver's licence if they 7 have a driver's licence. 8 Q: Yes. And it's your view that even if 9 you have no concern about their driving or anything to do 10 with any aspect of the Highway Act with respect to that 11 person, it's legitimate for you -- for some oblique 12 purpose to stop that car and ask that person for a 13 driver's licence. Is that correct? That's your view? 14 A: Correct. 15 Q: Thank you. And that's what was being 16 suggested here, is that right by Superintendent Parkin? 17 A: Right. 18 Q: And then you indicate: 19 "But you know she's probably going to 20 push the issue and that's fine." 21 Right? 22 A: Yes. 23 Q: So evidently you thought at the time 24 that this person who had been stopped, was going to 25 pursue the issue that in her view at least, it was an
2121 improper infringement of her rights in some way, is that 2 right? 3 A: Correct. 4 Q: Now do you recall who that person 5 was, sir? 6 A: No. I have no idea who it was. 7 Q: Is there any documents that we could 8 look to, to try to determine what the nature of that 9 complaint was or what happened? 10 A: Staff Sergeant Dennis was speaking to 11 her so perhaps he could share with you what the 12 discussion was. 13 Q: I see, thank you. Now continuing 14 further in that transcript on page 169. A little bit 15 below the middle of the page, Superintendent Parkin is 16 reported to saying to you: 17 "It depends who you listen to 18 apparently. The uh, people from the 19 government are saying uh, you know, why 20 don't we treat them just like a bunch 21 of bikers." 22 Now you understood he was talking about 23 the people in the Park, is that correct? 24 A: Right. 25 Q: And you answer:
2131 "Well -- well they've got a point." 2 And he says: 3 "Yeah." 4 And you say: 5 "Uh but I guess for trespassing that's 6 not very, you know, what I mean." 7 "Sounds good." he says. 8 Am I correct, sir, in interpreting this 9 interchange as meaning that you agree to some extent with 10 the government position as expressed by Superintendent 11 Parkin that they should be treated like a bunch of bikers 12 but you think you should wait until you get something 13 more substantial than trespassing before you do that. 14 Isn't that a fair reading of this, sir? 15 A: Not -- not technically. What -- what 16 I'm saying here is there is no land claim issue on the 17 Park as we knew it at that time. And that it's a simple 18 trespassing is what I'm saying. 19 So the point is, they are simply 20 trespassing as -- as opposed to the land claim issue as 21 we knew it in the military base. So it's a -- a 22 distinctly different issue around the occupation. 23 Q: I'll move on, if I may, to -- I'm 24 going to be referring to both volumes of the logger tapes 25 in the next little while if you want to get ready.
2141 And so I'll be referring to Exhibit P- 2 444(b), logger number 2 and Tab 68 thereof. I just want 3 to look at a little bit of this transcript for the 4 present purposes. At the first page of it, page 426, 5 line 3: 6 "Carson: Okay. Okay. Hmm. What you 7 can say is, I'm on a unrecorded line 8 here I believe." 9 Now, sir, I put it to you that you 10 reported to Officer Babbitt on this occasion that you 11 were on an unrecorded line so that he would speak more 12 freely than if he thought he was on a recorded line; is 13 that not fair? 14 A: Yes. 15 Q: And you wanted to have lines that 16 were unrecorded; right? 17 A: That's what I asked for, yes. 18 Q: Yes. And you asked for that at 19 several times and several places that we can refer to if 20 necessary; is that not fair? 21 A: No, I did not ask for it several 22 times. I asked for it once on the -- after a discussion 23 I had with Superintendent Parkin and I directed the 24 technician unrecord a line. 25 Q: Well, may I ask you, sir, is it not
2151 the case that you wanted unrecorded lines so that you 2 could say things that would not be available should there 3 be some investigation as to what you did, such as this 4 inquiry, for example? 5 A: Absolutely not. 6 Q: Well, what other possible purpose 7 could there be to have an unrecorded as opposed to a 8 recorded line, sir? 9 A: We, as is our policy that we do not 10 record administrative lines. I want to be able to speak 11 with whoever I needed to talk to and I wanted them to be 12 able to share with me whatever information they could and 13 not have to be concerned about recorded or non-recorded 14 lines. 15 In all of our administrative processes 16 across the organization there is no examples of where we 17 use recorded lines except in the context of our 18 communication centres where we receive calls for 19 emergency from the public. 20 So it would be totally uncustomary for any 21 of our members to expect to be recorded. So it would be 22 certainly unbeknownst to them and unfair to them to all 23 of a sudden be recorded. 24 Q: You -- a part of your answer, sir, 25 was that you wanted to have persons speaking to you to
2161 not have to be concerned about the possibility of being 2 recorded; is that correct? 3 A: Right. 4 Q: And concerned, therefore, that other 5 people would know exactly what they said as a result of 6 the recording; right 7 A: No. So that they would speak freely 8 and not be concerned about what they may want to say to 9 me in order to be, for lack of a better term, more 10 concerned about grammar and correctness and language as 11 opposed to being frank and honest with me. 12 Q: "Grammar"; you think that was the 13 concern, grammar, sir? Or was it not including the 14 content, sir? 15 A: Quite frankly, they are recorded so 16 you have the actual transcripts. 17 Q: Yes. Well, sometimes we have 18 recordings when you didn't think you were being recorded 19 evidently; right? 20 A: Well, they were all recorded and I 21 thought that they were not being recorded so you have the 22 actual calls. 23 Q: Well, we don't know what may exist 24 that was not recorded. We do know what was recorded and 25 that includes some calls where, evidently, you thought
2171 you were not being recorded; right? 2 A: Correct. 3 Q: But you indicated that one reason you 4 wanted unrecorded lines was because you didn't want 5 people to be concerned and then you suggested concerned 6 about grammar, and I'm suggesting to you, you wanted them 7 to speak frankly to you about what they learned, what 8 they were thinking, in a way that they would know it was 9 just to you alone, and would not be subject to scrutiny 10 by anyone else; is that not fair? 11 A: I wasn't concerned about the scrutiny 12 whatsoever. 13 Q: Well, what happens with a recorded 14 line that's different from an unrecorded line, other than 15 the possibility of subsequent scrutiny, sir? 16 A: I wanted to make sure that they were 17 comfortable to share with me whatever information they 18 had. And quite frankly, that came out of a discussion I 19 had with Superintendent Parkin, and the call is there as 20 transcribed, where I informed him it was recorded. 21 And he would -- he suggested and I 22 agreed, that we would attempt to unrecord a line, so they 23 could have unfettered access to me and the lines that 24 they wanted to call me and have a frank and honest 25 discussion could be -- could come in.
2181 Q: And you sometimes informed people 2 that, it's okay, you can speak freely, because it's an 3 unrecorded line; right? 4 A: Right. 5 Q: And you didn't realize that in fact 6 you were in error, it was being recorded; right? 7 A: Correct. 8 Q: Sometimes. 9 A: Correct. Many times. 10 Q: Yes. And when did you get the 11 unrecorded line, sir? 12 A: I never got an unrecorded line. 13 Q: You never got it unrecorded? 14 A: No, I'm not aware of it. I thought - 15 - I thought it was unrecorded, I was told it was 16 unrecorded, but the lines that I was using that I thought 17 were unrecorded, in fact were all recorded. 18 Q: What about your cell phones? 19 A: What about them? 20 Q: Sorry? 21 A: What about them? 22 Q: Were the calls on your cell phone 23 recorded? 24 A: I don't know if there is a capability 25 of recording a cell phone.
2191 Q: So the answer is no, is it not, sir? 2 A: It's like anyone else's cell phone, 3 sir, I don't believe there is a capability of recording 4 it. 5 Q: I'm not asking about capability, sir. 6 As far as you're aware, calls that you made on your cell 7 phone were not recorded; is that fair? 8 A: Of course not. 9 Q: Thank you. And you made a number of 10 calls on your cell phone in the course of these several 11 days, did you not, sir? 12 A: I made some. 13 Q: Yes. Now I won't take you through 14 more examples, perhaps we've seen several examples in the 15 course of my questions and other person's questions of 16 matters that were in the handwritten scribed notes, but 17 were not in the typed version of the scribed notes. 18 Do you recall some of those, sir? 19 A: Yes. 20 Q: Now, sir, am I correct in 21 understanding that you reviewed the typed version of the 22 scribed notes? 23 A: Yes, I got a copy of those, yes. 24 Q: You got a copy of those? 25 A: Right.
2201 Q: And is it your evidence that someone 2 else other than you, made the decision as to which 3 portions of the handwritten notes to be transcribed into 4 a typewritten version? 5 A: The notes were scribed in -- into the 6 electronic format. I had no involvement into editing of 7 the handwritten to -- to the typewritten version. 8 Q: Am I correct in understanding that 9 all the notes were first handwritten and then 10 transcribed? 11 A: Not necessary -- 12 Q: Your notes? 13 A: -- not necessarily. Some -- some of 14 the officers -- one (1) officer in particular, took the 15 notes in long hand, and then they would be transcribed 16 into the computer. And at other times we would have a 17 person who was more skilful if you would, at the 18 computer, and could enter the majority of the information 19 directly into the computer, because of her keyboarding 20 skills. 21 So, it isn't necessarily transcribed -- or 22 handwritten, then transcribed, it depends on the 23 individual. 24 Q: And am I correct, sir, that it's your 25 evidence that you never saw the handwritten notes until
2211 perhaps preparing for these Proceedings, within the last 2 little while? 3 A: The first time I saw handwritten -- 4 the handwritten version in any form, was at discovery. 5 Q: At the discovery in this matter in 6 about the year 2001? 7 A: Correct. 8 Q: So if there are in the handwritten 9 version, as there are in some places, lines that are 10 crossed out, you can tell us under oath, none of those 11 crossings out are done by you? 12 A: Correct. 13 Q: I should like to look at one (1) that 14 was stroked out, for the content of it. And this is in 15 the scribed notes, which is Exhibit 426, Inquiry document 16 100-2419, and I should like to look at -- 17 A: Where -- where would I find that? 18 Q: Sorry? 19 A: Where would I find that? 20 Q: Yes. I'm -- I'm -- I'm going to find 21 it and then tell you and everyone else how to. 22 In our -- well, it's in the -- the 23 handwritten scribe notes. In our version, it is on the 24 page just before page -- the typed page 62. So... 25 MR. DERRY MILLAR: The best -- what's
2221 been -- the handwritten notes have been marked as Exhibit 2 427; it's Tab 13 of Volume 1 of the large black binder. 3 Those are the handwritten scribe notes. 4 MR. PETER ROSENTHAL: I'm not sure what 5 page this is. It -- page 61 is referring to 11:20 hours 6 on the evening of September 6th, and this is a couple of 7 pages beyond that. The last entry is 11:20. 8 Sorry, with your indulgence, these scribe 9 notes are quite messy as we have been this far and I'm 10 grateful that Mr. Millar is working hard to assist. 11 COMMISSIONER SIDNEY LINDEN: I'm with you 12 on the typed part. The typed part is 11:20, is at page 13 61. We haven't found the written part yet, right? 14 15 (BRIEF PAUSE) 16 17 MR. PETER ROSENTHAL: I'm sorry, sir, I'm 18 trying to save time and I just suggested to Mr. Millar 19 perhaps it's just one (1) passage I wish to show the 20 Witness. 21 Perhaps I could just approach the Witness 22 and show it to him and read it to him, and discuss it 23 with him, if I may? 24 COMMISSIONER SIDNEY LINDEN: Which part 25 is this; in the typed part or the written part that
2231 you're referring to? 2 MR. PETER ROSENTHAL: It's part of the 3 written part, sir. 4 COMMISSIONER SIDNEY LINDEN: That's 5 Exhibit 427? 6 7 (BRIEF PAUSE) 8 9 MR. PETER ROSENTHAL: Mr. Millar's going 10 to make one (1) more try. 11 12 (BRIEF PAUSE) 13 14 MR. MARK SANDLER: Page 464. 15 COMMISSIONER SIDNEY LINDEN: 464. 16 17 (BRIEF PAUSE) 18 19 MR. DERRY MILLAR: Yes. Did you find 20 that? It's page 464. 21 MR. PETER ROSENTHAL: Thank you to all My 22 Friends for assistance. I'm sorry, Mr. Commissioner, 23 it's not entirely my fault given the -- 24 COMMISSIONER SIDNEY LINDEN: That's fine. 25 MR. PETER ROSENTHAL: -- condition of the
2241 notes. 2 3 CONTINUED BY MR. PETER ROSENTHAL: 4 Q: Now, sir, the passage I wish to refer 5 you to, which did not, as far as I can tell, make it into 6 the typewritten version, is: 7 "J. C. [it says] make sure if [and then 8 it looks like perhaps] the [crossed out 9 more and if you can assist, I'm happy 10 for any assistance] things happen. 11 Make sure it gets fed through. If they 12 have to have guns out, then do it." 13 Did I extract from that what you would 14 extract from that, sir, as to what it says? 15 A: I'm not sure what this discussion is 16 related to. 17 Q: But before we try to deal with that, 18 did I extract the words correctly, sir? 19 A: Oh, yes. Yes. 20 Q: So, it says: 21 "Make sure if things happen, make sure 22 it gets fed through. If they have to 23 have guns out, then do it." 24 Now, it appears to be right after another 25 small crossing out, but it -- it's after -- evidently
2251 after 11:16 that evening, and we can go to the typed 2 version to get some information as to what was happening. 3 So this was the evening of September the 4 6th, sometime after 11:15 or so. 5 MR. DERRY MILLAR: I think it's in the 6 morning. 7 MR. PETER ROSENTHAL: I'm sorry, oh, it's 8 in the morning. 9 MR. DERRY MILLAR: I believe it's in the 10 morning. It's -- 11 MR. PETER ROSENTHAL: Yes. 12 MR. DERRY MILLAR: 11:00 -- 13 MR. PETER ROSENTHAL: Yes. 14 15 (BRIEF PAUSE) 16 17 MR. PETER ROSENTHAL: Some time around 18 11:20 in the morning, Mr. Millar is absolutely correct. 19 20 CONTINUED BY MR. PETER ROSENTHAL: 21 Q: Now, this is the morning of September 22 6th, and attributed to you in the handwritten notes is 23 that sentence... 24 25 (BRIEF PAUSE)
2261 2 MR. PETER ROSENTHAL: Yes, and My -- My 3 Friend, Mr. Millar points out that shortly before this 4 handwritten notation, there is a notation at 11:16 that 5 is reproduced in the typewritten version, so we can, I 6 think, extrapolate that this -- this refers to some 7 period shortly after 11:16 in the morning -- 8 MR. DERRY MILLAR: And then the typed -- 9 MR. PETER ROSENTHAL: -- so -- 10 MR. DERRY MILLAR: The typed version of 11 1002419, it's page 61. 12 MR. PETER ROSENTHAL: Thank you. 13 14 CONTINUED BY MR. PETER ROSENTHAL: 15 Q: Now, sir, evidently, as transcribed 16 in the handwritten scribe notes, you said something like, 17 make sure if the things happen, make sure it gets fed 18 through. 19 And then a second sentence with respect to 20 that first sentence, sir, can you now try to take your 21 mind back and assist us as to what things you were 22 considering might happen, and what you wanted to get fed 23 through what? 24 25 (BRIEF PAUSE)
2271 A: I have no idea what that's in 2 relation to. 3 Q: In any event, the next sentence, I 4 would suggest to you, appears to be a little bit more 5 apparent as to what this meant. 6 "If they have to have guns out, then do 7 it." 8 I would suggest to you that you're talking 9 about a possible operation by your officers, and 10 suggesting that if they or someone feels that they have 11 to have their guns out, then you're not prohibiting that; 12 is that a fair reading of that? 13 A: Well, the last part of your comment 14 is accurate, but there was no plans to do anything in 15 particular at that point in time. 16 I -- I just can't turn my mind to what the 17 discussion would have been about. 18 Q: Yes, and I appreciate that, but the 19 last sentence must mean something like I just suggested 20 to you; is that correct, sir? 21 Is some operation that the officers might 22 or will be engaged in, and you're giving them authority 23 to take their guns out if they feel it's necessary; is 24 that fair? 25 A: That's fair.
2281 2 (BRIEF PAUSE) 3 4 Q: And I'm more in the dark than you 5 are, sir, but trying to help you, perhaps, to remember 6 what might have been referred to by the first sentence, 7 which is a more unusual sentence, make sure if -- if 8 things happen, make sure it gets fed through. 9 Would "fed through" mean through the 10 command so that persons learn about it, and particularly 11 you learn about something; is that possible? 12 A: Well, if something -- I mean, it may 13 mean that if something happens make sure it gets notified 14 up the chain of command, I mean that's -- 15 Q: May -- yeah, that -- you're an OPP 16 officer for many years, sir, and you know the language 17 that's used, and you were there. 18 Is it -- is that a reasonable supposition 19 as to the latter part of the phrase is that whatever's 20 being referred to in the first part, you're instructing 21 the officers that -- to make sure that it gets fed 22 through the chain of command, in particular that, I 23 gather, that you should know about it? 24 A: Correct. 25 Q: Is that -- that's a fair --
2291 A: That's fair. 2 Q: As far as that phrase, but then as to 3 what things happening, you don't recall, and can't assist 4 us at this time, is that correct? 5 A: I -- I don't recall any discussion of 6 that nature, quite frankly. 7 Q: Thank you. I do sometimes know when 8 to stop, Mr. Commissioner. 9 COMMISSIONER SIDNEY LINDEN: Well I know 10 you've got a definite plan, Mr. Rosenthal, I was going to 11 ask you, it looks like we got just under an hour left. 12 Is there a chance that you'll finish today? 13 MR. PETER ROSENTHAL: Unfortunately, sir, 14 I will not finish today, I don't believe, I'm sorry, sir. 15 I'm trying to be as expeditious as I can. I don't expect 16 to -- 17 COMMISSIONER SIDNEY LINDEN: What if we 18 sit a little later. I would like you to finish because 19 we're not sitting tomorrow. 20 MR. PETER ROSENTHAL: I appreciate that, 21 sir. 22 COMMISSIONER SIDNEY LINDEN: And I would 23 -- if it's possible to have you finish today would be -- 24 MR. PETER ROSENTHAL: I -- I will make my 25 very best effort, sir. But I --
2301 COMMISSIONER SIDNEY LINDEN: We're 2 prepared to sit a little longer if that -- 3 MR. PETER ROSENTHAL: I appreciate that, 4 sir. And I'm -- and I'm in your hands. I'm prepared to 5 sit as late as you wish. 6 COMMISSIONER SIDNEY LINDEN: I think it 7 would be helpful for everybody if we could. But we'll 8 see how far we get when it gets to the... 9 MR. PETER ROSENTHAL: I will try, sir. 10 But there are certain areas that I must go over. 11 COMMISSIONER SIDNEY LINDEN: No. I don't 12 want you to cut your examination short. If you can't, 13 you can't. I would just like to know. 14 MR. PETER ROSENTHAL: Yes. It may not be 15 apparent, sir, but I am trying to be as expeditious as I 16 can. 17 COMMISSIONER SIDNEY LINDEN: I realize 18 that you are. Let's move on. 19 20 (BRIEF PAUSE) 21 22 CONTINUED BY MR. PETER ROSENTHAL: 23 Q: Now, sir, if we could please look at 24 these scribe notes and this time the typed portion, 25 Exhibit -- the typed version I should say, Exhibit 426,
2311 1002419. 2 At page 14 of our version. I'm talking 3 about September 5, 1995, at approximately 134 hours. 4 5 (BRIEF PAUSE) 6 7 Now, at approximately 1:34, sir, evidently 8 according to the scribe notes, it's reported that Mark 9 Wright said: 10 "We need structured chain of command. 11 John Carson: Forest will only be at 12 command office. We want to do this 13 right, everyone from here to federal 14 people" 15 Now, sir, I'll stop you at that point 16 first. What did you mean by "Everyone from here to 17 federal people"? 18 19 (BRIEF PAUSE) 20 21 Ms. Esmond, sir, points out that she can 22 tell and I can't -- you're reading from the handwritten 23 notes, I gather, is that correct, sir? 24 A: I'm trying, yes. 25 Q: Yes. Well it would be easier -- I
2321 would suggest in this case we should look at the typed 2 version, sir. 3 A: Okay. 4 Q: And it will be easier to read in that 5 version. 6 A: What -- you said 1 -- 7 Q: We're looking at time 1:34. 8 A: Correct. 9 Q: And what I had read to you, sir, was 10 a portion of that so far. 11 "John Carson, Forest will be only at 12 command office. We want to do this 13 right. Everyone from here to federal 14 people". 15 And I stopped there to ask you what you 16 meant by "federal people" in this context. 17 A: Quite frankly I'm not sure what -- 18 what context I referred to federal people; who I'm 19 referring to if it's military personnel or what. 20 Q: This is very early in the morning 21 evidently, of September 5th, is that correct? 22 A: Yes it is. 23 COMMISSIONER SIDNEY LINDEN: What page of the 24 typed notes are you one? 25 MR. PETER ROSENTHAL: Then --
2331 COMMISSIONER SIDNEY LINDEN: What page of the 2 typed notes are you on? 3 MR. PETER ROSENTHAL: Sorry, it's page 14 of 4 the typed version -- of our typed version -- 5 COMMISSIONER SIDNEY LINDEN: Yes. I'm not 6 seeing that -- page 14 -- 7 MR. PETER ROSENTHAL: -- having seen Deputy 8 Commissioner Carson of course, what happens in this case to 9 be the same. 10 COMMISSIONER SIDNEY LINDEN: -- I couldn't 11 find a page 14. 12 13 CONTINUED BY MR. PETER ROSENTHAL: 14 Q: So you can't assist us now, sir, as to 15 what you meant by that? 16 A: I -- I'm not sure of the context, sir. 17 Q: Okay, thank you. And then attributed to 18 Mark Wright: 19 "Mark Wright: I'm not telling what to 20 carry or not to carry re: firearm, long 21 guns, use common sense, that tactical part 22 is Stan Korosec's call." 23 Do you recall that; do you see that, sir? 24 A: Correct. 25 Q: So am I correct in taking from this that
2341 at this meeting, Mark Wright was giving instructions with 2 respect to the use of firearms by OPP officers, and 3 indicating that he was informing the others present that you 4 can use your common sense and also the tactical part is to -- 5 is up to Stan Korosec, is that correct? 6 A: Correct. 7 Q: Now, sir, you were the Incident 8 Commander? 9 A: Correct. 10 Q: And you were part of this meeting? 11 A: Yes. 12 Q: And sir, was it not your responsibility, 13 as Incident Commander, to consider what kind of weapons might 14 be employed by OPP officers against the First Nations people? 15 A: Yes. 16 Q: It was your responsibility? 17 A: Yes. 18 Q: But you apparently delegated it to Mark 19 Wright on this occasion? 20 A: I didn't delegate it. He -- he spoke 21 about it there but I was present while that was discussed. 22 Q: I see. So, it looks like he's saying it, 23 but he was saying it with your approval; is that what you're 24 telling us? 25 A: We're having a discussion there and
2351 that's in regards to the weapons that the ERT personnel will 2 carry. 3 Q: Yes. 4 A: It's customary that most officers, and 5 particularly ERT officers, will have long guns available to 6 them. 7 Q: Yes. 8 A: That -- that's very customary. 9 Q: But it appears from these notes that Mark 10 Wright is the one making the decision to allow them to use 11 their weapon of choice? 12 A: It wasn't a -- a matter of decision. It 13 was discussion so everybody was on the same page, that if 14 Sergeant Korosec felt, through the night at the checkpoints, 15 that he preferred that the officers use long guns, or have 16 long guns available to carry them, that was -- that was -- 17 that was okay. It was approved, is what that's saying. 18 Q: So you agreed with what Mark Wright told 19 this gathering, that the tactical part should be up to Stan 20 Korosec; is that correct; is that what you just told us? 21 A: Correct. Correct. 22 Q: And you also agreed that you, and or Mark 23 Wright, were not going to give any instructions in that 24 respect as to what weapons to use? 25 A: It wasn't a matter of not which -- which
2361 weapons, Stan Korosec could allow the officers to carry long 2 guns if he felt it was necessary, or the right weapon to 3 carry on the checkpoints. 4 Q: But you -- when the "use common sense", 5 would mean Stan Korosec's common sense, or other individual 6 officers being allowed to use their common sense as well? 7 A: Well, it would be both actually. 8 Q: Be both? 9 A: But Korosec would have the discussion 10 with the checkpoints and discuss whether they would have long 11 guns or not. 12 Q: Yes. That's the way this appears to 13 read -- 14 A: Right. 15 Q: -- that individual officers would have 16 discretion as to what weapon to use and also Stan Korosec 17 would have a particular role to play as far as that tactical 18 aspect? 19 A: Correct. 20 Q: Now, this was after people were in the 21 park but before September 6th, and so, was this discussion in 22 relation to a possible approach to the park by the 23 officers -- 24 A: No. 25 Q: -- or this was in general as to what was
2371 going to happen in the next several days? 2 A: It was in regards to checkpoints. 3 Q: To checkpoints; I see. Okay, so at 4 checkpoints they could use their discretion as to what 5 weapons to have available? 6 A: Yeah. At this point it's all we had done 7 was -- we were just in the process of establishing 8 checkpoints. 9 Q: Yes. Sir, what is a gun vehicle? 10 A: A gun vehicle? 11 Q: Yes. 12 A: That would be a reference to a TRU Team 13 Van. 14 Q: That's a synonym for TRU Team Van? 15 A: Well, some of their vehicles have -- 16 carry their weaponry. 17 Q: So they're -- they're special vehicles 18 that are designed in order to carry a number of weapons; is 19 that correct? 20 A: Amongst other things. 21 Q: Amongst other things? 22 A: Right. 23 Q: So they would have what, racks that would 24 hold many rifles; is that the idea? 25 A: Yes, that's fair.
2381 Q: And any other special equipment besides 2 racks? 3 A: I'm not sure I understand. I mean, 4 there's all kinds of equipment in there. I mean, they're -- 5 they do a number of different tasks whether it's their 6 uniform, whether it's their communication equipment, whether 7 it's their explosive disposal equipment, remote robot. 8 I mean, there's all kinds of equipment in 9 those trucks. But they're part of the -- of the -- or the 10 requirement in the truck is that it carries their weaponry. 11 Typically it's the -- 12 Q: Just a minute, perhaps I can refer to an 13 entry in the scribe notes, and then you -- I'll continue my 14 questions, if I may, in that respect. 15 It's in the scribe notes are typed page 34, 16 and it's on September 5th, 1995 at 11:42. 17 A: What page, sir? 18 Q: It's our page 34, perhaps not yours, but 19 it's time 11:42. 20 A: Thank you. 21 Q: It's also your thirty-four (34). We're 22 on the same page for a change. 23 A: Correct. 24 25 (BRIEF PAUSE)
2391 Q: Now, what I'm -- I should like to point 2 you to, sir, is beginning in the middle of the second entry, 3 counter time, 11:42, in the logger entry, Inspector Carson 4 advised Sergeant Skinner to sit in on briefing meetings; he 5 agreed. Now, it reads: 6 "Inspector Skinner directed Sergeant 7 Skinner to keep the gun vehicles out of 8 sight." 9 I suppose that that's a typo, unless he 10 recorded his own thoughts, but am I correct that the scribe 11 misrecorded Inspector Carson directed Sergeant Skinner to 12 keep the gun vehicles out of sight; is that fair? 13 A: That would make -- that would make more 14 sense. 15 Q: And so you, I would take it, would have 16 made that direction, because the gun vehicles had some 17 special look that you didn't want the First Nations people to 18 see; is that fair? 19 A: Well, they're -- they're very obvious 20 vehicles; they're large white cube vans. So, they have a 21 number of vehicles they use, like just to put it in context 22 here, like they have a car, they have a suburban, they have a 23 van, and they have cube vans. The vehicles that we're 24 talking about are the -- the large cube vans, that would be 25 most recognizable.
2401 Q: Why did you direct Sergeant Skinner to 2 keep them out of sight? 3 A: Because I didn't want to raise the -- the 4 knowledge that the TRU Team was in the area. 5 Q: Now, with respect to some of the 6 aftermath, you were aware evidently, at the time, that Dudley 7 George was in the process of being taken to hospital in a 8 private vehicle; is that correct? 9 A: I knew someone was going to the hospital, 10 yes. 11 Q: You -- you may not have known it was 12 Dudley George, but you knew that a seriously injured person 13 was being driven to hospital in a private vehicle, late on 14 the night of September 6th; is that correct? 15 A: Correct. 16 Q: And you didn't instruct your officers to 17 offer any assistance to that vehicle, or to that person 18 getting to hospital, did you, sir? 19 A: No, that's not a fair assessment. 20 Q: That's not fair? 21 A: No. 22 Q: I see. What assistance did you instruct 23 them to offer, sir? 24 A: Did I offer them -- or did I direct them 25 personally? I found out --
2411 Q: In any way, sir, were they instructed to 2 assist those people in getting the unknown, at the time, 3 person, to hospital? 4 A: If the person had presented themselves at 5 the checkpoint, which they drove through, that they needed 6 assistance, every oppor -- every assistance would have been 7 offered to them. 8 Q: Sir, I would request that you listen to 9 my question and answer my question. 10 My question is: Did you instruct any officers 11 to assist those people? 12 A: No, I did not. 13 Q: You did not. Thank you. 14 And you didn't instruct any Officer to 15 instruct anyone to assist those people, did you, sir? 16 A: Correct. 17 Q: And you were aware, in fact, were you 18 not, sir, that when they arrived at the hospital, some of 19 your officers arrested the person who was driving that 20 vehicle, and two (2) other passengers in the vehicle, on that 21 occasion; you were aware of that, right, sir? 22 A: Yes, I am. 23 Q: Sorry? 24 A: Yes, I am. 25 Q: You were aware at the time that they were
2421 arresting them, were you not, sir? 2 A: Was I aware -- 3 Q: Or shortly thereafter? 4 A: Shortly thereafter. 5 Q: And you, at least implicitly, authorized 6 that arrest, is that not true, sir? 7 A: I don't know if that's a fair assessment. 8 Q: Well, sir, you were there. Would you 9 please tell us what you did with respect to that arrest as 10 the incident commander in charge of what was happening from 11 the police point of view? 12 A: When there were officers sent to the 13 hospital it was not me, personally, who dealt with that 14 particular part of the events, that was occurring as I 15 returned back to the command post in Forest. 16 I believe between Detective Sergeant 17 Richardson and Detective Sergeant Wright, they were aware 18 that a vehicle was headed to the hospital and they dispatched 19 officers to go to the hospital. 20 Q: And, with what instructions, sir? 21 A: You'd have to speak to them as to their 22 explicit instructions, but they would obviously want to take 23 control of the -- any parties in that vehicle. 24 Q: Oh, to take control. It was obvious to 25 you they were to take control of any parties in that vehicle?
2431 A: I -- I would suggest it would be, yes. 2 Q: In other words, place them under arrest? 3 Is that you mean by, "take control," sir? 4 A: Correct. Until it was determined what 5 involvement they had in the incident. 6 Q: I see. So, it was your understanding, 7 sir, that these people who were transporting the unknown 8 person to hospital were to be arrested; is that correct? 9 A: I would expect that would be done. 10 Q: That was your understanding as to what 11 you expected to have happen on that night, sir; is that 12 correct? 13 A: Correct. 14 Q: And, sir, again I would put to you that 15 would have been without any possible reasonable and probable 16 grounds to place them under arrest. 17 And, I would ask you, sir, if I'm wrong, for 18 you to tell me what charge you thought you had reasonable and 19 probable ground to arrest those people on? 20 A: If there was someone involved in a 21 shooting as -- as the information was that someone had -- had 22 been struck and ran back into the Park, I think it's a fair 23 assumption that that person was probably loaded into the 24 nearest vehicle and conveyed to the hospital. It is very 25 reasonable and probable to think that the parties involved in
2441 that vehicle were part of the incident that had just taken 2 place. 3 So, they're all part and parcel of that until 4 the officers are able to determine exactly what has happened. 5 Q: I see. You're telling us, sir, that if 6 someone was involved in some violent incident with an OPP 7 officer and all you knew about other people is that they were 8 driving that person to the hospital, you would have 9 reasonable and probable grounds to place those persons under 10 arrest, sir? 11 A: Yes. 12 Q: Is that what you're telling us? 13 A: That's what I'm telling you. 14 Q: I see. And, on what charge sir, on the 15 charge of attempted murder, right? 16 A: That's quite likely, yes. 17 Q: And, what was the alleged attempted 18 murder on which you wanted your officers to arrest these 19 people? 20 A: Shots fired at OPP officers. 21 Q: Shots fired at OPP officers. And, what 22 shots were you thinking of, sir? 23 What knowledge did you have at that time of 24 any possible shots by -- fired at OPP officers? 25 A: Well, it was my understanding shots had
2451 been fired from the position where the person ran back into 2 the Park. 3 Q: I see. Wasn't it your understanding at 4 the time that, in fact, that shots had been fired from a 5 school bus and from a vehicle that was driving towards the 6 officers? 7 A: That as well, yes. 8 Q: That as well? 9 A: Right. 10 Q: But, it was your understanding that a 11 person had fired and run back into the Park and that was the 12 person who was seriously injured, sir? 13 A: That's my understanding, yes, that that 14 person has fired the shots. 15 Q: Where -- where did you get that 16 understanding at that time, sir? 17 A: I -- I'm not telling you that I had that 18 understanding at that time. 19 Q: You just told us that you had that 20 understanding at that time unless I misunderstood you, sir. 21 A: Well, yeah, you did. 22 Q: Yes. 23 A: My -- my understanding -- the scenario 24 that I explained to you, that's what the rationale would be. 25 Now, exactly what information I had at that
2461 time, I couldn't tell you 100 percent sure if I had 2 information that the person who ran back into the Park had 3 fired a shot or -- or if I got that information after that 4 fact. 5 At what point in time I got that information, 6 whether it was before the car arrived at the hospital later 7 that evening, quite frankly, I'm not sure. 8 Q: Now, sir, I'm seeking the basis for you 9 allowing your officers to go to the hospital and place 10 persons under arrest for attempted murder after they 11 struggled to and got this seriously wounded person to the 12 hospital. 13 And I want to know the basis of any possible 14 reasonable and probable grounds you had for allowing that to 15 happen, sir. Okay? 16 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 17 Sandler...? 18 MR. PETER ROSENTHAL: That's the point of my 19 questions. And so -- 20 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 21 Sandler...? 22 MR. PETER ROSENTHAL: -- we'll find out the 23 answers now. 24 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 25 Sandler...?
2471 MR. MARK SANDLER: That is quite unnecessary, 2 that last pejorative comment. 3 I have no objection to the issue being 4 explored as to the reasonable probable grounds for the 5 arrest, but we're mixing two (2) things here and that is -- 6 MR. PETER ROSENTHAL: With respect, it's for 7 the Witness -- 8 COMMISSIONER SIDNEY LINDEN: It's -- 9 MR. PETER ROSENTHAL: -- to say what is 10 missing, because I'm asking about his knowledge on that 11 occasion, sir. 12 COMMISSIONER SIDNEY LINDEN: Well, why don't 13 you let -- 14 MR. MARK SANDLER: You have asked -- 15 COMMISSIONER SIDNEY LINDEN: -- Mr. Sandler 16 express himself. The question, you're saying, is a perfectly 17 proper question if it's to find out -- go ahead, I don't want 18 to interrupt you. 19 You were saying? 20 MR. MARK SANDLER: He's asked him about his 21 knowledge -- 22 COMMISSIONER SIDNEY LINDEN: The basis -- 23 MR. MARK SANDLER: He's indicated what his 24 knowledge was and whether he was involved in the direction of 25 the arrest at the hospital, and if wants to ask what would be
2481 a proper basis -- what would be or wouldn't be a proper basis 2 for the arrest, but we're mixing two (2) concepts here. 3 He hasn't suggested that he made the 4 direction. He hasn't suggested that it was based on 5 information that he knew that the arrest was made. 6 So, I'm just asking My Friend to keep separate 7 two (2) very different concepts. That's all. And I don't 8 think that's an -- 9 COMMISSIONER SIDNEY LINDEN: Okay. 10 MR. MARK SANDLER: -- improper suggestion, 11 with great respect, when the Witness has said what he's said 12 about his lack of involvement in the arrest. 13 14 (BRIEF PAUSE) 15 16 COMMISSIONER SIDNEY LINDEN: You want to 17 break the question -- 18 MR. PETER ROSENTHAL: Mr. Commissioner, in my 19 respectful submission that was not a proper objection and I 20 should like to -- and I asked the question about what he knew 21 when he, as incident commander, what he told us now, was he 22 knew that they were likely to be arrested and I asked him on 23 what charge, and he said attempted murder. 24 And I was exploring the basis for his allowing 25 that to happen on this occasion as incident commander.
2491 COMMISSIONER SIDNEY LINDEN: There's no 2 evidence that he allowed it. 3 MR. PETER ROSENTHAL: He -- I believe that 4 was his evidence, sir, and we'll look at the transcript in 5 detail. But I'll ask him again, sir, if I may. 6 But, in my respectful submission, there was no 7 proper objection to my question and the objection -- alleged 8 objection is phrased, puts the Witness in a certain 9 direction, and I would respectfully request that I be allowed 10 to cross-examine this Witness in an appropriate way. 11 COMMISSIONER SIDNEY LINDEN: I think the 12 suggestion was that if you combine the two (2) -- 13 MR. PETER ROSENTHAL: I'm sorry, sir, my 14 hearing is -- 15 COMMISSIONER SIDNEY LINDEN: The suggestion 16 was that if you combine two (2) things, it's more difficult 17 for the Witness to answer it. 18 If you break them out, then the Witness has a 19 chance to answer your questions. 20 MR. PETER ROSENTHAL: Yes, well -- 21 COMMISSIONER SIDNEY LINDEN: I think that's 22 what -- 23 MR. PETER ROSENTHAL: May I -- 24 COMMISSIONER SIDNEY LINDEN: -- I think 25 that's what was being said.
2501 MR. PETER ROSENTHAL: May I try to get back 2 to where we were, sir? 3 COMMISSIONER SIDNEY LINDEN: Let's see if you 4 get back to the original question. 5 MR. PETER ROSENTHAL: Yes, sir. 6 MR. DERRY MILLAR: Perhaps, and I apologise, 7 but this Witness testified in-chief that he had nothing to do 8 with the decision to arrest these people. 9 COMMISSIONER SIDNEY LINDEN: Yes. 10 MR. DERRY MILLAR: So, that was the evidence 11 in-chief and I don't think that there's been any evidence 12 since that he was involved -- 13 COMMISSIONER SIDNEY LINDEN: That's right. 14 MR. DERRY MILLAR: So -- 15 COMMISSIONER SIDNEY LINDEN: So we can ask 16 him what he knew or didn't know -- 17 MR. PETER ROSENTHAL: But he -- 18 COMMISSIONER SIDNEY LINDEN: And if he didn't 19 know anything, then he didn't know anything. 20 MR. PETER ROSENTHAL: But, there was 21 evidence, a few moments ago, and the transcript will show, 22 that he indicated he was aware of what was happening. He 23 knew his officers were going to the hospital. He understood 24 they were going to arrest these people on the charge of 25 attempted murder --
2511 COMMISSIONER SIDNEY LINDEN: Oh -- 2 MR. PETER ROSENTHAL: And he would -- is that 3 not correct, sir, did you not say that, sir? 4 THE WITNESS: I said that Detective Sergeant 5 Richardson and Detective Sergeant Wright dispatched officers 6 there and I was of the understanding, at some point, I'm not 7 sure if it was before they got to the hospital, after the 8 hospital, that they would be arrested. 9 10 CONTINUED BY MR. PETER ROSENTHAL: 11 Q: And on the charge of attempted murder, 12 right? 13 A: Correct. 14 Q: And you knew that, that night as -- as 15 everybody was going to the hospital, right? 16 A: Correct. 17 Q: That's what I -- that's what I indicated, 18 sir. 19 COMMISSIONER SIDNEY LINDEN: All right. So, 20 ask the question now that flows from that. 21 MR. PETER ROSENTHAL: Yes, and that's where I 22 was and I was trying to continue from there, very 23 appropriately, in my respectful submission, sir. 24 25 CONTINUED BY MR. PETER ROSENTHAL:
2521 Q: Now, sir, I'm putting it you that you 2 would have realized at the time that there was no way that 3 any officers could have reasonable and probable grounds to 4 charge those people with attempted murder, based simply on 5 the fact that someone had shot at some police officers, 6 according to what you understood, but with no further 7 evidence implicating those people. 8 Now, is that not fair, sir? 9 A: I don't think it's fair. 10 Q: You don't think it's fair? 11 A: No. 12 Q: And so you -- have you ever, in all your 13 years with the OPP, ever been involved in any other situation 14 where a person was arrested for a serious charge based on the 15 fact that something serious had happened somewhere near where 16 that person was, or did you have any more than that to go on 17 in this case, sir? 18 A: I'm not sure I really understand your 19 question. 20 Q: So, it was your view, in any event, that 21 there were reasonable and probable grounds to arrest who we 22 now know was Pierre George, Dudley George's brother, right? 23 A: Correct. 24 Q: And Carolyn George, Dudley George's 25 sister, right?
2531 A: Right. 2 Q: And a young man named J.T. who was 3 accompanying them to the hospital, right? 4 A: I believe so. 5 Q: And you, at the time, and even in 6 retrospect now ten (10) years later, agree that it was 7 appropriate to arrest them on the charges of attempted 8 murder; is that your evidence, sir? 9 A: Right. 10 Q: I see. And what evidence do you say 11 formed the basis for reasonable and probable grounds to 12 arrest those people, sir? I'd like to split that into two 13 (2) questions if I may? But -- 14 A: Well, first of all, I didn't direct it so 15 I don't know what discussion took place between Wright and 16 Richardson. 17 Q: Sir, you said there it was a justifiable 18 arrest for attempted murder. I want to ask you the 19 reasonable and probable grounds that you would -- you do -- 20 you do agree, do you not, sir, that an officer, to arrest 21 somebody in this society, must have reasonable and probable 22 grounds that that person committed an offence; is that not 23 correct, sir? 24 A: Of course. 25 Q: Now, officers don't have the right to
2541 just go around arresting people with anything less than that; 2 isn't that fair? 3 A: Of course. 4 Q: And, sir, now, I'm going to ask you what 5 reasonable and probable grounds you might have had at the 6 time, based on your knowledge at the time, and then we'll go 7 to -- 8 COMMISSIONER SIDNEY LINDEN: Stop -- 9 MR. PETER ROSENTHAL: -- looking back in 10 retrospect? 11 COMMISSIONER SIDNEY LINDEN: Stop there. At 12 the time? 13 MR. PETER ROSENTHAL: Yes. And I'm just 14 telling where I'm going. 15 16 CONTINUED BY MR. PETER ROSENTHAL: 17 Q: I want to know from the knowledge you had 18 at the time, what would have led you to, at least, acquiesce 19 as incident comment in this arrest and then we'll come to 20 other things perhaps? 21 So, at the time, what were the reasonable and 22 probable grounds the officers might have had, sir? 23 A: I think it's reasonable to believe that 24 the persons who -- who took him to the hospital were the ones 25 directly involved right -- right with him and very well may
2551 have been armed as well as -- as what was believed. 2 So, I don't know what more I can say. I mean, 3 it seems sensible -- 4 Q: So that -- 5 A: -- it seems reasonable that the first 6 person right there involved in the incident, whether it was 7 the persons who were driving the bus, driving the car, or 8 anybody else who may have been injured maybe were all part 9 and parcel of this incident. 10 And until it could be sorted out, I don't know 11 how you could delineate which person had which piece of 12 involvement when they first arrived at the hospital. 13 Q: So, it's your view that you arrest all 14 the First Nations people that you can and then afterwards you 15 sort it out and see who might have had involvement? 16 COMMISSIONER SIDNEY LINDEN: He didn't say 17 that, Mr. Rosenthal; that's not fair. 18 MR. PETER ROSENTHAL: Sorry. 19 COMMISSIONER SIDNEY LINDEN: He didn't say 20 that. 21 MR. PETER ROSENTHAL: It's cross-examination, 22 sir. 23 COMMISSIONER SIDNEY LINDEN: No, but he 24 didn't say that. 25 MR. PETER ROSENTHAL: No, he said, "at the
2561 hospital". 2 3 CONTINUED BY MR. PETER ROSENTHAL: 4 Q: But would you -- I'm extrapolating from 5 that, sir, that it appears that the same reasoning would lead 6 you to say you could arrest any First Nations person who was 7 anywhere near the park or the Army Camp on that night; is 8 that fair? 9 A: No, that's not fair. 10 Q: I see. So, these people were especially 11 because they transported the victim to hospital? 12 You needed at least that much for your 13 reasonable and probable grounds, sir? 14 A: Of course. 15 Q: I see. Now, sir, you indicated the 16 possibility that they may have been armed? 17 A: Correct. 18 Q: You learned shortly after they were 19 arrested that they were not armed, right? 20 A: Correct. 21 Q: And did you order them released then, 22 sir? 23 A: I was not involved in that part of the 24 investigation. 25 Q: But, you learned that they were unarmed
2571 shortly after they were apprehended; right? 2 A: I'm not sure at what point I learned that 3 because I was involved in numerous things -- 4 Q: I see. 5 A: -- in the hours afterwards. 6 Q: Didn't you learn early in the wee hours 7 that at least one of these people was the brother of Dudley 8 George, the victim? 9 A: I may have. 10 Q: Yes. And you -- didn't you learn that 11 the name Dudley George was the name of the person who had 12 been killed? 13 You learned that shortly after his death; is 14 that correct? 15 A: Through the night, yes. I learned that, 16 yes. 17 Q: Early in the wee hours of September 7th, 18 right? 19 A: Yes. 20 Q: And you knew something about Dudley 21 George? 22 A: I knew something about him? 23 Q: You knew his name prior to that occasion? 24 A: Oh yes. Yes. To be sure. 25 Q: And you knew his person?
2581 You knew him to say hello to? 2 A: I -- I knew who he was to see him. 3 Q: And you understood shortly after that, at 4 least, that his brother had been the driver of that car; did 5 you not, sir? 6 A: I'm not sure if I knew that he was the 7 driver, but I know there was a brother involved. 8 Q: And now, sir, you also ordered a number 9 of officers to attend at the hospital in order to offer 10 security against what you imagined might be some threat from 11 First Nations people against the hospital; isn't that true, 12 sir? 13 A: Yes, I provided -- I -- I suggested we 14 put some extra people there. 15 Q: Yes. And you sent a number of officers 16 there for that purpose, right? 17 A: Correct. 18 Q: But, you didn't send anybody to assist in 19 getting him to hospital, right? 20 Now, sir, we had evidence on April 27, 2005, 21 from a Mr. Robert Scott, and I'm going to read a portion of 22 his evidence which was beginning at page 276 of the 23 transcript of that date. 24 He was someone who was at the emergency room 25 on that evening, and he says:
2591 "At that point I looked to my left from 2 Emerg. and I see a Native female, probably 3 thirty (30) to forty (40) years old, long 4 dark brown/dark black hair. She was up 5 against the wall in a search position, with 6 the legs prone and the arms up on the wall. 7 I believe there was two (2) to three (3) 8 officers trying to detain her, and two (2) 9 to three (3) officers standing back. This 10 lady was actually quite frantic. I guess 11 you could say resisting arrest, but I would 12 think more so for the fact that I think she 13 was trying to get to who I now know was her 14 brother, Mr. Dudley George, in the back of 15 the Ambulance. I do remember her yelling, 16 [sorry, in the back of -- answer] in the 17 back of the white car. 18 Yes, continue. 19 And I do remember her yelling, my brother, 20 my brother." 21 Now, sir, did you understand that that was one 22 (1) of the things that was going on at the hospital that 23 evening? 24 A: I had no idea what was going on at the 25 hospital. As you know, I wasn't there.
2601 Q: Yes, but you directed a number of 2 officers to go there, right? 3 A: I didn't direct them. Some other 4 officers directed them, but they went to the hospital. 5 Q: I see. It wasn't your instruction that 6 officers should attend at the hospital, sir? 7 A: Well they were required to attend there, 8 because that's where the victim was going. 9 Q: No, but in addition to that, didn't you 10 instruct a number of officers to attend the hospital, as I 11 thought you said a few moments ago? 12 A: Oh, from the security point of view, 13 there was some discussion, we sent extra officers there, yes. 14 Q: And you did that, did you not, sir? You 15 decided that? 16 A: I'm not sure I decided. I may have been 17 involved in that discussion or decision, myself or Linton. 18 One (1) of us would have. 19 Q: With your indulgence, Mr. Commissioner. 20 21 (BRIEF PAUSE) 22 23 Q: If we could turn please to the scribe 24 notes, Exhibit P-426, at page 82 of the typed version, 25 Inquiry Document Number 1002419.
2611 COMMISSIONER SIDNEY LINDEN: What page again, 2 Mr. Rosenthal? 3 MR. PETER ROSENTHAL: Eighty-two (82) of our 4 notes, and -- 5 COMMISSIONER SIDNEY LINDEN: I'm on the same 6 page as you; eighty-two (82). 7 MR. PETER ROSENTHAL: I'll give you the -- 8 the time in a moment. 9 10 (BRIEF PAUSE) 11 12 CONTINUED BY MR. PETER ROSENTHAL: 13 Q: And at first -- I'll start perhaps a 14 little bit before where I intended to, at time 00:20 hours. 15 So, sir, that would be twenty (20) minutes after midnight; is 16 that correct? 17 A: Right. 18 Q: And the indication there is: 19 "Mark Wright reports Dudley is dead, and 20 two (2) other injured. Nicholas Cottrelle 21 is alive. Trevor Richardson's at the 22 hospital. Five (5) to six (6) crime guys 23 at the scene." 24 So, am I correct, sir, that you would have 25 learned at approximately 12:20, just after midnight, that
2621 Dudley George had passed away? 2 A: Correct. 3 Q: And then if we turn two (2) entries down 4 at 0:25 hours, Superintendent Parkin notifies us -- you and 5 Chief Coles: 6 "John Carson. We need extra security at 7 Strathroy Hospital, and we need press guy 8 also there." 9 Now, sir, did you not instruct, as written 10 there, we need extra security at Strathroy Hospital, sir? 11 A: Well, that's certainly my discussion with 12 Parkin obviously. 13 Q: Sir, did you -- you were the Incident 14 Commander. Did you order officers to go to Strathroy 15 Hospital, to provide extra security? 16 A: I couldn't tell you if I did it or Linton 17 did it; one (1) of us did it and it was done. 18 Q: Well, doesn't this suggest that you, at 19 least, suggested that it happened? 20 A: Well, in my discussion with Parkin, I 21 advised him that we need security at the hospital and it was 22 being looked after. 23 Q: You ordered extra security at Strathroy 24 Hospital; isn't that correct? 25 A: Correct.
2631 Q: And that resulted in a number of officers 2 attending at Strathroy Hospital; is that not correct? 3 A: Right. 4 Q: You were aware that they were going 5 there, weren't you? 6 A: Yes. 7 Q: And they were following your instruction, 8 were they not? 9 A: Sure. 10 Q: Yes. You're in command, as Incident 11 Commander, right? 12 A: Myself and Dale Linton. There was two 13 (2) of us there at that point in time, so it could have been 14 either of us. 15 Q: But, according to scribed notes, you were 16 the one (1) who said, Do this, right? 17 A: No. It doesn't say that. If you read 18 that, I am speaking to Superintendent Parkin as I have told 19 you -- 20 Q: I see. 21 A: -- and I'm explaining to Parkin what 22 we're doing. It doesn't mean that I gave a particular 23 direction, but I may have. 24 Q: Now, sir, we had some evidence from two 25 (2) of the doctors at Strathroy Hospital, and I'll read some
2641 excerpts from the evidence of Doctor Elizabeth Saettler of 2 April 27, 2005 at page 21 beginning about line 20: 3 "Question: But, we had evidence from Dr. 4 Marr that she was -- she specifically was 5 told the words to that effect by a police 6 officer, so she might be one (1) of the 7 sources of the information." 8 Sorry, this is in the middle, I'll get to it. 9 I should tell you, this was information that there were a lot 10 of officers in the hospital because of a possible threat to 11 security from First Nations people. 12 So, the question was: We had evidence from 13 Dr. Marr about that and then the answer by Dr. Saettler was: 14 "Yes. Information like that would spread 15 pretty quickly through out little hospital. 16 Question: Yes. You, yourself, were not 17 told that directly by a police officer? 18 Answer: No. 19 But you heard it from several people; is 20 that correct?" 21 Now, this is the presence of officers in the 22 hospital and one (1) issue was what they were saying to 23 people, but then also, she's questioned: 24 "Now, am I correct in inferring that that 25 led to a rather tense atmosphere in the
2651 hospital, that notion that you might be 2 attacked?" 3 And, Dr. Saettler answered: 4 "Yes. 5 Question: And that kind of tension does 6 not assist people in providing medical 7 care; is that fair to say? 8 Answer: No. In fact, as I recall later 9 in the day the CEO of the hospital 10 requested that police presence be reduced 11 or eliminated because, in fact, he felt it 12 was interfering with the functioning of the 13 hospital. 14 Question: I see. And, what happened as a 15 result of that request? 16 Answer: The police disappeared." 17 Now, that was evidence that you were not 18 present for, sir. 19 Did you become aware at any point between then 20 and right now that the presence of police at the hospital 21 had, at least in one (1) of the attending doctors' views, had 22 that affect? 23 A: I wasn't aware of that. 24 Q: Until the moment I read it to you? 25 A: I believe I may have read it in a
2661 transcript for this Inquiry. 2 Q: I see. And, in fact, there was no threat 3 to anybody at Strathroy Hospital by any First Nations person; 4 isn't that correct? 5 A: I don't believe any threats came to pass. 6 Q: None whatsoever, right? 7 A: No. 8 Q: Now, you -- if we could look, please, at 9 your handwritten notes, which is Exhibit P-410 and I'm 10 looking at page 60 of that. 11 I -- I don't believe you have the same 12 pagination, perhaps, but I'll give you another reference, 13 it's -- the top of the page is -- has a time 00:11. And the 14 next entry after that is Superintendent Parkin. 15 A: Yes. 16 Q: Do you have that page, sir? 17 A: Yes. 18 Q: So, the 00:11 would mean eleven (11) 19 minutes past midnight on -- very early in the day of 20 September 7; is that correct? 21 A: Correct. 22 Q: And, the notation there in part, I'll 23 skip the first couple of lines, reads, does it not: 24 "En route to hospital car they are in, 25 involved interview."
2671 Is that correct, sir? 2 A: Yes. 3 Q: So, are you recording information that 4 the car they are travelling in was somehow involved in the 5 incident; is that what you meant to be recording, sir? 6 A: I can't be sure exactly what my thoughts 7 were at that moment. 8 Q: And then, interviewed or is "interviewed" 9 or "interview"? 10 A: It appears to be "interview." 11 Q: "Interview." No past? 12 A: Correct. 13 Q: By that did you mean that you wanted 14 these people interviewed? 15 A: Well, I don't know if this is information 16 that was provided to me or if this was information I provided 17 to someone else. It may very well be that it's information 18 that was provided to me when I returned to the command 19 centre. 20 Q: And then you have a -- skipping a couple 21 of lines about the officers and shooting. You have a 22 notation "Press release C1." 23 What does that refer to, sir? 24 A: Oh I think it goes onto the next -- it's 25 CIB. That would be criminal investigation -- investigation.
2681 Q: The C1? 2 A: No. C1 - is -- the next line you see 3 CIB. I probably just started then wrote on the second line 4 for some reason. 5 Q: I see. Okay. So CIB is Criminal 6 Investigation Bureau, is the correct? 7 A: Right. 8 Q: And then -- and you write next to it, 9 Anthony O'Brien George. That was next to CIB was it, sir? 10 A: Well you'll see at the next line, 00:22 11 it says "Dudley George" with an arrow up. 12 Q: Yes. 13 A: Anthony O'Brien George. 14 Q: Oh, I see. So the -- but the way it 15 looks, but I may have been misreading it, sir, is that the 16 CIB and the Anthony O'Brien George are written on the same 17 line, roughly the same height and I thought you meant, but 18 perhaps I'm wrong, you wrote CIB Anthony O'Brien George and 19 then later on at 00:22, you said Dudley George is deceased 20 and then you had the arrow indicating that those were one and 21 the same person. Did I misread it or -- 22 A: No. I think that the arrow up so 23 Dudley's full name is Anthony O'Brien George. 24 Q: I see. So before -- you're suggesting 25 that as you made your notes that evening before 00:22
2691 occurred, the previous line just had CIB on it. Is that what 2 you're suggesting? 3 A: Right. Right. 4 Q: Okay. And then -- but in any event then, 5 you knew evidently at 00:22 that Dudley George was deceased, 6 right? 7 A: Correct. 8 Q: And then there is an entry, two (2) lines 9 from the bottom that is then partially crossed out. The 10 first three (3) of the four (4) words are crossed out. 11 And am I correct, sir, that the crossed out 12 words are "Harry Neil Watson"? 13 A: Right. 14 Q: And then the word that is not crossed out 15 is "George". 16 A: Correct. 17 Q: On -- on that line, is that correct, sir? 18 A: Yes. 19 Q: And sir, I'm suggesting to you that you 20 learned at about this time and that's what this is a 21 reflection of, that the person who had driven Dudley George 22 to the hospital was -- when the information came slightly and 23 correctly over the phone, you learned that it was Henry Neil 24 Watson George when in fact his full name is Perry Neil Watson 25 George.
2701 Is that a fair inference, sir? 2 A: I don't think so. I -- I don't know 3 where you get that from. 4 Q: Sir, well let me break that down, if I 5 may. 6 A: Yeah. 7 Q: In fact a person -- well commonly known 8 as Pierre George -- 9 A: Yes. 10 Q: -- has as his full name Perry Neil Watson 11 George, okay? 12 A: Okay. 13 Q: Just informing you of that fact. 14 A: Okay. 15 Q: And that person is the person who drove 16 his brother Dudley George to the hospital on the night in 17 question, okay? I'm telling you that as a fact too, sir, 18 okay? 19 A: Okay. Sure. 20 Q: Then I'm suggesting to you, sir, that 21 knowing that fact and seeing Harry Neil Watson George here 22 would suggest that at about this time, you learned that it 23 was a person slightly mis-named here who had driven Dudley 24 George to the hospital and had been placed under arrest. 25 Is that not a fair conclusion, sir?
2711 A: I -- I don't think so. I think what -- 2 what this is, you'll see the -- the notation around Dudley 3 George, unknown person injured and then Nicholas Cottrelle 4 lower back lacerations. 5 Then you'll see after Harry Neil Watson 6 scratched out Bernard Cecil below in poor condition, I think 7 somebody was apprising me of who the parties -- the injured 8 parties were, is what it appears to me. 9 Q: Sir, how could you possibly have gotten 10 the phrase, "Harry Neil Watson George," to write in your 11 notebook? 12 A: Well somebody gave me the name. I must 13 have thought that was the injured person. Crossed it out and 14 wrote in Bernard Cecil George in poor condition. 15 Q: I see. So someone gave you that name and 16 you maybe thought that that was the injured person? 17 A: Right. 18 Q: But knowing what we know now, we know 19 that Harry Neil Watson George, in fact, drove his brother, 20 Dudley, to the hospital that night; right? 21 A: That's my understanding. 22 Q: And so are you suggesting that some 23 officer mixed up the information, gave you the name Perry 24 which was misheard as, "Harry Neil Watson George," as the 25 injured person?
2721 A: Well what I'm -- what I'm suggesting to 2 you -- well, first of all, I didn't know what Perry's real 3 name was. So Perry and Harry, it really doesn't do anything 4 for me whatsoever. 5 Q: Right. 6 A: I obviously wrote down Harry Neil Watson 7 George. I don't know who gave me that information. I 8 stroked it out and obviously put, "Bernard Cecil poor 9 condition." 10 So obviously, somebody gave me Perry Neil 11 Watson's name and I took that to be referring to the injured 12 person and at some point scratched that out and changed it to 13 Bernard Cecil being in poor condition. 14 So somebody's provided me information that 15 changed who I believed was the injured party. 16 Q: Now -- your indulgence, Mr. Commissioner. 17 18 (BRIEF PAUSE) 19 20 Q: At any event, sir, you did find out 21 shortly after midnight that the persons who had driven Mr. 22 Dudley George to hospital had been arrested for attempted 23 murder; is that correct? 24 A: Correct. 25 Q: And you indicated a while ago when I was
2731 questioning you, that one of the concerns might have been 2 that they might have been armed; right? 3 A: Right. 4 Q: Now you learned, in fact, that upon being 5 arrested they were not armed; right? 6 A: Right. 7 Q: And they were taken into custody on the 8 charges of attempted murder; is that not correct? 9 A: It's my understanding, yes. 10 Q: And you understood that at the time in 11 the wee hours? 12 A: Right. 13 Q: And you came to learn shortly after that, 14 at least, that one of those persons was the brother of Dudley 15 George and another was the sister of Dudley George; is that 16 not correct? 17 A: I'm not sure when I learned there was a 18 brother and sister. 19 Q: Sometime in the course of the early 20 morning hours, two (2), three (3), four (4) hours from 21 midnight of September 7; is that not so? 22 A: I can't be sure of that. I -- I -- I'm 23 not sure of that at all. 24 Q: I see. Well, knowing what you know now, 25 sir, about the entire incident, do you agree that it was a
2741 terrible thing and a very unfortunate thing for your officers 2 to have arrested Pierre George and Carolyn George and J.T. 3 after they had finally made it to the hospital that night? 4 A: It's a matter they -- they really didn't 5 have any choice. 6 Q: "They didn't have any choice?" I see. 7 That's your evidence, "they didn't have any choice," sir; is 8 that correct? 9 A: Right. 10 Q: Now, sir, did you not know, as an 11 experienced police officer, that it's important when 12 someone's brought into an emergency room for any information 13 that can be had about that person's general health as well as 14 to what happened to them to be available to the doctors 15 treating that person; did you not know that, sir? 16 A: Sure. 17 Q: And why, sir, did you not then instruct 18 your officers that even if they were to ultimately place 19 these persons under arrest, they should first allow those 20 persons to give whatever information the doctors might have 21 found useful to the doctors? 22 A: Well, first of all, I didn't direct the 23 officers of how to conduct whatever investigation was 24 necessary at the hospital. Each and every Officer is a sworn 25 police officer and understands all the issues you've raised
2751 around emergency treatment, and they would have to conduct 2 themselves accordingly, and I'm sure that they would be able 3 to explain why they did or did not allow someone to provide 4 information. 5 Q: In retrospect do you think that was 6 something terrible, sir? 7 A: It was very unfortunate. 8 Q: Very unfortunate? 9 A: But knowing all the circumstances in 10 hindsight is -- is you know, is certainly a different story. 11 Q: Yes. But can you imagine, sir, a 12 situation where people are bringing their dying sibling to 13 the hospital and they finally get there and they're anxious 14 to put him into the hospital to the care of the doctors, and 15 instead they get arrested. 16 Would you agree, that is a terrible, terrible 17 thing to do to people? 18 A: It's an unfortunate circumstance. 19 Q: Would you not agree it's terrible to do 20 to innocent people who were not even in the Park at the time 21 of any shooting? 22 A: As I said, it's an unfortunate 23 circumstance. 24 Q: I see, and that's as far as you're 25 willing to go, even ten (10) years later, sir?
2761 A: Correct. 2 Q: I see. And did you do any 3 investigations, sir, as to the conduct of the officers who 4 placed them under arrest on that evening? 5 A: No, sir, I did not. 6 Q: Did you learn, sir, that Dudley George 7 was allowed to lay in the back of the car while the officers 8 concentrated on arresting his brother, sister and younger 9 companion, and that the officers made no attempt to try to 10 assist to get Dudley George into the emergency room. 11 Did you learn that, sir? 12 A: I didn't know that to be the case. 13 Q: Well I'm telling you that's the evidence 14 uncontradicted at this Hearing, sir? 15 A: Well that would be up to the officers to 16 give that evidence. 17 MR. MARK SANDLER: Suffice it to say that's 18 not the evidence. 19 COMMISSIONER SIDNEY LINDEN: That's fine, 20 carry on. 21 MR. PETER ROSENTHAL: Well, with respect, I 22 will read some of the evidence, and I'll put to you the 23 following, sir, and ask you -- 24 COMMISSIONER SIDNEY LINDEN: Yes, Mr. Millar? 25 MR. PETER ROSENTHAL; -- about this.
2771 MR. DERRY MILLAR: This -- this -- 2 COMMISSIONER SIDNEY LINDEN: We know what 3 the -- 4 MR. DERRY MILLAR: -- didn't have anything to 5 do with this. 6 COMMISSIONER SIDNEY LINDEN: He had nothing 7 to do with this incident. 8 MR. PETER ROSENTHAL: With respect, Mr. 9 Millar, and, Mr. Commissioner -- 10 COMMISSIONER SIDNEY LINDEN: Yes. 11 MR. PETER ROSENTHAL: -- he had to do, he was 12 the -- 13 COMMISSIONER SIDNEY LINDEN: Okay. 14 MR. PETER ROSENTHAL: -- Incident Commander, 15 he knew the -- the Officers under his command were going to 16 make this arrest -- 17 COMMISSIONER SIDNEY LINDEN: Yes -- 18 MR. PETER ROSENTHAL: -- he was informed -- 19 COMMISSIONER SIDNEY LINDEN: -- but that's as 20 far as he went. 21 MR. PETER ROSENTHAL: -- he was informed that 22 they were arrested, and in my respectful submission, he had 23 more responsibility than any other person for this. But 24 that's a matter for argument. 25 COMMISSIONER SIDNEY LINDEN: Well that's for
2781 argument. 2 MR. PETER ROSENTHAL: But in any event, it's 3 entirely appropriate to ask him about the circumstances -- 4 COMMISSIONER SIDNEY LINDEN: Okay. 5 MR. PETER ROSENTHAL: -- and as far as -- 6 COMMISSIONER SIDNEY LINDEN: And you have 7 asked him, you asked him if he thought it was terrible, he 8 said it was very unfortunate. 9 MR. PETER ROSENTHAL: Yes. 10 COMMISSIONER SIDNEY LINDEN: Three (3) times. 11 MR. PETER ROSENTHAL: Yes, and I was going 12 now, if I may, to read the -- the portion of -- of Mr. 13 Scott's testimony, that I actually was leading up to when I 14 got diverted in a different matter. So if I could now -- let 15 me -- 16 17 CONTINUED BY MR. PETER ROSENTHAL: 18 Q: So, sir, I mentioned to you earlier that 19 we had testimony from a person, Robert Scott, who's now a 20 police officer, I believe. And he testified in these 21 Proceedings on April 27th, 2005. And I read to you an 22 extract of his testimony on page 276. I'd now like to move 23 to page 278 of that transcript. Answer, about line 11: 24 "I don't remember seeing anyone around the 25 white vehicle. And everyone was to the
2791 left of me, concentrating on the lady who 2 this -- had up against the wall. After she 3 yelled my brother, my brother, I kind of 4 lost track, and more tunnel visioned on the 5 person in the back. Again, as a paramedic, 6 I'm there to assist the sick and ill, it's 7 not -- I'm not a police officer at that 8 point. So anyhow, I get in the back, I 9 step back, waiting for someone to tell me 10 to get away from the car." 11 The evidence was there were a number of Police 12 Officers around, sir, concentrating on arresting Carolyn and 13 Pierre: 14 "No one's saying anything to me at all, so 15 I back up, I'm not sure if I actually went 16 into the Emerg. or not, but I do remember 17 backing up. I go forward again. I open 18 the back door of the car up. 19 Q: Okay. 20 A: And I'm waiting for someone to give me 21 direction." 22 Now, sir, that's one (1) description by 23 someone who's now a police officer, at the time he's a 24 paramedic, as to the scene, and you've had other 25 descriptions, to the effect that your officers arrested
2801 Carolyn, Pierre and JT, and left Dudley George lying in the 2 back of the car. 3 Did you learn that prior to this occasion; 4 sir? 5 A: No. 6 Q: Would you agree, especially in light of 7 the evidence, that there were a number of officers there, 8 that that was entirely inappropriate for the officers to 9 leave Dudley George just lying in the back of the car, and 10 arrest those persons? 11 A: I wasn't present there, sir, and I'm not 12 in a position to argue what was appropriate or not 13 appropriate with the circumstances they faced at that very 14 moment. 15 If you can provide me with the information 16 that all the officers did and I have an opportunity to assess 17 it, that's a different story. But I can't speculate on what 18 they were facing at the moment. 19 Q: Now, sir, I suggest to you that it was 20 your responsibility as incident commander and if not your 21 responsibility it was someone in the OPP's responsibility to 22 do that investigation sometime in the last ten (10) years; 23 what's your response to that, sir? 24 A: There was an investigation into the -- 25 all of the circumstances and I don't -- I don't have an
2811 answer for you in regards to the circumstances at the 2 hospital. 3 Q: There was an investigation? 4 A: Are you -- are you saying like, is there 5 a public complaint as an investigation into the -- into the 6 conduct at the hospital; is that the question? 7 Q: I'm talking about the conduct at the 8 hospital of your officers, sir, with respect to the siblings 9 of Dudley George when they brought him to hospital? 10 A: I'm not aware of a -- an investigation 11 specific to that. 12 Q: Would you agree that the OPP should have 13 investigated that, sir? 14 A: I -- well, I have no information to 15 suggest there was a need for an investigation. 16 Q: I see. Now, they were charged with 17 attempted murder and you thought that was appropriate; right? 18 A: I don't believe they were charged. 19 Q: "You don't believe they were charged"? I 20 see. What is your understanding as to what happened to them, 21 sir? 22 A: It's my understanding they were released 23 the next day. 24 Q: "The next day"? Yes. And your 25 understanding is they were held overnight; is that correct?
2821 A: I -- I believe so. 2 Q: Yes. And on what basis were they held 3 overnight, sir, according to your understanding? 4 A: I don't have -- I don't have the 5 information as to the rationale why they were held overnight. 6 Q: But was it your understanding that they 7 were charged with something; sir? 8 A: I don't know, quite frankly. 9 Q: I see. So is it your understanding, sir, 10 that the OPP can hold people in custody overnight without 11 charging them, sir? 12 A: It's a pending investigation. There are 13 times you can hold people. 14 Q: I see. So it's your understanding that 15 it would have been appropriate, in those circumstances, is 16 it, sir, to have held these people overnight in custody 17 without charging them? 18 A: Possibly. 19 Q: "Possibly"? I see. And in retrospect, 20 with the benefit of hindsight, would it have been, sir? 21 A: Well, if you have all the information 22 available to you at the time it's easy to make decisions. 23 Q: I see. And -- but your answers in that 24 respect with respect to these people, sir, include the 25 knowledge that they drove Dudley George to the hospital; is
2831 that correct? 2 A: That's what I understand. 3 Q: Would your answers be the same with 4 respect to any First Nations person who might have been in 5 the park that night, for example. 6 COMMISSIONER SIDNEY LINDEN: I'm not sure 7 where we're going now, Mr. Rosenthal. 8 MR. MARK SANDLER: We've been down this 9 route-- 10 COMMISSIONER SIDNEY LINDEN: I'm not sure 11 where you're going now. 12 MR. PETER ROSENTHAL: What was his answer 13 then, sir? 14 COMMISSIONER SIDNEY LINDEN: I don't know. 15 MR. PETER ROSENTHAL: May I ask it to find 16 out? 17 COMMISSIONER SIDNEY LINDEN: What was the 18 question? 19 MR. PETER ROSENTHAL: Question was -- 20 COMMISSIONER SIDNEY LINDEN: Any person -- 21 any First Nations person -- 22 23 CONTINUED BY MR. PETER ROSENTHAL: 24 Q: -- any person who had been in the -- in 25 the Ipperwash Park at the time of the shooting, let's say,
2841 would it be your position, sir, that you would have had the 2 authority -- well, not reasonable and probable grounds, 3 because we're not talking about arrest now, you would have 4 had the authority to take that person, apprehend that person 5 and hold him or her in custody overnight while you're 6 investigating? 7 A: Not necessarily. 8 Q: "Not necessarily". Not based on them 9 being in the Park. 10 COMMISSIONER SIDNEY LINDEN: Well, I think 11 you've used up as much on that point as your can. I'd like 12 you to move on. You're touching nerves. You're not -- 13 MR. PETER ROSENTHAL: May I ask the following 14 to clarify with respect to Pierre and Carolyn, sir? 15 COMMISSIONER SIDNEY LINDEN: Well, I -- 16 MR. PETER ROSENTHAL: May I ask, with 17 respect, if there were any other elements of what he knew 18 about then that would justify holding them overnight without 19 charges? 20 COMMISSIONER SIDNEY LINDEN: I think you've 21 already asked that. I think he's already answered that, I 22 think. 23 MR. PETER ROSENTHAL: Well, I don't believe 24 he said any other elements, but I'd like that to be clear for 25 the record.
2851 COMMISSIONER SIDNEY LINDEN: Perhaps it was 2 depending on how you asked it before. I think you've already 3 asked that. 4 MR. PETER ROSENTHAL: And I don't recall the 5 answer then, sir. 6 COMMISSIONER SIDNEY LINDEN: What's the 7 question again? 8 MR. PETER ROSENTHAL: Whether -- 9 COMMISSIONER SIDNEY LINDEN: He's confused. 10 I'm confused. 11 MR. PETER ROSENTHAL: I don't believe that I 12 asked that question, sir. But my question -- 13 COMMISSIONER SIDNEY LINDEN: Were there any 14 other elements? 15 MR. PETER ROSENTHAL: -- sir, with respect to 16 holding, he just indicated it might have been appropriate to 17 hold Pierre and Carolyn overnight on the circumstances 18 without charge and I was asking him, is that based solely on 19 the fact that they drove Dudley George to the hospital or was 20 there other information that he had at his disposal at that 21 time what would have justified it? 22 COMMISSIONER SIDNEY LINDEN: I think he gave 23 an answer earlier that they were -- he thought they were 24 involved in the incident. 25 MR. PETER ROSENTHAL: Well, that's --
2861 COMMISSIONER SIDNEY LINDEN: But that's what 2 he said earlier. 3 MR. PETER ROSENTHAL: I don't believe he said 4 -- but I would like to ask him what -- any basis for that 5 then, sir, if he had. But I believe he said, just based on 6 them taking him to the hospital he thought they might be 7 involved in the incident. 8 I don't believe he had any other indications, 9 sir. But I -- I don't understand. This is cross- 10 examination, sir. 11 COMMISSIONER SIDNEY LINDEN: I understand. 12 But there's a limit to what you can do and how far you can go 13 and how many times you can ask the same question and how long 14 you -- so ask the question and we'll see where it goes. 15 MR. PETER ROSENTHAL: Yes, thank you, sir. 16 Thank you. 17 18 CONTINUED BY MR. PETER ROSENTHAL: 19 Q: Now, sir, is it not the case that -- that 20 you -- whether you answer it or not, is it not the case that 21 all -- the only justification that you were aware of on that 22 evening as a possible reason to hold Pierre and Carolyn over 23 night, was the fact that they had taken their brother to the 24 hospital and that, in your view, meant that they might have 25 been involved?
2871 A: Correct. 2 Q: Correct? 3 A: Correct. 4 Q: Thank you. 5 COMMISSIONER SIDNEY LINDEN: Not it's ten 6 after 5:00. It's ten after 5:00 now and I was going to stop 7 at 5:00 unless there was a chance for you to finish. Now -- 8 MR. PETER ROSENTHAL: I'm sorry, sir, it's 9 not possible to finish today unless -- I would have -- I 10 would guess a couple of more hours, sir. 11 COMMISSIONER SIDNEY LINDEN: A couple more 12 hours? 13 MR. PETER ROSENTHAL: Yes, sir. 14 COMMISSIONER SIDNEY LINDEN: I don't think 15 anybody -- when you first made your estimate, you estimated 16 five (5), six (6) hours and you've used all of the last day 17 and -- 18 MR. PETER ROSENTHAL: Yes. I will not û- 19 itÆs merely a follow up as your counsel would be, sir -- 20 COMMISSIONER SIDNEY LINDEN: û- all of today. 21 MR. PETER ROSENTHAL: -- and with respect, 22 various things have happened in the course of my examination 23 including new documents being introduced and a fair number of 24 objections and so on. But also, as I explained to you at the 25 outset, Mr. Klippenstein approached things somewhat
2881 differently from what I had anticipated. 2 COMMISSIONER SIDNEY LINDEN: No. Your 3 questions have been appropriate for the most part, I'm not 4 questioning your cross-examination, just its length. 5 MR. PETER ROSENTHAL: Yes. 6 COMMISSIONER SIDNEY LINDEN: I mean it's -- 7 MR. PETER ROSENTHAL: Yes, sir and I'm 8 indicating to you, sir, I will be -- I promise you I'm being 9 exact with this as I feel I can be. But it will require, I 10 would think, another two (2) hours or so. But I'm happy to 11 do it now if the witness -- 12 COMMISSIONER SIDNEY LINDEN: I don't think 13 anybody -- I don't think anybody would be happy including the 14 witness. I think the witness has had enough and I think I'll 15 just -- 16 MR. PETER ROSENTHAL: I'm in your hands, sir. 17 COMMISSIONER SIDNEY LINDEN: So I think or 18 even though we're not sitting tomorrow, if you can't finish 19 within the next fifteen (15), twenty (20) minutes or three 20 quarters of an hour, then I think we should go over until 21 Wednesday. 22 MR. PETER ROSENTHAL: I'm in your hands, sir. 23 COMMISSIONER SIDNEY LINDEN: So we will 24 adjourn now, we're not sitting tomorrow, we'll reconvene on 25 Wednesday at nine o'clock and you estimate another couple of
2891 hours and you'll be finished -- I'm still -- I'm hopeful that 2 because of the length of cross-examinations of everybody, 3 that some of the cross-examinations to come might not be as 4 long as they were originally anticipated. But I guess we'll 5 have to wait and see. 6 MR. PETER ROSENTHAL: Thank you, Mr. 7 Commissioner. I -- I assure you I am trying to be as 8 expeditious as I can be from my perspective, sir. 9 COMMISSIONER SIDNEY LINDEN: Thank you very 10 much, Mr. Rosenthal. 11 12 (WITNESS RETIRES) 13 14 THE REGISTRAR: This Public Inquiry is 15 adjourned until Wednesday, June 22nd at 9:00 a.m. 16 17 --- Upon adjourning at 5:15 p.m. 18 19 Certified Correct, 20 21 22 __________________ 23 Carol Geehan, Ms. 24 25