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 30th, 2005 25
21 Appearances 2 Derry Millar ) (np) 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 ) (np) 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 ) 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 ) (np) 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 ) 23 Melissa Panjer ) 24 Danya Cohen-Nehemia ) (np) 25
51 TABLE OF CONTENTS 2 Page 3 Exhibits 6 4 5 Discussion 7 6 7 JOHN FREDERICK CARSON, Resumed 8 9 Continued Cross-Examination by Mr. Mark Sandler 11 10 Re-Direct Examination by Ms. Susan Vella 143 11 12 13 14 Certificate of Transcript 150 15 16 17 18 19 20 21 22 23 24 25
61 EXHIBITS 2 No. Description Page No. 3 P-492 Document Number 2002892 Cell 10 4 Phone Records 5 6 P-493 Document Number 2003605 Officer 67 7 Irvine's Notes 8 9 P-494 Document Number 2005413 Officer Mark 115 10 Gransden's Notes 11 12 P-495 Document Number 2004098 Search 131 13 Warrant Prepared by P.C. John 14 Potts OPP. August 24/93 15 16 17 18 19 20 21 22 23 24 25
71 --- Upon commencing at 9:02 a.m. 2 3 THE REGISTRAR: This Public Inquiry is 4 now in session. The Honourable Mr. Justice Linden 5 presiding. Please be seated. 6 COMMISSIONER SIDNEY LINDEN: Good morning 7 everyone. Good morning. Good morning, Mr. Sandler. 8 MR. MARK SANDLER: Good morning. Good 9 morning, Deputy. 10 THE WITNESS: Good morning, sir. 11 12 JOHN FREDERICK CARSON, Resumed: 13 14 MR. MARK SANDLER: Commissioner, before 15 we proceed further, perhaps I should just indicated to 16 you that we took your advice last night and -- and we 17 also had some input from -- from counsel including Ms. 18 Esmonde on one of these tapes, and what transpired last 19 night was that Constable Evans, with the benefit of 20 headphones, re-listened to the radio transmissions that 21 were introduced yesterday, and has suggested some 22 additional changes to matters that appeared to be 23 unclear, generally. 24 And what I've done is I've provided those 25 to all counsel this morning, and to you, and to
81 Commission Counsel. And I don't intend to take Deputy 2 Commissioner Carson back through those radio 3 transmissions because he doesn't have the benefit of the 4 headsets, first of all. 5 And second of all, all counsel should have 6 the opportunity to -- to re-listen to the -- the taped 7 conversations, and consult as between us, and with 8 Commission counsel, and perhaps some consensus can be 9 arrived at as to precisely the words that are there. 10 So what I would suggest is that these 11 simply are provided to everyone as -- as aids, and I have 12 referenced on them which tabs they refer to, and which 13 exhibits that have been already marked, they refer to for 14 the convenience of Counsel. 15 And -- and I don't propose to do anything 16 more with them right now -- 17 COMMISSIONER SIDNEY LINDEN: That's good. 18 Thank you very much, Mr. Sandler. 19 MR. MARK SANDLER: -- if that makes 20 sense. 21 COMMISSIONER SIDNEY LINDEN: Yes, it 22 does. 23 MR. MARK SANDLER: Now you'll also see in 24 that package, the last two (2) items there are Tab 8 and 25 Tab 9. And those are the only two (2) other radio
91 transmissions that I'll be playing for Deputy 2 Commissioner Carson. 3 A number of the items that I provided you 4 in my book, I've decided to deal with -- with other 5 witnesses. I don't want him to bear the burden of the 6 entire -- 7 COMMISSIONER SIDNEY LINDEN: No. 8 MR. MARK SANDLER: -- OPP case, given the 9 length of time that's been involved. So -- so we have 10 amended those, and those I can just show directly to the 11 Deputy Commissioner when we actually seek to introduce 12 them. 13 COMMISSIONER SIDNEY LINDEN: That's fine. 14 MR. MARK SANDLER: But they're there for 15 the benefit of -- of you, and -- and of counsel. 16 Secondly, I undertook, yesterday, during Mr. Falconer, I 17 believe, cross-examination to provide all counsel with 18 the date of Inspector Connolley's report, and we've 19 ascertained that it is September the 11th of 1997. 20 Third, I took you yesterday to Tab 43 of 21 our materials, which are the cell phone records of Deputy 22 Commissioner Carson, and we've identified the -- the 23 Commission number in relation to those cell phone 24 records. It is 2002892, and I would ask that the cell 25 phone records, which are marked Tab 43 of our materials
101 be filed as the next exhibit please. 2 COMMISSIONER SIDNEY LINDEN: Thank you. 3 THE REGISTRAR: P-492, Your Honour. 4 5 --- EXHIBIT NO. P-492: Inquiry Document Number 6 2002892. Cell phone records 7 of Deputy Commissioner Carson. 8 9 COMMISSIONER SIDNEY LINDEN: P-492. And 10 it's Inquiry Document Number... 11 12 (BRIEF PAUSE) 13 14 COMMISSIONER SIDNEY LINDEN: ...Inquiry 15 Document Number 2002892? Did I get that right? 16 MR. MARK SANDLER: That's right. And 17 what I'm advised by Ms. Vella is that there may be 18 several pages missing in the Inquiry document, as opposed 19 to the more fulsome document. 20 So what I propose to do, if we reserve 21 that number, P-492, for that document, I will provide the 22 -- the -- the full record, rather than compare it now, so 23 that it'll be there and before the Inquiry. 24 COMMISSIONER SIDNEY LINDEN: Thank you. 25
111 CONTINUED CROSS-EXAMINATION BY MR. MARK SANDLER. 2 Q: Now, if I can start there, Deputy 3 Commissioner Carson and ask you to turn to Tab 3 of the 4 cell phone records. And I asked you generally yesterday 5 about what the cell phone records show in relation to 6 telephone calls on September the 6th. 7 And if I can, I want to clear up two (2) 8 matters with you, also arising out of the cell phone 9 records. 10 And if I can ask you to look at the cell 11 phone records together with the typewritten scribe notes, 12 Exhibit 462, and we're going to be going to page 48 of 13 the scribe notes. 14 THE REGISTRAR: 426? 15 MR. MARK SANDLER: 426. Yes, thank you. 16 17 CONTINUED BY MR. MARK SANDLER: 18 Q: And I'm looking at the entry for 7:18 19 on September the 5th, 1995. 20 A: Correct. 21 Q: You've got that entry? 22 A: Yes. 23 Q: And you've been asked about this 24 entry, and what I'd like to do is compare the entry at 25 7:18 to item 78 on the cell phone records.
121 A: Yes? 2 Q: And so what we see on the scribe note 3 is: 4 "Received call from Inspector Ron Fox. 5 Advised of damage to cruisers. Piled 6 tables outside of Park. Someone's 7 going to video. It's adjacent to 8 private property. Potential problems 9 with fires near adjacent houses if 10 tables were set on fire. Spoke to 11 Bressette yesterday, he wants something 12 done" and so on. 13 Now, you were asked questions about why 14 this call that you received from Inspector Ron Fox was 15 not on a logger tape, wasn't transcribed. 16 With the benefit of the cell phone 17 records, can you provide some assistance to the 18 Commissioner as to why that's so? 19 A: Well, at 7 -- 7:17 that morning I 20 received a cellular call, incoming, at that particular 21 point in time. It appears that's the call in regards to 22 this particular conversation; the timing is the same. 23 Q: So, Ron Fox was calling you on your 24 cell phone, and as we've heard, that wouldn't be picked 25 up on a logger tape?
131 A: Correct. 2 Q: And just while we're here, here you 3 are advising Ron Fox of the damage to the cruisers, the 4 piled tables outside of the Park, the fact that it's 5 adjacent to private property, the fact that there's 6 potential problems with fires near adjacent houses. 7 We've heard that on September the 5th you 8 were also talking to Ron Fox about this emergency 9 injunction, am I right? 10 A: Yes. 11 Q: Why are you communicating this 12 information as to what's transpired to Ron Fox that day? 13 A: Well, that would be information that 14 he would use in regards to the meetings that he would be 15 attending, in regarding providing input into the process. 16 Q: And did you, or did not regard that 17 information as relevant to the injunction process? 18 A: I felt it was relevant. 19 Q: Now, if I can take you to 11:05 of 20 the same date, and this is at page 61 of the same scribe 21 notes, do you have that? 22 A: Yes, I do. 23 Q: And what we see is that at 11:05, 24 John Carson calls and leaves a message on voice mail for 25 Ron Fox to call him back, and we know that -- that that
141 is actually on the logger tape; that's tape number 33, as 2 I recall. 3 And then we see, skipping down to 11:12: 4 "Ron Fox returned John Carson's call, 5 advised him that he was not aware of 6 gunfire when he talked to him earlier 7 in the day. Updated reference, shots 8 fired overnight in bush." 9 And you've already been asked about the 10 content of that telephone call before, so I -- I won't 11 deal with that again, but if one looks at the cell phone 12 records for items 79 and item 80, can you piece this 13 together for Commissioner Linden as to what transpired? 14 A: Yes. The -- at 11:10 I receive an -- 15 an incoming cellular call, which coincides with the time 16 Ron Fox called me back. 17 Q: All right. And if you look 18 immediately above that to the page number 79? 19 A: Yes? 20 Q: What's transpiring there, or do you 21 know? 22 A: I'm not sure if that's my pager 23 number; it's a -- it's a pager number. 24 Q: If you don't know, it's fine. 25 A: I'm not sure. I -- I'd have to
151 check my list of phone numbers, of whose pager number 2 that is. 3 Q: All right. And we may hear a little 4 more evidence about that in a couple of days. 5 So, the 11:12 conversation was not taped 6 in which you talked about the gunfire that has occurred 7 overnight, and we see that's Ron Fox returning your call, 8 on your cell phone, am I right? 9 A: Correct. 10 Q: Okay. Now, I was -- yesterday, 11 before we broke, I had just completed going through with 12 you several of the radio transmissions that took place 13 before the CMU went down the road, and do you remember we 14 talked about that? 15 A: Yes. 16 Q: And I provided that to you simply as 17 background to some of the questions that -- that I'm now 18 going to explore as to what occurred in cross-examination 19 over the past number of days. 20 You'll recall that -- that you have told 21 Commissioner Linden the various factors that impacted 22 upon your decision to send the CMU down the road? 23 A: Correct. 24 Q: And I'm going to go through some of 25 the issues that have been raised in relation to each of
161 those factors, and let's see if we can do it as -- as 2 quickly as we can. 3 The first factor that I want to deal with, 4 that you've described, is the men with bats, or clubs, or 5 sticks on the edge of the roadway. 6 A: Yes? 7 Q: All right. And to address the issues 8 raised in cross-examination on that issue, I'd like to 9 take you, if -- if -- if you would, to Mr. Klippenstein's 10 Book of Documents, Volume 1. 11 12 (BRIEF PAUSE) 13 14 Q: And if you have that... Commissioner 15 do you have that as well? 16 COMMISSIONER SIDNEY LINDEN: I think I 17 do, I'm just trying to put my hands on it. I think this 18 is it in front of me, but I'm not sure. What -- what tab 19 in... 20 MR. MARK SANDLER: It's... 21 COMMISSIONER SIDNEY LINDEN: I'm not sure 22 this is... 23 MR. MARK SANDLER: It's Volume 1 and the 24 first tab that I'm going to take the Deputy to is Tab 34. 25 COMMISSIONER SIDNEY LINDEN: Tab 34?
171 MR. MARK SANDLER: Yes. 2 COMMISSIONER SIDNEY LINDEN: I think my 3 copy is -- 4 MR. MARK SANDLER: And for the benefit of 5 My Friends, this has been marked as P-462 Inquiry 6 Document Number 1000445. 7 THE REGISTRAR: What was the exhibit 8 number? 9 MR. MARK SANDLER: 462. 10 THE REGISTRAR: 462? 11 THE WITNESS: Tab 34? 12 MR. MARK SANDLER: Tab 34. 13 THE WITNESS: It's blank in this 14 particular... 15 MR. MARK SANDLER: Well, that's it, the 16 cross-examination is completed then. It's -- it's blank, 17 you say? 18 COMMISSIONER SIDNEY LINDEN: Yes, it's 19 blank. 20 THE WITNESS: It's -- it's empty. 21 MR. MARK SANDLER: Are you looking at... 22 THE REGISTRAR: I've got that. 23 MR. MARK SANDLER: The right volume, it's 24 Volume 1. 25 COMMISSIONER SIDNEY LINDEN: Is this --
181 did you say this was a taped interview -- 2 MR. MARK SANDLER: Yes. 3 COMMISSIONER SIDNEY LINDEN: -- with 4 Detective Sergeant... 5 MR. MARK SANDLER: With Acting Detective 6 Staff Sergeant Mark Wright. 7 COMMISSIONER SIDNEY LINDEN: I have it. 8 THE WITNESS: Thank you. 9 MR. MARK SANDLER: Do you have that? 10 THE WITNESS: I do now, yes. 11 12 CONTINUED BY MR. MARK SANDLER: 13 Q: And you'll recall that Mr. 14 Klippenstein put to you various statements that had been 15 made by Mark Wright, and -- and I want to ask you about a 16 few questions arising out of that. 17 First of all, you told Mr. Klippenstein 18 that you can't articulate today the reasons why you felt 19 that Mark Wright better move out of there in short order, 20 whether it was based on something that was said to him, 21 or actions displayed to him; you couldn't recall what it 22 was about the encounter that it caused you to 23 characterize it as -- as an intimidating one. 24 A: Correct. 25 Q: Do you remember that?
191 A: Yes. 2 Q: And -- and if you look with me at 3 page 11 of the statement, sorry the bottom of page 10, we 4 see Mark Wright says: 5 "When I got there I saw approximately 6 eight (8) to ten (10) Native males 7 standing on the edge of the road where 8 the road meets the sand. And four (4) 9 to five (5) of them had, what I would 10 describe, as clubs in the hand. 11 They looked to me like axe handles, 12 large axe handles, that's what they 13 looked like anyway. It was getting 14 dark out. I wasn't really close to 15 them. I was in an unmarked police car, 16 and I wasn't dressed or readily 17 identified as a police officer." 18 And then I want to read to you a portion 19 that -- that wasn't read. 20 "So I had conversation with them from 21 the seat of my vehicle to them, and I 22 asked them what they were doing, and 23 what was going on. And they responded 24 to me that I had to get out of there, 25 that I shouldn't be there, that this
201 wasn't my fight. I didn't have an 2 opportunity, they were waving the clubs 3 a bit. 4 What they were doing is, a number of 5 them were holding them in one hand, and 6 slapping it in his other hand, and I 7 took that as an intimidating gesture as 8 far as I was concerned. 9 I was going to attempt to talk to them 10 longer, but I noticed that another 11 Canadian Native was walking towards the 12 group. I had seen him earlier in the 13 Park. I was concerned that may -- he 14 may identify me as a police officer, so 15 I left." 16 And then Mr. Klippenstein did put to you 17 that -- that he travelled to the various checkpoints and 18 expressed his concern and -- and the like, all right? 19 A: Correct. 20 Q: Now, does that or does not it -- does 21 that or does that not assist you as to what kind of 22 information was communicated that caused you to 23 characterize the Incident in the way that you did? 24 A: Well, that certainly's the sense of 25 the activity that I believed, or I was of the impression
211 that had taken place. 2 Q: And -- and if you'd look with me then 3 at Tab 18 of the same book, which is Exhibit 467, Inquiry 4 Number 1011152, and this is an excerpt of the evidence of 5 Detective Wright at the injunction proceeding. 6 MR. JULIAN FALCONER: Could I get that 7 document number again? 8 MR. MARK SANDLER: Yes, of course. It's 9 1011152. 10 11 CONTINUED BY MR. MARK SANDLER: 12 Q: And if you'd look with me at the 13 bottom of page 62 -- 26 -- 14 COMMISSIONER SIDNEY LINDEN: I think this 15 is an exhibit. 16 MR. MARK SANDLER: Yes, I -- I indicated 17 it's 467. 18 COMMISSIONER SIDNEY LINDEN: 467. 19 MR. MARK SANDLER: Yes. Sometimes the 20 exhibit numbers aren't that helpful to My Friends. 21 COMMISSIONER SIDNEY LINDEN: No, that's 22 find. 23 MR. MARK SANDLER: So I also provided the 24 Inquiry number. 25
221 CONTINUED BY MR. MARK SANDLER: 2 Q: So at the bottom of 26: 3 "As I turned the corner and I saw 4 approximately eight (8) First Nations 5 people, male, ranging from what I would 6 say eighteen (18) to thirty (30), 7 standing right on the curve, right 8 where the pavement meets the sand, what 9 turns into hard packed sand, and then 10 the extension into Lake Huron. Half of 11 them were brandishing what looked to me 12 like axe handles, and they were 13 motioning me. 14 I stopped my car, I was in a plain 15 motor vehicle, I was not dressed, I was 16 just dressed in a t-shirt and blue 17 jeans. I was not readily identifiable 18 as a police officer, and I asked -- I 19 had some conversation with the 20 individuals there, and I asked them 21 what was going on. 22 They told me to leave right away, don't 23 stop, this isn't your fight, you can't 24 stay here. I asked them can I go down 25 to that road to the lake; and he said
231 no. 2 And I was going to continue my 3 conversation, but a First Nations 4 person who knew me as a police officer 5 started to come towards that, and I 6 didn't feel it was no longer safe for 7 me to be there, so I left and I went 8 southbound on Military Road." 9 Do you see that? 10 A: Yes, I do. 11 Q: All right. And I'm going to compare 12 three (3) statements together in a moment. So if you 13 keep that one in mind, and we'll turn to the third 14 statement that was put to you. 15 And that was a statement of -- from Mark 16 Wright's notes, which are to be found at Tab 10 of Mr. 17 Klippenstein's materials. This is Exhibit 471, Inquiry 18 Number 1000886. 19 20 (BRIEF PAUSE) 21 22 Q: And if you'd look with me at his 23 notebook entry at -- and I believe you'll probably have 24 it at page 8. In the tab of Mr. Klippenstein's materials 25 it's 1063, and it starts with the words: "As I travelled
241 up?" 2 A: Yes. 3 Q: Do you see that? 4 A: Yes, I have it. 5 Q: "As I travelled up [I can't read the 6 next word] this road allowance, I 7 observed --" 8 A: Passed. 9 Q: Passed? 10 A: P-A-S-S-E-D. 11 Q: All right, passed. It's -- I see. 12 "I observed eight (8) to ten (10) male 13 natives standing on the edge of the 14 road. Approximately four (4) to five 15 (5) of these males were holding clubs, 16 sticks, axe, bat handles. I was in an 17 unmarked surveillance vehicle, not 18 readily identified as a police officer. 19 I had conversation with these males." 20 And this is the portion that I want to 21 read to you now: 22 "I asked them what they were doing; 23 they told me to leave. It wasn't my 24 problem, I would best get out of there. 25 I asked them if I could go where they
251 were, into the parking lot of the Park 2 outside, and they said "no." 3 They told me to leave, and as they were 4 telling me this they were tapping their 5 clubs into their open palm. 6 I went to the checkpoint south of the 7 entrance to the Park and advised the 8 ERT members present of what I had just 9 observed." [and so on] 10 And that was put to you, and I -- and I 11 just note because I'm going to ask you about it in a 12 moment: 13 "I told them to be careful, as it 14 looked like things were escalating." 15 Right? 16 A: Correct. 17 Q: Now, first of all let me ask you, as 18 a -- as a decision maker, do you see any material 19 differences in the statements provided by Mark Wright 20 that I've just read to you? 21 A: No, they're essentially the same. 22 Q: As a decision maker, was it material 23 to you the precise number of individuals that were on the 24 Sandy Parking Lot? 25 A: No.
261 Q: As a decision maker, was it a -- 2 material to you precisely how many of the number there 3 were carrying clubs, baseball bats, or axes? 4 A: No, it wasn't. 5 Q: As a decision maker, was it material 6 to you whether the objects that they had in their hand 7 turned out to be a baseball bat, as opposed to an axe, as 8 opposed to a tree trunk, as opposed to some other form of 9 club? 10 A: No, sir. 11 Q: Now, it was -- it was pointed out to 12 you that when Mark Wright spoke to you on September the 13 6th, he said something that was suggested to be different 14 than the accounts that I've just outlined, and I want to 15 take you to that now if I -- if I could. And this is 16 Exhibit 444(b), Tab 48. 17 18 (BRIEF PAUSE) 19 20 Q: Now, you'll see at page 307 of that 21 transcript, and I'm going to ask you a little bit more 22 about this transcript a little bit later on, but you see 23 at page 307 that there's a reference to Mark Wright 24 telling you: 25 "They got about eight (8) of them there
271 with baseball bats right on the road 2 edge, you know? And -- 3 Well, who are they? 4 I don't know, just a bunch of natives. 5 You know what I mean? I see they're 6 out on the road, right just on the 7 edge. 8 Okay." 9 And then he talks about the school bus is 10 roaring around and so on. 11 So, it was put to you, that in essence, 12 Mark Wright was misinforming you by leaving the 13 impression that there were a total of eight (8) 14 individuals on the parking lot, all with baseball bats, 15 you remember that cross-examination? 16 A: Yes. 17 Q: Well, I want to show you something 18 that -- that was not put to you, and it's back in the 19 typed scribe note, Exhibit 426 page 76. 20 21 (BRIEF PAUSE) 22 23 Q: And this is the entry for 20:49 hours 24 on September the 6th, 1995; do you have that? 25 A: Yes.
281 Q: And you'll see that in the last entry 2 for that time period, 20:49, it says: 3 "John Carson: Why don't Mark Wright 4 look at video to see if the kiosk is in 5 view?" 6 And stopping there, you've explained in 7 great detail what that conversation was all about. 8 And then we see the entry: 9 "Mark Wright: I see eight (8) people 10 at the corner, and at least four (4) 11 had bats or something like that." 12 A: Correct. 13 Q: You see that? 14 A: Yes. 15 Q: And this is before the CMU is sent 16 down the road, I take it? 17 A: Yes, I was still at the Command Post 18 at Forest. 19 Q: And it would appear that Mark Wright 20 is advising you, prior to the CMU going down the road, 21 that eight (8) people at the corner, at least four (4) 22 had bats or something like that, am I right? 23 A: Correct. Correct. 24 Q: And as far as you're concerned, as a 25 decision-maker, how, if at all, does that compare to the
291 statements that I've read to you previously? 2 A: It's all essentially the same. 3 Q: Okay. I mean, were you under any 4 misapprehension, as -- after that conversation with Mark 5 Wright, that -- that all eight (8) people had baseball 6 bats? 7 A: No, he was very clear. 8 Q: Okay. Now, it was suggested to you, 9 that -- and again, I -- I don't want a retroscope on here 10 at this point, or any hindsight that's being used. 11 I'm really asking you about information 12 that you had at the time, and what you felt at the time, 13 and it was suggested to you that -- that you should 14 properly have regarded that information as being 15 analogous to people having a picnic in the parking lot, 16 or a campfire in the parking lot. 17 And you recall that -- that it was put to 18 you that: well, you said that if they're just having a 19 campfire in the parking lot, and other people 20 extrapolated from that and said a picnic in the parking 21 lot, we should just leave them along, right? 22 A: Right. Right. 23 Q: Could you reasonably regard these 24 individuals, based upon the information communicated by 25 Mark Wright, to be analogous to people having a picnic in
301 the parking lot? 2 A: Not at all. 3 Q: I mean, based upon that information 4 as communicated by Mark Wright, would you regard the 5 objects in the hands of those individuals as being 6 weapons, regardless of whether or not they were used to 7 damage a vehicle? 8 A: Very much so. 9 Q: Possession of a weapon for a 10 dangerous purpose, does it require proof, as you 11 understand it, that the weapon has already been used? 12 A: No. 13 Q: Now Mr. Horton suggested to you, in 14 cross-examination, that you must have known that they 15 were just carrying weapons for defensive purposes at the 16 time. 17 Now, when you're getting this information, 18 and again, let's not talk about hindsight, or the fact 19 that we've heard from First Nations witnesses for a 20 number of days at this Inquiry. 21 When you received this information about a 22 number of individuals with -- some of whom were carrying 23 baseball bats, or clubs, or sticks, had there been any 24 movement by the police towards the Park at that point in 25 time?
311 A: No, sir. 2 Q: Was it reasonable, at that point in 3 time, not now, to assume that carrying weapons for -- 4 were for defensive purposes, as far as you were 5 concerned? 6 A: It made no sense to me. 7 Q: Okay. Now, we've actually heard some 8 -- some evidence, as I've said, from some of the First 9 Nations witnesses, and I -- I want to read to just 10 several excerpts, and you needn't have these; I'm just 11 going to read out the passages very quickly. 12 And the first is a -- is Clayton George on 13 November the 8th of 2004 at page 92. And he's being 14 cross-examined by an unsavoury fellow, Mr. Sandler, and 15 here are the questions: 16 "Q: I'm going to ask you about the 17 events on the evening of September the 18 6th, that's Wednesday, September the 19 6th, the day of the confrontation. I 20 expect there's going to be some 21 evidence that about 7:30 that evening a 22 group of occupiers were standing at the 23 intersection of Army Camp Road and East 24 Parkway Drive. 25 And four (4) or five (5) had -- had
321 what appeared to be axe handles in 2 their hands, or stick and bats. And an 3 individual was told to get out of the 4 area, this wasn't his fight. 5 First of all, were you one of those 6 occupiers out on the road? 7 A: Yeah. Yes. 8 Q: You were? And what did you have 9 in your hands? 10 A: Just a stick. 11 Q: And the reason for being at the 12 road, at the intersection of Army Camp 13 Road and East Parkway Drive on 14 September the 6th was what? 15 A: Just to see how far they were 16 coming down the road. 17 Q: Well, but they weren't coming down 18 the road at that point in time. That's 19 two (2) hours or more before they came 20 down the road, right? 21 A: Yes. 22 Q: Yes. So I mean one of the things 23 that you were doing in being out on the 24 road is you were asserting your 25 ownership interest in this area.
331 A: This is our land. We'll go here 2 if we want. We'll be armed with these 3 items that we want because we're 4 entitled to, right? 5 Q: Hmm hmm. Fair enough." 6 Now again, you didn't have the testimony 7 back in -- back when the events occurred, but did that 8 accord with what your expectations at the time? 9 A: That -- that's fair. 10 Q: And -- and then when you see Glenn 11 Bressette, who testified on November the 10th of 2004 and 12 -- and I cross-examined him as well, and looking at page 13 15, November the 10th, 2004. 14 "Q: I want to ask you a little bit 15 about this encounter with what you 16 described as a spiffy looking 17 individual, remember that? 18 A: Yes. 19 Q: And I expect that this spiffy 20 looking individual we'll later hear was 21 Detective Sergeant Mark Wright of the 22 OPP. I just tell you that, you didn't 23 know him at the time I take it. 24 A: Okay. 25 Q: What's clear is he comes to the
341 intersection -- 2 A: Yes. 3 Q: -- he's driving a vehicle -- 4 A: Yes. 5 Q: -- he's not in uniform -- 6 A: Yes. 7 Q: -- he wanted to talk to the group, 8 right? 9 A: Yes. 10 Q: And he indicated that he wanted to 11 talk to the group, am I right? 12 A: Yes. 13 Q: And in fairness he wasn't 14 threatened and no rocks were thrown at 15 him. I agree with you. 16 A: Yes, in that respect. 17 Q: But what was clear, I'm going to 18 suggest, is that nobody within the 19 group, including Stuart George, had any 20 interest in speaking to him, am I 21 right? 22 A: Right. 23 Q: Okay. On the contrary, he was 24 told to get the fuck out of here, 25 right?
351 A: Right. 2 Q: And I'm going to suggest to you, 3 and I'm going to ask you kind of think 4 back, but somebody also said to him, 5 this battle is not yours; does that 6 accord with your recollection? 7 A: No. 8 Q: Do you remember one way or the 9 other whether someone said that? 10 A: No, I don't." 11 And then I put to him that we've actually 12 heard from Clayton George or Kokomo George, and he said 13 at first "I'm not sure he was there" and then I read to 14 him the passage that I've just read to you earlier about 15 what Clayton George had to say. 16 And then I suggested to Mr. Bressette: 17 "Q: Regardless of the precise numbers, 18 we can say for some things with -- 19 for certainty about this. The 20 first is that there was a group of 21 you at the intersection or Army 22 Camp Road and East Parkway Drive, 23 am I right so far? 24 A: Yes. 25 Q: You've indicated you can say
361 precisely how many there were, but 2 there were a number, right? 3 A: Yes. 4 Q: And I'm going to suggest to you 5 that even though you don't have a 6 specific recollection of whether you 7 were carrying a stick, or a club, or 8 whether the others were carrying a 9 stick or a club, we know that on 10 occasions that day some of the 11 occupiers were outside of the fenced in 12 area of the Park, and were carrying 13 those kinds of items; am I right? 14 A: Right. 15 Q: And so if Kokomo Joe were to 16 recollect, as he did, that he was 17 carrying a stick, you're not in a 18 position to disagree with it, you just 19 don't have a specific recollection one 20 way or the other? 21 A: Yes. 22 Q: So it may well be, and I don't 23 want to put it any higher than this, in 24 fairness to you, that there were a 25 group of you out at that intersection,
371 and some of you, and in the way that I 2 questioned Kokomo Joe, were armed with 3 either axe handles, or sticks, or bats; 4 is that fair? 5 A: That's fair." 6 Now, let me ask you this. Let's assume 7 for the purposes of our discussion that a number of 8 individuals are out in the parking lot, that a number of 9 them are armed with the weapons that we've described, and 10 that they said the things that they said to Mark Wright; 11 all right? 12 A: Correct. 13 Q: We can assume that. In your view, 14 was it improper for Mark Wright to characterize that as 15 an escalation of the situation? 16 A: I don't -- I -- I believe he was 17 perfectly accurate. 18 Q: It's been suggested that Mark Wright 19 created this escalation of the situation somehow to 20 support aggressive police action, or -- or to support the 21 ex-parte injunction, do you believe that for a minute? 22 A: I believe he reported the facts as 23 accurately as he saw them. 24 Q: Have you seen any documentary 25 evidence to support that allegation against Mark Wright?
381 A: Absolutely not. 2 Q: Now, I want to go to a conversation 3 that I alluded to earlier, it's back at Tab 48 of Exhibit 4 444(b), and this is the conversation that -- that you've 5 been cross-examined on extensively. And it's the 6 conversation with Mark Wright. 7 8 (BRIEF PAUSE) 9 10 Q: And do you have that? 11 A: Yes, I do. 12 Q: And Detective Sergeant Wright 13 reflects at the bottom of page 306: 14 "How you doing? 15 Well, not bad. We got a bit of a 16 situation here. Right at the curb 17 there, where the picnic tables are, I 18 just -- I took care of the public for 19 now, but if we don't deal with this, 20 we're..." 21 And -- and nobody to-date can make out 22 what -- what's said there. Do you know what sentiment 23 was being expressed here, and if you don't, I'm not going 24 to ask you to speculate. 25 A: Well, it was -- it was just a matter
391 of concern that the -- the people he had met with at the 2 meeting, just prior to this encounter at the corner, and 3 I believe what has happened is he's trying to articulate 4 the concerns that he felt the citizens had. 5 Q: Now, in fairness, he doesn't get 6 into the more fulsome account of that until later on when 7 he sees you in the Command Post? 8 A: That's correct. 9 Q: And then he says -- and we've already 10 read this: 11 "They've got about eight (8) of them 12 there with baseball bats, right on the 13 road edge." 14 So, I've read that passage. And then, 15 skipping down: 16 "The school bus is roaring around, and 17 I told the two (2) checkpoints, and I 18 didn't get -- I got the one at the top 19 -- yeah, 21, yeah, and Zack comes back 20 and says we just got a vehicle, it's 21 been pelted with mischief. 22 Oh, hang on a second, what?" 23 And then we hear in the background, 24 someone commenting that the school bus and the dump truck 25 are looking like they're moving towards the runway -- the
401 roadway. 2 COMMISSIONER SIDNEY LINDEN: The roadway. 3 4 CONTINUED BY MR. MARK SANDLER: 5 "The school bus and the dump truck look 6 like they're moving towards the road 7 now, so they're going to try and take 8 that position again. We got that house 9 there." 10 Now, stopping there for a moment. 11 So, here -- because you've been -- you've 12 been asked questions based upon the press release, and 13 based upon comments that you've -- been made, that really 14 the damage to the vehicle was it, and all of these other 15 factors have kind of been introduced by you at -- you 16 know, after the fact. 17 Here we have a reference to the school bus 18 and the dump truck: 19 "look like they're moving towards the road 20 now. They're going to try to take that 21 position again." 22 What did you understand was being 23 communicated by that? 24 A: That they're going to try and set up 25 a blockade in the area where the picnic tables were --
411 were removed earlier that same day. 2 Q: And then, he says: 3 "And we've got that house there." 4 What did you take from that? 5 A: Well, the concern about the -- the 6 cottage that's adjacent to the Sandy Parking Lot. 7 Q: And then skipping down, he says: 8 "Look, I got -- 9 Listen here. Well, if those people can 10 identify the guys who threw rocks, we 11 can something, but if they can't, then 12 they're not doing anything wrong." 13 And then, you say: 14 "Well, if they're going out there with 15 baseball bats, you've got them for 16 weapons dangerous." 17 Now, stopping there for a moment. Now, 18 this is before this comment that Mark Wright makes, 19 "Don't you say we go get this fucking guys" isn't it? 20 A: Right. 21 Q: And what were you reflecting when he 22 has told you that there's guys out there on that roadway, 23 they've got these baseball bats, and you're saying, well, 24 if they go out there with baseball bats -- if they're 25 going out there with baseball bats, you've got them for
421 weapons dangerous? 2 A: Right. I've just -- basically 3 clarifying to -- to him that there may, in fact, be 4 criminal offences occurring, and there may be some action 5 we could take. 6 Q: And was that dependent upon the 7 damage to a vehicle? 8 A: Not necessarily. 9 Q: And then he says: 10 "You got them for weapons dangerous, 11 you got them -- you got them for 12 fucking mischief to the road." 13 Now, just stopping there for a moment. 14 Commissioner Linden will be well aware of this, but some 15 members of the public may not be. 16 There's -- there's several kinds of 17 mischief under the Criminal Code, are there not? 18 A: Correct. 19 Q: And if you damage a vehicle, that's a 20 mischief to private property -- 21 A: Correct. 22 Q: -- am I right? And you interfere 23 with the lawful enjoyment of property, that's also a 24 mischief? 25 A: Correct.
431 Q: And what did you take from "mischief 2 to the road"? 3 A: Well, interfering with lawful use of; 4 so it would -- would prevent the lawful use of the -- of 5 the roadway. 6 Q: All right. And then he says: 7 "And you've got them for unlawful 8 assembly. We've got that house right 9 next door." 10 Now, stopping there, "an unlawful 11 assembly". Mr. Rosenthal put to you quite properly that 12 when you testified a couple years later at the Warren 13 George trial, it was suggested to you and you agreed, 14 that you needed a proclamation for unlawful assembly. 15 And Mr. Rosenthal pointed out to you that 16 -- that you're wrong in that regard. I mean was there 17 any talk about the need for a proclamation back in 1995 18 for unlawful assembly? 19 A: No, there was no discussion on that 20 at all. 21 Q: Okay. And -- and then he says: 22 "And we've got that house right next 23 door." 24 Again, what concern is being expressed, 25 and this is contemporaneously, not in testimony at this
441 Inquiry, about -- in that comment, as you took it? 2 A: Well, there was the concern about 3 damage or, in fact, someone going into the residence next 4 door. There had been commentary throughout the summer 5 months that the -- that the cottagers were also, for lack 6 of a better word, up for grabs. 7 Q: Okay. And then he says: 8 "And because they got the school bus 9 there, and the dump truck right there 10 moving towards the roadway, okay?" 11 And you say: 12 "Are they coming out of the Park? 13 I don't know yet. 14 We got any more -- are they out?" 15 And then he's indicating that he wants to 16 know the instant that they move out, right? 17 A: Yes, he's giving some direction to 18 the radio personnel. 19 Q: And then there's the waffling 20 comment, and we'll hear from Mark Wright. I'm not going 21 to ask you why he was concerned that Inspector Linton was 22 waffling. 23 I -- I'm not going to ask you to speculate 24 about that, but he also says: 25 "And daylight's a wasting"
451 Now, just stopping there for a moment, 2 leave aside the -- the language. I mean it's -- it's not 3 boardroom language, as you've said. 4 But "daylight's a wasting". If the police 5 were of the view that action had to be taken to address 6 these men with weapons out in that area, who are 7 committing offences, was it a concern that it occur, if 8 possible, in daylight as opposed to night time? 9 A: Oh, clearly the -- 10 Q: Is that a valid concern? 11 A: Oh, very much so. Clearly the 12 preference would be to try to deal with it in the 13 daylight hours. 14 Q: If you can? 15 A: If at all possible. 16 Q: All right. Now, we then look at page 17 310 near the bottom of the page, and this is where 18 Detective Sergeant Wright says: 19 "Don't you say we go get those fucking 20 guys?" 21 And -- and you've indicated how you 22 interpreted that comment. 23 Did you take it from -- did you take from 24 Detective Sergeant Wright's comment that he now wanted 25 you to mobilize to go into the Park itself?
461 A: No, not at all. 2 Q: Did he ever suggest that in any of 3 your -- any of his dialogue with you? 4 A: No, he never has. 5 Q: And -- and you respond: 6 "Well, we've got to deal with them. We 7 can't let them out in that area with 8 that stuff." 9 And what did you mean by that? 10 A: Well, we're going to have to deal 11 with the situation. We can't let them out on the roadway 12 with clubs, and the potential to do damage to the 13 property next door; that we've got to deal with the 14 situation if there's going to be the potential of some 15 criminal offences occurring. 16 Q: Okay. Now, Mr. Falconer had 17 suggested to you that Chris Coles and Tony Parkin, prior 18 to this conversation, had already given you orders to 19 take back the Park; had they given you any such orders, 20 prior to this? 21 A: Simply not a fact whatsoever. 22 Q: All right. I mean it's even unclear 23 from this conversation whether -- whether you're even 24 going to come back into the Command Post after this 25 information is communicated by Mark Wright, isn't it?
471 A: I gave Mark no indication that I was 2 coming back. 3 Q: And we've already heard, and 4 Commissioner Linden has heard it a number of times, that 5 that changes when you're told that TRU was being called 6 in? 7 A: Well, actually, that changed 8 particularly after I spoke with Dale Linton myself. 9 Q: All right. Fair enough. Excuse me 10 for a moment. 11 12 (BRIEF PAUSE) 13 14 Q: Now, Mr. Horton suggested to you in 15 cross-examination, and you agreed that you didn't believe 16 that these individuals would attack the checkpoints or 17 the TOC centre, do you remember that? 18 A: Yes. 19 Q: I mean, was that the issue? 20 A: No. 21 Q: I mean, could you exclude the 22 possibility that -- that they were going to be acting 23 aggressively in the area? 24 A: No, not at all. 25 Q: And given what you knew then, again
481 not now, given what you knew then, what did you believe 2 about that possibility? 3 A: Of them -- 4 Q: Acting aggressively with the use of 5 those weapons? 6 A: Oh, I felt it was a real possibility. 7 I mean, we -- we had seen aggressive behaviour. The 8 night that we went into the Park we had seen aggressive 9 behaviour when the officers responded to the bonfire on 10 the roadway the night before. They certainly had already 11 done significant damage to police property with no 12 hesitation whatsoever. 13 Q: Now, you've been asked a number of 14 questions about these things as if -- as if they're kind 15 of fixed in time, that this is the number of individuals 16 in the parking lot, and these are the number of clubs or 17 sticks that they have and so on. 18 And -- and we've heard that as the matter 19 progresses, and as you come into the Command Centre 20 information is being fed in from observers, and -- and I 21 just gave you a sampling of -- of radio transmissions, 22 right? 23 A: Correct. 24 Q: And we're going to hear some other 25 evidence from -- from people on the scene, whether TRU or
491 ERT about -- about their observations. And I'm not going 2 to take you to that now, but what can you say as to -- 3 and you've -- you've heard some of that, as I say -- what 4 can you say as to whether there was a reasonable prospect 5 that the numbers in the parking lot with weapons would 6 increase as the night progressed? 7 A: Well, there was every reason to 8 believe that just from the information coming back from 9 the observers that clearly the activity seemed to be 10 increasing in the area. 11 So it seemed to -- with the additional 12 vehicles that appeared to be driving around, and the -- 13 and the transmissions coming back from the observers, 14 that the activity was increasing, not decreasing. 15 Q: What can you say as to whether or not 16 there was a reasonable prospect that the -- that the bus 17 that we've described, or cars would -- would join 18 whatever was transpiring in the parking lot? 19 A: Well, I had every reason to believe 20 that. I mean, the -- the bus was brought down, and in -- 21 in every case in the past the bus always figured into 22 some of the tactics that were used by them. 23 Q: What can you say -- and again, 24 without the benefit of hindsight, what can you say as to 25 whether there was a reasonable prospect at the time that
501 you'd have the same issue with fires in the parking lot, 2 and danger to the adjoining property? 3 A: Well, as we had fires the night 4 before, there was no reason to believe that there 5 wouldn't be bonfires that night, and we certainly had to 6 be cognisant of the concerns that would create, and the 7 potential risk it would cause to the cottages. 8 Q: And what can you say, based upon the 9 information that was then available, whether or not there 10 was a reasonable prospect that other weapons -- and I'm 11 not talking about firearms, now -- rocks and the like, 12 and firebrands, and so on would be accumulated, and -- 13 and used from the parking lot? 14 A: Well, I would suggest it would be -- 15 it would be no doubt, whatsoever, that there would be 16 various objects built-up for that purpose. 17 Q: Now, you were asked by Mr. Horton 18 about Dale Linton's assessment concerning this activity, 19 and -- and it was suggested to you that -- that some 20 passages in what Inspector Linton said to you suggested 21 that the occupiers were expecting you to come down the 22 road, and -- and reacting to that; do you remember those 23 questions? 24 A: Yes. 25 Q: Let's go back to -- and I won't take
511 you to those transcripts unless you need to see them to 2 refresh your memory, do you remember how the issue was 3 raised by Mr. Horton? 4 A: Yes. 5 Q: All right. When the events occurred 6 as you understood them the day before, and -- and your 7 men had -- your officers had been ambushed to use your -- 8 your term. We had a situation where, again, as you 9 understood it, and not all the evidence is in on this 10 point yet so I -- I won't be definitive on it. 11 But as you understood it, there were fires 12 out on the road, officers had to respond to the 13 situation, and -- and then the altercation followed, am I 14 right? 15 A: Correct. 16 Q: Did you see any parallels to what was 17 happening here? 18 A: Yes. I was cognisant that there was 19 a potential set up. 20 Q: So that -- so that it may well be 21 that some of the occupiers are sitting back, you have to 22 respond to what's going out -- on out there in the 23 parking lot, and you may be setting up -- being set up? 24 A: Oh, very much so, yes. 25 Q: And was that a concern at the time?
521 A: Sure. 2 Q: Well, let's deal with the -- the 3 cottages if I may. And you've articulated the concern 4 about the targeting of the cottages as a -- as a factor 5 that impacted upon you at the time. 6 And it was put to you a number of times 7 that nobody specifically said, and you agreed, that they 8 were moving on the cottages that particular night; do you 9 remember that? 10 A: Correct. Yes. 11 Q: And did that enable you to ignore 12 that factor? 13 A: I think I was obliged to be mindful 14 of it. 15 Q: And if we go back to the transcript 16 that we just reviewed with Mark Wright, we can see 17 contemporaneously, not now at this Inquiry, 18 contemporaneously that issue is being discussed as 19 between you and Mark Wright isn't it? 20 A: Oh, yes. 21 Q: And we've now seen that -- that a -- 22 a position was being taken in the parking lot for the 23 third time. First of all, we had the -- the incident 24 with the -- with the picnic tables, the barricaded picnic 25 tables, then the picnic tables in the campsite that were
531 removed, and now occupiers with weapons on the Sandy 2 Parking Lot, right? 3 A: Correct. 4 Q: And how, if at all, did that factor 5 into your concern about the potential danger to the 6 cottages. 7 A: Well, it was just simply a 8 progression of events, and I felt we had some obligation 9 to be mindful of that. 10 Q: Now Clayton George, at page 76, on 11 November the 8th, said this: 12 "Q: When the police officer in the 13 one cruiser pushed one of the picnic 14 tables slowly towards the fence, did 15 all of the occupiers go back behind the 16 fence, or do you recall? 17 A: No, I don't recall. 18 Q: But one thing is clear, and that 19 there was a feeling of being safe while 20 inside the fenced Park, right? 21 A: Yes. 22 Q: Okay. And that was obvious to you 23 that you had some safety while you 24 remained within the fenced Park, right? 25 A: Yes."
541 And a little bit earlier on, and I'm sorry 2 I should have started a little earlier in the -- in the 3 quote, excuse me... 4 5 (BRIEF PAUSE) 6 7 At page 75. 8 "Q: We've heard that assembled were 9 at least a dozen picnic tables out in 10 the Sandy Parking Lot area. The 11 question I have for you is this: 12 Here the police come and apparently one 13 of the cruisers slowly pushes one of 14 the picnic tables back in the direction 15 of the fence. 16 A: Yes. 17 Q: How was that responded to? 18 A: Like it was like a barricade with 19 the picnic tables. 20 Q: Right. I mean the idea was you're 21 out in the Sandy Parking Lot for a 22 couple of reasons. The first reason is 23 that as far as you were concerned, that 24 Sandy Parking Lot belonged to you and 25 your peoples, and you were perfectly
551 entitled to occupy it, right? 2 A: Yes. 3 Q: And that was one of the points 4 that was being made by being out there, 5 we're occupying the Sandy Parking Lot, 6 not just the interior? 7 A: Yes. 8 Q: And the other point that was being 9 made is that if you barricaded the 10 Sandy Parking Lot, it would prevent non 11 occupiers from using it to gain access 12 to the Park. That was the other 13 reason. 14 A: Yes. Yes, of course. 15 Q: And the other reason, Im going to 16 suggest, that you brought out all these 17 picnic tables and created a barricade, 18 was because you and the others could 19 then have some ability to control 20 access along Army Camp Road and East 21 Parkway Drive, am I right? 22 A: Yes. 23 Q: Well, you also felt that the 24 cottages were immediately beside the 25 Sandy Parking Lot area, you know which
561 cottages I mean, of course? 2 A: Yes, I do. 3 Q: These are along Lake Huron, 4 they're in a westerly direction from 5 the parking lot? 6 A: Yes. 7 Q: Well, you and the others also felt 8 that that property rightfully belonged 9 to you and your peoples, am I right? 10 A: Yes, I did. 11 Q: So, in theory, you and the others 12 could have continued into the cottages, 13 right? 14 A: Yes. Yes, but we didn't. 15 Q: No, you didn't, I understand. But 16 how did you communicate to the OPP, or 17 the cottagers, or others in the area 18 that this wasn't going to stop at the 19 Sandy Parking Lot area? You didn't 20 really communicate that at all, did 21 you? 22 A: No, because we had nothing to say 23 to the cops. 24 Q: Right, and one of the things that 25 the Commissioner is going to have to
571 address is communication, and the 2 breakdown of communication. 3 But the point that I'm really making 4 now is that first you took the army 5 camp, then you took the Park, then you 6 took the Sandy Parking Lot area to 7 restrict access along the public 8 street, to restrict access to the 9 parking lot. 10 There would be no way for someone to 11 know that you weren't going to be going 12 to the cottages next, because you never 13 communicated that to anybody; am I 14 right so far? 15 A: Yes." 16 Now, again we know they didn't go to the 17 cottages. 18 A: Correct. 19 Q: But back then, was that the concern-- 20 A: It was very -- 21 Q: -- that you had? 22 A: It was very much a concern. 23 Q: Now we also have heard that on 24 September the 5th, just the day before, Chief Bressette 25 had talked to you about rumours about the cottages being
581 taken to the East, and we see that in the scribe notes, 2 you remember that? 3 A: Yes. 4 Q: And again, was that a factor that had 5 to play upon you? 6 A: Sure. 7 Q: And it was suggested to you that the 8 absence of the actual cottager, and it turns out from Mr. 9 Henderson that it may well be that the cottager wasn't 10 absent at the time. 11 A: No, as I understand. 12 Q: But it was suggested to you by 13 several cross-examiners that the actual absence of that 14 cottager, from the closest cottage, removed this concern 15 as a factor, right or wrong? 16 A: Well, I certainly would argue that 17 that doesn't change the concern at all. 18 Q: And why not? 19 A: Well, I think we have a -- an 20 obligation to the property owners, whether they're 21 occupying their residence, or not occupying their 22 residence, to try and protect public -- public and 23 private property. 24 Q: All right, now of course the point's 25 been made, we now know that Dudley George is dead, and --
591 and property is less important than -- than human life. 2 Did -- did you see this as a factor -- 3 well, I'll ask you, did you see the decision to go down 4 the road as a factor increasing concern about personal 5 safety, or decreasing personal concern about safety, of 6 all involved? 7 A: Well, I mean, it was certainly going 8 to have a -- an impact on everyone's safety. Certainly, 9 in my wildest imagination, hadn't expected the 10 circumstances to turn out the way they did, of course. 11 I was hoping that, by using a Crowd 12 Management Team, that the sheer presence would preclude 13 any altercation with anyone else at all, as -- as the 14 days wore on. 15 Q: All right. And then we see in 16 Exhibit 444(b), Tab 82, if I can take you to that. 17 18 (BRIEF PAUSE) 19 20 Q: And at 496, and again this isn't 21 testimony at the Inquiry, this is -- these are your 22 thoughts back in September the 7th of 1995. 23 Mark Wright asks you: 24 "How's Coles taking this?" 25 And you say:
601 "He's been very supportive. I 2 explained what happened, we're doing 3 the best we can. You know and he 4 supported what we did, what we had to 5 do. 6 I mean, if we would have went in with 7 the crowd management unit [and it was 8 suggested to you and you agreed that 9 that probably should be] if he wouldn't 10 -- if we wouldn't have gone in with the 11 crowd management unit the next thing is 12 the people's cottages there. 13 Detective Sergeant Wright: That's 14 right. Like, where the hell do you 15 stop? That's right." 16 And was that your view back then? 17 A: Yes. That was -- that was an 18 expression I articulated the following day. 19 Q: All right. Now, let's turn to the 20 next factor that has been discussed as impacting upon the 21 decision to go down the road and that's the militancy of 22 the -- of the non-natives in the area. 23 And the Commissioner's already heard about 24 your -- about the contemporaneous concern about that 25 issue and I'm not going to go through that again. It was
611 -- well, I guess -- I guess I should say this at once, 2 that Commissioner Linden's going to have to wrestle with 3 this very delicate balancing act about, I mean, how far 4 you can keep withdrawing before you might, then, have a 5 fight between the non-native and the -- and the native 6 community and -- and you were alive to that, of course? 7 A: Very much so. 8 Q: And it was suggested to you, in 9 cross-examination, that Mark Wright told the cottagers at 10 that meeting to go home and he wouldn't have done that if 11 he thought that the cottages would have been invaded that 12 night. Remember you being asked about that? 13 A: Yes, yes. 14 Q: When he advised the cottagers of 15 this, was it before or after he apparently learned about 16 the events at the corner of Army Camp Road and East 17 Ipperwash? 18 A: It was prior to. 19 Q: I want to turn to the use of the bus 20 and again we hear discussion about it in -- in your 21 conversation with Mark Wright before the CMU is sent down 22 the road and I've already read out the passage: 23 "Looked like they're moving towards the 24 road, so they're going to try to take 25 that position again. We got that house
621 there." 2 Now again, you've -- you've been cross- 3 examined at length about -- about how the only factor 4 that was operating upon you was the -- was the damage to 5 the vehicle we now know to be Gerald George. 6 Was this a concern at the time, the school 7 bus? 8 A: Oh, sure. 9 Q: And Mr. -- I'm sorry. Mr. Horton put 10 to you a somewhat new theory as I -- as I heard it and 11 that was -- I want to make sure I get this right, that -- 12 that because of the history of the bus and its use at the 13 Army Camp, you fully contemplated -- indeed, expected, 14 that the bus would be used in the way that it was 15 deployed that night and you fully expected that police 16 officers would end up shooting at the bus deployed in 17 that way? Does that make any sense to you? 18 A: None whatsoever. 19 Q: I mean, let's -- let's go through 20 your expectations in that regard. 21 You've already said your expectation was 22 the CMU would come down the road; right? 23 A: Correct. 24 Q: Push the occupiers back into the 25 parking lot?
631 A: Yes. 2 Q: Or back into the Park? 3 A: Into the Park itself. 4 Q: Right? Would not enter the Park as 5 they were ordered not to do. 6 A: No, the direction was clear. 7 Q: Right? And then, did you reasonably 8 expect back then that the occupiers would then leave the 9 Park to engage armed officers, that there'd be an arrest, 10 that even assuming some of the facts most favourable to 11 the First Nations occupiers that they would then use the 12 bus to leave, to try to rescue a person who had been 13 arrested? 14 A: No. 15 Q: Was all of that foreseen to you back 16 before the CMU went down the road? 17 A: Not at all. 18 Q: Now if you look at Exhibit 444(B) 19 call 56 we actually see that this is a conversation that 20 you're having with Inspector Linton while you're in the 21 truck and he's in the command centre; am I right? 22 A: Correct. 23 Q: And -- and then you say at -- at the 24 middle of the first page: 25 "Okay. We've got one 10-92 so far
641 here. Things are going good. 2 Yeah?" 3 And then he says: 4 "All I heard was 10-92, you were 5 broken. Okay, one 10-92. Everything 6 seems to be going pretty good over 7 there, okay." 8 Now was that before or after you learned 9 that the bus had come out of the Park and that shots were 10 fired? 11 A: This was before the -- before the bus 12 came out. 13 Q: And what did you mean that things 14 were going pretty good? I mean, because on Mr. Horton's 15 theory, I guess things wouldn't only be going good if -- 16 if the bus came out and your officers ended up firing at 17 somebody. 18 A: Well at this point the occupiers had 19 gone back into the Park and there had been a prisoner 20 taken into custody and that was it so far. So it 21 appeared that, for the most part, the -- the operation 22 was over. 23 Q: Okay. Now the next factor that's 24 been talked about in the testimony is the departing women 25 and children. And this point is probably fairly self-
651 evident at this point, but one of the suggestions that's 2 been put to you is that perhaps the departing women and 3 children were tied to the presence of the gun trucks 4 moving alongside the army camp. 5 You heard that allegation? 6 A: Yes. 7 Q: And if I can just take you to û- to 8 two (2) memo books and Mr. Millar referred to these when 9 the topic came up. 10 The first is at Tab 38 of our materials 11 and this is Inquiry number 2003605. 12 And you recall that the -- the scribe 13 note, and I won't take you there, reflects that at 20:26 14 Mark Dew reports the native and women children moving out 15 as they report something is going to happen. 16 And that, just for the Commissioner's 17 benefit, is at page 74 of the scribe notes. We won't go 18 there. So that's at 20:26. 19 And we also heard a radio transmission 20 that reflected that the women and children had departed 21 past a checkpoint, remember that? 22 A: Correct. 23 Q: And here we have officer Irvine, who 24 I expect we'll hear, was a member of the TRU team, for 25 Wednesday, September the 6th of 1995, and you'll see at
661 the second page of the document, 2 "20:30. TRU call pager." 3 Maybe I'll ask you to read it. 4 Q: Yes, it's: 5 "TRU call (pager)." 6 Means they were paged out. 7 "Loaded 307, 311 and 'burbans." 8 That's -- that's their vehicle. 9 COMMISSIONER SIDNEY LINDEN: Excuse me, 10 just a minute, sir. 11 MR. PETER ROSENTHAL: What document are 12 you reading from? 13 MR. MARK SANDLER: This is Officer 14 Irvine's notes, document 2003605. 15 16 (BRIEF PAUSE) 17 18 CONTINUED BY MR. MARK SANDLER: 19 Q: I'm sorry, continue on. 20 A: It says: 21 "TRU call (pager) loaded 307, 311 and 22 'burbans." 23 That means -- that's the vehicles they 24 loaded. 25 "Set off for Forest. Cancelled [it
671 looks] near Northville. Back to 2 Pinery. Left 309 and 311." 3 309 and 311 would be their cube vans. 4 "In 'burbans, left Pinery." 5 So it means now they're travelling up the 6 road. In fact, they'd have Suburban vehicles. Two (2), 7 for lack of a better term, gun trucks left behind and 8 they would have taken the one cube van that's used as a 9 TOC vehicle. 10 Q: All right, and what does all that 11 tell you in -- in summary fashion? 12 A: Well, it means they -- they -- they 13 left the Pinery, in fact, after the transmissions that 14 you referred to earlier in the transcript, then they 15 travelled by unmarked -- Suburbans are unmarked 16 Suburbans, and the only marked vehicle would be one (1) 17 marked cube van. 18 Q: All right. If these notes could be 19 made the next exhibit, please? 20 THE REGISTRAR: P-493 your Honour. 21 COMMISSIONER SIDNEY LINDEN: P-493. 22 23 --- EXHIBIT NO. P-493: Document Number 2003605, 24 Officer Irvine's Notes. 25
681 COMMISSIONER SIDNEY LINDEN: Are we 2 getting close to a good point for a break, Mr. Sandler? 3 MR. MARK SANDLER: This would be fine. 4 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 5 Falconer...? 6 MR. JULIAN FALCONER: Good morning, Mr. 7 Commissioner. 8 COMMISSIONER SIDNEY LINDEN: Good 9 morning, sir. 10 MR. JULIAN FALCONER: Mr. Commissioner, 11 Mr. Sandler has filed the notes of Officer Irvine. If 12 Officer -- 13 COMMISSIONER SIDNEY LINDEN: Subject, 14 subject to being identified. 15 MR. JULIAN FALCONER: So Officer Irvine 16 will be testifying -- 17 COMMISSIONER SIDNEY LINDEN: Well, we 18 don't know that for sure, but we've doing that all along. 19 MR. JULIAN FALCONER: No, that's fair. I 20 just -- it wasn't -- 21 COMMISSIONER SIDNEY LINDEN: Yes. 22 MR. JULIAN FALCONER: -- said, that's why 23 I was -- 24 COMMISSIONER SIDNEY LINDEN: The 25 assumption is that if he's necessary, he'll be called.
691 But the notes are subject to being -- 2 MR. JULIAN FALCONER: Thank you. 3 COMMISSIONER SIDNEY LINDEN: û- properly 4 identified. Is that right? 5 MR. JULIAN FALCONER: Thank you. 6 COMMISSIONER SIDNEY LINDEN: You have to 7 speak into that mike. That mike isn't as good. 8 MR. MARK SANDLER: I believe that -- that 9 the way we left it when this issue had been raised before 10 is that given -- given the rules of the Inquiry, they're 11 going in -- 12 COMMISSIONER SIDNEY LINDEN: Yes. 13 MR. MARK SANDLER: -- and they'll -- 14 they'll have whatever weight you ultimately assign to 15 them. And that may be dependent upon whether the 16 officers themselves are called. 17 COMMISSIONER SIDNEY LINDEN: That's 18 exactly what I thought. 19 MR. MARK SANDLER: Right. 20 COMMISSIONER SIDNEY LINDEN: Thank you 21 very much. We'll break for a break now. 22 THE REGISTRAR: This Inquiry will recess 23 for fifteen (15) minutes. 24 25 --- Upon recessing at 10:13 a.m.
701 --- Upon resuming at 10:34 a.m. 2 3 THE REGISTRAR: This Inquiry is now 4 resumed. Please be seated. 5 6 (BRIEF PAUSE) 7 8 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 9 Sandler...? 10 MR. MARK SANDLER: Thank you, sir. 11 12 CONTINUED BY MR. MARK SANDLER: 13 Q: We are about to turn to concerns 14 about fire in the parking lot -- fires in the parking 15 lot. And we've already heard the radio transmissions 16 that communicated the information which may, in 17 hindsight, have been proven to be incorrect that there 18 was a fire in the parking lot before the CMU went down 19 the road. You heard that radio transmission? 20 A: Yes, I did. 21 Q: And how if all did that accord with 22 your belief at the time? 23 A: Well it -- it fit into the issue that 24 there was a potential risk to the properties that are 25 adjacent.
711 Q: And we actually hear that the -- 2 earlier in that day you have a telephone conversation 3 with Tony Parkin at 7:22 a.m. and the -- this is not in 4 the -- in 444(a) or B. It is part of Exhibit 428, which 5 is the audio exhibit that has been filed, and it's track 6 23 and was played by Mr. Millar on May the 18th at page 7 67 of the transcript, just for the benefit of My Friends 8 because that's the best we can do to -- to identify it. 9 A transcript of that conversation is at 10 Tab 6 of the materials that we've been provided and I 11 simply want you to have a look at that transcript for a 12 moment. 13 COMMISSIONER SIDNEY LINDEN: Sorry, Tab 6 14 of which -- 15 MR. MARK SANDLER: Tab 6 of our 16 materials, yes. 17 COMMISSIONER SIDNEY LINDEN: But which -- 18 MR. MARK SANDLER: That we provided to 19 you yesterday. 20 COMMISSIONER SIDNEY LINDEN: Oh, I'm 21 sorry I have to -- Yes. 22 23 CONTINUED BY MR. MARK SANDLER: 24 Q: And do you recall this conversation? 25 A: Yes.
721 Q: With the benefit of the transcript? 2 And can you tell the Commissioner, just very briefly, 3 what it is that -- that you're talking to Tony Parkin 4 about? 5 A: Well it's just an overnight briefing 6 is what it is. Basically giving him the update on the 7 evening before where there was some cruisers damaged as a 8 result of the fire on the roadway and the officers 9 responding to it. 10 Q: And -- and we see at page 2 of the 11 transcript you say: 12 "What they did is that area between the 13 first cottage and the fence to the 14 Park, which is Township or County 15 property, I don't know which, they 16 piled a whole slew of picnic tables in 17 there. We don't know why, you know, 18 they did it to create a humongous 19 bonfire. I've got somebody going down 20 there right now to check it out. 21 I've got MNR arranging some vehicles 22 and so on and I'll put the helicopter 23 up to provide the eye for cover to 24 cause it -- in the event that they 25 cause us -- that they try to cause us
731 any aggravation." 2 And then it says: 3 "I've got the night-time ERT teams, 4 they're just being debriefed now and 5 I'll have them just stand by while the 6 day shift ERT go in and take them out. 7 Okay? 8 Yeah. But I think we've got to get 9 them out of there, because if they set 10 a fire, w can't even get the damn fire 11 department in there to prevent it from 12 spreading to the next door house if 13 that's the way I think it is. 14 Yeah, I guess there'd be somebody 15 living there, obviously it's not just a 16 cottage. 17 Well I think it's -- it's not a year- 18 round residence I don't believe, but 19 it's a significant cottage in cottage 20 terms, right? From a public 21 perspective I think we've got to 22 address that quick. 23 Yeah, that's great." 24 So the concern that you're expressing, 25 before the escalation in the evening of September the
741 6th, is that in the incident that occurred the day 2 before, you've described the events that occurred, you've 3 now described the fact that you've got to deal through 4 ERT with the -- with the picnic tables that are -- that 5 have been set up in the parking lot and that one (1) of 6 the reasons that you have to do that is the concern about 7 how fire might spread to the nearby property? 8 A: Correct. 9 Q: Is that right? And would that 10 represent the same concern that -- that you'd have later 11 in the evening when hearing about fires either in the -- 12 in the parking lot or in close proximity? 13 A: Very much so. 14 Q: Now I want to turn to the -- to the 15 car damage or the Gerald George incident here and there's 16 been a lot of cross-examination about it and it's figured 17 prominently in the questions that -- that you've been 18 asked about. 19 We all know, if there's anything that's 20 clear at this Inquiry is that the information that you 21 had at the time was inaccurate on this incident, am I 22 right? 23 A: Right. 24 Q: And I expect that we're going to hear 25 from subsequent witnesses, I'm not going to try to piece
751 it together with you as to how accurate information 2 became inaccurate information, all right? 3 A: Sure. 4 Q: I mean, you don't know? 5 A: No, I don't know. 6 Q: And -- but, what I want to do is talk 7 to you a little bit about -- about the -- the correct 8 facts for a moment. 9 First of all, all of the factors that 10 we've discussed this morning -- and I won't list them 11 again, but you've heard them and you've testified to them 12 -- they all existed independently of the facts associated 13 with the Gerald George incident; am I right? 14 A: Oh yes, absolutely. 15 Q: And -- and, quite fairly, you said to 16 the Commissioner that it's pretty difficult to -- to kind 17 of figure out now, ten (10) years later, what -- what if 18 any impact the differences, as they now are known to you, 19 would have on the decision making process? 20 A: Correct. 21 Q: But what I want to ask you is this: 22 Let's assume that these were the facts that were known to 23 you and -- and even the Gerald George incident is still 24 the subject of -- of some differences in -- in -- in 25 perspective.
761 Let's assume that you knew that Gerald 2 George was a councillor who had spoken publicly against 3 the occupiers, right? And let's assume that you knew 4 that -- that one (1) of a group of individuals had 5 punched him in the face. And let's assume that you knew 6 that one (1) of the group of individuals had damaged his 7 car with a rock. 8 And let's assume that you knew that at 9 least one (1) and perhaps a number of the individuals who 10 were there at that relevant had clubs, sticks, or 11 baseball bats. And let's assume that you knew that this 12 was likely the same group that had been observed by Mark 13 Wright, given the proximity and location and time. 14 And let's assume that you knew -- and this 15 is according to Gerald George, but again is disputed -- 16 that -- that he left when the others in the group began 17 to move towards him, all right? 18 A: Sure. 19 Q: Now let's assume you knew all of 20 that, instead of knowing that -- that baseball bats were 21 used by a number of the occupiers to -- to damage his car 22 and that he didn't -- and that it was a third party as 23 opposed to Gerald George, a Kettle Point councillor; 24 right? 25 A: Right. Right.
771 Q: So knowing, in our hypothetical, all 2 of that, would that incident still have remained a factor 3 in -- in deciding whether or not the CMU had to be sent 4 down the road? 5 A: Very much so. 6 Q: And -- and why would that still have 7 remained a factor in determining whether the CMU should 8 be sent down the road? 9 A: Well, whether the fact the Gerald 10 George was someone who was at odds in his opinions, the 11 fact of the matter, we have to be mindful that we can't 12 permit that kind of behaviour regardless of who the 13 victim happens to be. 14 It just -- you're still dealing with the 15 fact that there has been an altercation; the "who" part 16 of it is really -- I mean it's a factor, but at the same 17 time, it doesn't matter that he's -- that -- that he is 18 an individual they know or an individual that has a 19 differing opinion. 20 It's still -- you still can't allow it to 21 happen and -- and that's basically one of the pieces that 22 brought some -- not necessarily attention, but awareness 23 to the activities that were going on in the area that 24 lead to the monitoring of -- of what was happening in 25 that particular area at that time.
781 Q: All right. And interestingly, 2 certainly in the telephone call that takes place with 3 Mark Wright, that actual component of the incident 4 doesn't seem to figure as prominently as some of the 5 other things that we talked about, does it? 6 A: True. 7 Q: Now I want to move ahead to Mr. 8 Rosenthal's allegation that you deliberately exaggerated 9 your testimony at the Warren George trial. 10 First of all, is that true? 11 A: No. 12 Q: And the Warren George trial was in 13 1997? 14 A: Yes, it was. 15 Q: And this had to do with... 16 17 (BRIEF PAUSE) 18 19 MR. PETER ROSENTHAL: As I'm quite sure 20 the transcript will show, Mr. Commissioner, I asked this 21 witness, "Did you exaggerate your testimony?" 22 I didn't say "deliberately." Did you 23 exaggerate your testimony and he said, No. 24 MR. MARK SANDLER: Thank you. 25 COMMISSIONER SIDNEY LINDEN: Thank you,
791 Mr. Rosenthal. 2 3 CONTINUED BY MR. MARK SANDLER: 4 Q: Well, I'll ask the question because - 5 - because I draw distinction between a mistake and -- and 6 deliberation. 7 Did you deliberately exaggerate your 8 testimony in any way? 9 A: No. 10 Q: And this trial took place in 1997 and 11 Warren George was the individual charged, amongst other 12 things, with criminal negligence in the operation of the 13 -- of the motor vehicle that was involved. 14 A: Right. 15 Q: And what Mr. Rosenthal put to you was 16 that -- was that, unlike your testimony here, where you 17 said, Yes, the damage -- the vehicle incident was one of 18 the two (2) prime factors, there was a key incident -- 19 there was the key incident. It was what brought it to 20 our attention. 21 He drew the distinction, based upon the 22 fact that when he asked you whether the vehicle incident 23 was central to the OPP being instructed to march down the 24 road, your answer was: 25 ôThat was the incident that brought to
801 our attention the activities that were 2 going on.ö 3 You wouldn't agree it was central, it was one of a number 4 of factors? 5 And then at the Warren George trial, you 6 said it was central. You remember that? 7 A: Yes. 8 Q: And -- and we'll later have the 9 opportunity to discuss with Commissioner Linden how 10 material that difference is. We won't be getting into 11 argument here. 12 But -- but one of the suggestions that Mr. 13 Rosenthal put to you, was that you're now saying that the 14 car incident was not central, because you recognize how 15 flawed your information was about it, okay? 16 A: Correct. 17 Q: That's what he put to you. And what 18 I'm going to suggest to you is, that in 1997 it was 19 already known, at the Warren George trial, that the 20 information about the Gerald George incident was flawed; 21 wasn't it? 22 A: Yes, that's fair. 23 Q: You were cross-examined on it, as a 24 matter of fact, weren't you? 25 A: Yes, yes, I was.
811 Q: Okay. And we actually see that the - 2 - that the facts in relation to the Gerald George 3 incident and -- and the limitations upon the use that was 4 made of your particular evidence at that trial, are 5 articulated in the reasons for judgment of Justice 6 Pockele and the Court of Appeal judgment that relate to 7 Warren George and I'm not going to -- I'm not going to go 8 through it with Deputy Commissioner Carson now, but I am 9 going to ask that those two (2) documents be marked as 10 exhibit. 11 I don't know that I would have to prove 12 them in any event, because they're -- they're -- 13 COMMISSIONER SIDNEY LINDEN: This is -- 14 MR. MARK SANDLER: -- the Court 15 judgment -- 16 COMMISSIONER SIDNEY LINDEN: -- the same 17 point that Mr. Falconer was making earlier, I presume. 18 Is it? 19 MR. JULIAN FALCONER: Yes. 20 COMMISSIONER SIDNEY LINDEN: Is it right, 21 Mr. -- 22 MR. JULIAN FALCONER: Yes. 23 COMMISSIONER SIDNEY LINDEN: Well, we've 24 -- it really doesn't -- 25 MR. JULIAN FALCONER: Well, itÆs not
821 about authenticity. 2 COMMISSIONER SIDNEY LINDEN: I'll put it 3 to the test. 4 MR. JULIAN FALCONER: I concede readily - 5 - I concede readily that Mr. Sandler didn't manufacture 6 the judgments on his computer. It's not about 7 authenticity. It's -- it's -- there -- there isn't even 8 a wisp of relevance of the judgments in those cases to 9 the questions being asked of the Deputy. 10 COMMISSIONER SIDNEY LINDEN: Well, we 11 don't know that yet. I'm not sure -- 12 MR. JULIAN FALCONER: Well no. With 13 great -- 14 COMMISSIONER SIDNEY LINDEN: -- what the 15 question is. 16 MR. JULIAN FALCONER: With great respect, 17 Mr. Commissioner, when counsel gets to the point where 18 they say, I am now filing this as an exhibit, they've got 19 there. In other words, either they've set a foundation 20 or they haven't. 21 If he's going to ask questions that lay 22 the foundation -- the problem is I have to get up when he 23 goes to file it as an exhibit, that's the only time I can 24 get up, because after he files it, I can't object to its 25 filing later.
831 COMMISSIONER SIDNEY LINDEN: Do you want 2 to speak to that, Mr. Sandler? 3 MR. MARK SANDLER: Yes. I -- I was just 4 going to suggest this. What we can do, is I can have 5 Deputy Commissioner Carson read through the entire 6 reasons for judgment of Justice Pockele, and read through 7 the entire reasons of -- in the Court of Appeal, and 8 confirm for me that no reliance was placed by -- in 9 either -- in either judgment upon any purported 10 misinformation on his part about the Gerald George car. 11 And secondly -- and secondly, the -- the 12 limited use that was made of -- of his evidence. But it 13 seems to me that applying some common sense, instead of 14 having him go through that exercise, we file the 15 documents, and we deal with that as a matter of argument; 16 that's all I am suggesting. 17 COMMISSIONER SIDNEY LINDEN: Yes. 18 MR. MARK SANDLER: And it -- it just 19 seems to make more sense to me. 20 COMMISSIONER SIDNEY LINDEN: Perhaps -- 21 MR. MARK SANDLER: I could do it in the 22 way Mr. Falconer suggests. 23 COMMISSIONER SIDNEY LINDEN: No, I 24 understand. But that this being a public inquiry, we've 25 been dealing with the question of exhibits a little
841 differently. I'm going to -- 2 MR. JULIAN FALCONER: I accept -- I 3 accept that. 4 COMMISSIONER SIDNEY LINDEN: We have -- 5 all of the documents that are in the database, 6 technically, are accessible and available, depending on 7 weight, of course. 8 MR. JULIAN FALCONER: No, no. And I 9 accept that. 10 COMMISSIONER SIDNEY LINDEN: You do? 11 MR. JULIAN FALCONER: Yes, I do. 12 COMMISSIONER SIDNEY LINDEN: Okay. 13 MR. JULIAN FALCONER: Well -- 14 COMMISSIONER SIDNEY LINDEN: Well, I want 15 to understand what your point is. 16 MR. JULIAN FALCONER: And the fact that 17 by the way that I accept that, I real -- I realize isn't 18 determinative of a lot. I -- but I simply wanted you to 19 know, Mr. Commissioner, I understand that. 20 But having said that, Mr. Sandler has now 21 spoken to the heart of my objection. The heart of my 22 objection is it -- it may well be that the judgments of 23 those Courts are relevant for some other purpose than 24 what he's trying to do today. 25 But for him to suggest because Mr.
851 Rosenthal cross-examined this witness about evidence he 2 gave on a previous day, evidence that was, in essence, 3 inconsistent with what he knew back then, right? 4 The fact that a judge down the road either 5 relied heavily, or a small amount on that evidence has 6 nothing to do with the credibility question Mr. Rosenthal 7 was raising with the witness at the time. And now Mr. 8 Sandler is trying to tell this commission, no harm, no 9 foul. 10 Even if he was inconsistent, look they 11 didn't rely on blood. What does that, with great 12 respect, what does that have to do with the witness? 13 COMMISSIONER SIDNEY LINDEN: I 14 understand. 15 MR. JULIAN FALCONER: And that's my 16 concern. 17 COMMISSIONER SIDNEY LINDEN: I understand 18 your point now. 19 MR. JULIAN FALCONER: It's a relevance 20 issue. 21 COMMISSIONER SIDNEY LINDEN: Yes. Mr. 22 Rosenthal...? 23 MR. PETER ROSENTHAL: Thank you. Not in 24 relation to my name coming in that respect, but as Ms. 25 Esmonde reminds me, I attempted, at one point, to file
861 the judgment in the case of Regina and Cecil Bernard 2 George. And that -- that attempt was resisted. And we 3 were not allowed to file that -- the judgment. 4 And it would seem that, consistency at 5 least, would support Mr. Falconer's position. 6 COMMISSIONER SIDNEY LINDEN: Well -- 7 MR. MARK SANDLER: What I suggest, 8 Commissioner, is I'm going to move on. We'll debate -- 9 COMMISSIONER SIDNEY LINDEN: That's fine. 10 I was just going to suggest you do that, if you're 11 suggesting it. Let's do it. 12 MR. MARK SANDLER: I'm going to move on. 13 COMMISSIONER SIDNEY LINDEN: Move on. 14 MR. MARK SANDLER: I suspect that at the 15 end of the piece, you'll have to look at all of these 16 judgments and -- 17 COMMISSIONER SIDNEY LINDEN: Yes. 18 MR. MARK SANDLER: -- they'll all be 19 filed without objection. But -- 20 COMMISSIONER SIDNEY LINDEN: But whether 21 they're filed or not, I can still look at them. 22 MR. MARK SANDLER: I agree. 23 COMMISSIONER SIDNEY LINDEN: Carry on. 24 Carry on. 25 MR. MARK SANDLER: I didn't think it was
871 a contentious matter, but I'll -- I'll take My Friend's 2 points, not agreeing with it, but I'll take them and I'll 3 move on. 4 COMMISSIONER SIDNEY LINDEN: Well -- 5 thank you. 6 7 CONTINUED BY MR. MARK SANDLER: 8 Q: I do want to deal next with Exhibit 9 410, which are your notes, and if I can take you to Tab 10 4. Now you may not have them tabbed in the same way as 11 we do, but what I'm looking for -- your scratch pad with 12 the entry Gerald George in the top right corner; do you 13 remember that? 14 COMMISSIONER SIDNEY LINDEN: Well, this 15 would be -- 16 MR. MARK SANDLER: This would be in 17 Exhibit 410 -- 18 COMMISSIONER SIDNEY LINDEN: Yes, I know 19 which one. 20 MR. MARK SANDLER: -- which are the 21 handwritten notes for '95 and '96. 22 COMMISSIONER SIDNEY LINDEN: Here it is. 23 24 (BRIEF PAUSE) 25
881 CONTINUED BY MR. MARK SANDLER: 2 Q: And have you found that entry? 3 A: Yes, I have. 4 Q: Now you recall, you and Mr. Rosenthal 5 had a dialogue about whether the -- the words here, 6 Gerald George, signified the time or -- or gave some 7 indication by its placement in your scratch pad, as to 8 the time that you knew that Gerald George was the victim 9 of the car incident. 10 Do you remember that line of 11 cross-examination? 12 A: Right. 13 Q: And you've already responded to Mr. 14 Rosenthal; I just want to point out one (1) thing, and 15 ask you about it. 16 Gerald George is -- is written in -- and 17 you said this is a scratchpad -- at the top right corner 18 of that page, am I right? 19 A: Correct. 20 Q: And what I'm interested in is 21 immediately below Gerald George, there's some 22 information. Does that information have anything to do 23 with the Gerald George incident? 24 A: No, not at all. 25 Q: And if you look at the previous page,
891 does the previous page have any information on it that 2 has anything to do with the Gerald George incident? 3 A: No. 4 Q: Okay. That's all I'm going to ask 5 you about that document. 6 Now, Mr. Rosenthal took you to Exhibit 7 444(b), Tab 71. 8 9 (BRIEF PAUSE) 10 11 Q: And he suggested to you that by this 12 point in time, you knew that the only perpetrator in 13 connection with the car incident was Worm George; do you 14 remember him asking you those questions? 15 A: Yes. 16 Q: And you told him that you didn't 17 agree. You knew there was one (1) involved, but thought 18 that there were others involved as well; do you remember 19 that? 20 A: Yes. 21 Q: And I just want to take you to page 22 441 of that same transcript, and here you are saying -- 23 and this is to the background -- you're speaking to the 24 background here: 25 "Stanley --"
901 And that's Stan Korosec, I take it? 2 A: Correct. 3 Q: "Does the -- when that deal happened 4 this afternoon to that car at the 5 corner there, when the car got thumped 6 upon there... 7 Yeah? 8 It was thumped with baseball bats? 9 That's my understanding. We have a 10 statement here from -- and then let her 11 go. Okay?" 12 A: Right. 13 Q: And did that represent your 14 understanding and -- as -- 15 A: Yes. 16 Q: -- confirmed by Stan Korosec? 17 A: Correct. 18 Q: Okay. You didn't think that Warm -- 19 Worm George used two (2) baseball bats at the same time, 20 did he? 21 A: No. 22 Q: And I want to turn to what -- what I 23 will later submit is one (1) of the most important issues 24 at this Inquiry, and that is miscommunicated intentions 25 between occupiers and the OPP, all right?
911 And again, I'd like to do this without the 2 benefit of -- of hindsight, because there's been quite a 3 bit of evidence here that suggests that the occupiers 4 were under the misimpression that you were going into the 5 Park, and the Commissioner will have to evaluate that 6 evidence together with all of the evidence in determining 7 how communications can be addressed here. Okay? 8 A: Sure. 9 Q: But I just want to deal with your 10 state of mind -- your state of mind, and the occupiers' 11 state of mind at the time, okay? 12 We've -- I've already read to -- to you 13 and to the Commissioner what Clayton George acknowledged, 14 that there was no interest in communicating with the OPP. 15 We've heard that Mark Wright was told to go "fuck off". 16 We're going to hear some more evidence 17 that, "we'll do our talking with guns", when he 18 approached on the 6th, and Clayton George saying we 19 understand -- he understands that there'd be no way of 20 knowing that they're not going into the cottages. 21 So, there seems to be a -- a lack of 22 communication on -- on one (1) side about the intentions 23 of the occupiers, you see that, don't you? 24 A: Oh, yes. 25 Q: And -- and you've reflected that
921 that's a factor, that -- that you had a certain state of 2 mind about their intentions? 3 A: Yes. 4 Q: Now, you've been questioned 5 extensively about success, or lack of success that the 6 OPP had in communicating its intentions not to go into 7 the Park. 8 A: Right. 9 Q: Right? And one (1) of the things 10 that you've acknowledged is that -- is that, you know, if 11 -- if you'd thought about a bullhorn, you're not 12 convinced that it -- it would have changed the -- the 13 dynamic of the situation given the relationships, but it 14 -- it was a fair suggestion, and you adopted it, right? 15 A: Sure, sure. 16 Q: But, I want to deal with your state 17 of mind at the time, because you told Mr. Horton, and 18 others that you felt that the OPP's actions, and I want 19 to separate out actions and -- and -- and statements for 20 a moment, as he did, sent a clear message that the OPP 21 was not going into the Park. 22 And -- and I want to discuss with you what 23 the actions were that contributed to that belief, rightly 24 or wrongly, that the message was clear that you weren't 25 going into the Park, okay?
931 A: Sure. 2 Q: 1) You hadn't gone into the army 3 camp to physically remove the occupiers, when it was 4 occupied in May '93? 5 A: Correct. 6 Q: Right? And was that, or was that not 7 a factor in -- in -- in your state of mind? 8 A: Yes. 9 Q: 2) You hadn't gone into the army 10 camp to attempt to physically remove the occupiers when 11 the built up area was occupied in July '93 -- even -- 12 '95, even though the take over involved allegedly 13 criminal activity, right? 14 A: Correct. 15 Q: And was that, or was that not a 16 factor in your state of mind? 17 A: Sure. 18 Q: 3) When the fenced-in boundaries of 19 the Provincial Park were occupied on September the 4th, 20 the OPP didn't go into the Park to eject the occupiers, 21 or even remain within the Park to attempt to physically 22 remove them, am I right? 23 A: That's correct. 24 Q: And again, back then, not now, did 25 you think that sent a message?
941 A: I believe so. 2 Q: When Judas George and others 3 confronted OPP officers on September the 4th, smashed the 4 window of a cruiser, and threw a flare towards an 5 officer, the OPP withdrew. 6 A: Yes, we did. 7 Q: Did you feel that that sent a 8 message? 9 A: Yes. 10 Q: When the altercation between the 11 police and the occupiers took place on the evening of 12 September the 5th, we've heard that police did not go 13 into that Park, period, right? 14 A: Correct. 15 Q: And on your instructions not to go 16 into that Park, right? 17 A: Correct. 18 Q: And did that impact upon whether you 19 believed that the action that was taking place on 20 September the 6th sent a clear message that you were not 21 going into the Park? 22 A: Yes. 23 Q: Going back for a moment, because I -- 24 when the altercation between the police and the 25 occupiers, on the evening of September the 5th, took
951 place, and the police did not go into the Park, you 2 recall that? 3 A: Yes. 4 Q: Did that send a message in your mind? 5 A: Yes, it did. 6 Q: When the picnic tables and the camp 7 site in the Sandy Parking Lot during the night of 8 September the 5th, and early morning of the September the 9 6th were removed, but the police did not enter the Park, 10 and did not follow the two (2) individuals into the Park, 11 did that, in your mind, send a message? 12 A: Very much so. 13 Q: In that regard, I'll just interrupt 14 there, and take you to Exhibit 444(a), Tab 30. And this 15 is a conversation in the morning of September the 6th 16 with Jim Hutchinson, and at page 231, after you talked 17 about the removal of the picnic tables, and the tents, 18 and the two (2) gentlemen who went over the fence, you 19 see at the top of 231: 20 "So we scooped that, so we kind of made 21 a point that there was a line in the 22 sand here. 23 Hutchinson: Exactly." 24 You see that? 25 A: Yes.
961 Q: And what were you communicating when 2 you told Hutchinson that you've made a point that there's 3 a line in the sand? 4 A: That they can't take their activities 5 out into the public parking lot there. 6 Q: And did that represent your state of 7 mind as to whether that message had been communicated? 8 A: Yes. 9 Q: Now, I read out earlier Clayton 10 George testimony that after that -- after the altercation 11 between the police and the occupiers on the evening of 12 September the 5th, he felt secure as long as he was in 13 the Park, and again, did that accord with your 14 understanding as to the message that had been sent? 15 A: Yeah, that would make sense. 16 Q: When the police tried to speak with 17 the occupiers, whether Marg Eves, Mark Wright, did they 18 respect the fence lines and not enter the Park property? 19 A: Very much so, to the point that, I 20 think there's photographs of that very attempt in the 21 media accounts. 22 Q: And did that affect your state of 23 mind? 24 A: Yes. 25 Q: Now we've heard, or we will hear,
971 that Mark Wright told Bert Manning, amongst other things, 2 that there were arrest warrants, but there's, I'm going 3 to suggest the evidence will demonstrate, that it was 4 never suggested that the police were coming in to execute 5 them. 6 Instead, he advised Mr. Manning that the 7 MNR was going to be obtain -- obtaining an injunction, 8 and we've actually seen reference to that in the scribe 9 notes that Commissioner Linden heard yesterday -- 10 A: Correct. 11 Q: Right? 12 A: Correct. 13 Q: You knew that he had told them about 14 the MNR injunction being applied for? 15 A: Right. 16 Q: And does it surprise you that Mark 17 Wright would not indicate that they were coming into the 18 park to execute the arrest warrants? 19 A: No. 20 Q: Is that consistent with your state of 21 mind? 22 A: Very much -- 23 Q: As to the message that was being 24 communicated? 25 A: Yes, it is.
981 Q: Now, I prematurely asked you about 2 the actual confrontation, but during the actual 3 confrontation we've heard that the CMU withdrew to a 4 defensive position once the occupiers fled back into the 5 Park, and that was on your direction? 6 A: Yes, it was. 7 Q: And what message did you think was 8 being communicated by that action? 9 A: That as long as they stayed in the 10 Park there would be no more activity from the police. 11 Q: And I expect that there has been some 12 evidence, and there will be some evidence, that rocks, 13 and sticks, and firebrands were raining down on the OPP 14 officers in the parking lot after that, but that they did 15 not enter the Park to stop that activity? 16 A: Correct. 17 Q: And does that accord with your 18 direction? 19 A: Very much. 20 Q: And what message did you feel that 21 that kind of conduct, on the part of the OPP, would send 22 to the occupiers? 23 A: That they should just remain in the 24 Park. 25 Q: And we've heard, and we will hear,
991 that after the occupiers left the Park to engage the 2 officers, and after an arrest was made, the OPP was 3 withdrawing again when the car and bus left the Park? 4 A: Correct. 5 Q: The message? 6 A: We were leaving the area. 7 Q: Now, Clayton George and Glenn 8 Bressette, who I've read out earlier, also gave evidence 9 that -- that the officers did not touch anyone once the 10 occupiers withdrew to behind the fence. 11 Both of them said that, and again, did 12 that accord with your understanding as to the message 13 that had been sent by the OPP? 14 A: Yes. 15 Q: Now, apart from the actions that 16 we've just spent time talking about together, let's -- 17 let's talk about the communications. 18 Mr. Horton suggested to you that if you 19 wanted to communicate that there'd be a problem if the 20 occupiers went into the Sandy Parking Lot, then Mark 21 Wright could have communicated that to Bert Manning, 22 right? 23 A: Yes. 24 Q: That's his allegation? 25 A: Right.
1001 Q: Right? 2 A: Right. 3 Q: Now, Mark Wright met Bert Manning on 4 the afternoon of September the 5th, did he not? 5 A: Yes, he did. 6 Q: Now, was that before or after the 7 barricade of picnic tables in the parking lot? 8 A: before. 9 Q: Was that before or after the 10 overnight setting up of the camp with more picnic tables 11 in the parking lot? 12 A: Before. 13 Q: And to state the obvious, was it 14 before or after the incident with the car damage and the 15 baseball bats at the corner? 16 A: Before. 17 Q: So I mean, I want to ask you, was the 18 Sandy Parking Lot a prominent issue for you or your team 19 as of the time that Mark Wright met with Bert Manning? 20 A: No. 21 Q: When Mark Wright returned on 22 September the 6th, and we know that's after some of these 23 incidents have taken place, right? 24 A: Correct. 25 Q: In the Sandy Parking Lot?
1011 A: Yes. 2 Q: The evidence will be that nobody 3 would speak with him other that to say, "we'll to -- do 4 our talking with guns"? 5 A: Correct. 6 Q: I take it that's not entirely 7 conducive to a discussion about the Sandy Parking Lot? 8 A: Not in my view. 9 Q: Now, Mr. Horton said, well, what was 10 there to communicate? Your only message was don't 11 trespass. 12 And in that regard, I want to take you to 13 Mark Wright's typewritten notes, Exhibit 426, page 37. 14 15 (BRIEF PAUSE) 16 17 MR. MARK SANDLER: I forget the Inquiry 18 number. Perhaps the -- the actual exhibit could be 19 provided to -- to the Deputy Commissioner. 20 COMMISSIONER SIDNEY LINDEN: Is that in 21 your binder of materials? Is it in your binder? 22 MR. MARK SANDLER: I have it in -- in 23 handwritten notes. Excuse me for a moment. 24 25 (BRIEF PAUSE)
1021 MR. MARK SANDLER: Yes, we've got them at 2 Tab 5 of our materials. Ms. Tuck-Jackson has reminded 3 me -- 4 COMMISSIONER SIDNEY LINDEN: Yes. Yes. 5 MR. MARK SANDLER: -- that we did have 6 them there. 7 COMMISSIONER SIDNEY LINDEN: Got them. 8 9 CONTINUED BY MR. MARK SANDLER: 10 Q: And this is Inquiry Number 1002888. 11 And I'm going to ask you to turn to that portion of the 12 notes. It's at page 3 where Mark Wright records his 13 meeting with Bert Manning. And he says this -- do you 14 have that? 15 A: Yes, I do. 16 Q: "I spoke to Bert Manning at the gate. 17 I told him that we would like to open a 18 dialogue and discuss the situation. He 19 said that he did not represent the 20 people, but he was happy that his 21 people now had their ancient burial 22 ground. 23 I asked if they were organized, and he 24 said that they were not organized. He 25 said that the Elders had to meet later
1031 in the day, and that I should attend 2 the Park the next day. Returned back 3 to the Command Post and briefed 4 Inspector Carson. At this time I told 5 Inspector Carson that I had told Bert 6 Manning that the people at the Park 7 were trespassing, and had to leave. 8 I also told him that it was my 9 understanding that MNR would attempt to 10 obtain an injunction from the Courts." 11 I mean do you interpret that as a -- as a 12 message only that you're trespassing and get out? 13 A: No. There was certainly more 14 substance than that. 15 Q: Do you see anything inappropriate in 16 the tone or language of Mark Wright's comments to Bert 17 Manning, if accurately reported by Mark Wright there? 18 A: Not at all. 19 Q: Now, communicating to him -- Mr. 20 Manning that the MNR would be seeking a Court Injunction, 21 would suggest that there's going to be a Court process in 22 place before any action's taken, would it not? 23 A: Correct. 24 Q: Now, it was suggested that -- that 25 you were portraying, in your evidence -- or you were
1041 suggesting that the lack of a leader was the only 2 impediment to communicating with the occupiers, and that 3 wasn't a legitimate impediment. 4 Was that the only impediment in 5 communicating with the occupiers? 6 A: No. 7 Q: What do you mean? 8 A: Well, we were prepared to talk with 9 anybody. It didn't have to be someone who was a self 10 appointed, or elected leader, so to speak. We were 11 prepared to discuss with -- with anyone who would open 12 some discussion. 13 But we were met at every turn with no -- 14 no ability to strike up that dialogue. 15 Q: All right. Not only no ability to 16 strike it up, but some positive indications that people 17 didn't want to talk to you? 18 A: Well, my -- my perception was there 19 was every effort to avoid it. 20 Q: Now, in fairness, one of the things 21 that -- that we should note now is that from 1995 to 2005 22 much has changed in connection with the OPP relationship 23 with the First Nations community, has it not? 24 A: That's fair, yes. 25 Q: And again, Commissioner's going to
1051 hear all about this later on, but I simply ask you now, 2 there's a great deal of networking going on between the 3 First Nations community -- with the First Nations 4 community and the OPP than ever existed in 1995, is there 5 not? 6 A: Oh, very much so. 7 Q: Liaison groups and the like? 8 A: Yes. 9 Q: Resources that could be turned to in 10 the event of difficulties in communication? 11 A: Yes. 12 Q: All right. And at the -- at the risk 13 of stating the obvious and a -- and a Commissioner well 14 known for her commitment to First Nations issues. 15 A: Very supportive, 16 Q: Now, you were asked by Mr. Horton 17 whether there was any evidence that it was actually 18 communicated to the Occupiers that as long as they stayed 19 in the Park, there was no difficulty and we talked about 20 how you felt that actions sent that message. 21 You talked about the difficulty in 22 communicating any message, but there is also some 23 evidence, I expect, that bears upon that issue as well -- 24 actual communication. 25 During the incident with the barricaded
1061 picnic tables and the officers' attendance to address 2 them, we heard evidence from Marlin Simon that: 3 "The police wanted us to go back into 4 the Park and told us to leave." 5 Are you aware of that evidence? 6 A: No. 7 Q: There's also material that relates to 8 Officer Gransden and if I can take you to Tab 40 of the 9 materials that we've provided. 10 11 (BRIEF PAUSE) 12 13 Q: Do you have that? 14 A: Yes, I do. 15 Q: These are the notes of Officer 16 Gransden and if I can take you to the entries for 17 September the 5th at page 71 of his notebook, this is 18 Inquiry Document 2005413. 19 And could you read the entry at 22:15 on 20 September the 5th? 21 A: Yes. 22 "Request for assistance. Units at Army 23 Camp Road and East Park Drive re: 24 natives blocking road access to beach 25 area with a steel guardrail and picnic
1071 tables. 2 On arrival, a police cruiser pushed 3 tables -- pushed away tables. Native 4 advised to leave or be arrested -- 5 mischief. They start to walk to the 6 fence line and are escorted back to 7 Provincial Park. While in verbal 8 confrontation with natives, party 9 throws sand and dirt in my face and 10 eye..." 11 Q: All right. I'll -- I'll stop you 12 there. 13 A: Okay. 14 Q: I simply wanted to focus on: 15 "Natives advised to leave or be 16 arrested for mischief. They started to 17 walk to the fence line and were 18 escorted back to the Provincial Park." 19 A: Correct. 20 Q: Is that consistent with the OPP 21 direction that in the Park they're safe; outside of the 22 Park, it's an issue? 23 A: Correct. 24 Q: And -- and some communication to that 25 effect?
1081 A: Yes. 2 Q: Now I'd like to turn, if I may, to 3 some of the options that were put to you other than the 4 option of sending the CMU down the road that day, okay? 5 A: Sure. 6 Q: And, one (1) of the functions of a 7 Public Inquiry, of course, is to explore what options 8 might have been available to you in an evaluation of -- 9 of this confrontation and you -- you understand that and 10 accept it? 11 A: Sure. Oh, very much so. 12 Q: But I want to ask you about the -- 13 the options that were presented to you in this somewhat 14 complicated dynamic. One of the options that was 15 suggested to you, and which there is obviously some 16 discussion about within the scribe notes and as 17 background to one of the taped conversations, is 18 evacuating the cottages, ceding the parking lot, 19 basically, and doing nothing about the activities within 20 the parking lot. 21 Did you regard that at the time, and 22 again, I don't want you to put on a -- a retroscope and 23 talk about we know now, but based upon the information as 24 -- as you knew it back then, was that an option that made 25 sense to you?
1091 A: We talked about that option but it, 2 in my view, wasn't a viable option. 3 Q: And why not? 4 A: Again, because of the proximity of 5 the cottages there and the insinuations we had had 6 previous about the cottages being next, that if we 7 allowed that to happen, the cottages could be damaged or 8 entered, et cetera, with no ability for the police to 9 provide any protection whatsoever. And I felt we had an 10 obligation to be able to do that or provide that. 11 Q: And -- and you've already discussed 12 the fact that what message that would send to a militant 13 cottage community, which is the other consideration you 14 had on the other side as well? 15 A: Well, I was -- certainly was very 16 aware of the community frustration and, quite frankly, in 17 my view, the meeting that Mark Wright had with them -- or 18 with that group on the afternoon of the 6th certainly 19 highlighted the level of frustration that it was getting 20 to. 21 Q: Well, tell me this. Let's assume 22 that you'd done that, you evacuate the cottages, the 23 checkpoints are back some distance from the -- from the 24 corner; right? 25 A: Correct.
1101 Q: Because we know that the checkpoint 2 was moved back, because you couldn't have it right up in 3 the face of this activity; right? 4 A: Right. 5 Q: So, let's say, the checkpoints are 6 back, the cottages are evacuated and -- and more and more 7 occupiers pour into the parking lot, with more and more 8 weapons and with vehicles, and bonfires are being set of 9 picnic tables and so on. 10 So the numbers increase, the weapons 11 increase, the fires grow; what do you do then? 12 A: The only option is to keep moving 13 back, I mean you just -- you have no ability to deal with 14 it. 15 Q: What about the option that was 16 proposed, namely that, why didn't you just send kind of a 17 discreet arrest team down to arrest the people on the 18 corner of -- on the corner of the intersection? 19 A: Well -- 20 Q: Was that a viable option? 21 A: Well, that option, I -- I would 22 suggest, we saw the results of that type of option on the 23 evening of September 4th when the group came into the 24 Park, that when there was a small group of officers they 25 simply took advantage of that opportunity and resulted in
1111 violence and damage, and it was felt necessary to 2 withdraw to avoid injury. 3 So I -- I couldn't see any reason that I 4 could expect the behaviour to be any different if I sent 5 a small group in. 6 Q: Again, the idea of being an 7 overwhelming number, supposedly, is -- is going to 8 intimidate and prevent that kind of -- 9 A: Oh, very much. 10 Q: -- pitch battle? 11 A: That's -- that's a primary 12 psychologically component of using a crowd-management 13 team. 14 Q: Now what about another option. Mr. 15 Rosenthal put to you, quite fairly, the -- the option 16 that, you know, if the only concern -- and I'll ask you 17 about that -- the only concern is a citizen kind of 18 tripping over these people acting aggressively with 19 baseball bats in the corner and so on, you could kind of 20 impose a complete blockade on the area -- I don't think 21 Mr. Rosenthal -- 22 COMMISSIONER SIDNEY LINDEN: Just a 23 minute, Mr. Sandler. 24 MR. MARK SANDLER: -- likes my 25 characterization of this option.
1121 COMMISSIONER SIDNEY LINDEN: Just wait a 2 minute. 3 MR. PETER ROSENTHAL: I'm glad that you 4 characterized it as fair, but you should fairly 5 characterize the option. I didn't preface it with only 6 concern. 7 And the record will show that he indicated 8 that the option, and I believe Mr. Sandler was about to 9 put to the witness, was accepted by the witness as a 10 viable option, given the concerns. 11 I didn't say any specific concern, I just 12 said a general option; and we can see the record for 13 that. 14 MR. MARK SANDLER: I -- I can live with 15 that. That's fine. 16 COMMISSIONER SIDNEY LINDEN: Thank you, 17 Mr. Rosenthal, again, for setting the record straight. 18 19 CONTINUED BY MR. MARK SANDLER: 20 Q: All right. So I want to ask you 21 because -- because my interpretation of what you've said 22 to Mr. Rosenthal is that you acknowledged to him that it 23 was an option to address what he'd raised, but -- but you 24 didn't accept, in hindsight, that it was an option that 25 you ought to have adopted and the transcript will speak
1131 for itself and we'll deal with it later. 2 But let's talk about the option, let's get 3 past all of that. Here's the option that's being 4 presented to you. 5 Let's shut down the area, let's -- the 6 checkpoints are at some distance back. We'll blockade 7 the area, we'll -- we'll tell anybody coming up, either 8 don't go there at your peril or we're going to tell them 9 they can't come through, whether native or non-native, 10 that's the option. 11 Was that a viable option? 12 A: Not in my view. 13 Q: Why not? 14 A: Well, quite frankly, I don't think 15 the public were prepared to accept that and I -- and 16 quite frankly I think the consequences of that would have 17 been more difficult to deal with. 18 Q: And of course, we're saying all this 19 without the benefit of what we -- what we know later. 20 Because if we'd known later what happened, every option 21 looks better than the option that was pursued -- 22 A: Sure. 23 Q: -- doesn't it? 24 A: Very much so. 25 Q: But what I want to ask you about in
1141 connection with the blockade, first of all, did you feel 2 confident that you could control access to the area by 3 those coming in, in support of the occupation? 4 A: No. 5 Q: And the second thing I want to ask 6 you is this: that we actually heard from -- from Glenn 7 Bressette that one of the reasons they thought the police 8 were going to do something that night was because you 9 stopped letting traffic go through once it got dark, 10 okay? 11 A: Okay. 12 Q: So, again, it's kind of an 13 interesting part of the dynamic here that -- that once 14 you did restrict access to the area, closely to the time 15 that the CMU went down the road, it was sending a message 16 to at least that occupier that, ah, you're coming into 17 the Park because you're isolating them; right? 18 A: Correct. 19 Q: And you see that it could send that 20 message as well, if you created a blockade? 21 A: Yes. 22 Q: I'm certainly glad that Commissioner 23 Linden's going to figure all of this out; it's a 24 difficult issue. 25 If I can turn to our materials, tab 2, and
1151 this is Inquiry Document 1000346. 2 I'm sorry, I should have -- should have 3 asked that the Gransden notes be marked as an Exhibit. I 4 neglected to do so. If they could be the next exhibit, 5 please, at Tab 40 of our materials. 6 THE REGISTRAR: P-494, your Honour. 7 COMMISSIONER SIDNEY LINDEN: Thank you. 8 9 --- EXHIBIT NO. P-494: Document Number 2005413 10 Officer Mark Gransden's 11 Notes. 12 13 CONTINUED BY MR. MARK SANDLER: 14 Q: So what we're looking now at, Deputy 15 Commissioner Carson, is the taped interview of Staff 16 Sergeant Lacroix, and I want to take you to page 993. 17 Now, in fairness, let's just say up front 18 that -- that you were quite clear that -- that you 19 couldn't recall, with precision, the exact instructions 20 that are given on some of the issues that were raised by 21 -- by your cross-examiners? 22 A: Sure. 23 Q: But I want to ask you about this one, 24 and if it assists you then fine, and if it doesn't, 25 that's fine too.
1161 But Staff Sergeant Lacroix says, at the 2 middle of 993, which is also page 4 of this taped 3 statement for My Friends: 4 "Inspector Carson was on scene at that 5 time and he briefed me. He wanted me 6 to take the crowd management unit and 7 then move the demonstrators from the 8 public access parking lot back on to 9 the Ipperwash Provincial Park proper. 10 That a -- and to hold the position in 11 that parking lot to allow uniform 12 personnel to set up a checkpoint. It 13 took it somewhere in the vicinity of 14 the curb or the main gate of the 15 Provincial Park to re-establish some 16 form of a checkpoint and presence and 17 we're to hold that position until 18 relieved by them." 19 Now, I'm just interested in your comments 20 on that, because Wade Lacroix's recollection is that part 21 of the instruction to him was that they were ultimately 22 going to assist in re-establishing a checkpoint presence 23 as part of the function of keeping the occupiers within 24 the Park. Can you comment on that? 25 A: I -- I don't recall the discussion
1171 around the checkpoint issue but certainly the -- the 2 points around the parking lot and not going into the -- 3 the Park I think was very clear. I -- I really don't 4 have independent recollection of the discussion around 5 how and where we were going to re-establish the 6 checkpoints. 7 Q: Okay. Now I'm going to switch and 8 ask you a few questions about -- about the TRU team. 9 It's been suggested to you that the TRU team was not 10 appropriately used because there was no confirmation of 11 weapons in the kiosk. No confirmation of firearms within 12 the Park proper. 13 Do you remember those series of questions? 14 A: Yes. 15 Q: And just to be clear here and, again, 16 without the benefit, and I said this a number of times, 17 so without the benefit -- because I want to be clear, 18 without the benefit of hindsight and what we might know 19 now or what the evidence might now be, on the issue of 20 weapons. 21 Back then, you believed that the occupiers 22 had access to firearms? 23 A: Yes, I did. 24 Q: And there wasn't any doubt about that 25 was there?
1181 A: Not in my mind. 2 Q: Second of all, you had evidence of 3 automatic gunfire the night before. 4 A: Yes, there was. 5 Q: And again with all of the limitations 6 that you articulated to Tim McCabe about how that could 7 be used in the obtaining of an injunction; right? 8 A: Correct. 9 Q: And there was information that -- 10 that the blinds in the kiosk had been lowered after it 11 had become dark and that posed a concern? 12 A: Correct. 13 Q: I mean you've heard that -- it's 14 suggested to you by Mr. Klippenstein, I mean one of the 15 possibilities is that even though it's after dark 16 somebody's closing the blinds because they want to sleep 17 in the kiosk. 18 A: Correct. 19 Q: I mean was that the possibility -- 20 the probability that came to your mind when you heard 21 that? 22 A: That wasn't one of the scenarios that 23 -- that came to my mind at all. 24 Q: There's also evidence in the scribe 25 notes that I want to take you to and clarify if I may.
1191 And this is Exhibit 426, page 72 of the scribe notes. 2 3 (BRIEF PAUSE) 4 5 And if we look at page 72 we see at the 6 19:10 entry at the bottom. 7 "John Carson advised small fire 8 approximately one hour ago near the 9 back of the camp." 10 Now do you see that? 11 A: Yes. 12 Q: Now I suspect that all of us have 13 assumed that that relates to a fire as opposed to a 14 firearm? 15 A: Correct. 16 Q: I'm going to play two (2) things for 17 you and then ask you whether they assist in refreshing 18 your memory. And Commissioner, I'm going to ask that the 19 -- that the two (2) recordings that are at Tabs 8 and 9 20 of our materials be played for Inspector Carson now. 21 Do you have the revised transcripts of 22 those that were provided this morning? 23 A: No. 24 25 (BRIEF PAUSE)
1201 2 COMMISSIONER SIDNEY LINDEN: Is this track 3 18:27? 4 MR. MARK SANDLER: Yes. 5 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 6 Klippenstein? 7 MR. MURRAY KLIPPENSTEIN: Commissioner, I 8 -- I do have some concerns if My Friend appears to be 9 intending to play a tape that I gather hasn't been played 10 before. So it's new evidence about a suggestion that, to 11 my knowledge, has not been raised before about this item 12 in the scribe notes on, obviously, an important issue 13 pertaining to firearms. 14 And this is happening now at the end of 15 evidence in-chief, evidence in cross -- end of cross- 16 examination. And the way we've been operating and -- in 17 a practical sense, means there will be no, potentially, 18 chance to cross-examine on this. And so it's new 19 evidence, apparently, coming out on a major issue at the 20 very end of it all. This is a tremendous concern to me. 21 I just -- because of the procedure we have 22 -- have found ourselves into, I just highlight this as a 23 potential problem, and I may make submissions on it or -- 24 or formally object, I don't know. 25 COMMISSIONER SIDNEY LINDEN: Thank you.
1211 MR. JULIAN FALCONER: I simply want -- 2 COMMISSIONER SIDNEY LINDEN: These tapes 3 have all been available prior to today -- 4 MR. JULIAN FALCONER: I simply want to 5 echo Mr. Klippenstein's submission -- 6 COMMISSIONER SIDNEY LINDEN: Yes, I 7 understand. 8 MR. JULIAN FALCONER: -- without saying 9 more, just because what reservation of rights it may 10 involve, thank you. 11 COMMISSIONER SIDNEY LINDEN: It's a 12 concern, yes. And you want to echo -- 13 MR. PETER ROSENTHAL: Sorry, but I -- I 14 would like to echo and say a little bit more, if I may, 15 sir. You recall in effect that you alluded to it 16 yesterday, but it was in a different context, that this 17 kind of problem arose in the course of Kevin Simon's 18 testimony. 19 And there, there was -- the situation was 20 that I knew that I was going to be going to some areas 21 with my witness, Kevin Simon, that your counsel will not 22 be going into, and it was agreed that, of course, in 23 fairness, since evidence at this inquiry is to be cross- 24 examined as well as examined in-chief, that I should 25 leave such evidence prior to the cross-examination's
1221 beginning. 2 And that's the procedure that was adopted 3 in respect to Mr. Simon, and I believe that a similar 4 procedure was adopted with respect to Mr. Sam George 5 because of similar concerns. 6 COMMISSIONER SIDNEY LINDEN: Yes. 7 MR. PETER ROSENTHAL: Now, I'm sure it 8 was inadvertent by Mr. Sandler, but he gave us some 9 documents only two (2) days ago that suggested the 10 possibility of him going into new things. And then now, 11 as Mr. Klippenstein has pointed out, this is a very 12 serious new thing. 13 And I'm not suggesting that Mr. Sandler 14 did anything improper in not necessarily flagging it. He 15 maybe wasn't aware of it at the time and so on. But we - 16 - we must have the right to cross-examine any evidence 17 that is introduced. And I -- I would respectfully 18 request -- this witness is going to be returning, in any 19 event, for cross-examination on the discipline matters. 20 And if Mr. Sandler goes into new evidence 21 that's really important, like this, that wasn't raised 22 in-chief, then all counsel should have a right to cross- 23 examine on that evidence. 24 COMMISSIONER SIDNEY LINDEN: Mr. 25 Sandler...?
1231 MR. MARK SANDLER: First of all, some 2 time ago the OPP prepared a document called "Chatham 3 Logger Tape 01:46 Track 12" that set out a description of 4 the transmissions. It was provided to the Commission 5 Counsel, it was provided to all parties. 6 In there, there's reference to the very -- 7 the very radio transmission that I'm about to play, 8 including: "Heard one small caliber gunshot." I mean, 9 it's right here. 10 I mean, I -- I understand that in any 11 system where people cross-examine seriatim there's always 12 going to be some issue that, in responding to issues that 13 have been raised, there's something that somebody now 14 wants to re-visit. 15 I'm not entitled to do it in other 16 witnesses, My Friends aren't entitled to do it here, with 17 great respect. And we will never finish if -- if every 18 time I feel, as is my right, that it's important to 19 clarify a matter with this witness, that gives right to 20 kind of an unfettered cross-examination to -- to follow 21 again and revisiting. Then we'll never be done. 22 COMMISSIONER SIDNEY LINDEN: No, I know 23 that. 24 Ms. Vella, would you like to speak to this 25 matter on behalf of the Commission?
1241 MR. JULIAN FALCONER: I don't know if Ms. 2 Vella wants to hear my -- I had an admission -- 3 submission before -- 4 COMMISSIONER SIDNEY LINDEN: I can't hear 5 you, Mr. Falconer. 6 MR. JULIAN FALCONER: Out of courtesy to 7 Ms. Vella, I don't know if she wants to hear the 8 additional point that's come out of that. I didn't say 9 anything before because I didn't want to waste your time 10 if I didn't have anything to add to what Mr. Klippenstein 11 said. But because of what Mr. Sandler said, I have one 12 matter to add to that. 13 COMMISSIONER SIDNEY LINDEN: Go ahead. 14 MR. JULIAN FALCONER: It's û- if you turn 15 to the scribe note at page 72, this scribe area was 16 covered by Mr. Millar in his chief. I -- I have a note 17 of it because I would follow and would note down when Mr. 18 Millar covered something. 19 We were provided these scribe notes and at 20 no time was it suggested that fire meant firearm. And 21 when you look at the times that Mr. Sandler is relying 22 upon to create what is obviously going to be an inference 23 he's seeking to have drawn, you'll see there is no 24 correlation between the times. 25 Counsel could not have reasonably
1251 connected these, and my concern is -- 2 COMMISSIONER SIDNEY LINDEN: Where's 3 the -- 4 MR. JULIAN FALCONER: It's an 18:27 5 reference. 6 COMMISSIONER SIDNEY LINDEN: Yes -- 7 MR. JULIAN FALCONER: That -- 8 COMMISSIONER SIDNEY LINDEN: 18:27 9 reference. 10 MR. JULIAN FALCONER: That's right. This 11 is at 19:10. It's just -- it's not -- and so it truly 12 arises fresh. I'm -- no one's attacking Mr. Sandler, but 13 if he's going to go into this, when we talk ex officio, 14 this is a classic example. 15 And all I'm saying is that we -- we have 16 to be careful that there is cross-examination on -- on 17 new areas, and this becomes new because, obviously, I 18 suspect Deputy Carson is now looking at this for the 19 first time and thinking this to himself, but it never 20 came out. 21 And it never came out because, presumably, 22 he didn't make the connection, neither did the lawyers. 23 So that's the problem; it's not that he's 24 giving out a tape today for the first time, it's that 25 he's re-interpreting a section that none of us ever heard
1261 before, at a different time. 2 He's got to back the time up as well, and 3 that's why it's ex officio, with respect. 4 COMMISSIONER SIDNEY LINDEN: Do you want 5 to say anything on this? I don't want to keep hearing -- 6 MR. MURRAY KLIPPENSTEIN I -- I didn't -- 7 COMMISSIONER SIDNEY LINDEN: -- over and 8 over again. 9 MR. MURRAY KLIPPENSTEIN I said before -- 10 COMMISSIONER SIDNEY LINDEN: Yes. 11 MR. MURRAY KLIPPENSTEIN -- that I wasn't 12 going to object -- 13 COMMISSIONER SIDNEY LINDEN: You've got 14 to speak on that mic., because it's a better mic. 15 MR. MURRAY KLIPPENSTEIN: IÆm sorry. But 16 -- but I do want to formally object, because it may be 17 that this is not a big deal because I've just heard, for 18 the first time now, that the word "small" might mean 19 small calibre as opposed to small firearm, like a 20 handgun. 21 If it's a small -- small -- it's a small 22 calibre gun, it may be the hunting rifles that we knew, 23 you know, were in the camp from time to time as opposed 24 to the Park, so it may be a non-issue, but I do have to 25 formally object and the fact that this was provided to us
1271 in a mass of documentation before, is different from the 2 fact that it is now being formally put on the record as, 3 I gather, evidence with no opportunity to cross-examine 4 on it, as a complete surprise, so I do formally object. 5 COMMISSIONER SIDNEY LINDEN: Thank you, 6 Mr. Klippenstein. 7 Who are the participants in this 8 conversation? Do you know? 9 MR. MARK SANDLER: Pardon me? 10 COMMISSIONER SIDNEY LINDEN: The 11 conversation at 18:27, who's speaking? 12 MR. MARK SANDLER: This is between Lima 2 13 and Checkpoint Alpha. And -- but the sequence that -- 14 that you'll see from the radio communications is that it 15 appears that -- that Checkpoint Alpha has heard what 16 sounds like a gunshot, a small calibre. 17 That is communicated through from Lima 2 18 to Lima 1 and then we see a scribe note that talks about 19 small fire. 20 I thought, in fairness to the Inquiry, 21 when we noticed this, it should be put to Deputy 22 Commissioner Carson. Your Counsel also has, and people 23 tend to overlook this, has the right to re-examine, 24 ultimately, if -- 25 COMMISSIONER SIDNEY LINDEN: Yes.
1281 MR. MARK SANDLER: -- if there's any 2 unfairness that -- that arises. But I have to tell you 3 that it -- if you're of the view that there's any 4 unfairness in addressing this issue, we'll try to deal 5 with it -- 6 COMMISSIONER SIDNEY LINDEN: I would 7 prefer it -- 8 MR. MARK SANDLER: -- with another 9 witness -- 10 COMMISSIONER SIDNEY LINDEN: -- if you 11 did not introduce something that is apparently new to 12 them, to Counsel, at this point because it opens up the 13 possibility of having to consider re-cross-examination 14 which would, as you say, make this proceeding endless. 15 So if you can proceed without reference to 16 this, I would ask you to do that. 17 MR. MARK SANDLER: I'm going to do that. 18 COMMISSIONER SIDNEY LINDEN: Thank you. 19 MR. MARK SANDLER: And I should say to -- 20 to My Friends that they'll have the documentation and it 21 may well be that they'll be persuaded that I'm exactly 22 right and the -- 23 COMMISSIONER SIDNEY LINDEN: Or not. 24 MR. MARK SANDLER: -- inference -- and it 25 may be much ado about nothing in terms of the debate.
1291 (BRIEF PAUSE) 2 3 COMMISSIONER SIDNEY LINDEN: Are you 4 almost getting to the end of your examination? 5 MR. MARK SANDLER: I'm not that far away. 6 If I could proceed for -- 7 COMMISSIONER SIDNEY LINDEN: It's twenty 8 (20) to 12:00. 9 MR. MARK SANDLER: -- fifteen (15) to 10 twenty (20) minutes and I'll see if I can finish then, 11 and then I can advise you of how long will be left. I 12 may be able to finish this morning. 13 COMMISSIONER SIDNEY LINDEN: That's fine. 14 Yes, Mr. McGilp...? Stick to that mic. 15 Apparently that mic works better. 16 MR. IAN MCGILP: Sorry, Commissioner, 17 just very briefly. I mean, my point is, I think that -- 18 and my submission would be that Mr. Sandler should be 19 able to play those tapes now in order that Deputy Carson 20 can be asked whether he knew about that information, 21 before he's gone. 22 Once he's gone we will never know whether 23 the Deputy knew about that information at the time. 24 COMMISSIONER SIDNEY LINDEN: I've asked 25 Mr. Sandler to move on, and he's agreed to do so, and
1301 let's move on. 2 Thank you, Mr. McGilp. 3 MR. MARK SANDLER: If I thought that the 4 -- that it was critical to get the evidence -- 5 COMMISSIONER SIDNEY LINDEN: You wouldn't 6 move on. 7 MR. MARK SANDLER: I wouldn't move on so 8 quickly. 9 COMMISSIONER SIDNEY LINDEN: I understand 10 that. 11 MR. MARK SANDLER: I'm not as 12 accommodating as all that. 13 COMMISSIONER SIDNEY LINDEN: No. 14 15 CONTINUED BY MR. MARK SANDLER: 16 Q: Commissioner, Deputy Commissioner, 17 you've been asked about the searching of vehicles during 18 the helicopter incident. And you were specifically asked 19 whether or not the warrant to search included the 20 authority to search for vehicles. 21 And to answer that question that was posed 22 to you and which you did not know, I'll take you to Tab 1 23 of our materials, Inquiry Document 2004-098. 24 And this would appear to be, I'm going to 25 suggest to you, the warrant, the search, referable to the
1311 army camp arising out of the helicopter incident; am I 2 right? 3 A: Correct. 4 Q: And it reflects that there's 5 reasonable probable grounds to believe that there are in 6 buildings, outbuildings, vehicles and any temporary 7 structure currently erected, firearms, ammunition, 8 offensive weapons and so on. 9 A: Correct. 10 Q: All right. If that could be the next 11 exhibit please. 12 THE REGISTRAR: P-495, Your Honour. 13 14 --- EXHIBIT NO. P-495: Document Number 2004098 Search 15 Warrant Prepared by P.C. John 16 Potts OPP. August 24/93. 17 18 CONTINUED BY MR. MARK SANDLER: 19 Q: Commissioner -- Deputy Commissioner 20 Carson, you were asked about the arrest at the hospital 21 and recognizing the limitations on your ability to speak 22 to that issue which -- which you advised Commissioner 23 Linden of. 24 You were asked by Mr. Rosenthal about -- 25 about the reasonable grounds for arresting those, other
1321 than Dudley George, in the vehicle that transported to 2 the hospital. Remember that? 3 A: Yes. 4 Q: And -- and to be clear, you 5 acknowledged and everyone must acknowledge how highly 6 unfortunate it was that -- that those individuals in the 7 vehicle were arrested, having regard to their connection 8 with -- with Dudley George and lack of involvement. 9 A: Very much so. 10 Q: But again without the benefit of 11 hindsight, I want to ask you a little bit about that. 12 You told Mr. Rosenthal that the fact that they were 13 transporting Dudley George to the hospital in that car, 14 constituted or could constitute the reasonable grounds 15 for affecting that arrest; right? 16 A: Correct. 17 Q: And let's just be clear at once, if 18 it's not, anybody under any circumstances who transports 19 anyone with a -- with an injury to a hospital doesn't 20 thereby -- isn't thereby the subject of reasonable 21 grounds for an arrest for the -- for the charge that that 22 person would face. Am I right? 23 A: Of course. 24 Q: So let's look at the understanding 25 back then. This context is all important here. And what
1331 I would like to do is take you first to your conversation 2 with Tony Parkin that took place on September the 7th of 3 1995 and it's at Tab 62 of Exhibit 444(b). 4 And you may recall you were asked -- you 5 were asked generally about your recollection of -- of 6 what you knew and what you didn't know or what you 7 believed and what you didn't believe. 8 I -- I prefer to take you to the -- to the 9 transcript of what was being said back on the morning of 10 September the 7th and this is your conversation with -- 11 with Tony Parkin; is that right? 12 A: Yes. 13 Q: And you'll see at the top of page 14 372, you say: 15 "Yeah, it was two (2) Natives that 16 apparently are on their way to the 17 hospital, took some shots. 18 Tony: Is that confirmed now? One's 19 in an ambulance, one's believed to be 20 in a private car headed to Strathroy. 21 They went over to a house in Arkona but 22 the extent of the injuries I don't 23 know." 24 Now just stopping there for a moment. Mr. 25 Rosenthal, in his own special way, kind of said to you,
1341 Well if you know if Hank Veens, the good samaritan were 2 transporting these individuals -- 3 MR. PETER ROSENTHAL: I can't -- 4 MR. MARK SANDLER: I haven't asked the 5 question yet. 6 MR. PETER ROSENTHAL: No, but you've mis- 7 stated something and I'm glad you think I speak in a 8 special way. But I didn't ask about Hank Veens, that was 9 some other cross-examiner. 10 MR. MARK SANDLER: I'm sorry. 11 MR. PETER ROSENTHAL: I think -- I can't 12 recall exactly who but that wasn't part of my questions. 13 MR. MARK SANDLER: Thank you. 14 15 (BRIEF PAUSE) 16 17 CONTINUED BY MR. MARK SANDLER: 18 Q: Someone asked you about Hank Veens 19 and whether or not Hank Veens, as a Good Samaritan, had 20 transported Dudley George to the hospital, it's possible 21 that -- that he would have been arrested based upon 22 reasonable grounds; and -- and I -- and you agreed with 23 the proposition. 24 What I want to ask you, would that be so 25 if the police knew that -- that he had been transporting
1351 him as a Good Samaritan from Nauvoo Road as opposed to 2 from within the Camp or Army Base? 3 A: No. 4 Q: Okay. Now, just continuing on in the 5 conversation, at the bottom of page 375, this is what you 6 say and this represents, as we've heard, your 7 understanding at the time: 8 "Out of both vehicles, the car and the 9 bus were both being shooting from. So 10 the snipers fired? Yeah. And so then 11 we suspect that the people were hit 12 would be the people in the car or in 13 the bus." 14 And you say: 15 "One of the other, yeah. I mean, they 16 just opened fire in return and then 17 they took off. Back into the Park? 18 That's right. And now they're en route 19 to the hospital. Yeah." 20 And again, did -- did that represent your 21 understanding at the time? 22 A: Yes. 23 Q: So -- so putting things in context 24 for a moment, if -- if the police believed at the time 25 the following series of facts: that individuals have
1361 come out of the Park in a car and in a bus; right? 2 A: Correct. 3 Q: That shots were fired at officers 4 from those vehicles -- 5 A: Right. 6 Q: -- right? 7 A: Right. 8 Q: Which, stopping there, would 9 constitute attempted murder? 10 A: Right. 11 Q: That shots were returned by the 12 officers? 13 A: Yes. 14 Q: That those individuals, some or more 15 of those individuals were injured as a result of the 16 return of fire by the officers? 17 A: Right. 18 Q: Right. And that now a car from 19 within the Park is going directly to the hospital, 20 containing an individual or individuals who have been 21 shot in that altercation? 22 A: Correct. 23 Q: Right? 24 A: Yes. 25 Q: And -- and have bypassed an ambulance
1371 but gone directly in a private car-- 2 A: Correct. 3 Q: -- right? Are there reasonable 4 grounds to arrest the occupants of that vehicle? 5 A: I believe there is. 6 Q: Okay. Now, Mr. Horton asked you some 7 questions about the use of force policy in the OPP and -- 8 and he pointed up to you that the OPP police -- and I 9 won't take you back to it again -- discourages the use of 10 force subject to the death or serious bodily harm 11 exception; and do you remember that cross-examination? 12 A: Yes. 13 Q: And in essence, what he was 14 suggesting to you -- and it was an excellent job of 15 lawyering, if I may say so -- that sending the CMU down 16 the road is a use of force, and you agreed. 17 And -- and then he's suggesting that it 18 follows from that that because that's a use of force, 19 that it violates OPP policy unless there's immediate 20 death or serious bodily harm that's likely to occur; you 21 remember that? 22 A: Right. 23 Q: Is there a distinction between the 24 use of force and the show of force? 25 A: Yes.
1381 Q: What's the distinction? 2 A: Well, use of force is the application 3 of force, which I would suggest, is more than mere 4 presence. 5 Q: All right. So -- so even if one 6 could make the argument, and apparently you can because 7 you agreed with it, that -- that the show of force was a 8 use of force, did you see the show of force in those 9 circumstances as violating OPP policy? 10 A: No, sir, I didn't. 11 Q: As you've articulated, the idea 12 behind the exercise was that through the show of force 13 and through intimidation, one would prevent the actual 14 use of force? 15 A: Correct. 16 Q: Now, if I can take you to Tab 43 of 17 Exhibit 444(b). 18 19 (BRIEF PAUSE) 20 21 Q: This is the conversation that you had 22 with Bob Drummelsmith about Cindy Elder, you remember 23 that? 24 A: Right. 25 Q: And this is in the afternoon of
1391 September the 6th of 1995, right? 2 A: Yes, it is. 3 Q: And this is at 3:56 in the afternoon 4 on that date and what you reflected to him, and you've 5 already testified about this in response to questions 6 from Mr. Millar is, and we see this at the bottom of the 7 page, 290: 8 "I'm extremely busy. Unless there is 9 something that she can supply you with 10 of information that is of an urgent 11 nature, I just don't have time. 12 Okay. 13 Okay, 'cause I'm inundated with phone 14 calls and unless there's something that 15 has a direct effect on this incident, I 16 don't have time today to talk to her. 17 The best I can do is sometime tomorrow. 18 I'm not trying to be ignorant, but, you 19 know, that's just life right now." 20 And -- and you said those words? 21 A: Yes. 22 Q: Well, I'm just focussing on what -- 23 what might be of interest and that is that you told 24 Officer Drummelsmith that you could not speak to her at 25 that time unless what she had would provide a direct
1401 effect on the -- on the incident, or that she could 2 supply information that's of an urgent nature. 3 Did Drummelsmith get back to you after he 4 spoke to Ms. Elder and say, well, as a matter of fact, 5 she can provide you with information that -- that you 6 should urgently consider or does have a direct effect on 7 what you're doing in the incident? 8 A: No, sir, he did not. 9 Q: Okay. Now, I'd like to take you 10 finally to Exhibit P-457, and this is the Ipperwash 11 Review that you were cross-examined on, dated February 12 the 21st of 1996, and do you still have a copy of that? 13 A: I'm not sure. I do now, thank you. 14 15 (BRIEF PAUSE) 16 17 Q: And I just want to point up several 18 things in here. The first, which you were not taken to 19 is -- you see the opening paragraph? 20 A: Yes. 21 Q: And it says: 22 "Chief Superintendent Coles spoke and 23 gave a brief overview about Ipperwash 24 and events leading up to the shooting 25 and events following."
1411 And I want to point up these words to you. 2 "The shooting was not discussed due to 3 the ongoing SIU investigation." 4 Now, just stopping there for a moment. No 5 secret about that, I'm asking you about it because there 6 might have been an inference that was left in the air, 7 that when you look two (2) paragraphs down, and it says: 8 "Chief Coles stated his contentment 9 with the overall operation at 10 Ipperwash --" 11 I mean, was he speaking to the shooting 12 incident at all? 13 A: No. 14 Q: Was it being discussed at all? 15 A: We weren't allowed to discuss that 16 piece. 17 Q: And was it for the reasons that -- 18 that are indicated in the document? 19 A: We were concerned about the 20 legalities relative to the ongoing investigations. 21 Q: And when it says that almost twelve 22 hundred (1200) people were involved in Ipperwash by 23 February 1996, this represents the -- the entire 24 operation from both the commencement of your involvement 25 right up until that point in time, does it not?
1421 A: Yeah, it's -- it includes all the 2 cycling of people who came in and left and it was -- 3 basically that's how many people it touched. 4 Q: And -- and much of the discussed 5 focussed on the adequacy of the logistics associated with 6 the entire operation, did it not? 7 A: That -- that was the primary focus. 8 Q: And -- and if I can look, having said 9 that, if I can look at page 4 of the document, bottom of 10 the page, Inspector Goodall: 11 "Issue raised that there were 12 insufficient people to supply 13 information, that investigators found a 14 need to have a better understanding of 15 what had taken place at the shooting. 16 Innocent people were placed in jail due 17 to the lack of proper information being 18 passed on." 19 And then skipping to the next page, four 20 (4) -- five (5) entries down, 21 "Were the arrests legal or not legal at 22 the Strathroy Hospital? The decision 23 was made by the information that was 24 supplied at the time. Issue was the 25 amount of time that people were
1431 incarcerated, because the people that 2 were needed and had the information had 3 been sent home and there's a need to 4 keep these people, in order to gather 5 all required information." 6 So I take it there was discussion about 7 that very issue that's been raised here and -- and that 8 one of the problems associated with those arrests was a 9 lack of flow through of information to enable more speedy 10 and accurate decisions to be made about that? 11 A: Correct. 12 Q: All right. And -- and did you agree 13 with that as -- as something that was appropriately the 14 subject of review and consideration? 15 A: Oh, it's a fair observation, sure. 16 Q: Okay. You'll be delighted to hear 17 those are all of the questions I have for you. Thank you 18 very much. 19 COMMISSIONER SIDNEY LINDEN: Thank you, 20 Mr. Sandler. 21 Ms. Vella, do you have any re-examination? 22 23 RE-DIRECT EXAMINATION BY MS. SUSAN VELLA: 24 Q: Deputy -- Deputy Commissioner, I just 25 have one -- one question for you. This morning, Mr.
1441 Sandler took you to a number of actions which he 2 suggested were actions that sends the message to the 3 occupants that as long as they were in the Park there 4 would be no police activity. 5 And we -- we've spoken of the canine unit, 6 the TRU team and the crowd management unit as -- as the 7 police involved. 8 But we've heard evidence that there was 9 also a boat off the shore of the Park conducting 10 surveillance; is that right? 11 A: Yes, there was. 12 Q: And were there any police officers or 13 personnel deployed from the boat during the evening of 14 September the 6th who would have gone to the shores 15 either of the beach -- the beach of either the Park or 16 the military that evening during the confrontation 17 because there has been some evidence or suggestion that 18 there were frog men sighted on the shores? 19 A: There was no scuba capability 20 deployed in this operation whatsoever. 21 Q: Thank you. 22 Deputy Commissioner, I want to thank you 23 on behalf of the Commission for your several days of 24 testimony. You've been of assistance to the Commission 25 and we're grateful for it. Thank you very much.
1451 A: Thank you. 2 COMMISSIONER SIDNEY LINDEN: I'd like to 3 echo that. It's been a long time and I'd like to thank 4 you for coming and giving us your evidence, it's been 5 very helpful. 6 THE WITNESS: Thank you, sir. 7 MR. PETER ROSENTHAL: Thank you. I'm not 8 trying to interfere with the thank yous. I just want to 9 make an unrelated point if I may. 10 COMMISSIONER SIDNEY LINDEN: I've got a 11 couple of them. 12 MR. PETER ROSENTHAL: I just want to 13 speak -- I just wanted to suggest, sir, that it would be 14 appropriate we now move to another phase, the police 15 witnesses and other witnesses. 16 It would be appropriate if you would give 17 explicit direction to counsel who are representing a 18 witness, that if they are aware of new areas that they 19 would get into that are not going to be covered by 20 Commission counsel, they should approach Commission 21 Counsel, inform Commission Counsel of that fact and 22 introduce those new areas up front at the beginning -- 23 COMMISSIONER SIDNEY LINDEN: Thank you. 24 MR. PETER ROSENTHAL: -- and then do the 25 normal re-direct examination afterwards so that -- so
1461 that we can all cross-examine on any new information. 2 COMMISSIONER SIDNEY LINDEN: I have some 3 remarks that I'm going to make right now, Mr. Rosenthal. 4 MR. PETER ROSENTHAL: I'm sorry, sir? 5 COMMISSIONER SIDNEY LINDEN: I have some 6 remarks that I was going to make right now. 7 MR. PETER ROSENTHAL: Oh, thank you. 8 COMMISSIONER SIDNEY LINDEN: I'm going to 9 ask my counsel to meet with all counsel and develop some 10 -- some ground rules; not only for that but for some 11 other things as well. 12 MR. PETER ROSENTHAL: I see, yes. But I 13 -- but I would respect -- in that aspect the Kevin Simon 14 principle as we might say, was very appropriate. 15 COMMISSIONER SIDNEY LINDEN: Yes, I 16 understand that. 17 MR. PETER ROSENTHAL: And it was accepted 18 as appropriate and -- and it should be followed by all 19 counsel in my respectful submission. 20 COMMISSIONER SIDNEY LINDEN: We -- we've 21 learned something from this experience. 22 MR. PETER ROSENTHAL: Yes, thank you. 23 COMMISSIONER SIDNEY LINDEN: Yes, is 24 there something you want to say? 25 MR. MURRAY KLIPPENSTEIN: Yes,
1471 Commissioner. I think I just -- on behalf of myself 2 personally, on behalf of -- of my client who's sitting 3 here, Sam George, and I think probably I speak for -- for 4 all counsel, I want to express appreciation to the 5 witness, Deputy Commissioner Carson who has made himself 6 available for a very long period for difficult and 7 detailed questioning. 8 And it's been very important for the 9 overall process of the Inquiry and we do appreciate the 10 toll and strain it was on him and on some of the rest of 11 us as well, but we do want to thank him. 12 COMMISSIONER SIDNEY LINDEN: Thank you 13 very much. 14 THE WITNESS: Thank you. 15 COMMISSIONER SIDNEY LINDEN: I just have 16 a couple of quick remarks that I would like to make 17 before we adjourn. If we adjourn now we're adjourning 18 until July the 11th I believe. 19 On a number of occasions I've expressed my 20 own commitment to a thorough and expeditious inquiry 21 process. And in my view these two (2) goals are not 22 incompatible when we're dealing with public funds. 23 The public has a legitimate expectation 24 that our effort to be thorough will not lose sight of the 25 timeliness of the inquiry process. Throughout, there's
1481 an expectation at any Public Inquiry, this one included, 2 will find and maintain a proper balance between these two 3 (2) important objectives. And I know that this is 4 sometimes easier said than done. 5 Counsel for Parties with Standing have a 6 duty to advance and protect their clients' interests, and 7 Commission Counsel has a responsibility to ensure that 8 the mandate of the inquiry is fulfilled. Furthermore, 9 Commission Counsel and I, as Commissioner have an added 10 duty to effectively manage the Inquiry process in the 11 public interest. 12 Now, with this in mind, I had been 13 considering the time that it might take to complete the 14 oral testimony component of this Inquiry and achieve a 15 proper balance. To date, we have had approximately a 16 hundred (100) Hearing days and by December the 1st, which 17 is the date currently announced that we have a sitting 18 schedule to, we will have added approximately sixty (60) 19 more. 20 Now, my hope and expectation is that we 21 should be able to complete the Hearings within the time 22 currently scheduled, that is, by December the 1st, 2005. 23 However, our experience with Deputy Commissioner Carson 24 demonstrates that examination and cross-examination of 25 witnesses can end up taking longer than any of us would
1491 have anticipated. 2 And I think we would all agree the 3 Deputy's evidence was both valuable and comprehensive, 4 but it will not be possible to spend anywhere near this 5 amount of time with other witnesses without seriously 6 running the risk of extending these Hearings considerably 7 longer than planned. 8 Now, to this end, I have asked Commission 9 Counsel to consult with and work with all Parties to 10 ensure that the time remaining between now and December 11 1st is used most effectively. And this may require 12 making choices, finding alternative ways of presenting 13 and receiving evidence, such as by way of Affidavit or by 14 Agreed Statement of Fact, where the facts are not in 15 dispute or are not controversial. 16 I expect that regardless of how many 17 Hearing days we have or when we finish, it will always be 18 possible to do more. My view is that it's possible to be 19 comprehensive, fair and complete within a clearly defined 20 time frame. 21 We've made good process. I'm encouraging 22 everyone to continue to work together to achieve the 23 objective of completing the oral testimony by December 24 the 1st. 25 Thank you all. Have a good Canada Day,
1501 and we'll see you on July the 11th. 2 3 (WITNESS STANDS DOWN) 4 5 THE REGISTRAR: This Public Inquiry is 6 adjourned until Monday, July 11th, at 10:30 a.m. 7 8 --- Upon adjourning at 12:06 p.m. 9 10 11 Certified Correct, 12 13 14 15 ____________________ 16 Carol Geehan 17 18 19 20 21 22 23 24 25