1

1 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 May 17th, 2006 25

2

1 Appearances 2 Derry Millar ) Commission Counsel 3 Susan Vella ) (np) 4 Donald Worme, Q. C ) (np) 5 Katherine Hensel ) (np) 6 Megan Ferrier ) (np) 7 8 Murray Klippenstein ) (np) The Estate of Dudley 9 Vilko Zbogar ) (np) George and George 10 Andrew Orkin ) (np) Family Group 11 Basil Alexander ) 12 13 Peter Rosenthal ) Aazhoodena and George 14 Jackie Esmonde ) Family Group 15 Amanda Rogers ) (np) Student-at-law 16 17 Anthony Ross ) Residents of 18 Cameron Neil ) (np) Aazhoodena (Army Camp) 19 Kevin Scullion ) 20 21 William Henderson ) (np) Kettle Point & Stony 22 Jonathon George ) (np) Point First Nation 23 Colleen Johnson ) 24 25

3

1 APPEARANCES (cont'd) 2 Kim Twohig ) (np) Government of Ontario 3 Walter Myrka ) (np) 4 Susan Freeborn ) 5 Sheri Hebdon ) (np) Student-at-law 6 7 Janet Clermont ) Municipality of 8 David Nash ) (np) Lambton Shores 9 Nora Simpson ) (np) Student-at-law 10 11 Peter Downard ) (np) The Honourable Michael 12 Bill Hourigan ) (np) Harris 13 Jennifer McAleer ) 14 15 Ian Smith ) (np) Robert Runciman 16 Alice Mrozek ) (np) 17 18 Harvey T. Strosberg, Q.C.) (np) Charles Harnick 19 Jacqueline Horvat ) (np) 20 21 22 23 24 25

4

1 APPEARANCES (cont'd) 2 Douglas Sulman, Q.C. ) Marcel Beaubien 3 Mary Jane Moynahan ) (np) 4 Dave Jacklin ) (np) 5 Trevor Hinnegan ) 6 7 Mark Sandler ) (np) Ontario Provincial 8 Andrea Tuck-Jackson ) Ontario Provincial Police 9 Leslie Kaufman ) (np) 10 11 Ian Roland ) Ontario Provincial 12 Karen Jones ) Police Association & 13 Debra Newell ) (np) K. Deane 14 Ian McGilp ) (np) 15 Annie Leeks ) (np) 16 Jennifer Gleitman ) 17 Robyn Trask ) 18 Caroline Swerdlyk ) (np) 19 20 21 22 23 24 25

5

1 APPEARANCES (cont'd) 2 Julian Falconer ) (np) Aboriginal Legal 3 Brian Eyolfson ) (np) Services of Toronto 4 Kimberly Murray ) (np) 5 Julian Roy ) (np) 6 Clem Nabigon ) (np) 7 Linda Chen ) (np) 8 Chris Darnay ) 9 Sunil Mathai ) 10 Adriel Weaver ) (np) Student-at-Law 11 12 Al J.C. O'Marra ) (np) Office of the Chief 13 Robert Ash, Q.C. ) (np) Coroner 14 William Horton ) (np) Chiefs of Ontario 15 Matthew Horner ) (np) 16 Kathleen Lickers ) (np) 17 18 Mark Fredrick ) (np) Christopher Hodgson 19 Craig Mills ) (np) 20 Megan Mackey ) (np) 21 Peter Lauwers ) (np) 22 Erin Tully ) (np) 23 Michelle Fernando ) 24 Maanit Zemel ) (np) 25 Patrick Greco ) (np)

6

1 APPEARANCES (cont'd) 2 3 David Roebuck ) (np) Debbie Hutton 4 Anna Perschy ) (np) 5 Melissa Panjer ) 6 Adam Goodman ) (np) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

7

1 TABLE OF CONTENTS 2 PAGE NO. 3 List of Exhibits 8 4 Opening Comments 11 5 6 JAMES LEONARD ROOT, Resumed 7 Continued Examination-In-Chief by Mr. Derry Millar 13 8 Cross-Examination by Mr. Basil Alexander 72 9 Cross-Examination by Ms. Jackie Esmonde 78 10 Cross-Examination by Mr. Kevin Scullion 113 11 Cross-Examination by Ms. Colleen Johnson 129 12 Cross-Examination by Mr. Ian Roland 150 13 14 WILHELMUS BITTNER, Sworn 15 Examination-In-Chief by Mr. Derry Millar 153 16 Cross-Examination by Mr. Peter Rosenthal 243 17 Cross-Examination by Ms. Colleen Johnson 277 18 Cross-Examination by Mr. Kevin Scullion 300 19 Cross-Examination by Mr. Basil Alexander 306 20 Cross-Examination by Mr. Sunil Mathai 308 21 Cross-Examination by Ms. Karen Jones 325 22 Re-Direct Examination by Mr. Derry Millar 331 23 24 Certificate of Transcript 335 25

8

1 EXHIBITS 2 No. Description Page 3 P-1498 Photograph of OPP TRU emblem. 4 P-874 Correction: Document No. 1007969 5 Memorandum to all Park Wardens re: 6 Procedures dealing with First Nations 7 people August 28th, 1995 8 P-1520 Transcript of Region 2. P/C Root and 9 Ternovan - Lima 1, September 07, 1995. 10 04:30 hrs. Chatham Communication Centre, 11 Logger tape number 147, Track 12, Disc 12 12 of 20. 46 13 P-1521 James Root Audio CD. 46 14 P-1522 Document Number 1000390. Typed and 15 handwritten statement of James Root, 16 September 07, 1995. 50 17 P-1523 Handwritten notebook entries of P/C 18 J.L. Root, September 07-14, 1995. 53 19 P-1524 Document Number 1004976. Transcript of 20 R. v Warren Anthony George and David 21 Abraham George: Examination-in-Chief 22 and Cross-examination of James Root, 23 October 03, 1997. 57 24 P-1525 James Root handwritten notebook entries, 25 July 09, 1997. 71

9

1 List of Exhibits (cont'd) 2 Exhibit No. Description Page No. 3 P-1526 Resume of Wilhelmus (Bill) Bittner. 153 4 P-1527 Document Number 2005571. Handwritten 5 notebook entries of Bill Bittner, 6 August 11- September 12, 1995. 157 7 P-1528 Document Number 2000842. Handwritten 8 notes of Bill Bittner, August 11, 1995 159 9 P-1529 Document Number 2005409. Handwritten 10 notebook entries of Bill Bittner, 11 September 04-06, 1995. 166 12 P-1530 Document Number 1000459. Handwritten 13 notebook entries of Bill Bittner, 14 September 06-07, 1995. 183 15 P-1531 Document Number 2003338. Typed and 16 handwritten statement of S/C G.W.H. 17 Bittner, September 07, 1995. 222 18 P-1532 Document Number 1004978. Examination- 19 in-chief and cross-examination of Bill 20 Bittner, R. v Cecil Bernard George 21 (Transcript pages 122- 159) July 15, 1996. 228 22 P-1533 Document Number 1004976. Examination-in 23 -chief and cross-examination of Bill 24 Bittner, R. v Warren Anthony George(transcript 25 pages 101-111) October 03, 1997. 229

10

1 List of Exhibits (cont'd) 2 Exhibit No. Description Page No. 3 P-1534 Document Number 2002937. Fax from 4 George Van Damme to John Carson, 5 February 05, 1996. 230 6 P-1535 Document Number 1005305. SIU letter 7 to Commissioner Boniface, February 10, 8 1999. 259 9 P-1536 Document Number 2000075. Letter from 10 Mark Dew to Investigating Support Bureau, 11 November 15, 1996. 302 12 13 14 15 16 17 18 19 20 21 22 23 24 25

11

1 --- Upon commencing at 9:02 a.m. 2 3 THE REGISTRAR: This Public Inquiry is 4 now in session, the Honourable Mr. Justice Linden 5 presiding. Please be seated. 6 COMMISSIONER SIDNEY LINDEN: Good 7 morning. Good morning, everybody. 8 MR. DERRY MILLAR: Good morning, 9 Commissioner. Before we begin there's just two (2) 10 issues that -- matters I need to raise with you. 11 The first is the following. Last Thursday 12 I advised you and the parties of the existence of a 13 second version of a T-shirt arising from Project Maple 14 during the examination of Sergeant Hebblethwaite. 15 Photographs of the T-shirt were marked as Exhibits P- 16 1494, 1495, and 1496 and the T-shirt itself was marked as 17 Exhibit P-1497. 18 Last Friday Exhibit P-1494, the logo -- a 19 photograph showing the logo was published in the Globe 20 and Mail. 21 Yesterday afternoon at the end of the 22 hearing day at the request of Mr. Roland I met with Mr. 23 Roland and Ms. Tuck-Jackson. I was advised by Mr. Roland 24 that the person who originated version 2 of the T-shirts, 25 a member of the OPP, saw the photograph of the logo in

12

1 the Globe and Mail and realized that the logo was the 2 logo of a T-shirt that the officer had originated. 3 I understand that the officer destroyed 4 the T-shirt in 1996 or earlier. Mr. Roland advised me on 5 Monday that -- advised me that on Monday he spoke to the 6 officer and yesterday the name of the officer was 7 reported to the Ontario Provincial Police. 8 As I -- last night I was advised of this 9 information and the name of the officer. Ms. Tuck- 10 Jackson advised me that the Professional Standards Branch 11 of the OPP intends to interview the officer immediately. 12 We intend to call the officer who 13 originated Exhibit P-1497 as a witness to deal with the 14 issue of the development and sale of the T-shirt. 15 The name of the officer will be provided 16 to the parties as soon as the Professional Standards 17 Branch of the OPP has had the opportunity to review the 18 officer which, as I said, is being arranged immediately. 19 And we will then intend to call the officer on this issue 20 after that. 21 And the second thing that -- 22 COMMISSIONER SIDNEY LINDEN: Thank you, 23 Mr. Millar. 24 MR. DERRY MILLAR: -- the second thing I 25 wish to deal with was simply to mark -- we reserved

13

1 Exhibit P-1498 for the photograph of the TRU crest that 2 was taken from the shirt that was marked -- a photograph 3 of which was marked as Exhibit P-451. 4 So I just want to make sure that's done as 5 a housekeeping matter. 6 COMMISSIONER SIDNEY LINDEN: Thank you. 7 8 JAMES LEONARD ROOT, Resumed 9 10 CONTINUED EXAMINATION-IN-CHIEF BY MR. DERRY MILLAR: 11 Q: Good morning, Constable Root. 12 A: Good morning. 13 Q: Yesterday I was asking you some 14 questions about the Crowd Management Unit and prior to 15 September 6th, 1995, had you participated in a deployment 16 of the Crowd Management Unit? 17 A: No, I had not. 18 Q: So September 6th was the first time? 19 A: That's correct. 20 Q: And yesterday I asked you if you had 21 been spoken to by Staff Sergeant Wade Lacroix prior to 22 leaving the MNR parking lot. Do you recall that? 23 A: I recall you asking me, yes. 24 Q: And what I meant by that was -- and I 25 don't think I made it clear, was the CMU briefed by Staff

14

1 Sergeant Wade Lacroix as a group before -- 2 A: Yes, I believe we were, yes. 3 Q: And do you recall what Staff Sergeant 4 Lacroix said? 5 A: My recollection was that we were 6 going to proceed down East Parkway and move the Native 7 occupiers off of the public beach area back into the Park 8 if necessary. 9 Q: And by the public beach area, you're 10 referring to the sandy parking lot? 11 A: That's correct. 12 Q: And was the CMU spoken to by John 13 Carson, do you recall? 14 A: I don't recall that. 15 16 (BRIEF PAUSE) 17 18 COMMISSIONER SIDNEY LINDEN: The answer 19 was "I don't recall that". Did that come on the system? 20 Yes, that's fine. 21 22 CONTINUED BY MR. DERRY MILLAR: 23 Q: Now, after you were suited up at the 24 MNR parking lot, what happened? 25 A: We formed up as a CMU unit and

15

1 proceeded to march in formation down east on East Parkway 2 Drive towards the intersection of Army Camp Road. 3 Q: And can you recall the formation that 4 you were in when you began the march down East Parkway 5 Drive? 6 A: I believe we were in -- I believe 7 what the formation was at the time we started from the 8 parking lot was a block formation. 9 Q: A block or a box formation? 10 A: Or a box formation, sorry. 11 Q: And where were you located in the 12 box? 13 A: I was right in the rear ranks to the 14 very rear of the thirty-two (32) person unit. And my 15 best recollection was I was at the far -- the second 16 person from the far left. 17 Q: Okay. And -- and as you were walking 18 down the road? 19 A: That's correct. 20 Q: And your notes with respect to the 21 evening of September 6th are marked P-1518 and are at Tab 22 11 of your book, or you can refer to your original notes 23 if you wish. 24 And can you tell us what you recall of 25 what happened during the deployment of the CMU down East

16

1 Parkway Drive? 2 A: Again we proceeded eastbound on East 3 Parkway Drive. And approximately halfway down the road 4 towards the intersection at Army Camp Drive there was a 5 report I believe, from Staff Sergeant Lacroix that there 6 was some intelligence that there was a sighting of a 7 possible long gun in possession by one (1) of the -- the 8 Native occupiers near the intersection. 9 So at that time he -- he requested or 10 advised us to split the formation and -- and take a knee 11 and await further instruction. 12 Q: And then what happened? 13 A: We did that shortly thereafter. The 14 confirmation was that it was not a firearm. We then 15 proceeded, to my recollection, get back in to that box 16 formation and proceed again eastbound on Army Camp Road. 17 I'm sorry, eastbound on East Parkway Drive 18 towards Army Camp Road. 19 Q: Towards Army Camp Road? 20 A: That's correct. 21 Q: And then as you proceeded down East 22 Parkway Drive to Army Camp Road what happened next? 23 A: Upon getting close to the 24 intersection I observed a group of Native occupiers in 25 the vicinity of the sandy parking lot and the

17

1 intersection of Army Camp Road and East Parkway. There 2 was a lot of yelling and shouting. There was -- I -- I 3 observed a -- a bonfire somewhere in the area. I don't 4 recall exactly where it was. 5 Q: And when you say that you observed 6 some occupiers on the sandy parking lot near the entrance 7 area what are you referring to, the entrance area -- the 8 entrance to the Provincial Park, or the entrance to the 9 sandy parking lot at the intersection of Army Camp Road 10 and East Parkway Drive? 11 A: My recollection going by my notes 12 I've got approximately twenty (2) Native persons 13 occupying the public beach entrance area. And my 14 recollection was that was just -- just east of the 15 intersection of Army Camp Road and East Parkway, 16 somewhere in that vicinity; that's my recollection. 17 Q: Towards -- could -- could you tell if 18 these individuals were on the inside or the outside of 19 the Park? 20 A: They were on the outside of the Park. 21 Q: And at this point in time when the 22 CMU reached the intersection did the CMU, was it still in 23 the box formation or did it change its formation? 24 A: At one (1) point we -- we changed 25 into a, what we call a cordon formation, but I don't

18

1 recall exactly when that took place. 2 Q: Okay. And at the point in time when 3 you reached the intersection at the -- of Army Camp Road 4 and East Parkway Drive and the entrance to the sandy 5 parking lot where it runs north off that intersection, 6 where were you located in the -- in the CMU? 7 A: I'd be in the same position at the 8 far rear rank towards the left. 9 Q: And so the -- there were a number of 10 officers in front of you? 11 A: Yes. 12 Q: And those officers all had shields? 13 A: That's correct. 14 Q: And the -- at the point in time when 15 you saw the occupiers that you've made a note of, twenty 16 (20) individuals, where were you? Were you still on East 17 Parkway Drive at the end of the CMU or up closer? 18 A: No, I was still -- my recollection is 19 I was still on East Parkway at the rear of the CMU. 20 Q: And had the CMU proceeded to go into 21 the sandy parking lot at this point? 22 A: Not at this point, I don't recall at 23 this point. 24 Q: And the fire that you observed, was 25 it inside or outside the Park?

19

1 A: I don't recall where exactly the -- 2 the fire -- 3 Q: Okay. 4 A: -- was. 5 Q: And then what happened? 6 A: During this we were -- we were being, 7 I've got pelted by rocks and other debris. There were 8 several things being thrown at us. 9 One of the -- I've got a quote in my 10 notebook. One of the -- the Native occupiers yelled out 11 at us. I've got: 12 "Get off our land, cops. My 13 grandfather died here and I'm prepared 14 to die here, too." 15 Q: And -- 16 A: What -- 17 Q: Excuse me. 18 A: Go ahead. 19 Q: You were -- 20 A: Right about at that time, Staff 21 Sergeant Lacroix gave the command to move forward. I 22 believe that was an initial -- initially there was -- 23 there were two (2) punchouts. I believe that was, at 24 that time, just a left punchout. 25 The -- the Native occupiers, I observed

20

1 them upon this left punchout to -- to retreat back 2 towards the -- further east and into the -- further into 3 the sandy parking lot. 4 At that time, my understanding was we 5 received a further command to backup because we had 6 accomplished, at that point, what we needed to 7 accomplish. 8 Q: And at that point the occupiers had 9 moved back into the -- into the Provincial Park behind 10 the fence? 11 A: I don't recall if they went back 12 behind the fence, but they moved further east from our 13 position. 14 Q: And do you have independent 15 recollection of these events, or are you using your notes 16 to refresh your memory? 17 A: I'm doing both. I'm using my notes, 18 obviously, and I have a -- a dim recollection of the 19 events that happened that night. 20 Q: And without your notes, would you 21 have any recollection? 22 A: Yes, I would, yes. 23 Q: And then the -- you indicated that 24 the -- you understood that you had accomplished what you 25 were intended to do when the occupiers moved off the

21

1 sandy parking lot? 2 A: At that point, yes. 3 Q: And then you said a command was given 4 to move back? 5 A: That's correct. 6 Q: And the left punchout that you've 7 referred to was by the left Cover Squad; is that -- 8 A: That's my recollection, yes. 9 Q: And the -- those individuals moved 10 forward? 11 A: That's correct. 12 Q: And then -- then what happened? 13 A: Upon moving back as instructed, I 14 believe we waited there momentarily, continually again 15 being pelted with rocks and debris. There were objects 16 that had been litten up -- lit on fire; pieces of wood or 17 some -- or whatnot being thrown at us. 18 At that point, another command was given 19 to move forward by Staff Sergeant Lacroix. And at this - 20 - this point, this was as opposed to just a -- a left 21 punchout, it was, in my recollection, a full squad 22 punchout. We all were commanded to move forward. 23 At that time we did and most of the Native 24 occupiers did the same as they did the first time, 25 retreated, back eastbound towards the -- or further into

22

1 the sandy parking lot. And then I observed the Contact 2 Squad making contact or struggling with a single person 3 that apparently had not retreated like the rest. 4 Q: And then? 5 A: Shortly thereafter, again this is 6 during -- it was pretty chaotic with all the objects 7 being thrown at us and whatnot, a command from Staff 8 Sergeant Lacroix was given for the Arrest Squad, my unit, 9 to proceed up to their location and assist or recover, 10 arrest and remove this individual that had come into 11 contact with the Contact Squad. 12 Q: Okay, so that -- and if I could just 13 take you to Exhibit P-1518, your notes, for a moment. 14 Your notes indicate that after the command 15 was given to move back, the notes indicate that: 16 "A group of Natives then move forward 17 onto the public beach entrance and then 18 into intersection of Army Camp Road and 19 East Parkway"? 20 A: That's correct. 21 Q: And at this point, was the CMU back 22 at -- on -- at the intersection of East Parkway Drive and 23 Army Camp Road? 24 A: I believe at that point -- at least I 25 was in my unit, the Arrest Squad were back on East

23

1 Parkway. I'm not certain exactly where the front ranks 2 were situated, whether they were still in the sandy 3 parking lot or -- or whatnot. 4 Q: And your notes indicate and I'm on 5 page 17 which has the number 904 at the top of the page 6 for the benefit of My Friends. Your notes indicate 7 you're still being pelted with the same objects thrown 8 since this time. 9 Does that refer to -- 10 A: Yes. 11 Q: -- the stones and other objects being 12 thrown at you? 13 A: That's correct. 14 Q: And the -- can you recall today how 15 far down East Parkway Drive you were when you were backed 16 up to East Parkway Drive? 17 A: Upon the second -- 18 Q: When you -- 19 A: -- when we backed up? 20 Q: When you backed up? 21 A: No, I would be speculating. 22 Q: And then you indicated -- and your 23 notes indicate that a command was given to advance. And 24 your notes indicate: 25 "Command to advance given. Natives

24

1 retreat but one (1) did not and was 2 confronted by CMU frontline." 3 A: That's correct. 4 Q: And that's the Contact Squad you're 5 referring to? 6 A: Yes. 7 Q: And then you said that Sergeant 8 Lacroix asked the Arrest Unit to move forward? 9 A: That's correct. 10 Q: And did -- how did he do that? Do 11 you recall? 12 A: The only way he could have done that, 13 my recollection would be by way of the radio in our 14 headsets in our helmets. 15 Q: Do you recall the radio -- 16 A: Specifically, no. 17 Q: Do you recall if the command was 18 given to Wayde Jacklin. He was the leader of the Arrest 19 Unit, wasn't he? 20 A: That's correct. 21 Q: And then given to the Arrest Unit? 22 A: I don't recall that. 23 Q: You don't recall how the command was 24 given? 25 A: I don't recall specifically how the

25

1 command was given. 2 Q: But you do recall that the Arrest 3 Unit was to move forward? 4 A: That's correct. 5 Q: And when you -- so did you as part of 6 the Arrest Unit, move forward? 7 A: I'm sorry? 8 Q: Did you as part of the Arrest -- 9 A: Yes, I did. 10 Q: And what did you observe? 11 A: We're moving forward quite quickly 12 and as I'm running up towards where I believe the -- this 13 confrontation is taking place, I observe several officers 14 standing around an individual lying on the ground. 15 Q: Yes. And when you say "several 16 officers", can you tell us today how many officers? 17 A: I -- approximately eight (8) to ten 18 (10). 19 Q: Okay. And I note that in the notes, 20 you don't have a note of that, but that's your best 21 recollection today? 22 A: That's always been my recollection 23 from -- from day 1. 24 Q: And what did you observe the officers 25 doing, if anything, when you first saw the officers

26

1 around the individual on the ground? 2 A: My recollection was the -- the 3 officers were trying to, if I can use the word 'subdue', 4 or take control of the person lying on the ground. 5 Q: And the -- what exactly were the 6 officers doing? 7 A: There were several officers with 8 hands on attempting to restrain this person lying on the 9 ground who was actively, aggressively resisting the 10 arrest. 11 Q: Well, I appreciate that but what -- 12 so that a number of several officers had their hands on 13 the individual on the ground? 14 A: That's my recollection, yes. 15 Q: And what else were the officers 16 doing, if anything? 17 A: Specifically, there was -- I -- I did 18 observe a baton being struck. The individual was struck 19 by a baton. 20 Q: And the baton that the individual was 21 struck by, do you recall was it an ASP baton, was it a 22 wooden baton? 23 A: It was an ASP baton. 24 Q: An ASP baton. And was the -- where 25 did you see the individual struck by the ASP baton?

27

1 A: I don't recall specifically where. I 2 remember seeing an ASP coming down on the individual, but 3 that's as specific as I -- I can recall. 4 Q: And was the individual on his back or 5 on his stomach when you first observed the individual? 6 A: On his back. 7 Q: And what did you observe the 8 individual doing? 9 A: His arms and legs were flailing, and 10 again I've always testified as he was actively resisting; 11 he -- he was being combative. 12 Q: But the -- I appreciate that but the 13 words, "actively resisting" and "combative" are really 14 conclusions. Can you tell me what exactly he was doing? 15 What was he doing? 16 A: Okay. Again he was flailing -- he 17 was kicking and flailing his arms wildly. 18 Q: And then the individuals that were -- 19 that were around him when you first around him were 20 individuals from the Contact Squad or from where do you 21 know? 22 A: I don't know. 23 Q: They were not individuals in the 24 Arrest Unit? 25 A: No, not at that time, no.

28

1 Q: Then what happened? 2 A: My job specifically that evening was 3 to handcuff any individual we took into custody so I had 4 a pair of these plastic tie-wraps that we use. And 5 therefore I'm rushing up there knowing that there's an 6 individual to take into custody and I'm looking for his 7 arms in order to place these plastic cuffs on. 8 Q: And when you arrived was he still on 9 his back? 10 A: To my recollection, yes. 11 Q: And was he moved onto his stomach? 12 A: He may have been, I don't recall. 13 Q: And then you were trying to handcuff 14 his arms with the plastic flex-cuffs? 15 A: That's right. 16 Q: And his arms in front of him or 17 behind him or do you -- 18 A: Ultimately behind his back. 19 Q: And how did you -- how would -- how 20 did you get to behind his back? 21 A: I -- I didn't. 22 Q: Okay. That's what you wanted to do? 23 A: That's what I wanted to do. 24 Q: Okay. Then what happened? 25 A: Again, as I'm there I'm -- I'm

29

1 looking to grab his hands and he -- he again is flailing 2 his arms and I can't get control of his arms in order to 3 place the handcuffs on him. And at that point I believe 4 it was Wade Jacklin just said, Forget it, stop and let's 5 move him out of here. 6 Because again we're -- we're taking a 7 barrage of debris being thrown at -- and it was coming 8 down all over us and for our safety and even his safety 9 we -- we didn't feel it was safe at that time in order to 10 continue any longer. 11 Q: And were you struck by -- with -- by 12 anything? 13 A: Yes, I was. 14 Q: And where were you struck? 15 A: I don't recall it at the time but I 16 was struck in the head by something. My helmet was 17 seized at a later date. 18 Q: And why was it seized? 19 A: Because there was a -- a chunk or a 20 piece missing from it from some sort of -- sort of 21 debris. 22 Q: And that chunk wasn't missing prior 23 to -- 24 A: That's correct. 25 Q: -- the evening?

30

1 A: That's correct. 2 Q: And was missing when you finished in 3 the sandy parking lot? 4 A: That's correct. 5 Q: And just before we go on can you tell 6 us what the lighting was in the sandy parking lot or as 7 you put it the beach area when you first arrived in -- 8 down at the sandy parking lot or beach area? 9 A: I recall it being very dark. There 10 was some artificial lighting, some sort of spotlight. 11 Again there was a -- a glow from a -- a bonfire somewhere 12 in the area but other than that it was a fairly dark -- 13 dark evening. 14 Q: And was the -- and when you say, 15 "artificial light," are you referring to -- what are you 16 referring to? 17 A: Again there was some type of 18 spotlight or headlights -- 19 Q: And that's -- 20 A: -- and a bonfire. 21 Q: Okay. And then after the order was 22 given to -- excuse me. When you first arrived at -- 23 where the individual was on the ground did you hear 24 anyone saying anything to the person on the ground? 25 A: I don't recall anything being said

31

1 specifically, no. 2 Q: Did you hear anyone say to him, 3 "savage" or words to that effect? 4 A: No, not at all. 5 Q: Did you hear the individual on the 6 ground say anything? 7 A: No, nothing. 8 Q: Did you hear the individual on the 9 ground say, "I quit" or "I give up"? 10 A: No, not at all. 11 Q: Then what happened? You were given 12 the command to move the individual on the ground? 13 A: Yeah, I believe that was just a 14 verbal command from Wayde Jacklin to my left or right and 15 we picked him up. I don't recall specifically who all 16 picked him up but there were two (2) or three (3) of us 17 and we proceeded to pick him up and move him back west, 18 down East Parkway out of the immediate area, out of the 19 threat, away from the threat. 20 Q: And you say, "away from the threat"? 21 A: Away from where he was where it was 22 obviously unsafe to continue with the arrest. 23 Q: And then when -- do you recall how 24 the individual was carried? 25 A: Specifically, no. I don't recall how

32

1 he was carried. 2 Q: And do you recall anyone -- do you 3 recall him being dragged on the ground? 4 A: No, I -- he was never dragged. 5 Q: Pardon me? 6 A: I don't believe he was ever dragged. 7 Q: And did you -- did you pull his hair 8 or observe anyone pull his hair? 9 A: No, not at all. 10 Q: Pardon me? 11 A: No, not at all. 12 Q: And the -- then what happened? 13 A: My next recollection is -- is 14 arriving at the prisoner van which was some distance west 15 of where we removed the individual from and he was placed 16 into the rear of the prisoner van. And I recall 17 Constable Zacher being in the prisoner van or going into 18 the prisoner van with -- with this individual. 19 Q: Yes. And then what happened? 20 A: Shortly -- shortly after that, and it 21 was somewhat unclear to me, but I -- I believe there was 22 some type of -- someone alerted us to some -- some other 23 threat that there was a motor vehicle of some type coming 24 down the road. 25 And my next recollection is I observed a -

33

1 - a school bus coming towards us, westbound on East 2 Parkway and I had known from the start that if there was 3 a threat of anything like that, our job was to get out of 4 the way. 5 Q: Yes. And so...? 6 A: So I end up moving to the north, the 7 water side of the road and I entered a ditch there or a 8 small gully of some type and I was -- ended up being next 9 to Constable Ternovan and we awaited until -- until 10 things calmed down. 11 Simultaneous to this, at some point, I 12 heard gunfire. I don't recall the specific order of the 13 bus, the car and the gunfire, but all of this seemed to 14 happen all at once, so I just did what I had to do and I 15 got out of the way. 16 Q: And when you were in the ditch with 17 Constable Ternovan on -- or the area of the north side of 18 East Parkway Drive, and the bus went by, and do you have 19 a recollection today of seeing a car? 20 A: I don't have a specific recollection 21 of the car, no. 22 Q: And I note that it -- there's no 23 reference to the car in your notes? 24 A: No. 25 Q: And so the reference is -- the car is

34

1 something you've learned since, that there was a car? 2 A: Yes. I guess it was, yes. 3 Q: And so on the evening of September 4 the 6th you didn't see the car, you saw the bus? 5 A: Saw the bus. I don't recall 6 specifically seeing a car. 7 Q: And then the shooting that you heard, 8 what did you hear? 9 A: I just recall hearing what I believed 10 was gunfire, gunshots. I don't recall how many shots. I 11 have noted, I believe, several. And again this is -- 12 seemed to be all simultaneous with everything else that 13 was going on at the time. 14 And that's -- that's my recollection of 15 the gunfire. 16 Q: And did you see anyone that evening 17 with a firearm in their hands, when you were -- at the 18 point you heard the -- the gunfire? 19 A: No. No one. 20 Q: Did you see any police officers with 21 firearms in their hand? 22 A: No. No. 23 Q: And whether a revolver or a long gun 24 that they were shooting? You saw no policeman shooting? 25 A: None. No.

35

1 Q: Did you see any of the occupiers or 2 protesters with a firearm in their hands? 3 A: Never. 4 Q: Did you -- now in your notes you 5 indicate, and this is at page 18, that: 6 "Assist with carrying the person to 7 prisoner van and securing. Person was 8 a non-white male, approximately 9 thirties, 200 plus pounds wearing 10 military green jacket." 11 And was that -- you -- this was a note you 12 made as I understand it on September the 7th. And that 13 was your observation of the individual that you help 14 carry? 15 A: That's correct. 16 Q: And then your note indicates: 17 "Natives still advancing at this point, 18 throwing objects. Command given to 19 maintain retreating." 20 A: That's correct. 21 Q: And what do you recall of that? As 22 you were down -- going down East Parkway Drive with the 23 prisoner, the -- what were the protesters doing? 24 A: As I'm assisting the prisoner back to 25 the prisoner van?

36

1 Q: Yes. 2 A: I don't recall. I've got my back to 3 them because I'm not moving westbound. 4 Q: Okay. And the -- so that at the -- 5 at the point you're moving down the road, you don't know 6 what the protesters are doing? 7 A: No. I -- I can't say specifically 8 what they're doing, no. 9 Q: And when was the -- what -- you have 10 note: 11 "Command given to maintain retreating." 12 And what do you -- what do you mean by 13 that? 14 A: Well we -- were retreating. We were 15 moving back and I've noted that we -- I must have 16 overheard a command to keep retreating. 17 Q: Okay. And then the -- your notes 18 indicate: 19 "Someone advised Command Post to obtain 20 ambulance." 21 A: That's correct. 22 Q: And do you know who called for the 23 ambulance or why they called for the ambulance? 24 A: No, I don't know who, no. 25 Q: And do you know why?

37

1 A: No. 2 Q: And when you got to the police van 3 with the individual that you had picked up from the sandy 4 parking lot, did you make any observations as to his 5 condition? 6 A: Yeah. The only -- the only injuries 7 that I noted were some -- a laceration of some type to 8 his face. He had some blood on his face. 9 Q: Blood on his face? 10 A: Yes. 11 Q: And anything else? 12 A: Nothing else. 13 Q: And do you recall today what his 14 condition was? Was he speaking, was he loud, was he 15 quiet? Do you have any recollection? 16 A: Yeah. My -- yeah, my recollection 17 was he was quiet. 18 Q: And when he was being carried back to 19 -- from where you -- he was picked up in the sandy 20 parking lot, do you recall what he was doing as he was 21 being carried back? 22 A: No. 23 Q: And do you recall was he quiet at 24 that point or kicking and flailing? Or do you recall? 25 A: No. I don't specifically recall, no.

38

1 Q: Okay. Then your note indicates 2 after: 3 "Someone advised Command Post obtain 4 ambulance." 5 The note says: 6 "Then gunfire overheard from ahead of 7 us. Several shots." 8 And at this point in time where it 9 indicates, "Someone advised Command Post to obtain 10 ambulance" were you at the -- at the prisoner van? 11 A: Yeah, I would have been very close if 12 not there, yes. 13 Q: And the reference to "from ahead of 14 us" what does that refer to -- 15 A: It refers to towards the 16 intersection, Army Camp Road and East Parkway. 17 Q: Towards the intersection? 18 A: Yes. 19 Q: Then after the -- did you see the 20 bus? Did the bus come back down East Parkway Drive and 21 past you? And You saw it come out; did you see it go 22 back? 23 A: I recall it -- I recall it coming 24 past me. I don't necessarily recall it going back. 25 Q: Okay. And then what happened?

39

1 A: At that point I regrouped on the 2 roadway. I believe there was a head count done making 3 sure everybody was there, and I recall some informal 4 form-up and we -- we proceeded back towards, west towards 5 the TOC site. 6 Q: The MNR parking lot? 7 A: Yes, that's correct. 8 Q: And the -- do you recall other than - 9 - and you've said that you didn't recall being hit in the 10 helmet, were you hit with anything else? 11 A: Not that I recall. 12 Q: Okay. And then once you were back at 13 the TOC site what happened? 14 A: P/C Jacklin and I were assigned to do 15 security for the TOC site. 16 Q: And when you say, "do security," for 17 the -- what do you mean by that, sir? 18 A: Just maintain a visual on the -- on 19 the Command Post there in the MNR parking lot in case 20 there was something going to happen there, just -- we 21 were sort of sitting off to the side there. 22 Q: And -- and that was close to the St. 23 John's Ambulance? 24 A: That's correct. 25 Q: And when you arrived back in the --

40

1 the CMU arrived back in the Command Post the... 2 3 (BRIEF PAUSE) 4 5 Q: Did Wayde Jacklin speak to the CMU, 6 do you recall? 7 A: Wayde Jacklin? 8 Q: I mean Wade Lacroix? 9 A: He may have, I don't recall that. 10 Q: Did John Carson speak to the CMU? 11 A: I don't specifically recall that 12 either. 13 Q: You don't recall? 14 A: I don't recall, no. 15 Q: Okay. And then you -- the assignment 16 that you were given with Constable Jacklin was to secure 17 the TOC site and then what did you do, sir? 18 A: I attended Checkpoint Alpha, 19 northeast of the TOC site, to relieve a couple of other 20 ERT members from 2 District. 21 Q: Okay. 22 A: Then approximately 10:30 a.m. I was 23 advised to return to Forest Detachment. I believe at 24 some point prior to that I assisted with some evacuation 25 on East Parkway Drive.

41

1 Q: Okay. And before we get to that, 2 when you were in the sandy parking lot the -- and the 3 individual that was in the sandy parking lot, was he 4 being -- when you first saw him was he being held down by 5 the other officers? 6 A: Yes, it appeared that way, yes. 7 Q: And when you say, "it appeared that 8 way," can you give us a little -- a description of what 9 the officers were doing? 10 A: Again there were approximately eight 11 (8) to ten (10) officers around him. He's lying down. 12 They were obviously over top of him. As far as what they 13 were specifically doing I don't recall because I'm 14 focussed on him at the time because I have to go and 15 remove him, secure and remove him, so I'm not necessarily 16 watching the officers specifically as to what they were 17 doing. 18 Q: Okay. And when you were in the sandy 19 parking lot with the individual that you were attempting 20 to put the handcuffs on, do you recall being kicked? 21 A: Yeah, I'd forgotten about that. I -- 22 I was kicked in the, I believe it was my right leg, I 23 believe. 24 Q: And do you know who kicked you? 25 A: No, I'm not certain.

42

1 Q: So you don't know if it was the 2 individual on the ground or another officer? 3 A: No, I don't know who it was. 4 Q: And do you recall if the individual's 5 boots were taken off? 6 7 (BRIEF PAUSE) 8 9 A: No. I've since learned that, but I 10 don't recall that at the time. 11 Q: And then the -- if I could ask you to 12 turn to Tab -- excuse me, Tab 15 of the book in front of 13 you. 14 15 (BRIEF PAUSE) 16 17 Q: And, Commissioner, I'm just going to 18 play... 19 20 21 (AUDIOTAPE PLAYED, TRANSCRIPT TO FOLLOW) 22 23 [Lima 1 = Lima 1] 24 [PC Root = PC Root and Ternovan] 25

43

1 Lima 1: PC Root from Lima 1, hardly heard you at 2 all. PC Root:Go ahead, Lima 1. 3 Lima 1: That Root? 4 PC Root: 10-4. 5 Lima 1: Pause on the cue, Mike. Are you guys 6 ready to do the evacuation? 7 PC Root: Yeah. That's 10-4. 8 Lima 1: Okay. You'll start west, west of the TOC, 9 and continue west on that road. We 10 haven't been able to contact any people. 11 We haven't got their numbers and that. 12 Make sure you identify yourselves. Tell 13 them to grab some things for a couple of 14 days. They'll be allowed to drive their 15 vehicles. And go west on Parkway to 16 Ipperwash Road, then Ipperwash Road past 17 21 Highway to get to . to get to Forest so 18 far. 10-4. 19 PC Root: Yeah. That's 10-4. 20 Lima 1: If they've got relatives to go to, that's 21 fine. If not, they're to go to the Legion 22 Hall at Forest. But they are not to go 23 onto 21 Highway at all, north or south. 24 They'll be a checkpoint they'll go 25 through, anyway. Continue straight down

44

1 the Ipperwash Road. Standby. Okay. Root 2 and Trenovan from Lima 1. Root and 3 Trenovan. 4 PC Root: Go ahead, Lima 1. 5 Lima 1: Okay. Have them take Ipperwash Road south 6 to the Townsend Line, and they can turn 7 right to Highway 21, and then continue 8 south to Forest. So Ipperwash Road south 9 to Townsend Line, turn right to Highway 21 10 into Forest. And if they need a place to 11 stay, the Legion Hall at Forest will be 12 available. 13 PC Root: Yeah. That's 10-4 ... inaudible . . . a 14 vehicle. Take a marked unit ... inaudible 15 Lima 1: Root and Trenovan, I'm going to assign you 16 Echo 1. Is that 10-4? 17 PC Root: Yeah. That's 10-4, Lima 1. As far as the 18 vehicle goes, the marked unit. Is that 19 10-4? 20 Lima 1: Yeah. That would be a good idea. Some of 21 these places are just cottages, and maybe 22 just in the summertime, but we're going to 23 have to try every place. 10-4? 24 PC Root: Yeah. That's 10-4. We've got it. 25 Lima 1: Lima 1, Echo 1, 10-4.

45

1 End of conversation 2 3 (AUDIOTAPE CONCLUDED) 4 5 CONTINUED BY MR. DERRY MILLAR: 6 Q: And do you recognize the voices on 7 that transmission? 8 A: That's definitely my voice. I'm not 9 sure if that's Stan Korosec or not. I can't place that 10 for sure. 11 Q: But -- but you're the individual 12 identified as P/C Root? 13 A: That's correct. 14 Q: And this communication took place the 15 morning of September 7th at 4 -- 04:30 hours? 16 A: It appears to, yes. 17 Q: And does that -- that's what it's 18 noted as. Does that accord with your recollection? 19 A: Yes, that's consistent to what I 20 recall. 21 Q: And, Commissioner, I would ask that 22 this transcript be marked the next exhibit. The -- Mr. 23 Ternovan, Constable Ternovan's name is misspelled in a 24 couple of the locations. It's Ternovan instead of 25 Trenovan but with that correction.

46

1 THE REGISTRAR: Exhibit P-1520, Your 2 Honour. 3 COMMISSIONER SIDNEY LINDEN: Thank you. 4 5 --- EXHIBIT NO. P-1520: Transcript of Region 2. P/C 6 Root and Ternovan - Lima 1, 7 September 07, 1995. 04:30 8 hrs. Chatham Communication 9 Centre, Logger tape number 10 147, Track 12, Disc 12 of 20. 11 12 MR. DERRY MILLAR: And -- 13 THE REGISTRAR: What is the correct 14 spelling, sir? 15 MR. DERRY MILLAR: The Ternovan is T-E-R- 16 N-O-V-A-N. 17 THE REGISTRAR: Thank you, sir. 18 MR. DERRY MILLAR: And if we could mark 19 the next exhibit the CD with the two (2) wave files and 20 the transcripts. 21 THE REGISTRAR: P-1521, Your Honour. 22 23 --- EXHIBIT NO. P-1521: James Root Audio CD. 24 25 MR. DERRY MILLAR: And just for the

47

1 purposes of clarity, the transcript that's at P-1520 on 2 the CD has region 3, it should be region 2. 3 THE REGISTRAR: Thank you. 4 5 CONTINUED BY MR. DERRY MILLAR: 6 Q: Now, the -- you assisted, you and P/C 7 Ternovan and others assisted -- how -- were there just 8 the two (2) of you that did the evacuation? 9 A: I don't recall. 10 Q: Okay. Then the -- you've got in your 11 notes: 12 "Assist with evacuations of houses on 13 East Parkway west of TOC site and also 14 those in residence in two (2) other 15 streets near this location." 16 Do you recall which streets where the -- 17 in the area around the TOC site, west of the TOC site? 18 A: Not specifically, no. 19 Q: Pardon me, you don't -- 20 A: No, I -- 21 Q: -- recall where they were? 22 A: -- don't recall which streets they 23 were. 24 Q: And then your notes say: 25 "Returned to TOC site, assist with

48

1 security of TRU, ERT, TOC sites." 2 And what's that refer to? 3 A: Oh, that's the security I spoke of 4 earlier. P/C Jacklin and I were just sitting near, in 5 the bush line, near the TOC site and providing security 6 for. 7 Q: And that was -- the TRU TOC site 8 referred to what? The TRU -- 9 A: The TRU vehicle, I recall. I believe 10 there must have been a TRU vehicle there. And I believe 11 it was a St. John's Ambulance -- 12 Q: Okay. 13 A: -- vehicle. 14 Q: And were you in a police car or -- 15 A: No, we were on foot. 16 Q: On foot. Then what happened? 17 A: Again it looks -- according to my 18 notes, I relieved P/C Lima from Number 2 District ERT at 19 checkpoint Alpha, northeast of the TOC site. I don't 20 have a specific recollection today of that, but that's 21 what's in my notes. 22 Q: Yes? 23 A: And then again at approximately 24 10:30, I was advised to attend Forest Detachment for a 25 debriefing. I arrived at Forest Detachment and

49

1 apparently attended a debriefing. 2 I don't recall any specifics of that 3 debriefing and I do recall sitting down with, I think he 4 was a Detective Constable at the time, Steve Harris, and 5 I provided him a written statement of the events that 6 occurred the night before. 7 Q: And the debriefing that you refer to, 8 was the -- did -- I know you've just indicated you can't 9 recall anything about the debriefing, but did it relate - 10 - was there a discussion about the events of the evening 11 of September 6th in the sandy parking lot at the 12 debriefing? 13 A: I don't recall that, no. 14 Q: And the statement that you gave to 15 Officer Harris, if you could turn to Tab 16. 16 17 (BRIEF PAUSE) 18 19 Q: There's a copy of Inquiry Document 20 1000390 and the first page is an -- is typed. The first 21 two (2) pages and then -- three (3) pages -- excuse me 22 and then there are three (3) handwritten pages. 23 And are the handwritten pages your -- 24 written by you, sir? 25 A: No.

50

1 Q: No. And that's the -- written by Mr. 2 Harris? 3 A: That's correct. 4 Q: And -- but this represents your 5 interview? 6 A: Yes. 7 Q: And I would ask that this be marked 8 the next exhibit. 9 THE REGISTRAR: P-1522, Your Honour. 10 11 --- EXHIBIT NO. P-1522: Document Number 1000390. 12 Typed and handwritten 13 statement of James Root, 14 September 07, 1995. 15 16 CONTINUED BY MR. DERRY MILLAR: 17 Q: And have you had the opportunity to 18 review this statement -- 19 A: Yes, I have. 20 Q: -- since giving it? 21 A: Yes, I have. 22 Q: And is the statement accurate? 23 A: Yes. 24 Q: Then your notes indicate -- if you 25 could back to Tab 11 that you were off-duty at 14:00

51

1 hours? 2 A: That's correct. 3 Q: And then there's a note: 4 "Thirty (30) hours overtime." 5 A: Right. 6 Q: And what does that refer to. 7 A: I believe I was -- I had been off on 8 vacation or on a rest day during this event. I just 9 represented the time that I'd be claiming. 10 Q: Oh, I see. And when did you learn 11 that someone had died as a result of the incident on the 12 evening of September the 6th? 13 A: My best recollection would be some 14 time the morning or early afternoon of the 7th. Probably 15 the morning. 16 Q: Pardon me? 17 A: Probably the morning of the 7th. 18 Q: And did you learn who had died? 19 A: Yeah, I -- I believe at the time I -- 20 I was given a name, yes. 21 Q: And that was Mr. Dudley George? 22 A: Yes. 23 Q: And prior -- had you known the name 24 Dudley George prior to learning that -- that he was the 25 person who died?

52

1 A: I don't think I'd ever heard the 2 name. 3 Q: And did you know on the evening of 4 September the 6th, the identity of the individual that -- 5 that you dealt with in the sandy parking lot and moved 6 back to the prisoner van? 7 A: That evening of the 6th? 8 Q: Yes. 9 A: I don't believe so. 10 Q: And did you subsequently learn who 11 the person that you -- the name of the person you were 12 dealing with? 13 A: I believe that at the following 14 morning. 15 Q: And -- 16 A: My understand -- 17 Q: And -- and what name were you given? 18 A: Cecil Bernard George. 19 Q: Had you ever met Cecil Bernard George 20 before? 21 A: No, sir. 22 Q: Then I'd ask you to turn to Tab 14. 23 And these are some notes, there are two (2) pages of 24 notes, Commissioner; one September 8th, 1995 and one 25 September 14th, 1995, the second page.

53

1 And these are your notes, Constable Root? 2 A: That's correct. 3 Q: And I would ask that these two (2) 4 pages be marked the next exhibit. 5 THE REGISTRAR: P-1523, Your Honour. 6 7 --- EXHIBIT NO. P-1523: Handwritten notebook entries 8 of P/C J.L. Root, September 9 07-14, 1995. 10 11 CONTINUED BY MR. DERRY MILLAR: 12 Q: And the reference on September the 13 8th, can you -- there's a note at 07:00 "On-duty." Then 14 there's four (4) lines, could you read those four (4) 15 lines, please? 16 A: "Debriefing with Number 1 ERT. Met 17 with OPP psychologist with Number 1 18 ERT." 19 Q: And can you -- do you recall today 20 what that refers to? 21 A: Yes. I -- I remem -- I recall 22 meeting with David Hoath, I believe his name was, the 23 Forest psychologist at the time at our -- our motel room 24 or a motel room in the Grand Bend area at that time, with 25 the other members of my ERT unit.

54

1 Q: And what did you discuss with -- do 2 you recall what you discussed with Mr. Hoath? 3 A: My recollection is that we discussed 4 our -- our feelings as far as how we were dealing with 5 the -- the situation itself and the fact that, serious as 6 it was, if we were okay. 7 Q: And did you discuss the details of 8 what had happened? 9 A: I don't recall that, no. 10 Q: And then on September 14th, the 11 second page of Exhibit P-1523, there's a note, it says: 12 "11:00 [hyphen]-18:00 meeting." 13 Could you read that note? 14 A: "Meeting DHQ [District Headquarters] 15 regarding ERT shooting at Ipperwash 16 Provincial Park." 17 Q: And then the next line? 18 A: "Eleven o'clock Essex Detachment with 19 -- meet with P/C Zacher, Mortimer." 20 Q: Then continue? 21 A: "12:30 Chatham DHQ. 18:00 Essex 22 Detachment. Five (5) hours to be 23 deducted. Off-duty." 24 Q: And what -- the meeting that you 25 attended, I take it, it started at 12:30 at Chatham

55

1 District Headquarters? 2 A: According to my notes, yes. 3 Q: And what was that about? 4 A: I have -- I have no recollection of 5 attending that meeting. I don't remember that meeting at 6 all, specifically. 7 Q: And do you have an -- any 8 recollection, was it -- was it -- did you discuss what 9 happened that evening? 10 A: At the meeting? 11 Q: Yes. 12 A: I don't recall the meeting 13 whatsoever. 14 Q: You don't have any recollection of 15 the meeting, period? 16 A: Not, specifically, no? 17 Q: Okay. 18 A: Obviously I attended but I don't 19 recall any specifics of it. 20 Q: Okay. And the fall of 1995 did you 21 have any other involvement or significant involvement 22 with Ipperwash? 23 A: I believe I was back there in 24 October, the first part of October. 25 Q: And on -- just on routine patrol?

56

1 A: Yeah, just as in a -- in a standby or 2 routine patrol fashion, nothing specific. 3 Q: Okay. Now, I understand that you 4 gave evidence at the trial of Cecil Bernard George? 5 A: That's correct. 6 Q: And at Tab 18 is a copy of your 7 examination and cross-examination at that trial. And Tab 8 18 has actually already been marked as part of Exhibit P- 9 1424 when the evidence of Mr. Jacklin, Constable Jacklin, 10 was marked, the evidence of Constable Root was also 11 marked as part of the same exhibit. 12 And was the evidence that you gave at the 13 trial of Cecil Bernard George true and accurate as best 14 as -- 15 A: Absolutely. 16 Q: And you also gave evidence, as I 17 understand it, at the trial of Warren Anthony George. 18 And if you could turn to Tab 19 there's the evidence of 19 Constable Root at the Warren George trial. And do you 20 recall giving evidence at the Warren George trial? 21 A: Not specifically but I recall 22 attending both trials, yes. 23 Q: And the evidence that you gave was 24 true and accurate? 25 A: Yes, it was.

57

1 Q: And I would as that we mark -- it's 2 Exhibit -- Inquiry Document 1004976 and it's an extract 3 actually, the evidence of Constable Root, as the next 4 exhibit? 5 THE REGISTRAR: P-1524, Your Honour. 6 7 --- EXHIBIT NO. P-1524: Document Number 1004976. 8 Transcript of R. v Warren 9 Anthony George and David 10 Abraham George: Examination- 11 in-Chief and Cross- 12 examination of James Root, 13 October 03, 1997. 14 15 CONTINUED BY MR. DERRY MILLAR: 16 Q: And we distributed -- and there 17 should be on the inside front cover of your book a note 18 from July 9th, 1997. 19 20 (BRIEF PAUSE) 21 22 Q: And the -- on the exhibit copy, I -- 23 and I think we've already done this, everything should be 24 redacted except July 9, 1997. 25 And can you just read that note for us,

58

1 Constable Root? 2 A: "July 9th, 1997. Wednesday 15:00 to 3 19:00 hours. DA [stands for Department 4 Auto] 13786199. Chatham DHQ regarding 5 interview with Ron Piers for Ipperwash 6 appeal, Ken Deane." 7 Q: And how did -- this note indicates 8 that there was a meeting with Ron Piers? 9 A: Yes, it does. 10 Q: And who was Ron Piers? 11 A: I don't recall. 12 Q: And how did the meeting with Mr. 13 Piers come about? 14 A: Once again, that's another meeting 15 that I have no recollection of. 16 Q: And we understand that Mr. Piers was 17 a retired OPP Commissioned Officer. 18 A: That's my understanding now, yes. 19 Q: That's your understanding now? 20 A: Now, yes. 21 Q: But does that assist you in trying to 22 conjure up this meeting? 23 A: I've tried but I don't have any 24 independent recollection of that meeting. 25 Q: Okay. And do you know how you ended

59

1 up at the meeting? 2 A: I was obviously advised by some 3 superior to attend that meeting, but -- I wouldn't have 4 went on my own. But again, I don't recall who told me to 5 go or any of the contents of that meeting. 6 Q: And do you recall being provided with 7 information by Mr. Piers or anyone as to why he wanted to 8 speak to you? 9 A: No. 10 Q: Did you give him a written statement? 11 A: I've later learned that I -- I 12 believe I gave him some type of information, but I'm 13 learning that just recently. 14 Q: You just learned it in preparation 15 for today? 16 A: Yes. Yes. 17 Q: And did -- I would ask you to turn to 18 Tab 22 of the book in front of you. And this is a copy 19 of Exhibit P-1444, Commissioner, Inquiry Document 20 2005302. 21 And the third page in is page 15 and 22 there's a reference to James Root. And Mr. Root, 23 Constable Root, is this the document that you're 24 referring to that you just learned about? 25 A: Yes.

60

1 Q: And this was the document that I 2 reviewed with you and it was re -- was reviewed in 3 preparation for your attendance to come here? 4 A: That's correct. 5 Q: And there's a note that: 6 "Remembers hearing gunfire while 7 standing at the prisoner's van. He 8 believed the gunfire was coming from 9 the area north and east of his location 10 which would be in front of the Park 11 area and that it was coming from the 12 Natives." 13 Do you recall making that statement to Mr. 14 Piers? 15 A: No, I don't. 16 Q: And the -- you never saw any of the 17 protesters or occupiers, members of the First Nation, 18 with firearms in their hands on the evening of September 19 the 6th? 20 A: That's correct. 21 Q: And is it fair to say you have no 22 idea who was doing the firing? 23 A: That's correct. 24 Q: And that if Mr. Piers has recorded 25 that in this Exhibit P-1444 that it was coming from the

61

1 Natives, he's recorded that incorrectly? 2 A: That's correct. 3 Q: Now I understand that you bought two 4 (2) T-shirts? 5 A: Yes, I did. 6 Q: And that you should have... 7 8 (BRIEF PAUSE) 9 10 Q: You should have in front of you a 11 copy of -- it's on the left-hand side, Constable Root. 12 There's another piece of paper just at the front of the 13 desk. And I'm referring initially to Exhibit P-458 which 14 is, Commissioner, there's a copy in front of you as well, 15 it should be on the desk, it looks like this. 16 And this is a photograph of a T-shirt that 17 has the OPP crest on it and it has a feather at the 18 bottom of the crest. 19 And is this one of the T-shirts that you 20 purchased? 21 A: Yes, it is. 22 Q: And as well I've placed in front of 23 you a photograph of a -- which is -- has been marked 24 Exhibit P-1494 which is taken from a second T-shirt. 25 Did you purchase a T-shirt with the logo

62

1 on it in the photograph that's in front of you? 2 A: Yes, I did. 3 Q: And when did you purchase these two 4 (2) T-shirts? 5 A: I don't recall specifically, but my 6 best recollection would be sometime in September or 7 October of 1995. 8 Q: And did you purchase the T-shirts at 9 the same time? 10 A: I don't recall if I -- I purchased 11 them together or separately. 12 Q: Did you purchase the T-shirt from the 13 same person? 14 A: I don't recall. 15 Q: Do you recall who you purchased 16 either of the T-shirts from? 17 A: No, I do not. 18 Q: And did you see the T-shirts before 19 you purchased them? 20 A: I don't believe so, no. 21 Q: So that you agreed to buy them before 22 the T-shirts were ready? 23 A: That's my recollection. that I -- I 24 paid for either one (1) or both T-shirts prior to seeing 25 them or purchasing -- or receiving them.

63

1 Q: And why did you purchase them? 2 A: My understanding at the time that -- 3 I guess it came down to a camaraderie issue with all 4 persons involved at the -- at the Ipperwash event. 5 Obviously someone had offered them for 6 sale or made mention that they were for sale. And I 7 think at the time I wasn't obviously thinking about what 8 they depicted. Different views on that now, obviously, 9 but that's my only recollection of why I purchased them. 10 Q: And do you have either of the T- 11 shirts now? 12 A: No, sir. 13 Q: And what happened to them? 14 A: My best recollection, I -- I moved 15 residences in, I believe it was January of '97. I moved 16 from the City of Windsor to the Town of Belle River and 17 at that point, obviously, when I'm packing up I -- my -- 18 my recollection would have been to dispose of any 19 unwanted or unneeded items and I think that at that 20 point, I would have discarded them. 21 Q: And do you -- you say at that point 22 you would have -- 23 A: Yeah, I believe that's when I 24 discarded them. They were definitely thrown in the 25 garbage, but I don't recall if that's specifically when I

64

1 did it or not, but sometime around that timeframe. 2 Q: Okay. Do you -- 3 A: In relation to my move. 4 Q: And it -- so -- at -- at or around 5 January 1997, you threw them away? 6 A: That's correct. 7 Q: And you can't remember if it was in 8 relation to the move or not? 9 A: I believe it was. 10 Q: And but -- now, starting with Exhibit 11 P-458, when you saw the T-shirt and the logo on it, were 12 you aware that to First Nations individuals the feather 13 lying on the side indicates that someone has died? 14 A: No, sir, not at all. 15 Q: And did you learn that subsequently? 16 A: Just recently. 17 Q: Just recently? 18 A: Very recently. 19 Q: And what did you think that the arrow 20 on the -- the feather on its side meant when you saw this 21 T-shirt? 22 A: Well, initially I don't think I 23 thought anything of it. But since, obviously, I -- I 24 believe that it's a representation of -- of possibly 25 Native protesters and specifically that -- for that T-

65

1 shirt, it represents obviously, Ipperwash, the OPP, ERT 2 an TRU, 1995, and then possibly with the feather, Native 3 protesters. 4 Q: And but at the time, you weren't 5 aware of the significance of the feather? 6 A: Not at all. 7 Q: And what about the photograph of 8 Exhibit P-1494? When you received the T-shirt with that 9 logo on it, what did that signify to you? 10 A: Again it initially didn't signify 11 anything to me other than what stands out; obviously, is 12 the TRU insignia, ERT represented as a -- an anvil and 13 then the Project Maple '95 which is self-explanatory. 14 I don't know what the intention of the -- 15 the producer of the T-shirts was or their intentions or 16 what it meant. Obviously now I believe it's somewhat -- 17 very controversial but at the time I -- I didn't look at 18 it as -- I didn't pay much attention to the significance 19 of -- of that. 20 Q: Would you agree with me that the -- 21 well, step back. 22 When you saw this logo back when you -- in 23 the fall of 1995 what did you think it meant with the TRU 24 logo on top of the ERT, the ERT being depicted here as an 25 anvil with a broken arrow between?

66

1 A: Well, again I -- I believe it 2 indicates that there's some sort of -- sort of conflict 3 obviously between TRU ERT -- TRU and ERT and what I 4 believe is the Native occupiers. 5 Q: And would you not agree with me that 6 it appears that with the broken arrow that it seems to 7 indicate that TRU and ERT won? 8 A: I can see how some people might 9 interpreted that. 10 Q: Well, how did you interpret that? 11 A: Again I don't -- I don't think I've 12 ever actually interpreted it as that or -- or any 13 otherwise. 14 Q: Would you agree with me that a logo 15 such as this is inappropriate, particularly when a person 16 has died? 17 A: Absolutely. 18 Q: And the -- at the time in 1995 did 19 you see a mug that had been produced? 20 A: Never. No, sir. 21 Q: And in September of 1995 were you -- 22 did you -- after September 6th, from what you've told us, 23 I take it you weren't in the Ipperwash area until early 24 October? 25 A: That's -- yeah, that's my

67

1 recollection, yes. 2 Q: So that did you see a beer can with a 3 feather? 4 A: No, sir, never. 5 Q: Did you see a -- a police -- an OPP - 6 - a police cruiser with a bull's eye on the side of it 7 and an arrow? 8 A: No, sir. 9 Q: And did you see any cartoons at the 10 Pinery Park bunkhouse? 11 A: No, sir. 12 Q: And did you participate in any way in 13 the investigation -- in an investigation with respect to 14 the mug and the feather T-shirt in 1996? 15 A: In -- no way. I just learned about 16 that investigation just recently. 17 Q: And when you were at Ipperwash, the 18 Ipperwash area on September 4th to 6th did you work with 19 Constables Whitehead and Dyke? 20 A: I don't even know those two (2) 21 individuals. 22 Q: You don't know them? 23 A: Not by name. Perhaps to see them, 24 but no, I didn't work directly with them, no. 25 Q: And what affect, if any, did the

68

1 incident on September 6th have on you, Constable Root? 2 A: Well, it's -- it's had a profound 3 affect on me. I think there's -- there's probably not a 4 week or a month that goes by that I don't in some way, 5 shape, or form reflect on it. But I was there to do my 6 job an unfortunately things didn't turn out as -- as 7 probably as well as they should have but... 8 Q: And when you say you reflect on it, 9 what do you mean by that? 10 A: I can't clarify it any more than 11 that. 12 Q: And before we end is there anything 13 else you wish to say to the Commissioner? 14 A: No, sir. 15 Q: And thank you. That's the conclusion 16 of the examination-in-chief. I wish to thank Constable 17 Root for attending and perhaps we could canvass our -- 18 COMMISSIONER SIDNEY LINDEN: Thank you, 19 Mr. Millar. 20 MR. DERRY MILLAR: -- My Friends for the 21 cross-examination. 22 COMMISSIONER SIDNEY LINDEN: Thank you, 23 Mr. Millar. Anybody have any questions of this Witness? 24 Mr. Alexander...? 25 MR. BASIL ALEXANDER: Ten (10) to fifteen

69

1 (15) minutes. 2 COMMISSIONER SIDNEY LINDEN: Fifteen 3 (15)? 4 MR. BASIL ALEXANDER: Ten (10) to fifteen 5 (15). 6 COMMISSIONER SIDNEY LINDEN: Ten (10) to 7 fifteen (15)? 8 MS. JACKIE ESMONDE: Forty-five (45) 9 minutes to an hour. 10 COMMISSIONER SIDNEY LINDEN: Mr. 11 Scullion...? 12 MR. KEVIN SCULLION: Thirty (30) to 13 forty-five (45). 14 COMMISSIONER SIDNEY LINDEN: Ms. 15 Johnson...? 16 MR. DERRY MILLAR: Ms. Esmonde, I'm 17 sorry, it was -- was twenty-five (25) minutes to an hour. 18 MS. JACKIE ESMONDE: Forty-five (45) 19 minutes to an hour. 20 MR. DERRY MILLAR: Forty-five (45) 21 minutes to an hour? And then -- 22 COMMISSIONER SIDNEY LINDEN: Mr. 23 Scullion...? 24 MR. KEVIN SCULLION: Thirty (30) to 25 forty-five (45) minutes, sir.

70

1 MR. DERRY MILLAR: Mr. Scullion, thirty 2 (30) to forty-five (45) minutes. 3 COMMISSIONER SIDNEY LINDEN: Ms. 4 Johnson...? 5 MS. COLLEEN JOHNSON: An hour to an hour 6 and fifteen (15) minutes. 7 MR. DERRY MILLAR: Ms. Johnson, an hour 8 to an hour and fifteen (15) minutes. 9 COMMISSIONER SIDNEY LINDEN: Mr. 10 Mathai...? 11 MR. SUNIL MATHAI: Ten (10) to fifteen 12 (15) minutes. 13 MR. DERRY MILLAR: And Mr. Mathai on be - 14 - ten (10) to fifteen (15) minutes. 15 COMMISSIONER SIDNEY LINDEN: What's the 16 total time, Mr. Millar, roughly? 17 MR. DERRY MILLAR: That adds up -- it 18 runs from two point six (2.6) hours to three point five 19 (3.5) hours. 20 COMMISSIONER SIDNEY LINDEN: Well, we'll 21 take a short break now and come back and start the cross- 22 examination. 23 MR. DERRY MILLAR: Thank you. 24 THE REGISTRAR: This Inquiry will recess 25 for fifteen (15) minutes.

71

1 2 --- Upon recessing at 10:20 a.m. 3 --- Upon resuming at 10:35 a.m. 4 5 THE REGISTRAR: This Inquiry is now 6 resumed. Please be seated. 7 MR. DERRY MILLAR: Commissioner, before 8 we start, I neglected to mark the one (1) page of notes 9 for July 9th, 1997 as an exhibit. It should be the next 10 exhibit. 11 THE REGISTRAR: P-1525, Your Honour. 12 MR. DERRY MILLAR: Thank you. 13 THE REGISTRAR: The notes of July the 14 9th, 1997. 15 16 --- EXHIBIT NO. P-1525: James Root handwritten 17 notebook entries, July 09, 18 1997. 19 20 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 21 Alexander...? 22 MR. BASIL ALEXANDER: Good morning, Mr. 23 Commissioner. 24 COMMISSIONER SIDNEY LINDEN: Good 25 morning.

72

1 2 CROSS-EXAMINATION BY MR. BASIL ALEXANDER: 3 Q: Good morning, Constable Root. 4 A: Good morning. 5 Q: My name is Basil Alexander and I'm 6 one of the lawyers for the Estate of Dudley George and 7 several members of the George family including Sam 8 George, who was unable to be here this morning due to 9 another commitment. 10 And I just have a few questions to ask you 11 this morning. 12 To start off with, I'm basically only 13 going to be referring to two (2) tabs in your documents; 14 that'll be Tab 11 which for counsel's reference, I think 15 is our actual Tab 12. Commissioner, I think it's your 16 Tab 11. 17 And it's Inquiry Document Number 100 -- 18 1000859, Exhibit P-1518, and Tab 16 which is Inquiry 19 Document Number 1000390, Exhibit P-1522. 20 Just so you knew which documents I'll be 21 referring to, sir. 22 Now, as I understand your evidence in- 23 chief yesterday, you indicated that you thought you did 24 your notes early in the afternoon on September the 7th, 25 correct?

73

1 A: Either the morning or the early 2 afternoon of the 7th. 3 Q: I'm going to try to help you with 4 that a little bit. If I look at your notes, for the 5 course of the notes, particularly the last page on page 6 19, you've been through this in your evidence in-chief 7 and I don't intend to go through it again, but it seems 8 that you were involved and on-duty and doing various 9 tasks during the course of -- during the course of -- 10 during the course of the morning up -- right up until 11 the debrief, and then the interview occurred late -- at 12 about twelve o'clock -- twelve o'clock that day. 13 Do you want to have a look at that just to 14 refresh -- 15 A: I'm just -- 16 Q: -- your memory? 17 A: -- referring to them now here. What 18 page of my notes are you on? 19 Q: Page 19. 20 A: 19. 21 Q: For My Friends, it has a 906 in the 22 corner. 23 A: Okay, if you just repeat the 24 question, please. 25 Q: I'm -- I'm -- what I'm going to

74

1 suggest is you were on-duty for most of the period 2 because it appears that the -- your notes about the 3 incident and the previous page and then the rest of the 4 notes up until the end of page 19 is about the various 5 other duties you had on. 6 And just to briefly summarise, I don't 7 want to go through this in a huge amount of detail, you 8 were involved in security at the TOC, you were involved 9 in evacuations, you were at checkpoints, you were -- and 10 then you were called back to Forest to debrief and then 11 the interview occurred. 12 So I'm going to suggest to you that it 13 doesn't seem that there was a lot of time during that 14 morning to actually -- for you to actually write your 15 notes. 16 A: Again, there may have been time in 17 there for me to complete my notes, but I don't recall 18 specifically when they were made. 19 Q: Okay. The other reason I'm doing 20 that is if I look at your statement and I compare it to 21 your notes, there are some differences. And in 22 particular, you don't seem to be -- it doesn't to 23 parallel your notes. 24 So I'm trying to determine whether or not 25 your notes may have been taken shortly after the

75

1 statement was written. And I note that the statement was 2 started at 12:05 and completed at 12:38. 3 I'm just seeing if that assists your 4 recollection as to whether or not it may have occurred 5 after the -- after the statement was actually taken. 6 A: I think that's fair to -- to assume 7 that they were made probably after the interview was 8 given. 9 Q: So this statement is probably your 10 earliest recollection of what happened that evening; is 11 that fair? 12 A: The earliest form of written? 13 Q: Yes. 14 A: I guess I can agree with that, sure. 15 Q: Now, if I take you -- now if you look 16 at your statement, we've been through the statement in 17 some detail; it's -- it's your recollection as it was at 18 that point to Detective Constable Harris of the events of 19 that evening. 20 And what I'm interested in is at the top 21 of page 3 and just so you know, at the bottom of page 2 22 it says -- it discusses you taking the prison to the 23 prisoner van. 24 "The Natives came towards us. We were 25 given the command to keep retreating."

76

1 Do you see that? 2 A: Yes, I do. 3 Q: And then at the top of the third 4 page, it says: 5 "I think at this point I heard gunfire. 6 I couldn't tell where it was coming 7 from. Then I observed a yellow school 8 bus fastly approaching our position on 9 East Parkway. It was driven 10 erratically." 11 And then it keeps going on about the bus. 12 Do you see that, sir? 13 A: I see that. 14 Q: Now you've already testified that you 15 have no idea who did the gunfire, correct? 16 A: That's correct. 17 Q: And you've also said that you can't 18 recall the specific order of the car, the gunfire and the 19 bus and this seems to be -- it seems to relate to that, 20 while you say 'I think' so I think at that point, 21 correct? 22 A: We're retreating then I -- I think at 23 this point it says: 24 "I heard gunfire. Then I observed a 25 yellow school bus."

77

1 So I've got it in that order. 2 Q: Yeah. So again though, your -- in 3 your mind at this point again it reinforces that you were 4 not sure at this point of the order because it's 'I 5 think'. 6 A: No. According to my earliest 7 recollection, my earliest account, it was in that order. 8 I heard gunfire, couldn't tell where it was coming from, 9 then I observed a school bus. 10 Q: But again, it says 'I think' so 11 you're not certain about that at this point. 12 A: I can only go by what I -- what I 13 wrote and my earliest recollection. 14 Q: Okay. So we'll go with 'I think'. 15 That's what it says there. 16 A: That's what it says. 17 Q: And then the next line says: 18 "I couldn't tell where it was coming 19 from." 20 So it seems that you have no -- also no 21 idea as to where the gunfire was from. 22 A: I have an idea where the gunfire was 23 coming from, a general vicinity. 24 Q: Hmm hmm. 25 A: And it would be east of where I was.

78

1 Q: But you didn't say that here. You 2 said you had no idea where the gunfire was coming from. 3 A: I agree with that. 4 Q: And finally, in terms of the period 5 and interval over which you heard the gunfire, was it 6 just one (1) period an interval that you heard the 7 gunfire? 8 A: Can you break -- can you be more 9 specific? 10 Q: Did you hear any lulls between the 11 gunfire? 12 A: I -- I recall hearing several shots 13 and I don't recall how they were spaced out. 14 Q: Thank you, Constable Root, those are 15 my questions. 16 COMMISSIONER SIDNEY LINDEN: Thank you, 17 Mr. Alexander. 18 Ms. Esmonde...? 19 20 (BRIEF PAUSE) 21 22 COMMISSIONER SIDNEY LINDEN: Good 23 morning. 24 25 CROSS-EXAMINATION BY MS. JACKIE ESMONDE:

79

1 Q: Good morning, Constable Root. 2 A: Good morning. 3 Q: My name is Jackie Esmonde and I'll be 4 asking you some questions on behalf of the Aazhoodena and 5 George Family Group. 6 Now you told us yesterday that you 7 understood that the purpose of the checkpoints was to 8 gather intelligence to see who specifically was going to 9 and from the area of the Army Camp. 10 A: I believe that's what I said, yes. 11 Q: And -- can I take it that you gained 12 that understanding from the briefings that you attended 13 in which your duties at the checkpoints were described? 14 A: I don't recall if I was specifically 15 given that information at a briefing, but that would have 16 come from an ERT leader, one (1) of my superiors. 17 Q: Do you recall specifically who -- who 18 directed you with respect to your duties at the 19 checkpoints? 20 A: No, I don't. 21 Q: Now, while you were at the 22 checkpoints you did stop some vehicles? 23 A: Yes, I did. 24 Q: And that's reflected in your notes? 25 A: Yes.

80

1 Q: Your notes from September 4th 2 indicate that several vehicles were stopped. If you wish 3 to turn to it, it's September 4th, 1995, page 14. I 4 believe your notes are at Tab 9, for My Friends. 5 6 (BRIEF PAUSE) 7 8 Q: Do you have that? 9 10 A: Yes, I do. 11 Q: Okay. It says: 12 "Several vehicles stopped going to and 13 from area of Ipperwash Provincial 14 Park?" 15 A: That's correct. 16 Q: And then you may recall that your 17 notes from September 5th and September 6th from your time 18 at the checkpoints indicate that several vehicle checks 19 were completed? 20 A: Yes, I -- I performed several vehicle 21 checks over the course of those few days, yes. 22 Q: Now, can you tell me what -- what did 23 you do when you stopped a vehicle or you engaged in a 24 vehicle check? 25 A: I don't recall specifically.

81

1 Q: I take it you would check the ID of 2 the driver? 3 A: We may have. Again that wouldn't 4 have been by myself, there would have been at least 5 another officer with me. I don't recall if we would have 6 specifically asked for actual identification or not. 7 Some of the officers were familiar with some of the 8 parties that frequented to and from the area. That's my 9 recollection. 10 Q: Now, were your instructions to strop - 11 - to stop all vehicles at the checkpoints? 12 A: Given the fact that it was a 13 checkpoint, yeah, all vehicles would be -- would be 14 stopped and checked. 15 Q: And given that your understanding was 16 that you were stopping vehicles for intelligence purpose, 17 I take it that you would be interested in knowing the 18 names of the people who were in the vehicles? 19 A: Yes. 20 Q: And you would have recorded their 21 names in some way on a -- a checkpoint report perhaps? 22 A: I believe they would have been 23 recorded in some -- some form, yes. 24 Q: And you were taking the names of the 25 drivers and the passengers?

82

1 A: I -- I believe so, yes. 2 Q: And in order for that to serve any 3 intelligence purpose you must have passed that 4 information onto another officer? 5 A: I don't recall that at all. 6 Q: You don't recall? 7 A: No, I don't. 8 Q: What was done with -- with the names 9 that you gathered? 10 A: If I gathered specific names they 11 would have went in my notebook and there I -- I see 12 there's a lot of times that I referred to attending a 13 checkpoint and checking vehicles. My recollection would 14 be if I didn't write specific names down at the time at 15 those checks that someone else did. 16 Q: Okay. 17 A: So I can't give evidence to that. 18 Q: And were you taking the names of -- 19 of everyone who was passing through the checkpoints or 20 just those that you thought may be entering the Park or 21 the Army Camp? 22 A: Again I don't have a -- a 23 recollection of that, but if it was a checkpoint then all 24 persons would likely be checked. 25 Q: Okay. What about pedestrians? Were

83

1 you taking the names of pedestrians, or any of the other 2 officers at the checkpoint with you? 3 A: I don't recall. 4 Q: You testified yesterday regarding the 5 operation when the picnic tables were removed? 6 A: Yes. 7 Q: And you told us that before you went 8 down there you were advised that you would be entering 9 the Park to retrieve the picnic tables. Do you recall 10 that evidence? 11 A: I just want to refer to my notes 12 here. 13 14 (BRIEF PAUSE) 15 16 Q: Yes. 17 Q: So I -- I take it, it was your 18 understanding before you arrived at the -- that 19 intersection that the picnic tables were inside the Park? 20 A: I've got -- I've got in my notes that 21 I was advised to enter the Park at the beach area to 22 retrieve the picture -- picnic tables. I don't recall 23 where the picnic tables were. 24 Q: Okay, but before -- can we take it 25 from your notes and from what you can recall that before

84

1 you went down there it was your understanding that you 2 would be entering the Park? 3 A: No, I can't -- I can't say that for 4 sure, no. 5 Q: Okay. That is what is recorded in 6 your notes though? 7 A: It says we are to enter Park. 8 Whether I -- I don't believe I did, but that's what's in 9 my notes. 10 Q: Right. I'm interested in what your 11 instructions were before you arrived. 12 A: I don't recall my instructions. 13 14 (BRIEF PAUSE) 15 16 Q: Now, moving ahead then to just before 17 the CMU began its march down the road. I understand from 18 your evidence that it was your understanding that your 19 mission, as part of the CMU, was to move the occupiers of 20 the Ipperwash Provincial Park off of the intersection of 21 Army Camp Road and East Parkway Drive, or that sandy 22 parking lot? 23 A: Yeah, that's correct. That was my 24 understanding. 25 Q: And if anyone -- if any of the Stoney

85

1 Pointers remained in that intersection that it was your 2 mission to remove them by force? 3 A: I don't specifically remember that 4 being what I was advised to do, nor was that my 5 intention. But I -- my understanding was we were going 6 to move them back into the Park area. 7 Q: Was that the extent of the plan as 8 you understood it? 9 A: I don't recall the specifics of the 10 plan. And I knew that once, and only if we encountered 11 someone that needed to be arrested, I knew my -- my 12 duties at the time in relation to any arrest. 13 Q: Now, was there any discussion in the 14 briefings that you were part of, of a scenario in which 15 the CMU arrived at that intersection and found that the 16 Stoney Pointers were, perhaps, in the sandy parking lot 17 but not engaged in any kind of behaviour that would 18 constitute a threat to public safety? 19 Was that scenario discussed? 20 A: I don't recall any specifics of any 21 briefing in regards to anything prior to marching down 22 East Parkway. 23 Q: Okay. And what was the plan, as you 24 understood it, if you arrived at the sandy parking lot 25 and there was no one in the parking lot?

86

1 A: I don't know what the plan was at 2 that time. I understood the plan to be to march down 3 East Parkway and then at that point, if I was instructed 4 to assist in the arrest of someone, then I would be 5 instructed to do so. 6 Q: Were you aware of any plan for the 7 scenario where you arrived at the sandy parking lot and 8 the people went to the other side of the fence? 9 A: Well, again it's -- 10 Q: What were you to do in that 11 situation? 12 A: Again as -- as I've already give 13 evidence, that did occur when we first punched out. The 14 occupiers retreated, therefore we retreated, because that 15 was my understanding that that was all that we wanted to 16 have happen at that point. 17 Q: Now, when you say that you 18 retreated... 19 A: We moved back. 20 Q: You moved -- 21 A: We didn't retreat. 22 Q: -- back and -- 23 A: We moved -- 24 Q: -- took up a position on the 25 pavement; is that right?

87

1 A: I don't recall exactly where we took 2 our position up, but we moved back. It would be west. 3 Q: Okay. But you took up a position and 4 stopped? 5 A: That's my recollection, yes. 6 7 (BRIEF PAUSE) 8 9 Q: Were you aware of any plan to set up 10 a checkpoint in the area in order to prevent Stoney 11 Pointers from crossing over the fence again into the 12 sandy parking lot? 13 A: No, I don't recall that. 14 Q: So all you knew is that the CMU was 15 going to go to the end of the road and you'd get your 16 instructions once you arrived there? 17 A: Like I say, I knew the basic plan and 18 then if there were further updates, I wasn't privy to at 19 the time, I'd be instructed at that time. 20 Q: And what was your understanding of 21 why the CMU was marching down the road? 22 A: To move the protesters off of the 23 public area of the sandy parking lot and the 24 intersection, if need be, back into the Park. 25 Q: But why was it important to have them

88

1 on one (1) side of the fence as opposed to the other? 2 A: I don't know why it was important to 3 have them there. I was just instructed that that's what 4 we were doing. 5 Q: So you -- you don't know anything 6 more about the reason why the CMU was marching down the 7 road? 8 A: I can't be -- 9 Q: That wasn't part of a briefing? 10 A: It may have been, but again I don't 11 have recollection of that briefing. 12 Q: So you're going to move the sand -- 13 the Stoney Pointers out of the sandy parking lot if they 14 were indeed there, but you didn't know why that was 15 occurring? 16 A: I knew why it was occurring; that's 17 what we were instructed to do. What was going to happen 18 if they did oblige or they didn't, then that would be -- 19 I'd be further instructed at that time. 20 Q: Okay. Now, is it fair to say that 21 the Crowd Management Unit operates with a buddy system? 22 You are paired up with another officer? 23 A: Yeah, that's fair to say. 24 Q: And who were you partnered with? 25 A: Constable Jacklin.

89

1 Q: And Constable Jacklin was the leader 2 of the Arrest Squad? 3 A: I believe he's assigned as the 4 leader, yes. 5 Q: So would you be the Second in Command 6 of the Arrest Squad? 7 A: No. 8 Q: What was your role in that squad? 9 A: I was just a member of the eight (8) 10 person Arrest Squad. 11 Q: And the purpose of a buddy system is 12 that -- that -- so that no officer is alone, there's 13 another officer that's looking out for them? 14 A: That's the general idea. 15 Q: And the idea is that those officers 16 who are partnered together should stay beside each other 17 as much as that is possible? 18 A: Not necessarily. But you're standing 19 in -- in groups of two (2), forming a group of eight (8). 20 He was standing with me and I guess we could call him my 21 -- my partner at the time. But if things -- if things 22 happened that -- you know, split us up and we'll deal 23 with that if that time come. 24 Q: Right. That's why I say, as much as 25 possible you would stay with your partner?

90

1 A: Yes, I'll agree with that. 2 Q: And in order to do that, it would be 3 important for you to be able to recognize Constable 4 Jacklin? 5 A: I -- I can recognize all the officers 6 in the Arrest Squad. 7 Q: Sorry. You said you -- 8 A: I could recognize the officers in the 9 -- in the Arrest Squad. 10 Q: Okay. And you could recognize them 11 by seeing their faces through the helmets? 12 A: No. 13 Q: How did you recognize them? 14 A: Just by stature and physical 15 appearance. 16 17 (BRIEF PAUSE) 18 19 Q: In addition, your squad was dressed 20 differently than the other members of the CMU? 21 A: I don't believe we were dressed 22 differently, no. 23 Q: Okay. You did not have shields? 24 A: That's correct. 25 Q: And we heard from Const -- Detective

91

1 Constable Poole that he was not carrying a baton either. 2 He was hands free. Were you hands -- is that correct? 3 Were you hands free? 4 A: That's my recollection, yes, I was. 5 Q: Now the -- the other members of the 6 CMU and the other squads, you -- you would be able to 7 recognize them by their -- their stature and physical 8 appearance? 9 A: No. 10 Q: And why -- how -- why is that you 11 could recognize the members of your squad but not from 12 the other squads? 13 A: Well for one, I -- I suppose I -- 14 there would be certain individuals in the entire group 15 that I may be -- be able to identify just because I've 16 known some of those individuals for a period of time. 17 Some of those individuals I hadn't even met. 18 Q: Okay. What individuals could -- do 19 you think you could recognize? 20 A: I -- I don't know. I'm not sure who 21 specifically I could recognize. 22 Q: Now you were wearing a helmet. 23 A: That's correct. 24 Q: And that would have muffled sound. 25 A: Sound from outside sources; is that

92

1 what you're saying? 2 Q: That's right. 3 A: Somewhat. 4 Q: Somewhat. And the -- the visor over 5 your face, that would have obstructed your vision 6 somewhat? 7 A: No, I had a fairly clear vision 8 through the visor. It's designed for that purpose. 9 Q: Now you mentioned that there were 10 spotlights. These were -- these were shone at the 11 officers by the people -- by the Stoney Pointers, was 12 that your understanding? 13 A: I -- I recall a spotlight or what I 14 described as a spotlight. I don't know how many there 15 were if there were more than one (1). But yeah, there 16 was some form of spotlight being shone in our direction. 17 Q: And that -- that blinded you to some 18 extent? 19 A: It didn't blind me. It -- it, you 20 know, it had an affect on the way I saw things. 21 Q: And -- and can you tell me what 22 effect it had on the way you saw things? 23 A: I still had a good view of persons 24 and what was going on in front of me. But there's a 25 light shining at you, it's going to be some -- a little

93

1 bit of a distraction. 2 Q: We've heard also that there was sand 3 being kicked up in the sandy parking lot that created 4 some dust. You saw that? 5 A: I've heard that. I don't -- I don't 6 recall that specifically. 7 Q: Would you agree that the equipment 8 that you were wearing made it difficult for you to move 9 quickly? 10 A: I think you'll have to define 11 'quickly'. I -- I find that the equipment was designed 12 in order to be very free and we had no -- I had no 13 personal -- or nor did I hear anyone having any 14 difficulty moving in the equipment. 15 Q: Now, when you -- when you saw the 16 people on the sandy parking lot you would agree with me 17 that they were not near a fire? 18 A: I've always given evidence that I'm 19 not certain where exactly the fire was so I can't say 20 whether they were near or how far from it if they weren't 21 near it. 22 Q: But -- Okay. But when you picture it 23 in your mind and you see the people in the sandy parking 24 lot can you -- can you see if they're near a fire? 25 A: No, I can't.

94

1 Q: Okay. Does that mean you can't 2 recall or that you don't remember there being a fire near 3 them? 4 A: I remember there being a bonfire. In 5 relation to where the people were standing I don't 6 recall. 7 Q: Now, you described there were two (2) 8 different punchouts and I'm interested in the second 9 punchout. 10 Now, just prior to the full CMU punchout I 11 believe you described that you heard one (1) person who 12 was shouting? 13 A: There were several persons shouting. 14 I -- I quoted one (1) individual; that's what caught my 15 attention. 16 Q: Okay. So there was one (1) person 17 shouting that stood out in your mind? 18 A: Verbally, not physically. 19 Q: Correct. Okay. 20 A: Right. 21 Q: And am I right that you heard the 22 shouting just before the second punchout? 23 A: I don't recall specifically when I -- 24 when I heard that nor -- or if I made a note as to when I 25 heard it.

95

1 (BRIEF PAUSE) 2 3 Q: Your notation is on page 16 of your 4 notes, which is in my Tab 12 and I believe is in your Tab 5 10, and that's been marked as P-1518 Document Number 6 1000859. 7 I just want to clarify when it was, if 8 this assists you when it was that you heard -- 9 A: Yeah. I -- I see -- I see where I've 10 made the quote, but I don't recall nor did I -- I 11 indicate when this -- this quote was made. 12 Q: Now, the person that you saw make 13 contact with the squad in front of you, you observed that 14 person before the contact was made? 15 A: No, I'm not certain that I did. I 16 don't recall that, no. 17 Q: We heard from Sergeant Huntley that 18 it was his impression that the person who made contact -- 19 who he saw make contact with the front squad realized 20 that he was too far out to make it back into the Park so 21 he turned to go -- so he took up a defensive stance? 22 Now, would you agree that the person who 23 made contact with that squad appeared as though they 24 could not make it back into the Park before the punchout 25 reached him?

96

1 A: I couldn't tell that from my 2 position. Again I'm in the far rear ranks of the thirty- 3 two (32) person CMU. 4 Q: Was -- was it not your impression 5 that he was not able to successfully retreat with the 6 other First Nations people? 7 A: It's always been my evidence that I 8 think his intention was to retreat and he failed to do so 9 and then was arrested. 10 Q: When you say, "he -- he failed to do 11 so", do you mean that he could not do so? 12 A: No, I don't mean that. I just mean 13 that he did not successfully retreat if that was his 14 intention. 15 Q: Okay. When you say, "he did not 16 successfully retreat," does that not imply that he could 17 not -- he wouldn't have been able to successfully 18 retreat, but that he attempt -- 19 A: Maybe I can clarify it. I -- I don't 20 know the reason why he did not retreat with the others. 21 Whether it was his intention to do so or not he did not 22 and that's -- that's the reason for his arrest. 23 Q: Now, I understand that you don't -- 24 you wouldn't be able to read his mind or understand his 25 intent but your impression was that he could not --

97

1 MR. DERRY MILLAR: But how -- how can he 2 -- how can he say anything about what was in the minds of 3 the protestors? 4 COMMISSIONER SIDNEY LINDEN: All he can 5 say is that he was -- 6 MS. JACKIE ESMONDE: Well, that's what I 7 just said. I -- 8 COMMISSIONER SIDNEY LINDEN: All he can 9 say is he was unsuccessful, which he said. 10 MS. JACKIE ESMONDE: He can -- he can say 11 that his impression -- what his impression was from the 12 movements of the person. 13 14 CONTINUED BY MS. JACKIE ESMONDE: 15 Q: And I understand that it was your 16 impression from what you observed that he could not 17 successfully retreat? 18 COMMISSIONER SIDNEY LINDEN: I had the 19 impression that he said he did not, not he could not, so 20 I'm not sure what -- 21 22 CONTINUED BY MS. JACKIE ESMONDE: 23 Q: Sorry, that he did not successfully 24 retreat? 25 A: He -- he was -- he was -- he

98

1 obviously did not retreat, because he was arrested. I 2 have no idea what his intention was. 3 Q: But it was your impression that he 4 did not successfully retreat? 5 A: No, it -- to clarify, it's -- it was 6 my -- it's my understanding he did not retreat and 7 therefore was arrested. I don't know if it was supposed 8 to be success -- successful retreat or not. I don't 9 know. 10 Q: Can I ask you to turn to Tab 18 which 11 is a copy of your testimony from the trial of Cecil 12 Bernard George. It's been marked as P-1424, Inquiry 13 document 1004978. 14 And you testified on July 15th, 1996. At 15 page 310... 16 17 (BRIEF PAUSE) 18 19 Q: At the very bottom you'll see you're 20 giving an answer? 21 A: Yes. 22 Q: And you say: 23 "At that point again..." 24 I'm looking at the third line up. 25 "At that point again, the occupiers

99

1 retreated and at that point the 2 defendant was encountered by police as 3 he did not successfully retreat with 4 the rest of the occupiers." 5 Now, did you give that answer on that 6 occasion? 7 A: Yes, I did. 8 Q: And you were under Oath? 9 A: Yes, I was. 10 Q: And you were testifying truthfully, 11 to the best of your ability? 12 A: Absolutely. 13 Q: And you'd agree with me that the -- 14 the terminology you used at that time was that he did not 15 successfully retreat? 16 A: That's how I -- I -- the terminology 17 I used at that time, yes. 18 Q: And you agree with that terminology 19 today? 20 A: I suppose I don't really understand 21 the terminology as far as 'successfully'. I'm telling 22 you today what I recall. 23 Obviously I said that and I meant that at 24 the time. All's I can -- all's I can tell you in 25 clarification is that one (1) person did not retreat and

100

1 was arrested, initially by the Contact Squad and then 2 further by the Arrest Squad. 3 Q: Okay, you -- did -- these were your 4 words at the time? 5 A: Yes. 6 Q: And 'successfully' -- the word 7 'successfully' was not a term that was suggested to you 8 by the question? 9 10 (BRIEF PAUSE) 11 12 A: No, it wasn't. 13 Q: Thank you. 14 15 (BRIEF PAUSE) 16 17 Q: Now, you've told us that you -- about 18 seeing the individual on the ground and seeing him being 19 struck by a baton. 20 A: Yes. 21 Q: And who was it who struck him with 22 the baton? 23 A: I have no idea. 24 Q: Can I take from that that if the 25 person who struck him with the baton was not one of the

101

1 officers that you knew prior to that evening? 2 A: I couldn't -- I couldn't tell you. 3 It may have been, I don't know. 4 Q: Now was he not struck by more than 5 one (1) baton? 6 A: I think I've always testified to 7 seeing two (2) -- more than one (1) baton strike, but 8 it's always been my relection -- recollection that it's 9 never been more than three (3) . 10 Whether that was done by one (1) person 11 and one (1) baton, or two (2) persons and two (2) batons, 12 I don't recall. 13 Q: So you -- your recollection is that 14 you saw between two (2) and three (3) baton strikes? 15 A: Yes. 16 Q: And can you describe those baton -- 17 baton strikes a little more fully? Was the arm fully 18 back and brought down on the person on the ground? 19 A: No. My recollection and they weren't 20 -- they weren't the type of swings, violent swings, if I 21 can describe them as that, like you just described with 22 your hand over your head. 23 They were more of a -- a short swing in 24 order to obviously have the person stop resisting. 25 Q: Now, the person that you -- you dealt

102

1 with and ultimately took back to the prisoner van, was 2 that the only person that you saw on the ground in the 3 sandy parking lot? 4 A: Yes. 5 Q: And when you initially arrived, the 6 person we now know as Cecil Bernard George was on his 7 back? 8 A: That's my recollection, yes. 9 Q: And then he was placed on his stomach 10 when the arrest squad arrived? 11 A: I don't recall specifically if he was 12 ever put on to his stomach. I know that I attempted to 13 handcuff him, could not do so, but I don't know if he was 14 ever on his stomach or not. 15 Q: Well, you were attempting to handcuff 16 him behind his back? 17 A: I was attempting to handcuff him. I 18 believe I should have been attempting to handcuff him 19 behind his back. He was on his back so I don't recall if 20 he ever made it over to his stomach or if he was just 21 carried out of there at that point. 22 Q: Okay. Well let me see if I can help 23 to refresh your memory. If I could turn you again to the 24 transcript of your evidence in the trial of Cecil Bernard 25 George at Tab 18, P-1424.

103

1 Oh pardon me, it's actually your testimony 2 in R vs. Warren George which is at Tab 19 and has been 3 marked as 1524, Inquiry Document 1004976 at page 86 of 4 that transcript. 5 Sorry, if you look -- the question is on 6 page 85. And you were asked during cross-examination by 7 Mr. House. 8 "So you come up and you say that he's 9 on his back originally?" 10 Your answer on page 86: 11 "Originally, for a brief time on his 12 back. 13 Q: Okay, for a brief time and then 14 he's turned over on his stomach, 15 correct? 16 Your answer: 17 "Correct." 18 A: Okay. 19 Q: Does that assist you to refresh your 20 memory that he was placed on his stomach? 21 A: Yes. 22 Q: And -- and how was he placed on his 23 stomach? 24 A: I -- I don't recall. 25 Q: And did his face make contact with

104

1 the ground when he was turned over? 2 A: I don't recall that. 3 Q: Can you identify any of the -- the 4 eight (8) to ten (10) officers that surrounded Cecil 5 Bernard George as the arrest squad was moving forward? 6 A: Prior to the arrest squad arriving? 7 Q: That's right. 8 A: None. 9 Q: Did they have shields? 10 A: I -- I don't recall. 11 Q: But they had batons? At least one 12 (1) person had a baton? 13 A: I saw at least one (1) baton. 14 Q: And that would suggest that that was 15 someone other than the arrest squad? 16 A: Yeah they weren't members of the 17 Arrest Squad. Everyone else carried a shield. Whether 18 they had with them at that time, I can't testify to that. 19 Q: Okay. So you're quite certain that 20 the eight (8) to ten (10) officers that were surrounding 21 Cecil Bernard George were not members of the Arrest 22 Squad? 23 A: Prior to us arriving there, there had 24 to have been, other than the Arrest Squad. 25 Q: Now you've described what you

105

1 characterize as Mr. Cecil Bernard George resisting 2 arrest. But is it fair to say you do not know if he had 3 been placed under arrest or not? 4 A: Formally, I -- I don't believe he had 5 been. 6 Q: You didn't hear anybody say 'You're 7 under arrest. 8 A: I did not hear anybody say he was 9 under arrest. 10 Q: And the -- the process of formally 11 arresting someone is quite simple is it not? An officer 12 places their hand on the person and says 'You're under 13 arrest; that's all that's required? 14 A: That's the textbook definition, by 15 the way we're trained. 16 Q: And you did not see that occur? 17 A: I'm not sure if it occurred or not. 18 Q: Well, you didn't see -- you did not 19 see or hear that occur? 20 A: I did not hear anyone say 'You are 21 under arrest'. 22 Q: Now you understood that you were 23 arresting him. 24 A: That's correct. 25 Q: And what -- what was your

106

1 understanding of what he was being arrested for? 2 A: At that point I was advised to assist 3 in his arrest and removal and given the circumstances and 4 what was going on, it wasn't of my concern at the time. 5 We had to go in there and fend for ourselves and -- and 6 keep everyone else safe and get him out of there. 7 Q: Okay. Can I take from your answer 8 then you don't know specifically what he was being 9 arrested for? 10 A: Specifically at that time, no, I did 11 not. 12 Q: You were asked some questions about a 13 meeting that apparently took place on September 14th, and 14 that was in your notes. So that my Tab 10 for September 15 14th is, Mr. Commissioner, I believe are at your Tab 16. 16 Now I understand that you don't remember 17 anything about this meeting but can we take from your 18 notes that it must have lasted about five and a half (5 19 1/2) hours? 20 A: Given my notes I arrived at the 21 meeting at approximately 12:30 in Chatham and I returned 22 to Essex at 6:00 p.m. Anywhere between 12:30 and five 23 o'clock, I guess the contents of the meeting would have 24 been discussed. I -- I don't know how long it was. It 25 could have been a very short meeting, I don't know.

107

1 Q: Well, we understand from your notes 2 that the meeting was with respect to the ERT shooting at 3 Ipperwash Provincial Park? 4 A: Yes. 5 Q: And you have a note at 11:00 that you 6 were meeting with P/C Zacher and Mortimer. Can we take 7 from that that they also attended the meeting? 8 A: Yes. 9 Q: Can you -- and who else was there? 10 A: I have no idea. 11 12 (BRIEF PAUSE) 13 14 Q: Now, moving ahead to the T-shirts 15 that you were asked about this morning, now, you've told 16 us that you were not in Forest between September 8th and 17 early October? 18 A: I -- I believe so. That's my 19 recollection, yes. 20 Q: So you would not have purchased the 21 T-shirt in Forest? 22 A: I don't recall where I purchased the 23 T-shirt to tell you the truth. 24 Q: But can we eliminate Forest from the 25 possible places that you could have purchased the T-

108

1 shirt? 2 A: When -- when you say -- what do you 3 mean by Forest? Detachment? 4 Q: Yes, thanks, I mean Forest 5 Detachment. 6 A: I -- my best recollection is that I 7 purchased it at -- in -- at the Pinery, on the Pinery 8 property. 9 Q: When were you at the Pinery Park? 10 A: Well, up -- up to the night of the 11 event, then I left until I believe it's the first or 12 second week of October and it could have been during that 13 time in October that I returned. It could have happened 14 then, I don't recall when it was. 15 Q: And were the T-shirts on display? 16 A: No, I never saw any T-shirts on 17 display anywhere. 18 Q So someone approached you and asked 19 you if you wanted to purchase a T-shirt? 20 A: I don't recall anyone approaching me. 21 Obviously there had to be some form of conversation. I 22 purchases the T-shirts, there's no doubt about that. 23 There was never any advertising it or anything to that 24 nature. 25 Q: And you -- but you can be certain

109

1 that you purchased the T-shirts from an OPP officer? 2 A: No, I can't even say that. I don't 3 recall honestly, who I purchased these shirts from. 4 Q: And did you wear the T-shirt, one (1) 5 or both? 6 A: No, I did not. 7 Q: Did you see others wearing one (1) or 8 the other T-shirts? 9 A: Never saw anyone wear one. 10 Q: Now, the -- the symbol on the black 11 T-shirt, I believe you have that photo in front of you? 12 A: They're both black, which one are you 13 referring to? 14 Q: Oh. 15 16 (BRIEF PAUSE) 17 18 Q: It's the colour photo -- 19 A: Okay. 20 Q: -- P-1494 which depicts ERT, the 21 anvil symbol. Have you ever seen that anvil symbol used 22 in other contexts? Is that a -- a typical symbol you 23 associated with ERT? 24 A: No. 25 Q: And would you agree with Sergeant

110

1 Hebblethwaite who testified earlier this week that an 2 obvious interpretation of the symbol, the logo on that T- 3 shirt is that between TRU and ERT they broke the First 4 Nations people? 5 A: That's not my interpretation now or 6 nor was it ever. Could that be an interpretation by 7 someone? Possibly. 8 Q: You'd agree that's an obvious 9 interpretation of that logo? 10 A: I can't go as far as saying it's an 11 obvious interpretation; that's not my interpretation of 12 it. 13 Q: It's not your interpretation? 14 A: No, I think my -- my interpretation 15 of it would be that there's some form of conflict between 16 TRU and ERT on the one (1) side and given the arrow, 17 possibly the Native protestors on the other and I'll go 18 as far as saying there's conflict. 19 Q: Well, you'd agree, sir, it's not just 20 an arrow it's a broken arrow? 21 A: Yes, I see that. 22 Q: And that's significant in terms of 23 interpreting the meaning of the symbol is it not? 24 A: It's a significant portion of the -- 25 of the T-shirt, yeah.

111

1 Q: And it can't simply be that there was 2 a conflict? 3 A: I don't -- 4 Q: The only -- the only symbol on there 5 that's damaged is that -- that in your view, symbolizes 6 the First Nations protestors? 7 A: I don't -- I don't know how other 8 people are interpreting it. I can only go by my 9 interpretation of it. 10 Q: Okay. So you don't agree with the 11 interpretation that symbolizes that the First Nations 12 people were -- were broken? 13 A: Were broken? No, that's never been 14 my interpretation. 15 Q: Now you told us that you were not 16 even aware that an investigation was lodged into the 17 creation of the T-shirt -- of one of the T-shirts -- 18 A: That's correct. 19 Q: -- and the mug? So I -- can I take 20 from that, that you were never asked whether you had a T- 21 shirt -- 22 A: Never asked. 23 Q: -- as part of that investigation? 24 A: Up until just recently. 25 Q: Okay. It was only until very

112

1 recently that you were asked if you had a T-shirt? 2 A: That's correct. 3 Q: And when were you asked if you had a 4 T-shirt? 5 A: Approximately two (2) weeks ago. 6 Q: And was it one of the Commission 7 Counsel that asked you if you had a T-shirt? 8 A: I don't recall if it was -- I believe 9 it was my lawyer. I don't recall if it was -- I think 10 that was my lawyer. 11 Q: But I won't ask you anything further 12 about a conversation that you had with your lawyer. 13 Can I take it, then, that you're not aware 14 of whether there was a -- any kind of callout from the 15 OPP asking at the time of the investigation which would 16 have taken place in '95 and '96, you're not aware of 17 whether there was a call out asking people who had T- 18 shirts or mugs to come forward? 19 A: No. 20 21 (BRIEF PAUSE) 22 23 Q: Are you aware of whether Kenneth 24 Deane had a T-shirt? 25 A: No idea.

113

1 Q: Or a mug? 2 A: No idea. 3 Q: You're not -- you're not aware? 4 A: I have no idea whether he did or not. 5 Q: Okay. Thank you very much, sir. 6 Thank you, Mr. Commissioner. 7 COMMISSIONER SIDNEY LINDEN: Thank you. 8 Mr. Scullion...? 9 10 (BRIEF PAUSE) 11 12 MR. KEVIN SCULLION: Good morning, Mr. 13 Commissioner. 14 COMMISSIONER SIDNEY LINDEN: Good 15 morning, Mr. Scullion. 16 17 CROSS-EXAMINATION BY MR. KEVIN SCULLION: 18 Q: Good morning, Officer Root. 19 A: Good morning. 20 Q: My name's Kevin Scullion. I'm one of 21 the counsel for the residents of Aazhoodena. You 22 probably know them better as the Stoney Point group? 23 A: Okay. 24 Q: I'm particularly interested in the 25 instructions that you received as part of the Arrest

114

1 Squad when you were getting ready to go down East Parkway 2 Drive. 3 Now I appreciate from your evidence that 4 you're a little vague on the details of the overall 5 instructions, but as part of the Arrest Squad were you 6 given directions as a unit or was it simply part of the 7 overall briefing given to the entire CMU unit? 8 A: My recollection it would have been a 9 -- an overall briefing of the entire unit. 10 Q: All right. Nobody said to you that 11 as the Arrest Squad, here's your specific instructions? 12 A: I don't recall that being said that 13 night, no. 14 Q: All right. You don't recall it being 15 said separately from the general briefing? 16 A: I don't recall the general briefing 17 to begin with so I don't -- I don't recall whether there 18 was a -- a specific mention to -- as to the duties of the 19 Arrest Squad. 20 Q: Okay. Well, what was your 21 understanding of what you were going to be arresting 22 people for that evening? 23 A: My initial understanding was the 24 offence of mischief in relation to property damage or 25 whatnot, and obviously anything that was, you know, come

115

1 to rise in -- in that -- in addition to that. 2 Q: But mischief would be the mere 3 physical presence in that parking lot and not moving when 4 the CMU unit came down the road? 5 Is that correct? 6 A: Yeah, I'd agree with that. 7 Q: Okay. Now as the Arrest Squad if you 8 turn to your Tab 11, hopefully I've got the same setup 9 that you have, there's a chart. Doesn't look good 10 already. 11 An SIU chart? 12 13 (BRIEF PAUSE) 14 15 A: I think I'm at Tab 10. 16 Q: Okay. But you have it in front of 17 you, it's marked P-1416? 18 A: That's correct. 19 Q: Okay. I see your name beside Officer 20 Jacklin at the back end of the unit. Do you see that? 21 To the left of the -- 22 A: Yes. 23 Q: -- Arrest Squad? 24 A: Yes, I do. 25 Q: And is that accurate, to the best of

116

1 your recollection as to where you were, going down the 2 road? 3 A: Yeah, I -- I'm not certain if I was 4 in that pairing or if I was in the pairing immediately to 5 the right of those two (2). 6 Q: Okay. Jack -- Officer Jacklin's 7 testified that you were in the pairing with him, so -- 8 A: Oh, I was definitely with him, yes. 9 Q: You were definitely with him? 10 A: Yes. 11 MR. IAN ROLAND: Commissioner -- 12 COMMISSIONER SIDNEY LINDEN: Yes, Mr. -- 13 MR. IAN ROLAND: -- I think Officer 14 Jacklin testified that he was in the middle of the group, 15 not at the end of the group. He testified as I recall he 16 was in the middle of that Arrest Team group as opposed to 17 the far left of it. 18 MR. KEVIN SCULLION: Officer Jacklin did 19 testify that he was in the middle. I'm not too concerned 20 about placement -- 21 COMMISSIONER SIDNEY LINDEN: Okay. 22 MR. KEVIN SCULLION: -- I just indicate 23 that he had testified he was paired to the extent that 24 the pairing occurs. 25 MR. IAN ROLAND: My Friend was asking

117

1 about placement, so I thought we should get it accurately 2 of what Jacklin said. 3 COMMISSIONER SIDNEY LINDEN: That's fine. 4 Okay. Let's carry on. 5 MR. KEVIN SCULLION: All right. I'm not 6 too concerned about the inconsistency in the placement. 7 COMMISSIONER SIDNEY LINDEN: All right. 8 Let's move on. 9 10 CONTINUED BY MR. KEVIN SCULLION: 11 Q: If I can go back to my question; Do 12 you recall that you were paired to the extent that that 13 word is used with Officer Jacklin in this process? 14 A: Yes. 15 Q: All right. And you didn't have a 16 shield with you, correct? 17 A: That's correct. 18 Q: So I take it that it wasn't part of 19 your function as the arrest team to be engaging with the 20 occupiers themselves, if they were still in the parking 21 lot; that wouldn't be part of your function? 22 A: Well it could be depending on the 23 instructions given. 24 Q: So absent instructions, specific 25 instructions to engage with anybody, your instructions

118

1 were to be simply the Arrest Squad? 2 A: Our duties as the Arrest Squad, if 3 there was a person that needed to be -- an arrest needed 4 to be affected on, that was our duty. 5 Q: All right. And as such, you were at 6 the back of this group that's moving towards the parking 7 lot? 8 A: That's correct. 9 Q: All right. Were you given specific 10 instructions on how an arrest -- a specific arrest by 11 your squad of eight (8) was to occur if there was 12 somebody standing in the parking lot? 13 A: Specific instructions? No. 14 Q: On the mechanics of how that arrest 15 was going to happen or was it up to you to determine how 16 you're going to make that arrest? 17 A: If the issue arose and we were 18 instructed to arrest an individual, it would be up to the 19 unit individuals themselves how to effect that arrest. 20 Q: All right. So you were waiting for 21 instructions on how to effect an arrest as well who to 22 effect the arrest upon. 23 A: No. Not how to effect an arrest. If 24 an arre -- arrest needed to effected we were waiting for 25 those instructions. Once an individual was identified to

119

1 be arrested, that would be entirely up to the eight (8) 2 person unit how to effect the arrest. 3 Q: Okay. I'm just trying to determine 4 your understanding and -- and where my question goes is 5 if there's somebody in the parking lot, was it your 6 understanding that the front of the CMU was going to rush 7 past them in order to allow the arrest squad the access 8 or the opportunity to make that arrest? 9 A: No, I can't say that for certain. 10 Q: All right. 11 A: There was no set plan as far as how 12 that was going to happen. 13 Q: Were you ever instructed or briefed 14 on anybody directing or instructing those in the parking 15 lot to get out of the parking lot and then if they didn't 16 you'd make your arrest? 17 A: Can you repeat that, sorry, just so 18 I'm clear. 19 Q: Were you ever instructed or directed 20 in any way as part of this briefing, that somebody would 21 be directing the people to get out of the parking lot and 22 if they didn't then you'd be making an arrest? 23 A: It may have been. I don't recall 24 that specifically, no. 25 Q: All right. So you can't say one way

120

1 or the other whether that direction was given? 2 A: I don't recall that, no. 3 4 (BRIEF PAUSE) 5 6 Q: Now I was listening to you 7 examination and your testimony this morning and I -- I 8 heard you indicate that you don't recall a car going back 9 into the Park, correct? 10 A: That's correct. 11 Q: And you don't recall the bus going 12 back into the Park? 13 A: Not specifically, no. 14 Q: Okay. You don't recall seeing police 15 with guns in their hands? 16 A: I -- I don't recall ever seeing a 17 police officer with a gun drawn. 18 Q: Okay. Do you recall shield chatter 19 occurring? 20 A: Yes. 21 Q: Do you recall when that happened? 22 A: I'll just refer to my notes. 23 24 (BRIEF PAUSE) 25

121

1 A: Specifically, no. I do recall it but 2 I don't recall when it occurred. 3 Q: Okay. Do you remember it generally? 4 A: Generally. 5 Q: Okay. Is it safe to say that your 6 recollection of these events, given that we're eleven 7 (11) years past, is somewhat vague on the details, but 8 you've been able to reflect generally on what you recall. 9 Is that fair? 10 A: Certain specifics I'm very vague on, 11 yes. 12 Q: Okay. And I -- I put it to you 13 because your testimony has been at odds to an extent with 14 some that have testified already including Staff Sergeant 15 Wade Lacroix and Sergeant Hebblethwaite on -- in terms of 16 when certain things occurred along the way. 17 And in particular what I seem to be 18 hearing from you is you heard a command at the outset to 19 move forward into the parking lot, to clear people out of 20 the parking lot. Do you recall giving that evidence? 21 A: I recall there -- testifying that 22 there were two (2) punchouts. 23 Q: Right. 24 A: One (1) I believe was the -- just the 25 left -- the left cover punchout and then the second one

122

1 was a full punchout -- 2 Q: All right. 3 A: -- full squad punchout. 4 Q: To give you a bit of an overview, and 5 I'm sure My Friends will correct me if I'm wrong in this 6 regard, but Staff Sergeant Lacroix has indicated as has 7 Sergeant Hebblethwaite that they moved into the parking 8 lot and up to the fence and the people moved back into 9 the parking lot before any specific punchouts occurred. 10 11 (BRIEF PAUSE) 12 13 Q: Sorry, I'm corrected. The people 14 moved back into the Park before any specific punchouts 15 were ordered and that that punchout, the first punchout, 16 occurred after the CMU had withdrawn to a certain extent 17 and an individual had come out of the Park. 18 Does that help refresh your recollection 19 of this event at all? 20 A: That's -- that's not my recollection 21 but that -- I -- I can only tell you what I recall. 22 Q: Okay. And you're at the back of the 23 CMU as opposed to the front that's advancing? 24 A: I'm at the very rear, yes. 25 Q: Okay. But you are able to recall

123

1 very specifically somebody yelling out, This is our land, 2 correct? 3 A: That's a portion of the quote, yes. 4 Q: Right. Where were you when you heard 5 that quote, when you heard somebody say specifically, 6 This is our land? 7 A: Specifically where I was? I was 8 obviously standing at the rear ranks in my -- within the 9 -- the Arrest Squad but as far as where the Arrest Squad 10 or I was at the time of that quote I don't recall. 11 Q: Were you in the parking lot or on the 12 road? 13 A: I don't recall. 14 Q: You don't recall? But you recall the 15 quote and it stuck -- sticks out in your mind? 16 A: Yes, it does. 17 Q: Why does it stick out in your mind? 18 A: It was a very direct quote and I 19 wrote it down shortly after. There's no doubt in my mind 20 that that was said in those words and it -- it stuck with 21 me for whatever reason. 22 Q: Okay. But a lot of other things are 23 being said at that time, correct? 24 A: There's a -- there's a lot of -- 25 there were a lot of voices shouting and -- and whatnot,

124

1 sure. 2 Q: Sure. There's a lot of noise 3 including noise coming from the communications set that 4 you're wearing and from people behind the Park fence, 5 correct? 6 A: There was a lot of noise coming from 7 the occupiers. I don't know if there was a lot of -- if 8 I'd categorized it as a lot of noise coming from the -- 9 the communications but there was some -- probably some 10 radio traffic, yes. 11 Q: All right. But you remember that 12 quote but you can't help us to why that quote sticks out 13 in your mind? 14 A: It sticks out in my mind because it 15 was -- I had obviously -- it was made at a time when, you 16 know, obviously I could hear it distinctly and clearly 17 and there's no doubt in my mind that's exactly what was 18 said and therefore, I wrote it down. 19 Q: All right. With regards to Cecil 20 Bernard George we've heard evidence from the doctor that 21 examined him after he was transported to the hospital 22 that he had twenty-eight (28) visible markings on his 23 body, twenty-eight (28) areas of either tenderness or 24 bruising and she attributed those to injuries consistent 25 with some form of blunt force trauma, okay?

125

1 Have you been advised that that's been 2 testimony at this Inquiry? 3 A: I've heard portions of that. 4 Q: All right. As a member of the Arrest 5 Squad and as a member that helped carry this person to 6 the prisoner van does it surprise you that that kind of 7 finding was made by the doctor? 8 A: Does it surprise me? I -- I can't -- 9 I can't testify -- I can only testify to what I saw. 10 Again I saw at least one (1) baton strike and I -- I 11 testified to my -- to my dealings with him and I can't 12 testify to how or if he received many strikes or any 13 trauma whatsoever over -- over and above what I saw. 14 Q: All right. You didn't hit him -- 15 A: No. 16 Q: -- correct? 17 A: That's right. 18 Q: You wrestled with him, with your goal 19 of putting on handcuffs but you didn't hit him? 20 A: That's correct. 21 Q: You didn't kick him? 22 A: That's correct. 23 Q: Right. Did you see any flying object 24 hit him at any point in time while you were around him or 25 carrying him back to the prisoner van?

126

1 A: Flying object? No, I don't recall 2 that, no. 3 Q: A rock or a pipe or anything that you 4 would -- 5 A: Not specifically, no. I don't 6 recall. 7 Q: You didn't see anything like that hit 8 him while you were around him? 9 A: Yes, that's true. 10 Q: Okay. Now, you testified this 11 morning about a meeting that occurred at some point with 12 a Dr. Oath -- Hoath, do you recall that? 13 A: Yes. 14 Q: And that was for the purpose of 15 reflecting on what had occurred and for getting some 16 counselling if it would be of benefit, correct? 17 A: Yes. To some extent it was -- it was 18 a meeting, yes, with the force trauma counsellor in order 19 to, I guess, to make sure that the officers involved were 20 given the support they needed, if necessary. 21 Q: Fair enough. It was something that 22 was made available to you? 23 A: That's correct. 24 Q: Right. And it was fairly short after 25 this incident occurred the night of the 6th?

127

1 A: Yes, I believe so. 2 Q: Yeah. Now, we've heard from Officer 3 Jacklin on April 26th that when he met with Dr. Hoath 4 there was other members of the OPP present in a bit of a 5 circle. 6 Were you part of that circle or that 7 meeting with Officer Jacklin with Dr. Hoath? 8 A: When was his -- when was this 9 meeting? I -- I know that I attended a -- a meeting that 10 we were speaking of earlier. I don't recall if that's 11 the same meeting Jacklin's speaking of or if it's another 12 meeting. 13 Q: How many times did you meet with Dr. 14 Hoath? 15 A: Well, I'm -- I speak for myself. I 16 only met with him once. 17 Q: Okay. And was Sergeant Jacklin there 18 when you met with Dr. Hoath? 19 A: My -- my recollection was it was a 20 team meeting, so he should have been there. I -- I don't 21 know specifically exactly who was there. I can't say 22 that. 23 Q: All right. But members of your 24 arrest squad were there -- 25 A: Yes.

128

1 Q: -- at the time that that occurred? 2 Okay. He's testified that he recalls that an eagle 3 feather, he believed it was an eagle feather, was passed 4 around as each person had an opportunity to talk and 5 that's why he referred to it as part of the -- his 6 testimony as a healing circle. 7 Do you recall having that opportunity with 8 an eagle feather as part of the circle? 9 A: At that meeting? 10 Q: Yes. 11 A: With Hoath? 12 Q: Yeah. 13 A: No, not at all. 14 Q: Okay. You didn't hold that eagle 15 feather? 16 A: I don't recall that, no. 17 Q: You don't recall that being available 18 to -- 19 A: No. 20 Q: -- you? 21 22 (BRIEF PAUSE) 23 24 Q: I just -- last question in regards to 25 these T-shirts. We heard from Staff Sergeant Lacroix on

129

1 May 10th, that his impression was that there was a T- 2 shirt with a 1 District, 2 District, 3 District, 6 3 District, you know, logos -- logos and different T- 4 shirts. 5 Do you recall any T-shirts other than what 6 you've been shown today by Commission Counsel? 7 A: These are the only T-shirts I've ever 8 seen. 9 Q: All right. And have you ever heard 10 that any other T-shirt was available to any member of the 11 OPP? 12 A: No. 13 Q: Those are my questions, Mr. 14 Commissioner. 15 COMMISSIONER SIDNEY LINDEN: Thank you, 16 Mr. Scullion. 17 Ms. Johnson...? 18 19 (BRIEF PAUSE) 20 21 MS. COLLEEN JOHNSON: You'll be pleased 22 to know, Mr. Commissioner, that I'll be much shorter in 23 my examination than I originally intended. 24 25 CROSS-EXAMINATION BY MS. COLLEEN JOHNSON:

130

1 Q: Good afternoon, sir. 2 A: Good afternoon. 3 Q: My name is Colleen Johnson and I'm 4 attending here today for the Chippewas of Kettle and 5 Stony Point and also for the Chiefs of Ontario. 6 7 (BRIEF PAUSE) 8 9 Q: You've given testimony regarding 10 Cecil Bernard George a number of times; is that correct? 11 A: At least once. I don't recall how 12 many times, but... 13 Q: Well, certainly you gave testimony at 14 the trial of Cecil Bernard George? 15 A: That's correct. 16 Q: And perhaps at Anthony George as 17 well? 18 A: Hmm hmm. 19 20 (BRIEF PAUSE) 21 22 MR. DERRY MILLAR: The references are Tab 23 18 and 19. 24 MS. COLLEEN JOHNSON: Warren Anthony 25 George and David Abraham George?

131

1 THE WITNESS: Yes, those are -- I -- I 2 testified at two (2) different trials. 3 4 CONTINUED BY MS. COLLEEN JOHNSON: 5 Q: And then today, so a number of times, 6 would you agree? 7 A: Three (3) times. 8 Q: Okay. Thank you. 9 10 (BRIEF PAUSE) 11 12 Q: Now, with regards to your evidence at 13 the trial of Cecil Bernard George and I'm on page 312 of 14 your testimony in that trial. 15 Do you have that, sir? 16 A: Yes, I do. 17 Q: Okay. You indicate that the -- the 18 Defendant was being pinned down to the ground by the 19 Contact Squad, correct? 20 I'm at the top of the page. 21 A: Pinned to the ground by the Contact 22 Squad, yes. 23 Q: Okay. And is that your recollection 24 today? 25 A: Yes.

132

1 Q: Okay. Now, you indicate that he was 2 -- that contact was made with him. He -- he didn't turn 3 around to go back in to the Park for whatever reason, 4 correct? 5 A: I don't know what led up to the 6 contact, all I know that he was... 7 Q: Well, today you said that you then 8 observed the Contact Squad with the single person who 9 didn't retreat with the others? 10 A: Right. 11 Q: Okay. So he didn't retreat -- 12 A: Right. 13 Q: -- for whatever reason? 14 A: For whatever reason, right. 15 Q: And then the Contact Squad came into 16 contact with him? 17 A: Correct. 18 Q: Okay. Do you see that contact? 19 A: No. 20 Q: Not at all? I'll ask you to go to 21 page 311 of your testimony. Just above line 15 the 22 answer in that general area, line 15: 23 "I saw a group of Contact Squad members 24 dealing with the Defendant." 25 A: Okay.

133

1 Q: And then the Court goes on to make 2 some comments but would you agree that at that time you 3 thought you saw the Contact Squad dealing with the 4 Defendant? 5 A: Yes, that's my testimony. 6 Q: Okay. And the Court asks you to go 7 into more detail about what "dealing with him" is. 8 A: Right. 9 Q: And that's when you go into being 10 pinned to the ground? 11 A: Right. 12 Q: Okay. Do you see the initial 13 contact? 14 A: According to this, yes. It's very 15 foggy but yes, that's what I've said. 16 Q: And that's fair, it's been a long 17 time. 18 A: Yes. 19 Q: If you can just take your time to 20 really try and recollect -- 21 A: Hmm hmm. 22 Q: -- what exactly you saw that evening. 23 A: Right. 24 Q: Okay. And if you need to refer to 25 your notes that's fine but initially there's contact made

134

1 with this individual? 2 A: Correct. 3 Q: Okay. Now, I have the testimony from 4 the trial of Cecil Bernard George and I believe that it's 5 P-1464, the exhibit number. 6 And I'm just going to read a brief piece 7 from Lacroix's testimony in chief which is at page 45 of 8 the transcript. 9 And he says -- and he's testified here 10 that he -- that he was the first person to contact the 11 individual who did not retreat into the Park and that he 12 hit him, that he struck him. 13 And he says: 14 "When I did hit him in the shoulder I 15 believe he dropped the pole and he fell 16 to the ground -- fell on the ground 17 [I'm sorry] in front of me in a fetal 18 position, kind of in a ball." 19 Did you see this gentleman drop to the 20 ground? 21 A: I can't say that I recall that. 22 Q: Okay. Now, he's in a fetal position 23 according to Lacroix's testimony at this trial anyway, 24 and when you see him he's on his back; is that correct? 25 A: Yes. When I first rush up after the

135

1 order given to arrest him, yes. 2 Q: Okay. But do you see him prior to 3 the order being given to arrest him? I mean you're at 4 the back. You've got a fairly good view of what's going 5 on -- 6 A: I've got a fairly obstructed view -- 7 Q: --- in front of you. 8 A: -- I've got a very obstructed view as 9 to what's going on. 10 Q: Okay. 11 A: Given the amount of officers between 12 myself and the front line. 13 Q: Okay. And can you estimate how many 14 between yourself and the front line? 15 A: Not including the front line nor my - 16 - my unit? 17 Q: Not including your unit because 18 they're around you, right? 19 A: Right. Right. 20 Q: They're not obstructing your view, 21 right? 22 A: Right. Approximately twenty (20). 23 Q: Okay. And ten (10) of them are 24 around Cecil Bernard George, right? 25 A: Yeah, at some point.

136

1 Q: Well your testimony in this trial and 2 in the trial of Cecil Bernard George was that there were 3 approximately ten (10) officers around him. And again, 4 I'm on page 312. 5 A: When I arrive up to where he is, 6 there's approximately eight (8) to ten (10) officers 7 around him. 8 Q: Okay. Did you see him originally 9 drop? 10 A: No. 11 Q: Okay. Do you know where Sergeant 12 Lacroix would have come into contact with him? Or do you 13 have an idea of -- of approximately where he would have 14 come into contact with him? 15 A: Not really, no. No, I don't. 16 Q: Okay. You certainly when you come 17 upon him, do not find an individual in a fetal position. 18 A: No, he was on his back and his arms 19 and legs were flailing. 20 Q: Which is not a fetal position, 21 correct? 22 A: That's not how I describe a fetal 23 position, no. 24 Q: That's fair. 25 A: Right.

137

1 Q: Would you agree that when somebody 2 rolls into a fetal position, that they're trying to 3 protect themselves? 4 A: I guess there's a number of reasons 5 why you could roll into a fetal position. I don't know 6 if that means that you're trying to protect yourself or 7 not. 8 Q: Given that set of circumstances and 9 your experience as a police officer, would you agree that 10 it's reasonable that he's trying to protect himself? 11 A: Given the circumstances at the time 12 that I initially see him or approach him, if that's when 13 we're talking about. When I come up as a member of the 14 arrest squad to effect his arrest, is that what you're 15 saying? 16 Q: No. I'm saying when he's in the 17 fetal position after he's been struck, would you agree 18 it's reasonable to -- to surmise that he's trying to 19 protect himself? His body? 20 A: I don't know what -- I don't know 21 what he was doing. I didn't see him in that position. I 22 don't know what he was doing. 23 Q: That's fine. He's in a fetal 24 position according to Sergeant Lacroix, he's not in a 25 fetal position when you see him. He is, however,

138

1 surrounded by ten (10) officers. 2 A: Eight (8) to ten (10) I've testified. 3 Q: Okay. I'm going to submit to you, 4 sir, that he's probably not in the same physical place on 5 the land as when he initially dropped either. 6 MR. DERRY MILLAR: How can he answer 7 that? 8 COMMISSIONER SIDNEY LINDEN: I don't see 9 how this officer can answer that. I don't see how he can 10 say whether he was in the same place or not. He didn't 11 see him when he went down. 12 MS. COLLEEN JOHNSON: Okay. But he 13 certainly moved out of the fetal position. 14 COMMISSIONER SIDNEY LINDEN: Well, he's 15 testified when he saw him, he was on his back. 16 MR. DERRY MILLAR: All he can say is what 17 he saw. 18 COMMISSIONER SIDNEY LINDEN: Yes. 19 MR. DERRY MILLAR: We don't even know if 20 it's the same man. 21 COMMISSIONER SIDNEY LINDEN: Yes. 22 MR. DERRY MILLAR: There's an assumption 23 it's the same man. 24 COMMISSIONER SIDNEY LINDEN: No, I know 25 that.

139

1 2 CONTINUED BY MS. COLLEEN JOHNSON: 3 Q: Is it possible that the flailing of 4 the legs and arms that you saw were also to ward off 5 blows? 6 A: When I observed him flailing his arms 7 and his legs, it appeared to me that that was a person 8 actively resisting and in a combative nature. 9 Q: Tell me what resisting means to you, 10 sir. 11 A: In resisting arrest, if someone does 12 not want to be arrested and is not lawfully abiding a 13 police officer, you're doing physical acts to avoid being 14 detained, handcuffed. 15 Q: Can it also mean resisting an 16 assault? 17 A: I don't know. 18 19 (BRIEF PAUSE) 20 21 Q: If he's being assaulted and he's 22 trying to stop that, is that resisting as well? 23 A: Can you repeat that, please? 24 Q: If he's being assaulted, and he is 25 trying not to be assaulted anymore, is that being

140

1 resistant as well? 2 A: Again I can just testify as to what I 3 saw. 4 Q: And I'm asking you if what you saw 5 could also be consistent with an individual trying to 6 ward off further blows? 7 A: That's not the way it appeared to me, 8 no. 9 10 (BRIEF PAUSE) 11 12 Q: Dr. Marr's testimony from April 26th, 13 and My Friend indicated to you already there were a 14 number of twenty-eight (28), in fact, injuries consistent 15 with blunt force trauma. 16 A number of those injuries, sir, were to 17 his back, including his head, the back of his head area, 18 his back, back of his arms, things like that. 19 20 (BRIEF PAUSE) 21 22 Q: You indicated that he was on his 23 stomach for a brief period of time; is that correct? 24 A: I think that's the testimony I gave 25 at one (1)of the trials, yeah.

141

1 My -- most of my recollection is him being 2 on his back. 3 Q: Would you agree that the trial was 4 closer in proximity time-wise than this proceeding that 5 we're going through today? 6 A: Yes. It was prior to today, 7 obviously, yes. 8 Q: Okay. I'll ask you to turn to page 9 315, sir. 10 11 (BRIEF PAUSE) 12 13 Q: And I guess I'll just start at the 14 bottom of page 314, just to give you context. 15 Officer, this -- and this is the cross- 16 examination by Mr. Dawson. 17 "Officer, the ten (10) people from the 18 front elements of the CMU were engaged; 19 all of them, with the man in some sort 20 of a struggle; is that right?" 21 And your answer is: 22 "I believe so, yes." 23 Do you see that, where I'm at? 24 A: Yes, I do. 25 Q: Okay. And then:

142

1 "Did you see people hitting him?" 2 And your answer is: 3 "I believe, yeah, I did see him being 4 struck, yes. 5 With batons? 6 Yes." 7 A: Yes, I see that. 8 Q: Do you recall that, sir? Do you 9 recall seeing people striking him? 10 A: I -- I recall -- I believe he was 11 struck by a baton, yes. I was -- I recall -- 12 Q: Well today you -- 13 A: -- seeing -- 14 Q: -- testimony is a baton but at that 15 time you indicated you saw people hitting him and you 16 also indicated that -- 17 MR. DERRY MILLAR: Well, you have to 18 read -- 19 MR. IAN ROLAND: You have to read the 20 rest. 21 MR. DERRY MILLAR: She has to read the 22 rest -- 23 MS. COLLEEN JOHNSON: Okay. 24 MR. DERRY MILLAR: -- of page 315. 25 COMMISSIONER SIDNEY LINDEN: She's --

143

1 MR. DERRY MILLAR: With batons? Yes. 2 "Q: Did you see people kicking him? 3 A: No, sir, I did not. 4 Q: How many times did you see him hit 5 with the baton? 6 A: I don't have a figure. Don't 7 know, sir. 8 Q: The people that were there, they 9 had their batons out and they were all 10 pretty active, I guess they were? 11 A: I don't know if 'pretty active' 12 would be the proper description, but I 13 believe they were in a defensive role 14 at that point. 15 Q: Okay, you saw more than one (1) 16 person hitting him with the baton? 17 A: No. I can't say that I did." 18 COMMISSIONER SIDNEY LINDEN: Well, that 19 seems fairly consistent -- 20 MS. COLLEEN JOHNSON: Okay. 21 COMMISSIONER SIDNEY LINDEN: -- with what 22 he said here today, unless you have some -- 23 MS. COLLEEN JOHNSON: That's fair. 24 25 CONTINUED BY MS. COLLEEN JOHNSON:

144

1 Q: But if you can go back to page 14, 2 you will agree that at that time, the ten (10) people 3 from the front elements of the CMU were engaged, all of 4 them were the -- with the man in some sort of a struggle. 5 Do you stand by that testimony today? 6 A: Yes, I don't -- I don't disagree with 7 that. 8 Q: Okay. And while you get to the point 9 where you say that you can't say, at line 20, that you 10 saw more than one (1) person hit him with the baton, you 11 answer "yes" to the question, "With batons?" 12 Did you see people hitting him? You 13 don't, at that point, say, and I'm at line 5. I'm sorry, 14 sir. 15 You don't at that point say, I only saw 16 one (1). The question is, "Did you see people hitting 17 him?" and you answer: 18 "I believe, yeah, I did see him being 19 struck, yes." 20 You saw more than one (1) person striking 21 him, I would submit. 22 A: No, I don't. No, I did not. 23 24 (BRIEF PAUSE) 25

145

1 Q: Do you have any explanation for how 2 Mr. George received the blows on his back? 3 A: None whatsoever. 4 Q: Can you be certain that he didn't 5 receive the blows while you were there and rolled him 6 over to cuff him? 7 A: I can't tell you when -- when he 8 received those injuries. 9 Q: But if you had seen him struck while 10 you were in the process of attempting to assist officers 11 in cuffing him you would recall that, is that correct? 12 A: Can you repeat that? 13 Q: If you had seen him struck while you 14 were attempting to cuff him for that brief period while 15 he was on his stomach during that time, while you were in 16 direct contact with him, if you had seen him struck at 17 that point you would recall that wouldn't you? 18 A: I -- I don't know if I would have 19 recalled that or not. 20 Q: So are you saying that it's possible 21 that he was struck while you were attempting to cuff him? 22 A: No, I don't believe he was, not at 23 that time. 24 Q: That's fine. So you agree that while 25 you were attempting to cuff him he was not struck?

146

1 A: Yes, that's my recollection. 2 Q: Okay. Now, you indicate -- I just 3 have a little bit more with Mr. George -- you -- and I'm 4 at Tab 19 now page 84 and it's P-1524. And this is your 5 testimony on the trial of Warren Anthony George and David 6 Abraham George. 7 At page 84 approximately line 22 you 8 indicated that he had stopped resisting and he was not a 9 threat at all when you brought him back to the prisoner 10 van, is that still your recollection today? 11 A: That's always been my recollection. 12 Q: Okay. Can you tell us what condition 13 he was in at that point in time? 14 A: Again he was -- the only injury I 15 observed was some blood to his face. I don't recall him 16 being assaultive or even aggressive and I think I 17 described him as being compliant; that's my only 18 recollection of that. 19 Q: Turn to the next page, page 85? Do 20 you recall if this individual was conscious or not? 21 A: No, I don't. 22 Q: He could have been unconscious at 23 that point? 24 A: I don't believe he was but I -- I 25 don't know whether he was or not.

147

1 Q: But in previous testimony and today 2 you -- you don't know if he was conscious or not? 3 A: No, I can't be certain if he was 4 conscious or not. 5 Q: All right. Sir, you took some 6 training, is that correct, in 1996 with regards to, would 7 you say, Native awareness? 8 A: Yes, I believe so. 9 Q: A two (2) day course, correct? 10 A: Yes. 11 Q: Do you have a recollection of 12 anything you learned out of that or do you have a 13 recollection of the course, I'm sorry? 14 A: It was more -- it wasn't necessarily 15 a course it was more of an information session I think. 16 Q: Okay. 17 A: I remember where it was. I remember 18 being there. There was a large -- fairly large group of 19 police officers. 20 Q: Hmm hmm? 21 A: And I believe there was a Mr. Potts 22 if I'm not mistaken that led the meeting. 23 Q: Okay. 24 A: And I don't remember all of the 25 specifics of the meeting.

148

1 Q: And wouldn't that be -- was -- was 2 that Jim Potts? 3 A: I -- I believe so. 4 Q: And would he have been with the OPP 5 at the time? 6 A: I'm not certain what his role was at 7 the time. 8 Q: Okay. And was that helpful to you, 9 sir, at all? 10 A: Yes, I believe it was. 11 Q: Okay. Did it make an impression on 12 you? 13 A: Yes, it gave me a better 14 understanding for certain -- certain areas that I wasn't 15 aware of -- 16 Q: Okay. 17 A: -- prior to the meeting. 18 Q: Could you be a little more specific 19 about those areas and I guess my -- I'll focus my 20 question more. 21 With regards to the situation that 22 happened on the evening of September 6th, 1995, are some 23 of the things you learned in '96, would those have been 24 helpful in 1995? 25 A: Not specific to the incident. I

149

1 don't know if they would have been helpful at the time or 2 not to be honest with you. 3 Q: All right. Thank you, sir, those are 4 my questions. 5 COMMISSIONER SIDNEY LINDEN: Thank you. 6 Mr. Mathai...? 7 8 (BRIEF PAUSE) 9 10 MR. SUNIL MATHAI: Aboriginal Legal 11 Services Toronto has no questions to ask at this time. 12 COMMISSIONER SIDNEY LINDEN: Thank you, 13 Mr. Mathai. 14 How long do you think you might be, Mr. 15 Roland? 16 MR. IAN ROLAND: I don't expect to be 17 very long at all. Just let me check on things. 18 19 (BRIEF PAUSE) 20 21 COMMISSIONER SIDNEY LINDEN: I'm just 22 trying to decide if we should have a lunch break and then 23 do it or -- 24 MR. IAN ROLAND: I think -- 25 COMMISSIONER SIDNEY LINDEN: Pardon me?

150

1 MR. DERRY MILLAR: I would think if we 2 can do it now, we should do it now. 3 COMMISSIONER SIDNEY LINDEN: Yes. 4 5 (BRIEF PAUSE) 6 7 CROSS-EXAMINATION BY MR. IAN ROLAND: 8 Q: Let me if I could, Constable Root, 9 take you to the -- back to the parking lot on September 10 6th '95. In your notes you've indicated that you heard 11 an individual Native occupier say something about 'our 12 land'. 13 Do you remember where it was that that 14 Native was standing at the time? 15 A: Other the fact that he was in front 16 of the entire CMU unit, no, not specifically. 17 Q: Do you remember whether he was in the 18 sandy parking lot or in the Park? 19 A: No, I don't. 20 Q: You don't recall? 21 A: No, I don't. 22 Q: And so did you know what he was 23 referring to when he referred to 'our land'? Did you 24 understand one way or the other what he was referring to? 25 A: Yeah. My understanding was the land,

151

1 in relation to land claim the -- the area that we were 2 dealing with. 3 Q: All right. And did you understand -- 4 or did you appreciate one way or the other whether he was 5 also referring to the sandy parking lot? 6 A: That never came to mind specifically, 7 no. 8 Q: Now, with respect to the baton 9 strikes -- that -- or strike or strikes that you saw when 10 you were about to engage with Cecil Bernard George in the 11 parking lot to try to effect an arrest, can you -- you 12 told us that they were short strikes, you described them 13 as short and you described that at the time he was 14 resisting. 15 What did you understand the purpose of the 16 strike was at that stage, the baton strike? 17 A: To assist in the effecting of the 18 arrest in order to get him to stop resisting. 19 Q: And in the circumstances that you 20 there observed, was the -- were the baton strikes 21 appropriate to the circumstances? 22 A: In my opinion, yes. 23 Q: Thank you, those are my questions. 24 COMMISSIONER SIDNEY LINDEN: Thank you, 25 Mr. Roland. Any re-examination, Mr. Millar?

152

1 MR. DERRY MILLAR: No, sir. I'd like to 2 take the opportunity to thank Constable Root for 3 attending and giving his evidence. 4 THE WITNESS: Thank you. 5 COMMISSIONER SIDNEY LINDEN: Thank you 6 very much for giving us your evidence, thank you. 7 We can take a lunch break now? 8 MR. DERRY MILLAR: Yes, sir. 9 COMMISSIONER SIDNEY LINDEN: And we have 10 another witness for after lunch? 11 MR. DERRY MILLAR: Yes, sir. 12 COMMISSIONER SIDNEY LINDEN: Take a lunch 13 break now. 14 THE REGISTRAR: This Inquiry stand 15 adjourned until 1:00 p.m. 16 17 --- Upon recessing at 12:03 p.m. 18 --- Upon resuming at 1:08 p.m. 19 20 THE REGISTRAR: This Inquiry is now 21 resumed. Please be seated. 22 MR. DERRY MILLAR: Good afternoon, 23 Commissioner. 24 COMMISSIONER SIDNEY LINDEN: Good 25 afternoon.

153

1 MR. DERRY MILLAR: The next witness is 2 Constable Wilhelmus Bittner. 3 THE REGISTRAR: Good afternoon, Mr. 4 Bittner. 5 MR. WILHELMUS BITTNER: Good afternoon. 6 7 WILHELMUS BITTNER, Sworn 8 9 EXAMINATION-IN-CHIEF BY MR. DERRY MILLAR: 10 Q: Mr. Bittner, I understand that you 11 use the first name, "Bill"? 12 A: That's correct. 13 Q: And please turn to Tab 1 of the black 14 book in front of you? And is that a copy of your resume? 15 A: Yes, sir, it is. 16 Q: And I would ask that that be marked 17 the next exhibit? 18 THE REGISTRAR: P-1526, Your Honour. 19 COMMISSIONER SIDNEY LINDEN: Thank you. 20 MR. DERRY MILLAR: 1526? 21 THE REGISTRAR: 26. 22 23 --- EXHIBIT NO. P-1526: Resume of Wilhelmus (Bill) 24 Bittner. 25

154

1 CONTINUED BY MR. DERRY MILLAR: 2 Q: And I understand you joined the 3 Ontario Provincial Police on March 11th, 1985? 4 A: Yes, sir. 5 Q: And beginning April 1, 1985, you 6 commenced duties at Downsview Detachment? 7 A: Yes, sir. 8 Q: And on May 24th, 1990, you 9 transferred to the Woodstock Detachment? 10 A: That's correct. 11 Q: And the Woodstock Detachment's now 12 called the Oxford Detachment? 13 A: Yes, sir. 14 Q: And you remain at the Oxford 15 Detachment today? 16 A: That's correct, sir. 17 Q: And your duties have been general 18 patrol duties, is that correct? 19 A: Yes, sir. 20 Q: And I understand that in October and 21 November 1994 you took training as a member of the 22 Emergency Response Team? 23 A: Yes, sir. 24 Q: And that was in I -- I believe it was 25 Meaford, Ontario?

155

1 A: Yes, sir. 2 Q: And it was a six (6) week course. 3 A: That's correct. 4 Q: And with respect to the -- your 5 member as an ERT -- your work as a member of the ERT team 6 the -- you were a member of the -- which district ERT 7 team? 8 A: I was a member of the -- at the time 9 the 2 District Emergency Response Team. 10 Q: And prior to September 1995, had you 11 ever been called out as a member of a ERT team to 12 participate as a Crowd Management Unit? 13 A: No, I had not. 14 Q: Now, the leader of the Number 2 15 District ERT team in September 1995 was Sergeant George 16 Van Damme? 17 A: Yes, sir. 18 Q: And Sergeant John Slack was the 2IC? 19 A: Yes, sir. 20 Q: And as I understand it that prior to 21 September 1995, you had no experience policing Aboriginal 22 communities or little experience? 23 A: Very little experience. 24 Q: And prior to September 1995, you had 25 had no training in First Nations issues?

156

1 A: No, I had not. 2 Q: And subsequent to that, you had -- 3 you had a one day First Nations Awareness training by 4 Inspector Potts in 1996, is that correct? 5 A: Yes, sir. 6 Q: And then a four (4) day session in 7 April of this year at Mattawa? 8 A: That's correct. 9 Q: Now -- your first involvement as I 10 understand in the Ipperwash area as a member of the 11 Number 2 ERT was in August 1995, is that correct? 12 A: That's correct. 13 Q: And, in fact, you were called out on 14 August the 11th, 1995, is that correct? 15 A: Yes, sir. 16 Q: And at Tab 3 of the book in front of 17 you there are some notes. It's Inquiry Document 2005571. 18 And these are notes, Commissioner, for two (2) separate 19 periods of time and the -- the August period and then the 20 post September 6th period although there's one (1) page 21 from September 6th. 22 And are these your notes, Mr. Bittner -- 23 Constable Bittner? 24 A: Yes. These are copies of my notes. 25 Q: And I would that this group be marked

157

1 the next exhibit please. 2 THE REGISTRAR: P-1527, Your Honour. 3 4 --- EXHIBIT NO. P-1527: Document Number 2005571. 5 Handwritten notebook entries 6 of Bill Bittner, August 11- 7 September 12, 1995. 8 9 CONTINUED BY MR. DERRY MILLAR: 10 Q: And in August of 1995, what was your 11 practice with respect to taking notes? When did you 12 make -- 13 A: I would make my notes during the 14 course of my tour of duty, as soon as practical or my 15 opportunity to get them completed. 16 Q: And why did you make notes? 17 A: I made notes to refresh my memory. 18 Q: And refresh your memory for what? 19 A: For court purposes or any subsequent 20 possible investigations. 21 Q: And I note that in Exhibit 1527 the 22 first entry on August the 11th is: 23 "At 07:00 accompanied by P/C Aitchison 24 re Provincial -- Ipperwash Provincial 25 Park patrol, 10:00 hours, 10:07: at

158

1 Pinery Provincial Park briefing re 2 Stoney Point CFB Ipperwash takeover." 3 And do you recall today what you were told 4 in that briefing? 5 A: No, I do not. 6 Q: And do you recall today who gave you 7 the briefing? 8 A: No, I do not. 9 Q: And if you could turn back to page 2 10 -- Tab 2, excuse me. And this -- do you recognize this 11 document? 12 A: Yes, I do. 13 Q: And this is a document prepared by 14 you or Constable Aitchison? 15 A: It was prepared by Constable 16 Aitchison. 17 Q: Aitchison? And it was to record what 18 went on during your tour of duty? 19 A: Yes, sir. 20 Q: And you've reviewed this document? 21 A: Yes, I have. 22 Q: And do you agree with its contents? 23 A: Yes, I do. 24 Q: And Commissioner, I would ask -- this 25 is Inquiry Document 2000842 and I would ask that this be

159

1 marked the next exhibit. 2 THE REGISTRAR: P-1528, Your Honour. 3 4 --- EXHIBIT NO. P-1528: Document Number 2000842. 5 Handwritten notes of Bill 6 Bittner, August 11, 1995. 7 8 MR. DERRY MILLAR: And on the copy that's 9 going to be marked, there's a name beside 22:15 that 10 should e -- just the name should be redacted from the 11 exhibit copy. 12 13 CONTINUED BY MR. DERRY MILLAR: 14 Q: Now what -- do you recall what were 15 your duties? What were you to do starting on August the 16 11th? What was your understanding what you were to do? 17 A: My understanding was we were 18 conducting general patrol of the Provincial Park. 19 Q: And I note that in Exhibit 1528 at 20 Tab 2, that the -- you were on duty on August 11th from 21 20:00 hours to 04:00 hours and you have one entry at 22 22:15. 23 You checked a car coming from the 24 Ipperwash Base and it had a -- at Highway -- Ipperwash 25 Base Highway 21 south; is that great -- correct?

160

1 A: Yes, sir. 2 Q: And there's -- it indicates warn -- 3 "Warning, marker left". What's that refer -- 4 A: It -- 5 Q: Light. 6 A: It says morning -- warning, marker 7 light. 8 Q: Yes. 9 A: Motor vehicle will stop because the - 10 - the light that is required by law to illuminate the 11 rear licence plate was not functioning and he was 12 stopped -- 13 Q: Because of that? 14 A: Yes, sir. 15 Q: And then your note indicates that the 16 rest of the patrol uneventful? 17 A: Yes, sir. 18 Q: And you were on duty again on August 19 the 12th, August the 13th and August the 14th. And you 20 indicate that they were all quiet tours? 21 A: PC Aitchison has indicated that, yes. 22 Q: And you agree with that? 23 A: Yes, sir. 24 Q: And then if you could turn back to 25 Tab 3 of your notes and go to page 5.

161

1 (BRIEF PAUSE) 2 3 Q: On August the 15th, 1995 you were on 4 duty at 06:00 and then at 08:00 you went to Woodstock 5 Detachment? 6 A: That's correct. 7 Q: So that your -- you worked until the 8 morning of -- early in the morning of September 15th. I 9 think you got off at 02:00 and then the next morning you 10 went back to Woodstock? 11 A: Yes, sir. 12 Q: Then you returned this area on August 13 the 23rd, is that correct? 14 A: Yes, sir. 15 Q: And you were again with the Constable 16 -- Constable Aitchison? 17 A: That's correct. 18 Q: And this is the seventh page in, 19 Commissioner, of Exhibit P-1527. 20 COMMISSIONER SIDNEY LINDEN: There's a 21 page 30 at the bottom, or a little number -- 22 MR. DERRY MILLAR: It's a little -- 23 COMMISSIONER SIDNEY LINDEN: -- 30 -- 24 MR. DERRY MILLAR: -- note -- number 30 25 at the bottom.

162

1 2 CONTINUED BY MR. DERRY MILLAR: 3 Q: And again you were doing general 4 patrols? 5 A: Yes, sir. 6 Q: And you indicate on August 13th that 7 you had no incidents to report? 8 A: That's August 23rd. 9 Q: Yes. 10 A: That's correct. 11 Q: And then on August 24th, you appear 12 to be -- have been on an -- on duty until nine o'clock, 13 21:00 hours that -- on August the 23rd? 14 A: Yes, sir. 15 Q: Then August the 24th, you were again 16 on duty from 17:00 to 23:00 hours; is that correct? 17 A: No, sir. It's 17:00 to 07:00 hours. 18 Q: I misread that. On August the 24th? 19 A: Yes, sir. I commenced patrol at 20 23:00 -- 21 Q: Oh, I see. 22 A: And then it went into the 25th of 23 August -- 24 Q: Oh, the next morning, so you were on 25 nights?

163

1 A: Yes, sir. 2 Q: And -- that night. And, excuse me, 3 thank you for explaining that. And there were no 4 incidents that night that you recorded? 5 A: That's correct. 6 Q: And then you were on duty on August 7 the 25th, again overnight or really on the night shift? 8 A: Yes, sir. 9 Q: And you started on August 25th, went 10 off duty on August 26th and the note -- your note 11 indicates "no incidents to report"? 12 A: That's correct. 13 Q: And then again, August 26th, you were 14 on duty and -- from approximately 16:00 hours if I've 15 read this correctly, until the next morning at 06:00 16 hours? 17 A: That's correct, sir. 18 Q: And again your notes indicate no 19 incidents to report? 20 A: Yes, sir. 21 Q: And then on August 27th, 1995, your - 22 - appear to be on duty again? 23 That's at -- on standby? 24 A: That's correct. 25 Q: And you went off duty at 14:00 hours?

164

1 A: Yes, sir. 2 Q: And then if I could take you to Tab 3 4, this is a copy of Exhibit P-413 and it's the CFB 4 intelligence report and do you recall seeing this 5 document before? 6 A: No, I do not. 7 Q: And there are only two (2) entries 8 that refer to you or Constable Aitchison. One on August 9 the 11th, that we dealt with, but there's one on August 10 the 26th where it appears a report was filed that: 11 "Someone closed the east gate on 12 Matheson Drive only to have it opened 13 again later in the morning. Vehicle 14 traffic up and down Matheson. Patrol 15 had nothing to report." 16 Do you -- 17 A: I don't recall that. 18 Q: Okay. Then at Tab 6, excuse me, at 19 Tab 5 is a copy of Exhibit P-424 which is Project Maple. 20 In the period September up to September 7th, 1995, had 21 you ever seen a copy of Project Maple? 22 A: I don't recall ever seeing that. 23 Q: And after September 7th up to getting 24 ready to appear at the Inquiry, had you ever been 25 provided with a copy of Project Maple?

165

1 A: No, I have not. 2 Q: And did you have any role -- play any 3 role in the preparation of Project Maple? 4 A: No, I did not. 5 Q: Then I understand that your next 6 contact with the Ipperwash area was on September the 4th? 7 A: That's correct. 8 Q: And if you could turn to Sept -- page 9 -- Tab 6. And Commissioner -- Mr. Bittner -- Constable 10 Bittner these again are your notes? 11 A: That's correct. 12 Q: Copies of your notes? 13 A: Yes, sir. 14 MR. DERRY MILLAR: Commissioner, the -- 15 on the exhibit copy, the first three (3) pages don't -- 16 do not relate to Ipperwash and the names should be 17 redacted and on the exhibit copy all of the names have 18 been redacted. 19 And actually there's a page that's page -- 20 at the top of page 45 which is the fourth page is -- is 21 not here. But it's only on page 45 that we begin with 22 the notes as they relate to Ipperwash. 23 So on the public copy the names should be 24 redacted and I have redacted those names in the copy that 25 the Registrar has.

166

1 And this set of notes contains the notes 2 of Constable Bittner from Inquiry Document 2005409 up to 3 the -- September the 6th but not including the march on 4 September the 6th. 5 And on the copy that's in your book and in 6 Constable Bittner's book I've added one page from Exhibit 7 2005571 which is page 29 -- it's the number 29000464 8 because the morning of the 6th was left off the notes as 9 they were. 10 So I've added it. So I would ask that 11 this collectively be marked the next exhibit. It's -- 12 THE REGISTRAR: P-1529, Your Honour. 13 14 --- EXHIBIT NO. P-1529: Document Number 2005409. 15 Handwritten notebook entries 16 of Bill Bittner, September 17 04-06, 1995. 18 19 CONTINUED BY MR. DERRY MILLAR: 20 Q: And I understand if you -- looking at 21 Exhibit 1529, on the morning of September the 4th, 1995, 22 you were called out on an ERT call regarding a missing 23 person? 24 A: That's correct. 25 Q: And then during the day --

167

1 A: That was late afternoon. 2 Q: That was the after -- excuse, yes, at 3 14:15? 4 A: Yes, sir. 5 Q: And you then were on patrol and if 6 you turn to page 4 at 23:00 hours, you received a call 7 out to -- with respect to Ipperwash Provincial Park, is 8 that correct? 9 A: Yes, sir. 10 Q: And the entry is 10:08 with PC 11 Aitchison to Forest Detachment re Ipperwash ERT call out? 12 A: Yes, sir. 13 Q: And how were you called out? Was 14 that through a page on your pager? 15 A: I don't recall. 16 Q: But at any rate, you and Constable 17 Aitchison then went to Forest? 18 A: Yes, sir. 19 Q: And you arrived in Forest just after 20 midnight on the morning of September the 5th? 21 A: Yes, sir. 22 Q: And do you have any -- there's a note 23 about a briefing. Do you have any recollection as to who 24 -- who gave you the briefing? 25 A: No, sir, I do not.

168

1 Q: And what was said in the briefing? 2 A: The only thing I have is my notes. 3 Q: And your notes indicate: 4 "Briefing re. violent confrontation at 5 Ipperwash Provincial Park. Cruiser 6 rear window smashed." 7 A: Yes, sir. 8 Q: And do you recall anything else about 9 the briefing? 10 A: No, I do not. 11 Q: And what were you assigned to do? 12 A: I was assigned to checkpoint "D" 13 which was located on Army Camp Road west of -- of -- the 14 directions here are a little skewed. West of Highway 21, 15 would really be I guess north of Highway 21. 16 17 (BRIEF PAUSE) 18 19 Q: When you did your notes, and we'll 20 come to this again, you treated Highway 21 as running 21 north and south and so that the lake would be west of 22 Highway 21 and then on the other side it would be east of 23 Highway 21? 24 A: Yes, sir. 25 Q: That's how you've done it?

169

1 A: Yes, sir. 2 Q: And so we'll try to clarify that 3 during -- during the examination where it comes up just 4 so that everyone understands but that's how you -- your 5 notes, you treated Highway 21 as running north and south? 6 A: That's correct. 7 Q: And so the lake would be west and 8 then the other side would be east? 9 A: Yes, sir. 10 Q: And so do you recall at what point 11 the checkpoint was on the -- when you were assigned to it 12 on the morning of September the 5th? 13 A: I recall it being between Highway 21 14 and the entrance to the CFB Ipperwash. 15 Q: The entrance to CFB Ipperwash? And 16 what were you -- what were you supposed to do? 17 A: I recall we were advised to monitor 18 traffic that was travelling through the area. 19 Q: And when you say, "monitor the 20 traffic," what do you mean by that, sir? 21 A: I believe all vehicles travelling 22 through the area were stopped -- 23 Q: Yes? 24 A: -- at the checkpoint. 25 Q: Yes, sir?

170

1 A: As far as after stopping them I don't 2 recall what took place. 3 Q: And did someone take down the names 4 of the people who were in the vehicles? 5 A: I did not, sir, and I don't know or 6 recall if they were. 7 Q: Okay. So you don't know? 8 A: No, sir. 9 Q: And I note on page 46 of your notes 10 you indicate that, no incidents to report. And at 08:30 11 you were relieved by a Number 6 District ERT? 12 A: Yes, sir. 13 Q: And then went off duty at ten o'clock 14 in the morning? 15 A: That's correct. 16 Q: And then you went back on duty 17 September 5th at six o'clock or 18:00 hours? 18 A: Yes, sir. 19 Q: And had a briefing at 18:30? 20 A: That's correct. 21 Q: And I understand you were assigned to 22 a road -- to a checkpoint at Checkpoint "B"? 23 A: Yes, sir. 24 Q: And do you recall today where 25 Checkpoint "B" was?

171

1 A: No, I do not. 2 Q: And we understand that -- I'm putting 3 on the screen a copy of Exhibit P-1228 and there's also a 4 copy at Tab 7 of your -- Tab 7 of your binder but the 5 Checkpoint "B" is indicated as being at the intersection 6 of Ipperwash Road and East Parkway Drive to the west of 7 the MNR parking lot? Does that assist? 8 A: No, sir. 9 Q: So were you -- were you close to the 10 lake, far from the lake? 11 A: I -- I don't recall -- 12 Q: You don't recall? 13 A: -- that checkpoint. 14 Q: And were you -- prior to your duties 15 in August were you familiar with this area? 16 A: No, sir. I'd never been -- 17 Q: Never been there? 18 A: -- to the Ipperwash area? 19 20 (BRIEF PAUSE) 21 22 Q: And then... 23 24 (BRIEF PAUSE) 25

172

1 Q: Your notes indicate that it says: 2 "Detail assigned B road check with P/C 3 Aitchison, security at communications 4 post." 5 Do you see that at the same note we were 6 just looking at? 7 A: Yes, sir. 8 Q: And do you recall where the 9 communications post was? 10 A: I know there was the TOC that was 11 located on East Parkway Drive. I believe I'm referring 12 to that. 13 Q: And -- and the TOC that was located 14 on East Parkway Drive, do you recall was it in a large 15 parking lot? 16 A: Yes, sir. 17 Q: And do you recall there was a trailer 18 there? 19 A: That's correct. 20 Q: And do you recall, was it a St. 21 John's Ambulance trailer? 22 A: Yes, sir. 23 Q: And that was on the Highway 21 side 24 of East Parkway Drive? 25 A: Yes, sir.

173

1 Q: And -- so were you at both B road 2 check and at the communications post or do you recall? 3 A: I don't recall. 4 Q: Okay. Then there's an entry, 22:35: 5 "Received info that Natives have 6 barricaded land adjacent to Provincial 7 Park. Sergeant Slack advised us to 8 assist. Attended above." 9 Do you have any independent recollection 10 of this incident? 11 A: Yes, I do. 12 Q: And can you tell us what happened and 13 what you did? 14 A: I recall attending that area with 15 Constable Aitchison. We were the last police vehicle to 16 arrive. I believed we parked on the paved portion of 17 East Parkway Drive. 18 Q: And I'm going to put up on the screen 19 a copy of Exhibit P-437B which is an aerial photograph, 20 although, Constable Bittner, taken later, approximately 21 2000. 22 And we can see on the left hand side, the 23 MNR parking lot identified and where did you attend using 24 this exhibit as a reference, can you tell us where you 25 went to?

174

1 A: We went to the area of the junction 2 of Army Camp Road and East Parkway Drive. 3 Q: And that's, on this particular map 4 which is for a different day, it appears to be at -- 5 where Checkpoint 'A' is. 6 A: Yes, sir. 7 Q: Is that where -- ignoring the 8 checkpoint A, but it's at the -- the corner of East 9 Parkway and Army Camp Road? 10 A: That's correct. 11 Q: And when you arrived, what did you 12 observe, if anything? 13 A: I observed the -- some picnic tables 14 that were across the entrance to the sandy parking lot. 15 I observed Constable Gransden standing -- standing in the 16 sandy parking lot and he was having conversation with 17 some people that -- in the sandy parking lot. 18 Q: And the -- when you arrived you 19 indicated you parked your cruiser on East Parkway Drive. 20 How close to the sand -- entrance to the sandy parking 21 lot? 22 A: I believe we were right at the 23 entrance. 24 Q: Right at the entrance? And the -- 25 you -- there were four (4) cars there? You were the

175

1 fifth car? 2 A: Yes, sir. 3 Q: And what did you -- where -- did you 4 see any picnic table -- what did you see that was 5 barricading the land? 6 A: I observed picnic tables that were 7 barricading the entrance to the sandy parking lot. 8 Q: And when you say, "barricading the 9 entrance", could you describe that for us or do you have 10 a recollection? 11 A: I don't have a recollection the -- 12 the exact configuration or the number of picnic tables. 13 Q: And when you say barricaded the 14 entrance, could you get by them to go down the sandy 15 parking lot? 16 A: I don't recall if there was access 17 room. 18 Q: Okay. And do you recall how many 19 picnic tables there were in the barricade? How high they 20 were? 21 A: I don't recall how many. I have a 22 vague recollection that there were some picnic tables 23 that were standing on two (2) legs, stacked against each 24 other as far as stacked in height, I don't recall that. 25 Q: And you saw PC Gransden, was he on

176

1 the -- the road side of Army Camp Drive -- East Parkway 2 Drive side of the picnic tables or on the other side in 3 the sandy parking lot? 4 A: I believe he was in the sandy parking 5 lot. 6 Q: And how many people was he speaking 7 to? 8 A: I've indicated there was 9 approximately thirty (30) people that were in the sandy 10 parking lot. 11 Q: And it says here: 12 "Approximately thirty (30) Natives on 13 adjacent property." 14 And were you referring to the sandy 15 parking lot or the Provincial Park? 16 A: I'm referring to the sandy parking 17 lot. 18 Q: Okay. And what happened? 19 A: I heard P/C Gransden advise the 20 people to leave the area or be charged with mischief. 21 Q: Then what happened? 22 A: The parties left the area and I 23 recall P/C Gransden walking towards the -- the parties 24 went into the Provincial Park and I recall PC Gransden 25 being in the vicinity of the fence line of the Provincial

177

1 Park. 2 Q: And you've got a note: 3 "Natives were hostile. However 4 returned to Park. Observed rock thrown 5 at PC Gransden. Numerous rocks were 6 being thrown." 7 When did that happen? 8 A: That happened after P/C Gransden was 9 at the fence line. Shortly thereafter the rocks started 10 being thrown. 11 Q: And when PC Gransden was at the fence 12 line, how far away were you -- were you from Constable 13 Gransden? 14 A: I don't know as far as distance but I 15 believe I was closer to the entrance of the sandy parking 16 lot. 17 Q: And were you on the roadside or the 18 lakeside of the picnic tables? 19 A: I don't recall. 20 Q: Okay. And did you hear any exchange 21 between Constable Gransden and the people inside the Park 22 when he was up at the fence line? 23 A: I don't recall. 24 Q: And did you observe Constable 25 Gransden doing anything at the fence line?

178

1 A: No. I did not observe anything. 2 Q: Do you -- did you observe Constable 3 Gransden using pepper spray? 4 A: No, I did not. 5 Q: Then what happened? 6 A: Because the rocks were being thrown, 7 I returned towards my police motor vehicle and upon 8 returning I was struck in the back of my leg with a rock. 9 I felt it but I did not receive an injury. 10 I then went into my police motor vehicle 11 and numerous rocks were still being thrown and they were 12 striking police vehicles in the area. A rock struck the 13 police motor vehicle that I was seated in. 14 I was on the passenger side and the rock 15 struck the window on the passenger side causing the 16 window to shatter in that section. And shards of glass 17 came onto my lap. 18 Q: And the number in your notes, GA-2513 19 is the number assigned to the cruiser? 20 A: Yes, it's referring to Government 21 Automobile 2513. 22 Q: Okay. And so your notes indicate: 23 "There were shards of glass. No 24 injury. Incident reported to Sergeant 25 Graham, Sergeant Van Damme and Sergeant

179

1 Slack." 2 A: Yes, sir. 3 Q: And then: 4 "Returned to security detail at Comm 5 Post?" 6 A: The Command Post would be the TOC, 7 yes, sir. 8 Q: Yes. And when I said Communications 9 Post on the -- the page before it should have been 10 Command Post. 11 A: Yes, sir. 12 Q: And there's a note on the page 46 in 13 the -- if you look at your notes there's a little note -- 14 some numbers one three zero five five hyphen four (13055- 15 4) and that refers to a -- what does that refer to? 16 A: That would refer to an incident 17 report that was created documenting the damage and the 18 mischief. 19 Q: And does that incident report appear 20 -- did you fill out an incident report? There's an 21 incident report that appears at Tab 8 but it's got a 22 different number. 23 24 (BRIEF PAUSE) 25

180

1 A: I did not complete that. 2 Q: You didn't complete that? 3 A: No, sir. 4 Q: Have you seen this before? 5 A: No, I have not. 6 Q: Then the -- you returned to the 7 Command Post and what did you do next? It looks like at 8 4:30 you attended at Checkpoint 'C' with booster cables? 9 A: Yes, sir. 10 Q: That somebody's cruiser needed to be 11 started up? 12 A: Yes, sir. 13 Q: And do you recall where Checkpoint 14 "C" was? 15 A: No, I don't. 16 Q: And if I suggest to you it was on 17 Army Camp Road near Matheson Drive does that assist? 18 A: Yes, sir. 19 Q: And there's a trailer park, was it 20 close to -- I think it's Silver Birch Trailer Park? 21 A: There is a trailer park. I'm not 22 familiar with the name. 23 Q: Okay. But it was on Army Camp Road 24 near the trailer park, Checkpoint 'C'? 25 A: Yes, sir.

181

1 Q: And then after you boosted the 2 vehicle did you return to the security detail at the 3 Command Post? 4 A: I don't recall and it's not indicated 5 in my notes. 6 Q: And then at 07:20 it says: 7 "Relieved by day shift." 8 A: Yes, sir. 9 Q: And it's the last page that is from 10 the different Inquiry Document Number, sir, Commissioner. 11 And then at 09:00 there's a note: 12 "Assisted in the removal of Park 13 benches from area at Army Base 14 Ipperwash Provincial Park." 15 A: Yes, sir. 16 Q: And do you have any independent 17 recollection of that -- of what you did? 18 A: Yes, I do. 19 Q: Can you tell the Commissioner what 20 you did? 21 A: The -- the officers that were working 22 night shift proceeded down to the sandy parking lot in -- 23 I was wearing my ERT uniform. We were assisted by a 24 wagon, a hay-type wagon, I believe it was borrowed from 25 the MNR, and we approached the sandy parking lot.

182

1 I recall two (2) people sitting on the 2 picnic tables in that area and a smouldering fire and as 3 we walked down the road the -- the two (2) people ran 4 away from the picnic tables and ran into the Provincial 5 Park. We then proceeded to remove the picnic tables from 6 the sandy parking lot. 7 Q: And what role did you play? 8 A: I was physically removing the picnic 9 tables. 10 Q: And do you recall today how the 11 picnic tables were set up in the sandy parking lot? 12 A: No, I do not. 13 Q: And we've seen a photo that showed 14 picnic tables in a circle around a -- a fire. Does that 15 assist? 16 A: Yes, sir, that's -- I -- I recall 17 something of that nature. 18 Q: That the -- the picnic tables were in 19 a circle? 20 A: Yes, sir. 21 Q: And there was a fire in the middle 22 or -- 23 A: I -- I don't recall the fire in the 24 middle or in the area of the picnic tables. 25 Q: Do you recall a tent?

183

1 A: No, sir, I do not. 2 Q: But the picnic tables that you moved 3 were in a circle? 4 A: Were in the sandy parking lot, yeah. 5 Q: And in a circle? 6 A: I -- I can't say for sure. 7 Q: Now, then if I could ask you to turn 8 to Tab 9. 9 10 (BRIEF PAUSE) 11 12 Q: And these are again your notes? 13 A: Yes, sir, they are. 14 Q: And these notes are from Inquiry 15 document 100459. And I would ask that this group of 16 notes from September the 6th be marked the next exhibit. 17 THE REGISTRAR: P-1530, Your Honour, and 18 that is document number 1000459? 19 MR. DERRY MILLAR: 1000459 and this is a 20 -- seven (7) pages of notes. 21 22 --- EXHIBIT NO. P-1530: Document Number 1000459. 23 Handwritten notebook entries 24 of Bill Bittner, September 25 06-07, 1995.

184

1 2 CONTINUED BY MR. DERRY MILLAR: 3 Q: And according to Exhibit 1530, 4 Constable Bittner, you were on duty at 18:00 hours on 5 September the 6th? 6 A: Sorry, I'm not sure -- 7 Q: At Tab 9. 8 A: That's document 1000459? 9 Q: Yes. 10 A: Yes, sir. 11 Q: And the -- there's a note, "18:30 12 briefing at Forest"? 13 A: Yes, sir. 14 Q: And do you recall who led that 15 briefing? 16 A: No, I do not. I recall the briefing 17 being in the garage at the Detachment, but I don't recall 18 who led it. 19 Q: And on the evening of September the 20 6th, at some point were you issued a ASP baton? 21 A: Yes, sir. I believe it was during 22 that briefing. 23 Q: And had you been trained in the use 24 of an ASP baton prior to September the 6th? 25 A: Yes, I had.

185

1 Q: And so you were familiar with it? 2 You simply did not have one? 3 A: That's correct. 4 Q: And were you given some -- or were 5 officers given some additional training that evening by I 6 believe it's Officer Grant? 7 A: I -- I do recall, yes, Constable 8 Grant. He was also the person that gave me my initial 9 training. 10 Q: And do you recall what he did on the 11 evening of September the 6th? 12 A: No, I do not. 13 Q: And the notes indicate that you were 14 assigned to Checkpoint 'C'? 15 A: Yes, sir. 16 Q: And again, your notes indicate Army 17 Camp Road between Highway 21 and East Parkway Drive and 18 you were there with Constables Aitchison, Zacher, Poole, 19 and Jacklin; is that correct? 20 A: Yes, sir. 21 Q: And Jacklin was in charge? 22 A: That's correct. 23 Q: And you have a note at 19:20 and what 24 happened at 19:20? 25 A: At 19:20 a -- a blue motor vehicle, I

186

1 have indicated a possible Pontiac Sunbird, proceeded from 2 the sandy parking lot towards our checkpoint and a -- a 3 male native was operating that motor vehicle and he 4 attended our checkpoint and was reporting some damage to 5 his motor vehicle. 6 Q: And did you -- were you able to 7 observe this individual and the car he was driving, did 8 you observe it down by the sandy parking lot? 9 A: No, I did not. 10 Q: And how do you know it was coming 11 from the sandy parking lot? 12 A: It was coming from that direction. 13 Q: Coming from that direction? And then 14 what happened? And do you have any independent 15 recollection or just your recollection based on your 16 notes? 17 A: I have independent recollection of 18 the vehicle, attending, and seeing the damage to the -- 19 the rear section on th driver's side. 20 I don't recall -- I recall Constable Poole 21 dealing with that individual. 22 Q: Okay. And the damage that you 23 indicate that you saw, can you describe that today? 24 A: Yes. It was a -- a dent. It 25 appeared fresh in nature approximately 2 inches in

187

1 diameter. 2 Q: And the -- your notes indicate that 3 the person in the motor vehicle stated something and 4 that's on page 48? Do you recall him telling you what 5 happened? 6 A: I -- I don't recall specifically 7 dealing with this individual. 8 Q: Okay. And where your notes indicate 9 -- stated: 10 "When he drove past beach 11 area/Ipperwash Provincial Park, natives 12 threw rocks hitting his rear left door. 13 I observed a fresh dent in this area." 14 And where did that information come from? 15 A: I don't recall. 16 Q: And so Constable Poole dealt with the 17 individual? 18 A: Yes, sir. 19 Q: Did you know the individual? 20 A: No, I did not. 21 Q: Did you know his name? 22 A: At the time, no, I did not. 23 Q: You subsequently learned his name? 24 A: Yes, sir. 25 Q: How did you come to learn his name?

188

1 A: I believe it was at the Warren George 2 trial. 3 Q: Okay. And that was Mr. Gerald 4 George? 5 A: That's correct. 6 Q: And at Tab 11 is a copy of Exhibit P- 7 123 Inquiry Document 2000549, and on the evening of 8 September the 6th did you see this interview report? 9 A: No, I did not. 10 Q: And did you see Constable Mark Dew at 11 the checkpoint? 12 A: At the time I did not know who Mark 13 Dew was. I do not recall seeing him at the checkpoint. 14 Q: Pardon me, I didn't -- 15 A: I do not recall seeing him there. 16 Q: And do you recall where Constable 17 Poole was when he dealt with this individual? 18 A: I recall he was -- ended up sitting 19 inside a motor vehicle to -- to deal with the individual. 20 Q: Inside the individual's motor 21 vehicle? 22 A: Yes, sir. 23 Q: And do you recall when you were at 24 the Checkpoint 'C' on the evening of September the 6th, 25 did you have a book of photographs?

189

1 A: No, I did not. 2 Q: Did you see a book of photographs? 3 A: No, I did not. 4 Q: And after the individual was dealt 5 with by Mr. -- Sergeant Poole, were you told anything 6 about what he said, the -- the Complainant? 7 A: Based on my notes I must have 8 received information that there -- a rock was thrown and 9 struck his motor vehicle. 10 Q: And do you recall being advised about 11 any information about weapons? 12 A: I do not recall. 13 Q: And if you had been advised of 14 information about weapons, is it fair to say you would 15 have put it in your notes? 16 A: Depending on the nature of -- of the 17 information, I may have. 18 Q: And what do you mean by that, sir? 19 A: If it was specific information 20 confirmed or if it was rumour or if it was confidential 21 information depending on how the -- the information came 22 across. 23 Q: So if it was -- I still don't 24 understand. If it was confidential information or rumour 25 or confirmed how -- what -- how would it get in your

190

1 notes? Which ones would get in your notes and which ones 2 wouldn't? 3 A: Yeah. Ultimately there isn't 4 anything in my notes and I don't recall. 5 Q: So you don't recall? 6 A: Yeah. 7 Q: Now... 8 9 (BRIEF PAUSE) 10 11 Q: So do you recall whether he was in 12 the Complainant's vehicle or in a police vehicle? 13 A: I believe earlier I testified that he 14 was in a police vehicle but now I believe he was in the 15 Complainant's vehicle. 16 Q: But you acknowledge that before you 17 had indicated that you thought he was in a police 18 vehicle? 19 A: Yes, sir. 20 Q: And now you have a note in Exhibit -- 21 in the notes at Tab 9 and you're free to use your 22 original notes, Constable Bittner, if you wish. These 23 notes fortunately happen to be pretty clear but it's up 24 to you. 25 You have a note at 21:00 hours and can you

191

1 tell us about that? What happened at 21:00 hours? 2 A: I was -- received information from 3 Constable Jacklin and he advised me that the Checkpoint 4 'C' was shutting down and that we were going to proceed 5 to the TOC on East Parkway Drive. 6 Q: And did you then go to the TOC on 7 East Parkway Drive? 8 A: Yes, I did. 9 Q: And there's a -- now the notes at -- 10 that are made here for the evening of September the 6th, 11 do you recall when you made these notes, sir? 12 A: No, I do not, sir. 13 Q: Were they made the next day? 14 A: Quite possibly. I -- I don't recall 15 if -- because of the transition going from one point to 16 the next and what we were going to do, I don't believe I 17 had time then to make the notes. 18 Q: And during the evening and the events 19 that we'll come to, you were engaged in the events that 20 we'll come to and did you make them after the -- the 21 incident in the sandy parking lot? 22 A: Yes, sir, I did. 23 Q: During the night or during the next 24 day? 25 A: I made them the following day.

192

1 Q: The following day? So at 21:15 you 2 have an entry -- it -- I take it -- 10-7 means you went 3 to the MNR parking lot? 4 A: Yes, sir. 5 Q: And you went with Constable 6 Aitchison? 7 A: Yes, sir. 8 Q: And what happened? 9 A: I received information from Constable 10 Jacklin that the checkpoint members from Charlie were 11 going to form the Crowd Management Unit arrest team along 12 with additional members, P/C Ternovan, P/C Root, and P/C 13 Myers of the 1 District ERT. 14 Q: And Jacklin -- Constable Jacklin I 15 believe was from 1 District ERT as well? 16 A: Yes, sir. 17 Q: And only you and Constable Aitchison 18 were from 2 District ERT? 19 A: That's correct. 20 Q: And what else were you told? 21 A: I received information that the 3 and 22 6 District ERT members were going to form the front lines 23 of the Crowd Management Unit in full Crowd Management 24 gear and that the arrest team members were going to wear 25 helmets and arm protection only.

193

1 Q: And do you recall what you wore? 2 A: I recall wearing a Crowd Management 3 Unit helmet with the visor and forearm protection. 4 Q: And we've heard from at least one (1) 5 member of the arrest team that he wore shin pads. Do you 6 recall wearing shin pads? 7 A: I do not recall. 8 Q: Then what happened? 9 A: The Crowd Management Unit was going 10 to be led by Staff Sergeant Lacroix. 11 Q: And who told you that? 12 A: I believe it was P/C Jacklin. 13 Q: Okay. And then what happened? 14 A: I believe there was a -- a briefing 15 that took place at Forest Detachment. However, I did not 16 attend there. I went directly from Checkpoint Charlie to 17 the TOC. 18 Q: And was there a briefing at the TOC 19 by Staff Sergeant Wade Lacroix? Did he say anything to 20 you? 21 A: I -- I don't recall. The only 22 briefing I recall is from PC Jacklin. 23 Q: And to you recall being spoken to by 24 John Carson? 25 A: No, I do not.

194

1 Q: Do you know who John Carson was? 2 A: I don't believe I was -- knew the 3 gentleman at the time. 4 Q: Okay. And -- the -- now, then what 5 happened? 6 A: At 10:00 p.m. the Crowd Management 7 Unit formed up and we proceeded along East Parkway Drive 8 towards the public beach area. 9 Q: And you don't have it, but we've got 10 a copy of Exhibit P-438, which is a transcript of the 11 communications that -- with respect to the movement along 12 East Parkway Drive and it starts at 10:27 and not at ten 13 o'clock and would you agree that it might -- that it -- 14 the communication time is probably is more correct than 15 your notes as to the time? 16 A: Yes, sir. 17 Q: Okay. Can you just -- can you tell 18 us what happened, and using your notes? Now, can you 19 just -- before you do that, how -- what personal 20 recollections do you have of what transpired next? 21 Do you have some recollection and... 22 A: I have a fair bit of recollection. 23 Q: Okay. 24 A: There are some times in my notes that 25 I don't have independent recollection, but for the most

195

1 part the proceeding down the road and what encountered, I 2 do have recollection. 3 Q: Okay. So can you start and tell us 4 what happened? 5 A: Yes, sir. We proceeded towards the 6 Provincial Park or the sandy parking lot along East 7 Parkway Drive. I believe that would be travelling east. 8 Q: And what type of formation were you 9 in? 10 A: I recall us being in a box formation. 11 Q: And where was -- where were you 12 located in relation to the box formation? 13 A: In the box formation, I was at the 14 rear and on the right side, second from the end. 15 Q: Okay. Second from the outside... 16 A: Sec -- yeah. The first one in from 17 the outside, yes. 18 Q: And you're -- were you -- did you 19 have a partner? Were you paired with someone that night? 20 A: Yes. Constable Aitchison was my 21 partner. 22 Q: Okay. And is it normal -- was it 23 normal in 1995, for officers to be paired? 24 A: Yes, sir. 25 Q: Then what happened?

196

1 A: As we proceeded down the road, there 2 was some information and I don't recall how the 3 information came across, but it says over the portable, 4 that a native was observed with a firearm, a rifle, in 5 the beach area which would refer to the sandy parking 6 lot. 7 At which time the Crowd Management Unit 8 was told to standby on the road. We -- 9 Q: And -- and before you go on, prior to 10 leaving the TOC, were you told what the mission of the 11 CMU was? 12 A: In my notes I believe it was to 13 remove anyone obstructing the beach area, which refers to 14 the sandy parking lot. 15 16 (BRIEF PAUSE) 17 18 Q: Okay. And do you recall being told 19 anything about weapons? 20 A: No, sir. 21 Q: Did you have any information about 22 weapons? And by weapons, I mean firearms, when you -- 23 before you started down East Parkway Drive? 24 A: No, sir. 25 Q: Okay. Then what happened?

197

1 A: I recall that there was a Crowd 2 Management Unit split at which time I went to the south 3 side, or the Highway side, of the roadway. I believe 4 it's the treed area and we were told to standby there. 5 Q: Okay. 6 A: Which time I was thinking that'd be 7 the end of the Crowd Management detail for us -- 8 Q: Why -- 9 A: -- if there was a firearm. 10 Q: Pardon me? 11 A: I -- I believed that that would be 12 the end of the detail. We wouldn't proceed any further 13 if there actually was a firearm. 14 Q: Okay. 15 A: However, further information was 16 received that it was not a firearm and it appeared to a 17 long stick. 18 Q: Okay. And then what happened? 19 A: We proceeded east along East Parkway 20 Drive towards the sandy parking lot. I was at the rear 21 of the box formation. It was difficult for me to see 22 ahead. I was obstructed by the members in front of me 23 and it was dark out. I did not observe anyone in the 24 sandy parking lot. 25 Q: Yes? Then what -- how far were you

198

1 back from the front of the -- of the -- the formation? 2 A: I was approximately 40 feet from the 3 front. 4 Q: Okay. And at some point did the 5 formation change? 6 A: Yes, at some point in time we went 7 into a cordon formation. 8 Q: And were you in a cordon formation 9 when you got to the sandy parking lot? 10 A: I believe as we approached it, upon 11 arriving we went into a cordon formation. 12 Q: And when you first arrived you 13 indicated that you did not see anyone in the sandy 14 parking lot? 15 A: That's correct. 16 Q: And what happened? What did the CMU 17 do? 18 A: I didn't see anyone in the sandy 19 parking lot but I saw approximately forty (40) occupiers 20 inside the Provincial Park along the fence line. I 21 observed two (2) large bonfires burning along the fence 22 line, inside the -- the fence. 23 Q: And at this point in time when you 24 observed the people in the inside of the Park and the 25 bonfires can you -- do you recall where the front of the

199

1 formation was? 2 A: No, I do not. 3 Q: And then what happened? 4 A: I heard occupiers screening -- 5 screaming out and yelling out comments. 6 Q: And you made some notes. Can you 7 just tell us what they were? 8 A: The comments that I notated were, Get 9 off our fucking land. Go back to England. Go back on 10 the Mayflower, and indicated that I heard another person 11 yell, My grandfather died here and I'm willing to die 12 here. 13 Q: And did -- did you see any of the 14 individuals who were making these comments? 15 A: No, sir, I did not. 16 Q: And could you see where these 17 individuals were? Were they inside the Park still? 18 A: I believe they were inside the Park 19 when they were making these comments. 20 Q: Okay. And then what happened? 21 A: As we proceeded in towards the sandy 22 parking lot I could see rocks being thrown from the 23 Ipperwash Park and could hear them hitting the Crowd 24 Management Unit shields. 25 At -- at that time I was -- had some

200

1 concerns about being struck with a rock myself because I 2 did not have a plastic shield. I also observed an 3 unknown person pull out flaming branches from the bonfire 4 and throw them towards the sandy parking lot towards the 5 Crowd Management Unit. 6 Q: And how far away at this point in 7 time were you from the fence line? 8 A: I don't recall, sir. 9 Q: And do you recall what the lighting 10 was in the sandy parking lot that evening? 11 A: I recall it being quite dark, that 12 the -- the area was partially illuminated by the moon. I 13 don't recall any overhead lighting. I recall spotlights 14 being shone from the Provincial Park at the Crowd 15 Management Unit. 16 Q: And what affect if any did those 17 spotlights have on you? 18 A: I found -- I don't recall 19 specifically, but I would believe that my night vision 20 would be diminished. 21 Q: And the -- then -- then what 22 happened? 23 A: The Crowd Management Unit backed off 24 away from the Provincial Park fence line. 25 Q: And so at this point in time the

201

1 front of the Crowd Management Unit was near the fence 2 line? 3 A: I was near the fence line. I don't 4 recall how close they were though. 5 Q: Okay. And then what happened? 6 A: As we proceeded to back off, the 7 occupiers came out of the Provincial Park and onto the 8 beach area. 9 Q: And by that you mean the sandy 10 parking lot? 11 A: Yes, sir. 12 Q: And then what happened? 13 A: I recall the -- I have in my notes, 14 left flank, which would refer to the left cover, was 15 ordered to punchout. 16 Q: And -- and by a punchout what do you 17 refer -- what do you mean by that? 18 A: A punchout command would be given to 19 one of the ranks in the Crowd Management Unit or to the 20 full unit at which time the -- the officers given the 21 punchout would proceed 15 paces forward. 22 Q: And so there was a punchout order and 23 left flank or left cover was ordered, then what happened? 24 A: After that, I -- I recall seeing a 25 person laying face down in the sandy parking lot. And it

202

1 would have been to my left approximately 30 feet away. 2 Q: And so you were at -- at this point 3 in time you were still on the right hand side of the 4 arrest squad? 5 A: That's correct. 6 Q: And the -- if I can turn you to Tab 7 12, this is a copy of Exhibit P-1416. Prior to attending 8 and getting ready for your attendance here, had you seen 9 this document before? 10 A: Yes, sir, I did. 11 Q: And did you see it in relation to the 12 trials? 13 A: I don't recall. 14 Q: And this is a drawing that was 15 prepared by the SIU and it shows you beside Mr. -- 16 Constable Aitchison on the right hand side? 17 A: Yes, sir. Yes, sir. 18 Q: And is that -- I know this is a 19 schematic, but is this your approximate location? 20 A: I was beside Constable Aitchison. As 21 far as our spacing or where the other officers were, I 22 have no idea who was in the contact squad, left cover or 23 right cover. 24 Q: But you were -- what I was getting 25 at, and I didn't make myself clear, is you're on the

203

1 right-hand side of the arrest unit beside Constable 2 Aitchison? 3 A: That's correct. 4 Q: And did you know who was beside you 5 on the left-hand side? 6 A: I didn't recall until looking at this 7 document. 8 Q: And it's only from this document that 9 you assume that it was Constable Zacher? 10 A: Yes, sir. 11 Q: Do you re -- do you have any 12 independent recollection as to who was beside you? 13 A: No, sir, I do not. 14 Q: And so when -- you saw a person lying 15 on the ground? 16 A: Yes, sir. 17 Q: And did you see the person -- you saw 18 the left flank move out and then the next thing you saw 19 was a person lying on the ground? 20 A: That's what I recall, sir. 21 Q: Okay. And the person was lying face 22 down? 23 A: Yes, sir. 24 Q: And then what happened? 25 A: I observed approximately five (5) or

204

1 six (6) members from the Crowd Management Unit and they - 2 - I observed the person kicking his legs out -- 3 Q: Yes. 4 A: -- as I approached I observed the 5 person on the ground being struck with a baton in the 6 right shoulder area. 7 Q: And how many times did you see the 8 person being struck? 9 A: I observed him being struck twice. 10 Q: And did you observe who was -- who 11 was striking him? 12 A: No, sir, I did not. 13 Q: And was it a member of the arrest 14 team? 15 A: I don't know, sir. I know myself, I 16 did not have my ASP out proceeding in that -- in that 17 function. It's a very hands on type of position. So 18 having an ASP with you would restrict your movement when 19 you're trying to secure a person. 20 Q: So that it would not be normal for 21 the arrest team to proceed forward a baton in their hand? 22 A: I don't believe so, no. 23 Q: And in any event you didn't? 24 A: I did not have one. 25 Q: And did you observe if the person who

205

1 was striking the person on the ground, struck the person 2 on the ground, had a shield? 3 A: I don't recall. 4 Q: And now you saw the person strike him 5 twice? 6 A: Yes, sir. 7 Q: And in the shoulder and arm area? 8 A: Shoulder arm area, yes, sir. 9 Q: Towards the top of his shoulder or 10 can you -- 11 A: I -- I recall it was towards the top 12 of the right shoulder. 13 Q: And sort of on the shoulder or 14 towards the arm or towards the head, do you... 15 A: I wasn't close enough to -- to 16 exactly -- see the exact position. 17 Q: And then you saw that, then what did 18 you do? What did you see next? 19 A: I proceeded over to that location. 20 It appeared to me that they were having difficulty in 21 restraining him and I proceeded to assist in securing the 22 person on the ground. 23 Q: And when you saw it appear -- they 24 appeared to be having trouble restraining him, what do 25 you mean by that? What was the person on the ground

206

1 doing? 2 A: I observed him kicking his leg out. 3 When I got there I -- I then observed an officer 4 attempting to use a nylon restraint, known as a flex cuff 5 to secure his hands behind his back. 6 I observed another officer attempting to 7 flex cuff the party's ankles. 8 Q: And did you recognize those officers? 9 A: No, I did not. 10 Q: And then -- were they a part of the 11 arrest team? 12 A: I don't know, sir. 13 Q: And had you worked the Number 1 ERT 14 team before? 15 A: No, sir, I had not. 16 Q: And did they appear -- then what did 17 you do? 18 A: I then proceeded to remove the 19 construction boots that the party on the ground was 20 wearing in order to facilitate the nylon restraints being 21 put on his ankles. 22 Q: And the nylon restraints are the flex 23 cuffs? 24 A: Yes, sir. 25 Q: Yes. And then what happened?

207

1 A: Once his ankles were secured, which 2 took just a few moments, I then noticed that they were 3 still struggling to secure his -- his arms behind his 4 back. 5 I then proceeded to remove my metal 6 handcuffs on my -- my duty belt that I was wearing, and 7 proceeded to fasten my metal handcuffs onto his wrists. 8 Q: Okay. And did you receive an order 9 to proceed to where the person -- the person that you're 10 dealing with, was? 11 A: No, I did not. 12 Q: And did you -- how did you know to go 13 there? Did you follow the other people or... 14 A: I was off to the right and I observed 15 them having a struggle on the ground and that's why I 16 proceeded over to assist. 17 Q: Then what happened? 18 A: I re -- I recall hearing someone tell 19 us to remove him from the area. At this point in time 20 there were still rocks that were being thrown from the 21 park area and that continued the whole time we were in 22 the sandy parking lot. 23 Q: Yes. 24 A: I assisted in carrying the -- the 25 male person to the prisoner van which was parked on East

208

1 Parkway Drive. 2 Q: Yes? 3 A: I believe there was two (2) other 4 officers that assisted me. One was PC Zacher. I do not 5 recall or at the time I didn't know who the other officer 6 or officers were. 7 Q: And when you were with the individual 8 in the sandy parking lot, did you say anything to the 9 individual? 10 A: No, I did not. 11 Q: Did you hear anyone else say anything 12 to the individual? 13 A: No, I did not. 14 Q: Did you hear anyone calling him a 15 savage? 16 A: No, I did not hear that. 17 Q: Did you hear the individual say words 18 to the effect, I quit? 19 A: No, sir, I did not hear that? 20 Q: Or, I give up? 21 A: No, sir. 22 Q: And when the individual who was being 23 carried to the prisoner van, how did the -- how -- how 24 was he being carried? 25 A: He was being carried face down and I

209

1 had his ankles and there was other officers carrying the 2 torso section. 3 Q: And how were they -- when you say 4 they were carrying his torso section, how were they 5 holding him? 6 A: I don't recall specifically. 7 Q: Do you -- were they holding his arms 8 or... 9 A: I -- I'm not sure if -- if they were 10 -- had their hands lifting the arms. I -- I don't know, 11 sir. 12 Q: And the -- at this point you -- his 13 hands are handcuffed behind his back and his ankles are 14 handcuffed? 15 A: Yes, sir. 16 Q: Did you drag him on the ground at 17 all? 18 A: No, sir, we did not. 19 Q: Did you -- did you pull his hair? 20 A: No, sir, I did not. 21 Q: Did you observe anyone else pull his 22 hair? 23 A: No, sir, I did not. 24 Q: Did you observe anyone pulling him 25 along the ground by his hair?

210

1 A: No, sir. 2 Q: And when you got to the prisoner van 3 did you -- what did you do? 4 A: Once we were out of the prisoner van 5 we placed him on the ground, I believe it was on -- on 6 the roadway. 7 Q: And was he face up or face down? 8 A: He was face down. 9 Q: And why was he placed face down? 10 A: He was placed on the ground in order 11 for the officer operating the -- the prisoner van to open 12 the -- the rear door. 13 Q: And then what happened? 14 A: I recall him being picked up off the 15 ground and -- 16 Q: Did you help pick him up? 17 A: I don't recall if I specifically 18 helped pick him up. I recall him being picked up off the 19 ground. 20 Q: And then what happened? 21 A: When he was picked up off the ground 22 I -- I noticed a -- a wet spot on the -- the roadway 23 where his face area was situated. 24 Q: And did you see what that wet spot 25 was?

211

1 A: No, I could not. I believe it may 2 have been blood but I -- I didn't see a colour or -- or 3 anything. 4 Q: And the -- did you observe his face 5 when he went into the prisoner van? 6 A: No, I did not. 7 Q: And when he was being carried by you 8 from the sandy parking lot to the prisoner van can you 9 describe -- describe him? What was he doing if anything? 10 A: I recall just carrying him in a 11 rushed manner. I don't recall him -- a strong struggle 12 or anything like that. 13 Q: Do you recall him saying anything in 14 the -- going across the sandy parking lot to the prisoner 15 van? 16 A: No, sir, I never heard the -- the 17 party speak. 18 Q: And did you observe whether he was 19 conscious or unconscious when you got to the prisoner 20 van? 21 A: I believe he was actually sitting up 22 in the back of the prisoner van at some point in time. 23 Based on that I'd say he was conscious. 24 Q: Okay. And prior to the evening of 25 September the 6th had you -- I take it that as an Arrest

212

1 Team, given that this was the first time the CMU had been 2 deployed that you were part of it that you had never 3 acted as part of an Arrest Team before? 4 A: That's correct. 5 Q: And then how far -- do you recall 6 today how far away the -- where the prisoner van was 7 located? 8 A: There was two (2) prisoner vans and 9 we took the prisoner to the rear prisoner van. I don't 10 recall how far that was from the sandy parking lot. 11 Q: And did you receive any instructions 12 about the Provincial Park as part of your instructions 13 before you went down the road? And by that, were you 14 told anything about going in or not going into the 15 Provincial Park? 16 A: I -- I distinctly recall that there 17 was a process ongoing about an injunction in order to 18 remove the occupiers from the Park and everything 19 pertaining to the Provincial Park was on hold waiting for 20 that injunction and at the time we proceeded to the sandy 21 parking lot that -- that injunction was not completed. 22 Q: And so do I take it then -- had you 23 been told not to go into the -- into the Provincial Park? 24 A: That's my recollection. 25 Q: Okay. So you're at the prisoner van,

213

1 then what happened? 2 A: While I was at the prisoner van, I 3 proceeded back towards the -- the sandy parking lot. And 4 at that point in time I observed a -- a yellow school bus 5 proceed towards -- out of the Ipperwash Provincial Park, 6 smash through a gate and hit a large dumpster. 7 The vehicle then drove directly to -- 8 towards East Parkway Drive. The -- the bus drove 9 directly towards East Parkway Drive where the Crowd 10 Management officers were standing. 11 I observed the bus and I proceeded to jump 12 off the roadway into the south ditch, the highway side 13 ditch. 14 Q: And when you jumped into the ditch, 15 why did you jump in the ditch? 16 A: I jumped in the ditch to avoid being 17 struck by the bus. 18 Q: Yes. 19 A: Once I was in the ditch, I got hung 20 up on a page wire fence that was in the ditch and when I 21 looked back I could see the bus coming directly towards 22 the ditch. 23 I truly believed I was going to get struck 24 by the bus then and killed. 25 Q: It was backing up -- the bus?

214

1 A: The bus was driving directly towards 2 the ditch. It was going forward. 3 Q: Okay. Yes? 4 A: At -- at the last second, the bus 5 managed to veer to the right back onto East Parkway 6 Drive. 7 Q: Yes. Then what? 8 A: After the bus had proceeded past my 9 location, away from the sandy parking lot, I proceeded to 10 get out of the ditch and onto the roadway and follow the 11 bus. 12 Q: And how far up East Parkway Drive did 13 the bus go before it stopped? 14 A: I -- I've got noted 50 metres in my 15 notebook. It may have been more. 16 Q: And then what happened? 17 A: I -- I approached the rear of the 18 bus. The bus was stopped on the roadway. I approached 19 the rear of the bus and my thought was to attempt to 20 disable the bus by puncturing the sidewall tire. 21 Q: And? 22 A: At that point in time I was also with 23 PC Jacklin. 24 Q: So did you take a -- what did you do? 25 Did you take out your knife -- a knife?

215

1 A: Yes. I had a knife out. 2 Q: Yes? 3 A: I was also with P/C Jacklin. We were 4 at the back of the bus. P/C Jacklin had a Oleo Resin 5 Capsicum spray fogger. It's a -- it's a larger container 6 of -- of OC spray. 7 Q: That's -- for those of us not in the 8 know, that -- you're referring to pepper spray? 9 A: Yes, sir. 10 Q: Yes? 11 A: I then observed the -- the backup 12 lights come on the bus and I yelled at PC Jacklin to get 13 out of the way, at which time we both proceeded over onto 14 the north shoulder. 15 Q: And you've got in your notes, the 16 west side -- west ditch, but you mean the north -- 17 A: The lakeside shoulder. 18 Q: And then what happened? 19 A: At that point in time I was standing 20 near the -- the rearmost prisoner van where the prisoner 21 was placed into. And I could hear six (6) or seven (7) 22 popping sounds which I recognized to be gunfire. 23 The sounds were muffled because I was 24 wearing my Crowd Management helmet. I -- I looked 25 towards the sandy parking lot and I could see people in

216

1 the south ditch or the highway side ditch and the sounds 2 appeared to be coming from that area. 3 Q: And along East Parkway Drive? 4 A: Yes, sir. 5 Q: And did you observe who was in the 6 south ditch? 7 A: No, sir. I didn't see any people. 8 Just shadows. 9 Q: You just -- and the -- did you see 10 any police officers with revolvers in their hands? 11 A: No, sir, I did not. 12 Q: Did you see any police officers with 13 long guns in their hands? 14 A: No, sir, I did not. 15 Q: Did you see any of the protesters or 16 occupiers with revolvers in their hands? 17 A: No, sir, I did not. 18 Q: Did you see any protesters or 19 occupiers with long guns in their hands? 20 A: No, sir, I did not. 21 Q: Did you see anybody with any kind of 22 gun in their hand? 23 A: No, sir, I did not. 24 Q: And did you see a car on the road 25 that night?

217

1 A: No, sir, I did not. 2 Q: And did Constable Jacklin use the 3 cannister of - the OC spray fogger? Was he able to -- 4 did he use it on the bus? 5 A: I don't believe he did. 6 Q: Okay. Now, again, I believe he 7 testified that he did use it but you -- you can't recall? 8 A: No, sir. 9 Q: And if I -- then what happened? 10 A: At that point in time the Crowd 11 Management Unit was advised to withdraw and then we 12 proceeded back to the -- the tact -- the Tactical 13 Operations Centre. 14 Q: Okay. Then the -- if I could just 15 take you back for a moment. On page 52 of your notes, 16 Exhibit P-1530. It's the same tab you were at. 17 At the top of the page after the prisoner 18 van, you have a note: 19 "CMU back off from the beach area." 20 And what do you mean by that? 21 A: I believe that the CMU was out of the 22 sandy parking lot and on East Parkway Drive. 23 Q: And then the bus came by; it came 24 towards you, it went by. And it was after the bus went 25 by that you heard the shooting?

218

1 A: After the bus had -- 2 Q: Went back -- 3 A: -- reversed and returning back to the 4 Provincial Park is when I heard the shooting. 5 Q: And when you heard the shooting, the 6 bus had already passed you and was going back towards the 7 Provincial Park? 8 A: Yes, sir. 9 Q: Did you see the bus go into the 10 Provincial Park? 11 A: I recall being astonished that it 12 managed to go back into the same opening it came out of, 13 in reverse. I remember that -- those thoughts, but as 14 far as specifically seeing it go, I don't recall. 15 Q: And then your notes at page 53 say: 16 "The CMU was advised to withdraw and we 17 were -- we regrouped and returned to 18 the Communications Centre." 19 And do you recall Staff Sergeant Lacroix 20 asking for a head count? 21 A: No, sir, I do not. 22 Q: Then after you got back to the 23 Command Centre at the Ministry of Natural Resources 24 parking lot, what did you do? 25 A: After that I was assigned to

219

1 checkpoint B, Bravo, at the Ipperwash Road at East 2 Parkway Drive with Constable Poole, Constable Zacher and 3 Constable Aitchison. 4 Q: And there's an entry, 00:01, what's 5 that refer to? 6 A: That was just denoting that it's 7 going into the -- following day -- 8 Q: That -- 9 A: -- the 7th of September. 10 Q: And when you arrived back at the 11 Ministry of Natural Resources parking lot, did Staff 12 Sergeant Lacroix speak to the CMU or say anything to the 13 CMU? 14 A: I don't recall, sir. 15 Q: Did Inspector Carson say anything to 16 the CMU? 17 A: I don't recall. 18 Q: And -- or -- or Kent Skinner? Did 19 you know who Kent Skinner was? 20 A: I don't recall anyone speaking to the 21 Crowd Management Unit. I know who Kent Skinner is, but 22 I'm not sure if I would have known him at the time. 23 Q: Okay. And then how long were you -- 24 did you remain at checkpoint B at Ipperwash Road and East 25 Parkway?

220

1 A: I remained there until eleven o'clock 2 the morning of the 7th of September. 3 Q: And I note at the top of page -- the 4 page, it would be page 53 -- 54, although the bottom is 5 cut off, that you observed a bright orange globe coming 6 from the area of the Ipperwash Provincial Park? 7 A: Yes, sir. 8 Q: And received information that the 9 Park was on fire? 10 A: That's correct. 11 Q: And were you told what was burning? 12 A: I didn't know at the time and there 13 were concerns that the whole Park may burn down and -- 14 and come towards East Parkway Drive, the fire, but at the 15 time I didn't know -- did not know what was burning. 16 Q: Okay. And then at 11:00 hours it 17 says: 18 "5 District ERT attended scene and 19 relieved checkpoint. 12:00 return to 20 Forest Detachment." 21 A: Yes, sir. 22 Q: And then 12:45 you were in -- at the 23 Forest Detachment? 24 A: Yes, sir. 25 Q: And received information. What

221

1 happened? What's this about at 12:45? 2 A: I received information that a group 3 of people had walked over to the TOC and basically were - 4 - were occupying the space of the TOC, taking over the 5 TOC. 6 Q: And... 7 A: We proceeded back to assist. On the 8 way over to assist we were advised that the police 9 officers had withdrawn from that area and left it to the 10 people that had overcome the area. 11 Q: And what we're referring to is the 12 Ministry of Natural Resources parking lot where the 13 Command Post was, the St. John's Ambulance was? 14 A: Yes, sir. 15 Q: And so you got in your cruiser and 16 started back to -- or a cruiser -- and started back 17 towards the MNR parking lot but were called off on the 18 way? 19 A: I recall getting -- getting as far as 20 Ipperwash Road I believe or even as far as East Parkway 21 but then leaving the area after that. 22 Q: Okay. And then there's an entry: 23 "14:01 Interview P/C D.C. Maddocks 24 Chatham Detachment." 25 A: That's correct.

222

1 Q: And what did that relate to? 2 A: At that -- at 14:01 or 2:01 p.m. I 3 gave a statement to PC Maddocks regarding the events of 4 the evening. 5 Q: And the statement was completed at 6 14:53 and then it appears you returned to your assigned 7 room and went off duty at 16:00 hours? 8 A: Yes, sir. 9 Q: And if you could turn to Tab 14 10 you'll find there a copy of Inquiry Document 2003338. 11 And is that the typed and handwritten version of the 12 statement that you gave to Constable Maddocks? 13 A: Yes, sir, that is. 14 Q: I would ask that be marked the next 15 exhibit? 16 THE REGISTRAR: P-1531, Your Honour. 17 18 --- EXHIBIT NO. P-1531: Document Number 2003338. 19 Typed and handwritten 20 statement of S/C G.W.H. 21 Bittner, September 07, 1995. 22 23 MR. DERRY MILLAR: Excuse me, 24 Commissioner. 25

223

1 (BRIEF PAUSE) 2 3 COMMISSIONER SIDNEY LINDEN: I know 4 you're just about finished, Mr. Millar, should we take a 5 break or do you want to finish? 6 MR. DERRY MILLAR: Well, we could take a 7 short break now. 8 COMMISSIONER SIDNEY LINDEN: Why don't we 9 take a short break now and then finish after. 10 THE REGISTRAR: This Inquiry will recess 11 for fifteen (15) minutes. 12 13 --- Upon recessing at 2:42 p.m. 14 --- Upon resuming at 2:59 p.m. 15 16 THE REGISTRAR: This Inquiry is now 17 resumed. Please be seated. 18 19 CONTINUED BY MR. DERRY MILLAR: 20 Q: Thank you, Commissioner. Constable 21 Bittner, when did you learn that someone had died as a 22 result of the events of the evening of September the 6th? 23 A: I don't recall, sir. 24 Q: And when did you learn -- then -- did 25 you ever learn -- did you learn the name of the person

224

1 who had died? 2 A: Yes, sir. But I -- I don't -- 3 Q: We seem to be missing the sound. 4 5 (BRIEF PAUSE) 6 7 Q: Perhaps we have -- no. 8 A: I believe it's working now. 9 Q: Thank you. 10 COMMISSIONER SIDNEY LINDEN: That's 11 better. 12 13 CONTINUED BY MR. DERRY MILLAR: 14 Q: And -- 15 A: I learned after the fact. I don't 16 know when, sir. 17 Q: Okay. And when did you learn the 18 name of the person that you assisted in carrying to the 19 prisoner van on the evening of September the 6th? 20 A: I -- I believe it was quite some time 21 after that. Even possibly when I got a -- I received a 22 trial notice for the -- for the trial against Cecil 23 Bernard George. 24 Q: And that's when you -- you learned 25 that the person that you had -- had been involved with

225

1 was Cecil Bernard George? 2 A: Yes, sir. 3 Q: And I could take you back to your 4 notes and these are the notes that are at Tab 3, 5 Constable Bittner. It's Exhibit P-1527 and at the bottom 6 of the page, it's the latter -- last three (3) pages 7 actually. It's -- 55 is at the bottom. 8 And I note that on September 8th, 1995 you 9 were again back on duty? 10 A: Yes, sir. 11 Q: And you were assigned to a checkpoint 12 on -- you've got it, proof line and Lakeshore Road? 13 A: Yes, sir. 14 Q: And your duties were to monitor 15 traffic? 16 A: That's correct. 17 Q: And what did -- what does it mean to 18 monitor traffic? 19 A: I believe there was no more road 20 checks like there were prior to -- to the 6th. So just 21 to keep observations on the traffic. 22 Q: And on that -- on September the 8th: 23 "07:00 on duty attended at Forest area 24 for briefing." 25 Is that a normal entry that -- at the

226

1 beginning of your shift, an ERT shift like this that you 2 make a note of that there's a briefing? 3 A: Yes, sir. These notes are a little 4 vague. It's not my practice to put down who's giving the 5 briefing as well as the content of the briefing. 6 Q: At this time you didn't do that, but 7 now you do? 8 A: Yes, sir. 9 Q: And -- but what did the -- was the 10 briefing about what you were supposed to do that day or 11 something else? 12 A: I don't recall, sir. 13 Q: Okay. And then on September 9th, you 14 were on the same type of duty? 15 A: Yes, sir. 16 Q: And September 10th? 17 A: That's correct. 18 Q: And September 11th? 19 20 (BRIEF PAUSE) 21 22 Q: It's on page 56, the next page. 23 A: Yes, sir. 24 Q: September 11th, you're on the same 25 type of duty?

227

1 A: Yes, sir. 2 Q: And then there's a note, September 3 12th, 1995: 4 "On-duty, ERT team briefing with David 5 Hoath at 06:00". 6 You're on duty and then the next note: 7 "ERT team briefing with David Hoath." 8 Can you tell us what that was? 9 A: David Hoath was the -- the Ontario 10 Provincial Police force psychologist. I recall the -- a 11 meeting with him. It was a -- a team meeting. I believe 12 it was in the -- the basement of a -- a motel in the 13 area. 14 I don't recall the exact specifics but I 15 believe it referred to employee assistance programs and - 16 - and counselling. 17 Q: And did you discuss the details of 18 what happened on the evening of September 6th with David 19 Hoath? 20 A: I don't recall what was discussed. 21 Q: Okay. And then I understand that you 22 gave evidence at the trial of Cecil Bernard George and 23 the transcript -- your transcript of that evidence 24 appears at Tab 16. 25 Do you recall that?

228

1 A: Yes, sir. 2 Q: And at Tab 16, there's a -- an 3 extract from Inquiry document 1004978 and it's the 4 evidence of Constable Bittner and, Commissioner, although 5 this is already marked as part of Exhibit 1564 (sic), I 6 think it's easier if we mark it separately and I would 7 ask that this be marked, the) next exhibit. 8 THE REGISTRAR: P-1532, Your Honour. 9 10 --- EXHIBIT NO. P-1532: Document Number 1004978. 11 Examination-in-chief and 12 cross-examination of Bill 13 Bittner, R. v Cecil Bernard 14 George (Transcript pages 122- 15 159) July 15, 1996. 16 17 CONTINUED BY MR. DERRY MILLAR: 18 Q: And at the time you gave this 19 evidence, your answers were true and correct to the best 20 of your knowledge? 21 A: Yes, sir. 22 Q: And you also gave evidence, as I 23 understand it, at the trial of Warren Anthony George and 24 of David George? 25 A: Yes, sir.

229

1 Q: And at Tab 20, is a copy of Exhibit 2 P-1004976 and the evidence of Constable Bittner and I'd 3 ask that this be marked the next exhibit. 4 THE REGISTRAR: P-1533, Your Honour. 5 6 --- EXHIBIT NO. P-1533: Document Number 1004976. 7 Examination-in-chief and 8 cross-examination of Bill 9 Bittner, R. v Warren Anthony 10 George (transcript pages 101- 11 111) October 03, 1997. 12 13 CONTINUED BY MR. DERRY MILLAR: 14 Q: And the answer -- the evidence you 15 gave was true and correct to the best of your ability? 16 A: Yes, sir. 17 Q: And it's in this transcript that you 18 told us earlier that you had testified that you observed 19 the person in a police car. I believe it's in this 20 transcript that that's -- you make that statement at page 21 105, during the cross-examination of Mr. House, line 15. 22 A: Yes, sir. 23 Q: And today you believe it was inside 24 his car, Mr. Gerald George's car? 25 A: That's correct.

230

1 Q: And then in the fall of 19 -- after 2 September 12th, did you have anything of any substance to 3 do with Ipperwash, in the fall of 1995? 4 A: Pertaining to the -- the whole Park-- 5 Q: Yes. 6 A: The Provincial Park? No, sir. 7 Q: Then I would ask you to turn to Tab 8 14 -- excuse me, Tab 15. And this is a letter from, or a 9 fax from G. Van Damme, "ERT Debrief". It's dated 10 February 5th, 1996, and prior to preparing for the 11 Inquiry had you seen this document before? 12 A: Part of it, yes, sir. 13 Q: And the part you had seen is the part 14 three (3) pages in? 15 A: Yes, sir. 16 Q: And that was a part that you had -- 17 that page is a page that you had prepared? 18 A: Yes, sir. 19 Q: And this is Inquiry Document 2002937 20 and I would ask that it be marked the next exhibit. 21 THE REGISTRAR: P-1534, Your Honour. 22 23 --- EXHIBIT NO. P-1534: Document Number 2002937. Fax 24 from George Van Damme to John 25 Carson, February 05, 1996.

231

1 2 CONTINUED BY MR. DERRY MILLAR: 3 Q: And the part that you prepared, the 4 third page in, it's page 0027411, this was -- how did 5 this come about, Constable Bittner? 6 A: I recall at some point in time being 7 asked by the ERT team leader Sergeant Van Damme to 8 canvass the 2 District ERT members about any issues they 9 would like addressed at an -- an Ipperwash debriefing. 10 Q: And these were the issues raised by 11 your team? 12 A: Yes, sir. 13 Q: And you'll find on the inside cover 14 of that black binder a copy of Exhibit P-457, Inquiry 15 Document 2000556. 16 And this is entitled, Ipperwash Review 17 February 21, 1996. And prior to getting ready for your 18 attendance here today had you seen this document before, 19 sir? 20 A: I don't recall ever seeing this 21 document before. 22 Q: And this relates to a meeting on 23 February 21st, 1996. And if you go to the second last 24 page you'll see members in attendance; and you're listed 25 as being in attendance?

232

1 A: Yes, sir. 2 Q: And do you recall this meeting? 3 A: I recall one (1) meeting which took 4 place at Centralia College. 5 Q: Yes? 6 A: If this is that meeting I do recall 7 it. 8 Q: And what was the purpose -- I don't 9 know if this was the meeting or not, but what was the 10 purpose of the meeting at Centralia College? 11 A: The meeting at Centralia College was 12 a debriefing at which time we spoke about the events 13 leading up to when Mr. George was shot. 14 Q: And did you discuss the events 15 surrounding his death? 16 A: No, we did not. 17 Q: And why did you not do that? 18 A: There was an ongoing investigation 19 into that still. 20 Q: And were the issues that were raised 21 by you on behalf of the Number 2 District ERT in Exhibit 22 P-1534, raised at that meeting? 23 A: I don't recall, sir. 24 Q: Then I understand that you purchased 25 a T-shirt after the events at Ipperwash Provincial Park

233

1 in September 1995; is that correct? 2 A: That's correct, sir. 3 Q: And to your left are two (2) pieces 4 of paper and the bottom one is a copy of Exhibit P-458 5 which is a photograph of a T-shirt with a OPP logo; the 6 initials "ERT," "TRU," "Ipperwash '95" and at the bottom 7 of the logo a feather. And is that a -- the T-shirt that 8 you purchased? 9 A: Yes, sir. 10 Q: And we've learned there was a -- a T- 11 shirt that had a logo that's in the colour photograph 12 that's in front of you which is a copy of -- which is a 13 copy of Exhibit P-1594. 14 Did you see or were you aware of a T-shirt 15 with the logo in Exhibit P-1594? 16 A: I only found out yesterday evening 17 that there was two (2) T-shirts that were produced. 18 Q: And in preparation for your 19 attendance here today you were asked about the second T- 20 shirt? 21 A: Yes, sir. 22 Q: And when -- 23 THE REGISTRAR: 1494. 24 MR. DERRY MILLAR: P-1494 -- 25 COMMISSIONER SIDNEY LINDEN: I think it's

234

1 1594? 2 MR. DERRY MILLAR: No. 3 COMMISSIONER SIDNEY LINDEN: No, I am 4 sorry, 14. 5 MR. DERRY MILLAR: 1494. 6 COMMISSIONER SIDNEY LINDEN: I marked it 7 15, we're not up to that yet. 8 MR. DERRY MILLAR: Not yet. 9 10 CONTINUED BY MR. DERRY MILLAR: 11 Q: And can you tell us when you 12 purchased your T-shirt which is the same as Exhibit P- 13 458? 14 A: No, sir, I don't know when. 15 Q: And do you recall from whom you 16 purchased the T-shirt? 17 A: No sir, I do not recall. 18 Q: Did you see the T-shirt before you 19 paid your money? 20 A: I don't recall, sir. 21 Q: And why did you buy the T-shirt? 22 A: I've been at other events and 23 basically it's -- it's just a team group thing. I've 24 been at the Ice Storm, at the G8 Conference and we had T- 25 shirts from that.

235

1 Q: And do you have the T-shirt now? 2 A: No sir, I do not. 3 Q: And what did you do with it? 4 A: When I -- when I realized it was 5 becoming a controversial issue I destroyed it. 6 Q: And when did you destroy it? 7 A: It was quite awhile ago, I don't 8 recall when, sir. 9 Q: And prior to the calling of the 10 Inquiry? 11 A: Definitely. 12 Q: And we know there was an issue in 13 1996; was it 1996/1997? 14 A: I don't know when it was, sir. 15 Q: Okay. And when you received the T- 16 shirt, what significance if any did the feather at the 17 bottom of the logo have to you when you looked at the T- 18 shirt? 19 A: I didn't attribute any significance, 20 sir. 21 Q: And were you aware that to members of 22 the First Nations community that a feather on its side 23 signi --signifies that someone has died? 24 A: I didn't -- I've never heard that 25 sir.

236

1 Q: Pardon? 2 A: I've never heard that. 3 Q: And would you agree with me that 4 having a feather which signifies to the First Nations 5 community that someone -- feather on its side that 6 someone has died is inappropriate? 7 A: Most definitely. 8 Q: And did you see on the second page of 9 Exhibit P-458 is a -- on the right-hand side a copy of a 10 mug, and did you see a mug in -- or a mug in the fall of 11 1995, have you ever seen a mug? 12 A: No sir, I did not. 13 Q: And did you ever see any other T- 14 shirts, types of T-shirts? 15 A: Prior to last night, no I did not. 16 Q: And so you only -- you only knew 17 there were two (2) T-shirts, the one (1) you bought and 18 then you were told about a second one (1) last night? 19 A: Yes sir. 20 Q: And did you see -- were you staying - 21 - prior to September the 12th, were you staying at Pinery 22 Park? 23 A: Yes, in August I was staying at the 24 Pinery Park. 25 Q: But in September?

237

1 A: No. 2 Q: Did you see whether at Pinery Park or 3 elsewhere a beer can with a feather? 4 A: No. No sir I did not. 5 Q: A bullseye with an arrow affixed to 6 the side of an OPP cruiser? 7 A: No sir I did not. 8 Q: Cartoons? 9 A: No sir. 10 Q: And did you participate or did you 11 know that there was an investigation into mugs and T- 12 shirts in 1996 and early 1997? 13 A: I have a vague recollection. 14 Q: Did you participate in that? 15 A: I don't -- I did not participate in 16 any investigation, no. 17 Q: And did you -- on September 4th, 5th 18 and 6th work with Constable Whitehead and Dyke? 19 A: No I did not. 20 Q: And before I finish, I'd like to ask 21 you what effect, if any, did the events of the evening of 22 September 6th, have on you sir? 23 A: The whole event in itself was very 24 tragic. Any officer that I know that was at Ipperwash 25 was profoundly affected by it. It's -- it's talked

238

1 about. I've never known anyone to view it as any type of 2 victory. It was a very unfortunate set of circumstances. 3 Q: And -- 4 A: And hopefully it can be avoided and - 5 - and would never take place again. 6 Q: And is there anything else you wish 7 to add? 8 A: No, sir. 9 Q: I'd like to thank you very much for 10 attending and giving your examination and my colleagues - 11 - My Friends may have some questions for you. 12 COMMISSIONER SIDNEY LINDEN: We'll do our 13 usual canvass. 14 Ms. Tuck-Jackson...? 15 MS. ANDREA TUCK-JACKSON: Five (5) 16 minutes. 17 MR. DERRY MILLAR: Ms. Tuck-Jackson, five 18 (5) minutes. 19 COMMISSIONER SIDNEY LINDEN: Mr. 20 Alexander...? 21 MR. BASIL ALEXANDER: Mr. Commissioner, 22 we're going to shuffle up the order a little bit for this 23 Witness, so I'll give you the order first. 24 Mr. Rosenthal will be going first, 25 followed by Ms. Johnson, followed by Mr. Scullion,

239

1 followed by myself, followed by Mr. Mathai. 2 I'll reserve ten (10) to fifteen (15) 3 minutes for myself. 4 COMMISSIONER SIDNEY LINDEN: And that's 5 agreeable to all the Aboriginal parties, that order, that 6 we are reshuffling? 7 So you've reserved how much, Mr. 8 Alexander? 9 MR. DERRY MILLAR: Ten (10) to fifteen 10 (15) minutes. 11 COMMISSIONER SIDNEY LINDEN: Ten (10) to 12 fifteen (15). 13 MR. DERRY MILLAR: And then Mr. 14 Rosenthal...? 15 MR. PETER ROSENTHAL: Half an hour. 16 MR. DERRY MILLAR: Mr. Rosenthal, thirty 17 (30) minutes. 18 COMMISSIONER SIDNEY LINDEN: And Mr. 19 Scullion...? 20 MR. KEVIN SCULLION: Ms. Johnson. 21 COMMISSIONER SIDNEY LINDEN: Oh, I'm 22 sorry, the order, then Ms. Johnson. 23 MS. COLLEEN JOHNSON: With an abundance 24 of caution I'll reserve one (1) hour but it maybe less. 25 MR. DERRY MILLAR: Mr. Scullion...?

240

1 COMMISSIONER SIDNEY LINDEN: What -- 2 MR. DERRY MILLAR: Excuse me, Ms. 3 Johnson, one (1) hour. 4 MR. KEVIN SCULLION: I'll reserve twenty 5 (20) minutes to half an hour, and see how it goes. 6 MR. DERRY MILLAR: Mr. Scullion, twenty 7 (20) minutes to thirty (30) minutes. 8 And Mr. Mathai...? 9 MR. SUNIL MATHAI: Fifteen (15) to twenty 10 (20) minutes. 11 MR. DERRY MILLAR: Fifteen (15) to twenty 12 (20) minutes. 13 COMMISSIONER SIDNEY LINDEN: All right. 14 MR. DERRY MILLAR: That adds up to 15 between two point three (2.3) and two point seven (2.7) 16 hours, so hopefully we'll be able to get done -- 17 COMMISSIONER SIDNEY LINDEN: Hopefully 18 we'll be able to finish today and start another witness 19 tomorrow. 20 21 (BRIEF PAUSE) 22 23 MS. ANDREA TUCK-JACKSON: Good afternoon, 24 Mr. Commissioner. 25 COMMISSIONER SIDNEY LINDEN: Good

241

1 afternoon. 2 3 CROSS-EXAMINATION BY MS. ANDREA TUCK-JACKSON: 4 Q: And good afternoon, Constable 5 Bittner. My name is Andrea Tuck-Jackson. I'm going to 6 ask you some questions on behalf of the OPP. 7 You told us that on the morning of 8 September the 6th, you attended at the sandy parking lot 9 for the purpose of removing picnic tables. 10 You recall that evidence? 11 A: Yes. 12 Q: You told us, sir, that you saw two 13 (2) individuals whom I gather you assumed were Park 14 occupiers in the sandy parking lot? 15 A: I don't know who they were, but I 16 observed them run into the Park when we approached. 17 Q: All right. Fair to say, sir, that 18 once those two (2) individuals had gone into the Park, 19 they did not return into the sandy parking lot while the 20 police were there? 21 A: That's correct. 22 Q: And fair to say, sir, there was no 23 physical confrontation between the group of officers and 24 these two (2) individuals? 25 A: No. There was none.

242

1 Q: And would it also be fair to say, 2 sir, from your vantage point that it appeared that the 3 mere presence of the police officers caused those two (2) 4 individuals to go into the Park? 5 A: Yes, I would agree with that. 6 Q: Thank you. The only other area, sir, 7 I wanted to ask you about is the comment that you 8 overheard the occupiers say on the evening of the 6th, in 9 particular, Get off our F'ing land. 10 You told us that it was your understanding 11 that you and your fellow officers were not to go into the 12 Park. Do I have that correct? 13 A: Yes. 14 Q: And I trust that you did not go into 15 the Park on the night of the 6th? 16 A: No, I did not. 17 Q: And I trust, sir, that you never saw 18 any of your colleagues enter the Park on the night of the 19 6th? 20 A: No one definitely went into the Park. 21 Q: No one definitely went into the Park. 22 So that when you and your fellow officers were told to 23 get off our F'ing land, at the time you weren't in the 24 Park, you were in the sandy parking lot; is that correct? 25 A: That's correct.

243

1 Q: Did you take that, sir, to mean that 2 when you were told that the occupiers were making some of 3 a claim or an assertion to the land that forms the sandy 4 parking lot? 5 A: I didn't come to that conclusion, no. 6 Q: You didn't, all right. But what is 7 clear is that when they said that to you, you and your 8 colleagues were not in the Park, you were in the parking 9 lot? 10 A: That's correct. 11 Q: Thank you. Those are my questions, 12 Mr. Commissioner. Thank you. 13 COMMISSIONER SIDNEY LINDEN: Thank you. 14 Then I take it, Mr. Rosenthal, you're -- 15 MR. PETER ROSENTHAL: Yes, sir. 16 17 (BRIEF PAUSE) 18 19 CROSS-EXAMINATION BY MR. PETER ROSENTHAL: 20 Q: Good afternoon, Officer. 21 A: Good afternoon. 22 Q: My name is Peter Rosenthal, I'm 23 counsel to some of the Stoney Point people under the name 24 Aazhoodena and George Family Group. 25 Now, sir, you were asked why you made your

244

1 notes and you said for the purpose of refreshing your 2 memory but also another reason is that you're required to 3 make notes, right? 4 A: Yes, sir. 5 Q: And you -- you understand that you're 6 required to make your notes as soon as practicable after 7 an event occurs, right? 8 A: Yes, sir. 9 Q: Do you know the basis for that 10 requirement? Is it in some regulations or just in 11 standing orders? 12 A: I'm not -- not aware, sir. 13 Q: Okay. Thank you. Now, at the time 14 you were involved in this were you aware that there were 15 at least allegations that Premier Harris was particularly 16 interested in the events? 17 A: Sorry, at which time? 18 Q: At the time September 4, 5, 6, 1995. 19 A: No, I did not know he was 20 particularly interested in it. 21 Q: You didn't hear that at the time? 22 A: I don't recall. 23 Q: Or you don't recall whether you would 24 at the time? 25 A: I don't recall, yes, sir.

245

1 Q: You don't recall. Okay. Thank you. 2 Now, dealing with what Ms. Jackson, Ms. 3 Tuck-Jackson just questioned you about you told her you 4 didn't come to the conclusion that they were asserting a 5 claim to the sandy parking lot when the two (2) people 6 voiced the words that you recorded, right? 7 A: I didn't come to any conclusion, I 8 just viewed it as a statement. 9 Q: Well, I -- I would suggest to you 10 that you would have understood that they were asserting 11 their belief that the land that had constituted Ipperwash 12 Provincial Park was their land and they were defending 13 that land, right? 14 A: I don't know what they were referring 15 to, sir. 16 Q: Okay. Now, as you marched down the 17 road that night you understood your duty was to arrest 18 and remove any persons located in the public beach area; 19 is that correct? 20 A: That's not correct. 21 Q: That's -- 22 A: Anyone obstructing that area, sir. 23 Q: Anyone...? 24 A: Obstructing that area. 25 Q: I see. Okay. If you could please

246

1 turn to Tab 16 of your document brief which is now 2 Exhibit 1532... 3 4 (BRIEF PAUSE) 5 6 Q: ...which is a transcript of your 7 evidence at the trial of Cecil Bernard George, would you 8 please turn to page 125 of that document. If you look at 9 line 7, approximately on page 125 -- well, beginning at 10 line 6? 11 "Q: What was your duty as you had 12 been instructed? 13 A: My duty was to arrest and remove 14 any persons that were located in the 15 beach -- public beach area." 16 That's the way you described your duty on 17 that occasion was it not, sir? 18 A: That's correct. 19 Q: That was under oath? 20 A: That was under oath, yes, sir. 21 Q: And that was closer in time to the 22 actual time that you'd received those instructions than 23 we are today, right? 24 A: Actually, sir, if you refer to my 25 original notes -- and I erred there, my original notes

247

1 indicate obstructing the sandy parking lot or beach area. 2 Q: So what do you mean by obstructing as 3 opposed to being located in? If a person is just sitting 4 there are they obstructing the sandy parking lot? 5 A: I would say, no. 6 Q: No. I see. So as you understood 7 your instructions, if persons had just been sitting in 8 the sandy parking lot you would have left them alone? 9 A: If -- if no offence is observed then 10 I would see no reason to -- I wouldn't first of all have 11 any grounds to arrest them. 12 Q: Yes. So you didn't describe it 13 accurately in the Warren George trial, that's what you're 14 telling us now; is that correct? 15 A: Yes, sir. 16 Q: It was your understanding that if 17 people were for example just having a campfire in the 18 sandy parking lot and not bothering anybody you would not 19 interfere with their evening? 20 A: I -- I don't recall any campfire 21 there. My recollection is going to the sandy parking lot 22 and no one being in the parking lot, sir. 23 Q: Nobody was there, but I'm asking 24 about your instructions if you had found someone there? 25 A: I believe the instructions were to

248

1 proceed down the road and determine what was going on. 2 Q: And if nothing dangerous was going on 3 in that parking lot, even if they were in the parking 4 lot, you'd just leave them alone? That was your 5 understanding? 6 A: Yes sir. 7 8 (BRIEF PAUSE) 9 10 Q: Now, towards the end of your 11 examination by Mr. Millar he took you to Tab 15, which is 12 now Exhibit P-1534. The second page is a document which 13 indicates and which you told us is authored by you -- the 14 third page sorry, mine are double-sided, we save paper in 15 my office. 16 The document authored by you begins after 17 the heading: 18 "The Members of the 2 District ERT were 19 canvassed and would like the following 20 issued addressed at the Ipperwash 21 debriefing. Number 1. Night 22 deployment of the crowd management 23 unit. Why was the CMU deployed at 24 night? The briefing held at the Forest 25 Detachment on 6 September, '95

249

1 indicated that any obstructions in the 2 beach area, such as picnic benches 3 would be removed during daylight 4 hours." 5 Now, sir, you obviously -- you and your 6 fellow officers had a concern about this and that's why 7 you wrote that, right? 8 A: There was a concern, yes sir. 9 Q: Yes. And did you -- from your 10 perspective ever get a satisfactory answer as to why you 11 were marched down the road at night instead of waiting 12 for the morning? 13 A: I don't recall the debriefing or the 14 specifics of the debriefing and I indicated earlier I 15 never saw the minutes from the debriefing -- 16 Q: Yeah -- 17 A: -- before today. And even after 18 today I still haven't viewed those. 19 Q: Yes. But, I'm asking you sir, you 20 had this question on behalf of you and your fellow 21 officers, and I'm asking you now today, would you agree 22 with me that there is no satisfactory answer for this 23 question? There's no -- even in retrospect with all we 24 know now, there was no good reason to be marching down 25 the road that night, right? As far as you understand?

250

1 A: No, sir, I would state that I don't 2 recall what explanation was given. 3 Q: Yes, but do you have any satisfactory 4 answer right now in your mind, sir? 5 A: It was a decision that wasn't made by 6 me and I don't know what facts and circumstances that 7 decision was based on. 8 Q: Yes. But, you still don't have a 9 good answer to that question, do you sir? 10 A: Sorry, sir? 11 Q: You raised this question some years 12 ago and I put it to you, you don't have a satisfactory 13 answer to this question right now? 14 MR. DERRY MILLAR: He's answered the 15 question for the third time -- 16 COMMISSIONER SIDNEY LINDEN: Yes, I think 17 he doesn't have any answer. He doesn't have any answer-- 18 19 CONTINUED BY MR. PETER ROSENTHAL: 20 Q: Satisfactory or otherwise -- 21 A: That's correct. 22 Q: -- is that correct? 23 A: I don't recall any answer. 24 Q: And you don't have one (1) in your 25 mind, I'm asking you, sir.

251

1 COMMISSIONER SIDNEY LINDEN: No ,it is 2 not about his mind. He was trying to find out and he got 3 no -- he asked a question and he got no answer. 4 MR. PETER ROSENTHAL: No, I appreciate 5 that, sir, but he's responding that he doesn't recall 6 whether or not the briefing gave an answer. But, my 7 question for him is different. 8 9 CONTINUED BY MR. PETER ROSENTHAL: 10 Q: In addition to that, do you still 11 feel that this is a question that you don't have an 12 answer to, with all the thinking you've done in the last 13 eleven (11) years? 14 A: Do I believe it's still question? No 15 I do not. 16 Q: Now do you have an answer then? 17 A: I believe that the decision was made 18 by the people in charge of the situation and that they 19 had information that I didn't have when that decision was 20 made. 21 Q: I see. And didn't you know that when 22 you wrote this back in -- whatever it was, sir? You knew 23 they had, they made the decision and they had other 24 information? You knew that then didn't you? 25 A: I don't recall when I first received

252

1 additional information. 2 Q: I'll move on Mr. Commissioner. 3 COMMISSIONER SIDNEY LINDEN: Thank you. 4 5 CONTINUED BY MR. PETER ROSENTHAL: 6 Q: Now, the CMU procedure in moving as a 7 large group of officers as they did on this occasion, 8 with respect to those who had shields in one (1) hand, 9 was to have their baton out in the other hand; is that 10 correct? 11 A: That's correct. 12 Q: But, you as part of the arrest team, 13 you weren't part of that procedure, you had a separate 14 role to play? 15 A: Yes sir. 16 Q: So in general, the other officers 17 from the CMU other than the members of the arrest team, 18 as they were entering the sandy parking lot they would 19 have had a shield in one hand and a baton in the other 20 hand, right? 21 A: Yes, sir. 22 Q: And I gather the baton would 23 generally be in the person's stronger hand? If the 24 person is right handed, the baton would be in his right 25 hand; left handed in his left hand, is that --

253

1 A: Yes, sir. 2 Q: Now, sir, if you could look, please, 3 at Tab 16. 4 5 (BRIEF PAUSE) 6 7 Q: This is P-1532 and is again your 8 evidence in the case, Regina and Cecil Bernard George. 9 If you look at about line 12 -- 10 COMMISSIONER SIDNEY LINDEN: What page, 11 Mr. Rosenthal? 12 MR. PETER ROSENTHAL: Sorry, I'm sorry, 13 page 131. 14 COMMISSIONER SIDNEY LINDEN: Page 131, 15 line 12? 16 17 (BRIEF PAUSE) 18 19 MR. PETER ROSENTHAL: Or perhaps 13. 20 21 CONTINUED BY MR. PETER ROSENTHAL: 22 Q: "He was then placed inside the 23 prisoner van. When we placed him 24 inside, I noticed some blood on the 25 asphalt."

254

1 You gave that evidence, sir, right? 2 A: That's correct. 3 Q: So at this time, many years ago, 4 closer to the events you said specifically you noticed 5 blood on the asphalt, right? 6 A: I made an assumption at that time, 7 sir. I don't know what that fluid was. 8 Q: Well, you didn't indicate it was any 9 assumption at that time. You were quite clear that it 10 was blood on the asphalt, right? 11 A: That's what I stated at the trial, 12 yes, sir. 13 Q: That's what you said at the trial. 14 A: It was an assumption though. 15 Q: And today, some years alter, you're 16 questioning -- you're saying you're not sure it was 17 blood? 18 A: I'm saying that at no time did I 19 denote the colour of the liquid. I just noticed a wet 20 spot on the asphalt. 21 Q: You concluded it was blood from 22 everything you saw at the time; isn't that not so, sir? 23 A: I believed it may be blood, yes. 24 Q: Yes. Now, if you could turn to pages 25 155 to 156.

255

1 (BRIEF PAUSE) 2 3 Q: Well, 155, line 22. 4 "How many times did you see him struck 5 with the baton? 6 I recall at least twice" 7 Was your answer there, right? 8 A: That's correct, sir. 9 Q: Today you told us twice. 10 A: Yes. 11 Q: At the time, some years ago, you said 12 at least twice, right? 13 A: That's correct. 14 Q: Which would have meant what it sounds 15 like, two (2), three (3), four (4), five (5) perhaps, 16 right? 17 A: Yeah. I testified today and in 18 subsequent trials that there was two (2) distinct blows 19 that I recalled. 20 Q: Subsequently you lessened it to two 21 (2), right? That's what you're telling us? 22 A: I -- I've testified it -- two (2) 23 distinct blows, yes, sir. 24 Q: But in this account, the first time 25 you testified, was it -- this was the first time you

256

1 testified about this matter? 2 A: Yes, sir. 3 Q: And you said at least two (2), right? 4 A: That's correct. 5 Q: And I put it to you, sir, that both 6 with respect to the blood and the number of blows, over 7 time you've lessened your testimony as far as how serious 8 it was, right? 9 A: I disagree with that, sir. 10 Q: You disagree? 11 A: Yes. 12 Q: You don't agree with respect to the 13 blood? 14 A: Sorry -- 15 Q: You agree that at this trial you said 16 it was blood on the ground and here in these proceedings 17 you said it might have been blood or words to that 18 effect. 19 A: I agree that he was struck at least 20 twice that -- 21 Q: At least twice? 22 A: That I saw two (2) distinct blows, 23 yes, sir. 24 Q: Did you see anyone kicking him? 25 A: No, I did not.

257

1 Q: Are you taught that it's appropriate 2 to kick sometimes? 3 A: Yes, sir. 4 Q: In what circumstances are you taught 5 it's appropriate to kick? 6 A: When attempting to restrain a person 7 to arrest a person. It -- it's one of the use of force 8 options. 9 Q: How about kicking in the stomach? 10 Are you taught to do that sometimes? 11 A: We're -- we, in our training, we do 12 kick at heavy bags but there is no specific area that's - 13 - that it's directed. 14 Q: Well, with respect to, for example, 15 the training and use of baton, you were told to stay away 16 from the head and neck area, right? 17 A: That's correct. 18 Q: Because it's known that could be too 19 perhaps, fatal, right? 20 A: Yes, sir. 21 Q: With respect to kicking, are you not 22 told that a kick in the stomach could perhaps be fatal? 23 A: No, sir. 24 Q: I see. Anything about kicking a man 25 when he's down; any discussion of that in your training,

258

1 sir? 2 A: No, sir. 3 Q: Now, if you could turn to page -- 4 sorry, Tab 25, please. This has not been made an 5 exhibit yet I don't believe. It's Inquiry Document 6 1005303 -- 5305. Sorry, Mr. Commissioner, I'm bad in my 7 numbering today. Inquiry Document 1005305. 8 This is a letter of February 10, 1999, 9 addressed to Commissioner Gwen Boniface and signed by 10 Peter Tinsley who at the time was the director of the 11 Special Investigations Unit. 12 Have you seen this letter before, sir? 13 A: Yes, I have. 14 Q: I see. When did you first see this 15 letter? 16 A: I don't recall, sir. 17 Q: It's dated February 10, 1999. Would 18 you have seen it around that time; shortly after that, 19 sir? 20 A: I don't recall, sir. 21 Q: Was it brought to your attention by a 22 commanding officer in the Ontario Provincial Police at 23 some point? 24 A: I attended a meeting regarding this 25 investigation.

259

1 Q: I see. And that was a meeting 2 convened by whom? 3 A: By the Commissioner. 4 Q: By the Commissioner? 5 A: Yes. 6 Q: Commissioner Boniface? 7 A: That's correct. 8 Q: And now this letter -- and perhaps 9 before I forget, Mr. Commissioner, I should make this an 10 exhibit if I may? 11 THE REGISTRAR: P-1535, Your Honour. 12 MR. PETER ROSENTHAL: Thank you. 13 COMMISSIONER SIDNEY LINDEN: 1535. 14 15 --- EXHIBIT NO. P-1535: Document Number 1005305. SIU 16 letter to Commissioner 17 Boniface, February 10, 1999. 18 19 CONTINUED BY MR. PETER ROSENTHAL: 20 Q: This letter, in the second paragraph 21 says: 22 "Six (6) of your officers were 23 designated as subject officers for the 24 purpose of this investigation." 25 I should explain it's the investigation of

260

1 what happened to Cecil Bernard George on September 6th, 2 1995, right? 3 A: That's correct. 4 Q: And: 5 "Six (6) of your officers were 6 designated as subject officers. They 7 were Constables Bittner, Cossitt, 8 Poole, Root, Ternovan, and Zacher." 9 Now, the meeting with Commissioner 10 Boniface did it include all those named persons? 11 A: Yes, sir. 12 Q: And did it include any other 13 officers? 14 A: I don't recall any other officers. 15 Q: I see. So it was just Commissioner 16 Boniface and those named persons? 17 A: Yes, sir. 18 Q: And what happened at that meeting, 19 sir? 20 A: I believe we were told that the SIU 21 investigation was completed. 22 Q: I see. 23 A: And there was no findings of any 24 excessive force or use of force. 25 Q: And were you told anything else?

261

1 A: I don't recall, sir. 2 Q: Did Commissioner Boniface express any 3 concerns about the way you or other officers had 4 responded to that investigation? 5 A: I don't recall anything else from the 6 meeting, sir. 7 Q: I see. Well, if we could turn to the 8 next page, please. Well, first -- sorry, at the bottom 9 of that page the last two (2) sentences -- the last large 10 sentence says: 11 "Rather, my decision is based on a lack 12 of credible and reliable evidence going 13 to the identify of any individual 14 officer or officers and a similar lack 15 of evidence to establish that the 16 injuries in fact and in all of the 17 circumstances resulted from the use of 18 excessive force by the involved 19 officers." 20 So did you understand that to mean and 21 what Commissioner Boniface was telling you to mean, was 22 that not that there necessarily was not excessive force 23 used but that there was not sufficient evidence to 24 establish that -- 25 COMMISSIONER SIDNEY LINDEN: Excuse me.

262

1 MR. PETER ROSENTHAL: -- was the -- in 2 the finding of the investigations? 3 COMMISSIONER SIDNEY LINDEN: Do you have 4 a question? 5 MS. KAREN JONES: No. 6 COMMISSIONER SIDNEY LINDEN: No. 7 8 CONTINUED BY MR. PETER ROSENTHAL: 9 Q: Was that your understanding, sir? 10 A: I -- I don't recall, sir. 11 Q: Well, what's your understanding right 12 now? Do you agree that it does not say that there was 13 not excessive force but it simply says there wasn't 14 enough evidence to establish that there was excessive 15 force. 16 MR. DERRY MILLAR: Well, the document 17 speaks for itself. 18 MR. PETER ROSENTHAL: Yes. 19 MR. DERRY MILLAR: And this isn't a 20 document authored by him. 21 MR. PETER ROSENTHAL: Oh, yes. 22 MR. DERRY MILLAR: And the document 23 speaks for itself. 24 MR. PETER ROSENTHAL: Yes, and I -- if 25 necessary I'll speak to why it's important what this

263

1 officer understood it to mean, as part of the way the OPP 2 dealt with this document. 3 THE WITNESS: The way I read the 4 document, sir, it says: 5 "A similar lack of evidence to 6 establish that the injuries in fact and 7 in all of the circumstances resulted 8 from the excessive use of force by the 9 involved officers." 10 To me that means that basically it wasn't 11 determined how the injuries occurred. 12 13 CONTINUED BY MR. PETER ROSENTHAL: 14 Q: And it wasn't determined whether or 15 not there was excessive force, right? Is that correct? 16 A: I -- I can just advise what I read 17 from here. 18 Q: I see. So you don't agree that it -- 19 that this includes the implication that it was not 20 determined, whether or not, there was excessive force? 21 A: I believe this deemed that it was 22 determined that excessive force was not used. That's -- 23 Q: You believe it was determined that 24 excessive force was not used? 25 A: That's the conclusion I came to.

264

1 Q: I see -- 2 COMMISSIONER SIDNEY LINDEN: I don't 3 think it matters. I don't think it really matters. I am 4 going to read this document. I mean, it's not -- 5 MR. PETER ROSENTHAL: With great respect, 6 Mr. Commissioner -- 7 COMMISSIONER SIDNEY LINDEN: -- this 8 Witness' document. 9 MR. PETER ROSENTHAL: -- this deals with 10 the way that the OPP dealt with this officer and let's 11 turn to the next page -- 12 COMMISSIONER SIDNEY LINDEN: Not the OPP, 13 the SIU. 14 MR. PETER ROSENTHAL: -- and then you'll 15 understand -- you'll understand more where I'm coming 16 from if we turn to the next page and then I'll return to 17 that if I May, Mr. -- 18 COMMISSIONER SIDNEY LINDEN: I did read 19 this document. I read this before -- 20 MR. PETER ROSENTHAL: Yes, but sir what 21 I'm concerned with is the next page, in particular. So 22 if you could turn it over please, sir. 23 COMMISSIONER SIDNEY LINDEN: Yes I see 24 where you're going. 25 MR. PETER ROSENTHAL: Mr. Tinsley is

265

1 writing to Commissioner Boniface also as follows: 2 "I believe it to be necessary an only 3 fair to inform you that in reaching the 4 above-noted decision I was struck on 5 review of all the available evidence by 6 the discontinuity of the statements of 7 the OPP Officers who were interviewed, 8 as to the level of force applied to Mr. 9 George and the injuries that he was 10 clinically observed to have suffered. 11 I concluded that the level of force 12 actually applied against Cecil Bernard 13 George by various OPP Officers during 14 the confrontation and which caused his 15 injuries bore little relation to the 16 picture that emerged from the officer's 17 accounts of the level of force used 18 against Mr. George. 19 The officer's accounts fell far short 20 of assisting and accurately 21 reconstructing the events surrounding 22 the altercation with Mr. George. And I 23 therefore give them little weight in 24 resolving the question as to whether 25 the force used against Mr. George was

266

1 excessive." 2 COMMISSIONER SIDNEY LINDEN: Yes, that's 3 why -- I can read the document and that's why Mr. Millar 4 says the document speaks. What can this witness do? 5 MR. PETER ROSENTHAL: Now, did 6 Commissioner Boniface -- 7 MS. KAREN JONES: And Mr. Commissioner, 8 of course, Mr. Rosenthal doesn't bother to read the next 9 sentence. 10 "I appreciate that the particular 11 circumstances of this investigation may 12 have made such a result unavoidable." 13 COMMISSIONER SIDNEY LINDEN: Well, in any 14 event, I'm going to read the document. I just want to 15 know what you can -- what you're asking this witness. 16 MR. PETER ROSENTHAL: Yes, and I -- the 17 reason I stopped -- 18 COMMISSIONER SIDNEY LINDEN: That's fine. 19 MR. PETER ROSENTHAL: -- was because you 20 indicated that concern, sir. 21 22 CONTINUED BY MR. PETER ROSENTHAL: 23 Q: Now, what I'm asking you sir, was: 24 Did Commissioner Boniface at that meeting or at any other 25 time, express any concern to you and or other officers

267

1 that you're aware of about the failure to give accounts 2 that were more satisfactory than described by Mr. Tinsley 3 in this document? 4 A: I don't recall the specifics of that 5 meeting, sir. 6 Q: Do you -- was there at any time, any 7 suggestion to you that there might be some further 8 investigation about the officers behaviour with respect 9 to providing accounts to the SIU? 10 A: I know sir that I was deemed a 11 subject officer and as being deemed a subject officer, 12 I'm not required to give a statement and based on the 13 advice of my counsel, that's what -- the right I 14 exercised sir. 15 Q: So you didn't give a statement 16 yourself? 17 A: No I did not. 18 19 (BRIEF PAUSE) 20 21 Q: Did Commissioner Boniface or any 22 other officer, command officer, point out to you that 23 there was apparently a serious question as to whether or 24 not, excessive force had been used against Cecil Bernard 25 George on that occasion?

268

1 A: I don't recall, sir. 2 Q: You don't recall that? 3 A: No. 4 Q: You don't recall ever being cautioned 5 in any way about the force that was used against Cecil 6 Bernard George on that occasion? 7 A: I personally was never cautioned on 8 the force used. 9 Q: Thank you. Now, with respect to the 10 shots that you heard, I gather you said six (6) or seven 11 (7) shots? 12 A: Yes sir. 13 Q: And that was -- those were the total 14 shots you heard on that evening that you recall? 15 A: That's correct. 16 Q: And this was in one (1) cluster of 17 shots basically? 18 A: Yes sir. 19 Q: Now, you described that in various 20 ways as to where they emanated from. You talked about 21 ditches. 22 The ditches are on either side of East 23 Parkway Drive; is that correct? 24 A: I believe there's only a ditch on the 25 south side that there -- the north side is a flat

269

1 surface. 2 Q: I see and we'll go to some of your 3 other evidence perhaps, but how far from the sandy 4 parking lot was the -- whatever you observed in whatever 5 ditch, in relation to the shots? 6 A: I -- I don't recall the specific 7 location that -- it was between myself and the sandy 8 parking lot. 9 A: I see, at that time you were some 10 distance from the sandy parking lot? 11 Q: I was by the -- the prisoner van, I 12 testified. 13 Q: So that was way back, right? 14 A: It was not at the sandy parking lot. 15 Q: So I take it there was no doubt in 16 your mind that these shots were being fired by a police 17 officer; is that correct? 18 A: I heard shots, and I didn't know who 19 was firing, sir. 20 Q: Now, we know that, and you've 21 testified to it and others have as well, that in the 22 course of marching down the road that night at one point 23 there were reports that someone might have a gun and CMU 24 took cover and then it was found out that was a false 25 report and they continued down the road, right?

270

1 A: Yes, sir. 2 Q: That was the only time that officers 3 ducked for cover for fear of firearms that you were aware 4 of, right? 5 A: Yes, sir. 6 7 (BRIEF PAUSE) 8 9 Q: Now, you told us about buying a T- 10 shirt. 11 12 (BRIEF PAUSE) 13 14 Q: Did you -- you saw some of your 15 fellow officers wearing T-shirts from time to time, sir? 16 A: No, sir. 17 Q: Never? 18 A: I did not. 19 Q: And the one that you bought, you 20 never wore or you wore it occasionally? 21 A: I may have wore it. I don't recall 22 specifically wearing that T-shirt. It wouldn't be 23 something I'd -- I would wear. 24 Q: And you told us that you were perhaps 25 vaguely, only now, given the passage of time, aware that

271

1 there had been some investigation of the T-shirts by the 2 OPP, right? 3 A: Yes, sir. 4 Q: At the time, there was no general 5 call that officers who had T-shirts or any other 6 memorabilia should turn them in, in any way, right? 7 A: I don't recall hearing anything of 8 that nature. 9 Q: If there had been, you would have 10 responded appropriately, I take it? 11 A: If I -- if I was told that, yes, sir. 12 Q: And you say you told us you 13 attributed nothing to the feather, but you did attribute 14 that the feather did stand for First Nations people, 15 right? 16 A: I -- I believe it may have had some 17 reference. 18 Q: Obviously it had some reference to 19 First Nations people, right? 20 A: That's right. But I didn't view 21 anything in a derogatory sense. 22 Q: No, I appreciate your evidence in 23 that respect, but it had something to do with First 24 Nations people? 25 A: Yes, sir. I believe if it wasn't

272

1 there, that -- I don't know if there would -- 2 Q: Now -- 3 A: -- have been objections to it. 4 Q: When was the first time then that you 5 were asked if you had such a T-shirt? 6 Mr. Millar asked you today. You told us 7 last night you became aware of a second T-shirt. 8 A: Conversation with my counsel. 9 Q: But how long ago was that? I'm 10 asking you when was the first time? 11 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 12 Jones...? 13 MS. KAREN JONES: Excuse me. Mr. 14 Commissioner, I don't believe it's appropriate to go into 15 this Witness -- with this Witness, conversations he had 16 with his counsel and I don't believe he should be asked 17 questions of that. 18 MR. PETER ROSENTHAL: Right, I agree. I 19 don't want to -- 20 COMMISSIONER SIDNEY LINDEN: That's fine. 21 MR. PETER ROSENTHAL: -- know anything 22 about any details. I just want to know the first time 23 that he was asked about this. 24 COMMISSIONER SIDNEY LINDEN: Well, you 25 don't know that -- if it was his counsel. Your question

273

1 is, when was the first time you were asked if you had a 2 T-shirt; is that your question? 3 MR. PETER ROSENTHAL: Yes. 4 THE WITNESS: The first time was in 5 conversation with my counsel. 6 COMMISSIONER SIDNEY LINDEN: Then I think 7 that should be the end of it. 8 MR. PETER ROSENTHAL: Thank you. 9 10 CONTINUED BY MR. PETER ROSENTHAL: 11 Q: Now, the other T-shirt that you 12 didn't have a copy of but that you can see the logo of, 13 if you look to your right. 14 A: Yes, sir. 15 Q: You would agree that that seems to 16 symbolize TRU and ERT together breaking First Nations 17 people, right? 18 COMMISSIONER SIDNEY LINDEN: He didn't 19 have one of these, so -- 20 MR. PETER ROSENTHAL: No, no, I 21 appreciate that but I -- I do have a reason -- 22 COMMISSIONER SIDNEY LINDEN: He never saw 23 it until this morning. 24 MR. PETER ROSENTHAL: I do have a reason 25 for asking this, Mr. Commissioner, please.

274

1 COMMISSIONER SIDNEY LINDEN: That's fine. 2 THE WITNESS: I see TRU and an anvil 3 breaking an arrow. 4 5 CONTINUED BY MR. PETER ROSENTHAL: 6 Q: Yes. And the arrow stands for First 7 Nations people, obviously, right? 8 A: Hmm. 9 Q: In the context? 10 A: I don't agree with that, sir. 11 Q: You don't agree with that? 12 A: But in the same sense that -- that -- 13 no, I don't agree with that. It's breaking an arrow. 14 Q: Breaking an arrow? 15 A: Whether -- whether that's in 16 reference to a weapon, I don't know. 17 Q: And you don't -- you don't recognize 18 that that stands for First Nations people in the same way 19 as the feather stood for First Nations people, sir? 20 A: I don't recognize it that way, sir. 21 Q: I see. You told us that you never 22 knew any officer to regard this, and this is why I asked, 23 Mr. Commissioner, to regard this event as a victory. 24 I would put it to you that every officer 25 who proudly wore or bought or designed that T-shirt

275

1 obviously regarded it as a victory, is that a fair 2 interpretation in your view, sir? 3 MS. KAREN JONES: Mr. Commissioner, this 4 Witness is being asked to speculate. He says he saw this 5 logo last night for the first time. He knows nothing 6 about it and Mr. Rosenthal is now asking him to speculate 7 on the state of mind of people he knows nothing about. 8 COMMISSIONER SIDNEY LINDEN: Yes, we're 9 going to -- 10 MS. KAREN JONES: How is that going to 11 assist you, Mr. Commissioner? 12 COMMISSIONER SIDNEY LINDEN: Yes. 13 MR. PETER ROSENTHAL: Mr. Commissioner -- 14 COMMISSIONER SIDNEY LINDEN: We're going 15 to call a person who produced a T-shirt and you can ask 16 that person. 17 MR. PETER ROSENTHAL: Yes, but I was 18 responding to what he said in chief. 19 COMMISSIONER SIDNEY LINDEN: Well -- 20 MR. PETER ROSENTHAL: He said he never 21 knew any officer to regard it as a victory. 22 COMMISSIONER SIDNEY LINDEN: But -- 23 MR. PETER ROSENTHAL: I want his -- I 24 want to understand what he meant by that sir -- 25 COMMISSIONER SIDNEY LINDEN: He wasn't

276

1 referring to the -- 2 MR. PETER ROSENTHAL: -- by asking him if 3 he would think that an officer who designed or wore this 4 T-shirt -- 5 COMMISSIONER SIDNEY LINDEN: Well, -- 6 MR. PETER ROSENTHAL: -- might regard it 7 as a victory. 8 COMMISSIONER SIDNEY LINDEN: I don't 9 think that's -- 10 MR. PETER ROSENTHAL: -- to understand 11 what he was thinking. 12 COMMISSIONER SIDNEY LINDEN: That's not 13 helpful. Let's move on please, Mr. Rosenthal, that's not 14 helpful at this stage. Let's move on. You're going to 15 have the person who designed it and you can ask the 16 question. He didn't see it, he doesn't' know anything 17 about it until just yesterday. 18 MR. PETER ROSENTHAL: Mr. Comm -- 19 COMMISSIONER SIDNEY LINDEN: Not helpful. 20 MR. PETER ROSENTHAL: Mr. Commissioner, 21 may I just explain? I was exploring what he meant -- 22 COMMISSIONER SIDNEY LINDEN: I don't 23 think -- 24 MR. PETER ROSENTHAL: -- by not -- 25 officers not regarding it as a victory and I wanted to

277

1 put to him that an officer who wore that T-shirt would in 2 his -- in his understanding be regarding it as a victory. 3 If he says no -- 4 COMMISSIONER SIDNEY LINDEN: That's not 5 helpful. 6 MR. PETER ROSENTHAL: -- then that shows 7 what he means by his evidence never regarding it as a 8 victory. 9 COMMISSIONER SIDNEY LINDEN: It's just 10 not necessary for me to have that information at this 11 stage. 12 MR. PETER ROSENTHAL: Well, okay. 13 COMMISSIONER SIDNEY LINDEN: Thank you. 14 Not from this Witness in any event. 15 MR. PETER ROSENTHAL: Thank you. I'll 16 end my questioning then. 17 COMMISSIONER SIDNEY LINDEN: Thank you 18 very much. 19 Yes, Ms. Johnson...? 20 21 (BRIEF PAUSE) 22 23 CROSS-EXAMINATION BY MS. COLLEEN JOHNSON: 24 Q: Good afternoon, sir. 25 A: Good afternoon.

278

1 Q: My name's Colleen Johnson. I 2 represent the Chippewas of Kettle and Stony Point and 3 today I'm appearing on behalf of the Chiefs of Ontario as 4 well. 5 6 (BRIEF PAUSE) 7 8 Q: My Friend Mr. Rosenthal asked you 9 some questions with regards to your testimony at a 10 previous trial and I'm -- regarding -- the objective 11 being to remove individuals who were obstructing the 12 public beach area and you indicated that -- that that was 13 not something you stood by any longer; is that correct? 14 A: No, definitely that that was our 15 objective to remove people obstructing the beach area. 16 Q: Okay . Which is what you indicate at 17 Tab 14 which is Exhibit P-1531, correct, on page -- where 18 it says your name and your rank, the -- the page number 19 is 3. 20 Do you see that, about three-quarters 21 (3/4's) of the page down? 22 A: Yes. 23 Q: Okay. And it indicates that your 24 objective was to remove individuals obstructing access to 25 the public beach area?

279

1 A: Correct. 2 Q: Okay. And this was in the night- 3 time; is that correct? 4 A: Yes, it was. 5 Q: Okay. And that's not what you 6 testified to at the Warren George trial? I thought that 7 My Friend asked you something with regards to the Warren 8 George trial and -- Warren Anthony George trial and you 9 indicated no, I -- I misrepresented our objective at that 10 time? 11 A: Could -- 12 Q: I may be confused. 13 A: Yeah. Could you direct me to where 14 that is? Perhaps... 15 Q: No, that's okay I'll just ask the 16 question. 17 With regards to the obstruction of the 18 public beach area and -- My Friend also asked you some 19 questions with regards to entering at night, was there a 20 major concern about people needing to access the beach at 21 night? 22 A: I did not make the decision to go in 23 that evening and I'm not aware of all the facts that 24 surrounded the -- that process. 25 Q: But, to your knowledge, was there an

280

1 issue regarding people not being able to access the beach 2 at night? 3 A: To my knowledge there was an issue 4 regarding people in that area with weapons and that had 5 caused damage to a motor vehicle earlier that evening. 6 Q: Okay. And you saw the damage to that 7 motor vehicle; is that correct? 8 A: Yes, I did. 9 Q: And it was a small dent; is that 10 correct? 11 A: Yes. 12 Q: By an individual known to the person 13 in that car; is that correct? 14 A: I didn't know the content of the 15 statement. 16 Q: Okay. That's fair. Now, since we're 17 at that same Tab, you can turn the page, and almost to 18 the bottom of the page, well it really starts about 19 three-quarters (3/4's) of the way down, you indicate: 20 "I observed the front ranks arrest an 21 individual in the beach area." 22 Can you be more specific with regards to 23 the beach area; what are you talking about? 24 A: I'm referring to the sandy parking 25 lot.

281

1 Q: Okay. So, they're arresting an 2 individual in the parking lot; is that correct? 3 A: That's correct. 4 Q: Okay. And there were approximately 5 six (6) officers around this person, correct? 6 A: Yes. 7 Q: And he was on his stomach with his 8 hands behind his back; is that correct? 9 A: He was face down on the ground and 10 they were attempting to secure his arms behind his back. 11 Q: Okay. So his hands are behind his 12 back, correct? They're working on cuffing him and they 13 haven't cuffed him yet. 14 A: They were -- they were attempting to 15 secure his arms. They would be at his side but they 16 wouldn't be in front. I recall them being at his side or 17 behind. But, they were trying to gain control of him; 18 that's what I observed. 19 Q: Okay. So you have six (6) officers 20 around one (1) individual, correct? 21 A: That's correct. 22 Q: Okay. And if you go to Tab 20, page 23 102 and this is your testimony in the Warren Anthony 24 George trial. You indicate: 25 "During the confrontation --

282

1 And I'm at line -- just above line 20 -- 2 line 19 really. 3 "During the confrontation I observed 4 fellow police officers of the Crowd 5 Management Unit and they had attempting 6 to arrest a male party that was in 7 front of me and off to my left." 8 And you indicated that that was Cecil 9 Bernard George, correct? 10 A: At that time I knew who the party 11 was, yes. 12 Q: Yes. And then farther down after 13 you've identified the individual, you state: 14 "I saw, I believe five (5) or six (6) 15 police officers attempting to arrest 16 him." 17 A: That's correct. 18 Q: Now, at the time that you see him, is 19 he free to move; is he free to leave? 20 A: At the time that I observed him, he 21 was face down on the ground. 22 Q: So whether they'd officially arrested 23 him or not, he certainly was is in custody? 24 A: I'd agree with that, yes. 25 Q: Okay. And the male party was on the

283

1 ground, on his belly at the time, and you stand by that 2 testimony today, right? 3 A: That's correct. 4 Q: Okay. And you observe a police 5 officer attempting to put plastic handcuffs on him? 6 A: Yes. 7 Q: Okay. And then on page 103 it's 8 asked of you: 9 "Was that an Arrest Team member or 10 another CMU member?" 11 Now, how can you tell the difference 12 between the two (2), sir? 13 A: You -- you would -- when we initially 14 set out the other CMU Members had shields. 15 Q: Okay. 16 A: And the arresting members didn't. 17 Q: Okay. Is there anything else 18 distinctive about the clothing? 19 A: They would have -- I believe they had 20 more protective clothing on their -- armour on their legs 21 and shins, or sorry, their legs and thighs. 22 Q: Okay. So there is a difference in 23 the clothing and they have shields; the people who aren't 24 members of the arrest team. 25 Can you today tell us, who was around him,

284

1 were they members of the CMU or were they members of the 2 arrest team? 3 A: I don't know who they were. 4 Q: Can you recall the clothing they had 5 on? 6 A: I recall the grey uniform and the 7 helmets. It was low lighting, things were happening very 8 quickly, there was no badge numbers of any identification 9 on the helmets at that time, I do not know who was there. 10 Q: Now, you indicated that your helmet 11 muffled some sounds; is that correct? 12 A: It muffled sounds, yes. 13 Q: Okay. If Cecil Bernard George was 14 muttering things at that time, laying on his belly, is it 15 possible that you didn't hear what he was muttering? 16 A: All I can say is I did not hear him 17 say anything. 18 Q: Okay. That doesn't mean he didn't 19 say something? 20 A: I did not hear him say anything. 21 Q: Okay. Now can you tell me, you 22 identify him as being a Native person, was that in part 23 because of his long hair? 24 25 (BRIEF PAUSE)

285

1 2 A: I don't recall. 3 Q: Do you recall his hair? 4 A: I recall long, dark hair. 5 Q: Okay. And do you recall his hair 6 when you get to him, when he's down on his -- on his 7 belly? 8 A: No. 9 Q: Okay. I believe you stated something 10 in one of your notes about his hair when you get to the 11 van, that he had long, dark hair. 12 Do you recall his hair when you get to the 13 van, to the prisoner van? 14 A: I recall seeing long, dark hair then, 15 yes. 16 Q: Okay. Can you describe his hair for 17 us? Is it in a ponytail? Is it messed? Is it -- what 18 is it? 19 A: I don't recall that. 20 Q: Was it bloody? 21 A: I -- I did note -- did not notice any 22 liquid on his head, just long dark hair. 23 Q: Okay. 24 25 (BRIEF PAUSE)

286

1 2 Q: Can you recall if it was in a 3 ponytail or not? 4 A: No. 5 Q: Did you see the initial contact with 6 Cecil Bernard George? 7 A: I do not have independent 8 recollection of that, no. 9 Q: Okay. Now, Staff Sergeant Lacroix I 10 believe, has testified that he made contact with the 11 individual. Do you recall seeing that? 12 A: No. 13 Q: Okay. 14 MR. DERRY MILLAR: He -- just in 15 fairness, he made -- Staff Sergeant Lacroix -- 16 THE WITNESS: Yes. 17 MR. DERRY MILLAR: -- said that he does 18 not know who he was in contact with. 19 MS. COLLEEN JOHNSON: Okay. 20 21 CONTINUED BY MS. COLLEEN JOHNSON: 22 Q: Did you see the individual standing 23 at any point? 24 A: No, I did not. 25 Q: Okay. So is it your belief that the

287

1 very first time you see this individual with your eyes, 2 is when he's surrounded by the six (6) members of CMU or 3 the Arrest Team; you're not sure which? 4 A: That's correct. 5 Q: Okay. Now, tell me about the Arrest 6 Team and where you are when you're coming up to this 7 individual. Are they -- when you start off, you're 8 together, right, the Arrest Team? 9 Q: We were at the rear ranks of the 10 Crowd Management Unit, yes. 11 Q: Okay. And then you're given an order 12 to move ahead; is that correct? 13 A: I don't recall any punchouts other 14 than the -- the left cover punching out. 15 Q: Okay. I'm not talking about a 16 punchout, I'm talking about specifically the Arrest Team. 17 Were you told to go and get a man down? 18 A: No, I was not. 19 Q: Okay. How is it that you wind up 20 going to -- to the individual on his belly? 21 A: I was at the far right of the unit 22 and this party was ahead of me and on the left. I 23 observed officers struggling with a person on the ground 24 and in my opinion, I -- I viewed that they needed 25 assistance to secure this person.

288

1 Q: Okay. And tell me about the other 2 members of the Arrest Team as you see the individual to 3 your left, and you're at the far right -- that's helpful, 4 thank you. 5 Do -- how do they move, then, the other 6 members of the arrest team, to assist the individual on 7 the ground? 8 A: Sorry, what's your question? 9 Q: How do you move towards the 10 individual? 11 A: Personally, how did I move? 12 Q: Okay, you personally, yes. 13 A: I ran over towards the person on the 14 ground. 15 Q: So you ran to him. A fairly urgent 16 situation? 17 A: I ran over there to assist, yes. 18 Q: Okay. And did other members of the 19 Arrest Team run with you? 20 A: I don't recall seeing anyone else 21 run. I saw the -- the five (5) officers there and I 22 believe I was the last one to go in to assist. 23 Q: To get to him. Now, he's already on 24 the ground with five (5) or six (6) officers surrounding 25 him, correct?

289

1 A: Five (5) or six (6) officers around 2 him, yes. 3 Q: Okay. Did you see any of the arrest 4 team run ahead of you? 5 A: I don't recall seeing how or when the 6 arrest team first got -- made contact with the person on 7 the ground. 8 Q: Okay. Who were you carry him with, 9 back to the prisoners van? 10 A: I carried him with P/C Zacher and I 11 don't know who the other officers were. 12 Q: And how do you know it was Zacher? 13 A: I recall identifying him back while 14 we were at the prisoner van. Also he's the largest 15 member of the group, so he's -- he sticks out from the 16 rest. 17 Q: Okay. And where was he when you 18 initially were lined up as the arrest team? 19 A: I -- 20 Q: Zacher. 21 A: -- I don't recall. 22 Q: Okay. Was he right next to you or 23 not? 24 A: I don't recall. 25 Q: Okay. But you get there with Zacher

290

1 and -- or he's there at some point and you carry him 2 back. 3 You don't know who else on the arrest team 4 carried him back? 5 A: No. 6 Q: Have you found out since that evening 7 who -- who else helped to carry him? 8 A: I -- I don't know, specifically. 9 I've heard officers talk about assisting but it's not 10 clear in my mind. 11 Q: And certainly officers would talk 12 about assisting, because you're social beings; is that 13 correct? 14 A: Sorry? 15 Q: You are social beings? 16 COMMISSIONER SIDNEY LINDEN: What is the 17 question? Is that a question you're asking this officer? 18 MS. COLLEEN JOHNSON: Yes, I am. 19 THE WITNESS: I'd agree that I'm a social 20 being, yes. 21 COMMISSIONER SIDNEY LINDEN: Are they 22 social beings? 23 MS. COLLEEN JOHNSON: Yes. 24 COMMISSIONER SIDNEY LINDEN: That's a 25 question?

291

1 MS. COLLEEN JOHNSON: That's my question. 2 Police officers -- 3 COMMISSIONER SIDNEY LINDEN: Ms. Johnson, 4 I'm trying -- 5 MS. COLLEEN JOHNSON: -- like other human 6 beings are social. 7 COMMISSIONER SIDNEY LINDEN: Ms. Johnson, 8 I'm trying my best to be as liberal in my interpretation 9 of your examination and give you as much leeway as 10 possible. I'm not sure that's a question the answer 11 which is going to be very helpful to me. 12 13 CONTINUED BY MS. COLLEEN JOHNSON: 14 Q: Would you agree that you talk amongst 15 each other? 16 A: Oh, definitely. 17 Q: Okay. And this was a very 18 significant incident in your mind? 19 A: Yes. 20 Q: Probably one (1) of the most critical 21 you've ever been in? 22 A: Yes. 23 Q: As well as your fellow officers? 24 A: I can only speak for myself. 25 Q: Okay. Would you agree that you've

292

1 spoken together about the events of that evening? 2 A: The general events? Yes. 3 Q: Yes, the general events. On numerous 4 occasions, would you agree? 5 A: I don't know how many occasions. 6 These -- these are all officers might I point out that I 7 never worked with prior to this evening. 8 Q: Okay. 9 A: And -- and after that they were all 10 working in -- in detachment areas away from me. So these 11 aren't people that I'd have constant contact with. The 12 only officer would be Constable Aitchison who was my 13 partner also from 6 District. 14 Q: Okay. During the investigation is it 15 fair to say that you would have come into contact with 16 these officers more than you would have had had there not 17 been an investigation ongoing? 18 A: Which investigation are you referring 19 to? 20 Q: Any of the investigations following 21 the events of the night of September 6th. 22 A: I may have run into them at the 23 trials if they were witness officers but I don't have any 24 specific recollection of -- of meeting with them with -- 25 first of all there was never any meetings with them but

293

1 if I -- if I saw them at a court case I might have run 2 into them there. 3 Q: Where did you go immediately 4 following the events of September 6th? Once you leave 5 the -- the parking lot area where do you go? 6 A: I recall going back to the TOC. 7 Q: Okay. And who did you go there with? 8 A: With the rest of the Crowd Management 9 Unit officers. 10 Q: Okay. And how did you get there? 11 A: We walked there. 12 Q: Okay. And who walked there? 13 COMMISSIONER SIDNEY LINDEN: He's already 14 given that evidence in chief. He's given all the 15 evidence that you've just elicited. 16 MS. COLLEEN JOHNSON: Okay. If you -- 17 COMMISSIONER SIDNEY LINDEN: That's fine. 18 Carry on. 19 20 CONTINUED BY MS. COLLEEN JOHNSON: 21 Q: Who walked there, sir? 22 A: The officers that were -- 23 Q: With you specifically? 24 A: I don't recall specifically walking 25 with anyone.

294

1 Q: Do you recall if your partner was 2 there? 3 A: No, I don't recall where my partner 4 was. 5 Q: Okay. Do you recall having any 6 conversations on the way back to TOC? 7 A: No, I don't recall anything. 8 9 (BRIEF PAUSE) 10 11 Q: I'm going to ask you, are you still 12 at Tab 20 in your binder, sir? 13 A: Yes, I am. 14 Q: Okay. If you could turn to page 107. 15 And I would just ask you to -- to look at -- at 16 approximately line 17, your answer: 17 "His arms were behind his back and 18 there was one (1) officer behind 19 attempting to handcuff him at that time 20 when I got -- saw the blows." 21 And the question is put to you: 22 "I see. So at the time when the blows 23 came down there was an officer holding 24 onto his arms from behind and 25 attempting to place them together

295

1 behind the back?" 2 And you answer: 3 "Yes, sir." 4 Do you stand by that evidence today? 5 A: Yes. 6 Q: Okay. And then if you could turn to 7 page 110 and we're at line 23. 8 9 (BRIEF PAUSE) 10 11 Q: And this is with regards to when 12 Cecil Bernard George is taken to the prisoner van and you 13 indicate that he was very passive. 14 A: That's what I recall, yes. 15 Q: Okay. Were you able to see his face? 16 A: I did not see his face. 17 Q: You indicated you thought that he had 18 been sitting up in the prisoner van and so because of 19 that you believed he was conscious, but prior to him 20 being placed into the prisoner van you would agree that 21 he was silent, very -- or passive I'm sorry, that he was 22 passive -- 23 A: Yes. 24 Q: -- and that you were not able to see 25 his face?

296

1 A: That's correct. 2 Q: And would you agree that then you 3 were not able to determine whether he was conscious at 4 that point, or not? 5 A: I agree with that, yes. 6 Q: Okay. Now, sir I'm going to ask you 7 to turn to page -- to Tab 25 again. And you -- it's been 8 indicated that you were a subject officer and can you 9 tell me what that means? 10 A: Designated a subject officer, 11 basically means that I'm subject of the investigation. 12 Q: With regards to excessive force being 13 applied to Cecil Bernard George? 14 A: That's correct. 15 Q: Okay. And can you tell me, do you 16 have any idea how you became a subject officer? 17 A: No I was quite shocked frankly, when 18 I became one. 19 Q: Okay. 20 21 (BRIEF PAUSE) 22 23 Q: Sir, the first paragraph on Page 2, 24 oh Tab 20 -- 25 COMMISSIONER SIDNEY LINDEN: This is the

297

1 paragraph that Mr. Rosenthal read. 2 MS. COLLEEN JOHNSON: It is. I'm not 3 reading it. I just -- 4 COMMISSIONER SIDNEY LINDEN: That's fine. 5 MS. COLLEEN JOHNSON: And I'm not redoing 6 what Mr. Rosenthal did either. 7 8 CONTINUED BY MS. COLLEEN JOHNSON: 9 Q: It seems to me the paragraph -- I'm 10 sorry, Tab 25. 11 COMMISSIONER SIDNEY LINDEN: Tab 25. 12 MS. COLLEEN JOHNSON: Blame it on age 13 here. 14 15 CONTINUED BY MS. COLLEEN JOHNSON: 16 Q: I am at Tab 25 and in all fairness to 17 you, you should have time to find page 2 and the first 18 paragraph, that's where I am. And I do apologize. 19 Now, Mr. Rosenthal read this paragraph to 20 you. When I read the paragraph it looks to me as though 21 there's an incongruity between the injuries that were 22 actually suffered by Cecil Bernard George and the level 23 of force that were alleged by the Officers. 24 Would you agree with that? 25 A: No I would not. I think you

298

1 basically have to read the whole report. 2 Q: Okay. 3 A: And if you -- then it puts into 4 context. 5 Q: Because I can tell you that some of 6 us in questioning witnesses are having some frustration 7 here and I'll speak for myself, with regards to the 8 actual injuries suffered by Cecil Bernard George and the 9 explanations that we're given but they just don't seem to 10 line up. 11 MR. DERRY MILLAR: Now that's -- that's 12 a question -- that's for argument. 13 MS. COLLEEN JOHNSON: I haven't asked -- 14 COMMISSIONER SIDNEY LINDEN: Pure 15 argument. 16 MR. DERRY MILLAR: Yes, pure argument. 17 MS. COLLEEN JOHNSON: I haven't asked my 18 question. 19 COMMISSIONER SIDNEY LINDEN: No, but, the 20 basis of it is pure argument, it's not a question for 21 this Witness. It's a matter that you can make in your 22 submission when the time comes and that may be a 23 perfectly proper submission. But, I'm not sure how this 24 witness can assist you. 25 MS. COLLEEN JOHNSON: My question simply

299

1 would have been if he has an explanation. 2 COMMISSIONER SIDNEY LINDEN: That's not a 3 question that this witness can be asked or answer. 4 MS. COLLEEN JOHNSON: Thank you sir. 5 COMMISSIONER SIDNEY LINDEN: That was the 6 purpose of the SIU investigation. That's what they said 7 in the report. The report is in front of us. I can read 8 the report and you can make your argument based on it. 9 MS. COLLEEN JOHNSON: Okay. 10 11 CONTINUED BY MS. COLLEEN JOHNSON: 12 Q: In your interactions since the events 13 of 1995, September 6th, 1995 have you had any 14 conversations with officers that would assist us in 15 knowing what happened to Cecil Bernard George that night? 16 A: I do not know what happened other 17 than the two (2) blows I observed. And once I had hands 18 on contact with him I did not observe any other force 19 used against him, other than carrying him to the prisoner 20 van. 21 Q: Thank you, sir. Those are my 22 questions. 23 COMMISSIONER SIDNEY LINDEN: Thank you 24 Ms. Johnson. Mr. Scullion is up next. 25

300

1 (BRIEF PAUSE) 2 3 CROSS-EXAMINATION BY MR. KEVIN SCULLION: 4 Q: Good afternoon, Officer. 5 A: Hello, sir. 6 Q: My name's Kevin Scullion and I'm one 7 (1) of the counsel for the Residents of Aazhoodena. You 8 may know them better as the Stoney Point Group and coming 9 up third in order here I have more simple questions to 10 clarify things than anything else. 11 And one (1) thing that kept coming up for 12 me in following your evidence regarding where these 13 gunshots or where you heard the gunshots coming from was 14 the ditch that you're referring to. 15 And I -- if I can turn you to your Tab 9. 16 Do you have that before you? 17 A: Yes, sir. 18 Q: Halfway down what appears to be page 19 45. 20 A: My Tab 9 starts at page 48. 21 22 (BRIEF PAUSE) 23 24 Q: Sir, I'm going from the pages at the 25 top. The page on the bottom is page 52, Mr. Millar helps

301

1 me with it. Do you have that before you? 2 A: Yes, sir. 3 Q: And there's reference there to you 4 jumping into the east ditch as the bus comes out of the 5 parking lot? 6 A: That's correct. 7 Q: Now, in terms of the east ditch -- 8 A: That would be the south ditch or the 9 non lakeside ditch. 10 Q: The non lakeside ditch. Okay. If 11 you turn to Tab 19 there's a little diagram there with an 12 "X" on it, is that the approximate location that we're 13 referring to, the non lakeside ditch area? 14 A: That would be the -- that side of the 15 road. The proximity to the Army Camp Road I don't know 16 but it would be coming from that side of the road, yes. 17 Q: Okay. But you can't help us in 18 regards to how close it would be to the "X" in that 19 particular diagram on -- at Tab 19? 20 A: No, sir. 21 Q: All right. Maybe for ease of 22 reference if I can just mark the exhibit that I've just 23 referred to at Tab 19 which is 2000075 as the next 24 exhibit? 25 THE REGISTRAR: P-1536.

302

1 --- EXHIBIT NO. P-1536: Document Number 2000075. 2 Letter from Mark Dew to 3 Investigating Support Bureau, 4 November 15, 1996. 5 6 CONTINUED BY MR. KEVIN SCULLION: 7 Q: And if I can turn you to Tab 15. Do 8 you have that before you, the memo that was referred to 9 in Examination-In-Chief? 10 A: Yes, sir. 11 Q: If you could turn to page 3 which I 12 understand is your memo regarding various aspects of this 13 incident. Mr. Rosenthal asked you a number of questions 14 regarding Number 1 the night deployment of the Crowd 15 Management Unit but there's reference in the blurb 16 following that line to a briefing that occurred at the 17 Forest Detachment. 18 I'm wondering which briefing you're 19 referring to in that paragraph? 20 A: I don't recall that briefing, sir. 21 In my notes unfortunately all I have is "briefing" and 22 there's no indication of the content of the briefing. 23 When I saw this report I -- I didn't 24 recall it initially but at this point I do so when that 25 was made I don't recall, sir.

303

1 Q: All right. So you can't help us in 2 determining whether or not this relates to certain 3 instructions given to you the night of September the 6th 4 at a briefing in Forest? 5 You can't say yes or no to whether or not 6 that occurred? 7 A: I -- I don't know, sir. 8 Q: All right. If you go to the -- the 9 next section 2: "Suggestion that the ERT members would 10 perform in regular patrol uniform." 11 The blurb following says: 12 "When did public perception become a 13 greater concern than officer safety?" 14 What does that relate to? 15 A: When I looked at that, sir, that's 16 the exact thought going through my mind and I'm not sure 17 what that is referring to. 18 Q: All right. 19 A: I did create it, but I -- I believe 20 this is suggestions or -- or questions from team members; 21 who posed these questions, I don't know, sir. 22 Q: All right. Because there's a number 23 of spins that can obviously be put on this particular 24 line, but you can't help us as to who made this comment 25 or what it related to?

304

1 A: No, sir, I cannot. 2 Q: But those aren't your thoughts either 3 regarding public perception versus officer safety? 4 A: No, sir. 5 Q: And then lastly, Number 3. The last 6 -- second last line relates to: 7 "Illuminated sights for the .233 mini- 8 Ruger." 9 And the blurb is: 10 "What is the status on this issue for 11 night use of the rifles." 12 What does that relate to? 13 A: At the time the -- the rifle has 14 what's known as a peep sight. It has a -- a circular 15 hole closest to the butt and a -- a -- another piece at 16 the end of the barrel and it's a -- a method of sighting 17 the rifle and at the time, in very low lighting 18 conditions, it was difficult to actually utilize the 19 sights on the mini .223. 20 Q: Right. So, does this mean that there 21 was a concern about how accurate the .233 mini-Ruger was 22 without this illuminated sight? 23 A: That's the way I viewed it sir, yes. 24 Q: Okay. It's your memo, but that's how 25 you viewed it at the time that there was a concern

305

1 regarding that from various ERT members? 2 A: Yes. 3 Q: Okay. And just for my benefit, is a 4 mini-Ruger or a .233 mini-Ruger a long gun? 5 A: Yes, it is. 6 Q: And were the ERT members involved in 7 the CMU the night of September the 6th, carrying long 8 guns? 9 A: I did not observe any Crowd 10 Management Unit officers carrying long guns and that's 11 not a practice that I'm aware of, or have ever -- ever 12 seen in any training. 13 Q: And you certainly weren't aware of 14 anyone carrying a long gun the night of September the 15 6th, in terms of ERT members? 16 A: Definitely not. 17 Q: Okay. 18 MR. KEVIN SCULLION: Thank you, Mr. 19 Commissioner. Those are my questions. 20 COMMISSIONER SIDNEY LINDEN: Thank you, 21 Mr. Scullion. I'm not sure who's next. Mr. Mathai, or 22 Mr. Alexander. 23 Mr. Alexander...? 24 MR. BASIL ALEXANDER: I believe I'm next, 25 Mr. Commissioner, and I can advise that I will be very

306

1 brief. 2 3 CROSS-EXAMINATION BY MR. BASIL ALEXANDER: 4 Q: Good afternoon, Constable Bittner. 5 A: Good afternoon. 6 Q: My name is Basil Alexander and I'm 7 one(1) of the lawyers for the Estate of Dudley George and 8 several members of the George Family, including Sam 9 George who's sitting here beside me. 10 And I have only one (1) timing 11 clarification I want to talk to you about. 12 If you could turn, please, to Tab 9, which 13 is Inquiry document number 1000459, Exhibit P-1530. And 14 I may have missed this in-chief, but I just want to make 15 sure I've got the timing right on this. 16 And if you look at your page, about the 17 bottom third of the page, it talks about -- it says 19:20 18 and then you talk about the incident involving Gerald 19 George. 20 A: Yes. 21 Q: Now, it's the timing of when that 22 incident occurred is what I want to ask you about because 23 if you look at the statement at Tab 11, which is Inquiry 24 document number 2000549, Exhibit P-123, it indicates a 25 time of approximately 7:51 p.m. and we've also had radio

307

1 transmissions indicating that the incident occurred 2 around that time. 3 For example, for the reference of My 4 Friends, Exhibit P-1141. So I just want to ask you, in 5 terms of the time, do you take any issue with the time of 6 it actually occurring around 7:51 p.m.? 7 A: All I can do is refer to my notes. I 8 don't know how much time transpired between that person 9 arriving and the statement taking. 10 Could he have been there for thirty-six 11 (36) minutes? I don't know, sir. 12 Q: Well, you're not sure in terms of the 13 timing. The reason why I ask that is I believe in your - 14 - in one(1) of your trials, you indicate that the time 15 19:20 was the time you arrived at Checkpoint Charlie and 16 that the person arrived shortly after that. 17 So, this is the reason why I'm putting it 18 to you in terms of this. 19 A: It's quite possible that he -- he 20 would have arrived after 19:20. I don't know for sure, 21 sir. 22 Q: Thank you, Constable Bittner. Those 23 are my questions. 24 COMMISSIONER SIDNEY LINDEN: Thank you, 25 Mr. Alexander.

308

1 Mr. Mathai...? 2 3 (BRIEF PAUSE) 4 5 CROSS-EXAMINATION BY MR. SUNIL MATHAI: 6 Q: Good afternoon, Constable Bittner. 7 A: Good afternoon. 8 Q: My name is Sunil Mathai and I'm 9 one(1) of the lawyers that represent Aboriginal Legal 10 Services of Toronto. I only have a few questions with 11 you and I -- I hope not to take too much of your time. 12 The first thing I want to discuss with you 13 is the incident on September 4th. At -- on September 4th 14 at 22:35, you arrived at the sandy parking lot because 15 there was an obstruction, sorry September 5th. 16 A: Sorry, could you just advise me of 17 the Tab we're looking at here? 18 Q: Sure, if we turn to Tab 6 of your 19 notes. It's at page 45 of your notes. 20 A: And you'll see there at 22:35 you 21 received info that Natives have barricaded land adjacent 22 to provincial parking lot sorry -- 46, thank you. 23 COMMISSIONER SIDNEY LINDEN: What page is 24 that? 25 MR. SUNIL MATHAI: Page 46.

309

1 COMMISSIONER SIDNEY LINDEN: 46. Right. 2 3 CONTINUED BY MR. SUNIL MATHAI: 4 A: Yes. 5 Q: And so you arrived there at 22:35? 6 A: I have 22:35 that I received the 7 information. 8 Q: And so when would you have arrived 9 then? 10 A: I don't know, sir. 11 Q: Shortly thereafter? 12 A: It's not clear in my mind where I was 13 actually coming from, but I was not at the scene when I 14 was asked to attend there. 15 Q: You go on to say that when you arrive 16 there there were five (5) marked police units on the 17 scene? 18 A: That's correct. 19 Q: And there were thirty (30) Natives on 20 the property adjacent? 21 A: That would be the sandy parking lot. 22 Q: So they would be in the sandy parking 23 lot? 24 A: Yes. 25 Q: So when you arrived they were still

310

1 in the sandy parking lot? 2 A: My notes reflect that but I don't 3 have independent recollection at this time. 4 Q: Okay. But, your notes were made 5 sometime shortly after the incident? 6 A: Yes sir. 7 Q: Okay. So according to your notes 8 then, your mere police presence there wasn't enough to 9 make the Natives go back into the Park, correct? 10 A: Sorry -- according to my notes that 11 our presence, as well as I guess -- I believe a 12 conversation with P/C Gransden was enough to have the 13 parties go back into the Provincial Park. 14 Q: And that's fair, but we can break it 15 down there when you arrive there's already five (5) 16 cruisers there, correct? 17 A: Correct. 18 Q: And there are thirty (30) to forty 19 (40) Natives already in the Park? 20 A: Correct. 21 Q: And then Const -- 22 A: Sorry -- in the 23 Q: Sorry -- or sorry, in the sandy 24 parking lot? 25 A: Yes.

311

1 Q: And then Constable Gransden says, If 2 you don't remove yourself from the sandy parking lot, 3 you'll be charged with mischief, correct? 4 A: Correct. 5 Q: So merely the five (5) police 6 officers, the five (5) cars there and you being there, 7 didn't remove them into the Park. It was only when 8 Gransden said to them that they would be charged with 9 mischief that they then moved back to the Park -- into 10 the Park? 11 A: I don't know what their thoughts 12 were, but it was after the conversation with Gransden 13 whether they're going back on their own accord or -- I 14 don't know what their thoughts were. 15 Q: But from your observations the 16 conversation had a positive benefit in moving them back 17 into the Park, correct? 18 A: Yes. 19 Q: Okay. So conversation would have 20 been -- is a good thing in dealing with these types of 21 conflicts, correct? 22 A: Yes I agree with that. 23 Q: And on the night of September 6th 24 when you guys were marching down the CMU -- sorry 25 marching down East Parkway Road, no one said, Occupiers

312

1 if you move back into the Park there won't be a problem 2 here, correct? 3 A: I did not hear anything of that 4 nature. 5 Q: Thank you. Now, you gave testimony 6 in your Chief, that you met with Dr. Hoath I believe it 7 was? 8 A: Yes. 9 Q: And that was on September 8th -- 10 sorry that would be September 12th then, Mr. Millar 11 advises me? 12 A: Could we have the tab number -- 13 MR. DERRY MILLAR: The notes are at Tab 14 3, the last three (3) pages is parts of Exhibit 1527 -- 15 P-1527 and the reference to David Hoath is the very last 16 page of that. 17 THE WITNESS: Yes sir. Thank you I have 18 it. 19 COMMISSIONER SIDNEY LINDEN: September 20 12th, yes. 21 22 (BRIEF PAUSE) 23 24 CONTINUED BY MR. SUNIL MATHAI: 25 Q: Now, we've heard testimony that there

313

1 was a meeting with Dr. Hoath on September 8th and it 2 involved a healing circle, with an eagle feather being 3 passed around. 4 I'm wondering if that was something 5 similar to what happened in your debriefing with Mr. 6 Hoath on September 12th? 7 A: I don't have any recollection of an 8 eagle feather or a healing circle. 9 Q: Okay. Now, one (1) quick question 10 with respect to the T-shirt. You testified when Mr. 11 Rosenthal asked you some questions on the T-shirt that 12 the arrow being broken didn't symbolize to you the 13 breaking of the First Nations or -- or successful victory 14 for the OPP, correct? 15 A: That's correct. 16 Q: And instead you said that it may have 17 represented defeating weapons or bringing down weapons, 18 correct? 19 MS. KAREN JONES: He didn't say that. 20 21 CONTINUED BY MR. SUNIL MATHAI: 22 Q: Sorry, you said that it -- the arrow 23 could have reflected weapons or symbolized weapons? 24 A: A weapon, yes. 25 Q: Yes, in fact he just said yes to that

314

1 so he did say that. 2 COMMISSIONER SIDNEY LINDEN: I don't 3 remember that either but -- 4 MR. SUNIL MATHAI: And I -- well, I think 5 the record -- in fairness I think the record will 6 reflect that. 7 COMMISSIONER SIDNEY LINDEN: That's all 8 right. You -- 9 MR. SUNIL MATHAI: But in any event the 10 Witness has said that that is what he believed it 11 symbolized and I just want -- 12 THE WITNESS: Not that I believe that -- 13 that it may have symbolized that. 14 15 CONTINUED BY MR. SUNIL MATHAI: 16 Q: That it may have symbolized that. 17 I'm just wondering that night on September 6th there were 18 no arrows in the Park, right, being used by any of the 19 occupiers or anybody else? 20 A: I did not see any. 21 Q: Okay. Just one (1) more area that 22 I'd like to cross with you. 23 During the time of September 4th to the 24 6th you were a member of the day shift ERT, correct? Or 25 maybe I'll -- I'll unpack that a bit.

315

1 You were a member of the 2nd District ERT, 2 correct? 3 A: That's correct. 4 Q: And during September 4th to the 6th a 5 2nd District ERT was in charge of the day shift? 6 MR. DERRY MILLAR: Well, you have to look 7 at the notes because the notes are -- this man was on 8 duty, I don't know about the Number 2 ERT. This man was 9 on duty at -- if you look at his notes mostly at night. 10 11 CONTINUED BY MR. SUNIL MATHAI: 12 Q: Sorry, my mistake, that is correct 13 that you were on duty during the night shift, correct? 14 A: Correct. 15 Q: Okay. And when does the night shift 16 begin? 17 A: Which -- which day are you referring 18 to, if you could give me -- 19 Q: Generally speaking is there a general 20 idea of when the night shift is supposed to begin or was 21 there a general idea of when the night shift was to begin 22 from September 4th to the 6th? 23 A: I can refer to my notes but -- 24 Q: Sure. 25 A: -- as far as the schedule I don't

316

1 recall offhand without referring to my notes. 2 Q: Okay. If you want to refer to your 3 notes that's fine. 4 A: Which date, sir, were you...? 5 MR. DERRY MILLAR: Well, the tabs (sic) 6 are at Tab 6 and, frankly, I went through every day he 7 started and when he finished. 8 COMMISSIONER SIDNEY LINDEN: Yes. Is 9 there a particular question that you want? 10 11 CONTINUED BY MR. SUNIL MATHAI: 12 Q: Well, going through it from what I 13 can see generally speaking you start in between 6:00 p.m. 14 to 6:30 p.m., correct? 15 A: It appears that I would go on duty at 16 6:00 p.m. 17 Q: And you generally would end at around 18 7:00 a.m., 7:30 a.m.? 19 COMMISSIONER SIDNEY LINDEN: I certainly 20 didn't -- 21 THE WITNESS: It appears it varied from 22 day to day. 23 24 CONTINUED BY MR. SUNIL MATHAI: 25 Q: Okay. On September 5th you started

317

1 at what time? 2 A: September 5th I started at 18:00 3 hours, 6:00 p.m. 4 Q: And at that time you had a 5 debriefing, correct? 6 A: The beginning of the shift-- 7 Q: I'm sorry, a briefing. 8 A: -- it would have been a briefing, 9 yes, sir. 10 Q: Yes. And at that time was there 11 anything significant noted in the briefing? 12 A: I don't recall the briefing, sir, I 13 indicated earlier that my -- my notes don't reflect that 14 and I have since reflected more up-to-date things in my 15 current notes with who is giving the briefing and the 16 details of the briefing but these notes don't assist me. 17 Q: Okay. But generally speaking because 18 I -- I did notice on Tab -- in Tab -- if you want to turn 19 to Tab 6 page 45 I believe it is... 20 21 (BRIEF PAUSE) 22 23 Q: And in there at I think it's 00:15 24 you attend a briefing and you note there: 25 "Violent confrontation at Ipperwash

318

1 Provincial Park. Cruiser rear window 2 smashed." 3 A: Yes, sir. 4 Q: So it's fair to say though in the 5 briefings when you receive information of an escalating 6 situation you do note it down? 7 A: I would say, sir, that I don't have 8 any notation of the content of the briefing for the 5th. 9 I don't know what it was, sir. 10 Q: Okay. No, but that -- that wasn't my 11 question though. 12 With respect, when you do receive 13 information on escalating situations that you are given 14 during a briefing you put that in the briefing, correct? 15 COMMISSIONER SIDNEY LINDEN: Well -- 16 THE WITNESS: Sir, all I can say is on 17 the 5th that I don't have any details of the briefing. I 18 don't know what the content was. 19 20 CONTINUED BY MR. SUNIL MATHAI: 21 Q: Okay. September 6th then, moving to 22 then you went on duty at 6:30 p.m.? 23 A: I went on duty at 6:00 p.m. 24 Q: 6:00 p.m.? And you had a briefing at 25 6:30?

319

1 A: That's correct. 2 Q: And that was at the Forest 3 Detachment? 4 A: Yes, sir. 5 Q: And again in your notes there's no 6 reflection of -- of an escalating situation or anything 7 being mentioned to you during the briefing, correct? 8 A: There's no contents of the briefing, 9 that's correct. 10 Q: Okay. And at that time, 6:30 p.m., 11 you're going to then be sent out to one (1) of the 12 checkpoints, right? 13 A: That's correct. 14 Q: And that would have been Checkpoint 15 Charlie that you were sent out? 16 A: Yes, sir. 17 Q: And you'd be relieving members of 18 either the 3rd or the 6th ERT District, correct? 19 A: I don't know who we were relieving, 20 sir. I -- I don't have it noted and I don't have 21 recollection. 22 Q: Okay. Do you know of anybody other 23 than 3rd or 6th District ERT that would be -- have been 24 on duty pre -- prior to your arriving? 25 A: I don't recall who was on duty, sir.

320

1 Q: But you were relieving members who 2 were at the checkpoint, correct? 3 A: Yes, but which members I don't know. 4 Q: Okay. Now, we've heard your 5 testimony today that the -- that the incident with Gerald 6 George occurred, according to your notes, 9:20 and in 7 fairness, after Mr. Alexander questioned you, you said 8 that that may not be correct. 9 You may have -- you may have been at the 10 checkpoint at 7:20 but when it occurred, it may have 11 occurred some time after that fact, correct? 12 A: Yes, sir. 13 Q: Okay. And did you have any 14 information or do you have any recollection of any other 15 information with respect to an escalating of the 16 situation at Ipperwash? 17 A: No, I do not. 18 Q: And, in fact, that is confirmed in 19 other evidence that we've received today -- at the 20 Hearing, in particular Incident Commander Carson -- 21 COMMISSIONER SIDNEY LINDEN: Excuse me -- 22 MR. SUNIL MATHAI: He -- 23 MR. DERRY MILLAR: Well -- 24 COMMISSIONER SIDNEY LINDEN: Excuse me. 25 This has nothing --

321

1 MR. DERRY MILLAR: He can ask -- 2 COMMISSIONER SIDNEY LINDEN: -- to do 3 with -- 4 MR. DERRY MILLAR: -- the question what 5 he did, what he did -- 6 COMMISSIONER SIDNEY LINDEN: My goodness, 7 my goodness -- 8 MR. DERRY MILLAR: If there's a piece of 9 evidence that refreshes -- 10 COMMISSIONER SIDNEY LINDEN: Mr. Mathai-- 11 MR. DERRY MILLAR: -- his memory, he can 12 ask him that. Not that there's evidence at the Inquiry. 13 COMMISSIONER SIDNEY LINDEN: Please. 14 MR. DERRY MILLAR: We've been here for 15 two hundred and six (206) days -- 16 MR. SUNIL MATHAI: That -- 17 COMMISSIONER SIDNEY LINDEN: Ask him -- 18 MR. SUNIL MATHAI: That's fair. 19 COMMISSIONER SIDNEY LINDEN: -- questions 20 that he can give us answers for. 21 MR. SUNIL MATHAI: Okay, no, that's fine. 22 COMMISSIONER SIDNEY LINDEN: Yes, it is 23 fair enough. 24 25 CONTINUED BY MR. SUNIL MATHAI:

322

1 Q: Later on that night, you were 2 contacted by Constable Jacklin? 3 A: Yes, sir. 4 Q: And he informed you that you'd be 5 part of the CMU team, correct? 6 A: Constable Jacklin was at that 7 checkpoint with us. 8 Q: And he told you that you're closing 9 down the checkpoint and that you'd be part of the CMU? 10 A: Yes, sir. 11 Q: Okay. At that time, were you told 12 what teams were making up the CMU? If you want to refer 13 to your notes... 14 A: Yes. 15 16 (BRIEF PAUSE) 17 18 MR. DERRY MILLAR: It's page 49. 19 MR. SUNIL MATHAI: I think Tab 9. 20 MR. DERRY MILLAR: Tab 9. 21 THE WITNESS: Thank you, sir. In my 22 notes, I reflect that Constable Ternovan, Root, Myers of 23 the 1 District ERT as well as the members from the 'C' 24 checkpoint were going to form the arrest team and the 3 25 and 6 District were the front lines of the Crowd

323

1 Management Unit. 2 3 CONTINUED BY MR. SUNIL MATHAI: 4 Q: To your knowledge, was it the 3 and 6 5 District that were on duty prior to you arriving? 6 A: I -- I believe they were, but I -- I 7 don't have -- I don't know which members were there. 8 Q: You believe that they were there 9 prior, so they would be typically relieved at around 7:00 10 to 7:30 p.m.? 11 12 (BRIEF PAUSE) 13 14 COMMISSIONER SIDNEY LINDEN: This was not 15 a typical time. 16 MR. DERRY MILLAR: This isn't a typical 17 time. 18 COMMISSIONER SIDNEY LINDEN: This isn't-- 19 MR. DERRY MILLAR: This is three (3) 20 days. 21 COMMISSIONER SIDNEY LINDEN: -- a typical 22 time. Yes, this is a very unique time and Mr. Millar 23 took him through it when he went on -- 24 MR. SUNIL MATHAI: Fair enough. 25 COMMISSIONER SIDNEY LINDEN: -- and when

324

1 he came off. 2 3 CONTINUED BY MR. SUNIL MATHAI: 4 Q: So you arrived at the checkpoint at 5 7:20? 6 A: Thereabouts, yes. 7 Q: And you would have relieved whoever 8 was there in or around 7:20? 9 A: Yes, sir. 10 Q: Okay. And so these people that you 11 relieved, they were going to become members of the CMU? 12 A: I -- I don't know. I indicated 13 earlier I don't know who we relieved and so therefore 14 it's difficult for me to say who was in the CMU. 15 Q: Okay, thank you. I have no further 16 questions. Those are questions, thank you, Constable. 17 COMMISSIONER SIDNEY LINDEN: Thank you, 18 Mr. Mathai. 19 Do you have any examination now, Ms. 20 Jones, and if so, roughly how long? 21 MS. KAREN JONES: Briefly, Mr. 22 Commissioner, I would say ten (10) to fifteen (15) 23 minutes. 24 COMMISSIONER SIDNEY LINDEN: Then I think 25 I've got enough energy to continue.

325

1 MS. KAREN JONES: I think we can get 2 through it -- 3 COMMISSIONER SIDNEY LINDEN: Thank you. 4 MS. KAREN JONES: -- Mr. Commissioner. 5 COMMISSIONER SIDNEY LINDEN: Thank you. 6 MS. KAREN JONES: I'll do the best I can 7 here. 8 9 CROSS-EXAMINATION BY MS. KAREN JONES: 10 Q: Officer, could you turn to Tab 6 of 11 your book, please which are your police notes that have 12 made Exhibit P-1529. 13 And specifically I wanted to refer you to 14 pages 46 and 47 of your notes. 15 16 (BRIEF PAUSE) 17 18 Q: You have noted -- and I wanted to get 19 you to start on page 46 if that helps you, just in terms 20 of where we are. But, we're looking at the evening of 21 September the 5th at or around 22:35 hours, when you 22 arrive by the sandy parking lot after getting the call 23 that there's a barricade across the road. 24 And I wanted to ask you specifically, at 25 the bottom of page 46 and over to the top of page 47, you

326

1 say the Natives were hostile, however returned to the 2 Park. Can you help us with what you meant by, hostile? 3 Did you -- were there things that you 4 heard, or things that you saw, or both that allowed you 5 to make that observation? 6 A: I don't recall at this point in time 7 what was said. 8 Q: Okay. And in terms of your 9 experience that night you've told us, I think that you 10 yourself experienced some violence, you were hit by a 11 rock? 12 A: That's correct. 13 Q: You saw rocks thrown at another 14 officer? 15 A: Yes. 16 Q: You had -- you saw cruisers hit with 17 rocks? 18 A: Yes I did. 19 Q: And your cruiser windshield was 20 broken or was shattered while you were sitting in the 21 front seat, by a rock? 22 A: Yes it was. 23 Q: Now, given that experience would you 24 have been comfortable, for example, being in a situation 25 like that having had that experience, simply going into

327

1 an area unprotected and talking to someone? 2 A: No I would not. Given that hostility 3 and the weapons thrown at the police. 4 Q: Okay. You told Mr. Millar that you 5 had never acted as part of an arrest team before the 6 night of September the 6th, 1995. I take it though as a 7 police officer, you would have arrested people prior to 8 September 6th, 1995? 9 A: Yes, I have. 10 Q: And would you agree with me that your 11 powers of arrest and how you would conduct yourself when 12 arresting someone would be no different whether you were 13 acting in a general capacity or as a member of the CMU? 14 A: It would be the same, yes. 15 Q: Okay. And I take it you would agree 16 with me that one (1) of your responsibilities as an 17 arresting officer or someone who was a member of the 18 arrest team of the CMU, would be to attend to the safety 19 of either the person your arresting or a prisoner? 20 A: Yes. 21 Q: And in this case I take it, Officer, 22 that you took steps to do that. 23 A: Yes, we did. 24 Q: In fact, when you saw that a struggle 25 was going on, you went to assist?

328

1 A: That's correct. 2 Q: And you've told us that you took 3 steps to ensure safety by removing the person's boots? 4 A: Yes. 5 Q: And you've told us that you assisted 6 in getting the person secured? 7 A: Yes, I did. 8 Q: And that you assisted in getting the 9 person out of the area as quickly as you could? 10 A: Yes, we did. 11 Q: And I take it you did that because it 12 was not safe for that person to be in the sandy parking 13 lot at that time? 14 A: It wasn't safe for the person or the 15 officers. 16 Q: And you've told us from the period of 17 time that you arrived and you were assisting that that 18 person was never hit? 19 A: That's correct. 20 Q: That person was never kicked? 21 A: They were not. 22 Q: You saw no one take any steps in any 23 way to injure that person? 24 A: I did not. 25 Q: And are you of the view, Officer,

329

1 that you took all the steps you could from the time you 2 arrived there to ensure the safety of that person? 3 A: Yes, I did. 4 Q: You were asked some questions earlier 5 and if it assists you, Officer, if you turn to Tab 20 6 which is a transcript of the proceedings Her Majesty the 7 Queen against Warren Anthony George, is Exhibit P-1533. 8 And if you turn to Page 1 of 7, you were 9 asked a question, I'll just give you a minute to find 10 that Officer Bittner. 11 You were asked some questions about where 12 Mr. George's arms were at the time that you saw this blow 13 and I'm taking you halfway down the page approximately 14 from line 15 down. 15 A: Yes. 16 Q: And you said: 17 "His hands were behind his back and 18 there was one (1) officer behind 19 attempting to handcuff him at that time 20 when I saw the blows. 21 Q: I see, so at the time when the 22 blows came down there was an officer 23 holding onto his arms from behind and 24 attempting to place them together 25 behind the back."

330

1 And the answer is: "Yes, sir." 2 Were you of the view when you saw that 3 that Officer had been able to gain control over the 4 person on the ground? 5 A: My view was that the Officer was 6 struggling so much that I was able to secure his ankles 7 and prior -- and he still wasn't able to secure the -- 8 the arms. 9 Q: Were you of the view that there was 10 anything inappropriate or out of place in the two (2) 11 blows that you saw? 12 A: No. 13 Q: And you were asked briefly some 14 questions about when you were on East Parkway Drive after 15 the CMU had withdrawn or were retreating from the sandy 16 parking lot. You were asked a few questions about the 17 bus and the bus coming towards you. 18 And I think that you told Mr. Millar that 19 you went into the ditch on the south or the non lake side 20 of the road? 21 A: Yes. 22 Q: And you got caught up in the fence? 23 A: That's correct. 24 Q: Were you able to -- were you trapped 25 when you were caught up in the fence? Could you move

331

1 very much? 2 A: No, I was -- I was stuck there. 3 Q: Okay. And you talked about the bus 4 coming towards you. 5 Were you of the view that the bus was 6 coming at you? 7 A: Yes, I was. 8 Q: And can you give us some idea about 9 how close that bus came to you? 10 A: It -- it came close enough that I -- 11 I truly feared for my life. Distance wise I --I can't 12 say. 13 Q: Okay. And those are my questions. 14 Thank you very much, Officer Bittner. 15 COMMISSIONER SIDNEY LINDEN: Thank you 16 very much, Ms. Jones. Mr. Millar, do you have any re- 17 examination? 18 MR. DERRY MILLAR: I have one (1) 19 question, actually two (2) questions. 20 21 RE-DIRECT EXAMINATION BY MR. DERRY MILLAR: 22 Q: I'll start with the last one(1) 23 first. If I could ask you to turn to Tab 6, it's in 24 Exhibit P-1529, the -- page 46. 25 You were asked by Mr. Mathai the following

332

1 question: 2 "When you arrived [talking about the 3 picnic table incident in the sandy 4 parking lot]. When you arrived there 5 were five (5) marked cruisers there?" 6 That was the question and you said: 7 "Yes." 8 Were you then the sixth cruiser, your 9 cruiser? 10 A: I don't recall, sir. 11 Q: And your notes indicate there were 12 five (5) cruisers, is that in total or before you got 13 there? 14 A: I believe it was five (5) in -- in 15 total. 16 Q: And then My Friend, Mr. Scullion 17 asked you about Tab 15 and Exhibit P-1534 and the -- if 18 you turn to the third page the issue of illuminated sites 19 for the .233 mini Ruger? 20 A: Yes. 21 Q: And do you recall -- he asked you a 22 question about whether the CMU carried long guns, do you 23 recall that? 24 A: Yes, I do. 25 Q: And can you tell us, as part of the

333

1 kit for an ERT member, was the long gun part of the 2 equipment that an ERT member had? 3 A: Yes, it was. 4 Q: And was part of that equipment that 5 an ERT member had, did it include as a long gun a mini 6 Ruger? 7 A: Yes, sir. 8 Q: And were mini-Rugers used by the ERT 9 members on the checkpoints on the morning of September 10 the -- after the incident in the sandy parking lot? 11 A: I don't recall, sir. 12 Q: Okay. Thank you, those are my 13 questions and I'd like to thank you very much for coming 14 and giving your evidence. 15 COMMISSIONER SIDNEY LINDEN: Thank you 16 very much. 17 THE WITNESS: Thank you. 18 COMMISSIONER SIDNEY LINDEN: Thank you 19 very much for coming and giving us your evidence. 20 I think that ends a good day. 21 22 (WITNESS STANDS DOWN) 23 24 MR. DERRY MILLAR: That's that for the 25 day and, Commissioner, I need to ask that -- if we could

334

1 start tomorrow morning at ten o'clock? 2 COMMISSIONER SIDNEY LINDEN: I understand 3 Ms. Vella's coming up to do the next witness? 4 MR. DERRY MILLAR: Yes. 5 COMMISSIONER SIDNEY LINDEN: So we'll 6 start at ten o'clock. Has everybody got that? Get an 7 extra hour sleep. 8 MR. DERRY MILLAR: And it'll be Kevin 9 York tomorrow, sir. 10 COMMISSIONER SIDNEY LINDEN: And there's 11 a prospect that we'll finish him in one (1) day. 12 MR. DERRY MILLAR: I hope so. 13 COMMISSIONER SIDNEY LINDEN: Thank you 14 very much. See you tomorrow morning. 15 MR. DERRY MILLAR: Thank you very much, 16 sir. 17 THE REGISTRAR: This Public Inquiry is 18 adjourned until tomorrow, Thursday, May the 18th, at 19 10:00 a.m. 20 21 --- Upon adjourning at 4:51 p.m. 22 23 24 25

335

1 2 3 Certified Correct 4 5 6 7 8 ___________________________ 9 Carol Geehan 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25