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 29th, 2005 25
21 Appearances 2 Derry Millar ) Commission Counsel 3 Susan Vella ) 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 ) (np) 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 ) Aazhoodena (Army Camp) 17 William Henderson ) Kettle Point & Stony 18 Jonathon George ) Point First Nation 19 Colleen Johnson ) (np) 20 Cameron Neil ) (np) 21 22 Kim Twohig ) (np) Government of Ontario 23 Walter Myrka ) 24 Susan Freeborn ) (np) 25 Michelle Pong ) (np)
31 APPEARANCES (cont'd) 2 Janet Clermont ) Municipality of 3 David Nash ) (np) Lambton Shores 4 5 Peter Downard ) The Honourable Michael 6 Bill Hourigan ) (np) Harris 7 Jennifer McAleer ) 8 9 Ian Smith ) (np) Robert Runciman 10 Alice Mrozek ) (np) 11 Harvey Stosberg ) (np) Charles Harnick 12 Jacqueline Horvat ) (np) 13 Douglas Sulman, Q.C. ) Marcel Beaubien 14 Trevor Hinnegan )(np) 15 16 Mark Sandler ) Ontario Provincial 17 Andrea Tuck-Jackson ) Ontario Provincial Police 18 Leslie Kaufman ) (np) 19 20 Ian Roland ) (np) Ontario Provincial 21 Karen Jones ) (np) Police Association & 22 Debra Newell ) K. Deane 23 Ian McGilp ) 24 Annie Leeks ) (np) 25 Jennifer Gleitman ) (np)
41 APPEARANCES (cont'd) 2 3 Julian Falconer ) Aboriginal Legal 4 Brian Eyolfson ) Services of Toronto 5 Julian Roy ) (np) 6 Clem Nabigon ) (np) 7 Adriel Weaver ) (np) Student-at-Law 8 9 Al J.C. O'Marra ) Office of the Chief 10 Robert Ash, Q.C. ) (np) Coroner 11 12 William Horton ) (np) Chiefs of Ontario 13 Matthew Horner ) 14 Kathleen Lickers ) (np) 15 16 Mark Frederick ) (np) Christopher Hodgson 17 Craig Mills ) (np) 18 Megan Mackey ) 19 Erin Tully ) (np) 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. Julian Falconer 8 7 Cross-Examination by Mr. Mark Sandler 190 8 9 Certificate of Transcript 340 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
61 EXHIBITS 2 No. Description Page No. 3 P-481 Document Number 2000899- 4 "Secret - Media Plan - Operation 5 Maple " 1993, 7 Pages. 79 6 P-482 Document Number 2000588 Executive 7 Summary Written by C.J.A. Coles Chief 8 Superintendent, Western Region, 9 OPP Sept/95. 80 10 P-483 Document Number 2000577 OPP Ipperwash 11 Inspector G.C. Connolley's Report. 146 12 P-484 Document Number 1005301 Judge 13 H. Fraser's Reasons for Judgment 14 Against Kenneth Deane April 28, 15 1997 at Sarnia, Ontario. 170 16 P-485 Transcript of Track 21 Number 307 17 21:25 Sept.06/95 18 P-486 Transcript of Track 22 Number 308 19 21:26 Sept. 06/95 20 P-487 Transcript of Track 23 Number 308 21 21:28 Sept.06/95 22 P-488 Transcript of Track 24 Number 314 23 21:32 Sept 06/95 24 25
71 EXHIBITS(cont'd) 2 No. Description Page No. 3 P-489 Transcript of Track 25 Number 326 4 21:39 Sept 06/95 5 P-490 Transcript of Track 26 Number 333 6 21:41 Sept 06/95 7 P-491 Transcript of Track 27 Number 335 8 21:42 Sept 06/95 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
81 --- Upon commencing at 9:03 a.m. 2 3 THE REGISTRAR: This Public Inquiry is 4 now in session. The Honourable Mr. Justice Linden 5 presiding. 6 COMMISSIONER SIDNEY LINDEN: Good 7 morning. Good morning everybody. Good morning, Mr. 8 Falconer. 9 MR. JULIAN FALCONER: Good morning, Mr. 10 Commissioner. 11 THE WITNESS: Good morning, sir. 12 COMMISSIONER SIDNEY LINDEN: Yes, sir. 13 14 JOHN FREDERICK CARSON, Resumed. 15 16 CONTINUED CROSS-EXAMINATION BY MR. JULIAN FALCONER: 17 Q: Good morning, Deputy Carson. 18 A: Good morning. 19 Q: Deputy Carson, yesterday afternoon we 20 had some discussions, perhaps you recall them as very 21 lengthy discussions, about your steps that you took on 22 September 4th, 1995, in respect of removing your men. 23 And I think it was all men, was it not, from the Park 24 during the initial occupation at Ipperwash? 25 A: Correct.
91 Q: Was it all men? 2 A: I couldn't tell you if it was or 3 wasn't. 4 Q: All right. And in removing the 5 officers at the time there was some discussion as to -- 6 in fact whether or not you had any other options, and we 7 went over that, and the issue of whether there was 8 disappointment in losing containment; do you recall that 9 discussion? 10 A: Yes. 11 Q: All right. I'm not going back over 12 everything. I -- I just simply wanted to give us a 13 starting point, that's all. 14 Now in terms of the position you took in 15 examination-in-chief with Mr. Millar, it's fair to say 16 that you made clear to -- to Mr. Millar, during his 17 examination-in-chief of you, that there was simply no 18 practical way that you could have maintained a complete 19 officer presence at Ipperwash Park. 20 Such that you could have, from a logistics 21 point of view, fully patrolled the Park at all times; did 22 you say that to him? 23 A: Are you talking about -- like, at the 24 time of the initial entry on September the 4th? 25 Q: Yes.
101 A: Well, I -- I could have put -- I -- I 2 could have put a hundred (100) officers in there. I mean 3 I -- I simply had -- I had that capability. 4 Q: Out of fairness to you, I'll read to 5 you, and it's a one paragrapher. It's from page 12 of 6 your examination-in-chief on May 16th, because I want to 7 be fair to you on the context. You said, in answer to 8 why it wasn't a viable option to -- to maintain a strong 9 presence at the Park. 10 "A: Well it comes down to simple 11 logistics that while we would -- we 12 could patrol it and maintain an officer 13 presence that probably would deter an 14 entry into the Park, or an attempt to 15 occupy the Park, at some point in time 16 we have to withdraw the resources. 17 I mean, once the Park is closed, we 18 have one hundred and nine (109) acres 19 of property that is literally pine 20 trees, and at what point in time do we 21 determine it's no longer necessary to 22 protect a hundred and nine (109) acres 23 of pine trees?" 24 Do -- do you recall being asked the 25 question and giving that answer?
111 A: Yes. 2 Q: And do you stand by that answer? 3 A: Sure. 4 Q: So, the bottom line is, from your 5 perspective, logistically speaking, it wasn't going to be 6 possible to fully contain a hundred and nine (109) acres 7 of pine trees that way? 8 A: It made no sense. 9 Q: Right, fair enough. And then again, 10 when you were explaining the situation to Mr. Beaubien, 11 you made the same point to Mr. Beaubien, is that right? 12 A: Right. 13 Q: And I'm at page 93 of your 14 examination-in-chief on May 19, and again this is to 15 provide you context and I don't -- I won't read at 16 length, Mr. Commissioner, I just want to be fair to the 17 Witness. 18 You said, quote: 19 "I also stated that, you know, we had a 20 lot of good people working. We had two 21 (2) ERT teams on the ground, and the 22 officers were doing a good job. Linton 23 suggested to Mr. Beaubien that we 24 certainly appreciated his efforts that 25 -- and Beaubien indicated he had been
121 talking to Chief Chris Coles and 2 suggested that the MNR contact Coles so 3 that they're aware of the situation, 4 which we certainly had been doing 5 anyway. 6 In that discussion around that I 7 pointed out to Mr. Beaubien, you know, 8 that once the Park's clear, what 9 happens after that? And his concern 10 was about the residents, and I was 11 trying to point out to him that once 12 the Park is cleared we have a -- a 13 provincial park that's closed for the 14 season. Basically, it's a hundred and 15 nine (109) acres of pine trees." 16 Do you remember giving that evidence? 17 A: Yes. 18 Q: And do you change that -- is that -- 19 A: No, no, no. 20 Q: And so basically, you explained to 21 Mr. Beaubien the same thing you told Mr. Millar 22 operationally why you couldn't contain the Park the whole 23 time? 24 A: Correct. 25 Q: And -- and by the way, I notice in
131 that discussion that Mr. Beaubien appears to also have 2 been having separate communications with Chief Coles? 3 A: I believe he did, yes. 4 Q: Yes. The MLA was speaking to you 5 operationally, to Chief Coles operationally, yes? 6 A: Yes. 7 Q: All right. And the bottom line 8 though, you repeated -- you repeated to -- 9 COMMISSIONER SIDNEY LINDEN: Excuse me, 10 Mr. Falconer, before you get too far into it, I want to 11 stop. You have a tendency when you ask a question to 12 answer it. I think it would be preferable if you let the 13 Witness answer it. 14 You asked a question, and then you say 15 "yes". Well, I presume that's an answer that you may 16 expect the Witness may give. 17 MR. JULIAN FALCONER: I apologize. 18 COMMISSIONER SIDNEY LINDEN: Yeah, and 19 perhaps it's just a manner or figure of speech, but it's 20 a little unnerving and a little distracting is, perhaps, 21 a better word. 22 MR. JULIAN FALCONER: Or it might just be 23 a trick. 24 COMMISSIONER SIDNEY LINDEN: Thank you. 25 MR. JULIAN FALCONER: And -- and I will -
141 - I will cease doing it, because I didn't mean to do it. 2 COMMISSIONER SIDNEY LINDEN: Thank you. 3 MR. DERRY MILLAR: One (1) issue, My 4 Friend rolled up in a question the -- something about 5 "operational" and -- which I don't think is actually a 6 fair question. 7 COMMISSIONER SIDNEY LINDEN: Oh, I'm 8 sorry. 9 MR. JULIAN FALCONER: Well, let's back 10 up. I -- I do want to say this, Mr. Commissioner, when I 11 ask the Witness a question, it's to the -- for the 12 Witness to agree or disagree with the suggestion, as long 13 as I'm fair about it. 14 Now, the suggestion was pure and simple. 15 There were operational discussions between Beaubien and 16 Coles, right; and the Witness said "yes". 17 Now, Mr. Millar is thinking to himself, 18 well, where's the evidence to that? Where the answer is, 19 the evidence comes from this Witness, and that's -- it's 20 not up to me -- 21 COMMISSIONER SIDNEY LINDEN: Yes. 22 MR. JULIAN FALCONER: -- to prove to the 23 Witness -- first I can prove the proposition, and then 24 get him to agree with it, it's up to me to put a question 25 to him and him to answer it.
151 So, that's a different issue, and so, with 2 respect, when I ask a question, especially the point that 3 Mr. Millar makes that it's an untilled area is exactly 4 why I'm there. 5 So, with respect, I will try to 6 accommodate your concern, Mr. Commissioner, but I ask 7 questions that often Mr. Millar won't find in the scribe 8 notes, that's the point. 9 COMMISSIONER SIDNEY LINDEN: That's fine. 10 11 CONTINUED BY MR. JULIAN FALCONER: 12 Q: Thank you. So, going back now, in 13 terms of the discussions between Mr. Beaubien and Mr. -- 14 or Chief Coles, you basically understood, at the time, 15 that Mr. Beaubien was free to consult with Chief Coles, 16 isn't that right? 17 A: Correct. 18 Q: And in terms of the message being 19 sent, it was consistent. We can't contain a hundred and 20 nine (109) acres of pine trees? 21 A: Correct. 22 Q: And -- 23 A: Well, we -- we can. 24 Q: Yes. 25 A: We -- we can, but it's a -- it's a
161 logistical issue. I mean, the reality is, to -- to your 2 point, is if we put enough officers in there, we can 3 protect the Park with whatever officers it takes, and we 4 have -- well, we just draw more officers in. 5 My point was, at that time we had "X" 6 amount of officers, and to avoid anyone getting hurt, and 7 with the number we had, the prudent thing was to withdraw 8 the officers. 9 Q: In the -- there's a number of other 10 things I gleaned from this, and that is that you didn't, 11 in these answers, ever focus on the fact that as a matter 12 of timing, your best intelligence was that protecting 13 that hundred and nine (109) acres of pine trees over 14 Labour Day weekend was actually a more efficient 15 allocation of resources because that was your best 16 intelligence. 17 You never addressed the timing of the 18 usage of those resources, did you? 19 A: I'm not sure anyone -- we ever spoke 20 to that issue. 21 Q: Because in fairness to the facts, one 22 of the reasons you were a subject of criticism from the 23 Premier down, I'm going to respectfully suggest to you to 24 the Superintendent, and I say I'm suggesting to you, you 25 were the subject of criticism, I know you say you were
171 not. 2 COMMISSIONER SIDNEY LINDEN: He hasn't 3 agreed with that sir. No, that's fine, carry on. 4 5 CONTINUED BY MR. JULIAN FALCONER: 6 Q: I'm suggesting to you that one of the 7 reasons you were the subject of criticism was not only 8 because of the logistics concerns you had, but was your 9 failure to apply the logistics at the time that you knew 10 that the occupiers were likely to move into the Park 11 Labour Day weekend; true or false? 12 A: I don't agree. 13 Q: All right. Another thing obviously I 14 glean from this, because you keep repeating it, there's a 15 hundred and nine ( 109) acres of pine trees. It sounds 16 like, obviously, there were a lot of pine trees at 17 Ipperwash. 18 A: that's a phrase we had used at the 19 office when we discussed the whole issue of preparing a 20 plan, et cetera, with Chief Coles. 21 Q: And the barricade that was discussed 22 by the officers, the first thing the officers noted was 23 that there was a lot of felling of pine trees to make 24 barricades in the roads, right? 25 A: Sure.
181 Q: Yeah. And you pointed out, I think, 2 in your evidence, if I recall correctly, that sight lines 3 for the helicopters was problematic in view of the pine 4 trees; yes? 5 A: Possibly, yeah, sure. 6 Q: And that was your recollection? 7 A: Whatever. 8 Q: Well when you say "whatever", with 9 respect, I understand some of this sounds like innocuous 10 facts that don't matter that much, and that's fair. 11 Lawyers often do that. 12 A: Well whether -- whether it's a maple 13 tree or a pine tree, there's both trees there, people 14 like to -- 15 Q: But you never refer to maple trees 16 anywhere here. You keep talking about pine trees. 17 A: Yeah. I just -- sure. 18 Q: Right. 19 A: That was the terminology, sure. 20 Q: And you -- and you have a lot of 21 experience in the outdoors, the various assignments that 22 Mr. -- Mr. Henderson referred to in -- in the history of 23 your work, it -- it's a situation where it's fair to say 24 that you can tell the difference between a pine and a 25 maple.
191 A: I think most people can. 2 Q: Sure. You can even tell the 3 difference between a red pine and a white pine probably; 4 right? 5 A: Sure. 6 Q: Right. And so when you say a hundred 7 and nine (109) acres of pine trees, it's because it's 8 your impression that predominantly that area, is 9 predominantly a pine tree area. 10 A: It's just a general term. 11 Q: Going back to my question. When you 12 say a hundred and nine (109) acres of pine trees it's 13 because predominantly the area is a pine tree area? 14 A: Sure. 15 Q: Yeah. So isn't that interesting that 16 you called the report and your operation Project Maple; 17 that's interesting, yes? 18 A: If you say so. 19 Q: Well the reason I ask is because 20 there is somewhat of a coincidence. See Project Maple 21 happens to use the same name that the Department of 22 National Defence used to remove the occupiers, they 23 called it Operation Maple, didn't they? 24 A: They did. 25 Q: Yeah. And Project Maple, it was
201 created pretty well right after Operation Maple, right? 2 A: No. The Military's Operation Maple 3 was developed in 1993. 4 Q: Project Maple was developed in 1995? 5 A: Correct. 6 Q: Now, the Department of National 7 Defence has been the subject of somewhat mild criticism 8 by a number of OPP senior officers; is that fair? 9 A: In some respects. 10 Q: And it was basically criticism 11 directed at the Department of National Defence's inaction 12 in relation to the issues placed on your lap? 13 A: Fair enough. 14 Q: And from the point of view of the 15 Department of National Defence, they had various 16 potential contingency plans, one of the being Operation 17 Maple, yes? 18 COMMISSIONER SIDNEY LINDEN: See, you did 19 it again. You ask the question and then you answer it. 20 Didn't you just say -- 21 MR. JULIAN FALCONER: When I say yes, 22 it's to ask the witness to agree with me. 23 COMMISSIONER SIDNEY LINDEN: Yes. 24 MR. JULIAN FALCONER: If the witness 25 chooses not to, he'll tell me no.
211 COMMISSIONER SIDNEY LINDEN: No, but I'm 2 just saying, when you do that you're answering the 3 question that you've just asked, and I think you should 4 just let the witness answer it. 5 MR. JULIAN FALCONER: Okay. I'll -- I'll 6 -- try to remove it -- 7 COMMISSIONER SIDNEY LINDEN: Ask the 8 question -- no, that is fair. 9 MR. JULIAN FALCONER: -- but in actual 10 fact taking away the -- 11 COMMISSIONER SIDNEY LINDEN: That's fine. 12 MR. JULIAN FALCONER: -- I didn't mean to 13 be cute before, I now understand. 14 COMMISSIONER SIDNEY LINDEN: I don't want 15 to interrupt your flow. 16 MR. JULIAN FALCONER: No, no, that's fair 17 and I'll try to... 18 19 CONTINUED BY MR. JULIAN FALCONER: 20 Q: Project Maple, right, was one of the 21 contingency plans that was used by the Department of 22 National Defence to remove the occupiers, it was one of 23 the plans they created? 24 A: Quite frankly I'm not sure if that's 25 accurate or not. My perception was their whole approach
221 to the occupation of the firing ranges, initially, in '93 2 was Operation Maple. So, I -- you know, whether they -- 3 they had a specific plan in that regard, or it was a 4 general plan, I -- I'm really not sure what their 5 logistical approach was. 6 Q: You were the Incident Commander from 7 1993 in relation to the occupation, yes? 8 A: Yes, sir. 9 Q: And you're telling me that you were 10 not familiar with the logistics of what position the DND 11 might take in terms of removing the occupiers from the 12 occupied territory? 13 A: I don't know -- when -- when you 14 refer to Operation Maple, I couldn't tell you, with any 15 certainty, the context that the Military applies to their 16 Operation Maple; whether it is some specific plan, or if 17 it's a broad plan, generally speaking. 18 Q: But regardless, the Military had in 19 place, in Project Maple, and the idea behind it was a 20 contingency plan to remove occupiers, right? 21 A: Correct. 22 Q: Right. And I called it Project 23 Maple, but it's actually Operation Maple? 24 A: Right. 25 Q: Yours is Project Maple?
231 A: Correct. 2 Q: Theirs is Operation Maple? 3 A: That's what I said. 4 Q: And the maple is just a coincidence 5 that it's the same thing? 6 A: Yeah, there's just -- there's no 7 particular reason. 8 Q: Right. The maple's because of the 9 proliferation of pine trees in the area, right? Sir? 10 A: I'm not going to argue with you. 11 Q: Well, I don't want you to argue with 12 me. I just want you to answer my questions. The reason 13 I asked the question, I'll be quite blunt with you about 14 this, is that on May 12th, at page 216 of your 15 examination in-chief, when Mr. Millar asked you the open 16 ended question: 17 "Q: And it was assigned later in the 18 week and can you tell us why the name 19 Project Maple was chosen?" 20 Your answer: 21 "Actually it was a pretty simple 22 concept, it had to do with all the 23 maple trees in the area." 24 Were you asked that question; did you give 25 that answer?
241 A: Yes, I did. 2 Q: And you'd agree with me that you 3 never referred to pine trees? 4 A: No. 5 Q: You'd agree with me, in the three (3) 6 portions of evidence where you talk about trees 7 repeatedly, it's all about a hundred and nine (109) acres 8 of pine trees? 9 A: Correct. 10 Q: Now, what we do know, though, is that 11 the Military had something called Operation Maple? 12 A: Yes. 13 Q: And that the Military never invoked 14 that operation, did they? 15 A: No. 16 Q: You had repeated communications with 17 the Military between 1993 and 1995 on what they needed to 18 do if they wanted the occupiers removed, yes? 19 A: Correct. 20 Q: And Mr. Commissioner, I now see the 21 problem. 22 COMMISSIONER SIDNEY LINDEN: Yes. 23 MR. JULIAN FALCONER: When I ask the 24 question, "yes?", I will try not to, but all I'm asking 25 the witness to do is to agree with me.
251 COMMISSIONER SIDNEY LINDEN: I know that. 2 I'm just saying the way you do it is distracting. If you 3 just ask the question and left it there, I think it would 4 be helpful. I can see you're trying to -- 5 MR. JULIAN FALCONER: I'm trying. 6 COMMISSIONER SIDNEY LINDEN: -- change. 7 8 CONTINUED BY MR. JULIAN FALCONER: 9 Q: With respect to the Operation Maple 10 that the Military was involved with, their removal of the 11 occupiers would ultimately have to lead to the OPP 12 assisting them with ultimately taking the individuals 13 into custody; is that fair? 14 A: Yes. 15 Q: So you're not going to tell Mr. 16 Commissioner that you had no awareness of Operation 17 Maple, are you? 18 A: I didn't say that. 19 Q: All right. 20 A: I said what I didn't know was the 21 context in which the Military apply Operation Maple, 22 whether that is their overall operation around their 23 approach to the occupation, or whether it's a particular 24 project plan in regards to the occupation. 25 Q: Could I ask that document number
261 2000899 be placed on the screen? It's a document 2 entitled, "Secret", then the next sub-title is "Media 3 Plan - Operation Maple". 4 And while I'm waiting for poor Mr. Millar 5 to help me on this, because I didn't give him a warning, 6 to be fair to him, and I apologize to him for that. 7 I appreciate the help, Mr. Millar. Wow, 8 that was fast. 9 I really didn't tell him. 10 11 CONTINUED BY MR. JULIAN FALCONER: 12 Q: You see the document that's up there? 13 A: Yes. 14 Q: It's called Operation Maple. 15 A: Yes. 16 Q: So they had Operation Maple, you had 17 Project Maple, yes? 18 A: Yes. 19 Q: And in terms of their Operation 20 Maple, it starts at paragraph 1. Can you direct your 21 attention to that, paragraph 1? 22 "The media plan for the eviction of the 23 Stoney Point --" 24 COMMISSIONER SIDNEY LINDEN: Excuse me. 25 MR. MARK SANDLER: Excuse me just a
271 moment. 2 COMMISSIONER SIDNEY LINDEN: Why are you 3 reading? I see that -- 4 MR. MARK SANDLER: Is this a document 5 that -- that you've given notice to us that you're going 6 to be introducing? 7 MR. JULIAN FALCONER: Well, I'd be happy 8 if My Friend wants to discuss this, but I can simply make 9 sure that the witness has a copy and we get on with it. 10 MR. MARK SANDLER: No, no, I just want to 11 know whether it's a document that you've given notice of. 12 MR. JULIAN FALCONER: This is a document 13 in the database. It was provided to me by your Counsel, 14 Mr. Commissioner -- 15 COMMISSIONER SIDNEY LINDEN: I know. 16 MR. JULIAN FALCONER: -- yesterday 17 afternoon as a result of discussions. Frankly, the first 18 time I had a chance to read this document was late last 19 night. When I came here this morning, I'm depending on 20 the answers by the Witness, I didn't know where it was 21 going. But that's the history of it, and I'm -- I'm 22 happy if My Friend wants to take a break, have the 23 Witness read it. It's not going to take that much, but 24 I'm happy to do whatever he wants. 25 MR. MARK SANDLER: I -- I didn't --
281 COMMISSIONER SIDNEY LINDEN: You just... 2 MR. MARK SANDLER: That's fine. I just 3 want the Witness to read the document because he hasn't 4 been given an opportunity to; that's all. 5 MR. JULIAN FALCONER: That's fair. 6 COMMISSIONER SIDNEY LINDEN: That's fine. 7 MR. JULIAN FALCONER: That's very fair. 8 COMMISSIONER SIDNEY LINDEN: We have some 9 rules that say you're supposed to do this in advance, but 10 if you didn't see it or get a chance then -- do you want 11 to take some time, Deputy, and have a look at it? 12 THE WITNESS: Doesn't matter. 13 COMMISSIONER SIDNEY LINDEN: It's up to 14 you. No, it's up to you. 15 THE WITNESS: I think that's fine. 16 COMMISSIONER SIDNEY LINDEN: You feel 17 you're all right? Let's carry on. 18 19 CONTINUED BY MR. JULIAN FALCONER: 20 Q: In terms of this document, it's 21 entitled, "secret" at the top of every page, do you see 22 that? 23 A: Yes. 24 Q: It's a document issued by the 25 Department of National Defence, do you see that?
291 A: Yes. 2 Q: And it's a document entitled "Media 3 Plan, Operation Maple" yes? 4 A: Right. 5 Q: And under it at the first paragraph, 6 paragraph 1: 7 "The media plan for the eviction of the 8 Stoney Point group is based upon the 9 operational objective, communication 10 objective, and key result areas 11 expressed in the broader communication 12 plan for Operational (sic) Maple. They 13 are: 14 a) Operational Objective. Success is 15 the removal of the Stoney Point group 16 using the least amount of force 17 required, with minimal adverse reaction 18 from local community leaders and 19 municipal, regional, provincial, and 20 national politicians. 21 b) Communication Objectives. Success 22 is that removal of the trespassers is 23 perceived to be executed with fair and 24 reasonable process. KRA's are: (1). 25 Professionalism in the army
301 demonstrated by continuous, firm, clear 2 communication and action without 3 compromising the security of the 4 operation." 5 Now, is it fair to say that while you may 6 not have known of this document -- well, let me ask you, 7 did you know about this document? 8 A: I don't believe so. 9 Q: All right. You knew that this was a 10 contingency plan that the Military had in place? 11 A: Sure. 12 Q: It's fair to say, basically, it was 13 in the can, yes? 14 A: Oh, I knew they had plans, sure. 15 Q: And you knew they had an Operation 16 Maple in the can, yes? 17 A: Oh, yes. 18 Q: Right. So, when you formulated your 19 plan to remove the occupiers, you called it "Project 20 Maple" right? 21 A: Yes, I did. 22 Q: In terms of the plan that the 23 Military had, it would have involved the OPP assisting in 24 providing support on that plan? 25 A: Correct.
311 Q: And a fairly consistent criticism of 2 the Military is that whatever plans they may have had in 3 the can, they simply never took action? 4 A: That's true. 5 Q: But you were prepared to take action 6 with Project Maple, yes? 7 A: We were prepared to have the MNR get 8 an injunction and all that, sure. 9 Q: What the Military wasn't prepared to 10 do, you were prepared to do, true? 11 A: No, that's -- that's got nothing to 12 do with the Military. 13 Q: You were aware, given that it was 14 your Incident Command, that over a period of time the 15 occupation of the Military Base involved the removal of 16 various Military signs at the Base; you knew about that? 17 A: Right. 18 Q: You knew that it involved, or you 19 learned, did you not, that it involved the removal of the 20 Canadian Flag? 21 A: I wasn't aware of that particular 22 issue, but... 23 Q: Would it surprise you that the 24 Canadian Flag was taken down? 25 A: No.
321 Q: No. It would be something you would 2 expect as a normal response, taking over the lands, yes? 3 A: Well, it's possible. 4 Q: Yeah. And so, it may even be 5 understandable why Operation Maple may be all about 6 restoring the Canadian Flag, and putting it back up, 7 right? 8 A: I disagree. 9 Q: Right. Because you had a role in 10 deciding what -- why the Military called it Operation 11 Maple, did you? 12 A: I had no role in their plan 13 whatsoever. 14 Q: All right. So, how can you disagree 15 with my suggestion to you that the Military may well have 16 used this name because it related to restoring the 17 Canadian flag? 18 A: Oh, I have no idea. 19 Q: You got confused. You thought I was 20 talking about Project Maple? 21 A: Yes. 22 Q: Right. Because it almost sounds the 23 same, doesn't it; yes? 24 A: I disagree. 25 Q: The restoration of the Canadian Flag
331 on Federal property would, just speculatively, between 2 you and I, would inform why they might call it Operation 3 Maple, would you agree? 4 A: I have no idea what their idea was. 5 Q: So they never told you at any point 6 between 1993 and 1995 that the reason they called it 7 Operation Maple was because of the proliferation of maple 8 trees in the area? 9 A: I have no idea why they called it 10 Operation Maple. 11 Q: It was your reason for calling it 12 Project Maple, the proliferation of maple trees in the 13 area? 14 A: Correct. 15 Q: Okay, thank you. 16 17 (BRIEF PAUSE) 18 19 Q: Were there canine units involved in 20 marching on the occupiers on September 6th, 1995? 21 A: There was canine in support of the 22 Crowd Management Team. 23 Q: And when we talk about canine 24 support, could you break that down in layman's parlance? 25 What -- what was involved? A person, a dog; what -- what
341 are talking about? 2 A: A canine unit is a police officer 3 trained to handle a -- a dog. 4 Q: And? 5 A: It includes the dog. 6 Q: Thank you. So the -- and -- and 7 you're being technical. It's just that if -- assume -- 8 take out the lawyers, take out the police officers, take 9 out the Judge, for the persons listening to this, what 10 was the sight of the canine unit, what -- what would the 11 occupiers have seen coming down that road? 12 A: The -- I believe the way it worked 13 was the -- the canine followed behind the Crowd 14 Management Team at some distance. 15 Q: And who was in the canine unit, 16 including man and beast? 17 A: The officers names? 18 Q: Just the persons, how many persons, 19 how many dogs? 20 A: There -- there was one (1), there may 21 have been two (2), but I -- I know there was one (1) for 22 sure. 23 Q: One (1)? 24 A: One (1) unit, which was the dog and 25 the officer.
351 Q: Okay. So there might have been one 2 (1) officer and one (1) dog, or two (2) officers, two (2) 3 dogs? 4 A: I -- I'm sure there was one (1), but 5 there's possibly could have been two (2). 6 Q: Fair enough. Next there was the 7 Tactical and Rescue Unit, snipers, yes? 8 A: Correct. 9 Q: And I was confused yesterday because 10 the statements referred to two (2) teams, and I mistook 11 that for two (2) TRU teams, but in fact it's two (2) 12 teams within one (1) Tactical and Rescue Unit, is that 13 fair? 14 A: Yes, we -- we refer to that as 15 elements. 16 Q: All right. And in each element, how 17 many snipers? 18 A: Elements are usually made up of two 19 (2) officers, but it could be a four (4) person element, 20 depending on the need. 21 Q: And if there were two (2) elements, 22 hence Mr. Millar's correction yesterday, of between six 23 (6) and eight (8) snipers? 24 MR. DERRY MILLAR: No, no, no. I didn't 25 say that.
361 MR. JULIAN FALCONER: Oh, all right. 2 MR. DERRY MILLAR: What I said -- 3 COMMISSIONER SIDNEY LINDEN: Yes? 4 MR. DERRY MILLAR: The TRU team -- 5 COMMISSIONER SIDNEY LINDEN: Yes. 6 MR. DERRY MILLAR: -- was between six (6) 7 and eight (8). 8 MR. JULIAN FALCONER: I see, I can 9 correct that. 10 MR. DERRY MILLAR: The TRU team is 11 involved of observers and -- and rifle team or snipers. 12 COMMISSIONER SIDNEY LINDEN: And this has 13 been gone over, I'm pretty sure. 14 MR. JULIAN FALCONER: Yes, I -- 15 COMMISSIONER SIDNEY LINDEN: I'm pretty 16 sure this is -- 17 MR. JULIAN FALCONER: -- understand. 18 COMMISSIONER SIDNEY LINDEN: Yes. 19 20 CONTINUED BY MR. JULIAN FALCONER: 21 Q: And in terms of the CMU team, they 22 would march down the middle of the road, and the snipers 23 would be on the side, correct? 24 A: They would be invisibly deployed. 25 Q: On the sides?
371 A: In all likelihood forward -- forward 2 and/or beside. 3 Q: And then the canine behind? 4 A: Correct. 5 Q: Any other officers marching or 6 approaching the site? Any others? 7 A: No. No, that would -- that would be 8 it, other than a prisoner van would be at some distance 9 behind. 10 Q: So there would be a prisoner van 11 following them? 12 A: It would be a distance back, 13 available for call up if it was required. 14 Q: But it would be following behind? 15 A: Probably a significant distance. Not 16 likely in sight. 17 Q: Any other things following behind? 18 A: No, not that I can think of. 19 Q: Now, this show is a show -- to some 20 extent is a show of force, yes? 21 A: Correct. 22 Q: How many times in your career, prior 23 to September 6th, 1995, had you marshalled such a show of 24 force? 25 A: I hadn't.
381 Q: This would be the first time you 2 deployed a unit that way? 3 A: Right. 4 COMMISSIONER SIDNEY LINDEN: That 5 question's been asked and answered. I'm just reminding 6 you, I know that you probably know that. 7 MR. JULIAN FALCONER: And I appreciate 8 the reminder. 9 COMMISSIONER SIDNEY LINDEN: That's fine. 10 MR. JULIAN FALCONER: And -- and I did 11 know that. Thank you. And -- but it's to go onto 12 something, Mr. Commissioner. 13 COMMISSIONER SIDNEY LINDEN: That's fine. 14 15 CONTINUED BY MR. JULIAN FALCONER: 16 Q: And did you ever deploy such a show 17 of force in a practice setting? 18 A: No. 19 Q: So in addition to this being the 20 first actual operational deployment, this was the first 21 deployment period ever for you? 22 A: Correct. 23 Q: Had you ever been literally Second in 24 Command, the second person in charge of such a 25 deployment, ever in your history?
391 A: No. 2 Q: So this was, for you personally, a 3 big step? 4 A: It was the first time I've used that 5 -- that Crowd Management Team. 6 Q: This was for you personally, a big 7 step? 8 A: I wouldn't say that. 9 Q: It wasn't a big step? 10 A: No. 11 Q: Now, when you deploy thirty (30) to 12 forty (40) police officers in riot regalia, and you 13 deploy -- are we at four (4) snipers; is that fair? Or 14 are we at two (2) snipers? What do you think? 15 A: Most TRU teams, and I think the -- 16 the London team, at the time, there -- I believe there 17 are two (2) trained snipers as -- as you refer to them, 18 or observer officers. They work with a -- a second 19 officer, but as far as trained snipers, there's two (2) 20 per team. 21 Q: Am -- am I right then, we're talking 22 four (4) snipers? 23 A: We're talking about two (2) snipers, 24 four (4) officers. 25 Q: All right. And in terms of deploying
401 snipers, that many officers, a canine unit, this wasn't a 2 big step? 3 A: I've been involved in other events 4 where we had to deploy a large number of officers before. 5 Q: But you'd never commandeered it? 6 A: I'm sorry? 7 Q: You'd never commandeered such a 8 deployment. 9 A: What -- what's your definition of 10 commandeer? 11 Q: Well, you were the Incident 12 Commander. 13 A: I had never deployed a Crowd 14 Management Team. 15 Q: You'd never deployed this show of 16 force, right? 17 A: I've deployed TRU teams on several 18 occasions. 19 Q: You've never deployed this size of 20 force before, true? 21 A: I had never deployed a Crowd 22 Management Team. 23 Q: And you did it in circumstances where 24 -- when you went to dinner at 7:00 p.m. on -- was it 7:00 25 p.m. about then you went to dinner?
411 A: Roughly. 2 Q: Right. When you went to dinner at 3 7:00 p.m. on September 6th, 1995, what was not in your 4 head, what was not in your head was in the next two (2) 5 hours I'll be deploying a Crowd Management Unit with 6 snipers; that was not in your head, was it? 7 A: Correct. 8 Q: So you went to dinner at seven 9 o'clock, and then, if I'm right, you returned at 8:30, 10 and one hour and twenty-six (26) minutes later, teams 11 were forming up in the MNR Sandy Parking Lot, right? 12 A: Correct. 13 COMMISSIONER SIDNEY LINDEN: Mr. 14 Falconer, this area has been mined in great detail. 15 Unless you have something new, I'd appreciate it if you 16 would move on. 17 MR. JULIAN FALCONER: I do. 18 COMMISSIONER SIDNEY LINDEN: If you have 19 something new that's fine. 20 MR. JULIAN FALCONER: All right. 21 22 CONTINUED BY MR. JULIAN FALCONER: 23 Q: All right. And the hour and twenty- 24 six (26) minutes comes from your time of arrival at 8:29, 25 to the time that these teams gathered in the parking
421 area, being the overload area, right? 2 A: Correct. 3 Q: They -- they gather at 9:55, an hour 4 and twenty-six (26) minutes after you get to the Command 5 Post, they are gathering in the MNR overload area, right? 6 A: Yes. 7 Q: So in and hour and twenty-six (26) 8 minutes you did something you'd never done before, right? 9 A: Correct. 10 Q: And you'd agree with me that all of 11 this, right, all of this was stoppable at your command, 12 yes? 13 A: Yes. 14 Q: And you'd agree with me that while 15 you had that responsibility to stop it at your command, 16 you had a numerous other responsibilities that you were 17 carrying at the same time, yes? 18 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 19 Sandler? 20 MR. MARK SANDLER: Mr. Commissioner, My 21 Friend keeps saying he's going to new territory. I -- I 22 remember these -- 23 COMMISSIONER SIDNEY LINDEN: He's -- he's 24 going to new -- I haven't heard -- 25 MR. MARK SANDLER: -- that he's going to
431 new territory. 2 COMMISSIONER SIDNEY LINDEN: I haven't 3 heard -- I haven't heard anything new yet either, and I'm 4 waiting, but I'm not going to wait much longer. Yes, I 5 haven't heard anything new. All of these questions, more 6 or less, have been asked and answered by other counsel. 7 Now, I would like you to move on unless you've got 8 something new. 9 MR. JULIAN FALCONER: Mr. Commissioner, I 10 had explained there is going to be something new. I've 11 been in this area for no more than five (5) minutes. 12 COMMISSIONER SIDNEY LINDEN: Well, so far 13 you haven't brought out anything new. 14 MR. JULIAN FALCONER: No, I understand 15 that. But five (5) minutes -- 16 COMMISSIONER SIDNEY LINDEN: Okay. 17 MR. JULIAN FALCONER: -- is not a lot of 18 time to -- 19 COMMISSIONER SIDNEY LINDEN: Well, we'll 20 give you a couple more. Carry on. 21 MR. JULIAN FALCONER: Thank you. Of 22 course some of those minutes have now been spent -- I 23 keep explaining to everybody that I'm about to move on -- 24 COMMISSIONER SIDNEY LINDEN: Right. 25 MR. JULIAN FALCONER: -- but it's very --
441 it's very difficult. I don't think that this comes down 2 to -- but I -- I tried to till new area -- 3 COMMISSIONER SIDNEY LINDEN: Yes, I 4 understand. 5 MR. JULIAN FALCONER: -- and that's my 6 job. 7 COMMISSIONER SIDNEY LINDEN: I 8 understand. 9 MR. JULIAN FALCONER: But I am the last 10 counsel in a long line. 11 COMMISSIONER SIDNEY LINDEN: Which makes 12 it difficult for you to find new areas, I understand. 13 MR. JULIAN FALCONER: Well, I'm not 14 looking for them, they exist. 15 COMMISSIONER SIDNEY LINDEN: They exist. 16 MR. JULIAN FALCONER: But when I jump 17 into the new area without any connectivity at all to the 18 facts, then all I do is create confusion, so I have to 19 ask, with respect -- 20 COMMISSIONER SIDNEY LINDEN: You have to 21 lead into it. 22 MR. JULIAN FALCONER: -- that you bear 23 with me while I get there. 24 COMMISSIONER SIDNEY LINDEN: I 25 understand, and I'm trying to do that, but I would like
451 you to get to the new area fairly quickly. 2 MR. JULIAN FALCONER: I'm trying, but -- 3 COMMISSIONER SIDNEY LINDEN: Let's move 4 on. 5 MR. JULIAN FALCONER: -- less than five 6 (5) minutes isn't a lot of time. 7 COMMISSIONER SIDNEY LINDEN: Let's move 8 on. 9 10 CONTINUED BY MR. JULIAN FALCONER: 11 Q: Do you recall my last question? 12 A: If you'd repeat it I'd appreciate it. 13 Q: No problem. You were wearing a 14 number of different hats. You were doing a lot of 15 different things while you had that hour and twenty-six 16 (26) minutes of ability or responsibility to put on the 17 brakes, right; you were doing other things? 18 A: There -- there was a lot of activity, 19 yes. 20 Q: In fact, in that particular time 21 frame, that hour and twenty-six (26) minutes, you 22 described to Mr. Klippenstein that you found the Command 23 Centre, as you put it, "in a state of chaos", right? 24 A: Correct. It was... 25 Q: And in finding it in a state of
461 chaos, one (1) of your responsibilities would have been 2 to take the chaos and reorganize it, right? 3 A: Correct. 4 Q: That was one (1) of the hats you wore 5 at the time, yes? 6 A: Yes, it was. 7 Q: Another hat you wore at the time, and 8 I -- I want to go over with you in -- in some detail the 9 various responsibilities you carried, because I'm going 10 to respectfully suggest to you, sir, you had an almost 11 impossible job to perform. 12 And I'm going to be respectfully 13 suggesting to the Commissioner that there's different 14 considerations that, perhaps, ought to apply to an 15 Incident Commander in this scenario, and this is where I 16 respectfully suggest I am going into new areas, Mr. 17 Commissioner -- 18 COMMISSIONER SIDNEY LINDEN: That's fine. 19 MR. JULIAN FALCONER: -- and I'm flagging 20 my cross, and I'm very bitter about it, but that's life. 21 COMMISSIONER SIDNEY LINDEN: But that's - 22 -where you're going now is helpful. 23 24 CONTINUED BY MR. JULIAN FALCONER: 25 Q: Thank you. And so, when I talk about
471 the many hats you wore, it's fair to say that you were 2 all along still the staff sergeant of the Forest 3 Detachment, right? 4 A: No. 5 Q: Oh, I'm sorry, the Inspector? 6 A: No. 7 Q: Or did you -- all removed? You were 8 longer involved? 9 A: The -- the detachment operations had 10 been moved to Grand Bend, and Staff Sergeant Bouwman was 11 in command of the -- 12 Q: All right. 13 A: -- local detachment operation. 14 Q: In addition, though, you -- when you 15 arrived at the scene on -- at 8:29, you arrived at the 16 scene in circumstances where you continued to carry the 17 responsibility for what, I believe Counsel for Mr. 18 Beaubien called "Standard Community Liaison", that was 19 part of your function as Incident Commander? 20 A: Correct. 21 Q: You carried the brief of Community 22 Liaison with Chief Bressette, yes? 23 A: Yes. Yes, I did. 24 Q: You carried the brief of Community 25 Liaison with Mr. Beaubien?
481 A: Yes. 2 Q: You carried the brief of Community 3 Liaison with Rosemary Ur, the Federal MP, yes? 4 A: Technically. I had no contact with 5 her during that period. 6 Q: You carried the brief of liaison with 7 the Mayor? 8 A: Yes. 9 Q: His name, Mr. Thomas, is that right? 10 A: Correct. 11 Q: You carried the brief of Community 12 Liaison with other township officials? 13 A: Yes. 14 Q: You carried the brief of liaison with 15 local property owners? 16 A: Correct. 17 Q: In addition to that, you carried the 18 brief of liaison with MNR officials? 19 A: Yes. 20 Q: You carried the brief of liaison with 21 the Department of National Defence? 22 A: Yes. 23 Q: In addition to those things, you were 24 personally involved, and routinely carried the brief for 25 media relations?
491 A: Correct. 2 Q: In addition to those things, you were 3 also responsible to keep your superiors apprised? 4 A: Yes. 5 Q: In fact, you and Superintendent 6 Parkin set up a schedule for you to make call-ins? 7 A: Right. 8 Q: In addition to those things, you had 9 to also run all those people at the site, at the time, 10 right? 11 A: Correct. 12 Q: That's a lot of balls in the air, 13 yes? 14 A: That's an Incident Commander's job. 15 Q: Right, but -- and that was your job? 16 A: Sure. 17 Q: And you'd agree with me that was a 18 lot of balls in the air? 19 A: It is. 20 Q: And when you told -- when you told 21 Mr. Millar that the reason you weren't able to get back 22 to Cindy Elder, the negotiator who called you; you now 23 the one who had -- 24 A: Yes, I -- 25 Q: -- experience at Gustafson Lake?
501 A: Yes, I understand. 2 Q: Right. When you -- when you told Mr. 3 Millar you didn't get back to her, you pointed out, very 4 clearly, it was because you were really busy? 5 A: Correct. 6 Q: And it was because of all the balls 7 in the air? 8 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 9 Sandler? 10 MR. MARK SANDLER: I'm afraid that's a 11 little bit of a misleading question because during that 12 time period there's no suggestion -- if he wants to put 13 it -- there's no suggestion that he spoke to any of the 14 people that he's describing with the exception of the 15 media people. 16 I mean, all the politicians he described, 17 the DND people he described... I'm just afraid that's a 18 little bit of a rolled-up question that has the potential 19 of misleading -- 20 COMMISSIONER SIDNEY LINDEN: Well, he 21 had -- 22 MR. MARK SANDLER: He can clarify who he 23 was dealing with at that period of time. 24 COMMISSIONER SIDNEY LINDEN: He hasn't 25 suggested that he spoke to all of them, he's had -- there
511 was an expression you were using, carrying the brief? 2 You -- 3 MR. JULIAN FALCONER: Yes, the hats he 4 wore. 5 COMMISSIONER SIDNEY LINDEN: What you 6 mean is had ultimate responsibility for? 7 MR. JULIAN FALCONER: That's right. 8 COMMISSIONER SIDNEY LINDEN: That's what 9 you mean. 10 MR. JULIAN FALCONER: All of those hats. 11 COMMISSIONER SIDNEY LINDEN: But had the 12 responsibility for. 13 MR. JULIAN FALCONER: That's right. 14 COMMISSIONER SIDNEY LINDEN: You're not 15 suggesting that he talked to all those people? 16 MR. JULIAN FALCONER: In the hour and 17 twenty-six (26) minutes? 18 COMMISSIONER SIDNEY LINDEN: Right. 19 MR. JULIAN FALCONER: No. 20 COMMISSIONER SIDNEY LINDEN: That's fine. 21 22 CONTINUED BY MR. JULIAN FALCONER: 23 Q: No. I'm -- I'm -- I am envisaging a 24 very, very busy man. Is that fair? 25 A: Yes.
521 Q: I -- in addition to the things we've 2 gone over, you also took personal responsibility for 3 procuring equipment such as the Armoured Personnel 4 Vehicles? 5 A: I -- yes, I was looking after that. 6 Q: You put significant amount of time 7 into -- was it Ford or GM? 8 A: General Motors. 9 Q: You put significant amount of time 10 into having contacts with General Motors about borrowing 11 their Armoured Personnel Vehicle. 12 A: Right. 13 Q: You put time into communications 14 relating to getting your drivers trained to drive their 15 vehicles? 16 A: Correct. 17 Q: By the way, you did ultimately get a 18 vehicle, right? 19 A: Post September 6. 20 Q: And then the drivers got into an 21 accident? 22 A: Correct. 23 Q: The vehicles you obtained took, best 24 -- best I can tell from all the telephone calls, we're 25 into four (4), five (5), six (6), seven (7) calls?
531 A: Probably in that neighbourhood. 2 Q: You also were involved in monitoring 3 Mark Wright's ability to get helicopters? 4 A: Yeah, he was working on that, yes. 5 Q: Equipment procurement was a big 6 responsibility? 7 A: Sure. 8 Q: Officer safety was in your mind? 9 A: Of -- of course. 10 Q: You had all those hats when you 11 arrived at 8:29 p.m. at the Detachment Operation Command, 12 yes? 13 A: Sure. 14 Q: You had all those hats, and you had 15 to have them in your head in terms of your various 16 responsibilities. I'm not said you did anything, but 17 they were in you head, yes? 18 A: Sure. 19 Q: Because there were different people 20 you might have to liaise over different reasons for 21 marshalling this unexpected show of force, yes? 22 A: That's fair enough. 23 Q: Now, Mr. Klippenstein went over with 24 you -- he went over with you how three (3) major 25 decisions had already been made by the time you arrived
541 at 8:29 p.m., do you remember those questions he asked 2 you? 3 A: He asked me several questions about 4 that, yes. 5 Q: And you answered, and you answered 6 "technically, I ordered CMU", that's what you said, you 7 used the word "technically", do you remember saying that? 8 A: Right, right. 9 Q: Now Mr. Klippenstein didn't ask you 10 about that word, "technically", but I'm going to. 11 You'd agree with me that the reason you 12 used the word "technically" was because, really, between 13 the actions of Mark Wright in getting the men to -- to 14 come back from their shift, that is to not -- to not go 15 home, and the actions of Linton in calling out the TRU 16 team, and the actions of Korosec in getting out Lacroix, 17 well, you could say technically you've called out CMU. 18 In fact, realistically, or in reality, 19 non-technically, other people had done it, fair enough; 20 that's why you used the word "technically"? 21 A: No. 22 Q: Oh, all right. Why did you use the 23 word "technically"? 24 A: The -- the officers had been 25 marshalled. When I came back and had the discussion with
551 Inspector Linton and we came to the decision, ultimately 2 mine, I -- I directed the CMU be formed. 3 So, technically it's my decision. I 4 believe the issue was that Mark Wright had held the -- 5 the members over, and they were there, but to actually 6 deploy them was -- was my direction. 7 Q: You came back to a scene, you were 8 away, right? And you came back to a scene where, rather 9 than push the green light to have people go forward, 10 really what it would have been involved to stop it, was 11 to put the brakes on, right? 12 Something was in motion, and your role, 13 your only role would have been to stop it, not start it; 14 isn't that true? 15 A: No. 16 Q: TRU team was driving down the road 17 and you got on the phone to get them to stop, right? 18 A: Correct. 19 Q: You didn't make them start driving? 20 A: No, I didn't. I didn't call them 21 out. 22 Q: You didn't get those gun trucks out 23 in the road that might have panicked people, right? 24 A: Correct. 25 Q: And you still don't know to this day
561 whether those gun trucks were seen by the community, 2 right? 3 A: Well, actually, I believe there's 4 notes to the effect that the gun trucks didn't -- that 5 they -- they come up in unmarked vehicles, actually, I -- 6 I believe is going to be the evidence. 7 Q: They turned back, got unmarked 8 vehicles, and came back? 9 A: Right. 10 Q: Okay. So you don't know where the 11 gun trucks turned back, and you don't know who saw them? 12 MR. DERRY MILLAR: Well, we do know that 13 and that came out; it was at Northville. 14 15 CONTINUED BY MR. JULIAN FALCONER: 16 Q: And you don't know who saw them at 17 Northville? 18 A: Correct. 19 Q: Now, you'd agree with me that you 20 were worried about the communications between Gustafson 21 Lake and Ipperwash Park in terms of the aboriginal 22 communities, right? 23 A: Sure. 24 Q: So, the communications between 25 Northville and Ipperwash is a fair shorter distance,
571 isn't it? 2 A: It is. 3 Q: Right. This -- the fact that gun 4 trucks were in the communities, and visible was a concern 5 to you? 6 A: Yes. I -- I made that clear. 7 Q: Now, in addition to that -- in 8 addition to that hat that you carried, and all those 9 responsibilities that you carried, you were now being 10 called upon to tell your Second in Command, the guy that 11 you trusted so much, Mark Wright -- 12 A: Correct. 13 Q: -- that you were going to put the 14 breaks on, right; that would have been your 15 responsibility to tell him that? 16 A: In regards to which? 17 Q: Mark Wright's quote in is telephone 18 call to you was, "Don't you say we go get those fucking 19 guys?" That was his -- that was a quote, right? 20 A: Yes. We've spoken about that. 21 Q: Your responsibility, basically, the 22 sum total of it would have been if you were to put the 23 breaks on was, No Mark, we don't go get these fucking 24 guys, right; that would have been your responsibility if 25 you had to put the breaks on?
581 A: No, I disagree. 2 Q: All right. And your responsibility 3 would have been, with respect to Dale Linton, not only to 4 tell him to have TRU show up now in unmarked cars, it 5 would be to tell him to have TRU go away, right; that 6 would have been your responsibility if you were to put 7 the breaks on? 8 A: I don't agree with -- with that 9 scenario. 10 Q: Your responsibility would also have 11 been to tell Lacroix that he was no longer needed, and 12 that ERT was to stand down, right? 13 A: I disagree. 14 Q: You would have had to stop the train 15 that had already left the station, isn't that true? 16 A: If I felt it was not necessary, I 17 would have -- have not deployed whatever resource. I 18 have no difficulty whatsoever not using any particular 19 resource. Because Dale Linton had called them out, I did 20 not feel compelled to continue; it was as a result of 21 coming back. 22 The discussion I had with -- with Mark 23 Wright on the telephone, I asked him about Dale Linton's 24 concern, and it was as a result of that that Dale Linton 25 called me back, and we had some discussion, and then I
591 returned to the Command Post, had further discussion with 2 Dale Linton, and the decision was made to deploy the 3 Crowd Management Unit. 4 Dale Linton could have deployed a Crowd 5 Management Unit without me, if -- if I had not been 6 consulted. I came back. 7 Q: In your chain of events -- I'm 8 confused. You called -- is it correct that you called 9 the Command Post on an unrelated matter and talked to 10 Mark Wright, isn't -- isn't that what happened? 11 A: I believe I was paged. I -- I called 12 into the Command Post as a result of a page. 13 Q: On an unrelated matter? 14 A: No, I believe Mark Wright paged me. 15 Q: On this? 16 A: I believe that's -- that's the 17 evidence, yes. 18 MR. DERRY MILLAR: We've got that 19 telephone call. 20 COMMISSIONER SIDNEY LINDEN: Yes, yes. 21 MR. JULIAN FALCONER: Yes, we do. 22 There's a reason -- 23 COMMISSIONER SIDNEY LINDEN: It's -- 24 MR. JULIAN FALCONER: -- for my question. 25 I -- I really -- I need some patience because otherwise
601 it does get a lot longer. I -- I very much am alive to 2 your Counsel's request that I make sure I'm in new areas 3 and that's what I'm doing. 4 COMMISSIONER SIDNEY LINDEN: Yes. 5 MR. JULIAN FALCONER: Mr. Wright was 6 interviewed -- 7 COMMISSIONER SIDNEY LINDEN: When you're 8 not familiar with the evidence or mis-state it, I 9 appreciate Mr. Millar's assistance. 10 MR. JULIAN FALCONER: That's -- so do I. 11 COMMISSIONER SIDNEY LINDEN: That's fine. 12 MR. JULIAN FALCONER: But I haven't mis- 13 stated it, and I am familiar with it, with respect. 14 COMMISSIONER SIDNEY LINDEN: Well, okay. 15 MR. JULIAN FALCONER: I'm about to show 16 you why, Mr. Commissioner. 17 COMMISSIONER SIDNEY LINDEN: Okay. Carry 18 on. 19 20 CONTINUED BY MR. JULIAN FALCONER: 21 Q: SIU statement given by Mark Wright 22 dated September 8th, 1995 page 1: 23 "Shortly -- shortly thereafter, 24 Inspector -- Acting Superintendent 25 Carson called the Command Post on an
611 unrelated matter and I advised him of 2 the situation." 3 That's page 1 of Mark Wright's SIU 4 statement. According to Mark Wright, and this is the 5 exact contextual timing, I can have it turned up; it's 6 page 15 of the Wright statement, second-to-last 7 paragraph. The paragraph that proceeds it is a 8 description of a conversation between Mark Wright and 9 Linton over what had taken place. Immediately after that 10 Mark Wright says: 11 "Shortly -- shortly thereafter 12 Inspector -- Acting Superintendent 13 Carson called the Command Post on an 14 unrelated matter, and I advised him of 15 the situation. At this time I was 16 aware that Inspector Linton had 17 activated the TRU team [et cetera]." 18 This is page 15 from the SIU statement of 19 Mark Wright. 20 Now, Mark Wright says you called on an 21 unrelated matter and he spoke to you, is that what 22 happened? 23 A: I believe I was paged, and I called 24 into the Command Centre. I did not call in to the 25 Command Centre on an unrelated matter that I can recall.
621 Q: Mark Wright's confused? 2 COMMISSIONER SIDNEY LINDEN: Well Mark 3 Wright hasn't testified, so that's anticipated evidence. 4 MR. JULIAN FALCONER: Fair enough. 5 6 CONTINUED BY MR. JULIAN FALCONER: 7 Q: Mark Wright is mistaken when he says 8 that in his statement? 9 A: Possibly. 10 Q: Okay. In any event you were faced 11 with the scenario that in an hour and twenty-six (26) 12 minutes you would have had to put on the brakes in 13 circumstances where Mark Wright in that telephone call 14 had made clear to you that his view was daylight was 15 wasting, right? 16 A: Well, that's a fair observation. 17 Q: And in putting on the brakes, it 18 would have been a mere two (2) days, two (2) days after, 19 as you put it, you were run out of the Park, correct? 20 A: Yes. 21 Q: Now you recall, you and I were 22 discussing previously, that is yesterday, what can affect 23 leadership style from a -- a more passive approach to a 24 more aggressive approach. Remember we went through the 25 various indicia of what in your experience could affect a
631 human being's leadership style? 2 A: Correct. 3 Q: And the first one we -- we talked 4 about was misinformation, do you remember that? 5 A: Yes. 6 Q: Then you raised actually with me 7 first, I made a number of suggestions of areas that you 8 agreed with, but one that you raised with me was the 9 influence of those around the leader, yes? 10 A: Sure. 11 Q: And you recall that it was your 12 evidence that you felt that that was something that could 13 certainly turn a more passive person, perhaps a dove, 14 into a more aggressive person, perhaps a hawk; is that 15 fair? 16 A: Right, that's your analogy. 17 Q: Right. And -- and you know, and 18 understand that the language of dove and hawk is -- is a 19 form of Military colloquialism, correct? 20 A: Correct. 21 Q: And the notion of turning a dove into 22 a hawk, one of the things you talked to me about was that 23 outside persons can cause that. I'm saying people, I 24 apologize for the term outside, it's a mistake. People 25 around the leader can cause that, yes?
641 A: Yes. 2 Q: When Mark Wright talked to you on 3 that phone, he wanted action, yes? 4 COMMISSIONER SIDNEY LINDEN: I'm going to 5 ask you to please stop saying yes after every question 6 you ask. It just is distracting, and it's unnecessary, 7 and it's not a question. The question you're asking is 8 capable of being answered without your assistance. 9 10 CONTINUED BY MR. JULIAN FALCONER: 11 Q: Is that fair? 12 A: He -- he was of the opinion that they 13 should go down and arrest them, correct. 14 Q: And sorry? 15 A: Yes. 16 Q: That was the phone call that 17 triggered the series of events that led to the hour and 18 twenty-six (26) minute mobilization; is that fair? 19 A: Well, that was the first time that I 20 was aware something was going on. 21 Q: Mark Wright, a trusted person, close 22 to you, wants to take an aggressive move. It's the exact 23 kind of factor that you and I discussed, it takes a 24 passive leader and makes him more aggressive; true? 25 A: I don't agree that any position he
651 takes changes my position whatsoever. 2 Q: All right. So it's -- it's your 3 evidence that your most trusted person, Your Second in 4 Command, his opinions will not change what you do; is 5 that your evidence? 6 COMMISSIONER SIDNEY LINDEN: It's not -- 7 MR. MARK SANDLER: He asked him whether 8 he became aggressive as a result of the aggressive person 9 around him, and then he gets a no, and then he says: so 10 is it your evidence as if that -- 11 COMMISSIONER SIDNEY LINDEN: Yes. 12 MR. JULIAN FALCONER: I'll move on. I -- 13 I see the concern. 14 COMMISSIONER SIDNEY LINDEN: It's a huge 15 leap. 16 MR. JULIAN FALCONER: I see the concern. 17 COMMISSIONER SIDNEY LINDEN: It's a huge 18 leap. 19 MR. JULIAN FALCONER: I'll move on. 20 COMMISSIONER SIDNEY LINDEN: Yes. 21 22 CONTINUED BY MR. JULIAN FALCONER: 23 Q: You didn't mean to suggest though, 24 did you, and I want to be clear, you didn't mean to 25 suggest that Mark Wright wouldn't have influence on you?
661 A: I would trust the facts that he put 2 forward, and I would listen to his opinion, and I would - 3 - I would weigh his opinion, and I would make a decision. 4 But because he had a certain point of view 5 did not mean I would act specifically with his view. As 6 the Incident Commander we often have views of Tactical 7 Commanders or negotiators who feel a certain strategy -- 8 strategy should be employed. 9 And you have to weigh all the factors you 10 have before you, and make your best decision, and it 11 doesn't necessarily always agree with the advice. 12 Q: You're saying that while you listen 13 to your Second in Command, it's not determinative? 14 A: Correct. 15 Q: But it was your evidence previously 16 that you had a lot of time for Mark Wright. 17 A: I do. 18 Q: You respect his opinion? 19 A: I do. 20 Q: And his opinion that night was go in 21 and make the arrests? 22 A: Correct. 23 Q: His opinion was the aggressive 24 approach? 25 A: Correct.
671 Q: In terms of the hats that you wore 2 that night, and the previous two (2) days. Is -- can we 3 agree that part of that comes from the odd nature of an 4 occupation by an aboriginal community who feel that they 5 have colour of right; hat's it's a very unique situation? 6 A: I -- I'm not sure I understand. 7 Q: Well, you -- there are many hats you 8 wore in this operation, and I'm going to suggest to you 9 that many of them weren't born of being a police officer, 10 but almost being a statesman, trying to manage an 11 aboriginal community who -- members of whom feel they 12 have colour of right, plus the politicians whose concerns 13 are raised as a result of the rest of the population, 14 plus the actual police action. 15 It's a unique situation, isn't it? 16 A: Oh, that's fair. 17 Q: And all of those liaisons you were 18 responsible for came from this unique situation, the 19 unique nature of an occupation by an aboriginal community 20 who feel they have a colour of right? 21 A: Fair enough. 22 Q: And it isn't something you would have 23 been trained on, per se, in training college, is it? 24 A: Well, there's no particular course on 25 that one.
681 Q: No. And you've said repeatedly to a 2 number of different counsel that as far as you were 3 concerned, in the end this shouldn't have even been a 4 policing matter. 5 I apologize, I'll rephrase, I ate my 6 words. 7 You said to a number of counsel, in 8 answers to their questions, this should not even have 9 been a policing matter, correct? 10 A: It shouldn't have got this far. 11 Q: And in terms of what you were being 12 expected to do, you actually were expected to do -- 13 review land title claims, yes? 14 A: Correct. 15 Q: You weighed -- you almost adjudicated 16 MNR, DND, aboriginal burial sites. These aren't the 17 things you're trained to do. 18 A: That's true. 19 Q: But you were expected to do it? 20 A: It was necessary. 21 Q: And we have the benefit of some 22 important research that's being conducted in -- in the 23 second phase of the -- this Inquiry, and specifically we 24 have the benefit of a number of academic works that 25 suggest that presently, today, as we speak, the wait time
691 for even a claim to get past the first stage of a 2 credibility check, that is a land claim, the wait time is 3 between fifteen (15) and twenty (20) years. 4 Does that suggest to you that the problem 5 is going to get better or worse? 6 A: Well, I can't see how that's going to 7 make it better. 8 Q: The academic research before this 9 Inquiry suggests that presently the land claims system 10 operates dysfunctionally in terms of the frustration of 11 the stakeholders involved, whether it's government or 12 aboriginal communities. 13 Does that make it sound like the problem 14 is going to get better or get worse? 15 A: I think it's obvious. 16 Q: And the obvious -- I -- I -- it's my 17 responsibility to bring up the evidence even if it's 18 obvious. 19 A: Well, it's not going to get any 20 better. 21 Q: Would you agree with me that it has 22 been the gist of your testimony since you began your 23 evidence, oh so long ago, that you could sense the 24 frustrations from the communities that were occupying 25 those lands?
701 A: Sure. 2 Q: And that in terms of your managing 3 the situation, you were being expected to call to -- to 4 the forefront expertise you didn't even have, true? 5 A: Correct. 6 Q: Would you agree with me that the 7 effect of that was to put you in the very difficult 8 position of having to make important, sometimes very 9 quick, command decisions while carrying portfolios you 10 were never trained to carry? 11 A: I wouldn't necessarily agree with 12 that. 13 Q: When you testified before the 14 Commissioner that using the CMU team, having thirty (30) 15 to forty (40) officers in riot regalia with the several 16 snipers involved, and the canine unit following, march on 17 the aboriginal community because of a sense that this 18 show of force would have them retreat like demonstrators 19 at a Bush demonstration; was that borne of any training 20 you received about how an aboriginal community would 21 respond to that kind of show of force? 22 A: No. 23 Q: Would you agree with me that there 24 may be complexities about how an aboriginal community 25 deprived for centuries and centuries of their lands,
711 might react; that there might a difference between how 2 they would react, and how people at a Bush demonstration 3 would react? 4 A: Sure. 5 Q: And would you agree with me that the 6 most unfortunate part of this is that you end up on the 7 hot seat answering for things you've never been trained 8 to deal with? 9 A: That's the police role in society. 10 Q: But the police role in society, you 11 and I and the Commissioner and this entire Commissioner, 12 have a chance to actually affect, right? 13 It's not your lot in life to have to do 14 things you weren't trained to do, agreed? 15 A: That would be the preference, but 16 that's not always a reality. 17 Q: Of course, of course. But if we can 18 make changes that maybe saves lives, gives people their 19 respect and dignity that would be a good thing? 20 A: Of course. 21 Q: It is possible to train sophisticated 22 police officers to deal with some of these issues if a 23 police presence is necessary, would you agree with that? 24 A: Oh, yes. 25 Q: And would you agree with me that
721 because of the many hats you carried, you -- you actually 2 have developed some expertise in understanding all the 3 different expectations that might come of a -- an 4 Incident Commander in this kind of scenario? 5 A: Correct. 6 Q: And would you agree with me that the 7 many hats we're talking about carrying are hats that you 8 would prefer a person who had very specialized knowledge, 9 and specialized expertise had before they carried them? 10 A: Sure. 11 Q: It would be better, would it not, not 12 to have someone assume full-time control of a situation 13 like this if they were simply the Staff Sergeant at the 14 Forest Detachment prior to taking over, would -- would 15 you agree with me? 16 A: I -- I agree with you in principle. 17 The -- the one (1) thing that -- when I was assigned 18 Incident Commander, one (1) of the reasons I got assigned 19 was because of my tenure at Forest, and my interaction 20 locally, and the understanding that it was believed I had 21 in regards to some of these issues. So, in principle, I 22 would agree. 23 Q: But -- and that's very fair; that's 24 very fair. You were seen as someone capable of having a 25 sufficiently passive approach, and sophisticated approach
731 so you might understand some of the concerns being 2 expressed? 3 A: Well, I'm not sure I -- I would get 4 into the -- the term, passive or -- or any of those kinds 5 of -- of descriptors. It was simply a matter that I 6 believe, and Chief Coles might be better to speak to this 7 than I, is that he felt my experience provided me a 8 better position to -- to deal with it. 9 Q: But you'd agree with me that 10 notwithstanding your experience, you still stand by your 11 answers to some of the shortcomings you had in training 12 that I asked you before? 13 A: Oh, sure, there's areas -- 14 Q: Right. 15 A: -- I -- I certainly didn't have, you 16 know, training in some specifics. 17 Q: A specialized unit, of a police 18 service, designed to manage aboriginal occupations in the 19 sense of a police presence, it, on the one hand, sounds 20 flaky and very airy fairy and non practical because, of 21 course, it would mean having this unit stand in a 22 building and wait for six (6) months or a year before 23 something happens, so that -- that's not very practical, 24 is it? 25 A: Correct.
741 Q: On the other hand, members of the 2 service that had other jobs but were trained in a highly- 3 skilled way so that they had certain specializations or 4 expertise that if they were called upon could come 5 together and work, that would be different? 6 A: Yes, it would. 7 Q: And it's not unusual to have units of 8 a police service that aren't in force all the time, but 9 then get together when something happens? 10 A: Sure. There's a number of part-time 11 specialists; that's probably an example, say, of my 12 tenure as a crisis negotiator. You have regular duties, 13 and when an incident happens your special training kicks 14 in and you perform that duty. 15 Q: And those are the kinds of people who 16 in developing expertise, in addition to other aspects of 17 their expertise, would probably have gained an 18 extraordinary understanding of the communities that their 19 specialized expertise is in charge of policing, yes? 20 A: Sure. 21 Q: They might understand the distinction 22 between the bush demonstrators and an aboriginal 23 community affected by colour of right concerns, yes? 24 A: Fair enough. 25 Q: And they might -- those kinds of
751 people with specialized expertise -- might know of Cindy 2 Elder before Cindy Elder calls them, yes? 3 A: Sure. 4 Q: And those kinds of people might know 5 that there's only so many hats they can carry before they 6 have to make sure another one of their skilled colleagues 7 carries hats, right? 8 A: Correct. 9 Q: And those kind of skilled experts may 10 not spend hours on the phone with GM, or on press 11 releases, because they've been trained to understand how 12 to keep their eye on the ball because of their training, 13 is that fair? 14 A: Sure. 15 Q: Now, Mark Wright, his training on 16 negotiations, where does it come from? What was his 17 actual training as a negotiator in 1995 -- in September 18 of 1995? 19 A: I don't know if he had any 20 negotiation training. 21 Q: Right. Because you saw Chief Coles' 22 report that Mark Wright was sent to open negotiations, 23 right? 24 A: Mark Wright and Sergeant Eve was sent 25 -- Sergeant Eve was a crisis negotiator as far as that
761 goes, so there certainly was some expertise with him. 2 Q: But not with Mark Wright? Mark 3 Wright didn't have it? 4 A: No, no. But he had been a criminal 5 investigator, certainly a skilled interviewer, had done 6 numerous investigations over the years, certainly had the 7 ability to interview and speak to people. 8 Q: So you'd agree with me, though, that 9 we must draw a very important distinction between a -- a 10 -- a senior enforcement officer, a senior criminal 11 investigator, and a skilled negotiator who can understand 12 and comprehend the aboriginal issues that they're being 13 confronted with; there is a very big distinction. 14 A: There is, but I'd also suggest that 15 Detective Sergeant Wright had worked on Walpole Island, 16 and he'd worked in the Glencoe area as a constable, I 17 believe, where he worked with the First Nations 18 communities there, so he certainly had some experience 19 that would lend to knowledge of First Nations issues, and 20 he certainly was aware of the ongoing issues in regards 21 to the, for lack of a better term, the local tensions 22 between Kettle, Stony Point and the occupiers. 23 Q: You'd agree with me, though, that 24 knowledge, right, an information bank of knowledge does 25 not translate to skill, does it?
771 A: Sure, fair enough. 2 Q: So it's very important because the 3 kind of people that we're talking about that would go in 4 as negotiators would actually be skilled at that area? 5 A: Well, it would certainly be a 6 preference to have people with training in that 7 specifics, I would certainly agree with that. 8 Q: In addition to that, and you were 9 given none of those opportunities; no one gave you those 10 tools, right? 11 A: No. 12 Q: In addition to those hats that you 13 carry, you had the responsibility of managing your 14 officers, that is you had to deal with the human dynamics 15 of officers that were hearing at the highest levels that 16 they may have blown it. 17 You had to manage that? 18 A: I had to manage a management team, 19 yes. 20 Q: And in an hour and twenty-six (26) 21 minutes, you took all of those things, all of those 22 shortcomings, and all of your efforts, and all of your 23 goodwill, and in the end you made the call not to apply 24 the brakes, right? 25 A: Correct.
781 Q: Mr. Commissioner, this might be an 2 appropriate time. It's been an hour -- 3 COMMISSIONER SIDNEY LINDEN: How much 4 longer do you think you might be? 5 MR. JULIAN FALCONER: I expect I'll be 6 going to the lunch hour, but I will be finished by the 7 lunch hour. 8 COMMISSIONER SIDNEY LINDEN: That's fine. 9 Then we'll take a break now. 10 THE REGISTRAR: This Inquiry will recess 11 for fifteen (15) minutes. 12 13 --- Upon recessing at 10:08 a.m. 14 --- Upon resuming at 10:28 a.m. 15 16 THE REGISTRAR: This Inquiry is now 17 resumed. 18 19 (BRIEF PAUSE) 20 21 MR. JULIAN FALCONER: Mr. Commissioner, I 22 -- prior to going forward I just -- a number of 23 housekeeping matters. I respectfully submit that the 24 Operation Maple report, document number 2000899 be filed 25 as the next exhibit.
791 COMMISSIONER SIDNEY LINDEN: Thank you. 2 What number is that? 3 THE REGISTRAR: P-481, your Honour. 4 COMMISSIONER SIDNEY LINDEN: P-481. 5 6 --- EXHIBIT NO. P-481: Document Number 2000899- 7 "Secret - Media Plan - 8 Operation Maple " 1993, 7 9 Pages. 10 11 MR. JULIAN FALCONER: Secondly, in -- the 12 next series of questions I have will -- will bear on 13 this, but Mr. Millar was kind enough to help me out in 14 terms of materials. 15 Yesterday there was reference to the 16 executive summary by Chief Coles -- 17 COMMISSIONER SIDNEY LINDEN: Yes. 18 MR. JULIAN FALCONER: -- in my 19 questioning of the witness, and the witness had actually 20 expressed a concern that all he had was the executive 21 summary in one of his answers. 22 I'm not saying that was the sum total, but 23 --and what I've done was last night I found the blue 24 volume I was searching for so desperately yesterday, and 25 I've attached, with Mr. Millar's assistance, the eleven
801 (11) pages, the first eleven (11) pages of the formal 2 report that bear on the executive summary that we've been 3 discussing. 4 So at the present time what I would 5 respectfully request to do is, file, as an exhibit, the 6 Executive Summary with the additional first eleven (11) 7 pages of the formal report that bear on the -- what we 8 were discussing in questioning. 9 I'll be taking the witness to that portion 10 of the formal report so that it has some context. But at 11 this stage, this is a housekeeping matter, I'd like to 12 file it. 13 THE REGISTRAR: P-482, Your Honour. 14 COMMISSIONER SIDNEY LINDEN: P-482. 15 16 --- EXHIBIT NO. P-482: Document Number 2000588 17 Executive Summary Written by 18 C.J.A. Coles Chief 19 Superintendent, Western 20 Region, OPP Sept./95 21 22 MR. DERRY MILLAR: So it's the first 23 twenty-two (22) pages of Inquiry Document 2000588, which 24 is a hundred and thirty-two (132) page document. And 25 I've got a copy of the entire document that perhaps we
811 could give to the witness. 2 Because it was -- parts of it were done in 3 '97 we don't know when the whole document was done. 4 MR. JULIAN FALCONER: I have a 5 suggestion, Mr. Commissioner. Obviously with this 6 witness, the entirety of the report isn't essential. 7 Chief Coles is going to be a witness. Rather than break 8 this up -- 9 COMMISSIONER SIDNEY LINDEN: Put the 10 whole thing in now. 11 MR. JULIAN FALCONER: Yes. I -- I see no 12 benefit because we know when Chief Coles testifies 13 whether the report was done in '95 or '97, the report is 14 going to be in play, and we might as well make P-482 the 15 entirety of the report. 16 COMMISSIONER SIDNEY LINDEN: What do you 17 think? 18 MR. DERRY MILLAR: Well I have no 19 objection to that. I was just -- 20 COMMISSIONER SIDNEY LINDEN: Okay, that's 21 fine. 22 MR. DERRY MILLAR: -- I was just 23 suggesting we let the witness take a look at the whole -- 24 MR. JULIAN FALCONER: Yeah and I'm -- I'm 25 completely content that happen.
821 COMMISSIONER SIDNEY LINDEN: May I have a 2 copy of that to have during the cross -- 3 MR. DERRY MILLAR: At the break I can 4 always make one. 5 COMMISSIONER SIDNEY LINDEN: Okay. I 6 need the whole copy, but what about the part that's going 7 to be used? Is this just the Executive Summary is all I 8 need? 9 MR. DERRY MILLAR: It's the first twenty- 10 two (22) pages and the first eleven (11) pages. 11 COMMISSIONER SIDNEY LINDEN: I don't have 12 those do I? 13 MR. DERRY MILLAR: You've got the first 14 twenty-two (22) pages. 15 MR. JULIAN FALCONER: It says page 11 at 16 the last page, Mr. Commissioner. But in fact that's page 17 11 of the formal report; that's what's misleading. 18 COMMISSIONER SIDNEY LINDEN: Oh. Okay. 19 MR. JULIAN FALCONER: So if you flip 20 backwards you'll see that the formal report actually 21 starts -- this is really going to confuse you, the formal 22 report starts at page 2. The Executive Summary is eleven 23 (11) pages in number, and then attached to the back of it 24 is 2 to 11, which is the formal report. 25 And that's the chronology of the pages.
831 There is no page 1 to the formal report. 2 COMMISSIONER SIDNEY LINDEN: And I think 3 I do have it all. 4 5 CONTINUED BY MR. JULIAN FALCONER: 6 Q: Deputy Carson all of this is meant in 7 part to have a complete record, but in part to address 8 the concern you expressed yesterday about being presented 9 with an Executive Summary. 10 You weren't -- you didn't make a big deal 11 out of it, but I thought you had raised a very reasonable 12 concern that, you know, you're only being shown the 13 Executive Summary. 14 What I want to do is while we have Exhibit 15 P-482 in front of you, I'd like to direct your attention, 16 first of all, to the Executive Summary question I'd asked 17 you, without going over it all again, and then direct 18 your attention to the portion of the formal report that 19 bears on that; could we do that? 20 A: Sure. 21 Q: If you could turn to page 2 of the 22 Executive Summary, the third paragraph. Well, first of 23 all, by way of introduction, at page 2 of the Executive 24 Summary I had canvassed with you that these four (4) 25 paragraphs set out by Chief Coles represented the sum
841 total of the information Chief Coles had about the 2 factual events underpinning the decision to marshal CMU 3 and the TRU teams, and have them march; we went over that 4 yesterday? 5 A: Right. 6 Q: And the third paragraph, in 7 particular, I suggested to you, you stood in stark 8 contrast to the people with baseball bats beating the 9 cars, car of a woman, a private citizen. This notion of 10 -- well, I think in the criminal trial you said fifteen 11 (15) Natives with baseball bats. 12 But whatever number ultimately is 13 suggested, it stood in stark contrast to the third 14 paragraph. Do you remember that question? 15 A: Yes. 16 Q: And essentially the third paragraph 17 in the Executive Summary says: 18 "At approximately 19:55 a private 19 citizen advised police officers 20 assigned to a checkpoint on Army Camp 21 Road that his vehicle had been damaged 22 by occupiers in the intersection of 23 Army Camp Road and the East Parkway 24 Drive." 25 Now you had -- in that context of that
851 question you -- you had raised this issue of whether the 2 Executive Summary is the same as the report. And what I 3 would do is simply direct your attention to first of all 4 page 7 of the formal portion of the report. 5 And the reason I direct your attention to 6 page 7 of the formal portion of the report is that's 7 where, half way down the page, Chief Coles starts with 8 his chronology in relation to September 6th, 1995. Do 9 you see that? 10 A: Trying to find it here. 11 Q: No problem, take your time, sir. 12 13 (BRIEF PAUSE) 14 15 A: I found page 7. 16 Q: All right. And in reviewing that 17 portion, you will note that he commences the chronology 18 and he refers to a number of different occurrences that 19 day that -- that somewhat mirror his executive summary. 20 And you will note at 15:00 hours Detective Staff Sergeant 21 Mark Wright was assigned to attend in the area of the 22 Park by an incident commander to attempt to open 23 negotiations with the occupiers. 24 Do you see that at the bottom of page 7? 25 A: Yes, I do.
861 Q: So, that's completely consistent with 2 the executive summary, agreed? 3 A: Correct. 4 Q: And consistent with your answers of 5 yesterday? 6 A: Correct. 7 Q: He spoke with two (2) occupiers and 8 told them that he wished to discuss the situation. He 9 was advised the occupiers would do their talking with 10 guns. Detective Staff Sergeant left the area. 11 Then at 18:42, Inspector Linton, Inspector 12 Carson and Les Kobayashi, MNR, met with local MPP Marcel 13 Beaubien at the command trailer. Mr. Beaubien was 14 updated on the situation and he indicated that the local 15 property owners are very concerned and frustrated and 16 feel that they are not being treated equally. 17 Then, at 19:30 hours you see the report in 18 respect of the reference to five (5) -- four (4) or five 19 (5) occupiers that had what appeared to be axe handles in 20 their hands. Another report described the objects as 21 sticks and bats. 22 Again, you'd agree with me that that 19:30 23 report is consistent with what's in the executive 24 summary? 25 A: Yes.
871 Q: The occupiers mistook Detective 2 Sergeant Wright for a First Nations person and told him 3 that he should get out of the area as this was not his 4 fight. The Detective Sergeant left the area. 5 A: Right. 6 Q: Consistent with the executive 7 summary? 8 A: Yes. 9 Q: And then, in relation to the motor 10 vehicle damage at 19:55 hours a First Nations person told 11 police officers assigned to a checkpoint on Army Camp 12 Road that his vehicle had been damaged by a rock thrown 13 by an occupier near the intersection of Army Camp Road 14 and the East Park Drive, yes? 15 A: Correct. 16 Q: Now, interestingly enough, the 17 executive summary, if you'd flip back to it for a moment, 18 actually describes it as a vehicle being damaged by, 19 quote, "occupiers," close quotes. 20 But it seems that page 8 was more 21 particular and identified a single occupier who threw a 22 stone; is that right? 23 A: That's what it appears, yes. 24 Q: So, this, of course, is meant to 25 address the issue that I thought you quite properly
881 raised yesterday, which was all you had in front of you 2 was the executive summary. 3 Going back to my question to you, it's 4 apparent that the facts Chief Coles had stood in stark 5 contrast to the facts you put in that press release on 6 September 6th, 1995 when you availed yourself of that 7 window of opportunity and put the OPP's side of the story 8 to the public, correct? 9 A: Could you -- could you repeat -- I'm 10 not sure I understand your question. 11 Q: The facts that Chief Coles portrays 12 in his report stands in stark contrast to the facts you 13 set out in the press release on the evening of September 14 6th, 1995 when you availed yourself of the window of 15 opportunity and spoke in terms of aboriginals or natives 16 with baseball bats attacking a private citizen's car, am 17 I right? 18 19 (BRIEF PAUSE) 20 21 A: His -- his report is somewhat 22 different from the media release. I would certainly 23 agree with that. 24 Q: We're just tracking the press release 25 for a minute to -- contextualize the question. It's
891 Exhibit Number P-440 -- P-440 Document 1009047. If that 2 can be put on the screen, please? I have, actually, a 3 copy here. 4 MR. MARK SANDLER: Oh, I'm sorry, I'm 5 just inquiring what the date of Chief Coles' executive 6 summary and report is -- 7 MR. JULIAN FALCONER: I -- I'll get to 8 that in a minute in terms of contextualizing the dates, 9 but I -- my question -- 10 COMMISSIONER SIDNEY LINDEN: Well, Mr. 11 Sandler isn't objecting, he's just standing -- 12 MR. JULIAN FALCONER: Fair enough. 13 COMMISSIONER SIDNEY LINDEN: -- talking 14 to Mr. Millar. 15 MR. JULIAN FALCONER: So, if -- if -- 16 while Mr. Millar's doing -- I can -- could this be put on 17 screen? 18 MR. DERRY MILLAR: Well, we're trying to 19 get it on the screen. 20 COMMISSIONER SIDNEY LINDEN: He's looking 21 for something else. 22 MR. DERRY MILLAR: No, no. We're looking 23 for the -- the document -- 24 MR. JULIAN FALCONER: Because I have the 25 document but I don't know if our technology is such that
901 my placing the document... 2 MR. DERRY MILLAR: No. 3 4 CONTINUED BY MR. JULIAN FALCONER: 5 Q: Won't work? Okay. Let me read to 6 you as they're seeking to put it on the screen what your 7 press release said, sir. 8 On the early morning hours of September 9 6th, 1995 you released a press release right after the 10 shooting and you said, quote: 11 "On Wednesday, 6th September, '95 at 12 7:55 p.m. a disturbance was reported to 13 the OPP at Parkway Drive and Army Camp 14 Road where police had removed a number 15 of picnic tables and two (2) tents from 16 the public roadway yesterday. 17 A private citizen's vehicle was damaged 18 by a number of First Nations people 19 armed with baseball bats. As a result 20 of this, the OPP crowd management team 21 was deployed to disperse the crowd of 22 First Nations people which had gathered 23 at that location, which is Township 24 property, adjacent to Ipperwash 25 Provincial Park and local cottages."
911 Now, you'd agree with me that that press 2 release conjures up natives going wild and the fear that 3 private citizens would have that their vehicles are now 4 being attacked by natives with baseball bats? 5 That's what that press release does, 6 doesn't it. 7 COMMISSIONER SIDNEY LINDEN: Yes, but I 8 believe -- what your -- 9 MR. MARK SANDLER: We were cross-examined 10 for half an hour on this -- 11 COMMISSIONER SIDNEY LINDEN: Yes, I 12 believe -- 13 MR. MARK SANDLER: On this issue. 14 COMMISSIONER SIDNEY LINDEN: -- that Mr. 15 Rosenthal went into this in great deal. 16 MR. JULIAN FALCONER: Yes, and I'm moving 17 on from that. 18 COMMISSIONER SIDNEY LINDEN: You're 19 moving on? It seemed like -- 20 MR. JULIAN FALCONER: Absolutely. 21 COMMISSIONER SIDNEY LINDEN: -- you right 22 on it, but if you're moving on, fine. 23 MR. JULIAN FALCONER: I'm moving on from 24 that. 25 COMMISSIONER SIDNEY LINDEN: That's fine.
921 MR. JULIAN FALCONER: I always have to 2 start at the place -- 3 COMMISSIONER SIDNEY LINDEN: Okay. It 4 seemed like -- 5 MR. JULIAN FALCONER: You'd agree with 6 that? 7 COMMISSIONER SIDNEY LINDEN: -- you were 8 cross -- no, that's fine. 9 10 CONTINUED BY MR. JULIAN FALCONER: 11 Q: Sir? 12 A: I'm not -- I'm not sure which -- if 13 you could rephrase your question, please. 14 Q: Did you not understand the question? 15 A: I'm not sure what your question was 16 asking. 17 Q: Okay. You'd agree with me that that 18 press release conjures up fears of natives randomly 19 attacking private citizens who are passers-by around the 20 Park and feeds on the very fears that a community would 21 have in this particular situation? 22 A: That has that potential. 23 Q: And when one has regard to the 24 description at page 2 at -- of the executive summary by 25 Chief Coles, at approximately 19:55 a private citizen
931 advised police officers assigned to a checkpoint on Army 2 Camp Road that his vehicle had been damaged by occupiers 3 in the intersection of Army Camp Road and East Parkway 4 Drive. 5 That doesn't seem to have the same impact, 6 does it? 7 A: No. 8 Q: Doesn't trigger the same fear button, 9 does it? 10 A: No. 11 Q: It stands in stark contrast to what 12 you've put in that press release that night, doesn't it? 13 A: It's different. 14 Q: And then if one were to go to the 15 next step, to page 7. 16 If one were to go to the next step at page 17 7 and page 8, in particular the entry at 19:55 hours. If 18 one were to go to page 8 and look at 19:55 hours, 19 "A First Nations person told police 20 officers assigned to a checkpoint on 21 Army Camp Road that his vehicle had 22 been damaged by a rock thrown by an 23 occupier near the intersection of Army 24 Camp Road and the East Parkway Drive." 25 Well, now what's happening is what frankly
941 has happened to me a number of times when I'm driving to 2 the cottage. Somebody throws something at my car. 3 It has none of the elements of what was in 4 your press release, correct? 5 A: The press release said it was -- a 6 private vehicle had been damaged. 7 Q: By Indians bearing baseball bats. 8 A: Correct. 9 Q: Let's be fair, sir. 10 A: Correct. That -- 11 Q: And you put it there. You put it 12 there so the public would have your side of the story in 13 the window of opportunity you had, yes? 14 A: Yeah, as best as I understood it. 15 Q: And you, at the time that you put it 16 there, you were a professional forensic investigator 17 among other things in your skill set as a police officer, 18 yes? 19 A: I wouldn't consider myself a forensic 20 investigator. 21 Q: Well, let's back up. 22 A: But I certainly -- 23 Q: You -- as part of your skill set, you 24 were a professional and are a professional criminal 25 investigator.
951 A: Yes. 2 Q: And at the time you issued this press 3 release, you were a professional criminal investigator? 4 A: Correct. 5 Q: And one (1) of the basic tenets to 6 professional criminal investigation, is that the facts 7 that you disclose to the public, pending an 8 investigation, can have very serious ramifications for 9 the outcome of the investigation? 10 You knew that at the time? 11 A: Sure. 12 Q: And you know that today? 13 A: Sure. 14 Q: When did you speak to Bob Goodall, 15 the senior investigator, in relation to this incident to 16 get permission to release facts to the public? 17 A: Never. 18 Q: When did you speak to the head of SIU 19 or the investigator for SIU for permission to release 20 facts to the public? 21 A: I didn't. 22 Q: During the time that you prepared 23 this press release, you knew that an investigation was 24 afoot; yes? 25 A: There was going to be an
961 investigation, yes. 2 Q: No, sir. With respect, you have said 3 that in the past but it's not true. Officer Goodall had 4 already started his investigation, true? 5 A: No, that's not true. I don't even 6 know if he was assigned at that point. 7 Q: Would you agree with me that the one 8 thing we can all be certain about is that when a human 9 being is shot, seriously injured, that there is going to 10 be a police investigation and SIU investigation? 11 A: Correct. 12 Q: And that absolute obligation on all 13 professional investigators is to protect the evidence? 14 A: Correct. 15 Q: And that you tried to, for example, 16 segregate witnesses so one (1) account doesn't affect 17 another? 18 A: Correct. 19 Q: And one (1) of the things you try not 20 to do is like little bombs of information, handed out to 21 the public, so that people potentially who might be 22 interviewed after are affected in their accounts of the 23 situation. 24 You don't do that, do you? 25 A: Correct.
971 Q: But you did exactly that, didn't you? 2 A: It certainly wasn't my intention. 3 Q: But you sir, the incident commander 4 and a professional investigator, sent a story out about 5 baseball bats and Indians pounding a car, right? 6 A: Yes, I did. 7 Q: Right. And the police officers at 8 the scene, they're -- over the course of the next twelve 9 (12) years, they're members of the public, yes? 10 A: Yes, they are. 11 Q: They're allowed to listen to the 12 radio? 13 A: Yes. 14 Q: At the same time, they're going to be 15 interviewed by SIU, yes? 16 A: Correct. 17 Q: Sorry, Mr. Commissioner. At the same 18 time, they're going to be interviewed by SIU; is that 19 fair? 20 A: Yes, they would be. 21 Q: At the same time the officers are 22 probably going to be interviewed by Detective Goodall; is 23 that fair? 24 A: In all likelihood, yes. 25 Q: Now, they have your account of what
981 happened and they have their own accounts, correct? 2 A: Correct. 3 Q: Now which do they choose? Their 4 incident commander, well, he said that there were natives 5 with baseball bats pounding on a private citizen's car, 6 that's what they know their incident commander's done, 7 right? 8 A: Yes. 9 Q: But they -- all they remember is a 10 rock being thrown at a car by a single occupier, right, 11 potentially? 12 A: If that's what they know. 13 Q: Well, that's what Chief Coles knew. 14 A: Well, by that time, yes. 15 Q: Yes. So assuming they tell the truth 16 and assuming they saw it, that's what they would know, 17 correct? 18 A: Sure. 19 Q: Which do they pick? Which account do 20 they pick? 21 A: They pick the account that is what 22 they know. 23 Q: And isn't that why you don't disperse 24 information during the currency of an investigation, so 25 you don't potentially affect or taint a witness' account?
991 Isn't that why? 2 A: You try to provide the circumstances 3 to the best of your ability in any investigation to 4 provide information to the -- to the public. 5 In this case, I provided the information 6 which I thought was as accurate as possible at that time. 7 Q: You called it a window of 8 opportunity. 9 A: Yes, I did. 10 Q: Because you knew that in the currency 11 or during the currency of an investigation, it is 12 inappropriate for the subjects of the investigation be 13 disseminating information about the case, correct? 14 A: Once SIU invokes their mandate, the 15 follow-up releases will be by SIU. There was an 16 opportunity for the OPP to make a press release, I took 17 that opportunity as I've indicated. 18 Q: Bob Goodall was the investigator for 19 the OPP investigating alleged attempt murders, am I 20 right? 21 A: He wasn't on the scene at that point. 22 Q: But was he? 23 A: I'm sorry? 24 Q: Was he ultimately the investigator? 25 A: Eventually, yes.
1001 Q: Okay. And so let's take SIU out of 2 the equation. The bottom line is, there's investigations 3 going on in several areas, yes, is that fair? 4 A: Sure. 5 Q: I just want to clarify through you 6 that at no point did you direct your mind to the 7 potential risk of tainting any of those investigations. 8 You didn't direct your mind to it, did you? 9 A: No. 10 Q: Right. What you directed your mind 11 to was to putting the best face on the call you made that 12 resulted in the death of Dudley George? 13 A: I disagree. 14 Q: You had another reason? You had 15 another reason for taking that window of opportunity and 16 getting a story out there that you'd never checked? You 17 had another reason? 18 What's your other reason? 19 COMMISSIONER SIDNEY LINDEN: Well -- 20 THE WITNESS: I tried to get the facts 21 out as we knew them at that point in time. 22 MR. JULIAN FALCONER: All right, I'll 23 move on. 24 COMMISSIONER SIDNEY LINDEN: Yeah, I 25 think you've made a point --
1011 MR. JULIAN FALCONER: Yeah, I'll move on. 2 COMMISSIONER SIDNEY LINDEN: -- Mr. 3 Falconer. Yes. 4 5 CONTINUED BY MR. JULIAN FALCONER: 6 Q: My Friend, Mr. Sandler raised an 7 issue of timing and I want to be fair to the Commission 8 and the Witness. It's apparent from the report of Chief 9 Coles that there's some timing factors that lead to the 10 conclusion that this report was contemporaneous with late 11 September 1995. 12 I'm not satisfied though, Mr. 13 Commissioner, that that means the entirety of the report 14 was contemporaneous with then. And I want to be fair to 15 the facts. 16 But I want to direct your attention to 17 page 4 of the Executive Summary, Deputy Carson. You'll 18 notice different language as we go through this but for 19 example, page 4 third full paragraph. It starts on 20 Friday, September 8. 21 A: On page 4? 22 Q: Yes, of the Executive Summary. It's 23 confusing. 24 A: I'm sorry, I apologize. 25 COMMISSIONER SIDNEY LINDEN: On Friday,
1021 September the 8th. 2 THE WITNESS: Okay. 3 4 CONTINUED BY MR. JULIAN FALCONER: 5 Q: At page 4, third full paragraph: 6 "On Friday, September 8th, 1995 7 negotiations continue between OPP and 8 First Nation representatives. (No 9 violence or serious confrontations have 10 occurred as of September '95 also only 11 damage to private residence is one (1) 12 broken door at cottage)." 13 If you go through this Executive Summary, 14 it's apparent that in a number of different places, 15 there's references to negotiations to secure the scene. 16 It's apparent that in the end, this 17 Executive Summary at least, was prepared at the end of 18 September 1995. I bring that to your attention, sir, in 19 the sense of timing that Mr. Sandler raised. 20 Now on the other hand to be candid, when I 21 look at the rest of the report it's not clear to me that 22 the entirety of the report was prepared in late September 23 1995. 24 At page 11, the end of the Executive 25 Summary, page 11, the end of the Executive Summary.
1031 COMMISSIONER SIDNEY LINDEN: Yes. 2 3 CONTINUED BY MR. JULIAN FALCONER: 4 Q: "I believe the situation at Ipperwash 5 can be resolved peacefully if both 6 sides are interested in a peaceful 7 solution. While in command I will 8 continue to try to achieve a peaceful 9 solution." 10 It's apparent it's very contemporaneous 11 with incident. Similarly if you review page 10, Deputy 12 Carson, you'll see the same thing. 13 Now at page 10 of the Executive Summary, I 14 want to -- well, actually I want to start at page 9 of 15 the Executive Summary. 16 MR. DERRY MILLAR: In the document that 17 we've marked as Exhibit 482 that Deputy Commissioner has, 18 there are letters in it dated 1997. So we have no idea 19 when this whole document, a hundred and thirty-two (132) 20 pages was put together. 21 What My Friend says with respect to the 22 first eleven (11) pages of the Executive Summary is fair 23 because it's -- it's -- at least that's what it leads to 24 you to believe, exactly what Mr. Falconer said, that it 25 was prepared sometime at the end of September and we'll
1041 find out from Chief Coles about the whole document. But 2 the whole document has documents in it from 1997. 3 COMMISSIONER SIDNEY LINDEN: That's fine. 4 MR. JULIAN FALCONER: That's right. And 5 -- and because Mr. Sandler raised the concern, and I'm 6 asking the Deputy questions I did not want to mislead him 7 about that. 8 9 CONTINUED BY MR. JULIAN FALCONER: 10 Q: But the area that I'm now going to 11 briefly ask questions on that I assure, Mr. Commissioner, 12 is new soil. The public listening to this must think 13 that horticulture is the centre piece of -- of this 14 Inquiry, Mr. Commissioner, but in any event at page 9, at 15 any rate manure seems to be the order of the day for me 16 right now. 17 But page 9 of the Executive Summary it -- 18 it deals with Chief Coles' conclusion and I want to take 19 you through that in a little a bit of detail. And while 20 I'm taking you through it, it could be on the screen I 21 would appreciate it. Because I think there -- there 22 truly is a public interest in this. 23 "As an incident commander and a police 24 officer my duty is to preserve the 25 peace and prevent offences. The role
1051 of the police officer [I'm at page 9 of 2 the Executive Summary], the role of the 3 police officer is to keep the peace. 4 It is not to be a soldier." 5 6 (BRIEF PAUSE) 7 8 Q: "The role [this is Chief Coles 9 speaking], the role of the police 10 officer is to keep the peace. It is 11 not be a soldier. 12 Police officers in Ontario swear an 13 oath of office which is as follows. 14 "I solemnly swear that I will be loyal 15 to Canada. That I will uphold the 16 Constitution of Canada and I will to 17 the best of my ability preserve the 18 peace, prevent offences, and discharge 19 my duties as a provincial constable for 20 the Province of Ontario, faithfully and 21 partially and according to the law, so 22 help me God."" 23 And you would have sworn that oath, sir? 24 A: Sure. 25 Q: Do you with what Chief Coles says in
1061 that first paragraph? 2 A: Sure. 3 Q: That your primary role is not to be a 4 soldier? 5 A: We're not soldiers. 6 Q: It must have kind of felt like it 7 when you had thirty (30) to forty-five (45) officers 8 marching on those people? 9 A: Is that a question? 10 Q: Yes, it was, sir. 11 COMMISSIONER SIDNEY LINDEN: Is there a 12 question there? 13 THE WITNESS: I am not a soldier, I am a 14 police officer and I have -- I take exception to the 15 insinuation. 16 17 CONTINUED BY MR. JULIAN FALCONER: 18 Q: Sir, it was a question and if the 19 answer to the question is, no it didn't feel like it, if 20 you could simply provide that. If it's, yes, it felt 21 like it, you could provide that or in between, but now I 22 go back to my question because it was a fair question. 23 It must have kind of felt like you were a 24 soldier when you had thirty (30) to forty (40) police 25 officers in riot regalia marching on those people on the
1071 evening of September 6th, 1995. 2 A: The answer is simply, "no." 3 Q: Police officers swear an -- oath that 4 they'll be loyal to Canada, correct? 5 A: Yes. 6 Q: Project Maple was meant to affect 7 that loyalty, wasn't it? It was meant to follow through 8 on that loyalty, wasn't it? 9 A: It was to do our job as a police 10 officer. 11 Q: Project Maple was meant to get the 12 Canadian flag where it belongs? 13 A: I disagree. 14 Q: Chief Coles continues: 15 "Police services in Ontario under the 16 Public Services Act state that police 17 officers must conduct their duties in 18 accordance with the following 19 principles that are found under Section 20 1 of the Public Services Act." 21 Would you agree with me, with all due 22 respect to Chief Coles, and I have some embarrassing 23 typos in my life, in my materials, that Chief Coles 24 really means the Police Services Act? 25 A: I suspect that's correct.
1081 Q: And I have a couple of whoppers in my 2 materials, so I -- we've all been there. 3 1. The need to ensure the safety and 4 security of all persons and property in Ontario; correct? 5 A: Yes. 6 Q: And you agree with that principle? 7 A: Sure. 8 Q: And the safety and security of all 9 persons included those occupiers? 10 A: Yes. 11 Q: And the safety and security of all 12 persons and property in Ontario included all of the 13 people involved in this case, didn't it? 14 A: Of course. 15 Q: And that was what was so difficult 16 about the hats you carried. You had an entire population 17 who felt that there was an armed insurrection by natives 18 taking their land on one (1) side; right? 19 A: Yes. 20 Q: And then on the other side, you had 21 this various heterogeneous -- right -- members of the 22 aboriginal communities who had different interests and 23 different concerns, many of them legitimate and in good 24 faith; correct? 25 A: Fair enough.
1091 Q: You had Chief Bressette from Kettle 2 and Stony Point telling you his perspective, in good 3 faith? 4 A: Correct. 5 Q: You had someone you knew as Glenn 6 George who, himself, became increasingly frustrated over 7 the years, yes? 8 A: Sure. 9 Q: You had the occupiers including Glenn 10 George who wanted justice, yes? 11 A: Yes. 12 Q: And you had to manage all of that. 13 A: Correct. 14 Q: You had to protect -- you had to 15 protect all of those people. 16 A: Correct. 17 Q: It's almost an inhuman task, isn't 18 it? 19 A: It's a difficult job being a police 20 officer. 21 Q: Paragraph 3 refers to the need for 22 cooperation between the providers of the police services 23 and the communities they serve, do you see that? 24 A: Correct. 25 Q: And you agree with that principle?
1101 A: Of course. 2 Q: And that would have, of course, 3 included a level of cooperation between the providers of 4 police services such as the OPP and First Nations 5 policing; would you agree with that? 6 A: Sure. 7 Q: We have heard evidence -- the 8 Inquiry's heard evidence -- from Miles Bressette that 9 there was some tension level between the OPP and First 10 Nations policing over jurisdictional issues; is that 11 true? 12 A: Yes. 13 Q: Is it also true that no matter how we 14 look at the events leading up to 11:00 p.m. or midnight 15 on September 6th, 1995, we see virtually no presence of 16 First Nations policing and then the presence happens 17 after in terms of the incident; is that fair? 18 A: Yes. 19 Q: Your relationship with First Nations 20 officers was not such that you were in a position to 21 truly use them as a resource leading up to the shooting, 22 isn't that true? 23 A: I would disagree with your context of 24 that. There had been numerous meetings over the years 25 with Chief Bressette and Miles Bressette and it was their
1111 view that we could not use their officers. It wasn't a 2 matter of whether we wanted to or not, I couldn't control 3 their desire or their wishes that there -- there be 4 minimal or no interaction between the First Nations 5 officers of Kettle Point and the OPP officers. If you're 6 talking about the Kettle Point officers -- 7 Q: Yes. 8 A: -- in particular. 9 Q: And -- and I hear you and that's my 10 understanding of the facts, too. 11 A: Correct. 12 Q: Their position they took that you 13 ought not to use them is contextualized by the fact that 14 your relationship with them was strained; isn't that 15 right? 16 A: I disagree. This -- this issue 17 between the officers went back long before I ever arrived 18 on the scene in Forest. 19 In fact, I think my evidence in-chief 20 spoke to a meeting I had at the district headquarters in 21 Chatham in the first week of September 1989 where I met 22 with Chief Tom Bressette for the first time, Miles 23 Bressette for the first time, with some command staff at 24 the district headquarters, over this very issue. And I 25 worked very hard to try to develop a relationship, I
1121 would suggest, with limited success. 2 Q: You've spoke in your evidence in 3 terms of the OPP being willing to give training to these 4 officers if they wanted it, yes? 5 A: Yes, we do provide training. 6 Q: To them? 7 A: Yes. 8 Q: But you do recognize that the Kettle 9 Point officers or Anishnaabe officers, these are trained 10 police officers? 11 A: Correct. 12 Q: Right. They're not different than 13 the OPP in their skill set, are they? 14 A: No, they go to the same college as 15 everybody else. 16 Q: All right, because you left the 17 impression, with great respect, sir, that they needed to 18 be brought along; that you needed maybe to offer them 19 extra training. 20 That wasn't what you meant to leave? 21 A: What I was trying to get at, they 22 required some experience in some respects, that they 23 don't have the opportunity on the reserve itself. 24 So, we would certainly try to work with 25 them to provide them opportunities to allow them to
1131 develop their skill sets. 2 Q: The limited success you had, you 3 called the it, the words "limited success" -- 4 A: Yes. 5 Q: -- before. 6 A: Yes. 7 Q: The limited success you had in 8 building bridges between 1989 and 1993 in part 9 contextualizes the reluctance to have First Nations 10 officers involved in the incident, would you agree? 11 A: No. 12 Q: All right. Can you explain why you 13 don't agree? 14 A: Because it was out of my control. I 15 would have had no difficulty with them assisting in any 16 way. I think if you talk to some of the other officers 17 who were there at the time, their view of the 18 relationship might be significantly different than Miles 19 Bressette. 20 Unfortunately the relationship between 21 Miles Bressette and Tom Bressette was such that, clearly, 22 there was a delineation of the relationship. 23 Q: The bottom line is, and I -- perhaps 24 you misunderstood my question, all of those dynamics that 25 you point to, I'm not challenging you on that, all of
1141 those dynamics that you point to ultimately 2 contextualizes the inability to rely on these First 3 Nations officers when the incident happened; isn't that 4 fair? 5 A: Oh, it precludes the ability for me 6 to utilize them, absolutely. 7 Q: And when we look at Project Maple, do 8 we see any real role for First Nations officers in 9 Project Maple, in your report? 10 A: No. 11 Q: If I look at all of the hats you 12 wore, the hat that seemed to have been least prominent 13 was the hat that involved that peaceful negotiation as an 14 initiative. 15 It seemed the less -- the least prominent 16 of the hats you wore. 17 A: I disagree. 18 Q: Cindy Elder couldn't get you on the 19 phone but the Mayor, for quite legitimate reasons, no 20 doubt, could get you on the phone, correct? 21 A: Correct. 22 Q: Ovid Mercredi gave evidence and, of 23 course, he tried to call after -- right after the 24 incident happened -- 25 A: Yes.
1151 Q: -- I'm not saying you could reverse 2 time, but he gave evidence of how he couldn't get through 3 to you. And we see all of the steps you took in the area 4 of officer safety that was a gargantuan task, correct? 5 A: Yes. 6 Q: If -- if you had been three (3) or 7 four (4) people with the skill set and expertise, you'd 8 agree with me that a more promising outcome might have 9 happened in respect of negotiations in respect in this 10 case? 11 A: I would suggest we had a -- a large 12 management team and for the most part the tasks were 13 being delegated to various people to -- to assume various 14 responsibilities. 15 Would it have been nice if I'd have had 16 more people to take on specialised tasks? Yes, it would. 17 Q: If that could be kept on screen. I 18 apologize to Counsel. I probably don't give a very good 19 signal as to what I'm doing when I'm doing it. 20 I just want to understand something. Is 21 this name pronounced Korosec. 22 A: Korosec, yes. 23 Q: Korosec, Staff Sergeant? 24 A: Sergeant. 25 Q: Sergeant. He wasn't a skilled
1161 negotiator, he was on your command team. 2 A: He was a ERT leader. 3 Q: Okay. Lacroix, he wasn't a skilled 4 negotiator? And I'm -- by the way, I'm starting with 5 skilled negotiator and then I'm going to go to the issue 6 of skilled negotiators on Aboriginal issues. 7 But let's go with skilled negotiator. 8 Lacroix, he wasn't a skilled negotiator? 9 A: No. 10 Q: Mark Wright, we've already discussed. 11 Who am I leaving out? Linton? He wasn't 12 a skilled negotiator? 13 A: I couldn't tell you if he had any 14 special training or not. 15 Q: But, you didn't know of any? 16 A: I don't of any. 17 Q: And you didn't avail yourself of any? 18 A: I did not. 19 Q: And I'm talking about your command 20 group or command team -- you call them a command team? 21 A: Yes. 22 Q: Who on that command team was a 23 skilled negotiator? 24 A: Sergeant Seltzer. 25 Q: All right.
1171 A: He led the negotiation peace. He 2 worked with retired Staff Sergeant Lorne Smith who was a 3 long time negotiator and had worked with First Nations 4 and in particular with the Kettle Stoney Point people for 5 many many years who was well versed in all of those 6 issues as well as Marg Eve who was working with and for 7 Sergeant Seltzer who was certainly a trained negotiator 8 as well. 9 Q: Was Sergeant Seltzer a person who you 10 considered part of your command team? 11 A: Yes. 12 Q: All right. And in terms of his 13 background, he had a background in negotiating Aboriginal 14 issues? 15 A: I can't say he had a background in -- 16 in Aboriginal issues specifically. But he certainly was 17 a trained negotiator. 18 Q: And -- and you agree with me, you're 19 a sophisticated man, you're the deputy commissioner of 20 the OPP and you strike me as a sophisticated man, you'd 21 agree with me that there's a world of difference between 22 simply being a police negotiator and having a skill set 23 in Aboriginal issues? 24 A: Absolutely. 25 Q: Fine. If we can continue in respect
1181 of Chief Coles' report, paragraph 5, page 9. 2 "The need for sensitivity to the 3 pluralistic multiracial and 4 multicultural character of Ontario 5 society." 6 That really comes to the forefront in this 7 particular case, doesn't it, sir? 8 A: Sure. 9 Q: And you agree with that principle? 10 A: Of course. 11 Q: But, there are limits on how much you 12 could invoke that principle in that time period wasn't 13 there? 14 A: To some degree, yes. 15 Q: "The need to ensure that police 16 forces are representative of the 17 communities they serve." 18 Now, we've already tread ground about the 19 inability to rely on First Nations policing and I am in 20 no way examining you in a critical fashion on this issue. 21 I certainly concede I've examined you in a critical 22 fashion on other areas. 23 There were institutional barriers in the 24 way of a proper bridge between First Nations policing and 25 the OPP, correct?
1191 A: I -- I'm sorry I don't understand. 2 Q: Well, you said that you had limited 3 success trying to build bridges. 4 A: Oh -- oh, correct, with the -- with 5 the Kettle Stoney Point police. 6 Q: And would you agree with me it wasn't 7 because of -- it wasn't because of one person's fault? 8 Would you agree with that? 9 A: Partially. 10 Q: You don't like Miles Bressette? 11 A: I have -- I have nothing against 12 Miles Bressette but he was of a certain position and all 13 the effort in the world that I could make would not 14 change his position unfortunately. 15 Q: And he feels the same about you? 16 A: I have no idea how he feels about me. 17 Q: Well, you -- you met with him at 18 length, so you do know something about what he thinks of 19 you. 20 A: When he had to, he worked with me in 21 a cordial manner. 22 Q: Okay. And I ask you this not to be 23 difficult, sir, I ask you this because I'm trying to 24 explore the limited success you had. In other words how 25 do we account for the inability to build those bridges?
1201 You're a sophisticated officer, you went 2 with the mission since 1989 and you couldn't build the 3 bridges so that Project Maple could include that 4 component, right? 5 A: Right. 6 Q: And -- and I'm trying to understand 7 why. 8 A: We -- we had other -- right. But in 9 all fairness we had other First Nations officers at 10 Forest Detachment, and Luke George and Vince George who 11 worked at Forest as well. 12 Q: And they played a role in Project 13 Maple? 14 A: They assisted -- well I shouldn't say 15 'they'. Vince assisted on the criminal investigation 16 side to some degree. But, they were not -- and I think 17 I've eluded to -- or it's in the minutes anyway, where 18 there was some concern about maybe some animosity towards 19 Vince in particular. 20 So, I mean that -- that was another 21 dynamic I had to be mindful of. 22 Q: And again, I'm going to suggest to 23 you that none of this is sort of unique to this 24 particular fact situation. There is some trends that 25 exist in the tensions between trying to have OPP
1211 cooperate with First Nations policing that simply 2 manifested itself in this case; would you agree? 3 A: Well there's a whole host of factors 4 if that's what you're getting at. The relationships on 5 the Reserve -- I mean, Luke and Vince George, for 6 instance born and raised there, and the relationships 7 they had with some of the people there. 8 And you know, there's a variety of 9 dynamics that go on in -- in -- in that -- in that 10 environment and so I certainly had to be mindful that not 11 everyone would be receptive to Vince simply because he 12 was a First Nations person. 13 Q: Yes. And at the same time you were 14 mindful of the importance of having First Nations people 15 as part of the negotiation effort, yes? 16 A: Fair enough. 17 Q: But, you didn't have them? 18 A: No, I didn't have any. 19 Q: And that's because of many, I'm 20 going to suggest to you, institutional barriers beyond 21 your control? 22 A: In 1995, I'd agree. 23 Q: Now, the next page, page 10 of the 24 report, keeping in mind this is written by Chief Coles 25 just a number of weeks after Dudley George dies.
1221 Section 25 of the Criminal Code states 2 that: 3 "A peace officer is, if he acts on 4 reasonable probable grounds, justified 5 in doing what he's required or 6 authorized to do and in using as much 7 force as is necessary for that 8 purpose." 9 And that's what you did that night? 10 A: Yes. Every officer operates on that 11 premise. 12 Q: But, that's what you did that night, 13 when you took -- that -- that CMU team and that TRU team 14 and those -- it's actually two (2) canine units is 15 reflected in the SIU report, that troops that you had 16 marching, that was your force that you were using, 17 correct? 18 A: Yes. 19 Q: And you had Section 25 in mind, 20 didn't you? 21 A: I felt it was reasonable. 22 Q: "Public order situations such as we 23 are facing at Ipperwash must be 24 responded to be police officers who are 25 trying to preserve the peace. Public
1231 safety must take precedent over 2 property crimes. 3 Command at Ipperwash has also acted in 4 a manner that follows this reasoning. 5 In an effort to preserve peace, our 6 path has been one of negotiations. 7 Initially, negotiators spoke from the 8 heart to preserve the peace. My 9 concern now is that political agendas 10 on behalf of the native community are 11 now slowing these negotiations." 12 Do you agree with that paragraph? 13 A: Apparently, that is Coles' opinion. 14 I think you have to take the context there. I would 15 suspect, given the terminology, this is his analysis of 16 progress post-September 6th. 17 Q: But, you also knew that former 18 Premier Mike Harris had a political agenda? 19 A: Oh, of course. 20 Q: We know that, we don't need to go 21 back. 22 A: No. 23 Q: You knew that there were political 24 agendas across the board that made resolutions difficult 25 if not impossible?
1241 A: Of course. 2 Q: The Department of National Defence 3 and the Federal Government had a political agenda? 4 A: Yes. 5 Q: And that political agenda was not 6 one in which it made your job easier? 7 A: That's certainly true. 8 Q: In that agenda, you're the Deputy 9 Commissioner of the OPP, correct? 10 A: Yes, I am. 11 Q: You've been testifying for days and 12 days in a very important Royal Commission of Inquiry into 13 the death of Dudley George and the systemic issues that 14 flow from it, right? 15 A: Yes. 16 Q: Do you see the Federal Government 17 represented at this table anywhere? 18 COMMISSIONER SIDNEY LINDEN: Now, come 19 on, Mr. -- I mean, it's obvious that they're not and it's 20 not a point of cross-examination. It's obvious they're 21 not here. 22 MR. JULIAN FALCONER: With respect, Mr. 23 Commissioner -- 24 COMMISSIONER SIDNEY LINDEN: They're not 25 here.
1251 MR. JULIAN FALCONER: With respect, Mr. 2 Commissioner, I know it's obvious that they're not here. 3 On the other hand, a high ranking administrator of the 4 OPP who has undergone a very difficult process of 5 questioning, who has faced a very significant problem by 6 the inactivity of the Federal Government in 1995, is 7 faced with a metaphor that's virtually identical today. 8 And with great respect, I'm seeking to 9 develop that in the evidence because it's one (1) of the 10 institutional realities that challenge this process. 11 COMMISSIONER SIDNEY LINDEN: Yes. 12 MR. JULIAN FALCONER: Mr. Henderson made 13 glib reference to it yesterday, but it's -- it's a 14 reality, it's a barrier. 15 COMMISSIONER SIDNEY LINDEN: Yes. 16 MR. JULIAN FALCONER: And it was a 17 barrier in '95. 18 COMMISSIONER SIDNEY LINDEN: So, it's 19 obvious that it's a fact. I mean, it's cross-examination 20 that I'm questioning, not the fact. 21 MR. JULIAN FALCONER: All right. 22 COMMISSIONER SIDNEY LINDEN: The fact is 23 well-known. 24 MR. JULIAN FALCONER: I'm -- I'm going to 25 a fact.
1261 COMMISSIONER SIDNEY LINDEN: Yes. I mean 2 I'd -- 3 MR. JULIAN FALCONER: If -- 4 COMMISSIONER SIDNEY LINDEN: -- I'd like 5 you to complete your cross-examination; that's a fact 6 that's well-known. And it doesn't help us to have you 7 ask questions that elicit facts that are well-known. 8 9 CONTINUED BY MR. JULIAN FALCONER: 10 Q: If a partner at the table, a key 11 player at the table -- I apologize for use of the word, 12 "table." If a key player in a very difficult situation 13 doesn't come to the table as a Deputy Commissioner of the 14 OPP does that make your job harder or easier? 15 A: Of course it makes it difficult. 16 Q: The Federal Government didn't make it 17 easier for you in 1995? 18 A: No, they did not. 19 Q: And the Federal Government's not 20 making it easier today, are they? 21 A: Correct. 22 Q: The next paragraph: 23 "Public opinion against the First 24 Nations people in the Ipperwash area is 25 now, in my opinion, at an all-time
1271 high. 2 And I -- I misread it. 3 "Public opinion against the First 4 Nations people in the Ipperwash area is 5 now, in my opinion, at an all time 6 high." 7 This is late September 1995. 8 "Residents of Bosanquet Township for 9 many years have constantly had First 10 Nations land claim issues front and -- 11 front and centre in the local media. 12 My concern is that there is an element 13 of the non-native public that may take 14 the law into their own hands. This can 15 have disastrous results on policing in 16 Ontario and possibly Canada." 17 Did you agree that that was the situation 18 in September 1995? 19 A: Correct. 20 Q: You were of the view at the time that 21 vigilante groups may well form and take the law into 22 their own hands? 23 A: There was certainly that potential. 24 Q: And that was a sufficient concern for 25 Chief Coles that it's included as a paragraph in his
1281 report in his conclusion, correct? 2 A: Well -- well, that's what he put in 3 his report. 4 MR. DERRY MILLAR: This is -- this is 5 Chief Coles' report. 6 COMMISSIONER SIDNEY LINDEN: Yes, Chief 7 Coles -- 8 MR. DERRY MILLAR: Not this witness'. 9 COMMISSIONER SIDNEY LINDEN: -- is going 10 to be called as a witness. 11 MR. JULIAN FALCONER: No, that's fine, 12 I -- 13 COMMISSIONER SIDNEY LINDEN: You can deal 14 with it then. 15 MR. JULIAN FALCONER: -- know when -- 16 I'm going -- my question was, does he agree with it? 17 COMMISSIONER SIDNEY LINDEN: Yeah, I 18 understood, that question was fine. 19 MR. JULIAN FALCONER: And then I put to 20 him Chief Coles thought it was important enough to 21 include it in his -- 22 COMMISSIONER SIDNEY LINDEN: Well, we 23 don't know if -- 24 MR. JULIAN FALCONER: That's true, 25 you're --
1291 COMMISSIONER SIDNEY LINDEN: -- it was 2 that question that the -- 3 MR. JULIAN FALCONER: I withdraw the 4 question. 5 COMMISSIONER SIDNEY LINDEN: -- the 6 objection. Sure, the first question was fine. 7 MR. JULIAN FALCONER: I concede sometimes 8 I'm wrong. Often, often, often I'm wrong. 9 COMMISSIONER SIDNEY LINDEN: Carry on. 10 11 CONTINUED BY MR. JULIAN FALCONER: 12 Q: "In order to respond adequately to 13 First Nations demonstrations such as 14 Oka, Gustafson Lake and Ipperwash, 15 police response will require a higher 16 commitment in order to contain the 17 situation; that response will be 18 perceived to be an escalation of police 19 power by natives. 20 I suspect that certain elements of the 21 native community will also escalate the 22 power of their demonstrations. This 23 escalation by both sides will 24 tragically lead to more violence and 25 ever-escalating responses.
1301 A police commander can only respond to 2 the situation with the tools and 3 resources that she or he has at hand 4 and becomes limited by the very laws we 5 undertake to uphold. 6 At Ipperwash, various charges have been 7 laid including offences against 8 property, common assault, mischief and 9 now attempt murder. 10 Should the situation and demonstrations 11 in the future escalate, I feel that the 12 riot provisions of the Criminal Code 13 will have to be pursued. 14 Utilization of the Riot Act, of course, 15 has other legal issues that must be 16 addressed. I am pursuing these legal 17 issues with the regional Crown Attorney 18 in order to see if the option is a 19 valid one." 20 And the last paragraph I read to you, but 21 to be fair to the chief I want to finish with it. 22 "I believe the situation at Ipperwash 23 can be resolved peacefully if both 24 sides are interested in a peaceful 25 solution. While in command, I will
1311 continue to try to achieve a peaceful 2 solution." 3 Now, let me ask you. Those last portions 4 I read to you, do you agree with them, starting with, 5 "public opinion against the First Nations"? 6 A: Yes. 7 Q: Okay. Do you agree that Chief Coles, 8 lumping Oka, Gustafson Lake and Ipperwash, and the fact 9 of a necessity of a higher commitment to police power is 10 an answer? 11 A: I don't believe that's what he's 12 saying. I think what he's saying is these situations are 13 going to demand a higher police involvement or a higher 14 police commitment to it, is I think what he's trying to 15 say here, but he'd be best to explain what he was 16 thinking. 17 That's certainly my sense of it. 18 Q: He refers to an escalation by both 19 sides; do you see that? 20 A: Yes. 21 Q: And you agree with that? 22 A: Well that's -- that's unfortunately 23 what can happen. 24 25 (BRIEF PAUSE)
1321 Q: You had a theory that the Gustafson 2 Lake had a true connectivity to what was going on at 3 Ipperwash; isn't that right? 4 A: I was certainly concerned it did, 5 yes. 6 Q: And naturally, with a concern like 7 that, you took it into account in the actions you did, 8 correct? 9 A: I'm not sure what you're referring 10 to? 11 Q: Well, I want to -- if you had a 12 concern about a connectivity, then presumably you felt 13 there was certain similarities between Ipperwash and 14 Gustafson Lake, yes? 15 A: Well, as a commander, I have to be 16 mindful of other incidents that are going on that may be 17 have some relationship and try to determine if we can 18 draw any comparisons. 19 And it's just -- 20 Q: You felt there were similarities 21 between the incidents? 22 A: They were both land claim issues. 23 Q: Right. 24 A: Potential. 25 Q: But, to be fair, sir, at page 178 of
1331 your examination in-chief, on May 12th, you said, quote: 2 "I called Inspector Grey (phonetic) at 3 the RCMP in British Columbia in regards 4 to the natives stand-off at Gustafson 5 Lake. We discussed the similarities of 6 the incident. 7 Some of the issues they were dealing 8 with was jamming communications. The 9 natives were the Shuswap Nation." 10 You said -- you were asked the question 11 and you gave those answers, yes? 12 A: Yes. I called the RCMP. 13 Q: And you felt there were similarities 14 between the incidents? 15 A: Correct. 16 Q: You further stated: 17 "I was aware the incident was underway. 18 It was in national news and certainly 19 in our discussions with Chief Coles and 20 others, it wasn't hard to be aware of 21 it." 22 And that ended up being part of the 23 discussions. 24 "Is there any similarities or issues we 25 need to be aware of."
1341 You also spoke to Mr. -- or Officer 2 Hutchinson, correct? 3 A: Yes, I did. 4 Q: And you spoke to him routinely? 5 A: Routinely? 6 Q: Well, a number of calls. I see a 7 number of calls between you and Hutchinson in BC, right? 8 A: I think there was two (2). 9 Q: All right. And in each case it was 10 to discuss what was going on at Gustafson Lake? 11 A: Yes. 12 Q: Your call to GM about the light 13 armoured vehicle, you actually referred to the 14 similarities with Gustafson Lake, true? 15 A: I -- I could have, yes. 16 Q: Now Gustafson Lake involved a 17 scenario where in essence the First Nations community 18 members armed themselves, and armed themselves in an 19 offensive fashion with guns against police, correct? 20 A: Yes. 21 Q: That didn't happen here, did it? 22 A: No. 23 Q: If a white person in BC gets in a 24 standoff with police and doesn't resort to a gun, should 25 it be compared to a white person in Ontario who does
1351 resort to a gun? 2 A: Not necessarily. 3 Q: But, in fact what you did was you 4 said, there's a First Nations person here, unarmed, for 5 all intense and purposes, because to be a hunter isn't 6 illegal, right? 7 A: No. 8 Q: There's a First Nations person here 9 that's unarmed, in terms of police confrontation and 10 there's a First Nations community across the country that 11 is armed and to me, they may well be the same. 12 That's what your mind set was, correct? 13 COMMISSIONER SIDNEY LINDEN: He didn't 14 say the same, sir. And I -- 15 MR. JULIAN FALCONER: I didn't say he 16 did. I'm suggesting it to him. 17 COMMISSIONER SIDNEY LINDEN: Yes, you're 18 saying that he said -- 19 MR. JULIAN FALCONER: I'm saying, in your 20 mind set they may well be the same, correct? 21 COMMISSIONER SIDNEY LINDEN: I thought 22 you were putting to him what he had said. 23 MR. JULIAN FALCONER: Yes. 24 COMMISSIONER SIDNEY LINDEN: Okay. 25 You're putting it him --
1361 MR. JULIAN FALCONER: No, no. I'm not. 2 COMMISSIONER SIDNEY LINDEN: I'm sorry I 3 didn't mean to interrupt you. 4 MR. JULIAN FALCONER: No problem and I 5 appreciate the clarification, Mr. Commissioner. 6 COMMISSIONER SIDNEY LINDEN: Okay. 7 8 CONTINUED BY MR. JULIAN FALCONER: 9 Q: That was your mind set, correct? 10 A: I don't agree. 11 Q: You did spend a significant amount of 12 time chatting about Gustafson Lake. 13 A: Yes, I did. 14 Q: And you used the words similar on 15 more than one (1) occasion? 16 A: Correct. 17 Q: And you called for light armoured 18 vehicles and referred to Gustafson Lake. 19 A: Yes. 20 Q: You had a worry you were getting or 21 getting into a Gustafson Lake? 22 A: It had the potential. 23 Q: And you had to address that 24 potential? 25 A: Of course.
1371 Q: That was your job? 2 A: Yes, it is. 3 Q: Officer safety? 4 A: Public safety, yes. 5 Q: And from your perspective at the end 6 of the day it wasn't a Gustafson Lake? 7 A: True. 8 Q: Do you have any confidence that the 9 officers that were marching on those Aboriginal 10 communities didn't thing of it as a Gustafson Lake? 11 Do you have any confidence of that? 12 A: I don't know what their view was in 13 relation to Gustafson Lake. 14 Q: Well let me be more specific with my 15 question. 16 A member of the TRU team who is marching 17 on those people, that that member of the TRU team, for 18 example, thinks there's AK-47's that he's walking into, 19 he's likely to see things differently especially in the 20 dark than someone who thinks it's not a Gustafson Lake? 21 Would you agree with that? 22 A: No. 23 Q: He's going to think the same way. 24 A: A TRU team member is always going to 25 be vigilant, that is part of their function. And I would
1381 suggest to you regardless of it's an issue like Ipperwash 2 or if it is an armed standoff which they routinely 3 encounter, that vigilance is something that is part and 4 parcel of what they face on a regular basis. 5 Q: The anticipated evidence of William 6 Klym Officer -- Constable William Klym. In his statement 7 he describes, quote: 8 "En route [that's en route, the TRU 9 team] we were advised by Constable 10 Zupancic who was acting in the TOC as a 11 communicator for the information that 12 there had been information with respect 13 to weapons being seen at the roadblock. 14 AK-47 or similar-type weapons as well 15 as a Molotov cocktail had also been 16 reported. While en route to the 17 command post at Forest we were advised 18 that we were turn back and head back to 19 the Pinery. No other information was 20 provided." 21 And he goes on. 22 Members of the TRU team -- and -- and, by 23 the way, is there any reason to think Constable Zupancic, 24 who's in charge of the TRU members, would tell one (1) 25 TRU member there's AK -- there's information.
1391 I'm sorry, Constable Zupancic, who's the 2 communications person for TRU, my apologies, is there any 3 reason to believe that the communications person would 4 tell Officer Klym one (1) thing and the other officers 5 something different? 6 A: No. 7 Q: No. 8 A: It's Officer Klym, just for the 9 record. 10 Q: You didn't believe there were AK-47's 11 and Molotov cocktails there, you already told us that? 12 A: The -- there was information that 13 evening that there were. 14 Q: But you didn't take it seriously? 15 A: I -- I didn't know if there were or 16 there weren't. Certainly, you know, I was certainly 17 aware of the information and that information was passed 18 on. 19 Q: Sir, with the greatest of respect, 20 the impression you left on this Commission was that you 21 did not take that information seriously. You even used 22 words like, "you had to consider the source". 23 A: Correct. 24 Q: Right. This TRU member team, the TRU 25 people marching from that aboriginal community were they
1401 told not to take the information seriously? 2 A: No. 3 Q: They marched down that road, people 4 with wives, kids, husbands, kids, they marched down the 5 road, those officers, worried there were AK-47's waiting 6 for them in the dark, didn't they? 7 A: That was a potential. 8 Q: What steps did you take to dispel 9 them of notions that were unlikely to be true and purely 10 fantasy? 11 A: I did not take any steps to suggest 12 there were not firearms available. In any TRU team call, 13 whatever information we have in regards to potential 14 weapons is always communicated to them in every instance. 15 Q: Officer Irvin (phonetic) was number - 16 - was another member of the team, correct? 17 A: Yes. I believe he was on that team. 18 Q: The information he has is quoted at 19 page 3 of his statement: 20 "We were called out and we went to 21 Pinery Park at that time. I met 22 various ERT team members in the OPP and 23 we were talking to those people and 24 material that was provided to us. I 25 understood that various officers had
1411 heard fully automatic shooting from 2 inside the Provincial Park -- heard 3 from inside the Provincial Park where 4 the ERT members had been thrown." 5 So, people driving in and around the area, 6 in fact, even out -- heard a lot of gunfire coming from 7 inside the Park on or about the 6th of September. 8 When these people marched, they marched 9 thinking they were walking into guns, didn't they? 10 A: They knew that could be a potential. 11 Q: They actually believed they were 12 walking into guns, didn't they? 13 A: Like I said, they knew that was a 14 potential. 15 Q: When Kenneth Deane shot Dudley George 16 and thought a stick was a gun, right, is it surprising? 17 Is it surprising, sir? 18 A: I can't speak for what Ken Deane 19 believes he saw, sir. 20 Q: You can speak for the decision to 21 deploy those people in the dark, can't you? 22 A: Yes. 23 Q: You can speak for the fact that in an 24 hour and twenty-six (26) minutes you turned a situation 25 you knew nothing about, the deployment of large amounts
1421 of force, into marching on those people; you can speak to 2 that? 3 A: Yes. 4 Q: And you can speak to the 5 consequences? 6 A: Yes. 7 Q: And that's what I'm asking you to 8 do, with respect, sir. 9 A: I can't speak for what an individual 10 officer sees and what he believes he has to do. 11 Q: You have control over the information 12 they're given? 13 A: I have no control over what he sees 14 and he believes he is required to do. 15 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 16 Millar? 17 MR. JULIAN FALCONER: I'm going to move 18 on. 19 MR. DERRY MILLAR: Yes, because -- 20 COMMISSIONER SIDNEY LINDEN: If you're 21 moving on -- 22 MR. DERRY MILLAR: He cannot say what -- 23 MR. JULIAN FALCONER: Fine, I'm moving 24 on. 25 MR. DERRY MILLAR: -- Kenneth Deane
1431 thought. 2 COMMISSIONER SIDNEY LINDEN: I know. 3 MR. JULIAN FALCONER: I understand. I 4 understand. I'm moving on. 5 6 CONTINUED BY MR. JULIAN FALCONER: 7 Q: The Connolley Report was a report 8 conducted by the OPP. To your knowledge you were 9 apprised of that through the questioning of Mr. Ross, 10 correct? 11 A: Correct. 12 Q: In it is basically a form of 13 debriefing on the issues surrounding what happened at 14 Ipperwash, yes? 15 A: I -- I haven't reviewed the report 16 other than what's been -- been put to -- to me in the 17 last couple of days here. 18 Q: It's Document 2000577. 19 20 (BRIEF PAUSE) 21 22 Q: I would propose two (2) things. I 23 expect, Mr. Commissioner, that this will keep coming up, 24 the Connolley Report, and since it's already on the 25 record, I respectfully submit we ought to make it an
1441 exhibit for the purposes -- subject to identification as 2 we go. 3 COMMISSIONER SIDNEY LINDEN: I think it 4 may be. 5 MR. JULIAN FALCONER: It -- 6 COMMISSIONER SIDNEY LINDEN: No? 7 MR. JULIAN FALCONER: I don't think it's 8 an exhibit. 9 MR. DERRY MILLAR: I think it was made an 10 exhibit yesterday. 11 THE REGISTRAR: No. 12 MR. JULIAN FALCONER: That -- that was my 13 note, it wasn't. 14 15 (BRIEF PAUSE) 16 17 COMMISSIONER SIDNEY LINDEN: I think the 18 witness testified that he hadn't seen it -- 19 MR. JULIAN FALCONER: Yeah. No. And -- 20 COMMISSIONER SIDNEY LINDEN: -- except in 21 preparation for this inquiry. 22 MR. JULIAN FALCONER: So I'm respectfully 23 submitting it ought to be made an exhibit now, and it 24 will become more clear as I ask some more questions. And 25 Mr. Ross had questions --
1451 COMMISSIONER SIDNEY LINDEN: You've got a 2 copy of it or...? 3 THE REGISTRAR: P-4 -- 4 MR. DERRY MILLAR: Well, the one thing 5 that -- I have no objection to it being made an exhibit. 6 This was commissioned by Commissioner O'Grady, who will 7 speak to it. 8 This was a -- but I anticipate the 9 evidence will be, as it is clear from here, this was a 10 documentary review by Inspector Connolley. And that this 11 witness has never seen this document, and he explained 12 in-chief actually, that's where it first came up, that he 13 had never seen the document and explained the reasons 14 why. 15 But I have no objection to it being made 16 an -- an exhibit. 17 COMMISSIONER SIDNEY LINDEN: Now. 18 MR. DERRY MILLAR: Now. 19 COMMISSIONER SIDNEY LINDEN: Because it 20 will be referred to by Commissioner O'Grady -- 21 MR. DERRY MILLAR: It will be, because 22 I'm going to ask Commissioner O'Grady about it, but it's 23 with those limitations. 24 COMMISSIONER SIDNEY LINDEN: That's fine. 25
1461 CONTINUED BY MR. JULIAN FALCONER: 2 Q: Do you have a copy of the report in 3 front of you, sir? 4 A: I don't believe so. 5 Q: If I could -- so the first step is 6 could we please make it the next exhibit? 7 THE REGISTRAR: P-483, Your Honour. 8 MR. JULIAN FALCONER: Thank you. 9 COMMISSIONER SIDNEY LINDEN: P-483. 10 11 --- EXHIBIT NO. P-483: Document Number 2000577 OPP 12 Ipperwash Inspector G.C. 13 Connolley's Report. 14 15 COMMISSIONER SIDNEY LINDEN: Thank you. 16 17 (BRIEF PAUSE) 18 19 CONTINUED BY MR. JULIAN FALCONER: 20 Q: Since the report was raised by other 21 counsel, have you had an opportunity to read the report? 22 A: No. 23 Q: There is a great deal of reasonable 24 empathy that can be provided to a police officer involved 25 in an incident like this. Because, on the one hand,
1471 you're told not to talk to anybody about it, right, and 2 not to taint your potential evidence. 3 On the other hand, you don't know about 4 any of the developments after the fact; right? 5 A: That's correct. 6 Q: So it's a bit of a problem. You're 7 not allowed to inform yourself or -- or it's better if 8 you don't. And on the other hand, when people ask you 9 about things, you don't know about them. 10 A: Well, it's inappropriate me -- for me 11 to get involved in some of this. 12 Q: Right. But would you agree with me, 13 and this is where I'm going with this and why I'm asking 14 you about it, that if a document such as this, and at 15 pages 10 and 11 you'll see a series of recommendations; 16 all right? 17 If a document such as this is generated 18 by the OPP relating to the systemic issues and coming out 19 of Ipperwash and -- and relating to -- to potential 20 recommendations to fix things, as the incident commander 21 on site can you think of, off the top of your head, a 22 reason you shouldn't be familiar with the contents of the 23 report? 24 I'm not being critical of you because I 25 know about the difficulty, that's why I started with
1481 this. I -- I want to address it with you. 2 Can you think of a reason you shouldn't 3 see such a report? 4 A: Well, my understanding was that this 5 -- I -- I had no idea there was going to be an analysis 6 of the collection of documents. I was aware of documents 7 being collected. Connolley came and retrieved some 8 documents from myself. I had no idea of what was going 9 to be done with those documents other than cataloguing 10 them for the potential requirement. 11 Q: I -- I'm not talking about your 12 knowledge then, I'm talking about access to the report 13 once it's done. 14 A: No, that's fair. But my -- my point 15 is I had no idea that the report was going to end up 16 being an analysis and a report that -- 17 Q: Fair enough. 18 A: -- would have recommendations 19 attached to it. 20 Q: I'm not even sure it would be 21 appropriate for you to take the initiative to go get the 22 report. It would, to me, up to someone else to decide 23 what's appropriate for you to see and not. So I -- I do 24 not say this critically. 25 A: No. I --
1491 Q: I simply ask you -- 2 A: No. I just want to put context to 3 it. 4 Q: Fair enough. Can you think of a 5 reason, on reflection, why this report should not have 6 been brought to your attention? 7 A: Without -- for the most part, I would 8 say I don't know why I shouldn't or couldn't have access 9 to it. I don't know if there was any anticipation to be 10 conflict with any of the other processes that may have 11 been forthcoming at that point in time. 12 And without a discussion with Commissioner 13 O'Grady, I'm not sure what the intention of the report 14 was. 15 Q: Okay. But off the top of your head 16 you don't know of a specific reason why you shouldn't 17 have seen this report? 18 A: Correct. 19 MR. JULIAN FALCONER: If My Friend, Mr. 20 Millar, because of my poor research, could help me on the 21 date of the report, because I didn't see it off the front 22 page or anywhere else. I don't know, maybe Mr. Sandler 23 can assist me? 24 THE WITNESS: It was probably around '97. 25
1501 CONTINUED BY MR. JULIAN FALCONER: 2 Q: All right. 3 A: '97 ish. 4 MR. DERRY MILLAR: Yeah, it's at least -- 5 and sometime in late -- I don't know the exact date, but 6 it's -- I believe there's a letter somewhere, but it's 7 sometime in 1997, in the latter part of the year, or 8 perhaps in 1998. 9 MR. JULIAN FALCONER: Thank you. 10 THE WITNESS: In fact, in the preamble it 11 says in April of '97, Connolley was assigned to gather 12 this, so... 13 MR. DERRY MILLAR: Yeah. 14 MR. JULIAN FALCONER: Yeah, there's just 15 no date for the report, is why -- 16 THE WITNESS: Yeah. 17 18 CONTINUED BY MR. JULIAN FALCONER: 19 Q: But I'm not trying to be difficult 20 about it, I'm just -- 21 A: No, no, but it was in -- 22 MR. MARK SANDLER: I don't have it with 23 me, but we do have the date, we can provide that. 24 MR. JULIAN FALCONER: Thank you. 25
1511 CONTINUED BY MR. JULIAN FALCONER: 2 Q: And it -- it's possible that five (5) 3 years has passed since the creation of this report, and 4 that you never saw it? 5 A: More than five (5). 6 Q: The reason I say that is from a 7 systemic point of view, if -- if something did go wrong 8 on September 6th, 1995, and the OPP in a conscientious 9 fashion have started to address those issues, you'd think 10 the Incident Commander would be part of the information 11 to flow from that. 12 COMMISSIONER SIDNEY LINDEN: Do you want 13 to mention -- does somebody want to mention the 14 Symposium? 15 MR. DERRY MILLAR: We've already, as I've 16 told all counsel, he's explained about the -- why he 17 wasn't given it. But the -- the -- we're calling 18 evidence as to what the Ontario Provincial Police has 19 done with respect to these recommendations and other 20 recommendations. 21 We're calling Mr. Connolley, he's going 22 to -- I mean Mr. O'Grady. He's going to say what he did 23 when he got these things. We're calling Commissioner 24 Boniface, she's going to say other things that -- that 25 have been done since she's been in charge as
1521 Commissioner. We're dealing with all of these, with 2 evidence from the Ontario Provincial Police. 3 COMMISSIONER SIDNEY LINDEN: We're also 4 sponsoring a symposium, or a seminar, I'm not sure 5 exactly what we're calling it. You've been involved in 6 developing that haven't you, Mr. Sandler; which is going 7 to talk to what's been done in the last few years? 8 MR. MARK SANDLER: Yes. What is 9 contemplated is that -- is that there will be a 10 presentation in September -- 11 COMMISSIONER SIDNEY LINDEN: Yes. 12 MR. MARK SANDLER: -- that addresses not 13 only the relationship between First Nations and the OPP, 14 in terms of policing, but the initiatives that have taken 15 place back before, during, and subsequent to 1995, right 16 up until the present, in areas of recruitment, areas of 17 interrelationships. 18 And -- and in addition to that symposium, 19 I've had discussions with your counsel, with a view to 20 facilitating the attendance of -- of at least some of the 21 parties here at an actual incident command simulation 22 that takes place at present -- 23 COMMISSIONER SIDNEY LINDEN: Yes. 24 MR. MARK SANDLER: -- with the First 25 Nations scenario.
1531 COMMISSIONER SIDNEY LINDEN: Are you 2 aware of all of this, Mr. Falconer, are you aware of any 3 of this or some of this; because it hasn't been announced 4 publicly? 5 MR. JULIAN FALCONER: Well, I don't -- 6 COMMISSIONER SIDNEY LINDEN: We're still 7 working on it, but I know that -- 8 MR. JULIAN FALCONER: -- I don't want to 9 create the impression that I don't have moles and I can't 10 learn stuff secretly, so I won't say I'm not aware of all 11 -- of some of the -- I am. 12 But on the other hand, my question -- 13 Mr. Commissioner, you raised the issue, so counsel are 14 just addressing what you raised. Those are what I would 15 consider obviously initiatives, and they're important. 16 COMMISSIONER SIDNEY LINDEN: Yes. 17 MR. JULIAN FALCONER: And I'm not 18 doubting that. And I wasn't for example, challenging 19 Deputy Carson saying, you folks have done nothing. It's 20 -- that wasn't the line of my questioning. 21 What I want to explore is his involvement, 22 as in what the Incident Commander, since 1995, has 23 learned as to some of the systemic problems the OPP has 24 identified flowing from the incident. 25 COMMISSIONER SIDNEY LINDEN: Well, I --
1541 MR. JULIAN FALCONER: And that's a 2 different question. 3 COMMISSIONER SIDNEY LINDEN: All right. 4 MR. JULIAN FALCONER: Because the more I 5 hear, the more I hear that he was basically put in what 6 one might call a cone of silence, which by the way turns 7 out to be -- exist in the legal dictionary, if you can 8 believe it, the cone of silence is in the legal 9 dictionary, Black's Legal Dictionary, quite simple. 10 But that's why I'm going where I'm going. 11 COMMISSIONER SIDNEY LINDEN: Mr. 12 Sandler...? 13 MR. MARK SANDLER: The -- the difficulty 14 is it's a little bit surrealistic, because this is a very 15 unusual situation. You've got -- you've got the events 16 that occurred in '95, then we've had a series of legal 17 proceedings, including a civil suit that have taken place 18 that have, as you've heard from the witness, that have 19 narrowed the ability of the witness to be engaged -- 20 COMMISSIONER SIDNEY LINDEN: Involved. 21 MR. MARK SANDLER: -- in some of the 22 issues. So -- so the difficulty is that we're going to 23 talk about the initiatives that are taking place. We 24 didn't think we'd -- we'd put the entire burden of 25 everything that the OPP has to say about everything upon
1551 this witness. As you see, he's already testified for 2 eighteen/nineteen (18/19) days. 3 COMMISSIONER SIDNEY LINDEN: Yes, 4 certainly not at this point in his testimony, in any 5 event, so -- 6 MR. MARK SANDLER: Exactly, and -- and 7 the difficulty is that it's a little bit unfair to say, 8 so this is how the OPP briefs its Incident Commanders, 9 given that history of legal process that has followed. 10 That's all I'm saying. 11 COMMISSIONER SIDNEY LINDEN: Yes. 12 MR. MARK SANDLER: If My Friend wants to 13 direct questions to any of the other people that -- that 14 Mr. Millar suggested about, you know, how do you ensure 15 that the Incident Commanders know about the things we're 16 doing. That's fair, that's perfectly appropriate 17 questioning. 18 COMMISSIONER SIDNEY LINDEN: That's fine. 19 Yes, Mr. Falconer, do you want to -- you've got something 20 to say on this? 21 MR. JULIAN FALCONER: It -- It's 22 certainly generated a long pause between the appropriate 23 question and getting an answer. 24 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 25 Henderson...?
1561 MR. WILLIAM HENDERSON: I -- I just 2 wanted to interject if I may, Commissioner. The line of 3 questioning that -- that Mr. Falconer is pursuing seems 4 to me, with respect to this Witness and the knowledge 5 that he gained, and the circumstances in which he gained 6 it, is perfectly proper -- 7 COMMISSIONER SIDNEY LINDEN: Yes. 8 MR. WILLIAM HENDERSON: Far more so if 9 someone, at some point, is going to ask this particular 10 witness for his recommendations or advice to you, the 11 circumstances in which -- 12 COMMISSIONER SIDNEY LINDEN: Well -- 13 MR. WILLIAM HENDERSON: -- you know, in - 14 - in light of the experience, what he has learned since 15 the -- since the Incident, and things along those lines 16 would be useful information to you personally, not 17 institutionally. 18 COMMISSIONER SIDNEY LINDEN: That's fine. 19 We want to get Mr. Falconer finished before lunch as he's 20 promised -- 21 MR. DERRY MILLAR: We asked about 22 recommend -- 23 COMMISSIONER SIDNEY LINDEN: We're going 24 to have an early lunch, of course, you know that? 25 MR. JULIAN FALCONER: Well, I've got to
1571 say, I -- 2 COMMISSIONER SIDNEY LINDEN: I'm joking. 3 MR. JULIAN FALCONER: I don't think I now 4 will finish -- 5 COMMISSIONER SIDNEY LINDEN: Well, I -- 6 MR. JULIAN FALCONER: -- before lunch. 7 COMMISSIONER SIDNEY LINDEN: I would like 8 you to finish before lunch. 9 MR. JULIAN FALCONER: I've lost between 10 twenty (20) minutes and half an hour in discussions 11 today, which is fine, it's -- 12 COMMISSIONER SIDNEY LINDEN: It wasn't 13 that long at all, but in any event -- 14 MR. JULIAN FALCONER: No, in today, 15 between the beginning of the day and now, I've lost 16 between twenty (20) minutes -- 17 COMMISSIONER SIDNEY LINDEN: I don't 18 think so, but we'll -- 19 MR. JULIAN FALCONER: Right. 20 COMMISSIONER SIDNEY LINDEN: We'll go as 21 long as is necessary. 22 MR. JULIAN FALCONER: Thank you. I 23 thought -- 24 COMMISSIONER SIDNEY LINDEN: Now some of 25 questions were proper, and I didn't mean to stop you. I
1581 meant to make sure you had that information -- 2 MR. JULIAN FALCONER: And I appreciate 3 that. 4 COMMISSIONER SIDNEY LINDEN: -- in the 5 background, that's really all. So if you're asking 6 proper questions, carry on. 7 MR. JULIAN FALCONER: But I -- I know you 8 want me to finish for the lunch break, Mr. Commissioner. 9 You may well be ordering me to finish by the lunch 10 break -- 11 COMMISSIONER SIDNEY LINDEN: Well, we're 12 going to -- we're going to. We'll just have to prolong 13 lunch, if necessary. I -- 14 MR. JULIAN FALCONER: Well, I would say, 15 with respect, Mr. Commissioner, that that approach, if -- 16 if -- 17 COMMISSIONER SIDNEY LINDEN: Well -- 18 MR. JULIAN FALCONER: -- there is a 19 serious time savings involved, would make sense, but I 20 must say neither myself nor the witness should be put in 21 a situation where you're either starving in order to get 22 your last questions in, or somebody else is -- 23 COMMISSIONER SIDNEY LINDEN: Let's carry 24 on, Mr. Falconer -- 25 MR. JULIAN FALCONER: I'll --
1591 COMMISSIONER SIDNEY LINDEN: Please, it's 2 twenty (20) to 12:00, let's carry on. See if you can 3 finish before lunch. Thank you. 4 MR. JULIAN FALCONER: Thank you. Anyway, 5 it was simply food for thought, Mr. Commissioner. 6 COMMISSIONER SIDNEY LINDEN: And I'm 7 getting hungry. 8 9 CONTINUED BY MR. JULIAN FALCONER: 10 Q: The issues that your Counsel 11 addressed, Deputy Carson, when it came to the question of 12 what you knew, or didn't know simply brings me right back 13 to my question. 14 Was -- can you think of any reason, as you 15 sit here today, for there not being a benefit in you 16 having access to a report, like the Connolley report, 17 that identifies systemic issues that flow from the 18 Ipperwash Incident? 19 A: On the surface, I would say I -- I 20 don't know why, but at the same time, I don't know if -- 21 if any report would contain information that may 22 interfere with other processes that were outstanding at 23 that time, which I'm not really privilege to that 24 information. 25 Q: But certainly if you're the Incident
1601 Commander of all the people that we would like to -- to 2 see learn from the Incident, it is useful, you'd agree 3 with me, to the extent that we can do this without 4 tainting you as a witness, it would be useful for you to 5 have access about potential systemic change, and 6 potential recommendations for doing things better in the 7 future? 8 A: Correct. And one -- one (1) of the 9 challenges we face, and -- and we reviewed it yesterday, 10 or partially anyway, the operational review. 11 After major incidents, we normally do -- 12 do a debriefing with a -- a view for -- to do those very 13 things to identify ways of dealing with issues in a 14 better way, or identifying problems that could be 15 rectified in the future et cetera. 16 When there are outstanding investigations 17 et cetera, it precludes or it -- it certainly causes 18 legal concern about discussing all the facts in an open 19 forum, for all the reasons that would cause concerns for 20 those processes. 21 Q: Has a protocol been developed for 22 assisting to educate Command Officers on these kinds of 23 incidents, or incidents generally that have gone wrong; 24 has there been any protocol developed at all? 25 A: What happens, on an annual basis, all
1611 the Incident Commanders have a seminar, and reviews 2 whatever the issue -- topical issues are of the day, and 3 these types of things would also be part and parcel of an 4 Incident Command training package of new Incident 5 Commanders, which is a -- actually quite a -- an 6 extensive course in this day and age. 7 Q: So did you participate in that 8 process? 9 A: In which one? 10 Q: In -- in any of those Incident 11 Commander meetings or conferences to discuss the systemic 12 issues flowing from the management of the crisis at 13 Ipperwash? 14 A: No. 15 Q: No. So you've been kept, basically, 16 completely out of the loop on what, if any, systemic 17 problems the OPP may have identified as a result of this 18 Incident? 19 A: Well, there's a number of things 20 going on which I certainly had some opportunity for some 21 input. But have I publically gone before the Incident 22 Commanders in a course, or -- or those kinds of forums to 23 discuss it, and put it before them, I have not. 24 Q: It's just a housekeeping matter, but 25 you had made a reference, a number of times in your
1621 testimony, to remembering things ten (10) years later, 2 and this is a quick question. 3 I just want to confirm with you, you 4 testified in two (2) criminal trials, yes? 5 A: I believe it was at least two (2). 6 Q: Yes. And they would have been in the 7 time period of 1996 to 1998? 8 A: Correct. 9 Q: And then -- that's two (2) years 10 after the Incident, yes? 11 A: Yes. 12 Q: And then in addition to the '96/'97 13 trials, you testified in discoveries? 14 A: Yes. 15 Q: And in each time you testified, in 16 each of those times, you were being called upon to 17 remember events over which you were the Incident 18 Commander? 19 A: Yes. 20 Q: So you're not trying to suggest to 21 Mr. Commissioner, that the first time you've had to 22 actually create the kind of recall that lawyers have 23 asked you to create is ten (10) years later; This 24 isn't...? 25 A: Oh, I've never said that.
1631 Q: Okay. Good. In -- on the screen in 2 front of you there is a judgement by His Honour Judge 3 Fraser of April 28th, 1997. It's the judgement in 4 respect of the criminal trial of Kenneth Deane who shot 5 Dudley George. 6 A: Yes. 7 Q: Have you read that judgement? 8 A: Yes. 9 Q: It's Document Number 1005301. Now at 10 page 168 of the judgement, it's not a lengthy passage, 11 but I want to read it to you. At page 168 of the 12 judgement, line 15, it states: 13 "There were no Crown witnesses or 14 defence witnesses that saw any weapons 15 in the hands of the First Nations 16 people except for Sergeant Deane, and 17 except for Constable Chris Cossett. 18 And at this point, perhaps, I will 19 comment on the testimony of Constable 20 Cossett. The Crown called his 21 testimony amusing which is one word. I 22 might choose others. Rather than 23 scrutinize Constable Cossett's 24 testimony for any grains of truth that 25 might fall out, I have dismissed it
1641 entirely as being clearly fabricated 2 and implausible." 3 It is apparent, isn't it, from a reading 4 of that paragraph that Justice Fraser found that Officer 5 Cossett, who supported Kenneth Deane, lied, and lied 6 deliberately under oath, true? 7 A: He indicates that he fabricated it; 8 that's -- that's his conclusion. 9 Q: That he lied and he lied deliberately 10 under oath, true? 11 A: That's the judge's conclusion. 12 Q: Yes. Can you assist me as to what, 13 if any, steps the OPP have taken to investigate Constable 14 Cossett in respect of the misconduct identified by Judge 15 Fraser? 16 A: I really couldn't tell you. 17 Q: Okay. Let's back up a step. Is it 18 fair to say, as you sit here today, June 29th, 2005, my 19 father's birthday, as you sit here, happy birthday Dad -- 20 COMMISSIONER SIDNEY LINDEN: Happy 21 birthday. 22 23 CONTINUED BY MR. JULIAN FALCONER: 24 Q: As you sit there -- as you sit there, 25 can you assist me with this? To your knowledge,
1651 Constable Cossett has not been disciplined, correct? 2 A: That's -- well, I'm not aware of any 3 investigation or discipline related to that in regards to 4 Constable Cossett. 5 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 6 McGilp...? 7 MR. IAN MCGILP: Mr. Commissioner, I 8 would have thought this was a matter that has to be dealt 9 with on the motion that's coming up. 10 COMMISSIONER SIDNEY LINDEN: You weren't 11 here yesterday. We had some discussion of this, and it 12 depends on where he's going. If he drills any further 13 down, of course. But I don't think he is. I think -- 14 well I'm not sure. 15 MR. IAN MCGILP: Well the Witness, as I 16 understand it, has said he does not know whether or not-- 17 COMMISSIONER SIDNEY LINDEN: If he 18 doesn't know, then I think we're going to move on, that's 19 the point. 20 MR. IAN MCGILP: -- Constable Cossett was 21 disciplined. I'm not sure -- but then the next question 22 was, you don't -- as far as you know, he wasn't 23 disciplined. 24 COMMISSIONER SIDNEY LINDEN: No. Well -- 25 MR. IAN MCGILP: If that's the same
1661 question then there is no problem. 2 COMMISSIONER SIDNEY LINDEN: Yes, I think 3 that's what it is. 4 MR. IAN MCGILP: Okay. I'm sorry. 5 COMMISSIONER SIDNEY LINDEN: And if 6 there's any more then you may reserve your right to 7 object. Yes, yes, Mr. Falconer, I don't think we have a 8 problem here. 9 10 CONTINUED BY MR. JULIAN FALCONER: 11 Q: You'd agree with me that Judge 12 Fraser's finding is that a police officer testifying in 13 respect of a very serious matter, a shooting, and a 14 killing, a police officer testifying and deliberately 15 fabricating his evidence is very serious misconduct. 16 A: Of course. 17 Q: You're the Deputy Commissioner of the 18 OPP now, so I'm directing this question to you. Do you 19 think that from the perspective of the OPP, failing to 20 investigate or not investigating and not taking steps in 21 respect of discipline issues, in respect of this officer, 22 speaks well to the credibility of the OPP? 23 COMMISSIONER SIDNEY LINDEN: He doesn't 24 know if -- 25 MR. DERRY MILLAR: He doesn't know. How
1671 -- how can he answer that question? 2 COMMISSIONER SIDNEY LINDEN: He doesn't 3 know if they did or they didn't. 4 MR. JULIAN FALCONER: He doesn't have to 5 be -- it's -- as I -- as the question concluded -- 6 COMMISSIONER SIDNEY LINDEN: Yes. 7 MR. JULIAN FALCONER: -- I determined I 8 had to rephrase. 9 COMMISSIONER SIDNEY LINDEN: Yes, that's 10 fine. 11 12 CONTINUED BY MR. JULIAN FALCONER: 13 MR. JULIAN FALCONER: If, hypothetically 14 -- if, hypothetically, the -- your eyes are rolling. You 15 don't like my hypotheticals, I know. 16 If, hypothetically, the OPP has not 17 investigated Constable Cossett and if, hypothetically, 18 the OPP has not pursued any discipline investigation 19 against Constable Cossett in respect of the finding of 20 Judge Fraser, you'd agree with me that that speaks very 21 poorly to the appearance of the OPP in respect of 22 pursuing serious misconduct? 23 A: I don't know whether we investigated 24 or we didn't. 25 Q: Yes, but if hypothetically you
1681 didn't, would you agree with me? 2 A: I would agree. I would -- I would 3 suspect there'd be some -- some review of it, but exactly 4 what the circumstances are, I don't have an answer for 5 you. 6 Q: All right. I'm going to ask, as a -- 7 as a courtesy to Counsel and they don't see these as 8 courtesies, they see these as me being a pain, but as a 9 courtesy to Mr. Sandler, I'm going to be asking that 10 Constable Cossett's file, if there is a discipline file 11 in respect of the misconduct identified by Judge Fraser, 12 this be produced. 13 So, I'm raising it with Mr. Sandler. I 14 suspect there's no file. So, I mean, my experience on 15 what happens in the light of Judge's findings tells me 16 there's no file. 17 COMMISSIONER SIDNEY LINDEN: Well, that's 18 fine. 19 MR. JULIAN FALCONER: But -- 20 COMMISSIONER SIDNEY LINDEN: There's no 21 reason -- 22 MR. DERRY MILLAR: Well, he can stop 23 making this speech. 24 COMMISSIONER SIDNEY LINDEN: There's no 25 reason to make a speech.
1691 MR. DERRY MILLAR: We'll ask about if 2 there's a file. 3 COMMISSIONER SIDNEY LINDEN: Yes. 4 There's no reason to make a speech. 5 MR. JULIAN FALCONER: Well, that's not 6 fair. You know, I carried Mr. Millar with me all 7 morning, giving me a hard time, but that's okay, but I 8 didn't make a speech. 9 MR. DERRY MILLAR: I'm helping you. 10 COMMISSIONER SIDNEY LINDEN: No. No. 11 MR. JULIAN FALCONER: He is helping me 12 most of the time, that's true and he's a nice guy. You 13 see, I'm hungry now, I'm getting grumpy. 14 But in terms of the Inquiry, I would 15 appreciate it if it could be made and then we'll take it 16 the next step after. 17 COMMISSIONER SIDNEY LINDEN: That's fine. 18 MR. JULIAN FALCONER: Thank you. 19 20 (BRIEF PAUSE) 21 22 CONTINUED BY Mr. JULIAN FALCONER: 23 Q: Could I ask that the Kenneth Deane 24 judgment be made the next exhibit if it hasn't been made 25 an exhibit?
1701 COMMISSIONER SIDNEY LINDEN: Putting it 2 in now? 3 MR. DERRY MILLAR: Do you have a copy for 4 the Registrar? 5 MR. JULIAN FALCONER: Yes, I do. 6 THE REGISTRAR: P-484, Your Honour. 7 COMMISSIONER SIDNEY LINDEN: P-484. 8 9 --- EXHIBIT NO. P-484: Document Number 1005301 Judge 10 H. Fraser's Reasons for 11 Judgment Against Kenneth 12 Deane April 28, 1997 at 13 Sarnia , Ontario. 14 15 (BRIEF PAUSE) 16 17 CONTINUED BY MR. JULIAN FALCONER: 18 Q: There is a February 1996 minute that 19 reflects discussions that happened as a, sort of, post- 20 review of the Ipperwash incident, it's dated February 21 21st, 1996 and it's Exhibit P-457. 22 If page 8 of that report could be put on - 23 - on screen? The document number, I apologize, I don't 24 believe I have it. Because it was made an exhibit I 25 simply refer to the Exhibit Number P-457. I don't know
1711 if Mr. Clerk can help me. 2 THE WITNESS: Where would I find that? 3 COMMISSIONER SIDNEY LINDEN: One (1) 4 minute. Just one (1) minute, we'll get it on the screen. 5 THE WITNESS: Oh, thank you. 6 MR. DERRY MILLAR: Well, we should give 7 him a copy of Exhibit P-457, which is Inquiry Document 8 2000556. 9 MR. JULIAN FALCONER: I appreciate the 10 help, Mr. Millar. 11 MR. DERRY MILLAR: And Mr. Registrar, if 12 we could give it to... 13 14 (BRIEF PAUSE) 15 16 COMMISSIONER SIDNEY LINDEN: Can you put 17 it on the screen as well, Mr. Millar, or are you doing 18 that? Is it up there? Oh, there it is. 19 20 CONTINUED BY MR. JULIAN FALCONER: 21 Q: If you could turn to page 8, please? 22 23 (BRIEF PAUSE) 24 25 Q: At page 8 of the review under the
1721 subtitle, "ERT," do you see that? 2 A: Yes. 3 Q: Emergency Response Team? 4 A: Correct. 5 Q: The last two (2) paragraphs of page 8 6 read as follows: 7 "CMU deployed at night, briefing on the 8 6th indicated that certain details 9 would be done at daylight hours, that 10 is, moving picnic tables. 11 Does not mean there would not be 12 deployment at night. Certain things 13 could not be done in daylight. 14 Question of patrolling in uniform. 15 Visibility of ERT uniforms could be 16 seen as if it were TRU Team members. 17 The dilemma that the uniforms of ERT 18 are so close to TRU, is very confusing 19 to the public and it escalates the 20 situation of the civilians if they 21 thought there were large numbers of TRU 22 members in attendance." 23 Would you agree with me that what's being 24 identified there is the issue about the similarity of ERT 25 uniforms and TRU uniforms?
1731 A: Yes. 2 Q: In the dark if people had become 3 familiar or knew what TRU Team members looked like, given 4 the dilemma identified by the OPP at page 8, people might 5 think, reasonably think that, in fact, thirty (30) to 6 forty (40) members of TRU were marching on them; correct? 7 A: It's possible. 8 Q: And the Aboriginal community in that 9 area had only recently in 1994/1995, actually had an 10 encounter where gratefully, the man was disarmed, but TRU 11 members had to attend; correct? 12 A: Yes. 13 Q: And in fact, Cecil Bernard George 14 played a key role in de-escalating that situation; 15 correct? 16 A: I believe that was the individual. 17 Q: And Inspector Linton was involved in 18 that; correct? 19 A: Yes. 20 Q: Now, if TRU looked like ERT and vice 21 versa, that would create an even higher level of 22 intimidation and fear in the community; agreed? 23 A: It could raise the anxiety levels. 24 Q: Did you address your mind to that 25 that evening?
1741 A: No. 2 Q: That was one (1) of the by-products 3 of marching in the dark, wasn't it? 4 A: Well, ERT is dressed in that kind of 5 uniform, there's no -- at that particular point in time 6 that's the uniform they had. 7 Q: And I am ignorant, so will you 8 forgive me, have steps been taken to change those 9 uniforms? 10 A: They have a dark blue tactical 11 uniform now, as well. 12 Q: To distinguish it -- is it readily 13 distinguishable from a TRU member's uniform? 14 A: Yes. 15 Q: Thank you. 16 MR. JULIAN FALCONER: I was unclear, I 17 did do my homework, Mr. Commissioner, in trying to find 18 it. But I was unclear about an answer, so if this 19 triggers the same area tilled, everyone will forgive me, 20 I was doing my best. 21 22 CONTINUED BY MR. JULIAN FALCONER: 23 Q: What was your explanation to Mr. 24 Millar again, about why the scribe note taker wasn't 25 present for the two (2) hours you met Chief Coles and
1751 Superintendent Parkin? 2 A: Why was he not? 3 Q: Yeah, why was the scribe note taker 4 not present? 5 A: It was a private meeting between the 6 Chief, the Superintendent, and myself, he was -- was not 7 expected to be there. 8 Q: When you met with Mark Wright and you 9 two (2) talked, you often talked privately? 10 A: That's correct. 11 Q: And the scribe would take notes of 12 that -- those meetings, and we have them to look at? 13 A: Sure. 14 Q: And those were private meetings? 15 A: Right. 16 Q: So the fact that the meeting was -- 17 was private, surely couldn't have been the reason that 18 the scribe note taker was omitted from the meeting? What 19 was the reason? 20 A: There was no special reason. He -- 21 he would be out with the other members, the other team 22 members. And if there were other things to be done, he 23 would be taking some information regarding that. He was 24 not expected to be at that meeting, and he was excused 25 from the room.
1761 Q: His function was to follow you around 2 and take notes of your involvement as Incident Commander? 3 A: Right. 4 Q: And he was deliberately excused from 5 that duty for those two (2) hours? 6 A: Yes. 7 Q: Now you've given me an answer, it was 8 a private meeting. But you've also conceded that other 9 private meetings involve him. So now I'm going to ask 10 you, let's go to the next level. What was it about this 11 private meeting that made a scribe note taker, someone 12 that should be excused from the room? 13 A: There was no need for him to -- no -- 14 no -- foreseen need for him to be present. There was no 15 intention there for a meeting that was going to require 16 anything as far as tasks for this particular event. It 17 was a private meeting with myself and the -- and the two 18 (2) Commanders. 19 Q: Two (2) Commanders -- 20 A: Chief Coles and Superintendent 21 Parkin. 22 Q: Your Commanders? 23 A: I'm sorry? 24 Q: Your Commanders? 25 A: Yes.
1771 Q: They're to give you advice and 2 direction on operational matters? 3 A: Well, they weren't there to give me 4 advice and direction. They were there to meet with me 5 and understand how things were going. They didn't come 6 there with some agenda to task me to do A, B, and C. 7 Q: Sir, there has been a number of 8 examples of different levels of contact between you and 9 politicians, whether it was that incident command or 10 elsewhere, so I have to ask you this question, sir. 11 On September 6th, 1995, when you went for 12 dinner, whose home did you go to? 13 A: To a private citizen in town, a 14 personal friend. 15 Q: And was that personal friend someone 16 who had any political involvement in the region or in the 17 province or locally in any way? 18 A: None whatsoever. 19 Q: All right. And I take it that the 20 only reason you're not disclosing the name of the person 21 is just to protect their privacy? 22 A: Correct. 23 Q: They had no involvement in this 24 incident? 25 A: None whatsoever.
1781 Q: Well, I respect that, sir. I -- I 2 don't have a difficulty with that. 3 4 (BRIEF PAUSE) 5 6 Q: I'm sorry, Mr. Commissioner. This 7 involves -- 8 COMMISSIONER SIDNEY LINDEN: That's fine. 9 MR. JULIAN FALCONER: -- in some ticking 10 off and flipping through pages. I suppose it's always 11 comforting to the court when they see that counsel is 12 passing pages and putting tick marks. 13 COMMISSIONER SIDNEY LINDEN: No. It's 14 comforting to see that everything is ticked off. 15 MR. JULIAN FALCONER: Everyone or 16 everything? 17 COMMISSIONER SIDNEY LINDEN: Everything. 18 Everything. 19 20 (BRIEF PAUSE) 21 22 CONTINUED BY MR. JULIAN FALCONER: 23 Q: Sir, I'm now going to -- and you'll 24 be grateful about this -- I'm now going to close. But 25 whenever a lawyer says, I just have a few more questions
1791 to close, it's a -- it's a hollow promise. So I won't 2 make it that way. I am now in my closing questions; 3 that's the best I can give you. 4 I went over a list with you of potential 5 factors that could alter leadership style from a more 6 passive to a more aggressive. When we went over that 7 list we did it in the context of aboriginal leadership 8 and you agreed that it was a human reality; remember that 9 discussion? 10 A: Yes, sir. 11 Q: We started the list about pressure 12 from people from within and how that can change a 13 leadership style to a more aggressive style. We then 14 discussed pressure from outside, then we discussed 15 misinformation, then we discussed isolation, then we 16 discussed frustration. And then we discussed inability 17 to manage the dynamics going on around you. 18 Now, I'm going to put it to you, sir, that 19 every one of those characteristics that you conceded 20 would affect aboriginal leadership were at play during 21 your incident command, every one (1) of those factors? 22 A: Sure. 23 Q: And I'm going to put it to you, sir, 24 that, as you sit here today, the real truism that you 25 said yesterday, that you can't really say what you would
1801 have done if any of these factors had been altered is a 2 fair statement; that's true? 3 A: Sure. 4 Q: And I'm going to put it to you that 5 the existence of the pressure on you two (2) days after 6 you had egg on your face, that existence of that pressure 7 is the exact inner-circle pressure that you referred to 8 could have changed Glenn George? 9 A: I'm not sure I understand your 10 question. 11 Q: That's because it was framed 12 terribly. So, my apologies. I'll start over. 13 I'm going to put it to you, sir, that the 14 very inner-circle pressure you felt that Glenn George 15 might have given way to, as you put it, to become more 16 militant, I'm going to suggest to you, affected you in 17 your decision-making and did turn a dove into a hawk? 18 A: I disagree with you. 19 Q: I'm going to suggest to you, sir, 20 that the misinformation was so extreme as to warrant 21 calling the information you sent those people out as, as 22 flimsy; would you agree the information was flimsy? 23 A: I disagree. 24 Q: I'm going to suggest to you, sir, 25 that that kind of misinformation about what the other
1811 side was doing is exactly what you felt would make Glenn 2 George more militant; right? 3 A: Correct. 4 Q: And you suffered from that 5 misinformation, didn't you? 6 A: To some degree. 7 Q: I'm going to suggest to you, sir, 8 that not only pressure from inside, from within, pressure 9 from outside at a staggering level, right up to the 10 Premier of the province was the exact kind of outside 11 pressure that you felt could convert Glenn George into a 12 militant, true? 13 A: It's possible. 14 Q: And you faced that pressure, right? 15 A: Correct. 16 Q: I'm going to suggest to you, sir, 17 that the dynamics of what you had to manage, the 18 insurmountable dynamics of all the hats you had to wear, 19 made it virtually impossible for you to put the brakes on 20 in the hour and twenty-six (26) minute window of 21 opportunity you had to put those brakes on. 22 A: I disagree with you. 23 COMMISSIONER SIDNEY LINDEN: I don't 24 think it's necessary for you to shout, either. I mean, 25 you can ask the questions, exactly the questions you're
1821 asking, but I don't think you need to shout. 2 MR. JULIAN FALCONER: Mr. Commissioner, 3 I've done my best to be cordial and I'll continue to. 4 COMMISSIONER SIDNEY LINDEN: No, that's 5 fine. 6 7 CONTINUED BY MR. JULIAN FALCONER: 8 Q: I'm going to suggest to you, sir, 9 that what is patently clear from this event is the words 10 you used that you "lost control" of it. 11 Do you remember you said -- 12 A: Yes. 13 Q: -- you lost control of the event? 14 A: Yes, I do. 15 Q: I'm going to suggest to you that you 16 lost control of the event at 7:00 p.m. when the dove left 17 the building, the hawks took over. That's what I'm going 18 to suggest to you, sir. 19 A: Unequivocally, I disagree with you. 20 Q: I'm going to suggest to you, sir, 21 that when you left the building and everything was status 22 quo, and you had no dreams of marshalling forty (40) to 23 fifty (50) officers with canine units, to march on these 24 occupiers who you knew were peaceable, I'm going to 25 suggest to you that all happened because the hawks back
1831 at the office put it in play. 2 A: I disagree. 3 Q: I'm going to suggest to you that you 4 had to do your darnedest to drive as fast as you could to 5 make sure you were leading the troops; that if you had 6 stayed back there, they just would have marched without 7 you. 8 A: I disagree. 9 Q: I'm going to respectfully suggest to 10 you, sir, that you were caught in an inescapable bind. 11 You had two (2) days before, as you put it, been run out 12 of the Park; correct? 13 A: Correct. 14 Q: Two (2) days later the hawks in your 15 circle were completely mobilizing the troops; you 16 couldn't tell them no, could you? 17 A: I disagree. 18 Q: Sir, you didn't lose control of the 19 incident when Dudley Laws died -- I'm sorry, Dudley 20 George died. 21 You didn't lose control of the incident 22 when Dudley George died. You lost control of the 23 incident when you went for dinner. 24 A: I disagree with you. 25 MR. JULIAN FALCONER: Those are my
1841 questions. 2 COMMISSIONER SIDNEY LINDEN: Thank you, 3 Mr. Falconer, thank you very much. 4 It's now 12:05, should we break for lunch 5 now? 6 MR. DERRY MILLAR: Sir, why don't we 7 break for lunch now 'til -- 8 COMMISSIONER SIDNEY LINDEN: And then -- 9 MR. DERRY MILLAR: -- perhaps 1:10 or 10 1:15 -- 11 COMMISSIONER SIDNEY LINDEN: And then -- 12 and then -- 13 MR. JULIAN FALCONER: By the way, Mr. 14 Commissioner, it is 12:05. Do I get any kudos for almost 15 hitting lunch -- 16 COMMISSIONER SIDNEY LINDEN: Yes, you do 17 get kudos, thank you very much. 18 MR. JULIAN FALCONER: Thank you, thank 19 you. Just a little credit, I just want a little bit. 20 COMMISSIONER SIDNEY LINDEN: You 21 definitely get kudos, thank you. We'll break for lunch 22 now. 23 MR. DERRY MILLAR: Thank you. 24 THE REGISTRAR: This Inquiry stands 25 adjourned until 1:20.
1851 2 --- Upon recessing at 12:07 p.m. 3 --- Upon resuming at 1:25 p.m. 4 5 THE REGISTRAR: This Inquiry is now 6 resumed, 7 MR. DERRY MILLAR: Commissioner, be -- 8 COMMISSIONER SIDNEY LINDEN: Yes? 9 MR. DERRY MILLAR: -- fore we begin, 10 Exhibit 4 -- P-428 is one of the CD -- the CD-Rom of the 11 -- entitled "Deputy Commissioner John Carson - telephone 12 calls, September 5 to 7, 1995, master". 13 And there should also be, with Exhibit P- 14 428, a second disc of -- it's selected tracks, September 15 6, 1995, and it's the -- the tracks of the various 16 communications including the march down the road that we 17 played during the Examination In-Chief of Deputy Carson, 18 so the two (2) CD-ROMs go. 19 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 20 Sandler? 21 MR. MARK SANDLER: Good afternoon, 22 Commissioner. 23 COMMISSIONER SIDNEY LINDEN: Good 24 afternoon. 25 MR. MARK SANDLER: Commissioner, to
1861 assist in -- in my cross-examination, I have provided you 2 and your counsel, together with Deputy Commissioner 3 Carson, a book of new materials, not previously marked as 4 exhibits, some of which I'll either be playing or 5 referring to in the course of my cross-examination. 6 I should note, just for the record, that 7 you will see reproduced in these materials, a number of 8 audio clips and transcripts of radio transmissions that 9 have not yet been played. 10 And the transcripts were produced by the 11 OPP, building upon the transcripts that were previously 12 done by -- by the Commission, and we've noted where we've 13 made some changes. Ultimately the transmission itself 14 will be the evidence. 15 COMMISSIONER SIDNEY LINDEN: Fine. 16 MR. MARK SANDLER: But we've tried to 17 make the transcripts better to the extent to which we 18 can. But -- but we've kept in the -- the original 19 transcript so that -- to avoid any controversy. 20 COMMISSIONER SIDNEY LINDEN: That's fine. 21 Thank you, Mr. Sandler. 22 MR. DERRY MILLAR: And if I might, on 23 that issue I've looked at some of those transcripts -- 24 the transcripts and I don't have any trouble with the 25 changes made -- that they've done.
1871 COMMISSIONER SIDNEY LINDEN: Well -- 2 that's fine. I see some expressions of concern, so we 3 may have to explain it a little better but -- 4 MR. PETER ROSENTHAL: Excuse me, Mr. 5 Commissioner, do all counsel have copies of those 6 transcripts as well? 7 MR. MARK SANDLER: Not the transcripts 8 themselves, but I'm -- I will undertake to provide them 9 to all counsel. I thought we'd go through -- what -- 10 what we did was, you actually do have, at present, 11 transcripts provided by the Commission of these same 12 radio transmissions. 13 We've improved them in several respects, 14 and if the witness adopts the improvements, then -- 15 COMMISSIONER SIDNEY LINDEN: We'll get 16 the improved version. Everybody. 17 MR. MARK SANDLER: -- it will happen. 18 MR. DERRY MILLAR: All of these -- it's 19 the document on which this is based was -- before I 20 examined Deputy Carson, it was given to everybody -- 21 COMMISSIONER SIDNEY LINDEN: They're out 22 there. 23 MR. DERRY MILLAR: -- by an e-mail 24 electronically. 25 COMMISSIONER SIDNEY LINDEN: Yes.
1881 MR. PETER ROSENTHAL: I -- I think I 2 understand now, but I -- I do think that all counsel 3 should have copies of these transcripts as well if -- 4 COMMISSIONER SIDNEY LINDEN: We will. 5 MR. PETER ROSENTHAL: -- if the witness 6 is going to be referring them and so on. And perhaps -- 7 perhaps while Mr. Sandler begins, and is doing something 8 else, copies could be made for all counsel, I would 9 respectfully request. 10 MR. MARK SANDLER: Well, why don't I get 11 on with it. I won't get to them for a while, and let's 12 see what we can do to facilitate everyone and -- and move 13 ahead. 14 MR. JULIAN FALCONER: Well the only -- I 15 accept that Mr. Sandler's going to make a good faith 16 effort. It's all a timing question. And I -- and I 17 accept that, but it will be very important to actually 18 have the transcript, have the same document that you 19 have, Mr. Commissioner, when the document comes up. As - 20 - as in when the taped conversation happens. 21 I'm hoping that the timing will be such 22 that we have that transcript, because, of course, if you 23 have something, Mr. Commissioner -- 24 COMMISSIONER SIDNEY LINDEN: Well, I'm 25 perfectly happy to work with the transcript I had in the
1891 first instance, and wait until the witness testifies, and 2 if he accepts the changes, we'll all get the revised 3 transcript at the same time. 4 MR. JULIAN FALCONER: That is -- that's 5 very fair. You know my concern, Mr. Commissioner. 6 COMMISSIONER SIDNEY LINDEN: Yes. It 7 could be done either way. 8 MR. MARK SANDLER: I'll make everyone 9 happy, I promise. 10 COMMISSIONER SIDNEY LINDEN: I thought 11 you would. I didn't think this was a matter for 12 controversy, but we want to make sure everybody has the 13 same transcript available. 14 15 (BRIEF PAUSE) 16 17 MR. MARK SANDLER: I'm told all counsel 18 will have them in thirty (30) to forty (40) minutes. 19 COMMISSIONER SIDNEY LINDEN: There you 20 go. Thirty (30), forty (40) minutes. 21 MR. PETER ROSENTHAL: Thank you very 22 much. 23 MR. JULIAN FALCONER: Thank you. 24 MR. MARK SANDLER: Through the speed of 25 modern technology, and Ms. Tuck-Jackson.
1901 2 CROSS-EXAMINATION BY MR. MARK SANDLER: 3 Q: Deputy Commissioner, you may have 4 forgotten I'm your counsel. I'm going to be asking you 5 some general questions at the outset that intend to bring 6 together some of the thoughts that you've expressed over 7 the past eighteen (18) or nineteen (19) days. 8 And then I'm going to be taking you to -- 9 to a number of documents. Some new, and some old 10 documents with some added passages that weren't 11 previously read to you, all right? 12 You were examined extensively about the 13 views that were expressed by politicians, and the impacts 14 -- impact of those views on the OPP. And a variety of 15 theories have been advanced publicly, or at this Inquiry 16 as to how these political views purported to affect you, 17 or the OPP generally. 18 And I want to examine each of those 19 theories briefly if I may. The first theory that has 20 been presented publicly, as opposed to at this Inquiry, 21 is that political pressures or views influenced the OPP 22 to actually go into the Park to eject the occupiers. 23 Now, did anyone ever instruct anyone 24 within the OPP, at any time, to go into the Park to eject 25 the occupiers?
1911 A: No, we did not. 2 Q: Were you ever instructed by anyone 3 with the OPP to do so? 4 A: No, sir. 5 Q: Have you seen any evidence that any 6 OPP officer under your command ever told any other OPP 7 officer to go into the Park to eject the occupiers? 8 A: No, sir. 9 Q: Have you seen any evidence that any 10 OPP officer on his or her own initiative, even entered 11 the Park proper on the evening of September the 6th, to 12 eject the occupiers? 13 MR. JULIAN FALCONER: Objection, Mr. 14 Commissioner. 15 I understand it's about words, but it's 16 very important when My Friend asks a witness for his 17 views on the evidence, that -- that's obviously your job, 18 Mr. Commissioner. 19 If he's asking about any documents or 20 facts, that's different. But the witness is in no 21 position to give his views or weighing of the evidence. 22 That's for you to do. 23 I know it's a matter of articulation or a 24 matter of semantics, but this witness is not entitled, 25 nor is any witness entitled to comment on the weight to
1921 be given the evidence. 2 That's for you to do at the end. 3 COMMISSIONER SIDNEY LINDEN: What was the 4 question, there? What was the question -- 5 MR. JULIAN FALCONER: He was asked if he 6 saw any -- 7 MR. MARK SANDLER: I'll solve My Friend's 8 problem -- 9 COMMISSIONER SIDNEY LINDEN: Okay. 10 MR. MARK SANDLER: -- because I'd like to 11 move along. 12 MR. JULIAN FALCONER: Thanks. 13 14 CONTINUED BY MR. MARK SANDLER: 15 Q: Have you seen any documentary 16 evidence whatsoever that any OPP officer on his or her 17 initiative even entered the Park proper on the evening of 18 September 6th, to eject the occupiers? 19 A: No, sir. 20 Q: Now it has been suggested to you in 21 cross-examination that you were advised that some people 22 in government, whether the Premier or anyone else, simply 23 wanted the OPP to enter the Park and immediately evict 24 the occupiers without Court process or direction. 25 Do you remember all the questions about
1931 interpreting what Ron Fox and others had to say? 2 A: Correct. 3 Q: All right. Now to state the obvious, 4 even assuming that that is the case, and I'm just 5 assuming that for the purposes of the question, the OPP 6 never did go into the Park before or after the injunction 7 process -- 8 A: Correct. 9 Q: -- despite whatever was taken from 10 those political comments; am I right? 11 A: Correct. 12 Q: Why not? 13 A: Because we had no intention to do 14 that. 15 Q: Now the second theory that has been 16 advanced is that political pressures or views expressed 17 by the government influenced you, personally, as the 18 Incident Commander to send the OPP down the road, 19 although not into the Park, on the evening of September 20 the 6th of 1995. 21 And I want to make clear, Deputy, that at 22 this point, my questions aren't directed to why that 23 decision was a reasonable or appropriate one, we'll 24 discuss that later. 25 I'm solely interested in questions about
1941 the impact of political views or pressures. 2 You advised Commissioner Linden that the 3 OPP policy, as you understood it, was always to obtain an 4 injunction before taking action to eject the First 5 Nations occupiers who assert, rightly or wrongly, a land 6 claim -- 7 A: Correct. 8 Q: -- right? 9 A: Correct. 10 Q: And that even with an injunction in 11 hand, the goal was to use the Court direction to 12 negotiate a peaceful resolution rather than necessarily 13 moving to eject the occupiers -- 14 A: Correct. 15 Q: -- even though ejection might well 16 follow, right? 17 A: Correct. 18 Q: And we've seen many scribe notes that 19 -- that reflect that sentiment. 20 In your view, did you ever deviate from 21 the OPP policy of requiring an injunction before moving 22 to eject occupiers from within the Park? 23 A: No, sir. 24 Q: Did you ever contemplate, even once, 25 deviating from that policy as a result of any expressed
1951 political views? 2 A: No, sir. 3 Q: Did any of your superiors, even once, 4 ever discuss with you deviating from that policy or give 5 you such directions? 6 A: No, sir. 7 Q: Have you seen any documentary 8 evidence whatsoever that you or any of your superiors 9 even contemplated deviating from that policy as a result 10 of political views expressed? 11 A: No, sir. 12 Q: Did anyone under your command ever 13 urge you to deviate from the OPP policy as a result of 14 the expression of any political views? 15 A: No, sir. 16 Q: Now you were questioned at great 17 length and repeatedly about the views expressed by 18 politicians; Mr. Beaubien, Rosemary Ur, Ken Williams, 19 Fred Thomas and the Mayor and other -- I'm sorry, and the 20 Premier and others, as articulated through Ron Fox, and 21 I'm sure you remember that cross-examination? 22 A: Oh, yes. 23 Q: After all of that input from the 24 politicians, either directly or indirectly through Ron 25 Fox or through Wade Lacroix, we've heard you still left
1961 work for the day on September the 6th, heading off duty 2 for the night and for dinner at a friend's house? 3 A: Correct. 4 Q: It appears that everybody at least 5 agrees upon that? 6 A: Correct. 7 Q: And many Counsel seem to concede as 8 well that you left with no plan of action that night? 9 A: Yes, that's correct. 10 Q: And we've heard you left with 11 directions to those under your command to maintain the 12 status quo, am I right? 13 A: Correct. 14 Q: Directions to keep things quiet? 15 A: Correct. 16 Q: And we've seen contemporaneous 17 records that you planned to meet Mark Wright at the hotel 18 later, in anticipation of the injunction the following 19 morning? 20 A: That's right. 21 Q: Right? Now you spoke to Ron Fox, 22 Beaubien, Williams, Rosemary Ur, all before you planned 23 going off duty for the night, all before you headed off 24 to dinner, am I right? 25 A: Correct.
1971 Q: Did you speak to any of those people, 2 one (1) of them, from the time you headed off to dinner 3 to the time that the decision was made by you to send the 4 CMU down the road? 5 A: No, sir. 6 Q: From the time you left work to the 7 time the decision was made to send the CMU down the road, 8 did you seek instructions from Chris Coles, Tony Parkin, 9 Deputy Boose, Commissioner O'Grady to send the CMU down 10 the road? 11 A: No, sir. 12 Q: And I'm going to suggest that had 13 this decision represented a deviation from the policy 14 which you knew and respected, you would have sought such 15 direction; is that fair? 16 A: That's fair. 17 Q: Now we've reproduced, in the -- in 18 the materials for Commissioner Linden, your cell phone 19 records. They're at Tab 43 of my materials and the 20 Inquiry document -- excuse me for a moment... 21 22 (BRIEF PAUSE) 23 24 Q: I'm just looking to see if it's been 25 marked on. It was provided after the documents were
1981 marked on, so we don't have an Inquiry number on this 2 document. 3 I know it was also provided by Ms. Vella 4 in the latest notice in relation to Ron Fox, so it has 5 been distributed to Counsel. These are the cell phone 6 records, I'll provide the -- I'll... 7 Let me just, while we're -- while we're 8 securing that number, if I could just take you to 9 September the 6th of 1995 and I may ask you about the 10 cell phone records a little bit later on, but I'm just 11 interested in that period of time for the moment. 12 And do you have your cell phone records 13 for the date September 6th of 1995, sir? 14 A: Yes. Yes, I do. 15 Q: And I'm not going to analyse all of 16 the phone calls at this stage in time, but issues have 17 been raised about the use of cell phones. 18 Are any of those phone calls that are 19 outgoing on your part or incoming for that matter, calls 20 originating from or to Chris Coles, Tony Parkin, Deputy 21 Boose, or Commissioner O'Grady? 22 A: No. 23 Q: All right. Now Mr. Klippenstein 24 suggested to you another theory and that was that those 25 under your command, particularly Mark Wright, were
1991 influenced by your references to political pressures or 2 views and that their conduct was affected. You heard 3 that theory? 4 A: Yes, I did. 5 Q: Do you believe it? 6 A: No. 7 Q: Have you seen any documentary 8 evidence that, in your view, supports that position? 9 A: None at all. 10 Q: Now let's examine the actual evidence 11 that bears upon that if we may. 12 You told Commissioner Linden that you 13 advised those under your command of various matters 14 including the political issues swirling around this 15 occupation? 16 A: Correct. 17 Q: And let me ask you this, whether or 18 not you told them about the political issues or 19 controversy swirling around Ipperwash, did you believe 20 that those under your command were unaware of those 21 issues? 22 A: I believe they were well aware. 23 Q: All right. I mean was there any 24 secret that there were strongly held views, both 25 politically and in the community about what was going on
2001 at Ipperwash? 2 A: It was common knowledge, I would 3 suggest. 4 Q: Now let me ask you this: Do you have 5 any recollection whatsoever that Mark Wright actually 6 spoke about these political pressures or views or 7 appeared to care about those views or referred to those 8 views in advising you or Linton? 9 A: I got no sense of that whatsoever. 10 Q: Have you seen to-date, at this 11 Inquiry, any references in the scribe notes or telephone 12 conversations to Mark Wright, talking about the politics 13 of the situation as influencing his advice? 14 A: No, sir. 15 Q: Now let's examine each of the 16 references to the political pressures or opinions that 17 are relied upon in support of -- of this theory, if we 18 may. 19 And I'm going to try to do it as quickly 20 as we can because we've been through part of these 21 excerpts in another context in cross-examination. 22 The first is in Exhibit 426, the 23 typewritten scribe notes, Exhibit P-426 page 21, time 3 - 24 - sorry, 8:34 a.m. 25 COMMISSIONER SIDNEY LINDEN: What page,
2011 I'm sorry, Mr. Sandler? 2 MR. MARK SANDLER: Page 21. 3 COMMISSIONER SIDNEY LINDEN: 21? 4 MR. MARK SANDLER: And this is the entry 5 at 8:34 in the morning. 6 COMMISSIONER SIDNEY LINDEN: Yes I have 7 it. 8 MR. MARK SANDLER: And I'm tracking these 9 entries in the same order that Mr. Klippenstein did in 10 his cross-examination. 11 COMMISSIONER SIDNEY LINDEN: That's fine. 12 13 CONTINUED BY MR. MARK SANDLER: 14 Q: And you'll see, Deputy Commissioner, 15 as if you could forget these entries at this point, but 16 that at 8:34 we see: 17 "Inspector Carson [and this was read 18 out to you]. Inspector Carson advised 19 that Marcel Beaubien had been in 20 contact with Staff Sergeant Wade 21 Lacroix and he advised that he was 22 calling the premier." 23 Can you see that? 24 A: Yes. 25 Q: And the suggestion that was made to
2021 you was that -- and you agreed -- that this was 2 information that would have been communicated to and 3 known by those under your command; right? 4 A: Correct. 5 Q: Now what I'd like to do is turn to 6 the handwritten version. Well just stopping there for a 7 moment, here's a reference, by the way, to -- to the 8 political dimension of this matter in the typewritten 9 notes as opposed to the handwritten notes. 10 A: Correct. 11 Q: You see that? 12 A: Yes. 13 Q: And we'll actually see, I'm going to 14 suggest, a lack of consistency. Sometimes the political 15 references are in the typewritten notes, sometimes 16 they're in the handwritten notes, sometimes parts are in 17 the typewritten notes and supplemented in the handwritten 18 notes. You've seen all of those -- 19 A: Yes. 20 Q: -- permutations, haven't you? 21 A: Correct. 22 Q: All right. And if we could look at 23 the handwritten notes in relation to this item, and it's 24 at Exhibit P-427 page 390. 25 A: Which tab?
2031 COMMISSIONER SIDNEY LINDEN: It's 13. 2 MR. MARK SANDLER: You have this at -- 3 COMMISSIONER SIDNEY LINDEN: It's 13. 4 MR. MARK SANDLER: -- Tab 13 of the 5 second binder. 6 MR. DERRY MILLAR: Actually, 7 Commissioner, you should -- it's the big black binders, 8 Volume 1. Oh... 9 COMMISSIONER SIDNEY LINDEN: That's fine. 10 MR. MARK SANDLER: Volume 2 -- 11 THE WITNESS: Yes. 12 MR. DERRY MILLAR: You guys are looking 13 at different documents. He's got... 14 MR. MARK SANDLER: It's Tab 13 in the 15 first volume. 16 17 (BRIEF PAUSE) 18 19 CONTINUED BY MR. MARK SANDLER: 20 Q: Do you have that at page 390? 21 A: Yes, I do. 22 Q: All right. And I'd like to look with 23 you at the middle of the page. And you can see in the 24 middle of the page, here's the reference that Mr. 25 Klippenstein took you to in the typewritten version, the
2041 parallel. 2 "Marcel Beaubien calling premier." 3 Can you see that there? 4 A: Correct. 5 Q: Now I want to look at what's 6 immediately above it and what's immediately below it. 7 Immediately above it is a comment, I'm 8 going to suggest, by Len Kobayashi -- Les Kobayashi: 9 "Talked to the lawyer; waiting for 10 injunction." 11 A: Correct. 12 Q: Do you see that? 13 A: Yes. 14 Q: And then, Beaubien says: 15 "Calling premier and [or you say] 16 Marcel Beaubien calling premier." 17 And then your words: 18 "That's fine. Sit tight. Get 19 intelligence information. Preference 20 get ERT guys getting working in the 21 Park. Get discussions." 22 I'm going to suggest, Get discussions 23 going; am I right? 24 A: Correct. 25 Q: Now -- and then you'll see a little
2051 bit lower than that: 2 "John Carson: Take it slow." 3 Do you see that? 4 A: Yes. 5 Q: All right. Now, so putting all of 6 this together, immediately after the words, "Marcel 7 Beaubien calling premier," you have reflected, according 8 to the handwritten scribe notes: 9 "That's fine. Sit tight. Get 10 intelligence." 11 Then, moving down: 12 "Get discussions going." 13 Then, moving down again: 14 "Take it slow." 15 A: Correct. 16 Q: You see all that? 17 A: Yes. 18 Q: Now let's assume, for the purposes of 19 our discussion, that Mr. Klippenstein's theory is 20 correct, that communicating information about politicians 21 brings with it certain dangers. 22 Here I'm going to suggest it was combined 23 with language of restraint; wasn't it? 24 A: Yes, it was. 25 Q: In other words, it was fine for the
2061 Premier to be contacted, but we sit tight? 2 A: Correct. 3 Q: We get discussions going? 4 A: That's right. 5 Q: We're waiting for an injunction? 6 A: Yes. 7 Q: Take it slow? 8 A: Yes. 9 Q: Now -- so reading the entire passage, 10 and not merely the line about Mr. Beaubien contacting the 11 Premier, I want to put to you a question that has been 12 put by others, and that is that you acknowledged that you 13 never specifically told those people under your command, 14 disabuse yourself of the views that are being expressed 15 of the politicians? 16 You remember you were asked that and you 17 said, I didn't -- I didn't say those specific words to my 18 people. 19 A: Correct. 20 Q: Right? Do you see any distinction 21 between those words and what you're communicating here? 22 A: I think what I'm saying here is, Do 23 your job as we've planned to do. 24 Q: So the Premier may be saying 25 whatever, or Beaubien may be contacting the Premier
2071 but... 2 A: Well we're still going to do our -- 3 our job as -- as we have contemplated, as we have planned 4 and as the direction that I have provided to them right 5 from the outset. 6 Q: And we're going to see, and I won't 7 take you to it, but -- but in taped call number 6, which 8 is Exhibit 444(a), you have a conversation with Tony 9 Parkin, updating him shortly after your briefings and 10 this is at 9:51, all right? 11 You can take it from me, I won't take you 12 to the document. 13 And we've already heard the tape played 14 and in there you reflect that MNR is pursuing an 15 injunction and that's at page 30 of that taped 16 conversation. 17 A: Yes. 18 Q: I won't always go to each one of 19 these, Commissioner because you've heard them a number 20 of times and sometimes I'll proceed a little bit more 21 expeditiously. 22 So that even after the conversation about 23 marcel Beaubien, even after your letter -- discussion of 24 restraint, this is all being said and pursued in the 25 context of an injunction?
2081 A: Of course, yes. 2 Q: Now -- which is precisely what you 3 claimed all along? 4 A: Correct. 5 Q: Now let's go to the second reference 6 that was referred to by Mr. Klippenstein. First he noted 7 for you, and I won't take you to it, that -- that on 8 September the 5th, at 14:47 you had your first of these 9 two (2) famous calls with Ron Fox; do you remember that 10 call? 11 A: Oh yes. 12 Q: And one of the entries in there is, 13 according to Fox: 14 "The Premier wants no different 15 treatment for the natives. The bottom 16 line is that he wants them out." 17 A: Correct. 18 Q: You remember that reference? 19 A: Right. 20 Q: And Mr. Klippenstein pointed out to 21 you that in Exhibit P-427, the handwritten scribe notes, 22 at page 438, so I'll ask you to go there. 23 24 (BRIEF PAUSE) 25
2091 Q: Do you have that? 2 A: Yes, I do. 3 Q: It was pointed out to you, quite 4 fairly, that the language that made its way into the 5 conversation with Ron Fox is mimicked in the handwritten 6 scribe note on page 438 and you'll see that at the bottom 7 of the page where you're indicating to your people: 8 "Premier's no different treatment from 9 anybody else." 10 A: Correct. 11 Q: You see that? 12 A: Yes, I do. 13 Q: I want to keep reading, if we may. 14 Could you continue to read what is in the same excerpt of 15 a conversation attributed to you? 16 A: "We're okay, on the right track. 17 Concern notice wasn't accepted. Ron 18 Fox dealing with the legal issues." 19 Q: All right. So that -- and I 20 appreciate that -- that ten (10) years later you're not 21 expected to have recall of precisely what you said and 22 when you said it. 23 It does appear here, from the handwritten 24 scribe note, that in the same passage that you described 25 the Premier's comment as:
2101 "No different treatment from anybody 2 else." 3 Immediately after you advised those under 4 your command that: 5 "We're okay, on the right track." 6 Q: Do you see that? 7 A: Yes. 8 Q: And again, I'm going to suggest to 9 you that that's language of restraint? 10 A: Yes. 11 Q: That's language of business as usual? 12 A: Correct. 13 Q: That's language that that's what the 14 Premier may be saying, but this is what we're doing? 15 A: Correct. 16 Q: And -- and it goes further than that 17 because it says: 18 "Concerned notice wasn't accepted. Ron 19 Fox is dealing with the legal issues." 20 So you recognize that the issues 21 surrounding the injunction were being dealt with by Ron 22 Fox, am I right? 23 A: Yes. That's right. 24 Q: Now -- now if I can move -- move 25 ahead for a moment to page 439 in the same handwritten
2111 note we see: 2 "Checking over press release. Don't 3 have paperwork for injunction going." 4 So again, this is a reflection of the -- 5 of the timing of the injunction paperwork being put 6 together and ready for presentation, am I right? 7 A: Correct. 8 Q: Now -- so those under your command 9 were hearing, not only that the Premier says no different 10 treatment from anybody else, they're hearing how you, as 11 the Incident Commander, was responding to that. 12 A: Correct. 13 Q: Am I right? 14 A: Yes. 15 Q: Now, if I can look at the typewritten 16 notes for a moment that deal with the same matter at page 17 38, and this is the entry at 15:07. And do you have 18 that? 19 A: Yes. 20 Q: Now, what I'm interested in is -- is 21 there's an entry there as well that after you talk about 22 the fact that Ron Fox is dealing with the legal issues, 23 checking over the press releases, don't have the 24 paperwork for the injunction going yet, Detective 25 Sergeant Wright advises you
2121 -- and why don't we just read it. 2 "Detective Sergeant Wright advises 3 Inspector Carson that he told the First 4 Nations people that they're 5 trespassing, and that it's his 6 understanding that the MNR are seeking 7 an injunction." 8 And indeed he notes that the press may 9 have heard him say that, all right? And is that 10 information that would have been communicated to you back 11 in this meeting on September the 5th of 1995? 12 A: Yes. 13 Q: And I take it that putting 2 and 2 14 together based upon our knowledge of the documents and 15 the chronology, Detective Sergeant Wright must be 16 referring to the meeting that he had with Bert Manning 17 where there's a discussion about a variety of issues, and 18 he's to return the following day. 19 A: Correct. 20 Q: So that -- you remember Mr. Horton 21 was asking you some questions about the only message that 22 was being communicated -- or to be communicated as far as 23 you were concerned was that you're trespassing. And 24 we'll talk about the significance of this a little bit 25 later on.
2131 But, it would appear that Detective 2 Sergeant Wright has indicated not only that they were 3 advised that they're trespassing, but that the MNR are 4 going to engage in this process of seeking an injunction. 5 A: Correct. 6 Q: Am I right? And again we'll -- we'll 7 come back to that in another context. 8 Now, returning to the Ron Fox conversation 9 and -- and again I won't take you to it because it's 10 probably indelibly etched in your mind at this point. 11 But cross-examiners also referred not only to the "no 12 different treatment" quotation, but "the bottom line is 13 we want them out, the government's on a testosterone 14 high" and similar comments, right? 15 A: Yes. 16 Q: And you heard all those comments from 17 Ron Fox, apparently, right? 18 A: Yes. Yes I did. 19 Q: And after those comments you're still 20 telling your team, we're okay, we're on the right track? 21 A: Correct. 22 Q: And what was the track? 23 A: We were just going to pursue -- hold 24 -- hold -- for lack of a better term, hold the status 25 quo, waiting for the injunction to be processed.
2141 Q: Right, now if we can go very, very 2 briefly to the -- to the September 5th conversation, it 3 is call number 16 in Exhibit 444(a). 4 5 (BRIEF PAUSE) 6 7 Q: And do you have that? 8 A: Yes, I do. 9 Q: Now, a lot of questions have been 10 directed to you, sir, about -- about what the Premier's 11 views were. I'm interested in -- in your reaction to 12 some of those views as expressed by Ron Fox, and I'm 13 looking at the middle of the page. 14 "John Carson", middle of page 125. 15 16 (BRIEF PAUSE) 17 18 Q: And do you have that? 19 A: Yes, I do. 20 Q: And you say: 21 "Well, I'm hesitant at getting too 22 excited about moving on the Park until 23 we have some Court injunction. 24 Fox: That's right. 25 Carson: For the mere trespassing,
2151 it's pretty flimsy grounds. 2 Fox: Uh huh. 3 Carson: You know, to start going 4 arresting people. 5 Fox: Yeah." 6 And you say it's not going to look very 7 good on Canada A.M., I'll tell you, and Fox says: 8 "Yeah, right, and that's the whole 9 point." 10 Well, that wasn't the whole point, but 11 it's certainly -- certainly the message is understood, 12 right? 13 A: Correct. 14 Q: And what I'm going to suggest you is 15 that if you then go to page 126, we've got an interesting 16 comment from -- from Ron Fox, and that is that: 17 "Let me assure you that I pushed them, 18 and they're going to apply for the 19 enjoining Order. 20 Carson: Okay. 21 And it sounds like they'll do the 22 emergent form. 23 Carson: Good, good, okay. Well, hold 24 the line, I've got another line ringing 25 here."
2161 And then off you go. 2 A: I think, in all fairness, it's "good, 3 okay, we will hold the line." 4 Q: We will hold the line. 5 A: We'll. 6 Q: All right. And then there's 7 salutations and greetings and off he goes. 8 Now, three (3) things arise from -- from 9 that exchange. 10 The first is that, and again however the 11 government's attitude, or people within the government's 12 attitudes are interpreted, and that'll be for -- for 13 others than Counsel for the OPP, you are continuing to 14 express the view, even having heard those opinions, that 15 we're not going in until an injunction is obtained? 16 A: Yes, oh yes. 17 Q: Second of all, it's interesting that 18 Ron Fox is saying to you, I pushed them, and it appears 19 that they'll be going for an injunction. 20 So it was clear to you, I'm going to 21 suggest, that Ron Fox wasn't simply accepting strongly 22 held positions being uttered by the -- by the Premier's 23 office; he was responding and disagreeing? 24 A: That's fair, I think that's accurate. 25 Q: And third, it looks -- it looked to
2171 Ron Fox on September the 5th, and I'll underline that 2 because we'll come to that when we look at September the 3 6th, that -- that they would be plying for an emergent 4 Order, and -- and this, of course, is before your 5 September the 6th conversation with him about giving viva 6 voce evidence in support of the emergent type of order, 7 am I right? 8 A: Correct. 9 Q: So we've already got this being 10 discussed, and apparently, though we know that there 11 hasn't been complete consistency in government on this 12 issue, to say the least, it's already being discussed as 13 -- as a -- an approach to be taken, namely an emergent 14 order, before you're asked whether you're going to give 15 viva voce evidence -- 16 A: That's correct. 17 Q: -- in support thereof -- 18 A: Yes. 19 Q: Am I right? 20 A: Yes. 21 Q: Okay. Let's go to the -- to the next 22 entry that Mr. Klippenstein put to you, and I don't mean 23 to centre Mr. Klippenstein, this was put by various 24 people, but he just did it in the most organized way. 25 So, I'll...
2181 I don't have to agree with any of his 2 positions, but I respect the order in which he did it. 3 And -- and this is at Tab 22, and this is the 4 conversation that you had on the afternoon, this is -- 5 MR. DERRY MILLAR: He doesn't have the 6 same documents. 7 MR. MARK SANDLER: No, these are the 8 tapes. 9 MR. DERRY MILLAR: Oh. 10 11 CONTINUED BY MR. MARK SANDLER: 12 Q: Exhibit 444(a), call 22. And this is 13 the conversation between you and Wade Lacroix at 1624 14 hours. 15 And do you have that? 16 A: Yes, I do. 17 Q: And -- and in this conversation 18 there's reference to: 19 "Harris is involved himself, and quite 20 uptight about it, and the Ministry, I 21 guess the Solicitor General, I imagine 22 is to do a press release momentarily, 23 or soon saying the law will be upheld 24 no matter who's involved. The signal 25 is, we're going to end up evicting
2191 them." 2 And you say: 3 "I will -- I would suspect so." 4 Right? 5 A: Correct. 6 Q: Now, Mr. Klippenstein's point was 7 that -- that that conversation, or the heart of that 8 conversation makes its way, to some extent, to the 9 Command Post, and to those under your command. So, if we 10 can look at that, in its fullest context, and this is in 11 the typed scribe notes, Exhibit 426, page 39. 12 13 (BRIEF PAUSE) 14 15 Q: And we see, at 1631, Inspector Carson 16 called Staff Sergeant Lacroix and he briefed him 17 regarding discussion with Marcel Beaubien, right? 18 A: Correct. 19 Q: And we see at 1645, as well, that 20 there's a command briefing, and in the course of the 21 command briefing, we see at page 40, going to the next 22 page, near the bottom: 23 "Inspector Carson updated Chief Coles 24 that Marcel Beaubien has contacted the 25 Premier. There is to be a press
2201 release by the Solicitor General 2 stating it's not an Indian issue, it's 3 an MNR, and a provincial issue." 4 And again, you see that? 5 A: Yes. 6 Q: And again, this is a reflection, as 7 you testified earlier, of the fact that you were keeping 8 people advised of what was going on including, to a 9 certain extent, the political dimension of all this, and 10 what was being said? 11 A: Sure. 12 Q: Right? Now, those are the portions 13 that -- that were significant to others. I want to look 14 at what else was said during that same briefing. 15 And if you look back at page 39 at 16:45, 16 the third entry. And this is the same briefing, I take 17 it? 18 A: Yes. 19 Q: "Ed Vervoort, MNR, advises Dan 20 Elliott is meeting again tomorrow. 21 Seemed to be moving for an injunction 22 as soon as possible." 23 Am I right? 24 A: Correct. 25 Q: And then, at page 40, at the bottom
2211 of the page, we see -- and your pagination's slightly 2 different than mine so I always give you a chance to 3 catch up to me. 4 A: I'm following you. 5 Q: It says: 6 "Inspector Linton relieving Inspector 7 Carson. Inspector Carson wants every 8 one [I suggest it should be 9 "everyone"]... 10 A: Correct. 11 Q: "To ensure that everyone who is 12 taking over for them for the night is 13 aware of their responsibilities for the 14 evening." Right? 15 A: Correct. 16 Q: Now, have their responsibilities 17 changed as a result of the political information 18 communicated at the briefing? 19 A: No, sir. 20 Q: What are their responsibilities for 21 the nighttime as far as you're concerned? 22 A: It's to maintain the status quo. 23 Q: To keep it quiet? 24 A: To keep it quiet, the same as the 25 night before. Basically, just use the term, for -- hold
2221 the line, maintain the status quo. 2 Q: So again, even in the context of a 3 briefing that includes a reference to -- to the 4 politicians, the direction that you're giving the troops 5 is direction of restraint? 6 A: Yes. 7 Q: A direction of injunction? 8 A: Correct. 9 Q: Now if I can turn to page 41 at 10 17:27, and at 17:27 we see Les Kobayashi and Ed Vervoort 11 reported that Peter Sturdy is working on a twenty-four 12 (24) hour affidavit. He needs to know who's at the Park. 13 Kobayashi gave him the names that he is 14 aware of. Inspector Carson instructed Detective Sergeant 15 Wright to give the names of the people at the Park to 16 Kobayashi. 17 Now, stopping there for a moment. So 18 there's discussion, in your presence, again, about the 19 injunction; am I right? 20 A: Correct. 21 Q: And what's interesting here and again 22 this is before September the 6th, when it's alleged that 23 you're kind of conscripted to support an emergent 24 injunction that is unjustified. 25 That here there's talk about Peter Sturdy
2231 working on a twenty-four (24) hour affidavit. And I'm 2 going to suggest even though the language isn't as -- as 3 precise as it might be, that's obviously a hasty 4 emergency as opposed to the more long term kind of 5 injunction; right? 6 A: I would agree. 7 Q: So -- so there's talk here on 8 September the 5th about -- about this injunction being 9 processed and moving along as soon as possible. 10 A: Correct. 11 Q: Right? Now we're going to talk about 12 the distinction between the ex parte and the long term 13 injunction a little bit later on, once we've kind of gone 14 through a little bit of this. 15 And then, if I can take you to the 16 handwritten entry in page -- sorry, in Exhibit 427 at 17 page 450. Again this is at Tab 13 of your materials. 18 19 (BRIEF PAUSE) 20 21 Excuse me, my binder is falling apart. 22 And if I can direct you to the middle of page 450 and -- 23 and here's the entry that was put to you as demonstrating 24 political pressure that was being communicated to your 25 team by you.
2241 "Heat from political side --" 2 Do you see where we are? 3 A: Yes. 4 Q: "Made strong comments in the house." 5 Do you see that? 6 A: Yes. 7 Q: And in -- and in fairness, Mr. 8 Klippenstein noted that Mr. Vervoort's notes use even 9 stronger language, lots of political pressure, strong in- 10 house comments by the premier or solicitor general. 11 And you conceded that it may well be that 12 those notes of Vervoort were reflective of at least what 13 he took from the conversation. All right? 14 A: Correct. Correct. 15 Q: Now let's look at what immediately 16 follows in the words after the portion relied upon by Mr. 17 Klippenstein. 18 "Court injunction moving along. Keep 19 tonight quiet. Keep on checkpoints 20 wherever you are, let logistics know." 21 And this is in the same passage as your 22 comments to your team about heat from the political side. 23 A: Yes, it is. 24 Q: Now again, it seems that, yet again, 25 your references to political heat or pressures or
2251 feelings seem to be punctuated somewhat consistently, I 2 suggest, by information that the court injunction's 3 moving along, keep tonight quiet, comments of restraint, 4 business as usual staying the course. 5 A: Correct. 6 Q: Now again, I'll come back to the 7 earlier question. You didn't specifically caution your 8 officers not to allow political pressure to influence 9 them -- 10 A: Correct. 11 Q: Right? But what you were telling 12 them was, that's what they have to say, this is what 13 we're doing? 14 A: Correct. 15 Q: So drawing all of this together, 16 we've got, I guess, five (5) points that I'd suggest can 17 be drawn from it all. 18 The first is that, as a matter of 19 policing, leave aside this particular situation, officers 20 are trained to take direction from you, their Incident 21 Commander, or their superior, not politicians; am I 22 right? 23 A: Absolutely. 24 Q: Second of all, you've indicated that 25 the decision making is by you, in any event?
2261 A: Correct. 2 Q: Third, although the unusual feature 3 here is that the Premier was engaged, and nobody can deny 4 that, it's not unusual for the police to be subject of 5 public scrutiny and criticism by the public, by 6 politicians, by victims and even, dare I say it, by 7 lawyers? 8 A: Very much so. 9 Q: Right? You've already indicated to 10 the Commissioner that nobody would have been oblivious to 11 the strong views being expressed in the community and by 12 politicians, whether you mention them to your team or not 13 -- or not? 14 A: Well, that's correct. 15 Q: But that the message, I'm going to 16 suggest, that you were communicating in your comments, 17 documented contemporaneous comments are that it's 18 business as usual, stay the course, quiet, restraint? 19 A: Yes, it is. 20 Q: Now there was a conversation that we 21 heard about through -- through cross-examination 22 yesterday, with -- by Mr. Falconer, with Tony Parkin on 23 September the 5th, so that's the same day as this, 1995, 24 and that conversation is Exhibit 44(a) -- 444(a) at 9:43 25 a.m. and this is call number 6.
2271 If I can take you to that? 2 3 (BRIEF PAUSE) 4 5 A: Do we know what tab it's at, sir? 6 Q: This is at Tab 6. 7 A: Thank you. 8 9 (BRIEF PAUSE) 10 11 Q: Now I'm just going to take you 12 through a few additional comments in here than the ones 13 that -- that you were shown earlier. 14 Page 22 of this conversation. We actually 15 see Stan Korosec speaking to Tony Parkin before you get 16 on the line, don't we? 17 A: Yes. 18 Q: And you at -- you heard that -- I 19 mean, you've heard that when the tape has been played, 20 too? 21 A: Oh yes. 22 Q: And -- and here's -- Stan Korosec 23 says: 24 "Ah, we're down in the Park when this 25 thing hit the fan. It was nose to nose
2281 for a while and they outnumbered us at 2 the one point, so we had no choice but 3 be safe." 4 And Tony's response was what? 5 A: Well, sure. 6 Q: And then we see at the bottom of the 7 page that Tony Parkin tells you, once you're back on the 8 line: 9 "I don't like to be bothering you". 10 I'm going to ask you about these things in 11 a moment, but I want to point up the passages first, and 12 we'll do it all at once. 13 So he says: 14 "I don't like to be bothering you." 15 And then he -- on the next page, about 16 five (5) lines down he says: 17 "Basically, we don't want to bother 18 you.÷ 19 Basically, you call us, we won't call you? 20 A: Correct. 21 Q: Right? And then you see at the next 22 page, page 24 in the middle of the page, he says: 23 "But -- and we appreciate. I wouldn't 24 want to be -- be bothered by phone 25 calls, so I'd much rather it come from
2291 you." 2 Again, this theme about we don't want to 3 bother you; right? 4 A: Correct. 5 Q: And -- and then jumping ahead to page 6 36, this is where Tony Parkin asks you: 7 ˘How did we lose containment?÷ 8 You see that at the top of the page? 9 A: Yes. 10 Q: And I'm going to suggest to you that 11 as any superior officer, he not only was entitled to, but 12 it was perfectly natural that he would ask that question 13 of you? 14 A: Very much so. 15 Q: And you indicated: 16 "Well, it's a matter of safety. Like 17 somebody's going to get their head 18 caved in if we'd stayed in there." 19 And he says: 20 ˘Okay.÷ 21 Right? 22 A: Correct. 23 Q: We saw earlier on when Korosec 24 basically made the same point to him; didn't he? 25 A: He did.
2301 Q: And -- and then there's dialogue 2 later on about -- if you look at page 41 and I'm sorry, 3 I'm skipping very quickly, but that's part of the 4 downside of -- of eighteen (18) days in. We have to move 5 it along very quickly because all of this has been heard 6 -- some of this has been heard and I'm just pointing up 7 additional things. 8 So, page 41 about five (5) lines down: 9 "All right. The bottom line is, we 10 won't be bothering you. Yeah, you 11 know, we'll wait for your calls. The 12 only thing that might happen either 13 later today -- either later today is 14 that the Chief and I may come, but that 15 will only be to see you and to show 16 support and then leave." 17 Right? 18 A: Correct. 19 Q: And then there's the dialogue that 20 Mr. Falconer relied upon, where Tony Parkin is saying 21 that: 22 ˘It's unfortunate we couldn't maintain 23 the Park.÷ 24 And this is at page 42? 25 A: Yes.
2311 Q: And he says: 2 "I guess it's unfortunate we couldn't 3 maintain the Park, but that's a 4 decision that has to be made by the 5 people that, as you say -- I mean if 6 we're going to get beat up for that 7 reason." 8 And you say: 9 "Well that's right. And we could have 10 maintained the Park if we had, you 11 know, the numbers that people have now 12 and so on." 13 And then he talks about what -- what 14 they're going to say; right? 15 A: Correct. 16 Q: And what I'm going to suggest to you 17 is, that first several things come out of this, if one 18 looks at all of the language and not simply the portions 19 that were read to you yesterday, that -- that -- and I 20 don't say that critically, I'm relying upon different 21 portions. 22 But -- but first of all, that -- that I'm 23 going to suggest that Tony Parkin was acknowledging that 24 you were right; wasn't he? 25 A: I believe so.
2321 Q: I'm going to suggest to you that 2 there's nothing in this conversation that suggests a lack 3 of support on his part for what you had done; am I right? 4 A: Not at all. 5 Q: It's interesting that he -- that he 6 says: 7 That's a decision that has to be made 8 by the people, as you say. I mean if 9 we're going to get beat up for that 10 reason." 11 And -- and surely what you were taking 12 from that -- well I'll ask you, what were you taking from 13 that? 14 A: Well, sometimes you have to make 15 decisions on the ground based on the circumstances you're 16 faced with at the moment and safety is the priority and 17 you have to do what's reasonable. 18 Q: And if other people have a problem 19 with it -- 20 A: Well, that's their -- 21 Q: -- so be it. 22 A: That's their problem. 23 Q: And when he repeatedly says to you -- 24 I was struck by the fact that he keeps telling you that 25 he's not going to bother you, he's not going to bother
2331 you, they're only coming down to show support. 2 Commissioner Linden hasn't heard a lot about this so far 3 and he'll hear more about it from -- from Chief 4 Superintendent Coles and from Superintendent Parkin. 5 But -- but incident command, within the 6 OPP, is such that it's recognized that you have superiors 7 to whom you're accountable; am I right? 8 A: Correct. 9 Q: But it's also recognized that an 10 incident is to be run by the Incident Commander and not 11 the superiors; isn't it? 12 A: Very much so. 13 Q: Could you tell Commissioner Linden a 14 little bit about the culture associated with that? 15 A: Well it's -- it's very important if 16 you want to maintain credibility of the Incident 17 Commander. The Incident Commander must have control and 18 be seen to be taking charge and dealing with the issues. 19 The difficulty you run into is if you have 20 superior ranks above the rank of the Incident Commander 21 appearing on the scene and spending time on the scene or 22 be seen -- or be seen to be second-guessing the Incident 23 Commander. 24 Then, in effect, the Incident Commander is 25 no longer the Incident Commander because somebody is
2341 basically making the decisions for that person and, in 2 fact, it usurps the authority of the Incident Commander 3 and literally transfers the command to a different level. 4 Q: And you were aware of all of that 5 back then; weren't you? 6 A: Oh, very much so. 7 Q: And so when -- when Tony Parkin says, 8 You know, we're going to come to see you but we're going 9 to show support and then leave. I mean, that's language 10 that -- that you now, as a deputy commissioner, are very 11 familiar with; aren't you? 12 A: Very much so and -- and 13 Superintendent Parkin was a well-known seasoned Incident 14 Commander who I had worked with in the past and certainly 15 appreciated the -- the perception of a higher level of 16 command presenting themself at a command centre. 17 Q: In other words, if you need us, we're 18 there, you're accountable to us of course. We will 19 discuss the matters with you, but ultimately you are the 20 Incident Commander. 21 A: Correct. 22 Q: Now what's interesting as well is, I 23 mean, Mr. Falconer took from this telephone conversation 24 that this was kind of the -- the origins or -- or a 25 manifestation of the origins of a -- of a deep
2351 disappointment within the ranks of the OPP about having 2 lost the Park which -- which caused you, down the road, 3 to -- to act in a different way. 4 Do you see any of that resentment or 5 disappointment in that taped conversation? 6 A: I -- I can't see that. 7 Q: Did you see it when -- when -- in any 8 of your subsequent dealings with Tony Parkin or Chief -- 9 Chief Superintendent Coles? I mean were you being -- 10 were you being criticized by them at any stage for the 11 failure to keep the Park? 12 A: Never. 13 Q: Did you ever second guess that 14 decision? 15 A: No. 16 Q: Were you ever concerned about that 17 decision? 18 A: No. 19 Q: Looking at it now, and we've looked 20 at lots of things with the benefit of hindsight, we're 21 going to talk a little bit about hindsight later on. 22 But with the benefit of hindsight, would 23 you have done anything differently? Instead of ceding 24 the Park to the occupiers in the circumstances as were 25 presented to your officers that day on September the 4th?
2361 A: No. 2 Q: The other thing that's interesting is 3 that if -- that Mr. Falconer alleged that that 4 conversation had that affect, it's on that same day, 5 later in the day, that you're telling your people under 6 your command: 7 ˘Keep tonight quiet, keep on the 8 checkpoint.÷ 9 It doesn't sound like you're terribly 10 motivated to become a hawk, to use his terminology, later 11 in the day. 12 A: I would agree. 13 Q: Now let's go to the conversation with 14 Ron Fox on September the 6th which is Exhibit 444(a), Tab 15 37. 16 17 (BRIEF PAUSE) 18 19 Now I'm not going to go through the 20 comments that you were repeatedly taken to in these 21 conversations -- this conversation that Ron Fox made 22 about the views of the premier and others within 23 government. I mean they're all on the record. 24 I'm more interested in focussing on 25 aspects of your reaction and the reaction of Ron Fox to
2371 those comments that were -- that Ron Fox said were made. 2 And if we can look at 264. And you see at 3 page 264 that Ron Fox says he -- and you've agreed that 4 this appeared in the context to be referring to the 5 premier: 6 "He believes that he has the authority 7 to direct the OPP." 8 And you say: 9 "Oh." 10 And Fox says: 11 "Yeah, okay, so." 12 And then you say: 13 "I hope he'll be talking to the 14 Commissioner about that." 15 And Ron says: 16 "Pardon me?" 17 "I hope he and the Commissioner have 18 that discussion." 19 Now stopping there for a moment. So after 20 you hear this comment that -- that the premier believes 21 he has the authority to direct the OPP, your response is: 22 "Hope he speaks to the Commissioner 23 about that." 24 Right? 25 A: Correct.
2381 Q: And you knew full well that the 2 premier didn't have the authority to direct the 3 Commissioner or the OPP; am I right? 4 A: Correct. 5 Q: What did you think the Commissioner 6 would tell him if he had that conversation? 7 A: He would be obliged to tell him he 8 has no authority to direct OPP and he'd have to remind 9 him of his obligations. 10 Q: Did you have any doubt that that 11 would be the message, if he got on the phone and spoke to 12 the Commissioner? 13 A: No doubt in my mind. 14 Q: And we won't play back the tape to 15 listen to your inflection, but I'm going to suggest that 16 inflection is very supportive of what you've just 17 testified to. 18 And then if you go back to page 262, and 19 at 262 we see after Ron Fox says some fairly strong 20 things about the government. You respond: 21 "All right, they just want us to go 22 kick ass. 23 Fox: That's right. 24 Yeah, we're not prepared to do that 25 yet."
2391 And it's interesting that depending on 2 who's cross-examined you, the inflection is put 3 differently on those words from "we're not prepared to do 4 that yet", as opposed to "we're not prepared to do that 5 yet". 6 The tape will speak for itself, but I -- I 7 don't want to kind of parse the thing terribly much. 8 What is clear, I'm going to suggest, is 9 that whatever they may want, this is what we're prepared 10 to do and not do. 11 A: Correct. 12 Q: Right? 13 A: Absolutely. 14 Q: I mean, it would have been 15 interesting if he'd said, well, they're prepared -- they 16 want you to kick ass, I said, well then, we'll kick ass. 17 Did -- did you say that? 18 A: Absolutely not. 19 Q: Were you prepared to say that? 20 A: No, sir. 21 Q: Well why not? if you were so 22 influenced by the political pressures of the day, why 23 didn't you say it? 24 A: I was not influenced by them at all. 25 Q: Now, we're going to return to this
2401 conversation. I say that either as a promise or a threat 2 when we -- when we talk a little bit about ex-parte 3 injunctions, but I want to move ahead, if I may, and just 4 deal with the matters that Mr. Klippenstein raised in -- 5 in sequence that evidenced political pressures. 6 And -- and the next one is in Exhibit 7 444(b), tape 42. 8 9 (BRIEF PAUSE) 10 11 Q: And this is on September the 6th, 12 15:41, and it's quite clear that this conversation with 13 Inspector Hutchinson takes place after you've had that 14 conversation with Ron Fox, am I right? 15 A: Correct. 16 Q: And you say on the first page: 17 "We've had some alligators. 18 Oh, is that right? Friendly ones or 19 ones on the outside? 20 Oh well, we've just had some political 21 pressures, if you would. 22 Well, that's what I was wondering, eh?" 23 And again, those were comments that were 24 seized upon as demonstrating your concern about the 25 political issues that were swirling around.
2411 And if you just look at page 286 of the 2 same conversation, we see that you say in the middle of 3 the page: 4 "Yeah, well it looks like we're going 5 to see an application for the 6 injunction tomorrow morning. 7 Hutchinson: By the Ministry of 8 Natural Resources? 9 Yeah, yeah, in Sarnia, nine o'clock 10 tomorrow morning. There's Court 11 available. 12 Good." 13 And then, "so at least that will give us 14 paperwork." 15 And then there's discussion about who 16 Judge Gardner is, and then you say at the middle of the 17 page 287: 18 "So that's one of the things that's 19 going to happen, I guess, and how that 20 will shake out, I don't know, but we'll 21 see." 22 All right? 23 A: Yes. 24 Q: Now, so in the same conversation 25 where you tell him quite factually, that there's this --
2421 these political alligators out there, business as usual, 2 applying for an injunction, injunction is going to be 3 tomorrow; am I right? 4 A: Correct. 5 Q: Now, moving ahead to 18:42, briefing, 6 which was relied upon in cross-examination of you in 7 Exhibit P-427. These are the handwritten notes, and I'm 8 trying to jump back and forth as quickly as I can, 9 Commissioner. 10 This is at page 468. 11 A: Yes. 12 Q: And what I'd ask you to do as well, 13 is because I'm going to look at both the handwritten and 14 the typewritten notes, but in fairness, because the 15 handwritten notes were -- were relied upon here, I wanted 16 to make sure that it was all before you. 17 So if you'd also take out the -- the 18 comparable entry in the typewritten notes, for the 18:42 19 briefing on September the 6th. 20 A: Yes, I have them both here. 21 Q: Sure. 22 MR. DERRY MILLAR: Page 69 of 426. 23 24 CONTINUED BY MR. MARK SANDLER: 25 Q: All right? So, it's at 18:42 on the
2431 afternoon of September the 6th, and we're looking at both 2 the handwritten entry at page 468, and the typewritten 3 entry around page 69; do you have that? 4 A: Yes, I have them both. 5 Q: So, the handwritten entry is: 6 "DL/JC/Marcel Beaubien. Made fax, sent 7 to Premier five (5) minutes after 8 person called and stated they will be 9 on it." 10 Right? 11 A: Correct. 12 Q: And -- and then we look at the 13 typewritten notes, and again here's an example where 14 every word from the handwritten note hasn't made its way 15 into the typewritten notes, but -- but the political 16 context is still there in the typewritten notes, isn't 17 it? 18 A: Yes, it is. 19 Q: And it says: 20 "Inspector Linton, Inspector Carson, 21 Kobayashi, and Beaubien meeting in 22 command trailer. Beaubien advised he 23 had sent a fax to the Premier advising 24 of his intentions, and he wanted a 25 return phone call regarding his
2441 intentions." 2 Now, that's what was read to you, I want 3 to read quite a bit of the note that follows: 4 "Inspector Carson advised that there's 5 a Court Hearing for an injunction at 6 9:00 a.m. Marcel Beaubien is aware of 7 the situation. 8 Marcel Beaubien wondered if there's 9 anything else that he could do. Carson 10 advised that things are towards the 11 Court Order so that Criminal Code 12 charges can be laid. 13 Beaubien advised that property owners 14 are very concerned, they're frustrated. 15 They feel they're not being treated 16 equally. 17 John Carson states that there's not a 18 land claim, there has been no legal 19 claim to the land. 20 Kobayashi has had the land researched; 21 there's no burial ground on the land. 22 Linton questioned if there's anything 23 from the Solicitor General; Beaubien 24 advised that they were meeting today." 25 Do you know what meeting he was referring
2451 to? 2 A: No, I'm not sure, quite frankly. 3 Q: Okay. 4 A: Unless it was the inter-ministerial 5 meeting. 6 Q: All right. I mean, we've seen some 7 kind of loose designations when we're referring to the 8 Solicitor General, or others in government. I won't ask 9 you to comment on that. We'll hear from Mr. Beaubien. 10 "John Carson advised that before the 11 Park was taken over, that he originally 12 had members there, but had to leave for 13 safety reasons. We were outnumbered. 14 Kobayashi was present when the natives 15 took over. He confirmed that the 16 officers were swarmed. There was 17 approximately twenty (20) to forty (40) 18 natives. Agreed with the decision for 19 the officers to leave. 20 Carson stated that they're using women 21 and children, and it puts us in a tough 22 position. Carson advised Beaubien that 23 he understands the residents' concerns. 24 He reported to Beaubien that we have 25 thirty (30) people on the ground at all
2461 times, having the members talk to the 2 residents to let them know of our 3 presence. Foot patrols are being 4 completed around the residents. Safety 5 is important." 6 Then, Mr. Beaubien states he doesn't mind 7 taking controversy if the situation can't be handled by 8 the police. Something has to be done to handle the 9 situation. 10 So, that's kind of the political pressure, 11 allegedly, that's being exerted on you. And your 12 reaction: 13 "John Carson states: We want it 14 resolved, but we don't want anyone to 15 get hurt. We want everything that can 16 be done to stress the point of no one 17 getting hurt. 18 [Carson also stated:] We've got a lot 19 of good people, two (2) teams on the 20 ground at the time. The officers are 21 going a great job. Linton advised 22 Beaubien that he appreciates everything 23 he's done. There's some discussion 24 about talking to Chief Coles. John 25 Carson brought up the issue that if the
2471 Park's cleared, what happens after 2 that?" 3 And just stopping there, that's the same 4 issue that you've -- that you've addressed earlier on, 5 and that is that, you know, in the absence of a -- of a - 6 - of a better solution, the problem remains even if the - 7 - even if the Park is cleared, right? 8 A: Correct. 9 Q: "Marcel Beaubien is concerned about 10 the residents. He had a meeting, and a 11 hundred or more residents turned out; 12 they're very frustrated." 13 And then, skipping down: 14 "John Carson advised he was keeping in 15 contact with Kettle Point to get their 16 feelings. Kobayashi advises there's 17 great communication between the MNR and 18 the OPP." 19 And you'll recall in the handwritten 20 notes, Beaubien also reflected the communication between 21 him and the Premier, right? 22 A: Correct. 23 COMMISSIONER SIDNEY LINDEN: Mr. Falconer 24 has -- is on his feet. 25 MR. JULIAN FALCONER: Yes, Mr.
2481 Commissioner, I'm sure that somewhere in a long reading 2 of the notes, there was a question. But frankly, I 3 missed it. And my concern is and we've heard a 4 tremendous amount from Mr. Sandler and very little, 5 frankly, from Deputy Carson. 6 But, that's Mr. Sandler's right, he's 7 allowed to lead. But if the leading turns into just 8 argument where the witness sits there and he reads and 9 then says this sounds to me like this, and he goes on and 10 that turns into argument rather than examination. And 11 with respect I think we're getting dangerously close; 12 that's all. 13 COMMISSIONER SIDNEY LINDEN: Thank you, 14 Mr. Falconer. 15 MR. MARK SANDLER: I'm just reading the 16 passage. I haven't asked the question. 17 COMMISSIONER SIDNEY LINDEN: I know 18 you've read the passage, and Mr. Falconer was on his 19 feet. I wanted to let you finish reading it, but I 20 presume you're going to ask a question now. 21 MR. MARK SANDLER: It's a long passage and 22 it takes me a while to do it. 23 COMMISSIONER SIDNEY LINDEN: Yes. Well, 24 all right. 25
2491 CONTINUED BY MR. MARK SANDLER: 2 Q: All right. So, now what is the 3 message that you're communicating to Mr. Beaubien as 4 reflected in these scribe notes? 5 A: Well, I was trying to inform him of 6 the process that was underway, and the steps we were 7 taking to try to alleviate the concerns, on everyone's 8 part, so that he could allay concerns with his 9 constituents to the degree he could. 10 And so that he understood what the process 11 was, that we're moving forward towards an injunction. 12 Q: I mean he's obviously excited and -- 13 excited is not the current term, but he's obviously 14 deeply concerned and frustrated by the process on behalf 15 of his constituents, right? 16 A: Oh, very much so. 17 Q: And look -- look at the kinds of 18 things that you say to him in -- in the scribe notes. 19 "Safety of citizens is being addressed 20 through visible police presence." 21 A: Correct. 22 Q: "Through the number of police 23 officers." 24 A: Yes. 25 Q: "They're doing a great job."
2501 A: Right. 2 Q: "We want it resolved but we don't 3 want to get anybody hurt." 4 A: Correct. 5 Q: "I want to stress nobody is to get 6 hurt." 7 A: Yes. 8 Q: "Even after the Park's cleared. What 9 happens", right? I'm going to suggest to you that you're 10 marshalling every argument that can be made against 11 precipitous action on the occupiers. 12 A: I would agree. 13 Q: I mean, Mr. Beaubien has his opinion, 14 and you have to deal with him. 15 A: Correct. 16 Q: And you did. 17 A: Yes, I believe so. 18 Q: Now, Inspector Linton is present for 19 all of this, isn't he? 20 A: Yes, he is. 21 Q: So he hears not just what Mr. 22 Beaubien says as has been read out previously in cross- 23 examination, he hears your responses, your attitude, 24 right? 25 A: Oh yes.
2511 Q: Do you accept the allegation that was 2 made in cross-examination that you were inflaming Mr. 3 Beaubien by acknowledging that which you believe; namely, 4 that there wasn't a land claim? 5 A: I don't believe that. 6 Q: Legitimate land claim on the Park? 7 A: No, I do not believe that. 8 Q: Is that consistent with the other 9 entries in the scribe notes that we see here? 10 A: No. 11 Q: Now, I'm going to turn to -- to 12 another way to address this allegation that those under 13 your command were influenced by political pressures. 14 Perhaps that would be a convenient time 15 for the afternoon break? 16 COMMISSIONER SIDNEY LINDEN: We're going 17 until about ten to 3:00. We sort of had in the back of 18 our mind. If this is a good place, that's great. 19 MR. DERRY MILLAR: This is a good time. 20 Commissioner, before we break I wanted to -- I have to go 21 back to Toronto, and so I won't be here for the balance 22 of the afternoon or tomorrow. 23 Mr. Vella will be here. But I wanted to 24 thank -- I know we'll thank Deputy Carson when he's done, 25 but as I examined him for nine (9) days I wanted to thank
2521 him very much for his attendance and -- here. 2 And I regret that I won't be here for the 3 balance of today and tomorrow. 4 COMMISSIONER SIDNEY LINDEN: Thank you 5 very much, Mr. Millar. 6 Ms. Vella, do you want to say anything at 7 this point? No. 8 Okay. We will have a break now, and then 9 we'll continue with the cross-examination. 10 THE REGISTRAR: This Inquiry will recess 11 for fifteen (15) minutes. 12 13 --- Upon recessing at 2:40 p.m. 14 --- Upon resuming at 2:58 p.m. 15 16 THE REGISTRAR: This Inquiry is now 17 resumed. 18 COMMISSIONER SIDNEY LINDEN: Mr. Sandler, 19 before you continue, can I ask if you could make some 20 reasonable estimate as to how long you might be before 21 you are completed with your examination? 22 MR. MARK SANDLER: It's possible that I 23 will be finished by lunch time tomorrow, but it could go 24 a little bit longer. I'll definitely be done tomorrow, 25 no doubt about that.
2531 COMMISSIONER SIDNEY LINDEN: But 2 approximately lunch time, is what you anticipate now, if 3 you go a little longer. But your estimating that now? 4 MR. MARK SANDLER: Yes. 5 COMMISSIONER SIDNEY LINDEN: That's fine. 6 MR. MARK SANDLER: Yes. 7 COMMISSIONER SIDNEY LINDEN: That's 8 assuming we break at half past 4:00? 9 MR. MARK SANDLER: At the normal time. 10 COMMISSIONER SIDNEY LINDEN: 4:30 is the 11 normal time, that's fine. Is that all right? Are you -- 12 THE WITNESS: Sounds fine to me. 13 COMMISSIONER SIDNEY LINDEN: We're 14 reaching the end, it looks like. Carry on. 15 MR. MARK SANDLER: Perhaps I'll -- I'll 16 have to have discussion with Commission Counsel at the 17 end of the day because it appears that we only have post 18 lunch time tomorrow whether Ron Fox should be brought 19 here to start his evidence. 20 COMMISSIONER SIDNEY LINDEN: I think -- 21 MR. MARK SANDLER: We can certainly -- 22 COMMISSIONER SIDNEY LINDEN: -- it being 23 before a long weekend, the sense I'm getting is that 24 whatever time we finish with the Deputy. 25 We still have some possible re-
2541 examination, and then that'll be it; is that right? 2 MS. SUSAN VELLA: Possible. 3 COMMISSIONER SIDNEY LINDEN: 4 Approximately. Well, we'll see how the day goes. I 5 think everybody would be interested in getting away 6 tomorrow whenever they can. 7 I mean, we're going to go as long as we 8 have to, to finish, but... 9 MR. MARK SANDLER: I promise that Deputy 10 Carson will be finished tomorrow. 11 COMMISSIONER SIDNEY LINDEN: That's fine. 12 MR. MARK SANDLER: And I'm -- well, as 13 you can see, Commissioner, I'm -- I'm -- 14 COMMISSIONER SIDNEY LINDEN: You're 15 moving along well and -- 16 MR. MARK SANDLER: Fast. 17 COMMISSIONER SIDNEY LINDEN: No 18 complaints. 19 20 CONTINUED BY MR. MARK SANDLER: 21 Q: Now, Deputy, before the break we were 22 going through the various contemporaneous entries in the 23 -- in the scribe notes, or tapes that had to do with the 24 impact with any that the political pressures that have 25 been relied upon, had upon you, right?
2551 A: Correct. 2 Q: And -- and we went through them as 3 well to demonstrate what would have been heard by those 4 under your command in the context of these political 5 pressures being talked about, right? 6 A: Right. 7 Q: And a little bit of a variation of 8 the -- of the theory of political pressure that has been 9 articulated here is that -- is that, in effect, there was 10 a juggernaut created by those under your command to a 11 point that you couldn't stop it; do you accept that at 12 all? 13 A: Not at all. 14 Q: Is there any documentary evidence 15 that you've seen that supports that? 16 A: None that I'm aware of. 17 Q: And we've actually seen that -- that 18 when you come back to the Command Post, as a result of 19 your intervention, the TRU team will not be effecting the 20 arrest down at the corner of the Park, right? 21 A: Correct. 22 Q: And so did you feel that the TRU team 23 had to go in and effect the arrests just because Linton 24 had made that conclusion before you got there? 25 A: No, sir.
2561 Q: Now, I want to look at this at 2 another -- from another perspective if I may, for a 3 moment. We've already talked about the fact, and the 4 Commissioner has heard ad nauseam how you went to 5 someone's home for dinner, and with no plan for action 6 and so on and so forth. 7 That also took place after your 8 conversation with Chief Superintendent Coles and Chief 9 Super -- and Superintendent Parkin, am I right? 10 A: Correct. 11 Q: Because it's been alleged, in effect, 12 that they directed you at that meeting. You heard this 13 allegation, they directed you at that meeting to take 14 back the Park. 15 A: Yes. 16 Q: But you still went home and had 17 dinner? 18 A: Yes, I did. 19 Q: It's also been suggested to you that 20 -- that something should be inferred from the absence of 21 -- of notes of a meeting with Chief Superintendent Coles 22 and Superintendent Parkin and again, we'll hear from 23 them, but I'm just interested in a sense of, leave aside 24 the scribe for a moment because you've already told the 25 Commissioner that the scribe was left outside. We
2571 actually see the scribe as performing duties, but I'll 2 ask you from another perspective. 3 As you ascend in rank, tell us about the 4 keeping of notes. 5 A: Well -- well -- 6 Q: Do you understand the question that 7 I'm asking you? 8 A: It's fair. Generally speaking, you 9 might make a note that you had a meeting with somebody 10 but you don't take notes in the same fashion you do as 11 you would for an investigation. 12 In investigative mode, obviously, you are 13 looking for evidence, et cetera, and you -- you make some 14 significant detailed notes. But on -- as -- as -- in the 15 higher ranks when you have meetings or whatever, if there 16 are a requirement, there's minutes taken of a particular 17 meeting or whatever, but generally speaking from a 18 personal note point of view, probably the only notes 19 you'd make is the fact that you had a meeting with 20 somebody. 21 Q: All right. And if -- and if your 22 superiors are coming down to show support, hear what's 23 going on and be up -- updated, would you -- would you 24 find it unusual that they don't keep notes of -- of that 25 detail?
2581 A: No, not at all. 2 Q: Now let's put it the other way. Mr. 3 Falconer said, Well, you don't remember the -- what 4 happened in the conversation so how can you really speak 5 to the issue at all and -- and I only ask you this, that 6 if you'd received direction to take back the Park in that 7 conversation with Chief Superintendent Coles and 8 Superintendent Parkin, would that be manifested in some 9 way on your part? 10 A: Well I think you would see tasks 11 starting to appear in the command post log as a result of 12 that direction. It would require a number of people to 13 do a number of activities and be pretty hard-pressed to 14 do that type of thing without having some documentation 15 in the log and tasking people to those various 16 assignments. 17 Q: And Commissioner Linden will see the 18 scribe notes that follow your meeting with -- with Chief 19 Superintendent Coles and Superintendent Parkin and I'll 20 leave it to argument as to whether those scribe notes 21 would support a change in direction, as alleged. 22 Well let's look at it from a completely 23 different perspective and that is that Mr. Rosenthal 24 raised a point that back in 1995 and up to present, is 25 there a regulation or policy as to whether officers
2591 should speak to politicians? 2 And -- and this is a systemic issue that 3 Commissioner Linden has to wrestle with. And that is 4 what, if any, policies or regulations should be in place 5 that regulate the interaction between police officers 6 doing their jobs and politicians, all right? 7 And what I simply want to do is -- is 8 highlight the complexity, the dynamic, to make 9 Commissioner Linden's job a little more difficult and -- 10 COMMISSIONER SIDNEY LINDEN: Thank you. 11 12 CONTINUED BY MR. MARK SANDLER: 13 Q: -- and then talk about where one 14 might go with all of that. 15 We know that -- that you and under -- 16 those under your command were speaking with politicians. 17 Chief Bressette for the First Nations, Thompson, 18 Beaubien, Rosemary Ur, Ken Williams and the like; right? 19 A: Correct. 20 Q: And -- and you understand that those 21 contacts are -- have been raised to fuel an argument that 22 -- that you were influenced by political pressures. 23 A: Right. 24 Q: You understand that? 25 A: Oh yes.
2601 Q: But let's talk about where it's 2 necessary or indispensable to speak to political figures, 3 all right? 4 A: Correct. 5 Q: Let's -- let's talk about a few 6 issues here. 7 First of all, if you want to reduce 8 anxiety of constituents by persuading them that 9 everything's being done by the police, you'd do that 10 through a politician, I take it? 11 A: Correct. That's the elected 12 leadership in the community. 13 Q: All right. If you want to reduce 14 vigilantism or extremist rhetoric that makes the 15 situation worse rather than better, who would you call? 16 A: You'd go to your political officials, 17 the leadership in the community again. 18 Q: And we actually see this that -- that 19 when -- when the Township issues press release called 20 Reign of Terror, that didn't please you very much, did 21 it? 22 A: No, it did not. 23 Q: Kind of ratcheted up the tensions? 24 A: Yes, I was concerned about that. 25 Q: And that was the subject of
2611 discussion with the political figures; wasn't it? 2 A: Oh yes. 3 Q: If you want to acknowledge the 4 concerns of constituents, in other words, you're being 5 heard and your views and your views are being taken into 6 account, how do you do that? 7 A: Well again, it's through the 8 political leadership. 9 Q: Now if you want to inform the public 10 of what the OPP is doing, in a general sense, without 11 getting too much into operational detail, I mean, how do 12 you do that? 13 A: Through the political figures or 14 press releases. 15 Q: Now just stopping there for a moment, 16 there's been a lot of talk as if it's kind of a black and 17 white issue about operational details and it -- it looks 18 like everybody is in agreement at this Inquiry, and I say 19 that at some peril, that operational details, generally, 20 ought not to be shared with -- with the political 21 figures. 22 I mean, you're aware of the distinction, 23 of course -- 24 A: Oh, sure. 25 Q: But there's a certain greyness in
2621 talking about what's operational and what's not, isn't 2 there, at times? 3 A: Very much so. 4 Q: I mean, if you're communicating -- 5 we've just seen in the scribe note that you're 6 communicating to the -- to Mr. Beaubien, you know, 7 there's these people at the checkpoints and -- and 8 there's a lot of officers and they're surrounding the 9 area and so on, and -- and in one sense, that could be 10 seen as operational, but in another sense you're 11 ratcheting down the tension by saying it's in hand, and 12 this is the way I'm showing you it is in hand. 13 A: Right. You're trying to provide 14 information to calm the concerns. 15 Q: So there has to be some discretion 16 here about the -- about the release of details about what 17 the police are doing, I take it? 18 A: Yes, there does. 19 Q: It's not hard -- it's not cast in 20 stone or black and white; is it? 21 A: No. 22 Q: All right. And let's look at the 23 other side of the equation and that is, you know, we've 24 talked about speaking with the politicians to reduce 25 tension and to -- and to prevent vigilantism and so on,
2631 but -- but what we see here is a perfect example of how 2 one has to dialogue with the political side in another 3 way, and that is that when you're dealing with a -- with 4 a First Nations dispute or a land claim, the decision to 5 seek an injunction is a political decision in the sense 6 that it has to be made by the political side; right? 7 A: Well in this case, yes. 8 Q: And -- and so the government has to 9 have sufficient information to enable it to decide 10 whether to bring an injunction and -- and what form of 11 injunction? 12 A: Oh yes. 13 Q: So that involves some -- some aspect 14 of knowing what's happening on the ground; right? 15 A: They require information for sure. 16 Q: So we've got a couple of problems 17 here that have been identified and that is apart from any 18 alleged political pressure that -- that's been exerted, 19 and the Commissioner is fully -- well aware of what your 20 answers are on that. 21 And here are the problems, and you tell me 22 if I'm right or wrong about them. 23 The first is that you need to communicate, 24 in some way, during an incident, with the political side 25 in order to address all of the concerns that -- that we
2641 discussed; right? 2 A: Correct. 3 Q: And some information also has to be 4 provided to those who have to make a decision about the 5 injunctions? 6 A: Yes. 7 Q: And the concern is doing that in a 8 way that doesn't create the appearance, to use Mr. 9 Falconer's concern, that politics or partisan politics 10 are ruling the day; right? 11 A: Correct. 12 Q: And you've made a recommendation to - 13 - to the Commissioner that -- that you could see the 14 establishment of a liaison officer to -- to perform that 15 kind of a role; right? 16 A: Correct. 17 Q: And -- and I take it -- what would 18 you contemplate that such a liaison officer would -- 19 would do in relation to the incident command, in relation 20 to all of the legitimate kinds of contacts that have to 21 take place with the political side? 22 A: Well I -- I would suggest that the 23 individual would have an understanding of -- of the 24 majority of the issues that you were dealing with. 25 Whether it's the land claim and community issues or -- or
2651 whether it's the operational side. 2 So that there's someone who can explain, 3 with some authority, what is being done, what can be 4 done, what needs to be done and so that there's an 5 individual that can speak with -- with authority to the 6 community, whether it's political officials or -- or 7 various community groups who might have interest. 8 Or, in fact, it may be some government 9 officials who require information. It has to be someone 10 who has some experience, I would suggest, to understand 11 all of those dynamics. 12 So it -- it would be a fairly complex 13 position but at the same time it would relieve the 14 appearance that the Incident Commander is having the face 15 to face contacts with the direct contacts that may 16 present that perception. 17 Q: All right. And would you support a 18 recommendation on the part of the Commissioner that 19 Incident Commanders always be prohibited from having any 20 contact with politicians whatsoever? 21 A: I would caution -- 22 Q: Does that work? 23 A: I would caution that. 24 Q: And why? 25 A: Well there are times when -- and I've
2661 had the experience where you have incidents and I'll use 2 a train derailment as an example, where it may be 3 necessary in a community to effect an evacuation for 4 public safety. 5 And some politicians, in all fairness, may 6 not have a lot of experience in emergency operations. 7 And they will look to the police for guidance. And it 8 may be the Incident Commander that the mayor may look to 9 for some advice and guidance. 10 And if a line is drawn between those two 11 (2) that they can't have the discussion, then he may not 12 be able to avail himself to the best advice. 13 Q: Now we've indicated to Commissioner 14 Linden that down the road he's going to get a sense of -- 15 of some of the things that the OPP -- or many of the 16 things that the OPP are -- are now doing. 17 In this context, and again I don't want to 18 -- I don't want you to be the witness to be dealing with 19 all of that. But -- but in the context of incident 20 command you're aware that in the First Nation scenario 21 model that's adopted now by the OPP, often the chief of 22 the First Nations community is there along side the 23 Incident Commander; am I right? 24 A: That's correct. 25 Q: And -- and why do you see that as a
2671 valuable prototype to follow? 2 A: Well it's important that the -- the 3 chief, and then that's who you'd normally seek out first, 4 has an understanding of what's required. And that takes 5 some discussion and they need to understand the potential 6 tactics that may be deployed. 7 At the end of the day, the chief also has 8 to answer to his community. And it's important that, 9 prior to any action being taken on a territory, that the 10 -- the officials understand what may be necessary and the 11 why behind it. 12 And it's a strong communication piece and 13 educational piece and I think it's important that they be 14 armed with that kind of information so they have the 15 ability to speak to it with some facts in -- in their 16 community. 17 Q: Another complication to the dynamic 18 we see here is that -- is that the OPP was and had to 19 work, to some extent, with the MNR to address the issues 20 that were arising at the Park. 21 But by the same token we've seen that the 22 MNR's presence within the incident command really 23 prevented you from limiting or defining the kind of 24 operational information that does make its way up -- up 25 the ladder; am I right?
2681 A: Yeah, that's correct. 2 Q: And -- and can I take from that that 3 one of the things that you'd suggest to the -- to the 4 Commissioner is that some very serious thought has to be 5 given to -- to whose in that incident command -- who 6 could be divulging operational information that isn't 7 appropriately screened by the OPP? 8 A: Yes. I -- I would be very careful 9 about that in the future as to who would be allowed in 10 the command -- in the command post. 11 Q: Now turning to another theory that 12 has been advanced here and some of these -- I don't mean 13 to confuse you, some of them may be contradictory 14 theories because people have taken different positions, 15 is that political pressures caused you to support an ex 16 parte rather than a conventional injunction. 17 And you'll recall that, in that regard, 18 you were cross-examined at some length about your 19 dialogue with Ron Fox on September the 6th when you 20 indicated your support for an ex parte injunction. 21 And the suggestion which you rejected was 22 that comments about the others' views influenced you to 23 support an ex parte as opposed to a long-term injunction; 24 right? 25 A: Right.
2691 Q: And -- and -- and we've been through 2 that. But I want to take you to a little bit of an -- 3 different aspect of this to see what was really important 4 to you in terms of this distinction between ex parte and 5 the more long-term injunction. 6 We've already looked -- I -- I took you to 7 it earlier in the day, to the September 5th conversation 8 with Ron Fox where he advised you that an emergency 9 injunction was going to be sought or that's the way he 10 thought they were going; right? 11 A: Right. 12 Q: And -- and then, when we look at the 13 conversation with Ron Fox on September the 6th, he 14 indicates early on that -- that the ex parte injunction 15 requires a showing of emergent circumstances and refers 16 to the exigencies of the situation increasing 17 exponentially. 18 So just stopping there for a moment 19 because every word of this conversation has now been 20 parsed as if a statute, but is that language that -- that 21 you're comfortable with, that the exigencies of the 22 situation increasing exponentially; is that the way you 23 talk? 24 A: That's -- that's not my normal 25 terminology.
2701 Q: All right. And -- and it was pointed 2 up that you were asked: 3 ˘Can we say with certainty to a court-- 4 And again, it depends on who's asking you 5 the questions: 6 ˘Can we say with certainty -- 7 And people kind of focus on, "with 8 certainty." -- to a court that there's 9 a need for an emergent order that makes 10 it ex parte?÷ 11 And -- and, your answer is: 12 ˘Well, I think we can. Yes, I think we 13 can.÷ 14 A: Correct. 15 Q: All right. And what were you 16 communicating there? 17 A: Well I thought there was information 18 there that would support an emergent order. 19 Q: And you agreed with Ron Fox it was 20 based on the progression of events; right? 21 A: Correct. 22 Q: Now, I want to ask you about that 23 because if one looks at the conversation that you had 24 with Tim McCabe and that's at Exhibit 444(B) Tab 39. 25
2711 (BRIEF PAUSE) 2 3 Q: And if I can take you to page 271, 4 and at 271 Mr. McCabe says this: 5 "But we'll be seeking this ex parte, as 6 I say, which means, without notice, and 7 in those circumstances it's important 8 to be able to show some kind of 9 urgency." 10 And you go: 11 ˘Yes." 12 McCabe says: 13 "In order to demonstrate that if the 14 order is not granted, or if the time 15 necessary to give the period of notice, 16 serious consequences could occur." 17 All right? 18 A: Yes. 19 Q: So here this isn't Ron Fox at this 20 point, this is Tim McCabe who's a lawyer, advising you of 21 the legal foundations that would support an emergency 22 injunction; right? 23 A: Correct. 24 Q: And he tells you that there's -- 25 there's two (2) bases. He says if the order isn't
2721 granted, serious consequences could occur, or if the time 2 that's taken that's necessary to give the period of 3 notice, serious consequences could occur. We see both of 4 those dimensions in what he says; right? 5 A: Right. 6 Q: And -- and, I'm interested in the -- 7 in the second one and that -- that is that -- that if the 8 time that's taken -- I'm sorry. If the time taken that's 9 necessary to give the conventional period of notice is, 10 indeed, taken, serious consequences could occur; right? 11 A: Correct. 12 Q: And what I'm interested in is that if 13 you go back to -- to a little bit earlier on in the piece 14 when you're having conversations about emergency versus 15 more long-term injunctions, it appears that -- that the 16 timing of when this injunction can be brought is a 17 critical issue for you; am I right? 18 A: Yes. 19 Q: And just to see, by way of example, 20 we see in the typed scribe notes, Exhibit P-426, page 35. 21 22 (BRIEF PAUSE) 23 24 Q: 13:32 in the afternoon. 25
2731 (BRIEF PAUSE) 2 3 Q: And I'm just going to read you this 4 portion at 13:32, if you have it? 5 A: Yes, I do. 6 Q: "Ed Vervoort, MNR, advised that Ron 7 Baldwin was still on the telephone 8 conference with the blockade committee. 9 He stated that there are two (2) kinds 10 of injunctions; a twenty-four (24) hour 11 emergency one, or one that would take 12 two (2) to four (4) weeks to get. 13 Vervoort passed on the information from 14 the briefing to Baldwin. Inspector 15 Carson questions if Ministry of Natural 16 Resources is not prepared to get an 17 injunction. Vervoort thinks they are 18 prepared, doesn't know who isn't. 19 Inspector Carson states that if it 20 drags on, have to discuss our media 21 releases. Carson advises we have sixty 22 (60) people trying to secure the area. 23 Vervoort states he will inform 24 Inspector Carson as soon as they know 25 anything."
2741 Now, stopping there for a moment. The 2 distinction that's talked about in the scribe notes 3 between the emergency injunction and another form of 4 injunction is a difference between a twenty-four (24) 5 hour one and one that could take two (2) to four (4) 6 weeks to get; am I right? 7 A: Correct. 8 Q: And we actually see, and I'm not 9 going to take you to these, but I'll just indicate them 10 for the record, that -- that also on September the 5th, 11 in a conversation with Tony Parkin, Exhibit 444(a), Tab 12 21, you say: 13 "Let's get an emergency injunction." 14 And you also discuss with Inspector 15 Hutchinson, Exhibit 444(a), Tab 14: 16 ˘Emergency injunction's being debated 17 within the big smoke." 18 That's Toronto, I take it? 19 A: Yes. 20 Q: And you can get an emergency 21 injunction within a day. 22 And what I want to ask you is this, and I 23 took you to the scribe notes first to -- to assist you. 24 The timing of waiting two (2) to four (4) weeks or 25 whatever for an injunction was of serious concern to you;
2751 wasn't it? 2 A: Yes, it was. 3 Q: Why? 4 A: Well there was a -- a number of 5 issues, I would suggest all of the concerns that had 6 arisen to that point. We had the altercation on 7 September the 4th, there had already been concerns in the 8 community and the ability for us to maintain security was 9 -- was all going to be significant challenges and I felt 10 it was important that some direction be sought through 11 the Courts in regards to the ownership and direction 12 relative to the ownership as soon as possible, before 13 anything occurred that caused us other grief, so to 14 speak. 15 Q: See, the reason I ask you about this 16 is because you've been through this territory and -- and 17 I understand that. 18 But what's being put to you in the context 19 of ex parte versus the more long term injunction is, why 20 are you promoting an ex parte or an urgent injunction 21 when, as of the moment that you're speaking to Ron Fox, 22 on the afternoon of September the 6th, the situation is 23 relatively quiet at that point. 24 And that's what I want to ask you about, 25 okay?
2761 A: Yeah, it was at that point, but 2 certainly no guarantees that that would be the order of 3 the day as time went on. 4 We'd already had altercations and we'd had 5 a situation where we didn't even have dialogue happening 6 and I was certainly concerned that, you know, without 7 some stability, and without a Court injunction, it really 8 put us in a -- in a tough position trying to deal with 9 all this. 10 Q: So looking at all these -- all these 11 things, when you're communicating that you'd support an 12 urgent injunction based upon the progression of events, 13 you weren't representing to Ron Fox or anybody else that 14 there were urgent events happening at two o'clock that 15 afternoon? 16 A: Oh no. 17 Q: I mean I'll put it another way. The 18 -- the relative quiet at 2:00 p.m., did that represent 19 how this occupation had progressed up into that point in 20 time? 21 A: No. 22 Q: We've seen that there were tensions 23 manifest in the Native, and non Native community -- 24 A: Yes. 25 Q: -- between Kettle and Stoney Point
2771 and the occupiers? 2 A: Yes. 3 Q: What did you think as to whether 4 those tensions would be assisted, or detracted from 5 through the passage of time? 6 COMMISSIONER SIDNEY LINDEN: Just a 7 minute. It looks like Mr. Scullion -- Mr. Sandler, it 8 looks like Mr. Scullion is making his way to the 9 microphone, so... 10 MR. MARK SANDLER: I'm sorry. 11 MR. KEVIN SCULLION: It take me a little 12 bit longer now, Mr. Commissioner. 13 COMMISSIONER SIDNEY LINDEN: Well, 14 OBJ MR. KEVIN SCULLION: I have to raise an 15 objection. I've been sitting for two (2) hours listening 16 to Mr. Sandler go over material we've been over and over 17 and over again. 18 COMMISSIONER SIDNEY LINDEN: Yes. 19 MR. KEVIN SCULLION: He's asking 20 questions that were asked of this witness by Mr. Millar, 21 he's asking questions that were asked on cross- 22 examination just for a clarification. 23 COMMISSIONER SIDNEY LINDEN: I don't find 24 that, Mr. Scullion with all due respect to you. I find 25 that the questions he's been asking have been appropriate
2781 and helpful. Of his perspective, they're just fine. 2 That's my view, up to the present time. If you have a 3 particular objection to a particular question, make it. 4 MR. KEVIN SCULLION: My particular 5 objection is that when this has happened before, when 6 there's been re-examinations/cross-examination, the 7 direction's always been that spoon feeding, or offering 8 up the answer as part of the question which you normally 9 do in cross-examination is precluded. 10 COMMISSIONER SIDNEY LINDEN: He's doing 11 exactly what every other counsel has done. And I don't 12 intend to interrupt him unless you have something more to 13 say. 14 MR. KEVIN SCULLION: That's my objection, 15 Commissioner. 16 COMMISSIONER SIDNEY LINDEN: Thank you 17 very much. Carry on Mr. Sandler, please. 18 19 CONTINUED BY MR. MARK SANDLER: 20 Q: The tensions that you've already 21 described that were manifest between the Kettle and 22 Stoney Point community and the occupiers, did you think 23 they would be relieved or exacerbated through the passage 24 of time? 25 A: Over time it would only get worse.
2791 Q: You describe the difficulty 2 establishing communications with them. Did you feel that 3 a timely injunction would enhance or detract from 4 reopening the dialogue with the occupiers? 5 A: I was hoping it would stimulate it. 6 Q: You've described cruisers being 7 damaged on two (2) separate occasions, confrontations 8 with the police resulting in charges. 9 A: Correct. 10 Q: You've described what you regarded, 11 and there's different accounts of the event, as an ambush 12 of the officers somewhat -- on any account a somewhat 13 violent confrontation between the occupiers, and the 14 officers and so on, right? 15 A: Correct. Correct. 16 Q: Did that concern you? 17 A: Of course. 18 Q: Now, we've heard some evidence that 19 MNR property, or property within the Park was being 20 damaged. And -- and of course we tend now to -- with -- 21 understandably to overlook that because we know in 22 hindsight that Dudley George died, and it kind of pales 23 in significance now, but was that a concern at the time? 24 A: Yes, there was some significant 25 damage occurring.
2801 Q: Now, the inability to control access 2 into the Park by others than -- than the Stoney Pointers 3 who you knew, was that a concern? 4 A: To some degree. 5 Q: And would that have lessened or 6 increased through the passage of time, in your view? 7 A: Well, it would have only increased. 8 Q: And what I'm going to suggest is that 9 it was reasonable to promote a speedy injunction based on 10 those events despite this window of relative quiet on the 11 afternoon of September the 6th? 12 A: Correct. 13 Q: Now what I'm also interested in is 14 kind of going back to your conversation with -- with Tim 15 McCabe. Tim McCabe tells you that from the perspective 16 of those down at the big smoke, in Toronto, gunfire, the 17 automatic gunfire is the thing that has gotten people 18 particularly concerned, right? 19 A: Yes. 20 Q: And -- and he's telling you this in 21 the context of, you know, what the basis is for getting 22 an injunction, right? 23 A: Right. 24 Q: And it's interesting that -- and you 25 knew all about this because -- this you've already given
2811 evidence on, because Ron Fox hadn't known about the 2 gunfire until told by someone else, that you had to talk 3 to him and fill him in about that; do you remember that? 4 A: That's correct. 5 Q: You remember that? 6 A: Oh, yes. 7 Q: So -- so here the political people 8 feel that this is important somehow, you know, the 9 automatic gunfire, and -- and let's see how you dealt 10 with the automatic gunfire at page 272. 11 And I won't read it all, but you see in 12 the middle of the page, you say: 13 "I have to qualify that somewhat. A 14 fire was set up as an ambush, our guys 15 got ambushed, to deal with fire in the 16 roadway, bombarded with rocks which 17 caused damages to windshields, three 18 (3) vehicles; fortunately no officers 19 were hurt. The gunfire was back in the 20 bush. I have to be frank with you, 21 we've not had a weapon pointed at us, 22 we haven't seen one fired in any 23 direction, and there's no reason to 24 believe that the firing we heard last 25 night was anything more than audio for
2821 our benefit. 2 I see. 3 So when you hear that there's gunfire, 4 you can't really use that. 5 Well, I mean it's a significant factor 6 from a safety point of view, from my 7 perspective, in that I know there's 8 obviously weaponry in there, okay? But 9 to say, from a safety point of view, 10 that our officers have been threatened 11 with weapons, I can't say that." 12 And -- and you talk about how it doesn't 13 give you a fuzzy, warm feeling and -- and so on. 14 And -- and then skipping down: 15 "You know, whether you see or not, but 16 you know if a Judge asked me 17 specifically did we see gunfire, did we 18 see weapons or any weapons pointed at 19 us, did we feel our safety was in 20 jeopardy because of those weapons, we'd 21 have to say we haven't been directly 22 threatened. 23 I mean, those are the subtleties that 24 are used you know, as a tactical 25 approach to us.
2831 Yeah." 2 Now, here you were being told by Tim 3 McCabe, you know, there's an application in the works for 4 an emergency injunction, I'm speaking to you about it, 5 and what's got the political people, you know, wound up, 6 is the automatic gunfire. 7 Well, I mean, this is coming from the 8 politicians. Did that move you to feel pressure, to kind 9 of conform to their viewpoint? 10 A: No, not at all. 11 Q: Or to -- or to emphasise the 12 automatic fire in any way? In other words, to promote 13 the view that -- that they were promoting in favour of 14 this ex-parte injunction? 15 A: No, I felt obliged to make sure that 16 he understood the context as I -- as I knew it. 17 Q: But what if -- what if telling Tim 18 McCabe that would have caused Tim McCabe to say, well, 19 you know, on that basis, I don't think we can justify an 20 ex-parte injunction. 21 A: Well, that's -- that's -- I had to 22 live with that, and that's the facts of the matter, and 23 I'm prepared to deal with whatever I had to as a result 24 of it. 25 Q: Okay. Now, I'm going to turn to --
2841 to the decision to actually go down the road on the 2 afternoon of September the 6th, and one of the points 3 that you were cross-examined on by -- by three (3) 4 counsel was the fact that the decision made was not 5 recorded, per se, in the scribe notes. 6 Can you remember that -- 7 A: Oh, yes. 8 Q: -- those questions? 9 A: Yes. 10 Q: And -- and you acknowledged, it's a 11 fair comment, that the decision -- 12 COMMISSIONER SIDNEY LINDEN: Oh, yes, Mr. 13 Klippenstein...? 14 MR. MURRAY KLIPPENSTEIN Thank you. I -- 15 I find myself in an odd position because My Friend, Mr. 16 Sandler, is essentially engaging in cross-examination -- 17 COMMISSIONER SIDNEY LINDEN: Yes. 18 MR. MURRAY KLIPPENSTEIN -- which we've 19 accepted. 20 COMMISSIONER SIDNEY LINDEN: We have. 21 MR. MURRAY KLIPPENSTEIN But it's 22 certainly is not the case that he's cross-examining a 23 witness -- 24 COMMISSIONER SIDNEY LINDEN: His own 25 witness.
2851 MR. MURRAY KLIPPENSTEIN -- he's an 2 adverse interest. 3 COMMISSIONER SIDNEY LINDEN: Which is 4 exactly what everybody else did. 5 MR. MURRAY KLIPPENSTEIN Which I'm not 6 objecting to. My point is that that is a little unusual 7 and -- 8 COMMISSIONER SIDNEY LINDEN: It is. 9 MR. MURRAY KLIPPENSTEIN -- I have been 10 watching the questioning related to the ex-parte or 11 emergency injunction, which has, from time to time, been 12 ascribed to me as my theory and -- 13 MR. MARK SANDLER: I'll take it away from 14 you. 15 MR. MURRAY KLIPPENSTEIN But my concern 16 is that I suppose My Friend, Mr. Sandler, is putting the 17 questions to the witness in a certain way, but I may be - 18 - I may be required, duty bound to, in argument, put 19 certain things -- 20 COMMISSIONER SIDNEY LINDEN: I expect 21 that you would. 22 MR. MURRAY KLIPPENSTEIN -- and the 23 evidence clearly was that although an injunction was a 24 centrepiece of the OPP strategy, the -- the support of 25 that government injunction by testifying in Court was
2861 never a part of the plan; it only happened after these 2 phone calls. 3 So out of fairness, I guess, to the 4 witness, I have to, in this unusual situation -- 5 COMMISSIONER SIDNEY LINDEN: You will 6 make your argument and say that, I'm sure you will. But 7 you recall when others were examining, they suggested 8 that when Mr. Sandler's turn came, that he would have his 9 opportunity to ask these questions, and that's exactly 10 what he's doing. 11 MR. MURRAY KLIPPENSTEIN: I have no 12 objection to that, I just -- 13 COMMISSIONER SIDNEY LINDEN: We created 14 this procedure, which is a bit odd, and I hope you don't 15 take advantage of it, and I don't think you have so far 16 to ask questions that are really in the nature of an 17 examination in-chief, but from time to time you have led 18 the Witness to speed it along. 19 MR. MURRAY KLIPPENSTEIN: I -- I have no 20 objection to the questions, Commissioner, to be clear -- 21 COMMISSIONER SIDNEY LINDEN: Yes, that's 22 fine. 23 MR. MURRAY KLIPPENSTEIN: I'm just saying 24 out of fairness -- 25 COMMISSIONER SIDNEY LINDEN: Yes,
2871 exactly. 2 MR. MURRAY KLIPPENSTEIN: -- frankly, to 3 the Witness I have to -- 4 COMMISSIONER SIDNEY LINDEN: You will be 5 making an argument. 6 MR. MURRAY KLIPPENSTEIN: I -- I've been 7 sitting there not wanting to get up, but I have to point 8 out that -- 9 COMMISSIONER SIDNEY LINDEN: You don't 10 have to point that out, we understand that. 11 MR. MURRAY KLIPPENSTEIN: Okay. 12 COMMISSIONER SIDNEY LINDEN: When 13 argument comes, you'll have your freedom to say what you 14 need to say. Yes Mr. -- 15 MR. MARK SANDLER: I must say -- I must 16 say part of the process is that after eighteen (18) days 17 part of the exercise is probably that I'm moving too 18 quickly and -- 19 COMMISSIONER SIDNEY LINDEN: Well, you 20 are moving quickly, and I appreciate that you're doing 21 that, and you may be sometimes moving a bit too quickly. 22 MR. MARK SANDLER: Yes. 23 COMMISSIONER SIDNEY LINDEN: It looks 24 like Mr. Rosenthal has an objection now, and I hope that 25 it's --
2881 MR. MARK SANDLER: I -- I just want to -- 2 before Mr. Rosenthal speaks, I -- I just want to remind 3 the Commission that early on I was of the view that -- 4 that friendly cross-examination with the use of leading 5 questions ought not to be permitted, but -- 6 COMMISSIONER SIDNEY LINDEN: We kind of 7 slid into this. I remember it was with aboriginal 8 witnesses and Mr. Roland's suggestion. I'm not sure, it 9 may have been with your Client at the beginning, Mr. 10 Rosenthal; is that what you're going to speak to? 11 MR. PETER ROSENTHAL: With respect, I 12 don't think it was with my Client, but -- and I -- I do 13 understand that we have slid into it to some extent, sir, 14 but with great respect, I would respectfully request that 15 you look over the transcript of Mr. Sandler's questions 16 so far and see whether, indeed, they were examination in- 17 chief questions, essentially. 18 To my understanding, I was sitting there 19 for a long period of time having Mr. Sandler read very 20 long paragraphs, and make very long suggests and Mr. 21 Carson just answering, yes. 22 COMMISSIONER SIDNEY LINDEN: That's fine. 23 MR. PETER ROSENTHAL: And I believe the 24 record will show that this has been the most extensively 25 leading examination of anyone on very important issues.
2891 COMMISSIONER SIDNEY LINDEN: I don't -- 2 MR. PETER ROSENTHAL: And -- and at least 3 that should go to the weight of the evidence. 4 COMMISSIONER SIDNEY LINDEN: That's fine. 5 That's fine, Mr. Rosenthal. Carry on. The only way you 6 can put the question is to read what you want him to -- 7 unless if you had him read it, but you reading it, I 8 don't see that as being a leading question. In any 9 event, carry on. 10 MR. MARK SANDLER: I'm happy to have him 11 read them, but I thought -- 12 COMMISSIONER SIDNEY LINDEN: And that 13 would just have us sit here for a lot longer, and I don't 14 think it would move us forward. 15 MR. MARK SANDLER: Exactly. 16 COMMISSIONER SIDNEY LINDEN: So, if 17 you're doing something improper, somebody will object. 18 I haven't seen it so far. 19 20 CONTINUED BY MR. MARK SANDLER: 21 Q: Thank you. Now, it was -- it was put 22 to you by various Counsel that the decision made wasn't 23 recorded in the scribe notes, and -- and you said it was 24 a fair comment that a decision should be well preserved 25 in the scribe notes, but I do want to point up what I
2901 suggest is the thrust, I mean it -- it's not perfect, but 2 is the thrust of the decision that is contained in the 3 notes. 4 And if I can take you to the scribe notes, 5 Exhibit 426, for September the 6th at 20:37, and I'm 6 going to go through four (4) entries. 7 COMMISSIONER SIDNEY LINDEN: I'm sorry, I 8 missed your reference. Where will we find this? 9 MR. MARK SANDLER: This is Exhibit 426, 10 the typewritten scribe notes -- 11 COMMISSIONER SIDNEY LINDEN: Yes? 12 MR. MARK SANDLER: -- at page 75. 13 COMMISSIONER SIDNEY LINDEN: 75. 14 15 CONTINUED BY MR. MARK SANDLER: 16 Q: And the time is 20:37. 17 And to just give you a chronological 18 context for this, Deputy Commissioner Carson, we've heard 19 earlier on that you had the conversation with -- with 20 Inspector Linton, Don't use TRU, send all sixty (60) down 21 if you have to, and you've now arrived back at the 22 Command Centre, right? 23 A: Correct. 24 Q: And we're just looking at -- and if 25 you look at the top of the page, page 75:
2911 "John Carson: We should have TRU 2 dropped off at the neighbouring area 3 make their way up. Dale Linton updates 4 John Carson as to Mark Wright report of 5 mischief to private property. 6 John Carson: What if we back up and 7 evacuate some neighbouring cottages? 8 We want to answer, none of the guys are 9 injured if they're setting us up." 10 Now, I'm not going to ask you about that 11 now, we're going to come back to that a little bit later, 12 but -- but this appears to be the dialogue that you 13 described earlier, or pieces of it -- difficult reading - 14 - but pieces of the dialogue that you described earlier 15 to Commissioner Linden in which we hear as kind of 16 background in one (1) of the taped conversations about 17 what the options are about -- about what to do, right? 18 A: Correct. 19 Q: And -- and then you skip down to 20 20:37 after the discussion about -- about these options 21 and you see: 22 "Potential of sniper in kiosk. 23 Evacuate cottages in area and get an S 24 team. Drop team off in trailer park, 25 work their way in and use night vision
2921 glasses and observe." 2 And so stopping there for a moment. Which 3 part of the decision that you made is reflected in that 4 scribe note? 5 A: Well this is deploying the tactical 6 officers in an observation mode. So there -- can go in 7 and have a look and see if there's any risk in regards to 8 the site lines and the kiosk to the sandy parking lot. 9 Q: Okay. And then we look at 20:46. 10 And this hasn't been pointed up to you in this context at 11 all. If you look at the third entry in 20:46: 12 "John Carson: Are you certain if 13 someone's in the kiosk, is there any 14 danger at the corner. 15 Mark Wright: I bet my life it's okay 16 there." 17 And then these words follow: 18 "John Carson: Okay. If that's the 19 case, let's use blue shirts at the 20 points and approach the corner with the 21 four (4) teams from both days." 22 So what is it that you're communicating in 23 that passage? 24 A: What I was saying there is we'll use 25 the regular uniform officers on the checkpoint and use
2931 the ERT officers to approach the corner. 2 Q: I mean not to put too much of a fine 3 point on it, but approaching the corner with the four (4) 4 teams from both days, I mean that's the CMU. I mean it 5 doesn't use the word CMU but that's what it is, is it 6 not? 7 A: Correct. 8 Q: And then we see at 20:49, the second 9 entry. 10 "John Carson: All we're doing is 11 observation. We're not going tactical. 12 Let's get that straight." 13 Now stopping there for a moment. What 14 part of the decision that purportedly isn't anywhere in 15 the scribe notes is -- is being reflected there, if any? 16 A: That's -- that's the direction to the 17 tactical leader of the TRU team, Staff Sergeant Skinner 18 for the deployment of his personnel, what their task is. 19 Q: And the task is observation, not 20 tactical? 21 A: Right. 22 Q: Reflected in the scribe note? 23 A: Yes. 24 Q: And then you see three (3) entries 25 down.
2941 "John Carson: We're using TRU to go 2 in and get an eye. If they're just 3 having a campfire, let's leave them. 4 Why go in the dark?" 5 Now, which part of the decision that you 6 made is being reflected in that scribe note entry? 7 A: Again it's further observation and 8 depending on the activity. 9 Q: All right. And it includes that 10 passage: "If they're just having a 11 campfire, let's leave them." 12 Right? 13 A: Correct. 14 Q: And we'll come back to that. 15 So recognizing, as you did, that -- that 16 it's preferable that -- that the decision be clearly 17 articulated in the scribe notes that's being made, there 18 are features of the decision that you did make in 19 relation to both the CMU and TRU that are indeed captured 20 in those scribe note entries? 21 A: Correct. 22 Q: And then you look at 21:22 and we see 23 at the bottom of the page: 24 "John Carson: If they go back into 25 the Park, let them go."
2951 Right? 2 A: Correct. 3 Q: So that's a direction to Wade Lacroix 4 who's heading up the CMU? 5 A: Correct. 6 Q: And so his direction, as we put 7 together the two (2) items, is that he's approaching the 8 corner with the four (4) teams. If they're just having a 9 campfire, leave them. And if they simply go into the 10 Park, let them go. 11 A: Correct. 12 Q: Right? 13 A: Correct. 14 Q: And how does that compare to the 15 essence of the direction that you did give to Wade 16 Lacroix? 17 A: It's exactly the direction I gave 18 him. 19 Q: Now I'm going to turn to the reasons 20 for going down the road which you've been asked about so 21 many times that I'm going to try to deal with matters 22 that are fresh, if I might put it that way. 23 And in order to that, as -- as a prequel 24 to doing that, I'd like you to listen to several radio 25 transmissions and what I'm going to ask you to do is
2961 comment as a police officer as to what information, if 2 any, is being communicated in the -- in the radio 3 transmission and then when we deal with the incident 4 itself, hopefully it'll give some context to some of the 5 questions that I'm asking you. 6 COMMISSIONER SIDNEY LINDEN: Is there a 7 speaker on the Deputy's desk now? There wasn't before, I 8 thought we were trying to get one. Did we not succeed? 9 THE WITNESS: Not yet. 10 11 CONTINUED BY MR. MARK SANDLER: 12 Q: All right. The first entry that I'm 13 going to be ask to be played is -- and these are all 14 September the 6th of 1995. This is track 21:25. The 15 tracks also represent the time, Mr. Commissioner, so this 16 is 21:25 p.m.. 17 And we have here the transcripts that we 18 prepared, which we can distribute now, if it would be of 19 assistance to other Counsel. 20 COMMISSIONER SIDNEY LINDEN: Thank you. 21 22 (BRIEF PAUSE) 23 24 CONTINUED BY MR. MARK SANDLER: 25 Q: And what I'm going to do, Deputy
2971 Commissioner, is I'm going to tie some of these entries, 2 these radio transmissions to the scribe notes as well, so 3 that Commissioner Linden can -- can see some of the 4 events that are occurring and how they're reflected in 5 the scribe notes as well as in the radio transmissions. 6 So -- so these are radio transmissions 7 that are all going to be played from P-428, which was 8 previously marked as an exhibit. 9 COMMISSIONER SIDNEY LINDEN: Will you 10 refer me to the -- 11 MR. MARK SANDLER: The scribe note -- 12 COMMISSIONER SIDNEY LINDEN: -- tab in 13 the binder that you've given me. 14 MR. MARK SANDLER: Yes. The -- 15 COMMISSIONER SIDNEY LINDEN: Thank you. 16 MR. MARK SANDLER: The scribe note entry 17 will be at page 78 at 21:28. 18 19 COMMISSIONER SIDNEY LINDEN: Yes. 20 MR. MARK SANDLER: And that's at page 78 21 of Exhibit 426. 22 COMMISSIONER SIDNEY LINDEN: Yes. I've 23 got that. 24 THE WITNESS: Could I get a copy of the 25 transcript?
2981 MR. MARK SANDLER: You've got the 2 transcript -- 3 COMMISSIONER SIDNEY LINDEN: It's in the 4 binder. 5 MR. MARK SANDLER: -- at Tab 21 of the -- 6 THE WITNESS: Oh. 7 MR. MARK SANDLER: -- new materials that 8 I've provided to you. 9 THE WITNESS: I'm sorry. 10 COMMISSIONER SIDNEY LINDEN: At Tab 21 of 11 the materials you've provided to us? 12 MR. MARK SANDLER: Yes, please. 13 COMMISSIONER SIDNEY LINDEN: So that's 14 track 21:25? 15 MR. MARK SANDLER: Yes. 16 COMMISSIONER SIDNEY LINDEN: Thank you. 17 18 (BRIEF PAUSE) 19 20 CONTINUED BY MR. MARK SANDLER: 21 Q: Now in fairness, Deputy Commissioner 22 Carson, when you were asked about other radio 23 transmissions by Mr. Millar, you made it quite clear that 24 while these radio transmissions would be making their way 25 into the truck which you were attending, you wouldn't
2991 necessarily -- once you arrived within the truck, you 2 wouldn't necessarily be hearing all of them; right? 3 A: Correct. 4 Q: And on some of them may even pre-date 5 -- that I'll be playing, some of them maybe even pre-date 6 when you attended the truck but. 7 A: Yes. Some of them may have occurred 8 while I was en route or I -- 9 Q: Right. 10 A: -- I may have picked them up from my 11 car. 12 Q: So I'm not going to attempt to elicit 13 from you whether you heard each one of these radio 14 transmissions, but instead, what is being communicated 15 and how, if at all, they relate to the scribe note, okay? 16 A: Okay. 17 18 (BRIEF PAUSE) 19 20 MR. JULIAN FALCONER: Mr. Commissioner, I 21 do appreciate Mr. Sandler's desire to keep moving it 22 along, so I don't interrupt lightly. 23 It's that, with great respect, it -- it 24 shouldn't lie to, for example, your Counsel on re-exam to 25 try to figure out which tapes or which conversations
3001 Deputy Carson actually did hear. 2 I think it's part of the foundation for 3 getting commentary on the transmissions you should hear 4 as to whether -- 5 COMMISSIONER SIDNEY LINDEN: I assume 6 we'll do that. I assume he'll do that, I think he's 7 going to do that. 8 MR. JULIAN FALCONER: Oh, then I 9 misunderstood him and I apologize. 10 COMMISSIONER SIDNEY LINDEN: Yes, I hope 11 he does that, Mr. Falconer, let's see. 12 MR. MARK SANDLER: I just didn't want to 13 mislead anyone by suggesting that every one of these will 14 necessarily -- 15 COMMISSIONER SIDNEY LINDEN: Yes. 16 MR. MARK SANDLER: -- enable the Deputy 17 Commissioner to say, I heard it, that's all. 18 So, we're ready for track 21:25? 19 20 (BRIEF PAUSE) 21 22 COMMISSIONER SIDNEY LINDEN: The 23 technology can't fail us now. 24 MS. SUSAN VELLA: It sure can. 25
3011 (BRIEF PAUSE) 2 3 MR. MARK SANDLER: In a criminal trial 4 this is where I move for dismissal. 5 6 (BRIEF PAUSE) 7 8 COMMISSIONER SIDNEY LINDEN: In a 9 criminal trial you have to stand in line. 10 11 (BRIEF PAUSE) 12 13 COMMISSIONER SIDNEY LINDEN: Blame Mr. 14 Millar, I always say. 15 16 (BRIEF PAUSE) 17 18 MR. MARK SANDLER: I happen to know that 19 Ms. Vella's equally proficient on the computer. 20 MS. SUSAN VELLA: Thank you. 21 MR. MARK SANDLER: So it's obviously a 22 shortcoming not of your Counsel. 23 24 (BRIEF PAUSE) 25
3021 COMMISSIONER SIDNEY LINDEN: Just give it 2 a couple more minutes. If we can't sort it out we'll 3 have to move to something else or take a short break. 4 5 (BRIEF PAUSE) 6 7 MS. SUSAN VELLA: Just give me a second. 8 9 (BRIEF PAUSE) 10 11 MS. SUSAN VELLA: I apologize, but it 12 appears that there's a technical problem, perhaps we 13 could have a brief recess -- 14 COMMISSIONER SIDNEY LINDEN: Let's take a 15 brief break. 16 MS. SUSAN VELLA: -- while we solve that 17 problem. 18 COMMISSIONER SIDNEY LINDEN: We'll take a 19 brief break and see what we can do. 20 THE REGISTRAR: This Inquiry will recess. 21 22 --- Upon recessing at 3:55 p.m. 23 --- Upon resuming at 4:02 p.m. 24 25 THE REGISTRAR: This Inquiry is now
3031 resumed, please be seated. 2 COMMISSIONER SIDNEY LINDEN: Got the 3 equipment working? 4 MS. SUSAN VELLA: Well, we have solved 5 the problem only to have another problem. It appears 6 that -- is the power back on? All right. The power's 7 now back on. Thank you. 8 COMMISSIONER SIDNEY LINDEN: Okay. Okay. 9 Back to this track where we left -- 10 MR. MARK SANDLER: I knew some of my 11 fellow Counsel didn't want me to continue, but I think 12 that was extreme -- 13 COMMISSIONER SIDNEY LINDEN: Somebody -- 14 MR. MARK SANDLER: -- cutting off the 15 power. 16 COMMISSIONER SIDNEY LINDEN: Somebody 17 pulled the plug. 18 MR. MARK SANDLER: Exactly. Yes, Tab 19 21, please. 20 21 (AUDIOTAPE PLAYED TRANSCRIPT BELOW) 22 23 Lima Two, Oscar One. 24 25 Go ahead Oscar One.
3041 (Unclear) vehicle activity behind us coming in from back 2 of the park. 3 4 (Unclear) the last part you're blasting me out. 5 6 (Unclear) Got about 12 around the fire. (unclear) traffic 7 behind them (unclear) along and down towards the beach. 8 9 MR. MARK SANDLER: All right and -- 10 COMMISSIONER SIDNEY LINDEN: You're going 11 to explain what that is. 12 MR. MARK SANDLER: Pardon me? 13 COMMISSIONER SIDNEY LINDEN: You're going 14 to explain what that is? 15 MR. MARK SANDLER: Yes. 16 17 CONTINUED BY MR. MARK SANDLER: 18 Q: With the benefit of -- first of all, 19 do you know whether you heard this particular 20 transmission back in September 6th? 21 A: I don't recall that. 22 Q: All right. What is happening here, 23 using kind of the police lingo that's being articulated? 24 A: Oh the -- there's an observer officer 25 who is transmitting back to the supervisor at the TOC
3051 site at the MNR parking lot. And he's giving him a -- a 2 status update of what he's observing. 3 Q: All right. And we'll talk about the 4 content of it for -- in a moment. I want to play three 5 (3) of these first and then we'll talk about the content 6 together. So if we could turn to Tab 22 which is track 7 21:26 which would mean 21:26 hours on the evening of 8 September the 6th. 9 10 (AUDIO TAPE PLAYED TRANSCRIPT BELOW) 11 12 Lima One to Oscar position. Lima. 13 14 Go ahead Lima 1 15 16 Oscar One - can you confirm the location of the fire? Is 17 it within the provincial park or outside? 18 19 ...The fire is outside the park (unclear) the road. A 20 lot of traffic on the road and there's a lot of people 21 down there. There's at least probably about 15 now, 22 there seems to be more coming in. 23 24 CONTINUED BY MR. MARK SANDLER. 25 Q: And again, in general terms, what is
3061 transpiring here, Deputy? 2 A: There's a question being put to the 3 observer team from Lima 1, who's a sergeant at the 4 command post in Forest, as to what's the status of the -- 5 or what's the location of the fire. 6 Q: All right. And again, we'll come 7 back to the content a little bit later. And if we can 8 then go to the next track, 21:28. Again September the 9 6th. 10 11 ( TAPE PLAYED TRANSCRIPT BELOW) 12 13 Lima Two This is Alpha. 14 15 Go ahead Alpha. 16 17 We just stopped a pick-up from entering. Three males 18 from Stoney, baseball bats and clubs, golf clubs. Just 19 for your information we have all their names and info. 20 They were turned back but they wanted to get through. 21 22 Ten four. You didn't relieve them of their hardware? 23 24 Oh, yes, that's a ten four and they definitely donated it 25 to the cause.
3071 Lima One. What checkpoint was that again? 2 3 Lima One, this is Alpha Checkpoint, Alpha Checkpoint. 4 5 Ten four. Thank you. 6 7 CONTINUED BY MR. MARK SANDLER: 8 Q: All right. And what is transpiring 9 there, Deputy Commissioner? 10 A: The checkpoint Alpha is reporting to 11 the supervisor at the MNR site about a pickup truck that 12 was stopped and some material removed from it and turned 13 the individuals back. 14 And subsequent to that, the supervisor at 15 the Forest command post asked for confirmation of which 16 checkpoint that occurred at. 17 Q: All right. Now first of all before I 18 go further, perhaps each of those tracks -- transcripts 19 should be marked as exhibits. If track 21:00 could be 20 marked as the next exhibit please. 21 THE REGISTRAR: P-485, Your Honour. 22 23 --- EXHIBIT NO. P-485: Transcript of Track 21 Number 24 21:25 Sept.06/95. 25
3081 MR. MARK SANDLER: And if track 22:00 2 could be the next exhibit please. 3 COMMISSIONER SIDNEY LINDEN: P-486. 4 THE REGISTRAR: P-486. 5 6 --- EXHIBIT NO. P-486: Transcript of Track 22 Number 7 21:26 Sept. 06/95. 8 9 MR. MARK SANDLER: And track 23:00. 10 THE REGISTRAR: P-487. 11 12 --- EXHIBIT NO. P-487: Transcript of Track 23 Number 13 21:28 Sept.06/95. 14 15 MR. MARK SANDLER: Thank you very much. 16 17 CONTINUED BY MR. MARK SANDLER: 18 Q: Now, if I can take you to the scribe 19 note for 21:28 hours. And we've heard that there's -- 20 that there's no perfect correlation between some of the 21 times that we've seen on telephone calls and -- and 22 scribe notes, but here we have three (3) transmissions by 23 radio that take place, 21:25, 21:26 and 21:28. 24 And I'm actually referring you to the 25 scribe note for 21:28 at page 78 of Exhibit 426, and it
3091 says: 2 "Reports on radio to Dale Linton. A 3 fire outside park at the bottom of the 4 hill. Approximately twelve (12) 5 natives and more coming down. Lots of 6 vehicle moving. Two (2) ambulances to 7 TOC." 8 And then skipping down: 9 "At checkpoint, checked a vehicle with 10 golf clubs, seized same." 11 Now, what can you say as to the 12 relationship, if any, between the radio transmissions and 13 what we see on the scribe notes? 14 A: Well the scribe notes are an 15 encapsulation of what was transmitted by the officers at 16 scene. 17 Q: All right. And what can you say as 18 to whether you had awareness in a general sense of this 19 kind of information coming in? 20 A: Well it was just confirmation of -- 21 of what activity was taking place. Or you mean of what I 22 -- I had personally? 23 Q: I'll ask you two (2) questions. The 24 first is, to what extent were you aware, generally, of 25 this kind of information as it was coming in?
3101 A: Oh, I knew that this kind of traffic 2 was taking place and I certainly was aware, at one (1) 3 point, or at some point I become aware, I'm not sure if 4 it was -- how it was relayed to me or if I heard it 5 personally, but I certainly was aware of the -- the 6 context of this information. 7 Q: All right. So -- so again, and what 8 I'm trying to do before I ask you about the decision to 9 go down the road is -- is to give the Commissioner as -- 10 as many facts in addition to the ones he already has, 11 about -- about activity. 12 And -- and so what we see here on radio 13 transmissions is that observers are reporting from the 14 scene various things, and that is vehicle activity; am I 15 right? 16 A: Correct. 17 Q: And a number of individuals along and 18 down towards the beach and around the fire? 19 A: Yes. 20 Q: And a fire and again, whether rightly 21 or wrongly, the observer says that the fire is outside 22 the Park -- 23 A: Yes. 24 Q: Right? 25 A: Correct.
3111 Q: And that there's a lot of traffic on 2 the road and a lot of people at least probably about 3 fifteen (15) and seemed to be more coming in; right? 4 A: Correct. 5 Q: And not only that activity with 6 vehicles and the fire and movement on the beach, but also 7 a pick up truck stopped from entering the location with 8 baseball bats, clubs and golf clubs; right? 9 A: Correct. 10 Q: Would that have been of concern to 11 you? 12 A: Yes. 13 Q: All right. Now, let's go if we can 14 to -- to the next tab, and this is Tab 24, which is track 15 21:32 and I'm also going to show you the scribe note at 16 page 78, at 21:33. 17 18 (BRIEF PAUSE) 19 20 (AUDIO TAPE PLAYED TRANSCRIPT BELOW) 21 22 Lima 2, Oscar 1 23 24 Go ahead Oscar 1 25
3121 Yeah, these vehicles, looks like they pulled the fence 2 down. Cause it looks like vehicles have driven right 3 through from the park. Their numbers have grown 4 considerably. They're backing up vehicles - looks like 5 they're removing objects from the truck. Can't see what 6 it was, it's either a club or something along that line. 7 8 10-4, Oscar One are you ten four on that Lima One? 9 10 Ten four Lima Two, he just walked out but I'll advise him. 11 12 CONTINUED BY MR. MARK SANDLER: 13 Q: All right, Deputy Commissioner, what 14 is transpiring there? 15 A: There's an update by the observer to 16 the supervisor at the TOC site in regards to the vehicles 17 moving between the Park and the parking lot, and the 18 numbers, and some of that activity. 19 And then the supervisor from the TOC site 20 is asking the supervisor at the Forest Command Post if he 21 heard that, and he responds -- he acknowledges the 22 transmission. Actually, the sergeant has just stepped 23 out, but the radio operator indicates they will be 24 advising him. 25 Q: All right. And -- and the observer
3131 is reflecting and -- and this is one (1) of the Oscar 2 teams, is that right? 3 A: This -- this -- at this point this 4 would be an ERT observer team, it's not a -- not a true 5 observer team. 6 Q: Right. So, Oscar is ERT? 7 A: Correct. 8 Q: And it also reflects that not only 9 are their numbers growing considerably, they're backing 10 up vehicles, they're removing objects from the trunk. 11 You can't see what it was, either a club or something 12 along those lines, right? 13 A: Correct. 14 Q: And would that cause you concern? 15 A: Yes. 16 Q: And if you'd look at 21:33, I'm going 17 to suggest that part of the content of that radio 18 transmission is contained in that scribe note. Perhaps 19 I'll read it out: 20 "Reports on radio that it appears fence 21 has been taken down, and vehicles 22 travelling freely between the Park and 23 the parking lot, right? 24 A: Correct. 25 Q: So you recall there were some
3141 questions earlier on the piece about the source of some 2 of this kind of information. I mean, here we appear to 3 be getting it directly from the observer on the scene, am 4 I right? 5 A: Yes. 6 Q: Okay. If Tab 24 could be marked as 7 the next exhibit, please? 8 THE REGISTRAR: P-488. 9 10 --- EXHIBIT NO. P-488: Transcript of Track 24 Number 11 21:32 Sept 06/95 12 13 MR. MARK SANDLER: Thank you. 14 MR. MURRAY KLIPPENSTEIN: Commissioner, I 15 have a concern that arises from the very unclear status 16 of the tapes. I and my Co-Counsel have devoted a 17 tremendous amount of time to attempting to understand 18 those tapes. I've listened to them many times, and it is 19 not easy. 20 My concern is that if My Friend, Mr. 21 Sandler, and the Witness wish to put forward a transcript 22 as representing what those tapes say, I suppose they're 23 entitled to do that in some way, but I'm concerned that 24 that then becomes the -- perceived to be the official 25 transcript because I didn't hear some of that on that
3151 tape. 2 I don't know, perhaps the tape should at 3 least be played one (1) more time because it is a great 4 unclarity, and certainly for argument, the transcribed 5 notes of the Command Post which talk about vehicles 6 moving freely between the Park and the parking lot, I did 7 not hear on that tape, and will be -- it's a matter for 8 argument, but I'm just concerned that the evidence be 9 properly delineated from argument. 10 COMMISSIONER SIDNEY LINDEN: Thank you, 11 Mr. Klippenstein. Do you want to say what's on your 12 mind, Mr. Falconer? Just before you respond, let's hear 13 what Mr. Falconer -- unless he's echoing the same 14 thought. 15 MR. JULIAN FALCONER: It's -- I -- I 16 adopt and agree with what Mr. Klippenstein said, but I 17 have something to add. 18 My -- my difficulty is that having 19 received this today, I can't even take the -- I'm -- 20 we're trying to find the transcript, but I can't even 21 take the transcript and confirm for myself what changes 22 have or have not been made, and it just seems to me -- it 23 just seems to me that -- 24 COMMISSIONER SIDNEY LINDEN: I'm sorry, 25 I'll wait until you finish.
3161 MR. JULIAN FALCONER: Thank you. It just 2 seems to me, with respect, in terms of future witnesses 3 for the OPP, that the creation of transcripts the day of, 4 which is what this amounts to, isn't a -- a productive 5 use of time. 6 If -- if these existed before today, which 7 is highly possible, then with respect, it would make more 8 sense in the future that we got them at least a day 9 before, because this is really -- we're all flying by the 10 seat of our pants now trying to keep up with Mr. Sandler. 11 COMMISSIONER SIDNEY LINDEN: What -- 12 would you explain to them what the situation is? 13 MS. SUSAN VELLA: I just want to make a 14 few comments. 15 The first is, is that the Commission did 16 put in a set of transcripts to the best of its ability to 17 prepare those. 18 Second, the evidence is, in fact, the 19 recordings themselves, and those have been made evidence, 20 and Our Friends can -- at argument convince you as to 21 what they say. 22 Third, these particular transcripts have 23 been made as an aid to the Commission, they're not the 24 evidence per se. 25 COMMISSIONER SIDNEY LINDEN: That makes
3171 it clear. 2 MS. SUSAN VELLA: And I do note that the 3 -- where there are any changes from the transcripts which 4 we produced, they have been highlighted and therefore the 5 changes are easily traced by counsel today. 6 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 7 Sandler? 8 MR. MARK SANDLER: I was just going to 9 say that we provided a timely notice that I would be 10 referring to these radio transmissions. The transcripts 11 were already available to all counsel and it was late 12 last night and I mean late last night that these 13 transcripts were completed. 14 Because we were hearing what we alleged 15 were errors in -- in the transcript. And that's why we 16 carefully highlighted differences between what had 17 already been provided to counsel and what we hear on the 18 tape. 19 Ultimately the radio transmissions are the 20 evidence together with what the witnesses have to say 21 about it. 22 COMMISSIONER SIDNEY LINDEN: But if I 23 look at one of these tapes and I see a part that's 24 highlighted, what part was part of the transcript that 25 counsel had before. The part that is highlighted or the
3181 part that isn't? 2 MR. MARK SANDLER: No, if it's highlighted 3 it means that that -- 4 COMMISSIONER SIDNEY LINDEN: It's been 5 added? 6 MR. MARK SANDLER: -- is an addition that 7 we've made. 8 COMMISSIONER SIDNEY LINDEN: Okay. 9 MR. MARK SANDLER: If it's crossed out, 10 it means that it was originally in the Commission version 11 and we don't hear it. 12 COMMISSIONER SIDNEY LINDEN: All right. 13 MR. MARK SANDLER: I say 'we' in the 14 collective. 15 COMMISSIONER SIDNEY LINDEN: But in any 16 event, you're not -- you're not introducing or you're not 17 suggesting that these transcripts are exhibits, it's the 18 tapes. 19 MR. MARK SANDLER: The transcripts for 20 convenience as has happened in the past, are being made 21 exhibits but ultimately the -- 22 COMMISSIONER SIDNEY LINDEN: They're 23 support. 24 MR. MARK SANDLER: -- the radio 25 transmissions are the -- are the evidence. Ultimately
3191 I'll submit that, I mean, Deputy Commissioner Carson, 2 I've been asking on each one what -- what is transpiring 3 here. So perhaps I should be asking a little bit more 4 explicitly whether he's hearing the contents. 5 COMMISSIONER SIDNEY LINDEN: I think so. 6 That would be helpful so we know exactly what he's 7 referring to. 8 9 CONTINUED BY MR. MARK SANDLER: 10 Q: Just going back to the tapes we've 11 heard so far and -- and you've got a better ear than some 12 of us due to your background perhaps, but without getting 13 into every single word, are -- are you hearing the 14 essence of -- of the content that -- that you've 15 described there? 16 A: Yes, I am. 17 Q: All right. So we're up to Tab 25 -- 18 MR. MURRAY KLIPPENSTEIN: Commissioner, 19 I'm sorry. I just didn't find that last exchange helpful 20 because the -- the scribe notes say that vehicles 21 travelling freely between Park and parking lot. 22 I don't even see that in the transcript 23 that My Friend has provided of their version of it and I 24 didn't hear it in the tape. So I don't know what -- what 25 the evidence is and the last question was something about
3201 the essence of this. 2 So I don't know where the record has -- 3 has now been left. For example, with respect to the 4 reference to the vehicles travelling freely between the 5 Park and the parking lot. I just don't know. 6 MR. MARK SANDLER: Well, my submission is 7 that at the end of the piece when you've heard all of the 8 evidence and not simply from Deputy Commissioner Carson, 9 this evidence together with what's on a scribe note, 10 together with what can be heard on the radio 11 transmission -- 12 COMMISSIONER SIDNEY LINDEN: Together 13 with the testimony. 14 MR. MARK SANDLER: -- and other 15 witnesses, will enable you to make determinations -- 16 COMMISSIONER SIDNEY LINDEN: Evaluate it. 17 MR. MARK SANDLER: We can't do any better 18 than this right now. 19 COMMISSIONER SIDNEY LINDEN: That's 20 right. I understand that. But I'll have the benefit of 21 counsel's arguments and explanations and interpretations. 22 MR. MARK SANDLER: I can't think of any 23 other way that I can do it frankly. 24 COMMISSIONER SIDNEY LINDEN: No, I can't 25 either at the moment.
3211 CONTINUED BY MR. MARK SANDLER: 2 Q: So we are up to Tab 25 and -- and I'm 3 going to ask that this be played and that you also look 4 in this regard to the scribe note at 21:43. This is 5 track 21:39. 6 COMMISSIONER SIDNEY LINDEN: Just before 7 you go into that. 8 The scribe note, Deputy, the scribe note 9 is made by the scribe on hearing this tape is that the 10 way it would work? 11 THE WITNESS: Probably what's happening 12 is the supervisor at the command post is hearing 13 information and advising the Incident Commander of what's 14 happening. And as a result of that conversation between 15 the -- 16 COMMISSIONER SIDNEY LINDEN: Scribe. 17 THE WITNESS: -- sergeant and the 18 Incident Commander which would be Dale Linton in the 19 trailer at that time the scribe would capture the essence 20 of that discussion. 21 COMMISSIONER SIDNEY LINDEN: Let's carry 22 on then. We understand the process. It's not a perfect 23 process. 24 MR. MARK SANDLER: That's a good 25 question. I wish I had thought of that.
3221 COMMISSIONER SIDNEY LINDEN: Yes. Okay. 2 3 CONTINUED BY MR. MARK SANDLER: 4 Q: So if we could play -- I'm going to 5 ask that 25, 26 and 27 be played and then I'll take the 6 witness and all three (3) examples to 21:43 of the scribe 7 note at page 78. 8 9 (AUDIO TAPE PLAYED TRANSCRIPT BELOW) 10 11 Lima Two from Checkpoint Delta 12 13 Checkpoint Delta, you calling TRU? 14 15 Lima Two from Checkpoint Delta 16 17 Lima Two - go ahead 18 19 We're in a lot of traffic down here, and a lot of 20 traffic, we're probably going to expecting some rocks 21 coming in any minute 22 23 Ten four Lima One, you read that? 24 25 Lima 1 to Delta
3231 Lima One from Lima Two 2 3 Go ahead Lima Two 4 5 Did you read Delta, advises lots happening there, 6 expecting rocks to fly momentarily? 7 8 Yeah, ten four. I'm trying to find out from Delta 9 whether it appears that the women and children have left 10 the camp or not. 11 12 Lima One, Delta - women and children have left earlier 13 on. They've gone through the checkpoint earlier. 14 15 Right, ten four Checkpoint Delta. How many vehicles has 16 he got down there? 17 18 Two. There's a big dump truck, there's the Bat-mobile. 19 They've just started a large bonfire. I told the people 20 here if we start getting fire bombed, we're out of here. 21 22 Yeah, ten four. They're inside the camp though? 23 24 Ten four. They're just inside on the road. 25
3241 CONTINUED BY MR. MARK SANDLER: 2 Q: Tab 26 which is track 21:41. 3 4 (AUDIO TAPE PLAYED TRANSCRIPT BELOW) 5 6 Lima 1 Oscar 1 7 8 Go ahead Oscar One 9 10 We've got a lot of traffic here, ATVs on the beach that 11 are coming up to our position. We've moved back a little 12 bit.(unclear) looking for traffic on the road and cars 13 stopped - I don't know, people all over the place here 14 we're going back a little bit (unclear) It's getting ( 15 heavy? Hinky?) 16 17 Ten four 18 19 Lima One to Delta. Lima One to Delta 20 21 Lima One, Delta - go ahead 22 23 Okay, Lima One from Delta - stand by one 24 25 CONTINUED BY MR. MARK SANDLER:
3251 Q: Okay, if I can just go back with you, 2 Deputy Commissioner, for a moment to Tab 25, what is 3 happening here? 4 A: What's happening is the supervisor at 5 the TOC site, the MNR site, is being called by the 6 Checkpoint Delta, Checkpoint D and they tell them that 7 there's a lot of traffic down here and we're probably 8 expecting some rocks coming in any minute, which is 9 acknowledged and that supervisor asks Lima 1, which is a 10 supervisor at the Forest command post, if they read that. 11 And then the supervisor from Forest calls 12 directly to the checkpoint and then gets no answer, then 13 calls from the command post to the TOC site and asks if 14 he read checkpoint Delta, advise that there's lots 15 happening, expecting rocks to fly momentarily. And he 16 said yes, 10-4. 17 And asked -- trying to find out from that 18 checkpoint whether it appears that the women and children 19 have left the camp yet or not. 20 Then Checkpoint Delta calls the command 21 post in Forest and says the women and children have left 22 earlier on. They'd gone through that checkpoint earlier 23 and that's acknowledged by the supervisor and asked how 24 many vehicles were down there and the checkpoint responds 25 that there's two (2), a big dump truck and a batmobile.
3261 And they just started a large bonfire and 2 he indicates that he told the officer there that if they 3 start getting firebombed, they're out of there. 4 And the supervisor acknowledges that 5 message and asks, They're inside the camp, though? And 6 the response is, Affirmative, they're just inside on the 7 road. 8 Q: Now, did you have any difficulty 9 comparing the transcript to what you heard on the tape 10 and this transmission? 11 A: No. 12 Q: All right. And -- and Checkpoint 13 Delta, do you recall which checkpoint that was? 14 A: I think that's the one right in front 15 of the army base. 16 Q: Okay. And if Tab 25, track 21:39 17 could be marked as the next exhibit, please? 18 THE REGISTRAR: P-489. 19 COMMISSIONER SIDNEY LINDEN: Thank you. 20 21 --- EXHIBIT NO. P-489: Transcript of Track 25, 22 number 21:39, Sept. 06/95. 23 24 CONTINUED BY MR. MARK SANDLER: 25 Q: And --
3271 COMMISSIONER SIDNEY LINDEN: I'm sorry, 2 Mr. Falconer is on his feet again. 3 MR. JULIAN FALCONER: Mr. Commissioner, I 4 just want to remind My Friend he was going to establish 5 some foundation evidence as to what the Deputy actually 6 heard these things that he's bringing out -- 7 COMMISSIONER SIDNEY LINDEN: Well, we'll 8 just carry on and we'll see how it all plays out. 9 MR. JULIAN FALCONER: Well but if he's 10 tendering it as an exhibit -- 11 COMMISSIONER SIDNEY LINDEN: I want to 12 continue with this, okay? I want to continue with this. 13 Just let him continue. 14 MR. JULIAN FALCONER: Fair enough. 15 COMMISSIONER SIDNEY LINDEN: You may 16 recall there was some applications in the fall to 17 introduce some tapes without any context at all. 18 MR. JULIAN FALCONER: It provoked a 19 large, long -- 20 COMMISSIONER SIDNEY LINDEN: Yes, it did 21 and -- 22 MR. JULIAN FALCONER: -- Motion -- 23 COMMISSIONER SIDNEY LINDEN: -- I don't 24 care to get into it here. 25 MR. JULIAN FALCONER: I would have
3281 thought that we were doing much better. 2 COMMISSIONER SIDNEY LINDEN: Yes, we are 3 doing much better. 4 MR. JULIAN FALCONER: Well, but Mr. 5 Commissioner -- 6 COMMISSIONER SIDNEY LINDEN: In any 7 event, I want to hear these -- 8 MR. JULIAN FALCONER: All kidding aside, 9 what I had raised before and I thought that My Friend 10 agreed with me -- 11 COMMISSIONER SIDNEY LINDEN: He will. I 12 understand he will. I'm giving him an opportunity to go 13 through it. 14 MR. JULIAN FALCONER: Oh, I see. Fair 15 enough. 16 COMMISSIONER SIDNEY LINDEN: If you would 17 stop objecting, maybe we'll get there. 18 Yes, Mr. Rosenthal...? 19 MR. PETER ROSENTHAL: With respect, Mr. 20 Commissioner, we have the tapes and we have the 21 Commission's transcripts. Now we're getting introduced 22 new transcripts based on a question such as, do you have 23 any problem with that transcript, asked of this -- 24 COMMISSIONER SIDNEY LINDEN: Do you have 25 any problem --
3291 MR. PETER ROSENTHAL: -- witness. 2 COMMISSIONER SIDNEY LINDEN: -- 3 interpreting it, that's what he asked him. 4 MR. PETER ROSENTHAL: And that is not 5 sufficient to introduce a whole transcript. You -- and 6 why -- why should Mr. Carson -- I'm hard of hearing, I 7 can't follow these things very well. 8 But these transcripts are just produced 9 now and put in, in a very cavalier way. Why do we need 10 these transcripts, Mr. Commissioner? What is the point 11 of them and what is the -- 12 COMMISSIONER SIDNEY LINDEN: They're 13 just -- 14 MR. PETER ROSENTHAL: -- foundation for 15 them when the witness says, I don't have any problem with 16 it, as the whole foundation for the transcript. 17 COMMISSIONER SIDNEY LINDEN: Well, okay, 18 perhaps you want to explain that. I don't think we need 19 the transcript, it's just to help us to hear the tapes. 20 The transcripts are sort of an aid, an 21 assist. 22 MR. PETER ROSENTHAL: What -- 23 MR. MARK SANDLER: I'm struck that, with 24 all due respect to my fellow Counsel, that the rules seem 25 to always change in their view, when I'm asking
3301 questions. 2 COMMISSIONER SIDNEY LINDEN: Yes. 3 MR. MARK SANDLER: This is so similar to 4 a process that has been adopted by everyone else. 5 COMMISSIONER SIDNEY LINDEN: Yes. 6 MR. MARK SANDLER: I thought that it 7 would be of great assistance to provide everyone with the 8 very best that -- 9 COMMISSIONER SIDNEY LINDEN: Well -- 10 MR. MARK SANDLER: -- we could produce 11 from it, but the radio transmission is the evidence and I 12 don't really understand why -- why this testimony keeps-- 13 COMMISSIONER SIDNEY LINDEN: Neither do 14 I -- 15 MR. MARK SANDLER: -- being interrupted. 16 COMMISSIONER SIDNEY LINDEN: So let's 17 carry on. 18 MR. PETER ROSENTHAL: Sorry, with 19 respect, Mr. Commissioner, if the radio transmission is 20 the evidence then this -- this should not be made an 21 exhibit. 22 COMMISSIONER SIDNEY LINDEN: It's an 23 assist, Mr. Rosenthal. This is an investigation and this 24 assists me. 25 MR. PETER ROSENTHAL: Yes.
3311 COMMISSIONER SIDNEY LINDEN: Do you 2 understand what's on it? I'm hard of hearing, too. 3 MR. PETER ROSENTHAL: Yes. 4 COMMISSIONER SIDNEY LINDEN: So this 5 helps me to hear it, to understand what's on the tape, 6 that's all, that's all it is. 7 MR. PETER ROSENTHAL: Yes, sir, but then 8 if -- if the evidence is only the tapes, then this should 9 not be introduced as an exhibit, sir. Exhibits are 10 evidence -- become evidence. 11 COMMISSIONER SIDNEY LINDEN: Thank you 12 Mr. Rosenthal. 13 MR. MARK SANDLER: Like with all the 14 telephone conversations we shouldn't have had transcripts 15 on. They've been of great assistance to all of us. 16 COMMISSIONER SIDNEY LINDEN: They've been 17 of great assistance to us, Mr. Rosenthal, that's all they 18 are. 19 Carry on. Well, actually, we're at the 20 end of the day. I don't want to go much past 4:30 unless 21 there's something that you need to finish. 22 If you need to finish a piece, then by all 23 means, because I -- if you didn't get as far as you 24 expected. 25 MR. MARK SANDLER: No, I didn't.
3321 COMMISSIONER SIDNEY LINDEN: Should we go 2 a little longer, then? 3 MR. MARK SANDLER: If I could just finish 4 this sequence -- 5 COMMISSIONER SIDNEY LINDEN: Let's go a 6 little longer. 7 MR. MARK SANDLER: -- of tapes, I'd be 8 grateful. And I'll only be about five (5) minutes. 9 10 CONTINUED BY MR. MARK SANDLER: 11 Q: So we've -- we've played Tab 25 and 12 it's been marked as Exhibit P-489 and then on Tab 26, 13 which is track 21:41, that's already been played. 14 Did you have any -- and I know it's been a 15 while since you listened to it a few minutes ago. Did 16 you have any difficulty correlating the transcript that 17 we produced to the radio transmission or would you like 18 to hear that again? 19 A: No. The only part that became 20 unclear was as -- as is indicated in the transcript where 21 the first or that major paragraph, where it says, It's 22 getting in and whatever it's get into -- whatever the 23 commentary is, Is getting, doesn't come through very well 24 after the word "getting." 25 Q: All right. And if -- if that
3331 transcript could be marked as the next exhibit, please. 2 THE REGISTRAR: P-490, your Honour. 3 4 --- EXHIBIT NO. P-490: Transcript of Track 26, 5 number 21:41, Sept.06/95. 6 7 COMMISSIONER SIDNEY LINDEN: If there's 8 anything in the transcript that is inaccurate and you 9 hear it or you don't see it, then by all means you raise 10 it. 11 MR. PETER ROSENTHAL: Well, sir, I 12 can't -- 13 COMMISSIONER SIDNEY LINDEN: I can't 14 either and that's why -- 15 MR. PETER ROSENTHAL: Sorry, I have bad 16 hearing but -- 17 COMMISSIONER SIDNEY LINDEN: Others are 18 listening too, though, besides us. If there's something 19 in the transcript that's not on the tape that's an 20 inaccurate representation, then I expect somebody to 21 point that out, otherwise I expect us to just use them 22 for the purpose for which they're offered, as an assist. 23 Okay. 24 25 CONTINUED BY MR. MARK SANDLER:
3341 Q: And we're up to Tab 27, track 21:42. 2 3 (AUDIO TAPE PLAYED TRANSCRIPT BELOW) 4 5 Lima 1, Oscar 1 6 7 Go ahead, Lima One 8 Can we confirm that ...the local people...in our area.. 9 got people close by...kinda like to know(??). 10 11 Got the day shift down, coming down right now in crowd 12 management formation They're driving down right now 13 14 ...Lima 1 to Oscar 1 15 16 Oscar 1 - Go ahead 17 18 Can we confirm that people...we got people ...It's 19 getting hinky(??) Just wanna confirm that....(unclear) 20 21 They're on the way Oscar 22 Oscar One from Lima One, if you've gotta get out of 23 there. Get out of there. Ten four. 24 25 Ten four.
3351 Advise when you have. 2 3 CONTINUED BY MR. MARK SANDLER: 4 Q: All right. And how does the 5 transcript compare to what you hear on the radio 6 transmission? 7 A: It's accurate. There is a fair bit 8 of transmission after the highlighted area that is 9 indiscernible, that -- but when it comes back to Oscar 1 10 from Lima 1 it is clear. 11 Q: And what is transpiring here? 12 A: Well, what's happening is the 13 observation team is asking the command post at Forest if 14 there are any officers coming down and the supervisor at 15 Forest is telling them that the crowd management team is 16 en route, is the -- the long and the short of it. 17 Q: All right. 18 A: He also tells them that if it's 19 necessary, to pull out. 20 Q: And if that could be the next 21 exhibit, please? 22 THE REGISTRAR: P-491, Your Honour. 23 24 --- EXHIBIT NO. P-491: Transcript of Track 27, 25 number 21:42 Sept. 06/95.
3361 2 COMMISSIONER SIDNEY LINDEN: Thank you. 3 Yes, Mr. Klippenstein? 4 MR. MURRAY KLIPPENSTEIN: Commissioner, 5 you -- you asked -- 6 COMMISSIONER SIDNEY LINDEN: If there's 7 something inaccurate... 8 MR. MURRAY KLIPPENSTEIN: -- point out. 9 I won't make argument now except to -- to say that the 10 phrase in this track that is translated in the -- the 11 OPP's transcript as, "they're driving down," may well be, 12 "to drive them down," and in my submission that is a live 13 issue, which I will address in argument. 14 MR. MARK SANDLER: I thought that was 15 pretty clear. 16 17 CONTINUED BY MR. MARK SANDLER: 18 Q: And just going back to Tab 26 for a 19 moment, I didn't ask you what is transpiring in this 20 track, 21:41. 21 A: The observer is calling into the 22 Forest command post advising that there's a lot of 23 traffic here; there's ATV's on the beach that are coming 24 up to their position. 25 They've moved back a little bit, watching
3371 -- looking for traffic on the road and any vehicles 2 stopped. They didn't know. There's people all over the 3 place and it becomes indiscernible at that point and 4 there's and acknowledgement from the command post. 5 Q: And do you know now, just looking at 6 those three (3) radio transmissions whether you heard the 7 actual radio transmissions back then? 8 A: I can't be sure if I did or did not. 9 Q: All right. The -- the substance of 10 what's being communicated there, was it being made known 11 to you back then? 12 A: Yes. 13 Q: And if you look at 21:43, and again, 14 I'm not suggesting -- far from it -- that there's a 15 perfect identity between the scribe notes and the radio 16 transmissions, but we do see an entry there: 17 "Rob Graham: Natives are all over the 18 place and our observation points are 19 forced back. Also, the dump truck and 20 fire at checkpoint D." 21 And does any of that content appear to 22 relate to the radio transmissions that we've heard? 23 A: Yes. That's -- that's where the 24 information would originate. 25 Q: All right.
3381 MR. MARK SANDLER: If that would be a 2 convenient time, Mr. Commissioner? 3 COMMISSIONER SIDNEY LINDEN: Thank you 4 very much, Mr. Sandler. 5 MS. SUSAN VELLA: I'd just like to make 6 an observation, Commissioner, that perhaps Counsel can 7 consider over the evening. 8 If Deputy Commissioner Carson confirms 9 that the transcript that's been provided to him 10 accurately reflects what he has just heard on the tape, 11 then the evidence -- the evidentiary value of that is 12 simply that this is evidence of what he has heard. 13 Not necessarily evidence of what was said 14 which then allows all counsel to make their argument at 15 the end of the day as to what was in fact stated on the 16 tape. 17 The other observation I'd like people to 18 consider is perhaps we should not be interrupting the 19 evidence to provide possible corrections to the 20 transcript. Again, I think that's -- 21 COMMISSIONER SIDNEY LINDEN: Sure. 22 MS. SUSAN VELLA: -- something that can 23 be easily done on argument, counsel can refer to the raw 24 tape and to any version they wish to make of the 25 transcription.
3391 This is not a certified transcript of the 2 evidence. Those are my comments. 3 COMMISSIONER SIDNEY LINDEN: Thank you, 4 Ms. Vella. 5 Okay, I think that's probably a good 6 suggestion but we'll see how it goes tomorrow. You're 7 going to continue playing through the tapes. There's 8 still quite a few to do. 9 MR. MARK SANDLER: I'll have a few more 10 radio transmissions -- but relatively few. I'll 11 actually be going to questions now. 12 COMMISSIONER SIDNEY LINDEN: It's such an 13 inexact exercise that if there's anything that's 14 obviously in accurate, incorrect, I don't mind hearing it 15 right now even though it'll slow us down. But we'll see 16 how it goes. 17 MR. MARK SANDLER: If counsel want to 18 suggest to us -- 19 COMMISSIONER SIDNEY LINDEN: Mr. 20 Klippenstein has -- 21 MR. MARK SANDLER: -- that there's 22 something inaccurate in a particular entry, of course, 23 the OPP officers are here with the benefit of the 24 earphones that I don't have. We'll listen to it again 25 and we'll try to be of assistance.
3401 COMMISSIONER SIDNEY LINDEN: Well that's 2 what we're trying to do is make the transcript as 3 accurate a reflection of the tape as we can. 4 MR. MARK SANDLER: Right. Thank you. 5 COMMISSIONER SIDNEY LINDEN: Thank you 6 very much. 7 8 (WITNESS RETIRES) 9 10 COMMISSIONER SIDNEY LINDEN: We will 11 adjourn 'til nine o'clock tomorrow morning. 12 THE REGISTRAR: This Inquiry stands 13 adjourned until tomorrow, Thursday, June 30th at 9:00 14 a.m. 15 16 --- Upon adjourning at 4:39 p.m. 17 18 Certified Correct 19 20 21 22 ___________________ 23 Carol Geehan 24 25