11 2 3 IPPERWASH PUBLIC INQUIRY 4 5 6 7 ******************** 8 9 10 BEFORE: THE HONOURABLE JUSTICE SIDNEY LINDEN, 11 COMMISSIONER 12 13 14 15 16 Held at: Forest Community Centre 17 Kimball Hall 18 Forest, Ontario 19 20 21 ******************** 22 23 24 November 14th, 2005 25
21 Appearances 2 Derry Millar ) Commission Counsel 3 Susan Vella ) (np) 4 Donald Worme, Q. C ) (np) 5 Katherine Hensel ) (np) 6 Megan Ferrier ) (np) 7 Murray Klippenstein ) The Estate of Dudley 8 Vilko Zbogar ) (np) George and George 9 Andrew Orkin ) (np) Family Group 10 Basil Alexander ) 11 12 Peter Rosenthal ) (np) Aazhoodena and George 13 Jackie Esmonde ) Family Group 14 15 Anthony Ross ) Residents of 16 Cameron Neil ) (np) Aazhoodena (Army Camp) 17 Kevin Scullion ) 18 William Henderson ) (np) Kettle Point & Stony 19 Jonathon George ) (np) Point First Nation 20 Colleen Johnson ) 21 22 Kim Twohig ) Government of Ontario 23 Walter Myrka ) (np) 24 Susan Freeborn ) (np) 25 Michelle Pong ) (np)
31 APPEARANCES (cont'd) 2 Janet Clermont ) Municipality of 3 David Nash ) (np) Lambton Shores 4 Nora Simpson ) (np) Student-at-law 5 6 Peter Downard ) The Honourable Michael 7 Bill Hourigan ) (np) Harris 8 Jennifer McAleer ) 9 10 Ian Smith ) (np) Robert Runciman 11 Alice Mrozek ) 12 13 Harvey Stosberg ) (np) Charles Harnick 14 Jacqueline Horvat ) 15 16 Douglas Sulman, Q.C. ) (np) Marcel Beaubien 17 Mary Jane Moynahan )(np) 18 Dave Jacklin ) (np) 19 Trevor Hinnegan ) 20 21 Mark Sandler ) (np) Ontario Provincial 22 Andrea Tuck-Jackson ) Ontario Provincial Police 23 Leslie Kaufman ) (np) 24 25
41 APPEARANCES (cont'd) 2 Ian Roland ) (np) Ontario Provincial 3 Karen Jones ) (np) Police Association & 4 Debra Newell ) (np) K. Deane 5 Ian McGilp ) 6 Annie Leeks ) (np) 7 Jennifer Gleitman ) (np) 8 Robyn Trask ) (np) 9 10 Julian Falconer ) Aboriginal Legal 11 Brian Eyolfson ) (np) Services of Toronto 12 Kimberly Murray ) (np) 13 Julian Roy ) (np) 14 Clem Nabigon ) (np) 15 Adriel Weaver ) (np) Student-at-Law 16 17 Al J.C. O'Marra ) (np) Office of the Chief 18 Robert Ash, Q.C. ) (np) Coroner 19 20 William Horton ) Chiefs of Ontario 21 Matthew Horner ) 22 Kathleen Lickers ) (np) 23 24 25
51 APPEARANCES (cont'd) 2 Mark Fredrick ) (np) Christopher Hodgson 3 Craig Mills ) (np) 4 Megan Mackey ) 5 Erin Tully ) (np) 6 Peter Lauwers ) (np) 7 8 David Roebuck ) (np) Debbie Hutton 9 Anna Perschy ) 10 Melissa Panjer ) 11 Adam Goodman ) (np) 12 13 Tanya Pagliaroli ) (np) Jeff Bangs 14 15 16 17 18 19 20 21 22 23 24 25
61 TABLE OF CONTENTS 2 PAGE NO. 3 List of Exhibits 7 4 Opening comments 9 5 6 LARRY TAMAN, Affirmed 7 Examination-In-Chief by Mr. Derry Millar 15 8 9 10 11 12 13 14 Certificate of Transcript 231 15 16 17 18 19 20 21 22 23 24 25
71 EXHIBITS 2 No. Description Page 3 P-936 Curriculum Vitae of Larry Taman. 16 4 P-937 Document Number 3001720. Memo to 5 Larry Taman Dated August 04/'95 from 6 Michele Fordyce with similar earlier 7 version of PowerPoint slide presentation 59 8 for August 11 meeting, August 10/'95. 9 P-938 Document Number 3001345. ONAS 10 information note for the Honourable 11 Charles Harnick re. Camp Ipperwash 12 Land, July 31/'95. 68 13 P-939 Document Number 1003513. Fax message 14 from Julie Jai to David Moran attaching 15 letter from Marcel Beaubien to Charles 16 Harnick, August 10/'95. 71 17 P-940 Document Number 1012540. Handwritten 18 notes of Larry Taman from September 6th 19 t o S e p t e m b e r 1 5 t h , 1 9 9 5 . 142 20 P-941 Document Number 1001478. Handwritten fax 21 sheet addressed to Larry Taman from Crown 22 Attorney's Office, County of Lambton, 23 September 07/'95. 159 24 P-942 Document Number 1012359. Draft background 25 note for Larry Taman, September 07/'95. 169
81 LIST OF EXHIBITS (cont'd) 2 Exhibit No. Description Page No. 3 P-943 Document Number 3001652. Criminal 4 and Civil proceedings memo to 5 terminate the occupation of Ipperwash 6 Provincial Park by the Stoney Pointers, 7 September 05/06 1995. 170 8 P-944 Document Number 2000477. Memo to 9 Larry Taman from Yan Lazor and attached 10 bundle of materials re. discussion, 11 September 20/'95. 202 12 P-945 Document Number 3001212. Signed letter 13 from Larry Taman to Scott Serson 14 September 29/'95. 203 15 P-946 Document Number 1000952. Letter to Larry 16 Taman from Scott Serson October 13/'95 205 17 P-947 Document Number 1003825. Letter from 18 Scott Serson to Ron Vrancart cc'd to 19 Larry Taman, May 01/'96 206 20 P-948 Document Number 3000451. Fax package 21 from Larry Taman to Yan Lazar re. Indian 22 burial grounds Ipperwash, September 23 13/'95. 208 24 25
91 LIST OF EXHIBITS (cont'd) 2 Exhibit No. Description Page No. 3 P-949 Document Number 1012083. ONAS 4 briefing note for Larry Taman re. 5 Evaluation of Government response 6 to Ipperwash situation, October 7 11/'95. 209 8 P-950 Memo to Larry Taman from Ron Vrancart 9 re. Ipperwash and Pinery Provincial 10 Parks, March 27/'96, April 01/'96. 213 11 P-951 Memo to Ron Vrancart from Larry Taman re. 12 Ipperwash and Pinery Provincial Parks 13 June 14/'96. 215 14 15 16 17 18 19 20 21 22 23 24 25
101 --- Upon commencing at 10:30 a.m. 2 3 THE REGISTRAR: This Public Inquiry is 4 now in session, the Honourable Mr. Justice Linden 5 presiding. Please be seated. 6 COMMISSIONER SIDNEY LINDEN: Good 7 morning. 8 MR. DERRY MILLAR: Good morning, 9 Commissioner. 10 COMMISSIONER SIDNEY LINDEN: Good 11 morning, everyone. 12 MR. DERRY MILLAR: Before we begin I 13 wanted to just make a few comments about the issue of 14 privilege. 15 Some of the parties have requested -- 16 asked questions with respect to the issue of privilege, 17 particularly Mr. Horton on behalf of the Chiefs of 18 Ontario. 19 And I wanted to simply report that 20 Commission Counsel has now reviewed all of the documents 21 in their unredacted form that the Province of Ontario 22 believed are relevant to the mandate of the Commission 23 and over which privilege had been claimed by the 24 Province. 25 The two (2) categories of privilege which
111 have been claimed are solicitor and client including 2 attorney work product and public interest immunity. 3 During the course of this review, Commission Counsel was 4 alert to the fact that the Crown has waived any privilege 5 it may have over legal advice given between September 4 6 and 6, 1995, relative to the Ipperwash matter. 7 As well, where there has been disclosure 8 of documents which would otherwise have been privileged 9 the Crown has now advised that it will accept that any 10 privilege which could have been asserted in the documents 11 has now been waived. 12 As well, we were keenly alert to the 13 possibility that the express waivers may lead to further 14 unintended deemed waivers consistent with the principles 15 expressed by certain counsel at the hearings. 16 With this all in mind the -- Commission 17 Counsel has determined that in all but a very few cases 18 privilege is properly asserted and has not been waived in 19 the case of the very few documents. We continue to be 20 engaged in discussions which we expect to conclude over 21 the next couple of weeks with respect to this issue. 22 In the event that we are unable to reach a 23 resolution we anticipate that the Province will seek a 24 ruling from the Commissioner as provided for by the 25 Inquiry's rules.
121 That said, we can indicate that there are 2 no Cabinet minutes or notes, formal or informal, of any 3 of the former Ministers or the Premier from whom we will 4 be hearing over the ensuing weeks. We are specifically 5 advised by the Province and by the Ministers' own counsel 6 that there are no such documents. 7 In other words, this is not a matter of 8 there being in existence documents over which a privilege 9 has been asserted. We are confident that we have now 10 reviewed every relevant document over which privilege has 11 been asserted. 12 We are also advised by Counsel for the 13 Province that privilege has not been claimed over any of 14 the communications which occurred within the Government, 15 political and the bureaucracy, between September 4th and 16 6th, 1995. As such we do not anticipate any objections 17 relating to those communications on the basis of 18 privilege. Should such objections arise we will respond 19 as appropriate. 20 Counsel had advised however that the 21 Government is asserting privilege over Tim McCabe's 22 handwritten notes reflecting his preparation for the 23 various court appearances on the 7th, 8th and 11th 24 including his draft oral submissions. 25 In our view since we have the transcripts
131 of Mr. McCabe's oral submissions in the database for the 2 September 7th and 8th appearances and the fact that a 3 very brief submission was made withdrawing application 4 for an injunction on September 11th, we do not believe 5 these records to be necessary to the Inquiry. 6 Counsel -- Crown Counsel has further 7 advised that privileges asserted with respect to certain 8 electronic files of Elizabeth Christie which are 9 memorandum to Tim McCabe providing a review of case law 10 and memorandum prepared in the course of the George and 11 Harris litigation. 12 All of these documents post date September 13 11, 1995 and in our review -- view are not relevant. 14 Furthermore, Counsel for the former Premier and his 15 ministers who are scheduled to testify have advised 16 during the course of the Hearings that there are no 17 objections to the Crown waiving claims of public interest 18 immunity. 19 Further production of documents as 20 required will be provided shortly. However, we do not 21 believe that they will impede full and proper cross- 22 examination of the upcoming witnesses. If we are 23 mistaken in our belief we invite advise us and to request 24 a recalling of witnesses if necessary. 25 COMMISSIONER SIDNEY LINDEN: Thank
141 you, Mr. Millar. 2 Yes, Mr. Horton...? 3 MR. BILL HORTON: Commissioner, I would 4 like to thank Mr. Millar for that statement. It's very 5 much appreciated. I would like to say that it is a much 6 more substantive statement than I was anticipating and 7 much more detailed and -- and that's good in a way. 8 But, I will also have to consider that 9 then and take instructions with respect to -- with 10 respect to it. But I do thank Mr. Millar for bringing us 11 up to date. Thank you, Commissioner. 12 COMMISSIONER SIDNEY LINDEN: Thank you, 13 Mr. Horton. 14 MR. DERRY MILLAR: Thank you, Mr. Horton. 15 Mr. Horton, as always, if you have any questions that we 16 can try to resolve, I would like to do that. 17 Commissioner, our next witness is Mr. 18 Larry Taman. 19 COMMISSIONER SIDNEY LINDEN: Yes. I see 20 Mr. Taman. 21 THE REGISTRAR: Good morning, Mr. Taman. 22 COMMISSIONER SIDNEY LINDEN: Good 23 morning, Mr. Taman. 24 THE REGISTRAR: Do you prefer to swear on 25 the Bible or affirm, sir?
151 THE WITNESS: I prefer to affirm please. 2 THE REGISTRAR: Very good. Could you 3 state your name in full please, for the record? 4 THE WITNESS: My name is Larry Taman. 5 THE REGISTRAR: Thank you. 6 7 LARRY TAMAN, Affirmed 8 9 EXAMINATION-IN-CHIEF BY MR. DERRY MILLAR: 10 Q: Mr. Taman, in the group of documents 11 that are on -- to your left, there's a bundle of 12 documents and the last document on the inside of the -- 13 inside of the binder should be a CV. 14 A: Yes, thank you. 15 Q: And is that a curriculum vitae of 16 you? 17 A: Yes, it is. 18 Q: And I would ask that this be marked 19 as the next exhibit. And with respect to the -- I think 20 it's 21 P-736, Commissioner. 22 THE REGISTRAR: P-936. 23 MR. DERRY MILLAR: I mean 936. I'm a 24 little bit behind. 25
161 --- EXHIBIT NO. P-936: Curriculum Vitae of Larry 2 Taman. 3 4 CONTINUED BY MR. DERRY MILLAR: 5 Q: But, on the last page I would ask 6 that the public copy black -- white-out, the addresses 7 and telephone numbers and e-mail addresses of -- of Mr. 8 Taman. 9 10 (BRIEF PAUSE) 11 12 Q: Now, Mr. Taman, I understand you were 13 called to the -- I'll step back. You graduated from 14 Osgoode Hall Law School in 1971? 15 A: Yes. 16 Q: And for a year in 1971 to '72 you 17 were a law clerk to Mr. Justice Laskin at the Supreme 18 Court of Canada? 19 A: I was. 20 Q: You then taught for a year at the 21 University of Warwick in England? 22 A: Yes. 23 Q: And then were Asso -- Associate 24 Professor of Law at Osgoode Hall Law School from 1973 to 25 1981?
171 A: Yeah. 2 Q: And during that period of time, from 3 1976 to 1979, you were Associate Dean? 4 A: Yes. 5 Q: And for the period of 1981 to 1994 6 you were associated with two (2) firms, McMillan Binch in 7 Toronto and Tory, Tory in Toronto? 8 A: I was a partner in those firms, yes. 9 Q: In those two (2) firms. And what 10 year were you called to the Bar of Ontario? 11 A: 1976. 12 Q: 1976. And I understand that during 13 the period of time that you were a partner at McMillan 14 Binch and subsequently Tory Tory you were from time to 15 time on a leave of absence from private practise and 16 engaged with the Public Service of Ontario? 17 A: Yes, I was the Assistant Deputy 18 Minister for Constitutional Law while I was at McMillan 19 Binch. And then later I was Special Legal Advisor to 20 Premier Rae during the constitutional talks in 21 Charlottetown. 22 Q: Okay. So, from 1987 to 1990 while 23 you were at McMillan Binch you were Assistant Deputy 24 Minister for Constitutional Law and Policy? 25 A: Yes.
181 Q: And the minister that you reported to 2 in the Ministry of the Attorney General was Mr. Ian 3 Scott? 4 A: Yes. 5 Q: And then in 1992 you were a -- as you 6 said during the period of time you were with the Tory 7 Tory you were legal counsel to the Premier and -- with 8 respect to the Charlottetown Accord? 9 A: Yes. 10 Q: And I take it that was 1991 or 1992? 11 A: Yes. 12 Q: And the premier at the time was 13 Premier Bob Rae? 14 A: Yes, that's right. 15 Q: And then in 1994 in the -- in 1994 16 you were appointed Deputy Minister of -- in -- Deputy 17 Attorney General? 18 A: Yes. 19 Q: And when in 1994? 20 A: In April of 1994. 21 Q: April of 1994. And you served as 22 Deputy Attorney General until May of 1997? 23 A: Yes. 24 Q: And as I understand it the Attorney 25 General at the time of your appointment was Ms. Marion
191 Boyd? 2 A: Yeah. 3 Q: And you served Ms. Marion Boyd as her 4 Deputy Minister from the time you were appointed until 5 the change of government in June of 1995? 6 A: That's right. 7 Q: And the Attorney General that you 8 served as Deputy Minister from June 26th, 1995, until you 9 left in May of 1997 was Mr. Charles Harnick? 10 A: Yes, sir. 11 Q: And as Deputy Attorney General you 12 were the public service head of the Ministry of the 13 Attorney General; is that correct? 14 A: Yes, that's right. 15 Q: So, you were the senior civil servant 16 within the Ministry? 17 A: Right. 18 Q: And as I understand it at the time 19 there were approximately seven thousand (7,000) employees 20 across the Province? 21 A: Yeah. 22 Q: And you reported to not only your 23 Minister but the Premier and the Cabinet secretary? 24 A: Yes, that was the practise. 25 Q: That was the practise. And as Deputy
201 Minister you were responsible for all criminal 2 prosecutions, legal policy, civil, commercial, and 3 constitutional law advice to all Ministries of the 4 Government, the administration of all levels of the Court 5 in the Province, Social Justice programs including Legal 6 Aid, Public Guardian and Trustee, and the Children's 7 Lawyer? 8 A: Yeah. 9 Q: In effect, the lawyers in the 10 Ministry of the Attorney General act as lawyers to the 11 Government in the various ministries in the Government of 12 Ontario? 13 A: Yes, that's right. 14 Q: And often lawyers are in effect 15 placed in the Ministry, for example the Solicitor 16 General's ministry, the Ministry of Natural Resources. 17 And while they worked within the ministries they're still 18 employees of the Ministry of the Attorney General? 19 A: That's the usual practise. 20 Q: And as well, as I understand it, you 21 were responsible for the Office of Legislative Council. 22 And Legislative Council does the drafting, legislative 23 drafting, for the Government -- 24 A: Yes, that's right. 25 Q: -- and for Private Members Bills, if
211 there are Private Members Bills coming forward? 2 A: And there are. 3 Q: And then as of June 26th, 1995, you 4 became responsible for the Ontario Native Affairs 5 Secretariat; is that -- 6 A: Yes. 7 Q: -- correct? 8 And as deputy Attorney General, prior to 9 June 26th, 1995, you were not responsible for the Ontario 10 Native Affairs Secretariat? 11 A: No. 12 Q: Now, can you tell us and describe 13 your understanding and I'm really taking you back to 14 1995, of the role of the Attorney General in general and 15 in Ontario in particular? 16 Can you help the Commissioner and the 17 public understanding the role of the Attorney General? 18 A: The Attorney General is the chief law 19 officer of the Crown. And under the terms of the 20 Ministry of the Attorney General Act, his primary 21 responsibility is to see to it that the government of the 22 Province is conducted in accordance with law. 23 Q: Yes. And he's also a member of 24 Cabinet in -- 25 A: Yes.
221 Q: -- Ontario? 2 And is this true in other jurisdictions? 3 A: It's not a universal practice in 4 common law or Commonwealth jurisdictions. In some 5 places, the Attorney General is a member of Cabinet and 6 in other places the Attorney General is not. 7 Q: In Canada, the practice has been that 8 the Attorney General is a member of Cabinet? 9 A: Yes, that's been the broad practice 10 in Canada. 11 Q: And both Federally and provincially 12 throughout the country? 13 A: Yes, that's right. 14 Q: And what are the ramifications and 15 the significance, if any, of the Attorney General being a 16 member of Cabinet? 17 A: On the one hand, it puts the Attorney 18 General close to the business of government, so that he 19 can do his job of being chief legal adviser. 20 On the other hand, it puts the Attorney 21 General in the heart of the politics of government. And 22 it would be a little like, I suppose, an in-house legal 23 counsel that part of you is trying to give independent 24 legal advice, part of you is involved in the business of 25 the organization.
231 Q: And perhaps you could explain a bit 2 more as to what you mean by the chief legal advisor to 3 the Crown or chief law officer of the Crown. 4 A: The idea of the chief law officer of 5 the Crown is a historic one and it describes the role 6 that's existed historically. It's been assigned to 7 various officers in various times. Now, it's assigned to 8 Attorneys General to be the principle overseer of all of 9 the legal dimensions of the work of government. 10 Q: Okay. And as a member of Cabinet, as 11 you indicated, the Attorney General would be involved in 12 political issues. 13 What, in your view, if any, is the effect 14 of that on the work of an -- of a Attorney General, and 15 with the Attorney General of the day back in 1995? 16 A: Well, I think it -- it -- on the one 17 hand, I think Attorney Generals have to be careful to 18 keep out of the Cabinet room certain matters on which 19 they are, by law, the decision maker such as, for 20 example, in criminal prosecution. 21 On the other hand, I think it's a practice 22 that we are generally used to and it's one that permits 23 the Attorney General to keep a close eye on what's going 24 on in most parts of government. And in that respect is, 25 I think, a positive thing.
241 A very strong Attorney General like Ian 2 Scott would know what was going on in every Ministry and 3 would have a great deal to say about how Ministries did 4 their work. 5 Other Ministers would do the job 6 differently. 7 Q: And so that that part of the role of 8 the Attorney General that is, by law, exclusively within 9 the Attorney General's purview is, as I think you've 10 said, prosecution and law enforcement? 11 A: I think particularly issues of -- of 12 prosecution of criminal case are issues where it's 13 clearly understood that the Attorney General has to act 14 independently and without advise or guidance from 15 Cabinet. 16 Q: Okay. And with respect to legal 17 decisions such as the conduct of civil litigation, is 18 that something that the Attorney General should make 19 decisions alone, or is that something that Cabinet should 20 make decisions or other members of the Government make 21 decisions with respect -- 22 A: In practice, lots of advice in 23 connection with civil matters is -- is taken by the 24 Attorney General or even by members of the Attorney 25 General's staff on their own. But, in
251 issues of high visibility it is fully accepted that the 2 Government has a big stake in -- in a case of civil 3 litigation, then it's appropriate for the Government 4 through the Cabinet to be involved in making decisions 5 about such a piece of civil litigation. 6 Q: Putting it into the analogy of -- of 7 a private practitioner, the Government is in effect the 8 client; is that not correct? 9 A: I think that's right and I think as 10 in the case of a private practitioner, you could make a 11 whole list of issues that you'd feel free to make 12 decisions on without consulting your client, but part of 13 your job is to know when you have to consult your client. 14 Q: And using the same analogy in a 15 corporation, the directing mind of the corporation is the 16 board of directors, and in government the directing mind 17 is Cabinet? 18 A: I think that -- 19 Q: Is that a fair analogy? 20 A: I think that's right. I think 21 subject to the same qualification that you might give in 22 the case of a private practitioner which is that all of 23 this takes place within a framework of ethical and legal 24 obligations. 25 And so the Attorney General might have
261 legal obligations to -- and ethical obligations that he 2 or she would have to adhere to in the context of -- that 3 we're talking about. 4 Q: Sure. Just as -- as you point out a 5 lawyer in private practice would? 6 A: Because the overriding statutory 7 obligation is to ensure governance in accordance with 8 law. 9 Q: And -- 10 A: And if an Attorney General ever 11 thought that the -- the Government was not acting in 12 accordance with law, then I think would be bound by the 13 statute to take measures. 14 Q: With respect to that issue. So, that 15 the only area that it's -- is exclusively within the 16 purview of the Attorney General is with respect to 17 prosecutions? 18 A: I think that's basically right. I -- 19 I think there may be -- there may be one (1) or two (2) 20 other areas that aren't coming to mind where the Attorney 21 General is, you know, what the law will call a persona 22 designata who -- who makes a decision. 23 But, the -- the big picture is that when 24 we talk about the independence of the Attorney General 25 we're normally talking about certain decisions that an
271 Attorney General takes in the criminal process; whether 2 to stay a charge, whether to nolo pros a prosecution and 3 so on. 4 Q: Okay. And just for -- to explain 5 that a little bit more, when you -- the two (2) matters 6 you just raised with respect to prosecutions, what did 7 you mean by that? 8 A: Well, I meant that the Criminal Code 9 for example gives -- gives the Attorney General of a 10 province the authority to withdraw a prosecution once 11 it's begun. And that would be an authority that rests 12 with the Attorney General and no one else. 13 Q: And as the chief law officer of the 14 Crown, the Attorney General and his or her employees 15 provide legal advice to the Government based on the 16 Government's requirements; is that correct? 17 A: Yes. 18 Q: And the Government just like any 19 other client, can accept or reject that advice? 20 A: I think in principle, the -- the 21 Government can accept or -- or reject the advice. I 22 think the practical reality is that the Attorney General 23 advice is particularly important because he or she is the 24 Attorney General and that's the normal way that decisions 25 get taken.
281 But, it wouldn't be uncommon, for example, 2 for a minister to say, I don't particularly like the 3 Attorney General's advice and I would like to retain 4 private counsel. And then you might have private counsel 5 giving advice on a matter to -- to a minister of the 6 Crown. 7 Q: Okay. And in September of 1995 the 8 Attorney General, Mr. Harnick, had been an Attorney 9 General just for a little over two (2) months; is that 10 correct? 11 A: Yes. 12 Q: And I take it that, as we will come 13 to, that any minister or -- and in this case the Attorney 14 General has to learn a lot in a very short time? 15 A: Yes. 16 Q: And that process of education was 17 going on over the summer of 1995? 18 A: That's right. 19 Q: And with respect to Section 35 of the 20 Constitution Act whose responsibility within government 21 was it back in 1995 for advising the Government regarding 22 the Government's obligations under Section 35? 23 A: It was the obligation of the Ministry 24 of the Attorney General in collaboration with legal 25 advisors at the Ontario Native Affairs Secretariat.
291 Q: And is it fair to say that it's part 2 of the role of the members -- the staff at the Ministry 3 of the Attorney General and at ONAS, to educate the 4 Government or new ministers, their staff with respect to 5 their obligations? 6 A: Yes, that's right. 7 Q: Now, stepping down from the Minister 8 to you as Deputy Attorney General for the years that you 9 were can you describe a bit and a little greater detail 10 the role of the Deputy Attorney General? 11 A: I think reduced to its simplest the - 12 - the -- the roles might be described in this way that 13 it's the business of the Minister to set the policy of 14 the Ministry, it's the business of the Deputy to 15 implement it. And so everything that has to do with 16 carrying out the Government policy is the responsibility 17 of the -- of the -- of the Deputy. 18 So, that involved everything from hiring 19 the people to -- to supervising them and assigning their 20 salaries to building the buildings to implementing the 21 programs. 22 Q: And you, as Deputy Attorney General 23 from 1994 to 1997, you did that through you staff? 24 A: That's right. 25 Q: And I take it from time to time you
301 would also advise the Attorney General with respect to 2 some of the policy issues? 3 A: Yes, absolutely. 4 Q: And how and from whom do -- did you 5 when you were Deputy Attorney General receive your 6 instructions or directions from government? 7 How did that work? 8 A: In the normal course we would have 9 regular briefings with the Minister. Typically I would 10 meet with the Minister at a regular weekly meeting. But, 11 our offices were right across the hall from each other so 12 that he would come into my office, I would go into his 13 office, we would discuss things and resolve what his 14 instruction was going to be. 15 Q: And what was the distinction between 16 those matters from which you would take instruction and 17 report to the Attorney General, those matters that you 18 would take instruction from or report to the Cabinet 19 Office and I take -- I believe in 1995 the head of the 20 Cabinet Office was Rita Burak? 21 A: Yes, that's right. 22 Q: And those situations where you would 23 receive instructions from or take direction -- and report 24 to the Premier. So I've got three (3) there; the 25 Attorney General, the Cabinet Office and the Premier?
311 A: I -- I think the basic picture is 2 that the Deputy Attorney -- the Deputy Attorney General 3 takes his instructions from the Attorney General and from 4 the Premier. The Cabinet Office report is a -- a kind of 5 formal report but the Cabinet Secretary would never 6 contradict an instruction that a deputy had received from 7 a minister. 8 So, the convention is that a Deputy 9 Minister reports to both a minister and to the Premier 10 and in the normal course you'd take your instructions 11 from the -- from the Minister. 12 Q: And that would apply not only to the 13 Ministry of the Attorney General, but back in 1995 all of 14 the Ministries of government? 15 A: That would apply to all Ministries of 16 government. 17 Q: And that applied in the government of 18 Mr. Rae and the government of Mr. Peterson? 19 A: Yes. If I might just add one (1) 20 point, I think the Ministry of the Attorney General, like 21 all Ministries, has its own culture. 22 One of the particular features of the 23 culture of the Ministry of the Attorney General comes 24 from the fact that the Attorney General has to take legal 25 decisions and for that purpose is advised by a legal
321 staff. 2 And so there's a lot more interaction in 3 the Ministry of the Attorney General between the Minister 4 and lower level staff, because they're the ones who are 5 actually handling some legal problem. 6 And I think that's, from time to time, an 7 important feature of life at the Ministry of the Attorney 8 General. In most Ministries, it would be very rare for 9 anyone below the level of an Assistant Deputy Minister to 10 ever see the Minister. 11 It would not be rare in -- in the Ministry 12 of the Attorney General because if you, for example, were 13 a Crown Attorney responsible for a case, you wanted the 14 Attorney General to sign an Order preferring an 15 indictment, the typical practice would be you'd go see 16 the Attorney General. 17 Q: So, that when you were a deputy 18 Attorney General not all discussions and approaches 19 between civil servants and the Minister took place 20 through you? 21 A: Right. 22 Q: And did that, from your experience -- 23 was the experience in the summer of 1995 with the new 24 government similar to the experiences of others Attorney 25 General with -- for whom you served?
331 A: Yes. 2 Q: Now, the Deputy Ministers are, as I 3 understand it, when you report to the Premier do you go 4 through the Cabinet secretary? 5 How does that -- how did that work back in 6 1995, 1996 and prior? 7 A: Normally, a deputy wouldn't have much 8 -- much -- much contact directly with the Premier and -- 9 but it could happen that you'd be asked to go to the 10 Premier's office or asked to attend a Cabinet meeting. 11 That wouldn't necessarily be done through 12 the Cabinet secretary. 13 Q: Okay. But in the normal course, the 14 reports would be through the Cabinet secretary? 15 A: No, I don't -- 16 Q: No? 17 A: -- think so. 18 Q: And did Deputy Ministers meet 19 regularly with the Cabinet secretary? 20 A: Yes. 21 Q: And what was the purpose of that? 22 A: The purpose was to update each other 23 on big issues of government, usually on big government 24 reform projects and things like that. 25 Q: Okay.
341 A: But, normally not -- normally not on 2 the business of any particular Ministry. For example, at 3 around this time there was a big effort going on to 4 support the Government's policy of downsizing the 5 Ministries. 6 This was a big problem for all the Deputy 7 Ministers and so we met often to talk about whether we 8 could do this, how we could do this, how to coordinate 9 it, and so on. 10 Q: And -- 11 A: The Legal Aid plan was a matter of 12 particular interest at the time. 13 Q: And on the issue of the -- when you 14 were -- in 1995, you were assisted by Assistant Deputy 15 Ministers? 16 A: Yes. 17 Q: And can you recall who the Assistant 18 Deputy Ministers were in the summer of 1995? 19 A: I think I probably could. 20 Q: And who were they? 21 A: For Civil Law and Policy was Mark 22 Rosenberg, now Justice Rosenberg. For Courts was Heather 23 Cooper. For Criminal Justice was Michael Code. 24 Give me a hint. 25 Q: I think that --
351 A: And then -- and then ONAS, the 2 secretary of ONAS functioned in a manner similar to that 3 of an Assistant Deputy Minister. 4 Q: So that -- and at ONAS the acting 5 director of ONAS was Mr. Yan Lazor? 6 A: That's right. 7 Q: And although Mr. Lazor was not a 8 Deputy Minister, he functioned in a similar fashion? 9 A: Yes. 10 Q: So he would -- after you became 11 responsible for ONAS, Mr. Lazor reported for ONAS to you? 12 A: Yes. 13 Q: He didn't have to go through someone 14 else? 15 A: No. 16 Q: And as part of your role as the 17 Deputy eternal -- eternal gen -- Attorney General what 18 part did you play if any in protecting the Attorney 19 General's independence from political interference? 20 A: I think a big part of the job of any 21 Deputy Minister is to protect the Minister from all sorts 22 of things and probably each Ministry is different. In 23 the case of the Ministry of the Attorney General, the 24 Minister has certain functions which need to be carried 25 out without political input and one (1) of the jobs of
361 the Deputy is to make sure that it happens that way. 2 Q: And you've said that with respect to 3 the -- dealing with the -- the Attorney General, because 4 of the professional staff, would work directly with the 5 Attorney General from time to time. 6 Did you attempt to limit or constrain 7 direct contact between counsel in the Ministry of the 8 Attorney General and the Minister? 9 A: No. I think that if I understand the 10 question correctly, in the Ministry of the Attorney 11 General it was important for counsel to be able to brief 12 the Minister. What I did attempt to discourage was the 13 presence of political staff at briefings that dealt with 14 matters where political input was not important. 15 Q: And what do you mean by that? 16 A: Well, for example if -- if -- let's 17 suppose that there's an issue about whether or not some 18 criminal prosecution should be stayed, then in the normal 19 course you wouldn't expect political staff to be involved 20 in that decision. 21 Q: And so that you took steps to ensure 22 that political staff were not involved? 23 A: You advised the Minister that there 24 was no need for them to be there, that if they were there 25 there was a risk of confusion and that it would be better
371 for them not to be there. 2 Q: Okay. 3 A: But, as you know in so many things in 4 government there are political staff and there are 5 political staff, so, for example, there -- there were 6 political staff, I even see one (1) in this room, who 7 were famous for knowing a lot about this subject of -- of 8 particular matters. And -- and where everyone would 9 agree that, you know, this person understood his job and 10 -- and had valuable advice to give and the Minister 11 wanted to hear what -- what he had to say. 12 So you might find, you know, one (1) 13 Minister who -- who would very much value the advice of a 14 -- of a staff member. 15 Q: And -- 16 A: Because that staff member would know 17 that he was not to be giving partisan political advice on 18 some issue. 19 Q: And that was the -- the mischief that 20 one was trying to protect the Minister from, was partisan 21 political advice? 22 A: I think that's right. And -- and 23 maybe -- maybe it's just important to be clear here 24 that, I mean you've put it well if I may say so, the 25 mischief is partisan political advice. The mischief is
381 not the source of the advice and whether it comes from a 2 political person or -- or a civil servant the mischief is 3 partisan political advice. 4 Q: And what about, apart from committees 5 and we'll get to committees in a minute, when you were 6 Deputy Attorney General other -- under the government of 7 Mr. Rae or the government of Mr. Harris, was there any 8 protocols or understandings about the interplay between 9 political staff and civil servants in the Ministry of the 10 Attorney General? 11 A: Again I think it varied. As I said 12 before one (1) of the characteristics of the -- the 13 Ministry of the Attorney General is that there's quite a 14 lot of interaction between the Minister and, therefore, 15 the Minister's staff, and public service staffers at all 16 levels. That's not characteristic of all Ministries but 17 it tends to -- it tends to create a culture in which it's 18 not uncommon for a political staffer to go directly to a 19 director or a deputy director and say, What's going on 20 with respect this, that or the other thing? 21 In some Ministries there would be quite a 22 rigid discipline against that. In the Ministry of the 23 Attorney General there really was not. 24 Q: And that was partly because all of 25 the -- many of the civil servants within the Ministry
391 were lawyers? 2 A: I think in any organization in which 3 there are a thousand lawyers it's difficult to get people 4 to behave properly. 5 COMMISSIONER SIDNEY LINDEN: It's also 6 true of public inquiries. 7 8 CONTINUED BY MR. DERRY MILLAR: 9 Q: And you indicated that the identity 10 of a political staffer might matter and you've explained 11 a little bit about what you meant by that. 12 What else would you say about that, taking 13 us back to the summer of 1995? 14 A: Well I think the point -- the point 15 I'm trying to make is that when I was an Assistant Deputy 16 Minister, for example, under the Liberal Government there 17 were one (1) or two (2) people on Attorney General 18 Scott's staff who knew as much or more constitutional law 19 as anybody in the ministry. 20 And it would have been foolish for people 21 to say that -- that we don't want them involved in 22 discussions. Because all it would have led to was them 23 taking the public service advice, throwing it in the 24 garbage and doing what they wanted to. 25 So it seemed to be in everybody's interest
401 to take advantage of their expertise. On the other hand, 2 those people that I have in mind I think wouldn't have 3 dreamt of going down to the Criminal Law Office and 4 saying well how about prosecuting this person or how 5 about not prosecuting that person. 6 So I think it's in that sense that I say 7 that it was a more fluid situation in the Ministry of the 8 Attorney General that it might have been in some other 9 places. But some -- sometimes, as deputy, you'd get a 10 call from an ADM saying look, we've got people from the 11 minister's office down here everyday, we can't do our 12 job, would you do something about it. 13 And I'm like go to the minister and say 14 look, we're having a little trouble over in this corner, 15 maybe you could get your people to spend a little more 16 time in their own office. 17 Q: And was it something that occurred 18 from time to time, when the years that you spent in 19 government, that political aides would indicate that they 20 were speaking on behalf of their minister? 21 Did that happen from time to time? 22 A: I think it's a very common feature of 23 government for anybody who's ever worked there that 24 everybody claims the greatest possible authority they can 25 for their own opinions.
411 And so it would be a very common feature 2 of government for someone to tell you something and to 3 tell you that their director, their ADM, their deputy 4 minister, their minister, the Premier, depending on the 5 circumstances, wanted such and so to happen and for you 6 to find out subsequently that the person invoked had no 7 idea what this particular person was talking about at 8 all. 9 So it's kind of a way of speaking n 10 government. Everyone says, my boss wants this. 11 Q: And over time I take it you learn 12 that perhaps some do and some don't. 13 A: Yeah, I think over time you learn 14 that some do and some don't and over time you learn to 15 find out for yourself if it's important. 16 Q: And as the Deputy Attorney General, 17 if some political staffer said to you, the Premier wants 18 or the minister wants something to happen, what would you 19 do with respect to that? And I know it's in the 20 abstract, but with respect to that kind of a 21 communication. 22 A: If they said the Premier -- the 23 Premier would like to have green chairs in the boardroom, 24 I'd probably order green chairs. If they said the 25 Premier wants something real important to happen, I'd
421 probably say I need to talk to the Premier. 2 Q: So that with respect to those 3 important decisions, you would go to the source of the 4 person upon whom the political staffer's speaking? 5 A: Yeah. And -- and to be -- yes, 6 that's absolutely right. And to be clear, if -- if it 7 came from the Premier's office, what I would normally do 8 is I would normally go to the Minister and because it's 9 the Minister's job to deal with the Premier's office, not 10 mine. 11 Q: And can you recall, in the summer of 12 1995, prior to early September -- no, we'll come to early 13 September later, but the relationship between you as 14 Deputy Attorney General and your staff and political 15 staff of either the minister or of other ministers, what 16 was that relationship like in the summer of 1995, after 17 the new government was elected? 18 A: Well in the case of the Ministry of 19 the Attorney General, we -- we got off to a very good 20 start with the new government. We did a very extensive 21 briefing process, we did a lot of preparation for the 22 arrival of the Government. 23 My instructions to our staff were that we 24 needed to persuade them early that we wanted to work for 25 them; that I conceived to be our job and I conceived it
431 to be our job to -- to make them understand that we -- we 2 accepted that we were there to work for them. 3 And I think over the first several weeks 4 and months we did a really good job of that and I think 5 it was a relationship of trust and confidence that formed 6 very quickly, and that lasted. 7 Q: And is it fair to say that it -- the 8 public service, as you've put it, works for them -- the 9 public service works for the government of the day which, 10 in a democracy is elected by the citizens of, in this 11 case, the province of Ontario? 12 A: For me this is fundamental. The 13 system works on the basis that the people elect 14 governments, they pay through their taxes for public 15 officials to serve those elected governments and it's the 16 job of elected officials to serve government within a 17 framework of professional and legal responsibility. 18 Q: Okay. Now what, back in 1995, was 19 your understanding about the relationship between the 20 Solicitor General and the police and, in particular, the 21 Ontario Provincial Police? 22 A: My understanding was that the 23 relationship was fundamentally similar to the one I've 24 described in -- in other ministries, including the 25 Ministry of the Attorney General; that is to say, that
441 the Minister is responsible for policy for all parts of 2 the Ministry, including the Ontario Provincial Police. 3 The Ontario Provincial Police, by law at 4 that time, were plainly subject to ministerial authority. 5 The convention had developed that the Minister did not 6 interfere with the work of the police in prosecutorial 7 matters. And secondly that, in operational matters, the 8 Minister did not give operational direction. 9 The first of these, I think, was a legal 10 restriction that is quite strongly established in the 11 law. The second, I think, is really more a matter of 12 practical judgment. 13 If there's a police operation going on, 14 you can only have so many people in charge of it and the 15 practical rule that was followed, always, to the best of 16 my knowledge, was that a police operation on the ground 17 was run by police officers on the ground and the minister 18 didn't interfere. 19 Q: And what would you -- with respect to 20 the policy and operations, how would you define, if you 21 can, your understanding of the line between policy and 22 operations? 23 A: Well, I think policy has to do with 24 rules that are of general application. The Government 25 makes policy and says that, as a general matter, we will
451 strictly enforce speed limits in Ontario. And I think 2 that's a matter of policy and I think it's perfectly 3 appropriate for the Government to say that there's zero 4 tolerance of speeding in Ontario. 5 In my view, that's a government policy 6 decision not a policing decision. 7 I think that if there then is an issue of 8 how a given car chases a speeder down the road, I think 9 that's a policing matter. And I think everyone would 10 think that a Solicitor General had lost her mind if she 11 took to monitoring the police bands and telling chase 12 cars to go faster or go slower. 13 So I think it's generally, in lawyers' 14 terms, I guess you might say, it's -- it's the 15 distinction between a rule and the application of a rule. 16 Q: Okay. 17 A: The rule is policy, the application 18 of the rule is operations. But there's no bright line 19 between those two. There isn't for lawyers and -- and 20 there isn't in the policy and operations distinction in 21 government, either. 22 Q: And what do you mean by that? 23 A: I think there are many instances 24 where it's not perfectly clear whether some particular 25 action falls on the policy side or the operational side
461 of the law -- of the -- the rule. And I think in those 2 situations there has to be cooperation between the policy 3 people and the operational people. 4 Q: And as you've indicated that with 5 respect to the government makes policy, and you use the 6 example of speeders, are there other examples of policy 7 in relation to the police that you can think of today? 8 A: Well sure, I mean, I think for 9 example the Government decides -- I mean another example 10 might be to say the Government decides how much it will 11 spend on policing. It decides whether Ontario will have 12 three thousand (3,000) or four thousand (4,000) or five 13 thousand (5,000) OPP officers. But, it would not 14 normally decide and nobody would think it prudent for it 15 to decide how many police officers should be posted 16 outside this building if there were a demonstration. 17 So, I think that -- that would be another 18 example. 19 Q: Okay. Now turning to the Ontario 20 Native Affairs Secretariat on -- in June of 1995 the ONAS 21 was made part of the or reported to the -- the Attorney 22 General? 23 A: That's right. 24 Q: And prior to that, ONAS had reported 25 to a minister -- a separate -- a minister not of the
471 Attorney General? 2 A: That's right. 3 Q: And as I understand it, in June 1995 4 the -- Mr. Harnick was designated as the Minister 5 responsible for Native Affairs? 6 A: Yes. 7 Q: As had I believe Mr. Scott, at one 8 (1) time, was the Minister responsible for Native 9 Affairs? 10 A: Yes. 11 Q: And the -- prior to June 1995 had you 12 been involved in the operation of the Ontario Native 13 Affairs Secretariat? 14 A: No, but I'd had lots of involvement 15 in -- in First People's issues through my work as the -- 16 the -- the Assistant Deputy Minister for Constitutional 17 Law through my work on the Meech Lake Accord and 18 Charlottetown, but I had never had a formal role with 19 ONAS until I became the Deputy. 20 Q: So that you were well aware of many 21 of the issues facing First Nations people and the 22 government with respect to First Nations people, prior to 23 the -- June of 1995? 24 A: Certainly the legal issues. I knew 25 lots about legal issues, yeah.
481 Q: And the -- as Deputy Attorney General 2 you were -- you assumed the responsibility for management 3 of ONAS and leadership upon the new government taking 4 office on June 26th, 1995? 5 A: Yes. 6 Q: And at the time there was no 7 secretary. Yan Lazor, as we said earlier, was the Acting 8 Director and reported to you? 9 A: That's right. 10 Q: And now what about briefing the 11 government? I think that you spoke briefly about that 12 earlier. 13 What -- had plans been made, prior to the 14 election of the new government in June of 1995, with 15 respect to briefing the new government? 16 A: Yes. 17 Q: Can you tell us a little bit more 18 about that, please? 19 A: When the -- when the NDP Government 20 came in, there had been a feeling that the Public Service 21 had been somewhat resistance to their policies and to 22 their taking charge of the government. I thought that 23 this was wrong and that the government shouldn't be in 24 any doubt about the willingness of the Public Service to 25 serve.
491 And I had conversations with the Cabinet 2 secretary, the then Cabinet secretary, and with my 3 minister Marion Boyd and it was agreed that there should 4 be an energetic effort to prepare for the arrival of the 5 new government and to accelerate the process of it 6 settling into -- to its -- its work. 7 And we did this by preparing extensive 8 briefing books that we then sat down and reviewed with 9 the Minister and the Minister's staff when they came into 10 office. 11 Q: And -- 12 A: We didn't do that for ONAS because we 13 didn't know until after the Cabinet assignments were made 14 that ONAS would be part of our work. But, we then 15 started a similar process to prepare the Minister in 16 connection with the First People's issues. 17 Q: And did the work, with respect to 18 preparing of the robust briefings, start prior to the 19 election in June of 1995? 20 A: Yes. 21 Q: And it was started at a time when no 22 one knew who the new government might be, if in fact 23 there was a new government? 24 A: That's right. 25 Q: And the work was done to be prepared
501 for what the people might decide on election day? 2 A: Right. 3 Q: Now, if I could take you to Tab 1 of 4 the black book in front of you, that is the Volume I. 5 And this is a copy of Exhibit P-643 which is Inquiry 6 Document 1007239, the Statement of Political Relationship 7 Guidelines, Questions and Answers. 8 And at the back of the -- the document 9 there is the actual Statement of -- in the original 10 there's the actual Statement of Political Relationship. 11 It's about five (5) pages in from -- at the back of -- 12 the end of the document it's page 35663. 13 And prior to June 26th, 1995, were you 14 aware of the Statement of Political Relationship that had 15 been signed by the Government of Mr. Rae? 16 A: Yes. 17 Q: And how did you -- had you become 18 aware of that document? 19 A: Because I was involved -- the 20 document was prepared, in part, in earlier versions and 21 then later for events arising out of, you know, the 22 constitutional negotiations which were -- which were 23 still going on. 24 And I was involved in those negotiations, 25 although not responsible for the -- the First Peoples'
511 part of it, but I was generally involved in all of those 2 discussions and so I had some familiarity with it. 3 Q: And the document was created as part 4 of those constitutional discussions back in 1991/1992? 5 A: Yea. Certainly earlier versions of 6 it were, yeah. 7 Q: And what, if anything, did the 8 Statement of Political Relationship play when you became 9 responsible for Ontario Native Affairs Secretariat? 10 A: I think it would be fair to say that 11 it was the starting point of the background for our work 12 with the new government. It was, as with any new 13 government, necessary for them to deal with what had gone 14 before. 15 And this was clearly an important element 16 of what had gone before. 17 Q: And what, if anything, happened with 18 this document under the new government? 19 A: I don't recall exactly what happened 20 with the document itself. But, I mean, I think it would 21 be fair to say that -- that the new government gave 22 indications that they might want to pursue different 23 policies in connection with some of the First Peoples' 24 issues. 25 Q: And if I could take you to Tab 2;
521 it's a copy of Exhibit P-922. And this is a document 2 that's been identified as the Common Sense Revolution; 3 the document used by Mr. Harris with respect to the 4 election of 1995. 5 And have -- prior to June 26th, 1995, have 6 you seen a copy of the actual Common Sense Revolution? 7 A: I'm uncertain whether I've actually 8 seen a copy of it. But I expect as with most Ontarians 9 I'd seen a copy at some point, either in this form or on 10 a billboard. 11 Q: And after the election of the new 12 government, did you see -- receive a copy of the Common 13 Sense Revolution as part of your instructions from the 14 new government? 15 A: I think not really as part of the -- 16 the instructions. I think -- I think it would be fair to 17 say that the Government wanted to make sure that the -- 18 that the public servants understood the platform that 19 they campaigned on and we wanted to make we understood it 20 too. 21 So, I think certainly, all kidding aside, 22 everybody was familiar with what the campaign platform 23 had been. 24 Q: Okay. And with respect to the 25 Aboriginal issues and the First Nations, can you recall
531 what the platform was back in 1995, if any? 2 A: No, I can't honestly recall. 3 Q: And at Tab 3, there's a document. 4 It's Exhibit P-924, Bringing Commonsense to Community 5 Development. 6 Have you ever seen this document before 7 getting ready for your appearance here today? 8 A: I -- I had a quick look at the 9 document in the material, but I -- I don't recall having 10 seen it before then. 11 Q: And the document at Tab 4, it's 12 Exhibit P-925, A Voice for the North: Report of the Mike 13 Harris Northern Focus Tour, January 1995. 14 And prior to getting ready to appear at 15 the Inquiry, had you seen this document before? 16 A: I don't recall. 17 Q: And with respect to the briefings, 18 there's a copy of Exhibit P-704, at Tab 5 of your book. 19 It's Inquiry Document 3000 -- 3001718, and had you seen 20 this document prior to that or about June 29th, 1995, or 21 the summer of 1995? 22 A: Yes, I believe I did see this 23 document and that I had asked for it to be prepared. 24 Q: And this was a document prepared to 25 brief the new Minister with respect to the Ontario Native
541 Affairs Secretariat? 2 A: Yes. 3 Q: And I note on page 2, there's, at the 4 bottom of the page, there's a paragraph: 5 "Ontario's relationships with 6 Aboriginal peoples are shaped by the 7 special status of Aboriginal peoples 8 conferred by the Constitution. Ontario 9 recognizes First Nations as an order of 10 government. 11 Ontario -- ONAS liaises with Aboriginal 12 organizations on a wide range of 13 initiatives and issues and must balance 14 the desire of First Nations to be 15 recognized as individual governments 16 with the defec -- efficiencies of 17 working with the provincial or 18 territorial groups representing a 19 number of First Nations." 20 And that was a statement of what ONAS was 21 doing back at the end of June 1995? 22 A: Yes. 23 Q: And did you attend the -- before I go 24 there I'll take you to Tab 6. This is what has been 25 marked as Exhibit P-303. It's a briefing note for Mr.
551 Harnick dated July 10, 1995 with respect to procedures 2 for dealing with Aboriginal emergencies. 3 And, Mr. Taman, at Tab 7 is a copy of 4 Exhibit P-498, Inquiry Document 1012232 which is the 5 appendix to Exhibit P-303. 6 And in the summer of 1995 did you see 7 these documents? 8 A: I think I probably did see these 9 documents. 10 Q: And did you participate in the 11 briefing in July of 1995 of the Minister with respect to 12 ONAS issues? 13 A: Sometimes I did and sometimes I 14 didn't. 15 Q: Okay. So, that for some of the 16 briefings -- there are more than -- I take it, more than 17 one (1) briefing? 18 A: Sure. 19 Q: And some of the briefings you left to 20 your staff? 21 A: Yeah, I think the -- I mean, normally 22 what would happen would be that I would hear either from 23 the Minister's staff or from ONAS itself that he wanted a 24 briefing on some subject. 25 I might ask him and I might ask the ONAS
561 people whether they thought I needed to be there and 2 depending on what they said, I would make a decision to 3 be there or not. 4 Q: And I take it there were some general 5 briefings of the responsibilities of the Minister as 6 Minister responsible for Native Affairs and as Attorney 7 General, general briefings, and as well there might be 8 specific briefings? 9 A: Yes, that's right. 10 Q: And... 11 12 (BRIEF PAUSE) 13 14 Q: Ms. Christie has testified that she 15 attended a briefing of the Minister with respect to 16 issues relating to the Ipperwash Provincial Park and the 17 Ipperwash area on August the 8th, 1995, and if I could 18 take you to Tab 14 there's a copy of her notes that have 19 been marked P-735 Inquiry Document 1011749. 20 Do you recall being at a briefing? 21 A: I can't recall at this point whether 22 I was there or not. 23 Q: And there's a reference to, not only 24 Stoney Point, but a number of different issues; Temagami, 25 Sandy Lake, Cat Lake, a number of issues that were in --
571 that ONAS was dealing with back in 1995. And I note that 2 under Stoney Point there's an indication: 3 "Federal issue. Immediately adjacent 4 to Provincial Park and the beach 5 subject to lawsuit. There is no land - 6 - no lawsuit re. Park. There is a 7 ceremonial site. MNR says things are 8 very quite at this time. The OPP are 9 monitoring the situation very closely. 10 One (1) minor assault over the 11 weekend." 12 And: 13 "Q: I heard most of the people are 14 not members of local FN? 15 A: The core group, the families who 16 were evicted, there are some members 17 from the First People -- other First 18 Peoples. First Nation does not 19 condone." 20 Then: 21 "DM were told by Ms. Christie [that was 22 you]. Should work on communication 23 strategy." 24 Does that assist you with your memory with 25 respect to this issue being discussed sometime in early
581 August 1995? 2 A: It -- it doesn't really. If -- if 3 the note says it was discussed, it was discussed is all I 4 can say at this point. 5 Q: Okay. Now, at Tab... 6 7 (BRIEF PAUSE) 8 9 Q: ...106 of Volume II of your material 10 there's a memo to you from Michele Fordyce dated August 11 4, 1995? 12 A: Yes, I have it. 13 Q: And this relates to a briefing of 14 Premier's staff on August 11, 1995. 15 Do you recall receiving this document? 16 A: Yes. 17 Q: And were you asked to arrange for a 18 briefing of the Premier's staff on August 11th, 1995? 19 A: I don't know exactly how this came 20 about, but I -- I certainly asked for this briefing to be 21 prepared. 22 Q: And were there -- we understand there 23 may have been more than one (1) briefing of the Premier's 24 staff with respect to Aboriginal issues. 25 Do you have any recollection of that?
591 A: I don't, no. 2 Q: And at -- we go back to Tab -- 3 perhaps we could mark that as the next exhibit; it's 4 30001720. The -- 5 THE REGISTRAR: P-937. 6 MR. DERRY MILLAR: 9...? 7 THE REGISTRAR: 37. 8 MR. DERRY MILLAR: 37? 9 10 --- EXHIBIT NO. P-937: Document Number 3001720. 11 Memo to Larry Taman Dated 12 August 04/'95 from Michele 13 Fordyce with similar earlier 14 version of PowerPoint slide 15 presentation for August 11 16 meeting, August 10/'95. 17 18 CONTINUED BY MR. DERRY MILLAR: 19 Q: And attached to it there's a briefing 20 note that we'll see again but in a different form, if I 21 could take you to Tab 12 of Volume I. And that's Inquiry 22 Document P-642, and -- excuse me, it's Exhibit P-64, 23 Inquiry Document 3001721. And it's a letter from you to 24 Rita Burak dated August 10, 1995. 25 And I take it that's your signature?
601 A: Yes. 2 Q: And do you recall if you attended a 3 briefing on or about August the 11th, 1995 with respect 4 to briefing Mr. Guy Giorno and Ms. Hutton? 5 A: I think I did attend this briefing 6 and I just note in passing that the first line says that 7 the briefing was requested by Guy Giorno and Deb Hutton 8 from the Premier's office, which maybe clarifies the 9 earlier point about how this came about. 10 Q: And it goes on to say, when we last 11 met on the TAA. Whatever that might mean. 12 Do you know what TAA means? 13 A: At -- at this stage I'm afraid I 14 don't. 15 Q: And can you tell us what you recall 16 of the briefing on August the 11th? 17 A: No I can't recall anything about it 18 except what's in the document. 19 Q: And the -- we've heard that, at least 20 at one of the briefings and Ms. Jai thinks there was two 21 (2) briefings although she did not attend the second, but 22 that at briefings there were comments made that there 23 would be no special rights for Aboriginal people and that 24 Aboriginal and non Aboriginal people would be treated 25 equally.
611 And do you recall hearing those types of 2 comments? 3 A: No, I don't recall hearing any 4 particular words. What I do recall was that there were 5 indications that these people from the Premier's office 6 were exploring differences in policy that they might like 7 to advance. 8 They were talking about the issues in a 9 way different than the previous government talked about 10 them. 11 Q: And -- 12 A: Which is exactly what one would 13 expect in a change of government. 14 Q: And if such comments were made, would 15 they have been of concern to you? 16 A: Well on the one hand -- I mean if one 17 were to take the words at their exact face value, if they 18 were spoken at all, they would show not very 19 sophisticated understanding or maybe no understanding at 20 all about how First Nations law works. 21 On the other hand, for all governments, a 22 first initial challenge is to make the transition between 23 the campaign trail and being a government. And this 24 involved several big hurdles but one of them is that you 25 speak about things differently.
621 And so it's not uncommon, when you have a 2 new government, for the political people to come into 3 your office and start making their campaign speeches to 4 you. But campaign speeches are not legal analysis. 5 They're not intended to have consequences the way the 6 government does. 7 So part of what the permanent public 8 service has to do is to help the Government make the 9 transition between saying the things that got them 10 elected and becoming the government of the province. 11 Q: And there's a difference? 12 A: There's a big difference between 13 running for election and governing the province. And -- 14 and two (2) that come to mind are these. 15 1. You have to govern for all the people. 16 In an election you have to get your constituency out to 17 vote and so you say things and you formulate things in 18 ways that will resonate sometimes even with a tiny part 19 of your own constituency. 20 Because that's the part that you need to 21 get out to get the vote over the top. And the Government 22 might even say things in ways that don't particularly 23 resonate with most of its own constituency let alone 24 anybody else. 25 So, point number 1, there's a big
631 difference between the way you talk when you're on a 2 campaign and when you're in the Government. 3 2. You have to govern for all the people. 4 One's continuing success as a government is dependent on 5 most people believing that you're competent. And so 6 that's an important issue. 7 And the third, and this is really vital, I 8 think, is that when you're a government what you say has 9 consequences. When you're on a campaign it has fairly 10 limited consequences, but when you're the government it 11 has critical consequences. 12 And so governments need to find ways to be 13 more careful about what they say. 14 Q: And is it fair to say that the role 15 of the professional public service, at a change of 16 government, when people are making campaign-style 17 speeches to public servants, is to educate the particular 18 person on the facts as they exist, either in law or as 19 government policy? 20 A: Sure. But I think it's also worth 21 noting that it can be, you know, kind of a delicate 22 matter because it's easy for people to believe their own 23 speeches and it's not so easy for them to be told that 24 maybe this is not the right speech anymore. 25 Q: But is it fair to say that it was
641 part of your role and your staff to educate the 2 politicians and their staff as to their obligations, for 3 example, their obligations under Section 35 -- the 4 obligations of the Government of Ontario under Section 35 5 of the Constitution Act? 6 A: Sure. 7 Q: And -- 8 A: But always -- I mean, if I could just 9 add, but always within the framework that we work for 10 them, they don't work for us. 11 Q: I appreciate that but if someone -- 12 someone was in a ship heading for the shoals because they 13 didn't understand their constitutional responsibilities 14 as a professional public servant, and in this case the 15 deputy Attorney General, I take it you would see it as 16 your role to tell them that you should change course? 17 A: Absolutely. 18 COMMISSIONER SIDNEY LINDEN: Would this 19 be a good point to take a morning break? 20 MR. DERRY MILLAR: Sure. 21 COMMISSIONER SIDNEY LINDEN: Let's take a 22 morning break. 23 THE WITNESS: Before we hit the shoals. 24 COMMISSIONER SIDNEY LINDEN: Before we 25 hit the shoals, thank you.
651 THE REGISTRAR: This Inquiry will recess 2 for fifteen (15) minutes. 3 4 --- Upon recessing at 11:45 a.m. 5 --- Upon resuming at 12:03 p.m. 6 7 THE REGISTRAR: This Inquiry is now 8 resumed. Please be seated. 9 10 (BRIEF PAUSE) 11 12 CONTINUED BY MR. DERRY MILLAR: 13 Q: Now, if I could -- prior to our 14 break, we were taking about the presentation on August 15 the 11th. 16 Was it a normal event for you to meet with 17 the members of the Premier's political staff in the 18 absence of ministers or the Premier? 19 A: It wouldn't have been normal to have 20 a -- a formal briefing like this, but it wouldn't be 21 unusual to -- to meet with them. 22 Q: Okay. And I understand as well that, 23 in effect, with respect to the work of ONAS, when the new 24 minister was being briefed, you were being briefed as 25 well because this was -- at least the day-to-day work of
661 ONAS was new to you as well? 2 A: That's right. 3 Q: And that there were a number of 4 situations that were taking place across the province 5 that you and the Minister were briefed on? 6 A: Yes. 7 Q: And we've seen the note; some of them 8 were done on August the 8th. But as I understand it 9 there were approximately forty (40) to forty-five (45) 10 situations involving claims by First Nations within the 11 province, back in 1995? 12 A: Yes. 13 Q: And in the summer of 1995, the -- 14 what was your understanding of the policy of the new 15 government towards the First Nations? 16 A: I don't think the new government had 17 a policy in the summer of 1995. 18 Q: And, so that, the policy hadn't been 19 developed, is that -- is that fair to say? 20 A: Yes. 21 Q: And the, as you indicated earlier, 22 the Government was learning or the new ministers were 23 learning about government and -- and their 24 responsibilities as members of the Government? 25 A: Yes.
671 Q: Now, when -- prior to June 1995, did 2 you have any experience or dealings with the 3 Interministerial Committee on Aboriginal Emergencies? 4 A: I don't think so. 5 Q: And over the summer of 1995, before 6 September 4th, 1995, did you have any dealings with or 7 attend any meetings of the Interministerial Committee on 8 Aboriginal Emergencies? 9 A: No, I don't believe so. 10 Q: And when did you first learn of 11 Ipperwash as an issue at ONAS? 12 A: I think I was aware at some stage 13 that there was the possibility of a movement of people 14 from Camp Ipperwash into the Park. But I think my real 15 involvement with it began only a day or two before Mr. 16 George's death. 17 Q: And that would have been in September 18 of 1995? 19 A: Yes. 20 Q: And do you recall when you learned 21 about the issues at Camp Ipperwash, at the military base? 22 A: Again, I knew from -- I knew from 23 briefings about the general range of issues that were 24 given over the course of the summer. 25 Q: And if I could take you to Tab 8 of
681 the first volume in front of you, Mr. Taman. There's a 2 document, it's Inquiry Document 3001345. It's a note 3 dated July 31, 1995, Ontario Native Affairs Secretariat 4 information note for the Honourable Charles Harnick. 5 And do you recall if you saw this document 6 back in 1995? 7 A: I can't be certain but I probably 8 did. 9 Q: And this relates to the assumption of 10 control of Camp Ipperwash by the Stoney Point community 11 it's referred to? 12 A: Yes. 13 Q: And perhaps we could mark that as the 14 next exhibit, Commissioner? 15 THE REGISTRAR: P-938. 16 COMMISSIONER SIDNEY LINDEN: P-938. 17 18 --- EXHIBIT NO. P-938: Document Number 3001345. 19 ONAS information note for the 20 Honourable Charles Harnick 21 re. Camp Ipperwash Land, July 22 31/'95. 23 24 CONTINUED BY MR. DERRY MILLAR: 25 Q: And did you attend a briefing of
691 Minister Harnick with respect to Exhibit P-938? 2 A: I don't know if there was a briefing 3 or not. 4 Q: And by that, was it the practice, 5 back in 1995, from time to time, to simply provide an 6 information note such as Exhibit P-938 to the Minister -- 7 for the Minister to review on his own time? 8 A: Yes. 9 Q: And -- at Tab 9 there's a copy of 10 Exhibit P-934, Inquiry Document -- excuse me, Exhibit P- 11 534, Inquiry Document 1000918. And this is a letter from 12 Mr. Marcel Beaubien to Mr. Harnick and it's dated July 13 31, 1995. 14 And prior to getting ready for your 15 appearance here today, had -- did you see this document 16 back in July 1995? 17 A: I'm quite sure I didn't see this. 18 Q: And back in July of 1995, what was 19 the -- what would happen, typically, to correspondence 20 that would come into the Minister's office, such as this 21 document? 22 A: There was an organization called the 23 Minister's Correspondence Unit. 24 Q: Yes. 25 A: And all correspondence addressed to
701 the Minister went to the Minister's Correspondence Unit. 2 Q: Okay. 3 A: They would make a decision on how to 4 route the correspondence. Sometimes it would require 5 that an answer be prepared by some member of the civil 6 service staff. Sometimes it would not. 7 Q: And -- 8 A: It would, in any case, be -- be 9 responsible for sending out a reply to the letter to the 10 Minister. 11 Q: And the correspondence unit would 12 then I take it consult with the appropriate people within 13 the Ministry? 14 A: Yes. 15 Q: In developing a response? 16 A: Yes. 17 Q: And would all responses from the 18 Minister come to you for review or -- before they were 19 sent out? 20 A: They would almost never come to me 21 for review. 22 Q: So -- so, that you did not play a 23 role in the -- responding to the correspondence to the 24 Minister in the normal course? 25 A: Not in the normal course?
711 Q: And at Tab 11 there's Inquiry 2 Document 1003513 and it's a fax from Julie Jai to Dave 3 Moran dated August 10, 1995. And there's a fax attached 4 to it from Dave Moran to Julie Jai with respect to the 5 letter dated July 31, 1995. 6 Did you see these -- this exchange of 7 faxes back in August of 1995? 8 A: I don't think so. 9 Q: We'll mark that simply for the -- as 10 the next exhibit, Commissioner. 11 THE REGISTRAR: P-939, Your Honour. 12 13 --- EXHIBIT NO. P-939: Document Number 1003513. Fax 14 message from Julie Jai to 15 David Moran attaching letter 16 from Marcel Beaubien to 17 Charles Harnick, August 18 10/'95. 19 20 CONTINUED BY MR. DERRY MILLAR: 21 Q: And it refers to Tim McCabe -- and 22 Ms. Jai's response refers to Tim McCabe and Eliz -- 23 Elizabeth Christie dealing with the file relating to the 24 Ipperwash beach matter which was separate and apart. 25 Did you understand what the Ipperwash
721 beach matter was? 2 A: I had some familiarity with this 3 partly through the earlier briefings and also partly 4 because I believe it figured on in other briefings that 5 I'd had, but as the note says Ontario was not a party to 6 this action and so I didn't have any deep involvement in 7 it. 8 Q: And you understood the action related 9 to the Ipperwash beach by the Kettle and Stony Point 10 First Nation? 11 A: As I say I -- I didn't have much 12 familiarity with this. I -- I don't -- I don't want to 13 say I had more -- 14 Q: Okay. 15 A: -- than I really did. 16 Q: And if I could take you to Tab 13, 17 it's a copy of Exhibit P-418. It's a letter of August 18 the 14th, 1995, from Mr. Beaubien to Mr. Harnick. 19 Back in August 1995 did you see this 20 letter? 21 A: I don't think so. 22 Q: Okay. Now, with respect to the 23 Interministerial Committee on Aboriginal Affairs I take 24 it that over your years in government you would deal with 25 committees where a -- if I might put it -- a feature of
731 government departments and how government departments 2 work? 3 A: Sure. 4 Q: And that you had experience with 5 different committee over the years? 6 A: Many, many, many. 7 Q: And the committees were often, as I 8 understand it, would work on a particular issue or work 9 to develop a new policy being considered by the 10 Government? 11 A: Yes. 12 Q: And as I understand it as well, that 13 some committees had decision making -- the right to make 14 decisions and some committees did not; is that correct? 15 A: Yes. 16 Q: And when a committee that might have 17 decision making policies, can you think of any committee 18 today that might fall into that category just so that -- 19 explain to the Commissioner? 20 A: Well, I don't think I can think of 21 one right off the top of my head but I'll make a note and 22 try to. 23 But, it wouldn't be uncommon for an issue 24 that overlapped several ministries to be dealt with an 25 interministerial group that would have some little
741 protocol or memorandum of understanding provided -- 2 providing that they could do certain things and in other 3 circumstances, they would refer them up. 4 Q: For example, if there was a well- 5 defined policy applying to the matter and -- and the 6 Committee was simply to make a decision within -- with 7 respect -- within the confines of this policy, that might 8 be a matter that the Committee that might a decision? 9 A: Yes, or it might make a decision in a 10 matter in which it was thought not advisable for the -- 11 the political branch of government to be too close to it. 12 For example -- one example that does now 13 come to mind is a decision to evaluate and accept 14 tenders. This would quite often be done by an 15 interministerial group and it would often be thought best 16 not to have ministers or political staff involved and the 17 group might be authorized to call for tenders, receive 18 tenders, and pick the winning bid. 19 Q: Okay. And speaking of political 20 staff and ministers, what role over the years that you 21 were in government did political staff play with respect 22 to different committees that were formed in the 23 Government? 24 A: Again, I think it varies. I mean, 25 first of all it might be important to note that -- that
751 we use the words political staff, but there are different 2 political staffers in a typical ministers office. 3 Some of the staffers are directly tied to 4 the partisan political work. For example, the Minister 5 may have a constituency assistant who works in the 6 office. 7 The Minister may have someone whose job it 8 is to liaise with the party. So, those people are 9 political, you might say, in the 'big P' sense. 10 But, a Minister's office might also have 11 someone whose job it is to be the Minister's expert on 12 some particular subject. So, the Minister may have, for 13 example, as Ian Scott had, an expert in constitutional 14 law, in his office because he thought it was very 15 important. That person might have little or nothing to 16 do with the minister's party partisan political life. 17 So I think there are a lot of permutations 18 and combinations in this. But the general answer to your 19 question is there's nothing particularly unusual about 20 seeing political staff at interministerial meetings. 21 Q: And just to put a little more flesh 22 on the bone, we've heard that from a number of 23 individuals, that there were different types of, if I 24 might put it, political staff; an executive assistant to 25 a minister, an issue management person, a communications
761 person, a person responsible for that and a scheduling 2 person. 3 They were typically the type of people 4 that you saw in the minister's office? 5 A: Sure. 6 Q: And with respect to the iss -- issue 7 management person or the executive assistants or the 8 communication person, in your experience, would those 9 people, from time to time attend Interministerial 10 Committee meetings? 11 A: Sure. 12 Q: And was that outside -- was that 13 normal or abnormal? 14 A: It was normal enough. I mean it was 15 -- it depends what you mean by 'normal', I suppose. 16 Q: What -- what I'm trying to get at was 17 it -- was it something that didn't happen very often or 18 if happened, it would stand out? 19 A: I don't think it would particularly 20 stand out. I mean, for example, it wouldn't be uncommon 21 for an issue manager from the Minister's office to say, I 22 just decided to come to this meeting because I'm not 23 going to have time to hear about it before the House 24 opens, so I've decided to sit in on the meeting and 25 nobody would think that was unusual.
771 Q: And -- 2 A: Remember that there are seven 3 thousand (7,000) public servants in the Ministry of the 4 Attorney General and about ten (10) people in the 5 Minister's office, so they can't cover all the meetings, 6 even if they'd like to. 7 So, if -- 8 Q: Yeah. 9 A: -- we're talking about numbers, I 10 think we could say it's unusual. If we're talking about 11 does it surprise anybody when they come, I think the 12 answer's no, it doesn't. 13 Q: And with respect to the 14 Interministerial Committee on Aboriginal Affairs, if you 15 look -- have a -- did you -- were you aware of the 16 meeting that was held on August the 2nd, 1995? 17 A: Was I aware at the time? 18 Q: Yes. 19 A: No, I don't think so. 20 Q: And could I just ask you to look at, 21 in the book of material that's in front of you. It 22 hopefully will be the first item. It's a copy of Exhibit 23 P-506. 24 25 (BRIEF PAUSE)
781 2 Q: Pardon me? 3 A: What tab are you at, Mr. Millar? 4 Q: I'm at -- it's actually in the pile 5 of material on your left hand side. It was an added 6 extract. 7 A: I've got 506. 8 Q: And it's Inquiry Document 1011682 and 9 this is a fax from Julie Jai to a number of people dated 10 August the 8th attaching the August 2nd minutes. 11 Do you recall receiving -- seeing those 12 minutes back in 1995? 13 A: No. 14 Q: And when you say "no" you mean you 15 don't recall or you -- you don't know if you received it? 16 A: I don't know if I received it. 17 Q: And was it -- would it -- back in 18 1995 typically would you have received these types of 19 minutes from an interministerial committee? 20 A: No. 21 Q: So, that normally you wouldn't -- the 22 minutes weren't circulated to you as the Deputy Minister? 23 A: No. 24 Q: Okay. And at Tab -- 25 A: I mean, to be more -- I mean, to be
791 more precise, they normally would not be circulated to me 2 unless it were thought the Deputy's office had some 3 particular interest in it and then my staff would decide 4 whether or not I needed to see it or not. 5 So, I -- I wouldn't -- 6 Q: You don't recall having seen these -- 7 A: No. 8 Q: -- minutes before getting ready to 9 come to this Inquiry? 10 A: No. 11 Q: And at Tab 10 of your book, there's 12 an e-mail dated June 1, 1995. Excuse me, I said June, it 13 should be August 1, 1995. It's Inquiry Document 1003358, 14 Exhibit P-646. 15 And this is an e-mail from Julie Jai sent 16 at 5:41 p.m. on August the 1st to the Executive Group and 17 a number of others, Anna Prodanou. 18 And do you recall receiving this e-mail? 19 A: No. 20 Q: And there's a note at the bottom: 21 "I have briefed Janina [it's the 22 third paragraph from the bottom] Janina 23 Korol as well as Dave Moran who was in 24 her office when I called her. David 25 will contact the Premier's office to
801 advise them of the situation although 2 we do not feel that it's necessary for 3 them to attend the meeting. That's 4 with -- and Janina will advise the 5 deputy's office." 6 A: Yeah. 7 Q: And do you recall being advised -- 8 you being advised of the potential take over of the Park 9 on August 1st or 2nd, 1995? 10 A: No. I -- I have some -- my 11 recollection is of having some awareness of this as a 12 brewing issue but not -- I don't have any specific 13 recollection of this document. 14 Q: Okay. And when did you first learn 15 of the occupation of the Provincial Park? 16 A: I believe in or about the time it 17 took place. 18 Q: And do you recall how you learned 19 about that? 20 A: No, I don't. 21 Q: And what if anything did you do once 22 you learned of the occupation of the Park? 23 A: I don't know that I did anything in 24 particular. 25 Q: Okay. And the -- is it fair to say
811 that the initial response within the -- your Ministry 2 was, with respect to ONAS, dealing with the issue? 3 A: Can you say that for me once more 4 please? 5 Q: Would the initial response was, 6 within the Ministry of the Attorney General, was within 7 ONAS as being responsible for the issue? 8 A: There would be two (2) sides to it, I 9 think. ONAS would be handling the issue. They would be 10 getting some legal advice from the Crown Law Office. 11 Q: And the -- in terms of the new 12 government and a new government having taken over, what, 13 if any, challenge did you see to the new government of -- 14 of a matter such as this happening, in early September 15 1995? 16 A: The Government was really just 17 getting its feet wet and I think in the early stages of 18 this, as you've said, there are any number of instances 19 sort of like this taking place around the Province, not 20 to mention all the other things that the Government was 21 trying to deal with as part of setting -- settling into 22 office. 23 And so I think the -- the challenge for 24 the government and for the public servants supporting the 25 government was to try to put it in some, you know,
821 reasonable perspective, trying to figure out how 2 important, you know, is this. How much attention really 3 needs to be paid to it. 4 Q: Okay. And the -- at Tab 15 there's 5 an e-mail -- 6 A: I -- I should -- excuse me, Mr. -- 7 Q: Sure. 8 A: -- I should perhaps have added that 9 in addition to the -- to your list of -- of people who 10 were managing this, of course the sense was that the OPP 11 were managing it as a -- as a law enforcement matter. 12 Q: Oh, certainly, I -- I was thinking of 13 -- within the Civil Service. 14 A: Yeah. 15 Q: Now, what did you learn, if anything, 16 on September 4th about what the Ontario Provincial Police 17 were doing? 18 A: I didn't know much about what they 19 were doing except that they were managing the issue. 20 Q: Okay. And at Tab 15 of the book of 21 documents in front of you there's a copy of an e-mail 22 dated September 5, 1995, 2:27 p.m. from Julie Jai. It's 23 Inquiry Document 1011769, Exhibit P-649. 24 And I understand that Frances Noronha was 25 a member of your staff?
831 A: She was my executive assistant. 2 Q: And do you recall seeing this e-mail 3 in -- on September 5th, 1995? 4 A: No. 5 Q: And do you recall being advised by 6 your executive assistant of the -- or anyone else -- of 7 the information contained in Exhibit P-649? 8 A: I think I must have been because we 9 know that the following morning that I sat down with Yan 10 Lazor and others to talk about what had come out of this 11 meeting. 12 So I may have had a quick look at this, 13 but Frances Noronha would have told me, sometime that 14 day, that the Interministerial Committee had been 15 meeting, that they had some recommendations, that Yan 16 wanted to see me the next morning, and that she'd made 17 time in my schedule for me to see Yan. 18 Q: And do you recall that -- being 19 advised in the second last paragraph from the bottom: 20 "Deb Hutton had already spoken to the 21 Premier and MNR had already spoken to 22 their minister. The Premier's views 23 are quite hawkish on this 'Deb's words' 24 and he would like action to be taken 25 ASAP to remove the occupiers.
841 It was agreed, though, that no legal 2 action would proceed until the lawyers' 3 subgroup had done a risk assessment of 4 the options so that we could take the 5 best course possible to reach the 6 agreed upon goal which is removal of 7 the people from the Park and until we 8 had direction from Minister Harnick." 9 Do you recall being advised of this 10 information on September the 5th? 11 A: What I recall is that from fairly 12 early on some of the civil servants thought that some of 13 the Premier's political staff were to -- to use these 14 words, Quite hawkish. I -- I don't know if that word was 15 actually ever used to me, but it's a good word to 16 describe the attitude as it was being described to me. 17 Q: And did that cause you any concern? 18 A: No, not particularly. I think that, 19 as I've said, in -- in the first place in government one 20 is never sure who people are speaking for and in the 21 second place I -- I knew then or quickly learned that -- 22 that the Deputy or that the Minister of Justice, the 23 Attorney General, took a different view. 24 Q: Okay. And in the fifth paragraph 25 from the bottom, the note -- e-mail says:
851 "The Committee is meeting again 2 tomorrow at 9:30. In the interim, a 3 subgroup of lawyers from MNR, ONAS and 4 MAG is meeting to evaluate the legal 5 options including chances of success 6 and timing for one injunction, either 7 ex parte or interim, to two (2) 8 charges, either Criminal Code mischief 9 or trespass under provincial statutes." 10 Had you been made aware of the -- what was 11 being looked at by the lawyers at MAG, ONAS and MNR? 12 A: I expect that I learned about it in 13 this detail the following morning when I had the briefing 14 with Yan Lazor and the others. 15 Q: Okay. And on the 5th, do you recall 16 being advised by anyone or discussing with anyone the 17 issue of an injunction? 18 A: I don't have any specific 19 recollection of that. 20 Q: Do you recall, if I could take you to 21 Tab 20, do you -- this is a copy, it's Exhibit P-549, 22 Inquiry document 1011745. And what I'm interested in -- 23 it's entitled, "Minister's briefing form." 24 Do you recall seeing this document which 25 is dated September 5th 1995, on September 5th 1995?
861 A: I don't know that I saw it on 2 September 5th, but I -- I would have seen it in or about 3 that time. 4 Q: And on September 5th, before the 5 briefing on the morning of September the 6th, do you 6 recall if anyone had advised you of what demands, if any, 7 the occupiers of the Park had made? 8 A: My only recollection is that there 9 were a series of issues that were discussed, but I think 10 that it was not really clear from the beginning that they 11 had been formulated in the sense of demands. 12 Q: And what were the series of issues 13 that you were aware? 14 A: Well the one that stands out in my 15 mind is the issue that carried on for some time, the 16 concern that -- that there may have been a First People's 17 burial ground on the -- in the Park. 18 Q: And if I -- if you could turn back 19 for a moment to Exhibit P-649, Tab 15, at page 2 of that 20 document there's a carbon copy to Karen P., and I believe 21 that stands for Karen Perrera (phonetic)? 22 A: Yes. 23 Q: And was she in your office? 24 A: Yes. 25 Q: So Francis Noronha -- is it Noronha
871 or Norono? 2 A: Noronha, R -- N-O-R-O-N-H-A. 3 Q: And she was your executive assistant 4 and Ms. Perrera was, as well, in your office? 5 A: She was my secretary. 6 Q: Your secretary? And in the pile of 7 material on your left, there's the added documents -- 8 there's a copy of Exhibit P-509, it's Inquiry document 9 1012288. And the first part of that document are the 10 meeting notes for September 5th, 1995. 11 And were you provided with a copy of these 12 meeting notes on or about September 5th or September 6th, 13 1995? 14 A: Yes, I think I would have been. 15 Q: Okay. And at the next -- as part of 16 that document, there's a copy of the meeting notes for 17 September 6th. 18 Do you recall receiving the meeting notes 19 for September 6th on or about September 6th or September 20 7th, 1995? 21 A: I don't know whether I received these 22 meeting notes or not at that time. 23 Q: Okay. And you believe you may have 24 received September 5th but not September 6th? 25 A: Well, the reason I say that is
881 because I -- I -- if my memory's correct, I met with the 2 ONAS people on the morning of the 6th. And so it was at 3 that time that I learned about their sense that they were 4 receiving some pressure from the Premier's to move on 5 this and it was at that time that I let them know what I 6 thought our response should be. 7 Q: Okay. Perhaps we could turn to the 8 morning of September the 6th. And the -- at -- were you 9 aware -- before I go there, were you aware, on September 10 the 5th or early on September the 6th, of any concerns of 11 the Ontario Provincial Police? 12 A: I'm not sure I know what you mean by 13 any concern. 14 Q: What was the position of the OPP? 15 A: I think that all I knew during this 16 period was that the police did not have any particular 17 desire to go into the Park. 18 And that from that point of view the issue 19 of an injunction, which as you know occupied some people 20 during this time, was not something on -- on which they 21 had a strong view except that they thought, and I agreed, 22 that if they were to go into the Park, they should have 23 the support of an injunction. 24 But they had no particular desire to go 25 into the Park, nor did I think they should.
891 Q: Okay. And turning to the morning of 2 September the 6th, do you recall having a meeting with 3 the Solicitor General or the Deputy Solicitor General 4 early in the morning of September the 6th? 5 A: I'm -- I'm reconstructing events a 6 bit here from -- from documents because there were lots 7 and lots of meetings. 8 But my recollection is that there was a 9 very early meeting attended by the ministers and the 10 deputies, probably at the offices of the Solicitor 11 General. 12 Q: And the very early meeting would have 13 included Minister Harnick? 14 A: Yes. 15 Q: Minister Runciman? 16 A: Yes. 17 Q: Ms. Todres? 18 A: Yes. 19 Q: And Minister Hodgson? 20 A: I doubt that. 21 Q: And why do you say, I doubt that? 22 A: Just because the -- the meetings that 23 -- there was a series of meetings that were held that 24 were focussed more on the legal issues of the two (2) law 25 ministries.
901 But, if someone told me that Mr. Hodgson 2 were there, I wouldn't contradict them. I just don't 3 recall it. 4 Q: And do you recall what position was 5 taken by either Mr. Runciman, as the Solicitor General, 6 Ms. Todres, as his deputy, or your minister, at this 7 early morning meeting, if any? 8 A: I think the four (4) of us very 9 quickly came to a consensus on two (2)or three (3) 10 points. The first was that this should be dealt with 11 primarily as a law enforcement matter and that the OPP 12 should deal with it. 13 Secondly, that the priority, as I put it 14 throughout, should be to see to it that nobody got hurt. 15 And I think everyone agreed with this. It didn't seem to 16 any of us that this was a situation in which it was 17 appropriate to take any risk with anybody's safety. 18 And I think the third was that we all were 19 of the view that this was one of those problems that time 20 would solve. That there was not any grand urgency to 21 this. 22 As you know, this was a different view 23 than the government ultimately took and then -- and then 24 the instructions that were ultimately given. 25 Q: And -- but at this early morning
911 meeting, the position of the attendees was that there was 2 not any urgency to deal with the matter at the time? 3 A: That's right. 4 Q: And it's reported by Ms. Jai that -- 5 and there's a note at Tab 16 of Ms. Jai -- it's a copy of 6 Exhibit P-651. She's got a note: 7 "SG and Deputy SG. LT met with them, 8 they want to go slow". 9 And she indicated that LT is you. You had 10 met with the Solicitor General and the Deputy Solicitor 11 General and they want to go slow. 12 Was -- is that a fair characterization? 13 A: Yes. 14 Q: And we see another note that's in 15 this material that refers to you having met with the 16 Solicitor General, the Deputy Solicitor General and the 17 Attorney General on the morning of the 6th. 18 So -- 19 A: Yes. 20 Q: -- it's your recollection today that 21 -- that you met with Minister Harnick, Mr. Runciman, and 22 Ms. Todres? 23 A: Yes. 24 Q: Then, we understand that you had a 25 meeting with certain individuals from the -- from ONAS on
921 the morning of September the 6th? 2 A: I believe so, yes. 3 Q: And do you -- do you recall -- do you 4 have any independent recollection of that meeting? 5 A: No. 6 Q: And you've reviewed some notes with 7 respect to that meeting and I'll take them to you -- you 8 to them, but do you recall -- after having reviewed some 9 of these notes, does it assist you in refreshing your 10 memory? 11 A: Yes. 12 Q: And can you tell us what you recall 13 having refreshed your memory with respect to some of the 14 material that's in front of you? 15 A: Yeah. I recall that they reported 16 that they felt they were having some real pressure from 17 some of the people in the Premier's office; that they 18 thought that there was -- I'm not sure again whether the 19 word was used but that there was a 'hawkish' atmosphere 20 about this. 21 I told them that my view was that the 22 important thing was that nobody get hurt. I think I 23 probably told them what the Solicitor General and the 24 Attorney General had had to say earlier that morning and 25 that generally we should be trying to simply stabilize
931 the situation both internally and externally. 2 Q: Okay. And at Tab 20 there's a copy 3 of the -- Exhibit P-549 and we understand that, or it's 4 our understanding that the notes with -- on this document 5 are the notes of Yan Lazor and that the note on the 6 second page are, as well, the notes of Yan Lazor. And 7 the -- there are, on the left-hand side, some notes: 8 "Issue one (1) other [I can't read 9 that]. Secondly, when third process -- 10 [and then] Options, leave it alone." 11 A: Sorry. Excuse me, where are you 12 reading from? 13 Q: On Exhibit -- it's Tab 20. 14 A: You're on 549? 15 Q: 549 on the left-hand side. 16 A: Okay. I've got it. Thank you. 17 MR. JULIAN FALCONER: Tab 21? 18 MR. DERRY MILLAR: It's Tab 20. What 19 happened, I think that our book may have gotten a little 20 different from -- there's also a copy at Tab 21, but 21 Exhibit P-549 in the Witness' copy. And my copy is at 22 Tab 20 and -- and it may be the gremlins, I think there 23 were some changes made to the list last -- late last 24 week, but -- for which I apologize. 25 But it's -- it is Exhibit P-549 Inquiry
941 Document 1011745. A clean copy which is P-512 appears at 2 Tab 21 of your book with some notes of Ms. Jai attached 3 to it, Inquiry Document 1011729. 4 5 CONTINUED BY MR. DERRY MILLAR: 6 Q: Now, the -- do you recall on the 7 left-hand side there's, under "Options:" 8 "Leave it alone. 9 2. Civil injunction. 10 3. Criminal law." 11 Do you recall those items being discussed 12 at the meeting with Julie Jai and Mr. Lazor? 13 A: Well, they -- they seemed to be the 14 options and I that's what was discussed. 15 Q: And there's a note: 16 "Larry, public safety is a test." 17 Do you recall that? 18 A: Well I think it refers to either or 19 both of two (2) things. One (1) was that I thought that 20 we needed to be very careful to avoid doing anything that 21 created a public safety issue and I didn't see anything 22 in this situation that was worth putting anybody at risk 23 for. 24 The Park was closed; the people in it 25 might have included women and children; there were some
951 inconclusive discussion of whether people were armed or 2 not. 3 But it seemed to me that we were in a 4 situation where people seeking to raise an issue had 5 taken a step that wasn't really causing, at the moment, 6 any great harm to anybody else and I thought it was 7 important to bear in mind a need to keep people safe; the 8 people in the Park and also the people around the Park 9 and the police officers. 10 Q: And at Tab 21 of your book, there's a 11 copy of Exhibit P-512 and Inquiry document 1011729. And 12 on page 2 there's a note, Ms. Jai, and Ms. Jai testified 13 that the note wasn't attached to the briefing note but 14 that it is her note of the meeting that: 15 "LT test public safety, is anything 16 worth someone getting hurt over?" 17 And that's what you've just told us about. 18 She also said that the -- it was discussed: 19 "Could we -- could be a useful test re. 20 precipitous action." 21 Do you recall any discussion about 22 precipitous action, Mr. Taman? 23 A: I'm not sure what Ms. Jai means by 24 that note. 25 Q: "Continue to give OPP the lead, let
961 them use their discretion. We want to 2 do what would support OPP." 3 A: Yes. 4 Q: And that was your view? 5 A: My feeling was that this was a law 6 enforcement issue; that they were the professional law 7 enforcement people on the ground and that it made sense 8 for the rest of government to stay out of it and let them 9 do their job. 10 Q: And: 11 "Feel there is nothing here worth 12 risking safety [which you've told us 13 about]. 14 If an injunction would be helpful we're 15 willing to proceed. Don't feel 16 anything immediate is required." 17 Do you recall the discussion about whether 18 or not an ex parte injunction was required at the time? 19 Do you recall that coming up, ex parte as 20 to -- or as opposed to an injunction with notice? 21 A: I don't recall when that was first 22 raised? 23 Q: Re. injunction Ms. Jai indicated that 24 her note is: 25 "AG just client or do they have a
971 separate duty to uphold the law? LT 2 [which she indicated was you] wants us 3 to be counsel." 4 And she indicated that in her testimony 5 that that referred to the fact that the AG was simply the 6 client and the staff were going to be counsel to the 7 client. 8 Do you recall a discussion about the role 9 to be played by the Attorney General in this situation? 10 A: I think it more likely is raising the 11 question of whether or not the Attorney General had any - 12 - any stand -- freestanding obligation to see to it that 13 the -- the law was enforced. 14 And that it was my view that in this 15 situation our job was really as legal counsel to the 16 government. We're not a law enforcement agency. 17 Q: So that in your view the Attorney 18 General had no freestanding obligation to enforce the 19 law? 20 A: I think that's stating the 21 proposition a little bit broadly. I mean, the Attorney 22 General does have some circumstances in which he is 23 entitled or she is entitled to take proceedings in Court 24 to make sure that the rule of law is respected. 25 I didn't think it applied in this
981 situation. I thought this was a law enforcement 2 situation for policing. 3 Q: Thank you. I didn't mean to 4 overstate it. I'm just trying to make sure we all 5 understand -- 6 A: Okay. 7 Q: -- what your position is. 8 Now, the -- back at Tab 20, Exhibit P-549, 9 there's, again, at page 2, a note: 10 "Agreed Julie to call OPP Fox. We want 11 to support them. Let's get more facts. 12 Concern is safety. We don't want to 13 get anyone injured over this if no one 14 is at risk at this time. No urgency 15 re. media. Not AG, local policing 16 instead. 17 - Larry wants to speak to Elaine Todres 18 and Ron Fox. 19 - This is a law enforcement matter. 20 The police want to lay charges, they 21 can. [Then a note] Julie and Larry 22 went over to legislature to brief 23 Minister." 24 The briefing of the Minister, do you 25 recall was after the meeting with Mr. Lazor and Ms. Jai?
991 A: I think that must be right. 2 Q: And on this note there's an 3 indication that Tim McCabe was at the meeting. 4 Do you recall Tim being at the meeting? 5 A: No. 6 Q: And I would ask you to look at 7 Inquiry Document 3001652, which is in the pile on the 8 left. It should be the next document down. It's got on 9 the top, "Criminal and Civil Proceedings." 10 I think it's in your left hand. 11 A: What number is it, please? 12 Q: It's 3001652. 13 14 (BRIEF PAUSE) 15 16 Q: Now, this is a document, "Criminal 17 and Civil Proceedings to Terminate the Occupation of 18 Ipperwash Provincial Park by the Stoney Pointers." 19 Do you recall seeing this memorandum, the 20 typed portion of this memorandum back in September 1995? 21 A: No. 22 Q: And at page 3 there's some 23 handwritten -- hand writing on the document and then on 24 page 4 there's some more hand writing and it appears to 25 be -- the last page appears to be the back of page 3 and
1001 do you recognize the handwriting on this document? 2 A: No. 3 4 (BRIEF PAUSE) 5 6 Q: Commissioner, we believe that the 7 handwriting on this document, as well, is that of Mr. Yan 8 Lazor although we haven't been able to confirm it, but it 9 appears -- if I could take you to the last page of the 10 document there's a reference to: 11 "The Premier's office, strong message 12 public safety. Park closed. Town and 13 local [period]. People very eager. 14 Kettle and Stony Point chief doesn't 15 recognize rumour of burial ground. No 16 claim -- land claim on the Park. Title 17 appears good. LT met with AG and 18 Solicitor General and assistant. Their 19 instincts equal cautious and moderate." 20 Does this assist you at all with respect 21 to whether or not this was at the meeting that we've just 22 spoken about with Julie Jai and Yan Lazor? 23 A: Well it sounds to me like somebody 24 else's notes of the conversation that we've just heard 25 about a moment ago.
1011 Q: It seems that way to me as well and - 2 - and we have to still track don whose these are. But 3 these notes indicate that STSM speaks, and STSM as I 4 understand it is Tim McCabe? Oh, excuse me, JTSM. I'm 5 misreading the -- it's a little bit cut off on mine, but 6 JTSM is -- I'm -- I'm advised the initials for Tim 7 McCabe? 8 A: Yes. 9 Q: And then SH I'm advised is probably 10 Scott Hutchison. Do you recall Scott Hutchison being at 11 the meeting? 12 A: I recall him being involved in these 13 discussions because he worked on the criminal offences 14 part of this. 15 Q: And I'm told that AM is Andrew 16 MacDonald. 17 "There may be argument for no 18 precipitous action." 19 Do you recall Andrew MacDonald attending 20 the meeting? 21 A: I don't really recall the meeting 22 vividly enough to be able to tell you who was there or 23 not beyond what's in the note. 24 Q: And then LT, it's reported. 25 "LT. Make in short term -- maybe in
1021 short term there was no reason for 2 immediate action - in intermediate. 3 [Bullet point] If public safety is the 4 issue tell the Sol Gen to carry on or 5 they -- as they think appropriate. 6 [Bullet point] Call Ron Fox to tell 7 him there is nothing worth getting 8 anyone hurt over. We will support OPP. 9 If they need injunction, we'll get it. 10 We don't think there is a need for 11 immediate action. 12 [Bullet] He will talk to Ron and 13 Elaine Todres." 14 That's the same points that we discussed 15 at looking at the other minutes. 16 A: Yes. 17 Q: Now, the minutes indicate that you 18 and Julie Jai were going to go to the Legislature and 19 talk to your Minister. 20 Do you recall on the morning of September 21 the 6th going to Queen's Park to speak to Mr. Harnick? 22 A: I know that I spoke to Mr. Harnick 23 and got an instruction on the morning of the 6th. 24 Q: And at Tab 22, there's a note, it's a 25 copy of Exhibit P-550, Inquiry Document 3000776, and
1031 that's a copy of one of your notes? 2 A: Yes. 3 Q: And the note indicates: 4 "ONAS meeting re. Ipperwash. AG 5 instructed by P that he desires removal 6 within twenty-four (24) hours. 7 Instruction to seek injunction." 8 Firstly, have I read that correctly? 9 A: Yes. 10 Q: And can you tell us what you recall 11 of the meeting with the Attorney General? 12 A: Well just that. That we had 13 discussed the matter on, I think more than one occasion 14 over the previous day or so, that he and I and as we've 15 discussed, the Solicitor General and the Deputy Solicitor 16 General were agreed on the approach just discussed. 17 The Minister told me that the Premier had 18 taken a different view and given a clear instruction 19 about what he wanted done. 20 Q: And when the instruction was that he 21 desires removal withing twenty-four (24) hours, 22 instruction to seek injunction, what did you take from 23 that? 24 A: Well, just that, that he -- he wanted 25 an injunction to get people out of the Park withing
1041 twenty-four (24) hours. 2 Q: And... 3 A: I don't think -- forgive me if I'm 4 getting a step ahead of you. I -- I don't think that 5 either the Premier or I at this stage was giving any 6 particular thought to what I gather has become an issue 7 here about whether this would be an ex parte injunction 8 or not, only that -- that this was the instruction that 9 he had given and that it was -- 10 Mr. JULIAN FALCONER: Commissioner. I'm 11 sorry. I apologize for interrupting this very important 12 evidence and I apologize for interrupting Mr. Taman. 13 But, from the point of view of how vital 14 this evidence is to the extent it's possible to not have 15 the Witness climb into, for example, the Premier's mind 16 on what the Premier intended. I do, with respect, think 17 it's important. Mr. Taman just testified about what he 18 thought the Premier intended or knew of. 19 And -- and it was -- I'm just asking to be 20 careful in this particular area. 21 COMMISSIONER SIDNEY LINDEN: Thank you. 22 Thank you, Mr. Falconer. 23 24 CONTINUED BY MR. DERRY MILLAR: 25 Q: At the time you had not -- from your
1051 -- had you given any thought as to what type of 2 injunction? 3 A: No. 4 Q: Now Ms. Jai reports that, and 5 testified, that she had -- it was her understanding is 6 that Minister Harnick agreed they would -- that an 7 injunction would be sought in the normal course rather 8 than an ex parte injunction. 9 A: I don't recall that. 10 Q: And can you tell us today when you 11 believe you made the note that appears at Exhibit P-550? 12 A: I believe I made it that morning. 13 And the reason I believe that is because the next note 14 relates to the senior management committee meeting which 15 was normally held at ten o'clock on Wednesday; the same 16 day as Cabinet. 17 So, as I reconstruct the event from my 18 note, I believe that we would have gone to the 19 legislature to see the Minister because he was there for 20 the Cabinet meeting, that he gave this instruction and 21 that I made this note. 22 Q: And after receiving the instruction 23 what did you do after this meeting with the -- with the 24 Minister? 25 A: I'm not sure that I did anything, but
1061 it's -- it's clear that the instruction to proceed 2 quickly was passed onto the Crown Law Office. Whether I 3 did that or Julie Jai did that I'm uncertain. 4 I think it's more likely that someone else 5 did it because I had to come back to chair the Senior 6 Management Committee meeting which would have been 7 beginning, more or less, immediately. 8 Q: Okay. And perhaps that would be -- 9 Commissioner, a good time to break for lunch? 10 COMMISSIONER SIDNEY LINDEN: That's fine. 11 If you want to break now, we'll break now. We usually go 12 a little longer, but this is a good time. If this -- 13 MR. DERRY MILLAR: Well, I can -- 14 COMMISSIONER SIDNEY LINDEN: No, that's 15 fine. We'll break now. We'll break for lunch now. 16 THE REGISTRAR: This Inquiry stands 17 adjourned until 2:15. 18 19 --- Upon recessing at 1:00 p.m. 20 --- Upon resuming at 2:20 p.m. 21 22 THE REGISTRAR: This Inquiry is now 23 resumed. Please be seated. 24 MR. DERRY MILLAR: Good afternoon, 25 Commissioner.
1071 COMMISSIONER SIDNEY LINDEN: Good 2 afternoon. 3 4 CONTINUED BY MR. DERRY MILLAR: 5 Q: Mr. Taman, if I could take you back 6 to, again, September 6th, 1995 and the meeting with the 7 Attorney General. 8 Do you have any independent recollection 9 today of that meeting? 10 A: Yes, I do have independent 11 recollection. 12 Q: And what is that independent 13 recollection? 14 A: It is that he had been speaking to 15 the Premier and members of cabinet and that it had been 16 decided that efforts should be made to get legal 17 instruments in place to -- to remove the First Nations 18 people from the Park. And that it should be done within 19 twenty-four (24) hours. 20 Q: And when did that conversation take 21 place? 22 A: I believe it took place at about 9:30 23 on the morning of the 6th. Just before cabinet and just 24 before the senior management committee meeting at the 25 ministry.
1081 Q: And when you say a legal instrument 2 in place, what do you refer -- what are you referring to? 3 A: That the ministry should act for the 4 Government to seek an injunction. 5 Q: And was that the words used by -- was 6 the word injunction used by Mr. Harnick? 7 A: Our discussion was about seeking an 8 injunction and he said that the Government wanted the 9 First Nations out of the Park and that we should get an 10 injunction immediately. 11 And the note I made, as you know, was that 12 the Premier desired the removal of the people in the Park 13 within twenty-four (24) hours. 14 Q: And what, if anything, did Mr. 15 Harnick say that the Premier said, beyond that? 16 A: Nothing that I recall. 17 Q: Did he indicate to you whether the -- 18 did Mr. Harnick indicate to you anything that the Premier 19 might have said about legal instruments? 20 A: I'm not sure I know what you mean by 21 that. 22 Q: Well did the -- was the reference to 23 injunction, in your notes and from what you've told us, 24 did that come from the Premier talking to Mr. Harnick or 25 as a result of the discussion between you and Mr.
1091 Harnick? 2 A: My recollection is that the minister 3 told me that the Premier had decided that we should 4 immediately seek an injunction. 5 Q: And what after the -- can you recall 6 anything else of the meeting with the minister -- with 7 Mr. Harnick on the morning of September 6th? 8 A: That meeting on the morning? 9 Q: Yes. 10 A: No. 11 Q: Do you recall who was present with 12 you? 13 A: I believe that I went over to the 14 legislature with one (1) or two (2) people from ONAS. 15 Perhaps with Julie Jai and Yan Lazor. 16 Q: Well we've seen a note that's 17 attributed to Yan Lazor that indicated that you and Julie 18 Jai were going to the legislature. Julie thought -- 19 Julie Jai has testified she thought there was one (1) 20 other person but she couldn't recall who it was. 21 Do you have any recollection today of who 22 -- if there was someone in addition to Julie Jai and who 23 that might be? 24 A: I don't, no. 25 Q: So after the -- the meeting with Mr.
1101 Harnick, did you and -- what did you and Julie Jai do? 2 A: I believe that I went back to my 3 senior management committee meeting. I don't know 4 exactly what she did. 5 Q: And did you give her any 6 instructions? 7 A: I think that she would have spoken to 8 Tim McCabe about the need to move immediately on the 9 injunction. 10 Q: But do you know -- you say "I think," 11 do you know -- did you as the Deputy Minister give her 12 any instructions the morning of September the 6th? 13 A: I don't recall but we'd both been 14 together. We had got our instruction from the minister 15 and I think we both understood what needed to be done. 16 Q: And was there any discussion with the 17 -- Mr. Harnick with respect to issues of public safety 18 that you can -- 19 A: Not that I recall. I think the 20 general tenor of the meeting was that we had had a number 21 of discussions which I've talked to you about this 22 morning to the extent that our views mattered. We took a 23 different view. The Minister was saying that it's now 24 been decided and this is what we've been instructed to 25 do.
1111 Q: Now, just so that I can understand, 2 we've -- on the morning of September the 6th we've heard 3 of a meeting between you, Mr. Runciman, Ms. Todres and 4 Mr. Harnick; that was an early morning meeting? 5 A: Yes. 6 Q: And then a meeting with you and Mr. 7 Lazor and Ms. Jai and -- and others from ONAS? 8 A: Yes. 9 Q: And then the next meeting in -- then 10 a meeting with Mr. Harnick and at least Ms. Jai? 11 A: Yes. 12 Q: And that meeting followed -- did it 13 follow the ONAS meeting? 14 A: As far as I recall, yes. 15 Q: Then did you attend the Cabinet 16 meeting for any part, the morning of September the 6th? 17 A: No. 18 Q: Did you meet with Mr. Harnick after 19 the Cabinet meeting? 20 A: Not that I recall. 21 Q: And how did you -- let me step back. 22 Did you meet in the morning of September 6th with Mr. 23 Hodgson, Mr. Vrancart, Mr. Runciman, Ms. Todres, and Mr. 24 Harnick? 25 A: Apart from the meeting we've already
1121 discussed? 2 Q: Well, we -- but Mr. Hodgson, you 3 didn't know if -- was there a meeting with -- that you 4 attended on the morning of September 6th where Mr. 5 Hodgson and Mr. Vrancart were in attendance? 6 A: Not that I recall. 7 Q: Now, how did you come to go to what 8 we call the dining room meeting? 9 A: Someone, I don't remember who, told 10 me that I was to go. 11 Q: And can you tell us everything that 12 you can remember about the dining room meeting? 13 A: I remember that there were quite a 14 few people there. I'm not sure I could give the complete 15 list, but the Premier was there, there were one (1) or 16 two (2) members of his staff. The Minister was there, 17 the Minister of Natural Resources was there. There were 18 one (1) or two (2) of the OPP police liaison officers. 19 I think the general purpose of the meeting 20 was to make sure that the public servants understood what 21 the Government was looking for, what it expected happen. 22 I recall that there was discussion in 23 which the Deputy Solicitor General tried to make it clear 24 that decisions on the ground were for the police and that 25 as a normal matter the Government shouldn't be
1131 intervening in that. 2 I recall having a dialogue with the 3 Premier in which he had indicated that he would have 4 thought that the police would have the First Nations 5 citizens out of the Park by this time. 6 I told him that I didn't think that was 7 necessarily so and that it could well be the better 8 policing practice to wait and to give the situation a 9 chance to stabilize and to sort of come into order in a - 10 - in a -- in a -- in a more slower and more careful way. 11 I think there was some discussion about 12 injunctions and about how quickly we could be in court 13 and there were -- there were discussion about ex parte 14 injunctions and how it would take longer if you had to 15 give notice and so on. 16 The two (2) critical things, from my point 17 of view, that I took to the -- from the meeting and that 18 I formed my actions over the days and weeks were 19 followed were -- were two (2). One (1) was that the 20 Premier made it clear that he believed that it was not 21 right for the First Nations to be in the Park and that it 22 was the Government's job to get them out. 23 And the second was that he believed that 24 it was important that the public servants exercised their 25 best judgment at all stages of this matter. And I can
1141 remember the Premier concluding with words to the effect 2 of, So I've told you how I feel about it now I expect you 3 to get on with it, using your best professional judgment. 4 Q: And what did you understand that -- 5 to be using -- was being referred to or what did you take 6 from what was being referred to by, Use your best 7 professional judgment? 8 A: I think what the Premier was trying 9 to do and I think, you know, rightly, in my point -- from 10 my point of view, was he was trying to be clear about the 11 overall policy framework, while at the same time 12 recognizing that there are matters of judgment. 13 MR. JULIAN FALCONER: Mr. Commissioner. 14 MR. DERRY MILLAR: He can say, what, 15 Commissioner, what he understood. 16 COMMISSIONER SIDNEY LINDEN: Yes, what is 17 said to him, what -- 18 MR. JULIAN FALCONER: Yeah, right. You 19 see the simple quandary is what I raised earlier but -- 20 COMMISSIONER SIDNEY LINDEN: Yes. 21 MR. JULIAN FALCONER: -- it's a little 22 more complicated now because if it's appropriate for this 23 evidence to go in, then it's got to be appropriate for 24 Counsel to cross-examine on what the Premier intended. 25 In other words, my concern is, if this
1151 evidence goes not in any way tightened up, in other 2 words, not what he understood but simply this is what the 3 Premier was thinking, then we have to be -- 4 COMMISSIONER SIDNEY LINDEN: Well -- 5 MR. JULIAN FALCONER: -- to cross-examine 6 on this is what the Premier was thinking and I expect 7 objections and -- 8 COMMISSIONER SIDNEY LINDEN: Yes. 9 MR. JULIAN FALCONER: -- not allow us -- 10 COMMISSIONER SIDNEY LINDEN: I don't 11 think that's what the question was, what the question 12 was -- 13 MR. JULIAN FALCONER: No, it wasn't the 14 question. It wasn't, it's simply development of the 15 evidence. I don't -- 16 THE WITNESS: Well, if I can -- if I can 17 help. I, of course, have no knowledge of what he's 18 thinking but I do know what he said and what I took from 19 it -- 20 MR. DERRY MILLAR: That's what I really 21 want -- 22 MR. JULIAN FALCONER: -- don't -- 23 COMMISSIONER SIDNEY LINDEN: -- and -- 24 MR. DERRY MILLAR: That's what I really 25 want --
1161 THE WITNESS: -- and that's what I 2 intended to be giving evidence. 3 4 CONTINUED BY MR. DERRY MILLAR: 5 Q: And -- and I -- you used the phrase, 6 what you thought the Premier was thinking. What I need 7 to know is what you understood and what you under --took 8 from the words used by the Premier. 9 A: What I -- what I took was that he 10 wanted, number 1, there to be respect for the policy 11 framework he was laying down; that the position of the 12 Government was that it was not appropriate for the First 13 Nations to be in the Park and that he wanted the -- the 14 steps taken to remove them. That was the policy of his 15 government. 16 And that, number 2, that he expected that 17 we would use professional judgment in how we went about 18 doing that. 19 Q: And what did you take from, he 20 expected you to use professional judgment as to how you 21 went about doing that? 22 A: I took from it that he understood 23 that there were decisions that would be made in the 24 course of this that would require professional judgment; 25 that he wasn't intending, at least I didn't take from
1171 what he said, that he expected that he could lay down any 2 kind of rule or text for how to manage every situation 3 and sub-situation that might arise out of it. 4 That he -- that he expected that we would 5 have to use professional judgment in circumstances in 6 which there were no clear instructions, but within the 7 policy framework that he'd given. 8 Q: Okay. And with respect to your 9 recollection of the meeting, was there anything -- did -- 10 was there anything -- do you have any comment on the 11 appropriateness, or otherwise, of what the Premier 12 indicated at the meeting? 13 A: The Premier is elected by the people 14 of the province to make policy. It was up to the Premier 15 to decide what the policy was. 16 He decided what the policy was and -- and 17 to that extent it was appropriate. 18 If you're asking me whether it's the 19 policy I would have preferred or not, that's another 20 matter. 21 Q: And did -- at the meeting, insofar as 22 you can recall, what instructions, if any, did the 23 Premier give to the Ontario Provincial Police? 24 A: I don't recall the Premier giving any 25 instructions of any kind to the Ontario Provincial
1181 Police. 2 Q: And how long did the meeting last, do 3 you recall? 4 A: I don't recall exactly, but as I 5 reconstruct in my mind the approximate length of the 6 various things that were said, I mean, I'm guessing it 7 lasted a half an hour or so. 8 Q: And did the Premier remain to the end 9 of the meeting or did the meeting -- did he leave and the 10 meeting continue? 11 A: My recollection is that the Premier 12 left and that some discussion carried on. 13 Q: And do you recall what discussion 14 there was after the Premier left the meeting? 15 A: I think it was in the nature of 16 informal discussion that took place with, you know, small 17 groups of people talking to each other about what had 18 happened at the meeting. 19 Q: And -- 20 A: I remember, for example, that Ron 21 Fox, the OPP liaison officer, came up to me after the 22 meeting and said that I'd been very clear on the issue 23 that the -- the operational management of this was for 24 the OPP and that he was glad that I had reinforced that 25 idea.
1191 So I think various people were talking to 2 each other about various parts of the -- 3 Q: And did you have any discussions or 4 overhear any discussions with Mr. Hodgson? 5 A: I don't believe so. 6 Q: And so that -- do you recall anything 7 else that took place at the meeting or after the Premier 8 left before the meeting broke up? 9 A: No. 10 Q: Now, the people in attendance at the 11 meeting were Mr. Harris, the Premier? 12 A: Yes. 13 Q: Mr. Runciman -- 14 A: Yes. 15 Q: -- the Solicitor General? Mr. 16 Harnick, the Attorney General? 17 A: Yes. 18 Q: Ms. -- Mr. Hodgson, the Ministry of 19 Natural Resources? 20 A: Yes. 21 Q: Mr. Vrancart? 22 A: Yes. 23 Q: Ms. Todres? 24 A: Ms. Todres. Yes. 25 Q: Ms. -- do -- do you know Ms. Hunt?
1201 A: Yes, I know Ms. Hunt. I don't recall 2 whether she was there or not. 3 Q: Mr. -- Inspector Fox was there? 4 A: Inspector Fox was there. 5 Q: And who else? Do you know an officer 6 by the name of Scott Patrick? 7 A: I don't recall if Scott Patrick was 8 there or not. I remember meeting Scott Patrick at the 9 time. I think David Moran the Attorney General's EA was 10 there. 11 Q: Yes. Do you recall if David Lindsey 12 was there? 13 A: David Lindsey was there, I think, 14 yes. 15 Q: And Ms. Hutton? 16 A: I believe Ms. Hutton was there and 17 perhaps Paul Rose. 18 Q: And Mr. Rose was the Premier's 19 communications person? 20 A: Yes. 21 Q: And I think you said that initially 22 someone from the Solicitor General spoke about the 23 separation between operational matters and the 24 Government? 25 A: Yes.
1211 Q: And who was that? 2 A: Elaine Todres. 3 Q: And the -- and I take it from what 4 you just told us, your conversation with Mr. Fox, that 5 you spoke about the same issue? 6 A: Yes. 7 Q: And do you recall what you said about 8 the issue? 9 A: I said that I thought it was 10 important to bear in mind that the best practice in the 11 situations was that when there was an ongoing law 12 enforcement matter that the police had the operational 13 management of it. 14 Q: And did anyone disagree with that? 15 A: No. 16 Q: And was there a discussion about -- 17 stop for a moment. Do you recall if Inspector Fox and 18 Mr. Patrick came into the meeting after the meeting had 19 started? 20 A: I don't recall. 21 Q: Do you recall if the attendees at -- 22 excuse me, at the meeting introduced themselves when the 23 meeting started? 24 A: I doubt it. It wouldn't have been 25 the usual practice. I have no specific -- most of the
1221 people knew each other and it wasn't the usual practice 2 at that kind of meeting to go around the table. 3 Q: Do you recall Mr. Lindsey -- 4 Inspector Fox has testified and -- and Scott Patrick, 5 that they came into the meeting after the meeting had 6 started and that Mr. Lindsey, David Lindsey announced 7 Inspector Ron Fox -- introduced Ron Fox as Inspector Ron 8 Fox. I believe that's -- that was Scott Patrick said 9 that, yeah. 10 Do you recall that happening? 11 A: No. I don't recall that. 12 Q: And was -- do you recall a discussion 13 about the -- you providing an overview of the injunction 14 process and how it should be done? 15 A: I recall, or at least, you know, in - 16 - in looking at the documents in preparation that I 17 discussed something about the issues involved in getting 18 an injunction and about the importance of the OPP having 19 an injunction in hand in the event that they decided to 20 go into the Park. 21 Q: But do you -- you refreshed your 22 memory from the documents. 23 Did you have any independent recollection 24 before you looked at the documents and discussing the 25 injunction?
1231 A: I have to refresh my memory about my 2 independent recollection now. I don't -- I don't recall 3 exactly what I had to say beyond what I've told you. 4 Q: And do you recall a discussion about 5 injunctions on notice or ex parte injunctions? 6 A: I think there was some discussion on 7 that point about what would be involved in getting the 8 injunction. I think the context was that the Premier had 9 made it clear that he'd like this done quickly and I 10 think that led to a discussion of the importance of 11 having an injunction. 12 And then to the idea that an ex parte 13 injunction could be faster but might not have a very 14 great affect; that an injunction on notice would take 15 longer. 16 Q: And when you say it might not have 17 any great affect, what do you mean by that? 18 A: Well, my view at the time was -- 19 perhaps I should explain in this way. 20 What I thought at the time and what I 21 think now was that the injunction was not a particularly 22 useful course of action because there was no indication 23 that the Ontario Provincial Police were going to go into 24 the Park to take anybody out. 25 So, they didn't need the injunction. And
1241 it seemed to me that looking for the injunction just 2 created the risk of destabilizing the situation and that 3 to do it ex parte carried the additional disadvantage 4 that nobody particularly likes to hear about an ex parte 5 injunction. 6 Now, all that being said, I didn't think 7 it made much difference whether the application was made 8 ex parte or not because I thought that even if the ex 9 parte injunction were obtained a Judge would almost 10 inevitably make it conditional on giving notice and 11 bringing the parties before the Court. 12 So, it seemed to me that the ex parte 13 injunction might solve an appearance problem of appearing 14 to do something quickly but wasn't likely to change the 15 substance of the thing because a Judge was likely to want 16 to have the parties before her, before making any order. 17 Q: And do you recall -- 18 A: Which is what happened in the end, 19 excuse me, but which is exactly what happened. 20 Q: That is what happened with Justice 21 Daudlin? 22 A: Yes. 23 Q: And do you recall a -- intervening in 24 a discussion between Mr. -- Minister -- Mr. Hodgson and 25 Mr. Fox when Mr. Hodgson was criticizing the police?
1251 A: No. 2 Q: Do you recall Mr. Hodgson criticizing 3 the police? 4 A: I don't specifically recall Mr. 5 Hodgson criticizing the police, no. 6 Q: You just don't recall one (1) way or 7 the other? 8 A: I just don't recall one (1) way or 9 the other. I do recall that at the meeting the -- the 10 tenor of the meeting if not the specific statement was 11 that the police should be acting to get these folks out 12 of the Park. 13 Q: And Scott Patrick testified that you 14 asked he, Scott Patrick and Ron Fox to leave the meeting 15 before it concluded. 16 Do you recall that? 17 A: I don't specifically recall that. 18 19 (BRIEF PAUSE) 20 21 A: What I do recall, if I could just go 22 on for a minute. 23 Q: Sure. 24 A: I -- I do recall, about this time, 25 getting some concern about the appearance of an overlap
1261 between the political side and the OPP side in the 2 management of the incident and it was that concern that 3 led to next day's restructuring of the way we met in 4 order to discuss these issues. 5 Q: What do you mean by that? Can you... 6 A: I didn't think it was appropriate for 7 there to be either the fact or the appearance of 8 politicians telling the OPP how to manage the incident on 9 the ground. And to the extent we had everybody in the 10 same room for every discussion it was open to both the -- 11 the appearance and the possibility of influence. 12 And I didn't think that was appropriate 13 because the convention, which I strongly believed in, was 14 that the police should have the operational authority of 15 the incident. 16 Q: And at the Premier's meeting was the 17 -- that line crossed with respect to operational -- the 18 political direction and the operational -- operations of 19 the OPP? 20 A: The Premier made what I regarded as 21 being a policy statement which was that -- that he 22 believed that the people should be out of the Park. 23 And I think that it's appropriate for the 24 Government to make policy. In principle, I don't think 25 there would be anything wrong with a government saying
1271 that we have zero tolerance of people who are illegally 2 in a Provincial Park. 3 I think the danger is that if you start 4 having those conversations with everyone in the same room 5 in the heat of the moment, there's a risk that it could 6 compromise the operational independence of the police. 7 Q: And were you concerned about that at 8 the Premier's meeting? 9 A: I was concerned about it at the 10 Premier's meeting. 11 Q: And Mr. Vrancart testified that you 12 inserted yourself into the discussion on a couple of 13 occasions and forcefully made the point that the 14 politicians had to be seen to not be instructing the 15 police on this matter. 16 A: Well, if I did that I'm glad. 17 Q: Do you recall doing that? 18 A: I don't recall specifically -- 19 Q: Beyond -- 20 A: -- doing that. 21 Q: And after the meeting, what did you 22 do? 23 A: I don't recall doing anything in 24 particular after the meeting. 25 Q: And --
1281 A: My understanding was that the Crown 2 Law office was working on the injunction. 3 Q: And what type of injunction were you 4 -- did you believe they were working on? 5 A: I think it's important to understand 6 that at the time the issue of whether or not the 7 injunction was on notice or ex parte was one that I, at 8 least, regarded as a technical one for the lawyers. 9 I didn't regard it as something on which I 10 needed to have an opinion or give an instruction and I 11 don't recall doing so. 12 I mean, I -- what I do recall is that 13 since the Government had made it perfectly clear that 14 they wanted this to happen right away, that I thought it 15 was important that we go as quickly as we could to get it 16 done. 17 That's what they'd asked us to do and I 18 thought that's what we should do. 19 Q: And do you recall giving instructions 20 to either Julie Jai, Tim McCabe or Elizabeth Christie 21 with respect to the issue of the injunction? 22 A: Well, the -- the Minister had given 23 us instruction and I don't recall giving anyone an 24 instruction as to whether or not to proceed ex parte or 25 not, and don't think I would have or could have done so,
1291 because of all the details involved in getting it; I 2 mean, can you get a Judge, where are you going to get it, 3 and so on. 4 I mean, all of that was at a level of -- 5 of detail that I wasn't involved. But I -- 6 Q: Ms. Christie testified that she had a 7 discussion with you some time after the IMC meeting on 8 the eleventh floor of 720 Bay Street. She couldn't 9 remember if it was after you had attended the Premier's 10 meeting or not and that your instructions to her were to 11 proceed with an injunction as quickly as possible. 12 She testified that there was either a rule 13 or procedural route through which it might be possible to 14 apply for an injunction that afternoon in Toronto, since 15 they could not get to Sarnia that quickly. 16 Do you have any recollection -- 17 A: I have no recollection of the 18 specifics of that conversation, but I think it would be 19 consistent with what I've said that I told them that the 20 Premier and the Minister wanted it now and we should be 21 trying to get it now. 22 Q: And if I could take you to Exhibit 23 509 again, which is among -- it should be on your left 24 hand side. 25 And these are the second group of minutes,
1301 of the minutes of the Interministerial -- the meeting 2 notes of the Interministerial Committee meeting on the 3 morning of September 6th, and -- 4 A: I think 509 is September 5 -- 5 Q: Yeah, if you keep going on. 6 A: Sorry. 7 Q: You'll see September 6th is the 8 latter part of that . 9 A: Right. Thank you. 10 Q: And the -- if you go to page 2, 11 there's a note "Minister's Directives". And under MAG: 12 "The Minister agrees that an 13 application -- application will be made 14 for an injunction." 15 And Ms. Jai testified that it was an 16 injunction as soon as possible, but a regular injunction 17 perhaps on short notice. 18 I'm trying to understand the -- trying to 19 figure out the -- the disconnect that -- from what you 20 recall and what she recalls as a result of the meeting 21 between you and she and Mr. Harnick. 22 A: I -- I don't know that there is a 23 disconnect. Help me with what the disconnect is. 24 Q: That the -- it's my understanding 25 from Ms. Jai's evidence that there was to be an
1311 injunction -- to be an injunction as soon as possible -- 2 as soon as possible, but a regular injunction perhaps on 3 short notice. And then there was a big -- there was a 4 discussion whether it should be ex parte or not. 5 I don't believe that her evidence wasn't 6 that it would be -- the injunction would be obtained in 7 twenty-four (24) hours. 8 A: Well, all I know is that I took care 9 to make a note, and I made the note because I thought it 10 was important that that had been said. And that's what I 11 believe was said. 12 Q: Okay. And if I could take you to the 13 last page of Exhibit P-509, Inquiry Document 1012288. 14 A: Sorry, would you say that once more, 15 please? 16 Q: The last page of that document that's 17 in front of you. 18 A: Okay. 19 Q: And there's a note under, "Next 20 Steps": 21 "It was agreed that an injunction 22 should be sought ASAP." 23 Then note: 24 "Following the meeting cabinet directed 25 MAG lawyers to apply immediately for an
1321 ex parte injunction. Tim McCabe, 2 Elizabeth Christie and Leith Hunter are 3 preparing the application and compiling 4 the supporting documentation." 5 Do you see that? 6 A: Yes. 7 Q: Now, this was added by Ms. Jai to 8 these notes some time on September the 6th and she 9 indicated in her evidence that she had not spoken to you 10 and -- but was there a direction coming out of the dining 11 room meeting that the lawyers should apply for an ex 12 parte injunction immediately? 13 A: I don't recall that. But -- 14 Q: And when you say you don't recall 15 that, what do you mean by that? 16 A: I -- I don't recall that at the time 17 there was, at least in my mind, any great importance 18 attached to this issue. 19 When the Government had simply asked to 20 get before the court as quickly as possible, my sense was 21 that the trade-off was essentially between Option A, get 22 there quickly and have a Judge tell you to come back in a 23 few days or wait a few days and have the Judge maybe be 24 ready to hear it, and that it was going to come out to 25 about the same in either case; that the Judge was not
1331 going to make an important order that was going to stick 2 for any period of time without hearing from the parties. 3 So, I think that, in my view at the time - 4 - and if you'll forgive me for saying so now, this is a 5 bit of a red herring. I mean, what -- what we know is 6 that the Government wanted the lawyers in Court quickly 7 because it wanted the First Peoples out of the Park 8 quickly. 9 And that's significant. The rest in my 10 view is really lawyer's technicalities that I didn't take 11 any great interest in at the time as I recall. 12 Q: And it was your view that no matter 13 what, a Judge would likely not deal with the matter 14 finally without having heard from the other side? 15 A: I can say the only thing I had not 16 contemplated was that a Judge would order papers dropped 17 from a helicopter. 18 Q: And -- 19 A: Apart from that, I thought that a 20 Judge would almost certainly want to hear from the other 21 side. 22 Q: Now, do you recall any references to 23 the holocaust at the dining room meeting; the Premier 24 making a reference to the holocaust? 25 A: I don't.
1341 Q: And do you recall anyone telling you 2 on the -- September 6th that at the Interministerial 3 Committee meeting words were attributed to Ms. Hutton 4 that the Premier said to: 5 "Get the fucking Indians out of the 6 Park and use guns if you have to." 7 A: Sorry. The -- those words were 8 attributed to the Premier at the dining room meeting? 9 Q: No, at the IMC meeting. 10 A: But, the Premier -- the -- sorry, 11 just so I understand your question, it was alleged by 12 someone that at the dining room meeting the Premier had 13 used those words? 14 Q: No, that it was alleged by someone 15 that at the IMC meeting that the -- that Deb Hutton had 16 used those words -- that said that the Premier had used 17 those words. 18 And the question is: Did anyone tell you 19 that on September 6th or thereafter? 20 A: I don't recall anything like that and 21 it's the sort of thing I'd probably remember. 22 Q: And did you hear anything like that 23 at the dining room meeting? 24 A: No. 25 Q: And again --
1351 A: Again, I mean, to be -- to be fair, I 2 -- I didn't hear anything said in that crude way, but 3 that being said, there was no mistaking the Premier's 4 intention. He -- he firmly thought that -- that the 5 First Nation should be removed from the Park. 6 Q: And did you hear anything from the 7 Premier with respect to the use of force? 8 A: I don't recall. I don't recall the 9 Premier saying anything inappropriate though. I don't 10 recall whether he -- he talked about the use of force or 11 not. 12 I do recall that he indicated that he 13 thought that the police, in other places, would have been 14 in there quickly getting people out. And it was that 15 that led me to say, Well, I wasn't so sure that was 16 right, that the police would move quickly and that I 17 thought there were lots of examples of the police talking 18 to people patiently, trying to make sure that nobody got 19 hurt. 20 Q: And when you talked to -- when you 21 referred to "police" where you referring to all police, 22 the OPP, or just police generally? 23 A: I think we were just talking about 24 policing practice, yeah. 25 Q: And you just said that you didn't
1361 hear anything -- the Premier say anything inappropriate 2 at the dining room meeting. 3 Did you hear anyone else say anything that 4 you thought to be inappropriate? 5 A: No. I heard things I disagreed with 6 but not things I thought were inappropriate. 7 Q: Now, if I could take you to Tab 25 8 for a moment? This is a copy of Exhibit P-653 Inquiry 9 Document 1011762 and this is an e-mail from Ms. Jai to 10 Mr. Lazor, Ms. Fordyce and your assistants -- assistant - 11 - executive assistant Frances Noronha, and it was sent at 12 approximately 12:54 p.m on September the 6th. 13 Do you recall being shown a copy of this 14 e-mail? 15 A: No. 16 Q: And the -- there's a -- in the second 17 paragraph there's a note: 18 "They've agreed upon..." 19 The first paragraph says: 20 "MAG staff and I met with Larry Taman 21 this morning and Larry and I briefly 22 met with the Minister to discuss the 23 Ipperwash occupation. The agreed upon 24 direction from the Minister and Deputy, 25 Following the discussion between the
1371 Minister and the Premier was the 2 following: We will apply for a civil 3 injunction ASAP. The goal is to remove 4 the occupiers from the Park ASAP. 5 Public safety including safety of the 6 OPP and MR -- MNR staff is key." 7 And does that accord with your 8 recollection? 9 A: In substance, yes. 10 Q: And did the -- at the meeting that 11 you had with Mr. Harnick did Mr. Harnick leave and -- the 12 meeting that you had with him, with Ms. Jai, during the 13 course of the meeting, or not? 14 A: I don't recall. 15 Q: Then at the -- at -- if I could take 16 you to the bottom under, "The Injunction:" 17 "Tim McCabe advised [and this is with 18 respect to the IMC meeting] that we do 19 not have grounds for an ex parte 20 injunction, however, we will take steps 21 to have an injunction heard ASAP and 22 could possibly get before a Judge in 23 Sarnia as early as this Friday. Tim 24 and others are working on an interim 25 injunction application post haste."
1381 And do you recall having a discussion with 2 Mr. McCabe or anyone else about not having grounds for an 3 ex parte injunction? 4 A: No. 5 Q: And do you -- do you agree or 6 disagree with that statement back then? 7 A: That we did not have grounds? 8 Q: Yes. 9 A: Well, as I've said a moment ago, I -- 10 I thought it was all a distinction without a difference. 11 I mean, I thought you might be able to persuade a Judge 12 to give an ex parte injunction but that it would almost 13 inevitably be an injunction for forty-eight (48) hours 14 pending service. 15 Now, during that time the First Peoples 16 would be in the Park. If there was no way of 17 communicating with them, it wouldn't count for anything. 18 There was no sign that in any case if someone had told 19 them there's an injunction they would have said, fine, 20 we're leaving. 21 And in the end, it seemed to me that you'd 22 be right back where you started which is that it would be 23 an injunction on notice and you'd have just wasted a 24 couple of days. 25 Q: Okay. And could I take you to
1391 Exhibit -- Tab 26 of the book in front of you. It's 2 Exhibit P-654, Inquiry Document 1003305. 3 A: Tab what again, I'm sorry. 4 Q: Tab 26. 5 A: Yeah. 6 Q: And it's an e-mail from Ms. Jai again 7 to Mr. Lazor, Ms. Fordyce and Ms. Noronha your assistant? 8 A: Yes. 9 Q: And I take it your secretary, Karen 10 Perrera? 11 A: Yes. 12 Q: And this -- do you recall seeing this 13 e-mail on the afternoon of September 6th? 14 A: No. 15 Q: Do you recall being advised of the 16 substance of the e-mail that an injunction was going to 17 be sought the next morning? 18 A: Yes, I believe I knew that they were 19 going to see a Judge the next morning. 20 Q: And one of the individuals that was 21 in the department was Mr. Mark Rosenberg? 22 A: Yes. 23 Q: And I think you said he was the 24 Assistant Deputy Minister with respect to civil and 25 constitutional law?
1401 A: Yes. 2 Q: And Mr. Rosenberg is now Mr. Justice 3 Rosenberg? 4 A: He is. 5 Q: And did you have any meeting with 6 Mark Rosenberg on September 6th with respect to 7 Ipperwash? 8 A: Not that I recall. He -- he wasn't 9 really, from my level, very much involved in this. 10 I don't know to what extent he might have 11 had some conversations with Mr. McCabe or others. 12 Q: And the lawyers that were working on 13 this, Mr. McCabe, Ms. Christie were, in effect, reported 14 to him? 15 A: Right. 16 Q: And as appropriate, they would report 17 to you? 18 A: Well, they reported to him. 19 Q: Okay. 20 A: Yeah. 21 Q: And but from your perspective did Mr. 22 Rosenberg have anything to do with Ipperwash? 23 A: No. 24 Q: And how did you learn of the tragedy 25 at -- outside Ipperwash Provincial Park?
1411 A: I was called at home in the morning. 2 Q: And do you recall who called you? 3 A: No. 4 Q: And do you recall when you were 5 called? 6 A: My recollection is that was in -- in 7 the early morning, but not the middle of the night. I 8 don't recall exactly when. 9 Q: And what did you do after you heard 10 about the death of Anthony Dudley George? 11 A: I think I was told that there were 12 meeting set up to -- to consider and to -- to deal with - 13 - with what had happened and that I went to work. 14 Q: And did you have a meeting on the 15 morning of September the 7th with Mr. Vrancart and Ms. 16 Todres, do you recall? 17 A: I mean, I recall being in meetings 18 pretty much all day every day through this period about 19 Mr. George's death and -- and these events. 20 Q: And if I could take you to Tab 23 of 21 the book in front of you and this is Inquiry Document 22 1012540. 23 A: 20? 24 Q: At 23. 25 A: Yeah. Thank you.
1421 Q: And for the benefit of My Friends, 2 Commissioner, when you're looking at this document, it's 3 Inquiry Document 1012540, the first four (4) pages that 4 appear in the supertext Inquiry document, and they have 5 on them, pages 98, 99, 193 and 194, and they're the last 6 four (4) pages of your -- of this tab, Mr. Taman, that 7 these four (4) pages were from 1996 and 1996 book and 8 just so that everyone understands that. 9 Now, these are copies of your notes? 10 A: Yes, they are. 11 Q: And these were notes that you made in 12 a large legal size notebook? 13 A: Notebook. Yeah. 14 Q: And you had a notebook for 1995, at 15 least one (1), and a notebook for 1996? 16 A: Yes. 17 Q: And the first note is this note. So, 18 perhaps, Commissioner, we could mark Inquiry Document 19 1012540, the notes at Tab 23 as the next exhibit. 20 THE REGISTRAR: P-940. 21 22 --- EXHIBIT NO. P-940: Document Number 1012540. 23 Handwritten notes of Larry 24 Taman from September 6th to 25 September 15th 1995.
1431 CONTINUED BY MR. DERRY MILLAR: 2 Q: And at the top is a note of Sept -- 3 it says September 6th, the note we referred to that's 4 already been marked as part of P-550, at page 111 there's 5 a note, and can you tell us what that note refers to? 6 A: This is a note that I used to guide 7 remarks I made to the meeting on the morning of the 7th. 8 Q: And this was a meeting of who? The 9 Deputy Ministers, or the IMC, or the IMC and Deputy 10 Ministers? 11 A: My recollection at the stage is that 12 it was again quite a large group of people and that there 13 was no clear dividing line as there was subsequently 14 between the Deputy's meeting and the -- and the IMC 15 meeting. 16 Q: And what were the purpose -- what was 17 the purpose of these notes? 18 A: Well, the purpose of the notes was to 19 under -- was to outline an approach that I believed 20 should be implemented in facing up to what had happened. 21 Q: And can you tell us what was 22 implemented? 23 A: I think from this point forward we 24 proceeded more or less along the lines of -- of what I 25 had suggested in this note.
1441 Q: And that was? 2 A: Well, what I said to the meeting was 3 that I thought the tests of our work would be; Number 1, 4 were we serious about the facts. 5 In the course of the previous couple of 6 days we'd had people say there were guns in the Park, 7 there were no guns in the Park, there were women and 8 children in the Park, there were no women and children in 9 the Park; that it was important to know what was going 10 on. 11 Secondly, that it was important to be 12 serious about our communications. That we couldn't have 13 everybody in government talking to the First Nations or 14 talking to the people of Ontario. So, that there should 15 be a single spokesperson. 16 And that we also had to have some order in 17 the interaction between the public servants and the 18 political staff, because if we didn't, we were going to 19 be vulnerable to the fact or the appearance or both that 20 the political staff were interfering in the operations or 21 that the operations people were making government policy. 22 And those were both equal risks in my 23 mind. 24 Q: And so as a result of that, what 25 structure did you recommend and what structure was put in
1451 place? 2 A: I suggested that there should be a 3 group of ministers and deputies who became what I called 4 in my note, the nerve centre and I think it was 5 subsequently referred to people as the nerve centre, and 6 that it should be their job to deal with the politics of 7 the situation and to connect to the politics to the 8 implementation on the ground. 9 Then underneath that there should be the B 10 Blockade Committee which was essentially the 11 Interministerial Committee, and that the police input 12 should be at that level. So, this would mean that the 13 policing issues would really come in at two (2) points. 14 One through the Blockade Committee and 15 secondly through the Solicitor General as the Minister 16 responsible for police. And that the nerve centre should 17 report -- should be responsible directly to the Premier 18 and that it should have its own spokesperson as should 19 the police. 20 Q: And what about the composition of the 21 Blockade Committee? 22 A: I believe that the Blockade Committee 23 was essentially what had been the Interministerial 24 Committee and in its -- in its focus on this issue. 25 Q: And what about political aides?
1461 A: The political people would on this 2 version of -- of -- on this process be part of the nerve 3 centre, not part of the -- the Interministerial 4 Committee. 5 Q: And what was -- be the role of the 6 Interministerial Committee? 7 A: Well the Interministerial Committee 8 would continue to be the organization that exchanged 9 information about the -- the events on the ground. The - 10 - the Blockade Committee or the Interministerial 11 Committee wasn't managing the incident either. They were 12 meant to be the link between the Government and the -- 13 and the police. 14 Q: And when you say the link between the 15 Government and the police, what do you mean by that, or 16 what did you mean by that back on September 7th, 1995? 17 A: I guess in fact there were -- I mean, 18 there were two (2) levels of linkage between the 19 Government and the police under this proposal. I mean, 20 one (1) was an operational level. 21 The police, for example, had to be able to 22 ask questions about the, you know, where are we with the 23 injunction; what if an adjoining landowner claims this 24 that or the other thing 25 So, there were operational issues that it
1471 seemed to me to be appropriate for middle level civil 2 servants to be dealing with. 3 Q: So, that they would be -- do I take 4 it from what you've said that you saw them as a resource 5 for the police? 6 A: Yes, I think that's right. 7 Q: And what else were they to do, if 8 any? 9 A: I think that they were to be a 10 resource for the police in -- in managing. They were to 11 be reporting to the nerve centre on issues that arose in 12 the course of the -- of the management so they were to be 13 the eyes and ears of the Government on the ground. 14 Q: And the notes on page 112, 113 and 15 114, do they relate to the same meeting and discussions 16 at the same meeting? 17 A: Yes. As far as I can recall. Mr. 18 Millar, can I just say one more thing about -- 19 Q: Sure. 20 A: -- 111, please? 21 Q: Yes. 22 A: I think it's important for everybody 23 to understand that it's easy to talk about government 24 making policy and police managing operations, but there's 25 no clear dividing line those two (2) things in principle.
1481 And in some cases the dividing line may be quite 2 difficult to find all together. 3 Let me give you an example. It's hard to 4 imagine how the police could manage a situation like this 5 without dialoguing with the people. And that would be an 6 -- a normal part of the work of the police would be to 7 dialogue with the people in the Park. They're trying to 8 get them to come out without incident. They can't do 9 that without talking to them. 10 But, talking to them about what? Now, 11 suppose for example, that the police in the -- the people 12 in the Park say that we will talk to you about coming out 13 if you will talk to us about the burial site; if you will 14 talk to us about ownership of this site; if you will talk 15 to us about rescinding Treaty arrangements between us. 16 It's quite an important matter of public 17 policy whether those issues are on the table or not. But 18 in a -- in a situation like this, they are also very 19 intensely on the ground and so it's for this reason that 20 I think it's not so easy to make a separation between 21 what's policy and what's operations. 22 And it was for that reason that I was 23 looking for some structure that could help us keep some 24 line alive and keep ourselves alert to when we were 25 approaching a line and -- and -- and dealing with it
1491 properly. 2 Q: And could the police have discussed 3 the issue of the burial ground or the surrender or the 4 ownership of the land? 5 A: Well again, I think the -- I think in 6 my -- in my opinion it was open to the Government to say 7 yes or no to those issues. 8 I think it was an important matter of 9 government policy whether or not the surrender was on the 10 table. 11 Q: But the Ontario Provincial Police 12 could not, by themselves, make those kinds of decisions? 13 A: In my view that would not be proper. 14 Q: And the -- as I understand it, at 15 least up until September the -- end of September the 6th, 16 those were not issues to be discussed with the occupiers 17 of the Park? 18 A: That is to say we don't know that any 19 such discussion ever took place. 20 Q: Well, it had been my understanding 21 that the position as -- of the Government was that there 22 would be no such discussions as long as there was -- the 23 Park was being occupied. 24 A: That was the position of the 25 Government.
1501 Q: And so what I'm trying to under -- 2 better understand is what the police were -- the OPP and 3 the Interministerial Committee meeting were supposed to 4 do in your new system, as of September the 7th? 5 A: Well, they were supposed to report on 6 what was happening on the ground. They were supposed to 7 indicate any issues that they thought needed to be 8 considered at the political level and report them up. 9 And the nerve centre was to do exactly the 10 same the other way around. 11 Q: So that any issue, for example, of 12 the -- of the ownership of the land, of the burial 13 ground, of the surrenders or treaty rights, would have to 14 be decided -- referred up to the nerve centre? 15 A: Yeah, absolutely. And I think that 16 the idea of the structure was that it would permit those 17 discussions to take place without compromising the 18 actions of -- of either side. 19 Q: Okay. And I take it that the 20 structure was put in place and that from then on the 21 Interministerial Committee met, I think it's name was -- 22 assigned the name the support group. 23 Do you recall that? 24 A: I saw -- I saw that in the document. 25 Q: And is that one in the same --
1511 A: Yes. 2 Q: -- as the Interministerial -- the 3 blockade committee on page 111 of your notes? 4 A: Yes. 5 Q: And the balance of page 112, page 113 6 relates to further things that went on at the meeting? 7 A: Yes. 8 Q: And at page 113, there's actions and 9 what do they refer to? 10 A: They refer to steps that -- that 11 needed to be taken after the meeting. 12 Q: And item 1, Further Release, there's 13 a note it appears to be "who" and then, "who called OPP?" 14 A: I think "further release" meant that 15 a decision had to be taken about whether there would be a 16 further communication about the incident in which Mr. 17 George was killed. 18 Q: And then the reference to -- is it -- 19 does it read, "who called OPP?" 20 A: I don't know what that means. 21 Q: Okay. And then item number 2, "Other 22 info." 23 A: I think that referred to gathering, 24 continuing to gather information about what had gone on. 25 Q: And number 3 --
1521 A: And what was going on. 2 Q: Okay, number 3? 3 A: Communications with groups through 4 the blockade committee. 5 I'm not sure I know what that means now. 6 Q: Okay. Item number 4? 7 A: We had asked the OPP to do a report 8 on its preparedness. 9 Q: And what were you referring to by 10 that? 11 A: I mean, what -- what were they 12 prepared to deal with and how were they preparing. 13 Q: Okay. And did you receive such a 14 report? 15 A: I expect that we did in the -- in the 16 -- in the course of these meetings which were held every 17 day for quite some time. 18 Q: And do you have any -- do you have 19 any recollection right now? 20 A: No. 21 Q: Okay. Item number 5? 22 A: The AG preparedness; that the AG was 23 also supposed to assess its preparedness. 24 Q: And with respect to what? 25 A: To supporting the police with any
1531 legal initiatives that needed to be taken. 2 Q: And number 6? 3 A: I think what it says is that I will 4 tell the Blockade Committee that there is to be no 5 politics in their work. 6 Q: And what did that mean? 7 A: I think it meant that they were to 8 stay out of politics and vice versa. 9 Q: Okay. And then the next line, I 10 can't read the first word, something, five o'clock 11 meeting? 12 A: I don't know what that says. 13 Q: Then can you tell us what the notes 14 say for the balance of the page, Mr. Taman? 15 A: I think the first bullet says the 16 communications on issues are for the police so that the 17 police were to be the spokespersons for what was -- what 18 was happening on the ground. It says: 19 "Preparedness is separate and 20 distinct." 21 I'm not sure I know what that means and it 22 says: 23 "Context communications." 24 And I think that this related to a 25 discussion about the importance of communications,
1541 showing some of the broad context of what was going on. 2 Q: And when you mean, referring to 3 "broad context?" 4 A: The background. How it -- how it -- 5 you know, how the first peoples came to be in the Park, 6 what their claims and issues were, and so on. 7 Q: And then there's three (3) little 8 circles at the bottom with an arrow on the right-hand 9 side. The circle on the immediate left-hand side, can 10 you tell us what that -- 11 A: I think it says, "Other areas; rest 12 of province." 13 Are there similar issues happening or 14 possibly happening in other parts of the province? 15 Q: And then the middle circle is 16 "Ipperwash?" 17 A: Yeah. 18 Q: And then the right-hand circle 19 there's -- 20 A: It says, "Background context." 21 Q: And then an arrow down to -- and I 22 can't read the words that are below that? 23 A: I think it says, "Dissident group not 24 supported." 25 Q: Okay. And the last line?
1551 A: I can't read it. It says, 2 "Investigation," but I don't know what that means. 3 Q: Now do you... 4 5 (BRIEF PAUSE) 6 7 Q: On page 114 there's a note, "Ron 8 Fox," and a telephone number. 9 Did you have discussions with Ron Fox 10 during this period? 11 A: I saw -- I saw Mr. Fox at various 12 meetings. 13 Q: And did you call -- we -- did you 14 call Ron Fox on September 7th that you can -- 15 A: I don't think I ever called Ron Fox, 16 but I'm not absolutely certain of that. But I don't know 17 why I would. 18 Q: Okay. And there's a note we saw 19 earlier that on September 6th Julie Jai, I believe, made 20 a note that Larry Taman wants to talk to Elaine Todres 21 and Ron Fox. 22 And do you have any recollection of why, 23 on September 6, you wanted to talk to Elaine Todres and 24 Ron Fox? 25 A: I think that I may have wanted -- I -
1561 - I may have wanted to talk to them to be sure I 2 understood what the OPP thought about the issue of the 3 injunction. 4 Q: Then on page 114, "Issues?" 5 And what do they refer to? 6 A: It's just my note of some things that 7 I think that need to be studied and thought about and one 8 (1) is the -- the -- the possible federal role. 9 Secondly, was about trying to keep various 10 matters including the federal role connected through the 11 nerve centre. 12 The third was trying to improve our 13 understanding of the historical events. 14 Trying to -- trying to understand whether 15 there's a land claim is the fourth bullet point. 16 Q: "The fourth." 17 And the next note at 115 is a note of -- 18 can you tell us what that note refers to? 19 It says "Tim" at the top. 20 A: I had a conversation with Mr. McCabe. 21 He told me about what Justice Daudlin had ordered. I 22 thought that the idea of dropping materials on people 23 from a helicopter was very ill-advised. And it was 24 exactly the sort of thing that I had in mind when I 25 thought earlier about how an injunction got -- you know,
1571 could get a life of its own. 2 I mean in a one (1) minutes -- one (1) 3 minute everything is relatively stable and the next 4 minute you're circling people with a helicopter. 5 And it didn't make any sense to me and I 6 told Tim McCabe that we would not be dropping materials 7 from a helicopter. 8 Q: And did you ask Tim McCabe to go back 9 and speak to Mr. Justice Daudlin? 10 A: Yes. 11 Q: And did Mr. Justice -- did Mr. McCabe 12 report back to you with respect to the -- what happened 13 with respect to Mr. Justice Daudlin? 14 A: Well I asked Tim McCabe to try to 15 make it clear to the Judge that whatever he'd been 16 thinking at the time, that our opinion was that this was 17 extremely dangerous and ill-advised. 18 I mean, first of all you might hurt 19 somebody when you dropped in on them. Secondly, if 20 people really did have weapons you -- you now had the 21 possibility of someone shooting at a helicopter. 22 Was it possible that a helicopter would 23 shoot back? It seemed to me that it created all sorts of 24 very serious problems that were completely unnecessary. 25 I asked Tim to communicate this to Justice
1581 Daudlin. My recollection is that Justice Daudlin didn't 2 agree and wouldn't change the Order. 3 The Order, you'll recall, required this to 4 be done as -- as I read it. It didn't say, if you want 5 to continue with this matter you -- you -- you must 6 effect service and here's how you can do it. 7 It ordered the Crown to drop legal 8 documents on people by helicopter. And so my 9 understanding was that Tim McCabe went and spoke to 10 Justice Daudlin, told him what the concerns were and 11 Justice Daudlin, as I say, remained unmoved. 12 Q: And could I take you to Tab 44, 13 please? 14 15 (BRIEF PAUSE) 16 17 Q: And this is Inquiry document 1001478. 18 It's a fax dated September 7, 1995 from -- to you -- it 19 was sent from the Crown Attorney's office in Sarnia. I 20 believe it's from Tim McCabe. 21 Did you receive this fax? 22 A: I don't know, but I was certainly 23 told about it. 24 Q: And the comment is: 25 "Please deliver ASAP. Justice Daudlin
1591 would not alter his Order in any way. 2 Attached is the issued and entered 3 Order." 4 And you were told, as you've just said, 5 that Justice Daudlin would not make a change? 6 A: Right. 7 Q: And a copy of Justice Daudlin's Order 8 appears at Tab 48. It's been marked as Exhibit P-442 and 9 you saw that -- have you seen this Order before? 10 A: Yes. 11 Q: And perhaps we could mark Inquiry 12 Document 1001478 as the next exhibit, Commissioner, 13 please? 14 THE REGISTRAR: P-941, Your Honour. 15 16 --- EXHIBIT NO. P-941: Document Number 1001478. 17 Handwritten fax sheet 18 addressed to Larry Taman from 19 Crown Attorney's Office, 20 County of Lambton, September 21 07/'95. 22 23 CONTINUED BY MR. DERRY MILLAR: 24 Q: And as a result of the decision, and 25 perhaps I could take you actually, Mr. Taman, to the
1601 paragraph 8 of the Order. And this is an Order -- the 2 copy that we have is the last -- third last page. 3 Exhibit P-442 is as altered as a result of the events of 4 May the -- September the 8th. 5 A: So we're at Tab...? 6 Q: Tab 48. 7 A: Yeah. 8 Q: And it's the fifth page. 9 A: Yes. 10 Q: Paragraph 8. 11 A: Paragraph 8. 12 Q: "This court orders that service of 13 this Order is to be effected upon the 14 occupants of the Park by [first it's] 15 posting and [then second] dropping by 16 aircraft upon the Park." 17 And that's the provision that you wanted 18 changed? 19 A: Yes. 20 Q: Now, can I take you back to Tab 32? 21 And we don't know whose notes these are but there's a 22 reference to you on the last page. It's Inquiry Document 23 1012559. 24 A: Yes. 25 Q: And under, "Larry Taman," there are
1611 some notes: 2 "Not a satisfactory situation. Need 3 injunction. Cloud over general actions 4 of police. [Something] decision 5 reinforcement for civil authorities for 6 the court. Appears [and then] 7 reasonable [something] of service." 8 Do you have any recollection of having a 9 discussion with anyone back in September '95 along these 10 lines? We're trying to identify -- I'm told they may be 11 the notes of Leah Price. 12 Do you recall having a discussion with 13 Leah Price back in September of '95 about the injunction? 14 A: I recall that Leah was a senior 15 counsel in the -- in the Crown Law Office and that 16 because Tim McCabe was in London, that I was trying to 17 get him some assistance in getting this Order varied. 18 Q: And when you heard that Justice 19 Daudlin would not change the Order, what did, if 20 anything, did you do? 21 Or what instructions, if any, did you 22 give? 23 A: I gave an instruction that they were 24 to find a way to get the Order changed and that they were 25 not to drop it on people from a helicopter.
1621 Q: Okay. And did you have any 2 discussion with someone about going to London with 3 respect to the Order? 4 A: My -- my sense of the -- of the law 5 on this was that an injunction was an order of the court, 6 not an order of the judge and that as long as the matter 7 was live, it was always open to you to go to court and 8 ask another judge to -- to look at the matter again. 9 Now, no judge is likely to be too keen to 10 simply alter the order of another judge. But I thought, 11 in the circumstance, there might be one other person who 12 thought it was not such a good idea to do this. 13 And so I suggested to them that they just 14 go find another judge. And that they asked for the 15 alteration that -- that the -- we had suggested which is 16 that we be able to serve it some other way or that in the 17 alternative we -- we didn't have to serve it if we didn't 18 want to. 19 And in the end -- in the end they got 20 before another judge and -- and, as I recall it, he 21 allowed that it could be served in some other way. 22 Q: And at -- in the material that's to 23 your left, there's a copy of Exhibit P-754, Inquiry 24 Document 1006006 dated September 7th, 1995. 25
1631 (BRIEF PAUSE) 2 3 A: I have it, thank you. Thank you. 4 Q: And this is a note. Actually a 5 memorandum from Leah Price to Tim McCabe. 6 "Tim. I attach three (3) versions of a 7 Notice of Motion. One contains the 8 wording suggested by Larry re. para 7. 9 The second deletes all of para 7. 10 Since Andrew Macdonald's suggestion 11 might get instructions to seek this 12 tomorrow at 7:00 a.m. 13 The third is the original Notice of 14 Motion which includes leave to appeal 15 in case you are directed by the judge 16 to proceed that way." 17 Then there's a note: 18 "Scott suggests you work out of the 19 Crown's office in the courthouse. They 20 should be able to help with the support 21 services." 22 Now, do you recall at paragraph 7 in the 23 first order -- the first Notice of Motion which Ms. Price 24 attributes to you is -- refers to paragraph 7 of the 25 order of Mr. Justice Daudlin as I understand it and the
1641 deletion of words in the second -- from the second line 2 to the bottom. 3 And paragraph 7 of Justice Daudlin's order 4 which appears, Mr. Taman, at Tab 58 says: 5 "This Court orders that enforcement of 6 this interim injunction is to be stayed 7 until 12:00 noon on September 11, 1995, 8 but this order is to be -- not to be 9 interpreted as precluding such action 10 as may be necessary outside of the 11 confines of the Park to preserve public 12 peace and safety and to assure safe 13 passage of the public upon the public 14 roadways surrounding the Park and Camp 15 Ipperwash and the proposed deletion 16 that Leah Price attributes to you is 17 the deletion of the words, "But this 18 order is not to be interpreted as 19 precluding such action," et cetera." 20 Do you recall making a suggestion that 21 those words be deleted from the order? 22 23 (BRIEF PAUSE) 24 25 A: I don't recall that specifically, no.
1651 Q: And do you recall if there was an 2 issue arose about those -- those words? 3 A: I really don't recall what this 4 particular element is about. 5 Q: And at -- there's a copy of the order 6 P --- excuse me a Notice of Motion Exhibit P-739 Inquiry 7 Document 1005996. That should be in the file -- it 8 should have been -- it should have been the next 9 document. 10 And this is what I believe to be the 11 Notice of Motion for September the 8th. The first 12 paragraph refers to the deletion in paragraph 7 and the 13 second paragraph refers to substituting for paragraph 8 14 the following: 15 "This Court orders that service of this 16 order is to be effected upon the 17 occupants of the Park by radio or 18 television or by loudhailer in manner 19 to be determined by the Ontario 20 Provincial Police." 21 And was that the instruction ultimately 22 given to Mr. McCabe to deal with this situation? 23 A: Yes, I -- I don't recall whether or 24 not the -- the -- my instruction was as specific as 25 drafting this language, but it certainly was that he was
1661 to look for some safer method of service. 2 Q: And in fact Mr. McCabe appeared 3 before Mr. Justice Flinn on May 8th, 1995, in London and 4 he issued the order that -- granted the order that 5 appears at Tab 49? 6 A: Yes. 7 Q: And have you seen that order before? 8 A: Yes. 9 Q: And paragraph 1 of his order makes 10 the changes that are reflected in handwriting on the copy 11 of Exhibit P-442 that's in our material. 12 A: All right. 13 Q: And it changes to -- is to -- to may 14 be affected? And it was that the discretion was granted 15 to the Plaintiffs as to how the order would be served? 16 Is that your recollection of what happened? 17 A: Yes. 18 Q: Now, I'll come back to the injunction 19 in a moment, but could I take you to Tab 33 of the book? 20 21 (BRIEF PAUSE) 22 23 Q: And this is a note, September 7th, 24 1995. Did you see this -- it's Exhibit P-596, had you 25 seen this document before?
1671 A: I don't believe so. 2 Q: And during this period, on September 3 the 6th at the dining room meeting, was Commissioner Tom 4 O'Grady at the meeting? 5 A: I'm quite sure he was not. 6 Q: And did you have any discussions with 7 Commissioner Tom O'Grady on September 6th or September 8 7th? 9 A: To the best of my knowledge, I never 10 spoke to Commissioner O'Grady about this matter. 11 Q: And on September 6th, 1995 did you, 12 as Deputy Attorney General, give any instructions to the 13 police? 14 A: Never. 15 Q: Did you have any conversations with 16 the Incident Commander, John Carson? 17 A: No. 18 Q: Did you have any conversations with 19 Superintendent Tony Parkin? 20 A: No. 21 Q: Did you have any conversations on 22 September the 6th with Chief Superintendent Coles? 23 A: No. 24 Q: Or assistant Commissioner Boose? 25 A: No.
1681 Q: Or to complete the circle, anyone at 2 the OPP? 3 A: No. 4 Q: With respect to the matters at OPP, 5 other than Ron Fox? 6 A: Other than Ron Fox. 7 Q: And did you give Ron Fox any 8 instructions with respect with what the police were to do 9 at -- involving the matter at Ipperwash Provincial Park? 10 A: No. 11 Q: Would this be an appropriate time for 12 a break, sir? 13 COMMISSIONER SIDNEY LINDEN: I think it 14 would be a good time for a break, thank you. 15 THE REGISTRAR: This Inquiry will recess 16 for fifteen (15) minutes. 17 18 --- Upon recessing at 3:42 p.m. 19 --- Upon resuming at 4:00 p.m. 20 21 THE REGISTRAR: This Inquiry is now 22 resumed. Please be seated. 23 24 (BRIEF PAUSE) 25
1691 CONTINUED BY MR. DERRY MILLAR: 2 Q: Mr. Taman, could I take you please to 3 Tab 36? And this is Inquiry document 1012359. It's a 4 background note entitled, "Background Note for Larry 5 Taman, Deputy Attorney General, draft," dated September 6 7, 1995. 7 And do you recall seeing this document or 8 receiving this document on or about September 7th, 1995? 9 A: I don't recall seeing this document. 10 I do recall discussing these issues with the ONAS people. 11 Q: And these issues being the background 12 to the -- with respect to Camp Ipperwash? 13 A: Yes. And this was part of the 14 response to the note I referred to earlier about trying 15 to get more of the context clearer. 16 Q: And -- but while you don't recall 17 this particular document, you do recall discussing the 18 history of the matter? 19 A: Yes. 20 Q: Perhaps we could mark that as the 21 next exhibit? 22 THE REGISTRAR: P-942, Your Honour. 23 24 --- EXHIBIT NO. P-942: Document Number 1012359. 25 Draft background note for
1701 Larry Taman, September 2 07/'95. 3 4 MR. DERRY MILLAR: Commissioner, we 5 referred, this morning, to Inquiry document 3001652 with 6 the notes that I referred to that were on the fourth 7 page, which is identified as a back page. And I believe 8 that I may have neglected to ask that this be marked as 9 an exhibit. 10 THE REGISTRAR: What is the document 11 number again? 12 MR. DERRY MILLAR: It's 3001652. 13 THE REGISTRAR: P-943, Your Honour. 14 15 --- EXHIBIT NO. P-943: Document Number 3001652. 16 Criminal and Civil 17 proceedings memo to terminate 18 the occupation of Ipperwash 19 Provincial Park by the Stoney 20 Pointers, September 05/06 21 1995. 22 23 MR. DERRY MILLAR: And unfortunately it 24 will appear in the wrong place in the transcript, but 25 it's the document I referred Mr. Taman to this morning.
1711 So, it's P-943? 2 THE REGISTRAR: Yes. 3 4 CONTINUED BY MR. DERRY MILLAR: 5 Q: Now, at Tab 37 there's a copy of 6 Exhibit P-659, 1011845. And again it has attached to it 7 -- it's a memo and attached to it there's a background 8 note and some other information and it's addressed to 9 you, Elaine Todres and Ron Vrancart. 10 And do you recall receiving this document 11 on September the 7th? 12 A: This looks to me like the concluded 13 version of the draft that was at the previous document. 14 And, again, I recall discussing what was in the document. 15 I'm not sure if I read it or not. 16 Q: And I note that on page 2, there is a 17 note at the bottom: 18 "Aboriginal people have on occasion to 19 use the Park without a permit for 20 ceremonial purposes although they did 21 not choose to do so this year. In 1993 22 they placed a trailer in the Park that 23 was used for a short period as a place 24 from which they distributed cultural 25 information.
1721 Despite recent statements by the Stoney 2 Pointers claiming there was a burial 3 site in the Park, we have no 4 information that a burial site exists. 5 Further, we are checking to confirm 6 that the Registrar under the Cemeteries 7 Act of Ontario but no one Aboriginal or 8 otherwise have identified the existence 9 of a burial site or an unapproved 10 'Aboriginal people's cemetery' in the 11 Park." 12 And that's got an 'X' through it. 13 Do you know why that has an 'X' through 14 it? 15 A: No. 16 Q: And on September 7th do you recall 17 having a meeting with Mr. Harnick, Mr. Runciman, Mr. 18 Hodgson, Ms. Todres, Mr. Vrancart, at the Solicitor 19 General's office? And I believe it took place in the 20 late afternoon. 21 A: I don't specifically recall that 22 meeting. There were lots of them. 23 Q: And do you recall a discussion with 24 Mr. Hodgson about the helicopter being -- dropping 25 material from a helicopter and a reference to a
1731 television show? 2 A: No. 3 Q: And on your notes, we go back to 4 Exhibit P-940 at Tab 23, there is a note "September 8, 5 1995, update". 6 And what does that refer to, Mr. Taman? 7 A: I believe these are my notes of the 8 meeting that day of the so-called nerve centre. 9 Q: And was a decision made -- at some 10 point there was a decision made not to proceed with the 11 injunction? 12 A: There was a decision made to withdraw 13 the injunction, yes. 14 Q: And who made that decision and why? 15 A: I'm not sure who made the decision. 16 I believe it was made because of the impending funeral of 17 Mr. George. 18 Q: And did you give instructions to Mr. 19 McCabe to withdraw the application for an injunction? 20 A: I don't know if I gave the 21 instruction, but I know that I gave some comments on the 22 statement that was read into court at the time it was 23 withdrawn. 24 Q: And -- excuse me for a moment, 25 Commissioner.
1741 (BRIEF PAUSE) 2 3 Q: You should have beside you a copy of 4 a document; it's P-756. Inquiry Document 1003722. 5 6 (BRIEF PAUSE) 7 8 Q: And -- 9 A: I don't think I do have that, Mr. 10 Millar, sorry. 11 12 (BRIEF PAUSE) 13 14 Q: And if I could ask you to turn to Tab 15 52 of the book. And the -- at Tab 52 is a copy of 16 Inquiry Document 1003490. It's a fax to Julie Jai from 17 Andrew MacDonald with a note: 18 "Tim McCabe has confirmed withdrawal of 19 injunction with attached statement." 20 And Exhibit 7 -- P-756 is a fax from Tim 21 McCabe to Dave Carson dated September 12th, 1995, and 22 attached to it is -- it's called -- the statement that 23 was read into Court. 24 And do you recall what input you had into 25 the -- the statement?
1751 A: I recall being shown the -- the 2 statement before it was read and making some suggestions. 3 Q: And I believe that one (1) of the 4 suggestions Mr. McCabe said you made was to refer to the 5 Plaintiffs as opposed to the Ontario Provincial Police. 6 Do you recall what suggestions you made? 7 A: I don't really recall what 8 suggestions I made. 9 Q: And -- but, do you recall today who 10 made the decision to withdraw the injunction? 11 A: I don't. 12 Q: And do you recall today whether you 13 made that decision? 14 A: I just don't recall. 15 Q: Could you have made the decision to 16 withdraw the injunction or would you have needed 17 instructions from one (1) of the Ministers? 18 A: I would certainly have discussed it 19 with the Attorney General. 20 Q: Okay. So, that you wouldn't have 21 made that decision on your own? 22 A: No. 23 Q: But, you -- you don't know if you did 24 or didn't make that decision? 25 A: I don't know if I did or didn't.
1761 Q: And at Tab 50 there's a document 2 that's dated September 8th, 1995, and it's a copy of 3 Exhibit P-667, Inquiry Document 1011859. 4 And it's topic is, Assertion of Claim to 5 Ipperwash Provincial Park and the Land Claims Process. 6 Did you receive a copy of this document? 7 A: I don't recall, but I often saw these 8 briefing notes in the early days when I was the Deputy of 9 ONAS. 10 Q: Now, if we could go back to your 11 notes at Tab 23. 12 13 (BRIEF PAUSE) 14 15 Q: On September 11th there is a -- a 16 note, "Elaine's meeting," and what does that refer to, 17 Elaine's meeting? 18 A: That's the nerve centre meeting. 19 Q: And I take it this is a note with 20 respect to the nerve centre meeting on September the 21 11th? 22 A: Yes. 23 Q: And at the top of page 121, there's a 24 note: 25 "ONAS (staff/political) [and to the
1771 left is] action." 2 Have I read that correctly? 3 A: Yes. 4 Q: And then the next line, "to 5 followup." 6 What does that refer to? 7 8 (BRIEF PAUSE) 9 10 A: I don't know. 11 Q: Okay. And at page 122 of the notes, 12 Exhibit P-940. There's a reference in the middle of the 13 -- at the top of that page there's a -- it appears to be 14 framework and then about a third of the way down there's 15 a heading, it appears to be, "Premier," does -- what does 16 that say, sir? 17 A: It says, "Premier" and then 18 underneath it says, "Harcourt," and -- 19 Q: And -- 20 A: And then -- 21 Q: Yes. 22 A: And then: 23 "Why are we not in Court? Planning to 24 proceed in due course. Irwin speak to 25 Minister. Me, injunction to proceed.
1781 Local people. Get in front of issues. 2 Provide protection for families. OPP 3 to provide protection for families. 4 Sol Gen to support families. AG to 5 call." 6 Q: And what does that -- what do those 7 notes refer to? 8 A: My recollection is that at this and - 9 - and subsequent meetings that there were -- there was 10 information that some local people did not feel safe. 11 They weren't sure what was going to happen. 12 There was a feeling they weren't getting 13 good information about what was going on. 14 Q: And the reference: 15 "Premier [then] Harcourt [and then] why 16 are we not in Court - planning to 17 proceed in due course." 18 What does that refer to? 19 A: I mean I just take it from what's 20 written that at this meeting someone asked why -- why we 21 weren't carrying on with the injunction and that an 22 answer had been given that we were planning to proceed in 23 due course. 24 Q: Can I take you to Tab 51, Exhibit P- 25 668, Inquiry document 1012573?
1791 It's a letter from Cindy Elder to Suzanne 2 Zagar, Z-A-G-A-R, at ONAS and do you recall seeing this 3 letter before? 4 A: No. 5 Q: And did you know Cindy Elder? 6 A: No. 7 Q: Then if I could take you back to 8 Exhibit P-940, your notes at Tab 23. 9 At page 123, there's a note: 10 "Next Steps - no [something] today." 11 Then the next -- it's at the third of the 12 way up on page 123. 13 A: Yes. 14 Q: Can you tell us what that says? 15 A: Under "Next Steps," is that where -- 16 Q: Yes. 17 A: -- you're reading? 18 Q: Yes. 19 A: "No discussions today. Operational, 20 e.g. patrols." 21 Q: And what's that referring to? 22 A: I don't know. 23 Q: Okay. And on page 124, there's a 24 heading, "Sol Gen," and then it -- can you tell us what 25 it says to the right of Sol Gen at the top of the page?
1801 A: I think that this would be 2 representative of -- of Sol Gen speaking at the meeting. 3 Q: Yes. 4 A: Information that the public is 5 compassionate to the situation, asking about the 6 injunction, asking about the safety of cottagers. 7 Q: And then ONAS? 8 A: It says: 9 "Story for tomorrow. 'H' [would be Mr. 10 Harnick, the Attorney General] will be 11 meeting with the federal Minister. 12 Will be meeting with third parties." 13 Q: Then? 14 A: And then it says: 15 "Manage Irwin." 16 Q: And Mr. Irwin was the Federal... 17 A: Was the Federal Minister. 18 Q: Of Indian -- 19 A: Of Indian -- 20 Q: Indian Affairs and... A: Yes. 21 Q: Then the next line: 22 "Fed Min..." 23 A: "Federal Ministers should be willing 24 to turn over the Camp when the Park is 25 vacated."
1811 Q: And what's that refer to? 2 A: There were discussions at that time 3 going on between the First People and the Federal 4 Government about turning over the Park. These had been 5 very long-running discussions, as I recall. 6 And this appears to record information 7 that the Federal Minister would be willing to turn over 8 the Camp when the Park had been vacated. 9 Q: And was that something that they had 10 agreed to or something that the Province was going to 11 suggest to them? 12 A: There was later correspondence on 13 this. I -- I think that this was something that they 14 were, in principle, agreeing to do. 15 Q: Then at page 125 there's a note at 16 the bottom of the page and the heading is -- on page 125 17 a third of the way down is, "Next Couple Days." 18 I think I read that correctly. 19 A: Yes. 20 Q: And Item Number 3? 21 A: "Shape up Feds, you wear it." 22 Q: And, "you wear it," is in quotes. 23 And what does that refer to? 24 A: Well, there was concern at the time 25 that the Federal Government was entering into this
1821 process without discussions with the Province and in -- 2 in ways that, at least from the Province's point of view, 3 didn't really reflect the -- the gravity of the situation 4 and, you know, the -- the fact that a man had been 5 killed, that there was an ongoing occupation in the Park, 6 and so on. 7 And the note appears to reflect a concern 8 of the meeting that it should be made clear to the 9 Federal Government what was going on and that if they 10 were responsible for disturbing the situation that the 11 Province would make it clear that it was they who had 12 done it. 13 Q: And at this point on September the 14 11th, because these notes still appear to refer to 15 September, are these still September 11th or some 16 subsequent day? 17 A: Well, my best guess is that it's 18 September 11th. 19 Q: And on September the 12th there was a 20 meeting with Mr. -- Chief Ovide Mercredi and Chief 21 Bressette and I believe Chief Gord Peters -- perhaps not 22 Gord Peters -- with Premier Harris. 23 Did you attend that meeting? 24 A: I did. 25 Q: And how did you come to attend that
1831 meeting? 2 A: I was asked by the Premier to attend. 3 Q: And what role, if any, did you play 4 at that meeting? 5 A: As I recall I mostly listened at the 6 meeting. I made some notes of the meeting. 7 Q: And do the notes of the meeting 8 appear in Exhibit 9 -- P-940 Tab 23 starting at page 129? 9 A: Yes. 10 Q: And the heading, "Chief B," is a note 11 of what was said by Chief Bressette? 12 A: Yes. 13 Q: And does the next page reflect, as 14 well, your notes of what is being said by Chief 15 Bressette? 16 A: Yeah. Yes. 17 Q: And then at the top of page 131 the 18 note -- there's the initials, "OM." 19 And does that refer to what? 20 A: To the Grand Chief. 21 Q: And the notes under OM, Grand Chief 22 Ovide Mercredi, they refer to what the Grand Chief said 23 at the meeting? 24 A: Yes. 25 Q: Then it says at the bottom.
1841 "Action. We will review who has title. 2 A specific claim or on the Federal side 3 doesn't yet [something] overnight." 4 A: Yes. 5 Q: What's the word that I couldn't read? 6 A: I beg your pardon? 7 Q: Could you read the last line? 8 "Doesn't get settled...?" 9 A: "Settled overnight." 10 Q: And was this something that Grand 11 Chief Ovide Mercredi said or something someone else said? 12 A: My guess is that it's something that 13 someone speaking for the Province said. 14 Q: Okay. And then at page 132 there's a 15 note 'P' and what does that refer to? 16 A: The Premier. 17 Q: And under the note P, there's some 18 words and whose words -- who spoke those words? 19 A: The Premier, as far as I know. 20 Q: And can you tell us what they say? 21 A: The note says: 22 "Something went wrong. Why is somebody 23 at fault? If the OPP come to me I'll 24 listen." 25 Q: And can you put any -- do you recall
1851 anything more than that with respect to what the Premier 2 said at this -- 3 A: No, I don't. The -- the background 4 to the meeting was, Commissioner, that there was some 5 real hesitation in the Premier's office about meeting 6 with Grand Chief Mercredi. 7 And the argument that was being advanced 8 by some of his advisors was that if there were such a 9 meeting, that it would appear to be negotiating and that 10 it had already been determined that there be no 11 negotiations with the First Nations about the Park. 12 And in the end it was agreed to -- to hold 13 the meeting. And the idea, as I understood it from some 14 of the people in the Premier's office, was that it was to 15 held to a very short meeting. 16 But, in fact, it turned out not to be a 17 very short meeting because it was a very civil and 18 interesting and important meeting and the Premier was 19 interested and the meeting went on for quite some time. 20 Q: And the -- so that -- did you 21 participate in the discussions as to whether or not there 22 should be a meeting? 23 A: Yes. 24 Q: And so there were people who thought 25 there should be a meeting and people who thought there
1861 shouldn't be a meeting? 2 A: Yes. 3 Q: And the people who thought there 4 should be a meeting succeeded on that particular day? 5 A: The people that there? 6 Q: Should be a meeting. 7 A: Succeeded on that day. 8 Q: And there was this meeting. And TB 9 is again refers to -- 10 A: Tom Bressette I think. 11 Q: Tom Bressette. And then what does 12 the next line say? 13 A: CH would be Charles Harnick. 14 Q: No, under "TB." 15 A: Oh, sorry. 16 "The was..." 17 What it appears to say is: 18 "There was notify in the Park." 19 Q: Does that assist you with -- 20 A: No. 21 Q: No? "CH?" 22 A: "Met with Fox, need open lines." 23 Q: And CH refers to? 24 A: The Attorney General, Charles 25 Harnick.
1871 Q: And then there's a line and then 2 underneath Point 1. 3 A: "First Nations want to be involved in 4 the investigation." 5 Q: And then 2? 6 A: "Counsel question the legality of the 7 surrender." 8 Q: And then below that? 9 A: "Is the Province willing to review?" 10 Q: And whose -- who made those comments? 11 A: I don't know. 12 Q: Okay. And then over on the next page 13 there's some telephone numbers and I would ask that those 14 telephone numbers on that page be whited out, on page 15 133, for the public record. 16 And then there's a name Bob Bressette and 17 then 3, re Park something. 18 Can you read that to us, Mr. Taman? 19 A: It says: 20 "Re Park's policy. Wobihene (phonetic) 21 White Water." 22 I don't know what that means. 23 Q: Okay. And the reference to Mr. Bob 24 Bressette? 25 A: I -- I imagine those are Bob
1881 Bressette's phone number. 2 Q: And at this point in time was there 3 any consideration being given to appointing a third-party 4 or someone to attempt to mediate the situation with the 5 occupiers? 6 A: Well, my recollection is that the 7 Federal Government was -- was contemplating appointing 8 Mr. Justice Reade (phonetic) to mediate with this -- the 9 Kettle and Stony Point people -- 10 Q: That was with respect to the Army 11 Camp? 12 A: But, as -- yes, but as you'll see 13 from the correspondence it wasn't clear to the Province 14 exactly with respect to what he was going to be 15 mediating. 16 Q: And did the Province think that he 17 would be mediating with respect to the Province's Park? 18 A: I think the Province was concerned 19 that that might have been the Federal idea. 20 Q: And so the province didn't want the 21 Federal Government having their mediator speak about the 22 Park? 23 A: That's right. 24 Q: And did the Province think about 25 appointing a mediator for -- to deal with the Park?
1891 A: I don't recall a discussion of a 2 mediator. 3 Q: And then on -- the next note is 4 September -- at page 133, Elaine's group again, the nerve 5 centre, 13 September, '95. And there's a note -- a 6 number of headings, Cemeteries Act, SIU, something 7 Injunctions, Local Situation. 8 And I -- what do they -- do those refer 9 to? 10 A: Mr. Millar, you at the bottom of page 11 134? 12 Q: 133. 13 A: The -- those are my notes at the 14 beginning of the meeting on the subjects that I wanted to 15 cover or hear discussed at the meeting. 16 Q: And the reference to -- there's a 17 note, "cemeteries"? 18 A: Yes. 19 Q: And then can you read that to us, 20 please? 21 A: "Andrew says that the director would 22 need more direct evidence to carry out 23 [I think] and to cause an 24 investigation. Terri Kirk, the 25 Registrar, wouldn't hold a third party.
1901 Does Act bind the Crown?" 2 And I -- I'm not sure what that means. 3 Q: Okay. And then at the top of the 4 next page, 134, "Kirk"? 5 A: So, this is a note reference Terri 6 Kirk. She was a lawyer with the Government at the time. 7 It says: 8 "Goal as stakeholder. Management met 9 with ten (10) Mayors, with cottage 10 owners, et cetera. People are very 11 angry and afraid for their lives." 12 Q: And this is Terri Kirk reporting this 13 to the meeting? 14 15 (BRIEF PAUSE) 16 17 A: I'm at -- let me just perhaps -- I'm 18 not entirely sure I know who Terri Kirk is in this 19 setting. There's a government lawyer named Terri Kirk, 20 but I don't think it could be this Terri Kirk. 21 Q: Okay. And there's a note at Tab 58 22 of September 12th, which we understand to be the notes of 23 Andrew McDonald. 24 "Taman wants a legal opinion tonight on 25 whether [something] burial by CA [I
1911 think Cemeteries Act] to do something 2 re. 1937 correspondence." 3 Did -- on September the 12th, was that the 4 day you learned about the correspondence from the Federal 5 Government? 6 A: I don't know, but if we looked at the 7 correspondence maybe we could -- 8 Q: And if I could take you to Tab... 9 10 (BRIEF PAUSE) 11 12 Q: It's in the second volume. 13 14 (BRIEF PAUSE) 15 16 Q: Firstly there's -- at Tab 60 there's 17 a note. It's Exhibit P-686, Inquiry Document 3000567. 18 It's a minister's briefing note dated September the 12th 19 and that refers to new information regarding native -- 20 native burial site in Ipperwash Provincial Park. 21 Do you recall seeing this document at or 22 about September the 12th, 1995? 23 A: I don't know if I saw the document, 24 but I certainly recall this issue surfacing in -- in the 25 week after the event.
1921 Q: And at Tab 62 there's a letter to 2 you. Actually, it's Inquiry Document 3000451. And the 3 second page in is a fax from you to Yan Lazor dated 4 September 13th and attached to it is a later dated 5 September 12th, 1995, from Scott Serson from Indian and 6 Northern Affairs Canada. 7 MR. JULIAN FALCONER: Sorry, Mr. 8 Commissioner, I -- I just lost My Friend. I was -- I -- 9 we were at Tab 60. 10 MR. DERRY MILLAR: We're now at Tab 62. 11 MR. JULIAN FALCONER: If I can get the 12 document number because I -- 13 MR. DERRY MILLAR: Sure. Sure. It's 14 3000451. The first page of it says, "Exhibit Number 29." 15 That's probably what's throwing everybody out. 16 MR. JULIAN FALCONER: Thank you. 17 18 CONTINUED BY MR. DERRY MILLAR: 19 Q: And you're faxing to Yan Lazor a 20 letter that you received from Scott Serson dated 21 September 12th, 1995? 22 A: And Scott Serson was my counterpart 23 in Ottawa. 24 Q: And Mr. Serson sent to you certain 25 letters that are attached to the -- his letter?
1931 A: Yes. 2 Q: And there's one (1), letter of 3 October -- August 14th, 1937 -- 4 A: Yeah. 5 Q: -- from the Indian Agent to the 6 Secretary of -- Mr. MacInnes at Indian Affairs in Ottawa. 7 Then there's a -- the next is a resolution of the Council 8 of the Kettle and Stony Point First Nation dated August 9 13, 1937. 10 And then the letter of August 17th, 1937, 11 from Mr. MacInnes and at -- in Ottawa to the Deputy 12 Minister Department of Lands and Forests in the Province 13 and Mr. Cain. 14 And then lastly a letter dated August 15 19th, 1937, from Mr. Cain, the Deputy Minister Department 16 of Lands and Forests, to Mr. MacInnes in Ottawa at the 17 Indian Affairs Branch of the Department of Mines and 18 Resources. 19 And those letters were received by you on 20 September the 12th? 21 A: Yes. 22 Q: And what was your reaction when you 23 received these letters? 24 A: Well, I think, what I did with them 25 was -- was had them, you know, sent on to -- to Yan
1941 Lazor for some advice. My reaction, you know, was that 2 we had an important issue that had to be considered and 3 whether there was or wasn't a -- a claim from the First 4 Nation there was now some indication that there was a 5 basis for such -- for such a claim. 6 Q: And what did you want to do with 7 respect to determining the -- now that you knew there was 8 a basis for the claim, what did you want to do with 9 respect to that issue? 10 A: In the normal course this would be 11 regarded as an MNR issue because there are many 12 provincial parks that have sites of special importance to 13 First Nations. 14 And it's MNR's job to -- to respond to 15 First Nation claims about these sites and to -- to give 16 them proper protection. In fact, that's the indication 17 in the letter of -- of 1937 that that's what they would 18 do. 19 My understanding from Ron Vrancart as the 20 deputy at MNR was that, you know, they would need to look 21 into the issue and if it were established that there was 22 a site of special importance to the First Nation that 23 they would work with them to identify it and to protect 24 it. 25 Q: And I understand that the Federal
1951 Minister visited this area and issued a press release on 2 September the 13th. Do you recall that? 3 A: Yes. 4 Q: And what was your reaction and -- the 5 Federal Minister released the letters publicly? 6 A: Well, I think the general -- the 7 general relationship between the Government of Canada and 8 the Government of the provinces is believed by the 9 Government of the provinces to be not sufficiently 10 cooperative or -- or consultative and I think that this 11 was considered an example of the Federal Minister not 12 really taking any great care to consult with the 13 provinces. 14 I mean, we -- we had a -- an important 15 issue taking place in the Park, we had the death of a 16 man, we were trying to keep the situation stable so that 17 it didn't get any worse, and all of a sudden, the Federal 18 Minister was going for reasons that were not clear to us 19 without any particular communication with us. 20 So, it wasn't very well received as an 21 initiative. 22 Q: And in the pile beside you, you 23 should have a copy of P-46 which is a Memorandum of 24 Understanding between the Federal Government -- 25 Government's Department of Indian and Northern Affairs
1961 and Chippewas of Kettle and Stony Point First Nation. 2 When did you become aware, and this 3 document's dated September 13, 1995, that this document 4 had been entered into Mr. Irwin on behalf of the Federal 5 Government? 6 A: My best recollection is that we 7 became aware of it on or about the time it was entered 8 into. 9 Q: And did -- were you provided by the 10 Federal Government with a copy of this document? 11 A: I can't say that I know where -- 12 where this copy came from. 13 Q: And I note in item 5: 14 "Adequate funding and full cooperation 15 will be provided by the Department of 16 Indian and Northern Affairs to the 17 First Nation people to identify and 18 protect the burial sites in the 19 Provincial Park and the First Nations' 20 grievance surrounding the Park's 21 creation. 22 In light of documents discovered 23 yesterday from 1937 confirming a burial 24 site the Federal Government urges the 25 Provincial Government to fully review
1971 all of its records pertaining to the 2 Park." 3 And was such a review conducted by the 4 Park -- by the Provincial Government to your 5 understanding? 6 A: I believe that -- that MNR did then 7 launch a review of its records, trying to understand what 8 this was all about. 9 Q: And as you said, that was really the 10 responsibility of MNR because they had the records? 11 A: Right. 12 Q: Now -- 13 A: And were responsible for the Park. 14 Q: And responsible for the Park. Now, 15 could I take you back to your notes, P-940, Tab 23, page 16 137. 17 18 (BRIEF PAUSE) 19 20 Q: And I'm taking you to page 137. At 21 the bottom there's September 15th: 22 "Meet Rita re. [something] on Legal 23 Aid." 24 And Rita is Rita Burak? 25 A: Yes.
1981 Q: And then there's another note with 2 respect to briefing. But, on the next page -- actually 3 it's -- I'm mistaken, on page 161, and I don't know the 4 date of this, page 161, but there's a reference: 5 "Commissioner re. Ipperwash. Official 6 instructions 1991." 7 And can you tell us what that refers to? 8 And if I might assist you, in the pile, Mr. Taman, that's 9 -- of extra documents, there's a document entitled P-472, 10 Briefing Note for the Interministerial Committee Policy 11 Forum, November 26th, 1991. 12 Prior to be -- it's a one page document. 13 Prior to be shown this document in preparation for 14 attending today, had you seen this document before? 15 A: I don't recall ever having seen it 16 before. 17 Q: And if you could take a moment to 18 just read it. I'm going to ask you: Do you recall being 19 advised of the contents of the document? 20 And this is signed, Mr. O'Grady. 21 Commissioner O'Grady indicated that he signed this 22 document on behalf of the OPP. 23 A: All I can really say about this is 24 that it was consistent with what we had been told 25 throughout was the way they would like to have handled
1991 this incident. 2 Q: Consistent with what they had told 3 you? 4 A: Yeah. 5 Q: And does that assist you in any way 6 with respect to the reference of the Commissioner on page 7 165? 8 A: It appears that someone -- it appears 9 that someone reported that there was such a -- an 10 official instruction. 11 Q: And --- 12 A: That it has been used to handle the 13 situation at Akwesasne where there were a number of 14 people who had occupied some lands for five (5) years. 15 There's -- the next note says: 16 "With a little time, they'll leave." 17 The next note says: 18 "The dissidents are gone, peace keepers 19 will go too. Don't want anyone --" 20 I can't read the rest. 21 Q: And we've heard from Chief 22 Superintendent Coles that on September 27th, 1995, I 23 believe it was September 27th, 1995, he briefed you, Ms. 24 Todres and Mr. Vrancart with respect to the Ipperwash 25 Provincial Park.
2001 Do you recall such a briefing? 2 A: Yes. 3 Q: And do you recall if this note arose 4 as a result of that briefing? 5 A: It would make sense to me that it 6 did. 7 Q: Did you have any other -- did you 8 have a meeting with the Commissioner in or about -- in 9 the fall of 1995 of the OPP with respect to Ipperwash? 10 A: I don't recall ever meeting with the 11 Commissioner about this. 12 Q: And if we could just go to Tab 82 for 13 a moment in Book 2. This is a note from the support 14 group, it's part of Exhibit P-523, 1012456. And I note 15 that you weren't at this meeting but there's a note: 16 "Chris Coles updated the three (3) 17 Deputy Ministers regarding the on the 18 ground situation at Ipperwash. He 19 pointed out that because of the instant 20 access from the army base to the Park, 21 the OPP are unable to prevent 22 trespassers from entering the Park." 23 And that's in October and it's my 24 understanding, from the evidence of Mr. Coles, that it 25 was around September 27th that he had the meeting with
2011 you and the other two (2) Deputy Ministers. 2 Does that sound about right to you? 3 A: I can't really say except what -- 4 what the documents show. 5 Q: Now at Tab 73 and Tab 76 -- 6 A: I just note. Excuse me, if I can 7 help you with the date -- 8 Q: Sure. 9 A: The date on my note -- no, sorry, I 10 take it back. I don't know what date it was. 11 Q: It would be good if you could help us 12 because I was trying to figure out if there... 13 Now, the -- at Tab 73 and Tab 76, Tab 73 14 is a document; it's a copy of P-698 Inquiry Document 15 1012428 and it appears to be a draft strategy document. 16 And at Tab 76 there's a copy of the same document, 17 Inquiry Document 2000477, was a memorandum from Yan Lazor 18 to you, Elaine Todres, and Ron Vrancart. 19 And it -- firstly did you receive the 20 document at Tab 76? 21 A: Yes. And my -- my recollection is 22 that we had agreed, in the nerve centre, that we needed 23 to have such a document prepared. 24 Q: And the document that you wanted 25 prepared was a document with respect to the strategy to
2021 how to deal with the issue? 2 A: Yes. 3 Q: And it appears that the document at 4 Tab 73 Exhibit P-698 and the one at 76 is the same, but 5 because of the memorandum -- the memo that's with the 6 document at Tab 76 I would ask, Commissioner, that it be 7 the next exhibit. 8 THE REGISTRAR: P-944, Your Honour. 9 COMMISSIONER SIDNEY LINDEN: 944. 10 11 --- EXHIBIT NO. P-944: Document Number 2000477. 12 Memo to Larry Taman from Yan 13 Lazor and attached bundle of 14 materials re. discussion, 15 September 20/'95. 16 17 CONTINUED BY MR. DERRY MILLAR: 18 Q: And the document simply refers to a 19 number of options and -- with respect to dealing with the 20 issue and gives pros and cons. 21 And can you recall today what option was 22 ultimately chosen, if any? 23 A: No, I can't. 24 Q: All right. And if I take you to Tab 25 80, please?
2031 (BRIEF PAUSE) 2 3 Q: This is a letter from you to Scott 4 Serson dated September 29th, 1995. It's Inquiry Document 5 30001212. 6 A: Yes. 7 Q: And this is a letter you sent to Mr. 8 Serson? 9 A: Yes. 10 Q: I would ask that this be the next 11 exhibit. 12 THE REGISTRAR: P-9545, Your Honour. 13 14 --- EXHIBIT NO. P-945: Document Number 3001212. 15 Signed letter from Larry 16 Taman to Scott Serson 17 September 29/'95. 18 19 CONTINUED BY MR. DERRY MILLAR: 20 Q: And this document refers to the MOU 21 that we referred to a few minutes ago, P-46. I take it 22 this is the MOU that's being referred to? 23 A: Yes. 24 Q: And on page 2 there's a... 25
2041 (BRIEF PAUSE) 2 3 Q: I'll stop for a moment. The -- what 4 did you intend to achieve with this letter to Mr. Serson? 5 A: It appeared to us that the Federal 6 Government was not being very mindful of what was going 7 on and, in particular, of the provincial responsibility 8 for addressing these issues. And the purpose of the 9 letter was to remind him of a range of issues in which 10 the Province had an active interest. 11 Q: And among those on page 2, it refers 12 to paragraph 5 and you asked about funding; how much 13 funding are they going to provide and asked the question: 14 15 "Is the Federal Government considering 16 accepting a land claim in relation to 17 the Provincial Park?" 18 That was one (1) of the things of interest 19 to you? 20 A: Yes. 21 Q: And then you raise, in the third 22 paragraph from the bottom, an issue of representation as 23 to who would -- who represented the occupiers? 24 A: Yes. 25 Q: And I understand you received a
2051 response to that letter that appears at Tab 98. No, 2 excuse me, Tab 86. I'm jumping ahead too far. 3 4 (BRIEF PAUSE) 5 6 Q: And this is a copy of a letter 7 stamped by a date stamp October 13, 1995. It appears to 8 have been faxed on October 20th, at least on one fax. 9 Did you receive this letter? 10 A: Yes. 11 Q: I would ask that this letter dated 12 October 13, 1995, Inquiry document 1000952 be the next 13 exhibit. 14 THE REGISTRAR: P-946, Your Honour. 15 16 --- EXHIBIT NO. P-946: Document Number 1000952. 17 Letter to Larry Taman from 18 Scott Serson October 13/'95. 19 20 CONTINUED BY MR. DERRY MILLAR: 21 Q: And the response by Mr. Serson, did 22 it meet the concern -- your concerns and the concerns of 23 the Province? 24 A: I mean I'd have to -- I'd have to 25 study the -- the issue more carefully. I think in
2061 general the -- the feeling persisted that the Government 2 of Canada was going its own way and addressing these 3 issues and wasn't paying much attention to -- to the 4 interests of the province. 5 Q: And then at Tab 98, there's a letter 6 from Mr. Serson to Mr. Ron Vrancart dated April 22, 1996 7 and the first two (2) pages are the routing slip within, 8 I believe, ONAS. Perhaps we could mark this the next 9 exhibit? 10 COMMISSIONER SIDNEY LINDEN: I'm sorry, 11 what tab was that? 12 MR. DERRY MILLAR: It's tab 98, sir. 13 14 (BRIEF PAUSE) 15 16 THE REGISTRAR: P-947, Your Honour. 17 18 --- EXHIBIT NO. P-947: Document Number 1003825. 19 Letter from Scott Serson to 20 Ron Vrancart cc'd to Larry 21 Taman, May 01/'96. 22 23 CONTINUED BY MR. DERRY MILLAR: 24 Q: And I note that you received a copy 25 of this letter?
2071 A: Yes. 2 Q: You're shown -- and there's a 3 reference to A. Karakatsanis on the front page of the 4 letter. That's Andromache Karakatsanis? 5 A: Yes. 6 Q: At the time, in this period of time 7 in April 22nd, 1996, she was the secretary of ONAS? 8 A: Yes. 9 Q: And was this a note by you for her 10 information? Is that your handwriting? 11 A: No, it's not my handwriting. I think 12 someone in my office would have made a note that it was 13 to be copied to Andromache Karakatsanis for her 14 information. 15 Q: And he's asking -- Mr. Serson is 16 asking for a contact person in the Province to deal with 17 the contact with the Federal Government? 18 A: Yes. 19 Q: Then at tab 79 there's a document -- 20 Inquiry document 1012038. And this is a document 21 entitled "Kettle and Stony Point First Nations, Stoney 22 Pointers and Ipperwash Provincial Park: Questions and 23 Answers," and it's dated September 22 at 5:00 p.m. 24 Did you see this document on or about 25 September 22nd, 1995?
2081 A: I don't know. 2 Q: You don't know? Okay. 3 And before we go on, Commissioner, at Tab 4 62 I would ask that we mark pages, not the front page 5 which simply identifies the letter of -- the fax cover 6 sheet and the letter from Mr. Serson to Mr. Taman, 7 Inquiry Document 3000451, that the pages following the 8 first page be marked as the next exhibit. I should have 9 done that before. 10 THE REGISTRAR: P-948, Your Honour. 11 12 --- EXHIBIT NO. P-948: Document Number 3000451. Fax 13 package from Larry Taman to 14 Yan Lazar re. Indian burial 15 grounds Ipperwash, September 16 13/'95. 17 18 CONTINUED BY MR. DERRY MILLAR: 19 Q: If I could take you to Tab 84, 20 please? 21 22 (BRIEF PAUSE) 23 24 Q: This is Inquiry Document 1012083. 25 It's dated October 11, 1995. It's a briefing note for
2091 Larry Taman, Deputy Attorney General. 2 And do you recall receiving this briefing 3 note? 4 A: Yes. 5 Q: And I would ask that this be the next 6 exhibit? 7 THE REGISTRAR: P-949, Your Honour. 8 9 --- EXHIBIT NO. P-949: Document Number 1012083. 10 ONAS briefing note for Larry 11 Taman re. Evaluation of 12 Government response to 13 Ipperwash situation, October 14 11/'95. 15 16 CONTINUED BY MR. DERRY MILLAR: 17 Q: And what was the concern that you had 18 with respect to -- at this point in time it's entitled: 19 "Issue -- Topic Evaluation of 20 Government Response to Ipperwash 21 Situation Issue. How to Learn from the 22 Ipperwash situation and improve the 23 Government's Response to Aboriginal 24 Emergencies in Future." 25 And was this part -- had you instructed
2101 the department to do a review? 2 A: Yes. 3 Q: And why did you want to do -- conduct 4 a review? 5 A: Well, we'd had a role in which -- in 6 an incident in which a man had been killed and I thought 7 that it was important for us to figure out whether there 8 were things that we needed to do better the next time. 9 Q: And... 10 11 (BRIEF PAUSE) 12 13 Q: You should have -- if I could take 14 you to Tab 88, this is Exhibit P-702 Inquiry Document 15 1012092. And it's a routing slip from Julie Jai. 16 "This material was not sent over. 17 Slides used instead." 18 But it attaches a briefing note for you 19 dated October 24th, 1995 re meeting with Rita Burak and 20 Elaine Todres on October 26th, 1995 relating to the 21 evaluation of this response and possible improvements to 22 the process for dealing with aboriginal emergencies. 23 And did you receive the briefing notes 24 referred to in P-702? There's two (2) of them. 25 A: Yes.
2111 Q: And this was part of the process of 2 reviewing the response? 3 A: Yes. 4 Q: And at the next tab, Tab 89, there's 5 a memo from Yan Lazor to you with some slides attached. 6 And did you receive this document? 7 A: Yes. 8 Q: And it says the slides were prepared 9 with input from the Ministry of the Attorney General and 10 Correctional Services and they refer to proposed changes 11 to the Aboriginal Emergency Response Guidelines? 12 A: Yes. 13 Q: And was there a meeting? It appears 14 from a note that the meeting of October 26th was 15 postponed and Ms. Karakatsanis apparently had suggested a 16 shorter document. 17 Do you recall if the meeting took place? 18 A: I believe there was eventually a 19 briefing of the Cabinet secretary on improvements in the 20 process. 21 Q: And if I could -- in the pile that's 22 attached beside you, there's a document P-703, it's 23 Exhibit P-703, Inquiry Document 1012134. 24 It's a memo from Julie Jai to Andromache 25 Karakatsanis. And it appears to be have been sent to Ms.
2121 Karakatsanis and then a response sent back by her to Ms. 2 Jai with comments. 3 Did you receive a copy of this document 4 with Ms. Karakatsanis' notes on it? 5 A: I'm uncertain but I -- I would think 6 so. 7 Q: And then there should be, in the pile 8 beside you, a copy of Exhibit P-708, Inquiry Document 9 1012212. And it's -- again, this is a revised procedure 10 for Aboriginal Emergencies, February 14, 1996. 11 And can you tell us a) if you seen this 12 document before? 13 A: Yes, I've seen it before. 14 Q: And was this the final version of the 15 revised procedure -- proposed procedures for Aboriginal 16 Emergencies? 17 A: There were a lot of versions. If you 18 don't have another one I think this is the final one. 19 Q: I believe I don't have another one. 20 A: Then I -- then this is the final one. 21 Q: Do you know if the revised procedures 22 were put into place before you left the ministry in 1997? 23 A: I don't know if there was any formal 24 procedure taken to put them in place. But I believe we 25 all left this process thinking that these were the
2131 procedures that we would follow in the future. 2 Q: And there are two (2) letters that 3 should be in front of you, Mr. Taman. One is a 4 memorandum to you from Mr. Vrancart. It's dated April 1, 5 the cover sheet is a -- there's a fax cover sheet, April 6 1. 7 A: I have it. 8 Q: And Ron Vrancart to Larry Taman and 9 attached to it is a correspondence control manager 10 routing slip. I take it that the document was routed to 11 Ms. Karakatsanis. Have I read that -- on page there's a 12 routing slip. 13 A: The document was actually carbon 14 copied to Ms. Karakatsanis. 15 Q: Yes. And it's directed to you? 16 A: Yes. Addressed to me with a carbon 17 copy to her. 18 Q: And the memo from Mr. Vrancart's 19 dated March 27, 1996 and perhaps we could ask that -- 20 mark that group of documents the next exhibit. 21 THE REGISTRAR: P-950, Your Honour. 22 23 --- EXHIBIT NO. P-950: Memo to Larry Taman from Ron 24 Vrancart re. Ipperwash and 25 Pinery Provincial Parks,
2141 March 27/'96, April 01/'96. 2 3 CONTINUED BY MR. DERRY MILLAR: 4 Q: And in the document Mr. Vrancart 5 encloses a publication entitled, "Visiting the Pinery 6 Provincial Park," and where he refers in the first 7 paragraph of his memorandum, the last two (2) lines 8 wherein: 9 "The Park is claimed as the Stoney 10 Point the Tsu Dene (phonetic) homeland 11 territory." 12 And he then discusses the issue of the 13 Ipperwash Provincial Park and the Pinery Park and he 14 indicates in the third paragraph on the bottom of the 15 first page: 16 "I believe there is an urgent need to 17 have the historical record reviewed and 18 the determination made as to whether 19 the land in question has been validly 20 surrendered. My ministry needs 21 confirmation that there's no validity 22 to any Native land claims for these two 23 (2) Provincial Parks, referring to 24 Ipperwash Provincial Park and the 25 Pinery Provincial Park."
2151 And you should have in front of you as 2 well a copy of a letter dated June 14, 1996 from you -- 3 or a memorandum from you to Mr. Vrancart. 4 And this is a copy of your signature 5 appears on page 3? 6 A: Yes. 7 Q: And I would ask that this be the next 8 Exhibit, P-951? 9 THE REGISTRAR: Yes, sir. 10 11 --- EXHIBIT NO. P-951: Memo to Ron Vrancart from 12 Larry Taman re. Ipperwash and 13 Pinery Provincial Parks June 14 14/'96. 15 16 CONTINUED BY MR. DERRY MILLAR: 17 Q: And you deal with -- in the first -- 18 second paragraph on page 1, Ipperwash and the expectation 19 that a land claim would be filed with respect to 20 Ipperwash Provincial Park. And then you deal with 21 Pinery. And on page 2 you refer -- in the first full 22 paragraph you have asked that: 23 "ONAS confirm the validity of the 24 Province's title to the land comprising 25 the two (2) Parks. This kind of
2161 research would not normally be 2 undertaken until formal land claim has 3 been submitted by a First Nation. 4 Generally when a claim is submitted to 5 ONAS, the claim and supporting 6 historical documentation are reviewed 7 by ONAS staff and assessed for their 8 accuracy and completeness -- 9 completeness. 10 If necessary, arrangements are made for 11 supplementary legal research, 12 historical research to be undertaken. 13 When the historical record is complete, 14 it is forwarded to ONAS legal services 15 branch so that the nature and extent of 16 Ontario's legal liability, if any, can 17 be ascertained. 18 A decision is then made about whether a 19 resolution of the claim should be 20 negotiated." 21 And then you refer, in the next paragraph, 22 that we should point out in the third line, however, 23 that: 24 "In the absence of a formal claim, of 25 an explanation by the First Nation of
2171 the historical and legal basis 2 underlying the claim, the steps we are 3 suggesting be taken at this time are 4 preparatory and necessarily broad in 5 scope." 6 And then you refer to a meeting with Scott 7 Serson of INAC. And where you report in the next 8 paragraph that there's going to be -- they're prepared to 9 co-operate and then in the second last paragraph on the 10 next page you talk about directing staff to begin 11 preliminary research. 12 And do you know if preliminary research 13 was undertaken? 14 A: As far as I know it was. 15 Q: And prior to you leaving the 16 Provincial Government in May of 1997, did you have 17 anything else to do with the issue of the title to 18 Ipperwash Provincial Park? 19 A: I don't believe so, no. 20 21 (BRIEF PAUSE) 22 23 A: The -- and the issue being raised in 24 my letter, Mr. Millar, just to be clear, is that it would 25 ordinarily not be possible to tell from the document
2181 whether or not a surrender was valid, because the 2 validity of the surrender would be a question that would 3 be put in issue by a First Nation on the basis of a 4 series of fact. 5 It might be said that they had never 6 signed the surrender. It might be said that the person 7 who had signed it had been coerced by the Government. 8 It might be said that the person who 9 signed it was not, in fact, authorized to sign it and so 10 on. So it -- I think the point of the letter was that 11 you can't really go very far until you know what the 12 claim is. 13 Q: Yeah, that you need in order to -- 14 you can look for the documents but until you get the 15 factual matrix that support the claim, there's not much 16 you can do. 17 A: That's right. 18 Q: And at this point in time in 1996, 19 you didn't have anything from the First Nation with 20 respect to the basis of the claim? 21 A: That's right. 22 Q: And that's what you needed to really 23 move the matter forward? 24 A: That's right. 25 Q: You could collect the documents, but
2191 you needed the -- the facts that the First Nations say 2 undermined those documents? 3 A: Right. 4 5 (BRIEF PAUSE) 6 7 Q: Now, at Tab -- Commissioner if I 8 might, I'm nearly done so I thought it might be 9 appropriate just to carry on and -- 10 COMMISSIONER SIDNEY LINDEN: When you say 11 "nearly," what do you mean? 12 MR. DERRY MILLAR: Nearly. 13 COMMISSIONER SIDNEY LINDEN: Half hour? 14 Twenty (20) minutes? 15 MR. DERRY MILLAR: No more than a half an 16 hour. Probably twenty (20) minutes. 17 COMMISSIONER SIDNEY LINDEN: I think we 18 should try to finish. 19 MR. DERRY MILLAR: I'm in your hands. 20 COMMISSIONER SIDNEY LINDEN: Are you okay 21 to continue for another... 22 THE WITNESS: I'm fine. 23 COMMISSIONER SIDNEY LINDEN: It's a long 24 day, but let's carry on. 25
2201 CONTINUED BY MR. DERRY MILLAR: 2 Q: At Tab 104 there's a copy of Exhibit 3 P-578, Ministerial Control and the Ontario Provincial 4 Police, a discussion paper that we are told was prepared 5 by Ms. McChesney (phonetic) of the -- Anne McChesney of 6 the Legal Services Branch of the Ministry of the Attorney 7 -- Solicitor General, in 1991. 8 And prior to getting ready for the Inquiry 9 had you seen this document? 10 A: Yes. 11 Q: And under what circumstances did you 12 see this document? 13 A: In the days following the -- the 14 incident in which Mr. George was killed I had had any 15 number of occasions to tell people what I thought was the 16 appropriate relationship between the Government and the 17 police. 18 And at some point I asked whether or not, 19 in fact, there was any official policy or whether there 20 had been any research of any kind done over the years. 21 And so this and one (1) or two (2) other documents were 22 produced which -- which happily, largely, coincided with 23 what I thought the -- the -- the right practice to be. 24 Q: So that Exhibit P-578 set out -- sets 25 out the practice you thought should be followed back in
2211 1995? 2 A: I don't know how -- without looking 3 at it carefully again I -- I don't know how closely it 4 applies to this situation. 5 More commonly the issue arises in the 6 context of criminal charges and the extent of which the 7 Government should be informed of impending criminal 8 charges, for example, against a minister and so on. And 9 I've seen, you know, just looking quickly through the 10 documents some -- some reference to this. 11 But my recollection was that, at the end 12 of the day, that I was confident that I was right, that 13 operational matters are for the police and not for the 14 Government. 15 Q: And you said -- you've referred to 16 some other documents back in 1995. Can you tell us -- 17 can you recall what documents they are? 18 A: I think there was one (1) other 19 document that -- that I saw in the course of reviewing 20 the material that you gave me, although I'm not quite 21 sure which one it is. Perhaps it's the ones at the end. 22 Q: Well, there's -- 23 A: These came later, the ones at the 24 end. 25 Q: P-579 came, we believe, sometime in
2221 1998 or following. 2 A: Yeah. 3 Q: And it's the Ministry of Community 4 Safety. It's Exhibit P-579. I think this was created 5 after you left the Government. And the document in -- 6 you have in front of you, the one (1) page document, was 7 created in 1991, P-472. 8 A: The other document I had in mind was 9 P-472, the 1991 document. 10 Q: And that's what you found? You -- 11 you were -- obtained that in -- may have seen it in the 12 fall of -- 13 A: That's my -- that's my belief, yes. 14 Q: Now, with respect to situations such 15 as that at Ipperwash Provincial Park, do you have any 16 assistance you can offer to the Commissioner with respect 17 to how the -- in a situation such as this, the liaison 18 between the Government and its various departments and 19 the police can be handled in order to ensure that police 20 decisions are left to the police? 21 A: Well, I do have a couple of thoughts 22 about this. 23 The -- the first thought that I would like 24 to suggest to the Commissioner is this, that good 25 government is not primarily about structure. Good
2231 government is primarily about leadership and I think it's 2 important, in my opinion, for the Commission not to look 3 for structural solutions where issues are really about 4 leadership. 5 When we have good government on an issue, 6 when we have good leaders, when we have good policies and 7 when we have good implementation. 8 And all of those things will work well in 9 any structure. And no structure will defeat good 10 leadership and good policy. And on the other hand, no 11 structure, no matter how good it is, is a substitute for 12 good policy, for good leadership. 13 And so if you look, for example, at the 14 issue of, let's say, the possibility that the police are 15 influenced in a way they shouldn't be by the Government, 16 this is an issue of the quality of leadership of the -- 17 of the Provincial Police. 18 It's like someone on the political side 19 ringing me and asking me to take a certain step in a -- 20 in a prosecution involving a minister. You can have any 21 number of protocols, you can have any number of 22 procedures, but at the end of the day, either I say this 23 is not appropriate, I won't talk to you about this or I 24 don't. 25 Equally in the example of the
2241 Commissioner, either the Commissioner says no, this is an 2 operational matter, I'm running it, or she doesn't. And 3 so I -- I would just, on one point, urge you to -- to -- 4 to bear this kind of general observation in mind. 5 I think there's a tendency on the part, 6 particularly of people who have not been inside 7 government too much, to think of organizational solutions 8 to what are really human problems. 9 And this, I think, is profoundly a human 10 problem. I mean, people either understand their job, 11 they understand what's appropriate and what's 12 inappropriate or they don't. 13 Now secondly, at the bottom of the -- the 14 pile, if you will, it's better to have good structure 15 than poor structure. Even if it is only of -- of 16 marginal concern. I think in the course of about forty- 17 eight (48) hours, we worked out what was really a much 18 better structure. 19 And that structure placed the political 20 people in the nerve centre with deputies and ministers 21 where they could deal with policy issues and it placed 22 operational people dealing with operational issues. 23 I think it was really the facts of the 24 matter that caused us to fashion this solution and I 25 think it's a good thing that we were able to do it so
2251 quickly. No one would have been happier than I if 2 someone had figured this out twenty-five (25) years ago. 3 But the fact is that it wasn't figured out 4 twenty-five (25) years ago and we figured out in forty- 5 eight (48) hours or so and -- and tried to get some 6 better separation. 7 I guess the third observation that I would 8 make is that no structure -- not only won't structures 9 replace human integrity, but structures won't solve all 10 of the problems. And in many areas and certainly this is 11 one of them, it's not so easy to identify simple dividing 12 lines between things like policy and implementation. 13 And I think, in those cases, it's 14 important not to run away from that problem. I mean the 15 fact of the matter is that the Government needs to be 16 involved in an issue like this. The government is 17 responsible for the police, the Government is responsible 18 for the Park. 19 People expect the Premier, the Attorney 20 General, the Solicitor General to be accountable for 21 these things and I think it would be wrong to say that 22 they shouldn't have some involvement. 23 I think it's kind of a long answer to your 24 question but in -- in direct answer to your question, I - 25 - I think it's important to recognize that the integrity
2261 of the people involved is critical. That a structure can 2 be helpful but may not really be that helpful in the end 3 and that, as with, you know, the work of judges and 4 lawyers and Band Chiefs, judgement is required. 5 And -- and I think that in the end there's 6 no substitute for -- for making good judgements. 7 Q: And with respect to the structure and 8 the policy, to go back, was the McChesney paper that's 9 Exhibit P-578, government policy as of 1995 with respect 10 to ministerial control and the Ontario Provincial Police? 11 A: I think it would be better to say 12 that the practice was clear and the -- policy is what 13 government does, that's what it means. And it might be 14 written down, it might not be written down. It's 15 informed by, you know, research papers. It's informed by 16 what people do and have done in other instances. 17 I think -- I think in that sense the 18 policy was clear as far as it went, that operational 19 matters are matters for the police, but, what this 20 doesn't do is take away the need to assess whether some 21 dimension of this is operational or -- or whether it's 22 something else. 23 I'd just emphasize one other point to the 24 Commissioner, if I may, sir, I was also responsible 25 throughout this period for the Special Investigations
2271 Unit, the SIU, the job of which is to investigate 2 instances in which violence issues by the police causing 3 injury to civilians. 4 In my view, it's very important to keep up 5 front the notion that the Government is accountable for 6 the actions of the police and when I hear people talk 7 about the independence of the police or the police are 8 independent, I think it's a statement that's too broad. 9 I think that it's right to say that with 10 respect to certain kinds of issues, that the Government 11 had best stay out of it and let the police do their job. 12 For all I know, there may even be one (1) or two (2) 13 issues where there is some legal impediment to the 14 Government being involved. 15 But it's important to remember that 16 overall, the police work for the Government. They're 17 accountable to the people through the Government and, in 18 my view, this is critical. 19 And it may be easy for people to say that 20 the police should be independent when they wish something 21 else had happened, but people don't like it very much 22 when the police do other things and the Government 23 doesn't seem to be anywhere to be found. 24 So my advice to the Commission would be to 25 keep very up front the proposition that the Government is
2281 accountable for the police; that with respect to some 2 matters like, for example, the investigation and 3 prosecution of criminal cases, that the practice is very 4 strong that the Government should stay out of it. 5 But that, as a general principle, the 6 people are entitled to turn to their ministers and to 7 their government to ask what the police are doing. 8 Q: And -- 9 A: If I could -- excuse me, just add one 10 more thought. There goes the twenty (20) minutes. 11 In -- in my view -- and I say this because 12 of my experience with the SIU, we've had many cases where 13 citizens have been killed at the hands of the police. 14 And I think nothing is more important than 15 investigating whether or not those instances or any one 16 of them are avoidable. 17 It's always been, in my view, a tragedy 18 that Mr. George didn't get out of the Park alive and I 19 don't quite understand to this day why he didn't get out 20 of the Park alive. 21 It seems to me that the Government, 22 through the police, was accountable for his safety and 23 somehow that didn't happen and I don't know enough about 24 the facts on the ground. I expect that you will by the 25 time it's over to know how it happened.
2291 But I don't think that anything is more 2 important than holding the Government accountable in an 3 appropriate way for ensuring the safety of everybody who 4 becomes the target of police conduct. 5 Q: Thank you, and is there is anything 6 you would like to add or any other recommendations you 7 would like to make to the Commissioner before -- 8 A: Well, just a last thing that I -- I 9 have never had an opportunity to express my condolences 10 to the George family and to the First Nation and through 11 Mr. George I see sitting here, I would like to do this 12 now. 13 So, my condolences to you and my sincerest 14 regrets that we didn't do better. 15 MR. DERRY MILLAR: Thank you. Those are 16 the questions by the Commission, sir. It might be 17 appropriate to canvass the parties. 18 COMMISSIONER SIDNEY LINDEN: To do that 19 now? Do you want to do that now? 20 MR. DERRY MILLAR: Well, I'm in your 21 hands. 22 COMMISSIONER SIDNEY LINDEN: All right. 23 All right. Do the parties want to be canvassed now or 24 wait for the morning or does it make any difference? Do 25 you want to think about it overnight? I'm getting some
2301 nods and some shakes. 2 MR. DERRY MILLAR: Okay. 3 COMMISSIONER SIDNEY LINDEN: So I think 4 we'll leave it. I'm tired. 5 MR. DERRY MILLAR: Thank you. 6 COMMISSIONER SIDNEY LINDEN: Let's leave 7 it for tomorrow morning. Yes, Mr. Falconer? 8 MR. JULIAN FALCONER: Mr. Commissioner, 9 I'm sorry to be addressing you so late but I canvassed 10 your Counsel on this -- 11 COMMISSIONER SIDNEY LINDEN: All right. 12 MR. JULIAN FALCONER: -- and I thought it 13 appropriate to put it on the record. 14 I committed many, many months ago to speak 15 at a -- at a CLE conference on Crown liability tomorrow 16 morning and I think -- I -- I know I will be back here 17 between 3:00 and 3:30, but I thought it appropriate to 18 put on the record. 19 It would be an exceptional acceleration of 20 the proceedings which I may well be precipitating now to 21 have me come up earlier than that, but I just, in 22 advance, thought I'd indicate the caution I indicated to 23 My Friend and ask the Court in advance for some 24 indulgence and I apologize for that. 25 COMMISSIONER SIDNEY LINDEN: We'll do our
2311 best to wait for you. 2 MR. JULIAN FALCONER: Thank you. 3 COMMISSIONER SIDNEY LINDEN: If we should 4 finish early -- 5 MR. JULIAN FALCONER: Thank you. 6 COMMISSIONER SIDNEY LINDEN: -- would you 7 give us a copy of your paper when you finish making it? 8 MR. JULIAN FALCONER: My honour. 9 MR. DERRY MILLAR: Thank you. 10 COMMISSIONER SIDNEY LINDEN: Thank you. 11 We now adjourn until tomorrow morning at nine o'clock. 12 MR. DERRY MILLAR: Thank you, sir. 13 14 (WITNESS RETIRES) 15 16 THE REGISTRAR: This Public Inquiry is 17 adjourned until tomorrow, Tuesday, November 15th at 9:00 18 a.m. 19 20 --- Upon adjourning at 5:28 p.m. 21 Certified Correct, 22 23 _________________ 24 Wendy Warnock, Ms. 25