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 16th, 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 ) 7 Murray Klippenstein ) (np) The Estate of Dudley 8 Vilko Zbogar ) (np) George and George 9 Andrew Orkin ) (np) Family Group 10 Basil Alexander ) 11 12 Peter Rosenthal ) Aazhoodena and George 13 Jackie Esmonde ) Family Group 14 15 Anthony Ross ) Residents of 16 Cameron Neil ) (np) Aazhoodena (Army Camp) 17 Kevin Scullion ) (np) 18 William Henderson ) (np) Kettle Point & Stony 19 Jonathon George ) Point First Nation 20 Colleen Johnson ) (np) 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 ) (np) 12 13 Harvey Stosberg ) (np) Charles Harnick 14 Jacqueline Horvat ) 15 16 Douglas Sulman, Q.C. ) Marcel Beaubien 17 Mary Jane Moynahan )(np) 18 Dave Jacklin ) (np) 19 Trevor Hinnegan ) (np) 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 ) 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 ) (np) 5 Erin Tully ) 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 5 LARRY TAMAN, Resumed 6 Continued Cross-Examination by Mr. Julian Falconer 9 7 Re-Direct Examination by Mr. Derry Millar 152 8 9 WILLIAM LLOYD KING, Sworn 10 Examination-In-Chief by Megan Ferrier 160 11 Cross-Examination by Ms. Jennifer McAleer 211 12 Cross-Examination by Mr. Douglas Sulman 212 13 Cross-Examination by Ms. Kim Twohig 234 14 Cross-Examination by Mr. Vilko Zbogar 237 15 16 17 18 Certificate of Transcript 311 19 20 21 22 23 24 25
71 EXHIBITS 2 No. Description Page 3 P-953 Document Number 1006195. Fax from 4 Marcel Beaubien to Bill King attaching 5 press release, September 05/'95. 173 6 P-954 Document Number 1006197. Faxed letter 7 from Bill King to Marcel Beaubien re. 8 suggested response, September 07/'95 189 9 P-955 Document Number 1006198. Fax from Marcel 10 Beaubien to Bill King with attachments: 1. 11 Letter from Marcel Beaubien to Dennis 12 Martel. 2. Sarnia Observer Article, 13 Queen's Park to take Hard Line Against 14 Occupiers: Beaubien 3. Sarnia Observer 15 Editorial, Occupation of Ipperwash Park 16 Causes Concern, September 07/'95 191 17 P-956 Document Number 1006200. Fax from Marcel 18 Beaubien's office to Bill King re. 19 Letter of Support, September 08/'95. 193 20 P-957 Document Number 12000079. Fax from Bill 21 King to all PC Caucus members September 22 08/'95. 195 23 24 25
81 LIST OF EXHIBITS (cont'd) 2 Exhibit No. Description Page No. 3 P-958 Document Number 1006199. Handwritten 4 note from Marcel Beaubien to Bill King 5 September 11/'95 196 6 P-959 Document Number 1006201. Fax from 7 Marcel Beaubien to Bill King re. More 8 articles with attachments September 9 19/'95. 200 10 P-960 Document Number 1004308. Toronto Globe 11 & Mail article "Tory MPP" contradicts 12 Harris on Ipperwash November 06/'96 208 13 P-961 Document Number 12000067. Press Release 14 from Marcel Beaubien MPP - Lambton with 15 handwritten notes September 05/'95. 303 16 17 18 19 20 21 22 23 24 25
91 --- Upon commencing at 9:04 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, Mr. Falconer. 8 MR. JULIAN FALCONER: Good morning, Mr. 9 Commissioner. Good morning, Mr. Taman. 10 THE WITNESS: Good morning, Mr. Falconer. 11 12 LARRY TAMAN, Resumed 13 14 CONTINUED CROSS-EXAMINATION BY MR. JULIAN FALCONER: 15 Q: In the area I first wanted to ask you 16 some questions on this morning, Mr. Taman, related to 17 some evidence that you provided to Mr. Millar, but also 18 evidence that we heard from Ms. Jai. And it really 19 relates to this notion of the -- the role of the Attorney 20 General in various different instances. 21 And the notion that the Attorney General 22 in some limited cases may have a free standing obligation 23 separate from government, and many other instances may 24 simply act as a legal advisor and support for government. 25 Is that fair? Does that give some --
101 A: Yes, I understand. 2 Q: Now, there was a discussion on that 3 very issue, and if you'll allow me to -- a moment, I will 4 direct you to what my notes speak to. If you -- if I 5 could simply do this; firstly there was a reference in 6 some notes that appeared on the Minister's briefing form 7 and if you look at Commissioner's documents Tab 21. 8 And again you'll forgive me if -- and 9 that's -- I was going to say you'll forgive me if the tab 10 numbering ends up wrong by one (1) off and it did today, 11 20. 12 Thank you, Mr. Millar. 13 So, if you look at Tab 20, and we'll keep 14 doing this together. In other words, you'll look and see 15 if I got the right number because unfortunately for 16 reason they ended up out of sync. 17 So, if you look at Commissioner's document 18 Tab 20 which is Exhibit P-512, being Document Number 19 1011729, you will see that attached is some handwritten 20 notes purportedly of Julie Jai -- 21 MR. DERRY MILLAR: Excuse me, I -- it's - 22 - Mr. Falconer was correct. The -- 23 COMMISSIONER SIDNEY LINDEN: The -- 24 MR. DERRY MILLAR: -- document that -- 25 1011729 is P-512 and that is exact -- that is at Tab 21.
111 MR. JULIAN FALCONER: We'll get off the 2 ground. Thank you, Mr. Millar. 3 4 CONTINUED BY MR. JULIAN FALCONER: 5 Q: So, we're now back to Tab 21. 6 A: I'm there. 7 Q: If you look at the briefing note -- 8 and the reason for the confusion of course is it's the 9 same briefing note. It happens to have on the one (1) 10 hand Lazor handwritten notes and on the other hand Jai 11 handwritten notes. So, I'm at the Jai handwritten notes 12 if that's of assistance to you. 13 And -- and you'll see at the bottom of the 14 page there is this reference to: 15 "Re. Injunction. Is AG just client or 16 do they have a separate duty to uphold 17 the law?" 18 Do you see that? 19 A: Yes. 20 Q: All right. Now, it's that discussion 21 I want to simply put to you and ask you if you agree; a 22 very brief excerpt of the transcript of the evidence of 23 Julie Jai of August 31st, 2005. I say to you, sir, that 24 it's brief so I -- I apologize for not having copies for 25 you, but it's so short that I expect you -- and if you
121 have a difficulty I will simply provide my copy to you. 2 This is examination-in-chief by Mr. Millar 3 dated as I said August 31st, 2005, and I'm at page 50 of 4 the transcript line 20. 5 "Q: And then on the left-hand side 6 there is this -- part of the same -- 7 It's still part of the discussion with 8 Larry." 9 So, they're looking at the same notes that 10 you and I are looking at now, Mr. Taman? 11 A: Yes. 12 Q: Question -- Answer, by Ms. Jai: 13 "Paper, and I'm just writing it in the 14 very bottom. So, it's regarding the 15 injunction. He says, 'Is the AG just - 16 - re: the injunction. Is the AG just 17 the client or do they have separate 18 duty to uphold the law?" 19 And then Ms. Jai goes on, quote, line 14 20 page 51: 21 "This is an issue that is debated at 22 length internally within government. 23 It's kind of the role of the Attorney 24 General whether in some situations, 25 like, does the Attorney General just
131 kind of, like, a hired lawyer, like you 2 would hire someone in the private 3 sector and they would just do the 4 client's bidding, or does the AG have 5 an independent duty to uphold the law 6 and to in some cases, you know, take a 7 different position from the client's 8 position? 9 So, Larry is kind of musing about 10 whether this is a situation where the 11 Attorney General is perhaps more than 12 just the client and has a separate duty 13 to uphold the law and ensure that what 14 we view as the most legally correct 15 approach is followed and then Larry 16 [and] then it says, 'Larry Taman wants 17 us to be a Counsel'." 18 And for the record, at page 52 where that 19 appears line 4, the court reporter may want to consider 20 changing the spelling of Counsel to C-O-U-N-S-E-L. It 21 now says, "Larry wants us to be a council", which was the 22 C-I-L version and I'm -- 23 COMMISSIONER SIDNEY LINDEN: C-I-L. 24 MR. JULIAN FALCONER: -- I'm pretty -- 25 I'm pretty sure that's not what Larry wanted.
141 THE WITNESS: No, no. I meant council, 2 C-I-L. 3 4 CONTINUED BY MR. JULIAN FALCONER: 5 Q: C-I-L? Humour. Thank you. And the 6 -- but the bottom line is -- it's all right I -- I have 7 the same problem. 8 The bottom line though is that you meant 9 Counsel as in S-E-L, correct? 10 A: Yeah. 11 Q: Yes. And -- and -- and the 12 question: 13 "And that's what that refers to? 14 A: It suggests that he feels that in 15 this case we should just do what the 16 client wants, so that after his initial 17 musing about if the AG has a separate 18 duty he's also saying, kind of, well, 19 maybe this isn't a case where the AG 20 should take the lead and say, 21 regardless of what the client wants to 22 do, you know, we should do -- we want 23 you -- we want you to do 'X'. 24 That's what it suggests to me." 25 And it's important that I add this. She
151 says: 2 "I don't actually recall having a 3 discussion on that point with him so I 4 don't know what he... 5 And the client would be? 6 Well, it would be MNR because they're 7 the landowner..." 8 And at the bottom of page 53: 9 "I can't -- but, the gist of it is that 10 he wants this to be viewed as a law 11 enforcement matter not an AG matter and 12 that it's up to the police to, you 13 know, enforce the law or whatever." 14 Is that consistent, Mr. Taman, with your 15 recollection of the discussions and the conclusions 16 arrived at? 17 A: I don't have a strongly specific 18 recollection of it, but I recall having had this 19 discussion, and I recall having had it in any number of 20 other settings, so I'm familiar with the discussion. 21 Q: And do you recall the conclusion 22 being arrived at as consistent with that described by Ms. 23 Jai? 24 A: Yes, sir. 25 Q: All right. Is it fair to say that
161 one (1) of the important principles that Ms. Jai 2 recognizes and you recognize in -- in acknowledging what 3 she said, is that the Attorney General must at all times 4 be alive to it's role as a minister of justice to uphold 5 the law? 6 A: Yes. 7 Q: And that at no time can the Attorney 8 General be an instrument for illegality? 9 A: Right. 10 Q: And that in addition to that 11 obviously very lofty obligation on -- as a Minister of 12 Justice there's a reality for lawyers isn't there, which 13 is, even when a client wants and instructs a lawyer to do 14 something, the lawyer is precluded by their professional 15 obligations from, for example going to court and doing 16 something not in keeping with the law? 17 A: Yes. 18 Q: So, a lawyer has this obligation, 19 notwithstanding the obligation to take instructions, but 20 to always, always act in accordance with the law? 21 A: Right. 22 Q: Would you agree with me that because 23 of the heightened obligation involving the Attorney 24 General, there is an important obligation on your part as 25 Deputy Attorney General to know the situation you're
171 being presented with and to evaluate it on an ongoing 2 basis if it's an ongoing incident? 3 A: Yes. 4 Q: And that would have been the case in 5 Ipperwash? 6 A: Yes. 7 Q: You had what Ms. Jai may have called 8 musings, but that musing is an important part of your 9 job? 10 A: Well, Ms. Jai's musings were my deep 11 thoughts I can assure you. 12 Q: And -- and fair enough, and that's 13 why I say it may have been a bit unfair to call it a 14 musing. It really was an important job for you to 15 perform? 16 A: True. 17 Q: And that you regularly kept your 18 finger on the pulse of how matters were developing to 19 make sure that this was not a situation where the AG 20 might have to step -- step away from government and 21 assert a different role, correct? 22 A: That's right. 23 Q: This is particularly important, isn't 24 it, in the context of Section 35 of the Constitution Act 25 and the reality around Aboriginal rights?
181 A: It's important in connection with any 2 legal right. 3 Q: But, would you agree with me that 4 this particular case implicated those issues as well? 5 A: Sure. 6 Q: On -- on that basis I'm -- I'm going 7 to go into some excruciating detail on your knowledge of 8 the events transpiring around you. And you'll forgive 9 me, Mr. Commissioner, but I'll move through this as 10 quickly and as efficiently as I can, but I'm not looking 11 to repeat, and I have studied the evidence of yesterday. 12 But, it's on that basis I'm going to ask 13 you some questions about the -- your knowledge of the 14 events transpiring around you, all right? 15 You'd agree with me that no matter how we 16 look at the chronology as of Sept -- the evening of 17 September 4th and the morning of September 5th, matters 18 accelerated significantly in a short number of days. 19 A: Well, they were certainly presented 20 as accelerating quickly. I -- I was never fully 21 convinced to what extent they were or weren't 22 accelerating, but that was certainly the presentation. 23 Q: And let me be a little more precise 24 because I think it was a bit of an unfair question. 25 In addition to what was presented to you
191 as accelerating, in fact what you had adopted as a go- 2 slow approach on the morning of September 6th, stopped 3 being a go-slow approach that same morning, correct? 4 A: That's fair. 5 Q: And so matters accelerated, 6 substantially, from the point of view of the steps the 7 Attorney General was taking? 8 A: Yes. 9 Q: Now, when we discuss your knowledge 10 of the circumstances around you, you were alive to the 11 fact that you were dealing with and advising and 12 providing legal support to a fledgling government? 13 A: Yes. 14 Q: And it would have been one of the 15 issues that you would assess in determining whether the 16 AG needed to step away? 17 A: Yes. 18 Q: And you knew and had knowledge that 19 you were dealing in some cases with fledgling actors in 20 terms of their role in government? 21 A: Yes. 22 Q: And to be fair to you, that's not 23 unusual, is it, in terms of a new government taking over, 24 there's different characters, different people, different 25 experiences level?
201 A: It's standard. 2 Q: You -- you testified to Mr. Millar 3 that one of the priorities for your Ministry, 4 understandably, was that you were concerned to show you 5 were ready, willing and able to work with the new 6 government, correct? 7 A: Yes. 8 Q: Because it was important the new 9 government knew that within reason you were prepared to 10 carry out their bidding because that's your job? 11 A: Right. 12 Q: Now, example in terms of the kinds of 13 fledgling actors that you were becoming involved with on 14 Ipperwash; Ms. Hutton was twenty-nine (29) years of age 15 at the time? 16 A: I don't know. 17 Q: Is that -- is that your general 18 memory though that she was a woman in her late 20's? 19 A: yeah, I didn't know how old she was. 20 Q: All right. Were you familiar with 21 the fact that Ms. Hutton had no previous public service 22 experience? 23 A: I believe what I understood at the 24 time was that she had been actively involved in the 25 campaign. I -- I don't think I knew whether she'd ever
211 been in government before. 2 Q: And -- 3 A: She couldn't have been in government 4 very long. 5 Q: And would you -- is it also 6 consistent with your memory what Mr. Millar brought to 7 your attention was that a mere three (3) weeks earlier, 8 it was Ms. Hutton who asked to be briefed on Aboriginal 9 issues? 10 You remember Mr. Millar brought that to 11 your attention? 12 A: Yes. Yes, yes. 13 Q: The August 11 note; Ms. Hutton asked 14 to be briefed on Aboriginal issues and you actually write 15 a package in response to the request? 16 A: For her and for Guy Giorno. 17 Q: Yes. And that would -- she would be 18 an example of what you knew to be a reality about, in 19 some cases, and I don't say this pejoratively, fledgling 20 actors? 21 A: Sure. 22 Q: All right. Now, going with the 23 chronology and -- but a focus is on what you knew and the 24 events transpiring around you in order to make that 25 ongoing assessment of Attorney General as client.
221 The first thing in the chronology that's 2 important is the IMC meeting on the morning of September 3 5th, 1995. And what I want to simply ask you -- and I'm 4 going to try to move this -- through this quickly, is 5 first of all, you as of the morning of September 5th, 6 1995, knew you had a situation on your hands? 7 A: Yes. 8 Q: And your right-hand person, if I may, 9 was really Julie Jai? 10 A: No, the right-hand person was Yan 11 Lazor. 12 Q: All right. But, the on-the-ground 13 person who you ended up meeting with the minister, was 14 Julie Jai, correct? 15 A: Fair enough. 16 Q: And the person who was literally the 17 most actively involved in getting right back to you and 18 having direct access to you was Julie Jai? 19 A: Well, I think -- I'm not going to 20 accept that. The person I relied on as my lead advisor 21 from the ONAS perspective was Yan Lazor. 22 Q: All right. And that's chain of 23 command? 24 A: Well, it was also the person I saw on 25 -- when the important issues were being discussed.
231 Q: All right. And did you at the same 2 time see Julie Jai? 3 A: Sure. 4 Q: And it's fair to say that the 5 communications between you and Julie Jai were verbal? 6 A: Yes. 7 Q: In writing, as well? 8 A: I don't believe I ever wrote her. 9 Q: But she wrote memos directed to you 10 and the -- 11 A: Yes. 12 Q: -- AG? And she had access, 13 personally, to you? 14 A: Yes. 15 Q: That is she could consult with you, 16 talk to you and meet with you, personally? 17 A: Yes. 18 Q: And, of course, you had access to 19 her, personally? 20 A: Yes. 21 Q: For example, on the morning of 22 September 7th, it was Julie Jai's evidence that in and 23 around 5:30 in the morning she called you by telephone 24 and your line was busy. 25 A: Okay.
241 Q: And that related to the issue of the 2 death of Dudley George? 3 A: Yes. 4 Q: And so she felt free to even call you 5 at home at 5:30 in the morning. 6 A: Yes. 7 Q: Obviously a tragedy and very serious 8 circumstances, but nevertheless that was the kind of 9 access she had to you? 10 A: Sure. 11 Q: So, it's fair to say that one of the 12 things that was a reality is that Julie Jai's thought 13 processes, not -- I'm not talking minutia, but her 14 thought processes, generally, about the problem and how 15 to address the problem were shared with you? 16 A: With me or by me? 17 Q: Shared with you. 18 A: With me, yes. 19 Q: Now, if you could direct your 20 attention please -- and just give me a brief moment to 21 align the paper. If you could direct your attention, 22 please, to Commission Counsel document Tab 19 which 23 should show as Julie Jai's notes. 24 And by that, I'm referring, of course, to 25 Exhibit P-549 which is Document number 1012579. Do you
251 show that as Julie Jai's notes? 2 A: You're looking at Tab 20 -- Tab 19 -- 3 Q: Yes. 4 A: -- document P-536? 5 Q: P-549 is what you should have, so if 6 you flip to -- 7 MR. DERRY MILLAR: Her notes are P -- her 8 big set of notes are P -- 9 THE WITNESS: I've got 549. 10 MR. JULIAN FALCONER: Okay, good. 11 MR. DERRY MILLAR: P -- fine. It's -- 12 MR. JULIAN FALCONER: Thank you. 13 MR. DERRY MILLAR: -- P-536 actually. 14 The large set of notes. 15 16 CONTINUED BY MR. JULIAN FALCONER: 17 Q: All right. But, you have P-549, sir? 18 A: I've got 549. 19 Q: All right. We'll work with that for 20 now. If you could turn to the September 5th notes. So, 21 there's some -- the P-549 is -- is a briefing note which 22 attaches to Jai's notes, so we're talking about P-536 and 23 it's obviously an error in my -- in my notes. 24 So, P-536 and I'll show you what it looks 25 like. It is -- it is a document in which there's a
261 typed... 2 MR. DERRY MILLAR: It's Tab 19 in your 3 book. 4 MR. JULIAN FALCONER: Yeah. 5 6 CONTINUED BY MR. JULIAN FALCONER: 7 Q: It's a document that is typed that -- 8 A: I've got 536. 9 Q: Thank you. January 23rd, '97 is -- 10 A: Yes. 11 Q: -- the cover. And I apologize, Mr. 12 Commissioner. We -- 13 COMMISSIONER SIDNEY LINDEN: That's fine. 14 MR. JULIAN FALCONER: -- we'll keep us 15 going. 16 COMMISSIONER SIDNEY LINDEN: We're all at 17 the same place now. 18 19 CONTINUED BY MR. JULIAN FALCONER: 20 Q: What you'll see in terms of the 21 organization in Ms. Jai's notes, I know you've seen these 22 before, is that the way the notes are organized, the more 23 recent notes of September 6th appear first, so if you 24 flip halfway through the package you will get to her 25 notes of September 5th.
271 Could you do that for me? 2 A: Yeah, yeah. 3 Q: Thank you. 4 5 (BRIEF PAUSE) 6 7 A: I have it. 8 Q: And in terms of the chronology of 9 your involvement, or knowledge of the matter, I simply 10 want to bring certain matters to your attention and ask 11 if those matters came to your attention. In other words, 12 I want to flag things for you and ask you if you knew 13 about them. 14 So, looking firstly at the September 5th 15 notes, page 5. At page 5, you will see that Ms. Jai is 16 making a note of various options that are being laid out 17 by Elizabeth Christie. Do you see that? 18 A: Yes. 19 Q: And you were familiar with the fact 20 that Elizabeth Christie was the lawyer in the civil 21 office and she was providing advice to the IMC along with 22 Tim McCabe, her senior; correct? 23 A: She was a law student. 24 Q: She was a law student at the time? 25 A: Yeah, I think so.
281 Q: That's your recollection? 2 A: I think so, yeah. 3 Q: In fact, I believe the evidence says 4 she was a junior lawyer out one (1) year at the time. 5 A: Okay. 6 Q: But, that's -- in any event she was 7 junior. And Elizabeth Christie laid out -- do you see 8 that five (5) options; Criminal Code, Trespass to Public 9 Property, Public Lands, Provincial Parks Acts -- 10 A: Yes. 11 Q: -- Injunction. Do you see that? 12 A: Yes. 13 Q: That's consistent with what you 14 understood to be the options at the time? 15 A: Yes. 16 Q: And she goes on to say: 17 "Injunction can apply on a non urgent 18 basis. Would be heard in a couple of 19 weeks. Irreparable harm would be that 20 it's in the public interest to maintain 21 public lands." 22 And then if you flip the page, at page 6, 23 halfway down the page. 24 A: Yes. 25 Q: It says "would we likely"; do you see
291 that? 2 A: Yes. 3 Q: "Would we likely succeed in an 4 injunction application? 5 Yes. Especially with recent Bosanquet 6 decision, but probably wouldn't succeed 7 in getting an urgent ex parte 8 injunction" 9 A: Yes. 10 Q: It's -- it's fair to say that these 11 were all matters that come to your attention. 12 A: Yes. 13 Q: All right. 14 COMMISSIONER SIDNEY LINDEN: Ms. 15 Perschy...? 16 MS. ANNA PERSCHY: I just -- I just raise 17 a concern with respect to the use of the notes since this 18 witness wasn't in attendance at these meetings. They're 19 -- they're not a transcript. They are simply somebody's 20 record of what they understood. 21 And as long as we're careful that that is 22 fact what these notes represent then -- then I'm fine 23 with it. But, I just wanted to raise that point. I'm 24 not quite sure where Mr. Falconer's going with some of 25 this.
301 MR. JULIAN FALCONER: Well, that's -- 2 that's fair and I've told Mr. Taman that these are Julie 3 Jai's notes and what I do is I actually ask him, were you 4 knowledgeable about this, was this something you knew of? 5 He'll tell us he was or he wasn't -- 6 COMMISSIONER SIDNEY LINDEN: Yes. 7 MR. JULIAN FALCONER: -- and away we go. 8 But, Ms. Perschy's point is well taken and I -- 9 COMMISSIONER SIDNEY LINDEN: That's fine. 10 The caution is now made. That's fine. 11 MR. JULIAN FALCONER: Thank you. 12 13 CONTINUED BY MR. JULIAN FALCONER: 14 Q: And you understood at the time that 15 advice was being sought and was being given by lawyers in 16 your Ministry as to the appropriateness of a non-urgent 17 injunction, an interim injunction, and proceeding on an 18 urgent basis ex parte. 19 You were familiar with that? 20 A: Yeah. 21 Q: Now, at that same meeting there was a 22 certain amount of frustration being experienced as far as 23 others could see and observe by Deb Hutton. 24 Was that brought home to you, subsequent 25 to the meeting, that some of the political staffers, in
311 particular Ms. Hutton, seemed frustrated? 2 A: There was talk of that, yes. 3 Q: If you look at page 8 of those notes, 4 so you're at the same notes, the bottom of page 8 says 5 "Deb"; do you see that? 6 A: Yes. 7 Q: "Deb wants an emergency injunction. 8 Doesn't want to wait two (2) weeks." 9 And then the top of page 9: 10 "Attempts should be made to remove 11 people." 12 And to be fair, and then it says: 13 "Leave it up to OPP as to how to do 14 this." 15 Right. Do you see that? 16 A: Yes. 17 Q: All right. So, generally that 18 information would have come to your attention subsequent 19 to that IMC meeting? 20 A: Yes. 21 Q: All right. 22 COMMISSIONER SIDNEY LINDEN: It looks 23 like Ms. Perschy's got another objection. We better wait 24 for it. 25 MS. ANNA PERSCHY: My apologies. It
321 takes me a few minutes to -- to get up here. 2 Just with respect to the last remark, I'm 3 not sure if Mr. Falconer put to this Witness, with 4 respect to the last two (2) lines that he read, who he 5 understood that those comments were made, by at least in 6 terms of what presumably was Julie Jai's recollection, 7 because my understanding from Mr. Taman's evidence is 8 this what he's getting from Julie Jai. 9 And it just confirms my concern that we 10 need to be very careful in terms of dealing with these 11 notes, because my recollection of Ms. Jai's testimony was 12 that she can't always recall who made certain comments. 13 She's relying on her notes and -- and you know, as said 14 they weren't -- they weren't a transcript. 15 So, I just think we do need to be careful. 16 I mean, the way -- the way it was introduced suggested 17 who may have been the speaker. 18 COMMISSIONER SIDNEY LINDEN: Thank you, 19 Ms. Perschy. 20 MS. ANNA PERSCHY: And I'm not sure that 21 that -- 22 COMMISSIONER SIDNEY LINDEN: I think -- I 23 think we're being careful. I think we're being careful. 24 MR. JULIAN FALCONER: We're trying to be. 25 COMMISSIONER SIDNEY LINDEN: Yes, let's
331 carry on. 2 3 CONTINUED BY MR. JULIAN FALCONER: 4 Q: All right. Now, if you could flip -- 5 I'm sorry, just give me one second to make sure I've 6 finished this. Yeah. 7 If you can then direct your attention to 8 the Minister's briefing note because you have the 9 September 5th IMC meeting, right? 10 And you testified that it came to your 11 -- on the one hand there's -- you were knowledgeable as 12 to advice your lawyers were giving about the nature of 13 the injunction and the options. You were also alive to 14 the fact that political staffers wanted to move faster 15 and were in -- in line with the words I've read to you in 16 the notes. 17 Now, I'd ask you now to turn to that 18 briefing note that appears at Tabs 20 and 21. If you 19 could first start with Tab 20? 20 A: Yes. 21 Q: Now, what you should have in front of 22 you at Tab 20 is the -- the version of what I'll call the 23 -- the Yan Lazor. 24 A: This is 549? 25 COMMISSIONER SIDNEY LINDEN: This is
341 Exhibit P-549, Mr. -- 2 MR. JULIAN FALCONER: Yes. 3 COMMISSIONER SIDNEY LINDEN: -- Falconer. 4 MR. JULIAN FALCONER: That's right. I 5 was -- I was tentative about saying it -- 6 COMMISSIONER SIDNEY LINDEN: That's fine. 7 MR. JULIAN FALCONER: -- because I 8 thought I'd mess up the record even more. If I call it 9 the Yan Lazor briefing note you look for the one that has 10 his notes on it. 11 Is that fair? 12 THE WITNESS: Yeah. 13 MR. JULIAN FALCONER: Okay. 14 MR. DERRY MILLAR: But, it is important 15 for the record that we -- 16 COMMISSIONER SIDNEY LINDEN: For the 17 record. For the record it's P-549. 18 MR. JULIAN FALCONER: Very fair, very 19 fair. We'll get there. 20 THE WITNESS: But when? 21 22 CONTINUED BY MR. JULIAN FALCONER: 23 Q: Well, I can't promise that matters 24 will accelerate quite as quickly as they did on September 25 6th, but we will get there.
351 Now, can you first assist me, when did you 2 first read this briefing note for the Minister; the one 3 dated September 5th, 1995, and signed by Yan Lazor? 4 A: I -- I'm guessing that if I, you 5 know, read it or read it with care that I did so in or 6 about that time or possibly the following morning when I 7 saw them all. 8 Q: Is there any doubt in your mind that 9 you read the note? 10 A: Only in the sense, Mr. Falconer, that 11 my general habit would just be to glance at things and 12 wait to hear what people had to say. 13 Q: All right. 14 A: But, I was certainly aware of the 15 issues. 16 Q: And in -- it's fair to say that this 17 particular briefing note to the Attorney General 18 represented the first formal method of briefing the 19 Attorney General on what was an emerging crisis? 20 A: I'm uncertain of that. I mean, I 21 take your word for it. If it is the first piece of 22 paper, then it is. 23 Q: All right. And in terms of its 24 contents, whether you read it closely before you started 25 your meetings, you certainly met with your staff with
361 this briefing note in hand, correct? 2 A: Right. 3 Q: And at that point you certainly would 4 have read it? 5 A: Yes. 6 Q: Carefully. 7 A: Yes. 8 Q: All right. Under, Summary of Advice, 9 it refers to: 10 "It is recommended that a civil 11 injunction be sought to provide court 12 authority for removing the occupiers of 13 the Park. The injunction could be 14 sought either on an emergency ex parte 15 basis or an interim less urgent [in 16 brackets] basis." 17 And it's fair to say that ex parte and 18 interim are actually bolded up in the note, correct? 19 A: Right. 20 Q: "An interim injunction could take a 21 week to be heard, but we'll provide 22 time to communicate with the group to 23 find out what they want in time for the 24 Province to show that it has taken all 25 reasonable steps to persuade them to
371 leave. Chances of success would be 2 higher with an interim injunction, but 3 delay could make it more difficult to 4 remove the occupiers." 5 So, this distinction that it starts at the 6 -- at the option stage -- the option stage on September 7 5th with Ms. Christie laying out this distinction between 8 ex parte and interim, makes its way into the briefing 9 note to the Attorney General? 10 A: Yes. 11 Q: And you are hearing this distinction 12 both through your staff as a result of the September 5th 13 IMC meeting and then you are being briefed on the 14 distinction through the briefing note, yes? 15 A: Yes. 16 Q: And the distinction is actually 17 bolded up for the reader, isn't it? 18 A: Well, certainly they sometimes 19 thought that, you know, they had to bold things up for 20 me. 21 Q: Fair enough. And I'm not -- I -- I 22 ask my staff to bold everything up. I can't see anymore. 23 The -- the bottomline -- the bottomline 24 is, in fact, if one has regard to Mr. Lazor's notes, 25 there's actually a reference in -- in the left-hand
381 corner handwritten note. 2 Could you read what that says? 3 A: Yes, it says: 4 "Tim, no case for ex parte because no 5 urgency." 6 Q: So, a subject of discussion between 7 you and your staff -- you were the most senior person at 8 that meeting on the morning of September 6th, correct? 9 A: Wherever I was I was the most senior 10 person at the meeting. 11 Q: All right. And as the most senior 12 person you were hearing from your staff on the merits of 13 going ex parte versus another form, such as interim? 14 A: Yeah. 15 Q: And your advice you received from 16 lawyers you trusted was there was no basis for ex parte? 17 A: No, that's not right. The summary of 18 the advice was that it could be proceeded on either 19 basis. And there's a note that Tim McCabe said that he 20 didn't think there was a case for an ex parte injunction. 21 Q: All right. Let's back up. The 22 Summary of Advice said you could go one way or the other, 23 correct? 24 A: Yeah. 25 Q: And who was the senior civil
391 litigation Counsel in the meeting? 2 A: I was. 3 Q: You were civil litigation Counsel? 4 A: I was the senior civil litigator in 5 the group. 6 Q: All right. And Mr. McCabe was the 7 civil litigator on the ground, on the file, correct? 8 A: Right. 9 Q: And his advice to you was there was 10 no basis to go ex parte, correct? 11 A: Yes. 12 Q: All right. 13 A: He says, no case for ex parte. 14 Q: Well, in fairness sir, you're a 15 lawyer and I'm a lawyer, if another lawyer tells me 16 there's no case to do something, that translates in 17 layperson's terms, there's no basis for doing it, 18 correct? 19 A: Yeah. I don't want to quibble about 20 basis and case. I don't know whether Tim was talking 21 about, no legal argument in favour of it, or no reason to 22 do it, if I can put it that way. 23 That's the point I'm trying to make to 24 you. 25 Q: Fair enough.
401 (BRIEF PAUSE) 2 3 A: But, can I just -- Mr. Falconer, 4 maybe, if I can just add, I was always clear in my own 5 mind that it was open to us to go to Court and to ask for 6 an injunction on that basis, the ex parte basis. 7 And as I said yesterday, I was not so 8 concerned about this issue because in the end, I thought 9 the result was going to be the same, namely that a Judge 10 was going to want to hear the parties. 11 Q: And, in fact, wasn't it your evidence 12 yesterday that you didn't think a Judge would give an ex 13 parte order? 14 A: No, I didn't say that. I said I 15 thought what would happen would be that a Judge would 16 craft the order in such a way that he would require the 17 parties to be brought back before him. 18 Q: All right. In any event, what you 19 heard from Mr. McCabe is there was no case for an ex 20 parte, or you heard that at that meeting? 21 A: Yes. 22 Q: All right. Now, in the same notes, 23 and I'm going to try to go through this quickly, in the 24 same notes, if you turn the page to the short note by Mr. 25 Lazor --
411 A: Yes. 2 Q: It says: 3 "Agreed. Julie to call OPP Fox. We 4 want to support them." 5 Can you give me the context for why that 6 would have been said? 7 8 (BRIEF PAUSE) 9 10 A: I think what I take from it, I -- I 11 don't know what she intended when she wrote it. It's -- 12 Q: These are Yan -- 13 A: Yan Lazor's -- 14 Q: These are Yan Lazor's notes. 15 A: Yeah, what I -- what I think the 16 position was throughout, was that we wanted to act in a 17 way that was consistent with what the OPP wanted to do. 18 Q: And you wanted to call them and tell 19 them that? 20 A: Yes. 21 Q: And it was agreed between you and 22 your subordinates that that would happen? 23 A: Yes. 24 Q: The note goes on to say: 25 "Let's get more facts concern safety.
421 We didn't want to get anyone injured 2 over this. If no one is at risk at 3 this time, no urgency." 4 Correct? 5 A: Yes. 6 Q: Again, that speaks to the no-case for 7 an ex parte injunction -- 8 A: Yes. 9 Q: -- correct? I talked over you. 10 Correct? 11 A: Yes. 12 Q: Thank you. Then skipping a line: 13 "Larry wants to speak to Elaine Todres 14 and Ron Fox." 15 Do you see that? 16 A: Yes. 17 Q: And then at the bottom, 18 "Julie and Larry went over to 19 Legislature to brief the Minister." 20 So, in terms of the chronology, this is 21 the record of the meeting you have with your staff, under 22 you, prior to going to brief the Minister? 23 A: Yes. 24 Q: And in terms of the chronology, so 25 we're clear, we have the September 5th IMC meeting.
431 First thing in the morning prior to the staff meeting, 2 you meet with your Attorney General, Charles Harnick, you 3 meet with the Solicitor General, Runciman, and you meet 4 with Todres, first thing in the morning, where you decide 5 to adopt a go-slow approach, correct? 6 A: Yes. 7 Q: So, the staff meeting is meeting 8 number 2 on September 6th, correct? 9 A: Yes. 10 Q: All right. And it's fair to say that 11 so far the go-slow approach is what's in play? 12 A: Yes. 13 Q: All right. 14 A: Well, the go-slow approach is what's 15 in play among the public servants and among some of the 16 politicians. It's very definitely not in play among 17 others. 18 Q: Well, but you don't know that yet. 19 A: I think I know by that stage that -- 20 that Deb Hutton and others have been quoted as saying 21 that the Government wants to go very quickly. 22 Q: All right, fair enough. I meant 23 what's in play in terms of what you're agreed upon 24 between the Solicitor General, his deputy, your Attorney 25 General and you.
441 This is -- this is the advice in the 2 approach we think ought to be taken? 3 A: Yes. 4 Q: That's what's in play? 5 A: Yes. 6 Q: And I just want to focus -- it -- 7 it's interesting, you -- you don't have any difficulty 8 with the reference, "Julie to call OPP Fox"? 9 That -- that to you is consistent with 10 your recollection of Fox's role, correct? 11 A: Yes. 12 Q: It doesn't say, Julie to call 13 seconded person with the Ministry of the Solicitor 14 General and stuff and stuff. It says, "OPP Fox", right? 15 A: Well, she wasn't drafting a chain of 16 command chart, she was just making a note on the back of 17 a piece of paper. 18 Q: But, it's reflective of how you folks 19 thought of Fox; OPP, correct? 20 21 (BRIEF PAUSE) 22 23 MR. JULIAN FALCONER: I'm allowed to 24 cross-examine. I'm allowed to ask him if -- 25 COMMISSIONER SIDNEY LINDEN: But you say
451 -- but you say, You folks. I mean, he -- 2 MR. JULIAN FALCONER: I apologize. I'll 3 rephrase. 4 COMMISSIONER SIDNEY LINDEN: -- he didn't 5 make the note. That's fine. 6 MR. JULIAN FALCONER: I'll rephrase. 7 It's consistent. I'm simply -- I'm not -- he can say 8 that this isn't. He doesn't have to adopt this. He can 9 say a hundred different things, but the words are there 10 and I'm simply asking if it's consistent with what he 11 knew. 12 COMMISSIONER SIDNEY LINDEN: Yeah, 13 well... 14 MR. JULIAN FALCONER: These are Lazor's - 15 - I apologize, these are Ms. -- Mr. Lazor's notes. I did 16 the same thing you did before, so we'll keep bouncing, 17 but hopefully Derry will protect us. 18 THE WITNESS: These are Yan Lazor's 19 notes. 20 21 CONTINUED BY MR. JULIAN FALCONER: 22 Q: It's consistent with how Mr. Lazor 23 and you thought of Mr. Fox as the route to the OPP? 24 A: I understood that Fox was the OPP 25 liaison officer.
461 Q: Well, in fact, it's fair to say that 2 if you wanted to talk to the OPP you did it through Fox? 3 A: If I wanted to talk to the OPP about 4 this sort of thing I would talk through Fox. 5 Q: Thank you. Well, I'm only talking 6 about this case, Ipperwash, this incident, your -- your 7 position of the Attorney General as to supporting them; 8 you did that through Fox? 9 A: No, no. I'm saying something 10 different than that, just so that we're clear. 11 My understanding was that Mr. Fox was our 12 link in operational matters; this was a matter that grew 13 out of the Operating Committee. If I had wanted to talk 14 to the OPP about something at a different level then I 15 would have had a different conversation. 16 Q: Fair enough. In the terminology, 17 "Fox was our link in operational matters"; is terminology 18 you've just carefully chosen to explain your 19 understanding of Fox's role? 20 A: Well, I don't know how careful it is, 21 but I -- I'm just trying to explain in simple terms that 22 he was the person through whom we talked to the OPP about 23 operational matters. 24 Q: Thank you. Now, you also go on to -- 25 sorry, Yan Lazor goes on to note that you want to speak
471 to Ron Fox and Elaine Todres. Do you remember why you 2 wanted to do that? 3 A: I don't know. 4 Q: Okay. But, it would be consistent 5 with your recollection of your performance of your 6 functions would it not to get that operational access? 7 A: Yes. 8 Q: Thank you. 9 10 (BRIEF PAUSE) 11 12 Q: Could I ask you just, very quickly, 13 to -- to pull up what is now Exhibit P-943? It's a free- 14 standing document that Mr. Millar gave you. 15 If you could keep the tab open to where 16 you are, in other words don't close that tab that you 17 were just at, which I think was Tab 20? 18 A: I wonder if I shouldn't really have 19 an assistant? 20 Q: 943. 21 COMMISSIONER SIDNEY LINDEN: I think you 22 need one. 23 MR. JULIAN FALCONER: The -- I think the 24 -- the budget makers for the Commission may have issues 25 about assistants for the witnesses.
481 2 CONTINUED BY MR. JULIAN FALCONER: 3 Q: But, in any event if you could look 4 at P-943? 5 A: Yes. 6 Q: It's the -- starts with two (2) typed 7 -- or three (3) typed pages and then a handwritten fourth 8 page? 9 A: Yes. 10 Q: All right. Could you just take a 11 gander for a moment? 12 First of all I -- I can ask you, you told 13 us that, in fact, Yan Lazor was your right-hand person, 14 correct? 15 A: Yes. 16 Q: He would make notes and sometimes 17 communicate to you in handwriting? 18 A: Yes. 19 Q: And so -- and this would be over a 20 course of one (1) or two (2) years? 21 A: No, I -- I had only been working with 22 Yan since ONAS came into my responsibility in June. 23 Q: No, no, but I meant forward -- going 24 forward over the course of your experience with Yan 25 Lazor, it went over one (1), two (2), more years?
491 A: Well, it went until Andromache 2 Karakatsanis became the secretary which I think was in, 3 perhaps, September. And then Andromache would have been 4 my counter -- 5 Q: All right. 6 A: -- my -- my point of contact. 7 Q: Could I just ask you to look at the 8 document that is that last handwritten page of Exhibit P- 9 943 and look at the handwriting -- 10 A: Yeah. 11 Q: -- at that half page? 12 Could Mr. Millar be forgiven for thinking 13 that those -- that's Yan Lazor's handwriting? 14 If you look at the two (2) documents, is 15 the handwriting not look similar to you? 16 I'm at the half page of handwritten 17 attached to the briefing minister's notes. Right, Tab 18 19? 19 And the full page of notes that's P-943; 20 does it not look similar to you? And that's at Tab 20. 21 As someone, Mr. Commissioner, who 22 routinely had to borrow notes in law school, this became 23 an art form. But could you -- could you help -- 24 A: You knew exactly who you were 25 borrowing from at any time.
501 Q: Exactly. That's right. 2 Could you help me on whether these -- the 3 handwriting looks somewhat similar to you? 4 A: I can't. I'm not a handwriting 5 analyst. 6 Q: Not but you -- you -- 7 A: I don't know whose handwriting this 8 is. 9 Q: All right. But, this -- this page, 10 the single page who, right now, we call it mystery 11 notes -- 12 MR. DERRY MILLAR: No, we do think those 13 notes actually -- they're not mystery notes. I think as 14 I indicated when I did this in-chief that we believe they 15 are Yan Lazor's notes. 16 COMMISSIONER SIDNEY LINDEN: Yes. 17 MR. JULIAN FALCONER: All right. 18 COMMISSIONER SIDNEY LINDEN: We've 19 already said that. 20 MR. JULIAN FALCONER: I misunderstood -- 21 COMMISSIONER SIDNEY LINDEN: That's fine. 22 MR. JULIAN FALCONER: -- the evidence 23 then. 24 COMMISSIONER SIDNEY LINDEN: That's fine. 25 MR. JULIAN FALCONER: I can move on.
511 MR. DERRY MILLAR: Although -- although 2 we have what appears to be a similar note on P-943 and on 3 P-549 and we -- 4 COMMISSIONER SIDNEY LINDEN: That's fine. 5 MR. DERRY MILLAR: -- don't know why that 6 appears. 7 MR. JULIAN FALCONER: Exactly. Okay 8 then, that's fair enough. And that was my issue. I 9 understand. 10 11 (BRIEF PAUSE) 12 13 CONTINUED BY MR. JULIAN FALCONER: 14 Q: It appears that there's a compressed 15 version of the notes and then an expanded version. But, 16 it appears that they're notes of the same meeting. 17 Is that what you see from -- from your 18 review of the lengthy document and the short document? 19 20 (BRIEF PAUSE) 21 22 A: I -- I just don't know what they are. 23 Q: All right. Let me take you through 24 them then, because this again, I'm going to respectfully 25 suggest to you, reflects some of the knowledge you had at
521 the time. 2 A: Just to situate me in the problem, is 3 what we're talking about, whether the notes at five four 4 nine (549) are authored by the same person as the note at 5 five (5) -- nine four three (943); is that the question? 6 Q: Yes. That's one. But Mr. Millar's 7 assisted us on that. I'm less concerned with that now 8 because I think Mr. Millar and I are on the same page if 9 you will. 10 The second question is, it appears that 11 those notes relate to the same meeting, that's recorded 12 at five four nine (549) and at nine four three (943). In 13 other words, it looks like it's the same meeting. It's 14 quoting the same ideas, many of the same actors. 15 I just want to make sure it's the same 16 meeting, because you've said that you don't know what 17 these notes relate to and now I -- it's my obligation to 18 make sure that I give you an opportunity to look at that. 19 And if I could help you in that regard, could you first 20 focus your attention on the people that are quoted at the 21 meeting? 22 I simply want your evidence on whether it 23 looks like, from this single page, it looks like it 24 refers to the same meeting, all right? 25 If you have regard to -- first of all,
531 this is a meeting in which there's advice being received. 2 Do you see -- it says, half way down the page, where Mr. 3 Millar already went over with you that this looked like 4 it was Mr. McCabe, JTSM? See halfway down the page? 5 A: Yes. 6 Q: "Probably no case for ex parte." 7 A: Yes. 8 Q: Then: 9 "Have to serve. 10 LT: Could I say that the test equals 11 public safety? Since, is any action 12 worth getting anyone hurt over?" 13 Then: 14 "[G-U-T] GUT: Nothing at stake worth 15 getting someone hurt over." 16 Does this sound to you like the same 17 meeting that you had with your staff? 18 A: Yes. 19 Q: All right. 20 "LT: Maybe in short term there's no 21 reason for immediate action. In 22 intermediate..." 23 Then it stops. And at the bottom: 24 "Call Ron Fox and tell him there's 25 nothing worth getting anyone hurt over.
541 We will support OPP. If they need 2 injunction we'll get it. We don't 3 think there's a need for immediate 4 action. He will talk to Ron and Elaine 5 Todres." 6 You'd agree with me, it sounds like it's - 7 - or it appears to be the same meeting? 8 A: Yes. 9 Q: And again the idea is that your 10 transmitting to the OPP through Fox; It's not worth 11 anybody getting hurt over, we'll support you, we'll for 12 an injunction if that's what you want. 13 A: Yes. 14 Q: And your pipeline to the OPP is Fox? 15 A: Yes. 16 Q: And then in addition, you planned to 17 personally speak to Fox? 18 A: Yes. 19 Q: All right. You'd agree with me that 20 these notes confirm, and the documents confirm, that as 21 of that meeting with your staff on the morning of 22 September 6th, obviously prior to 9:30 when you briefed 23 the Attorney General, as of that moment certainly on a 24 review of these notes, that the distinction between ex 25 parte and interim injunction was a live distinction being
551 discussed between you and your staff? 2 A: Yes, but I would also add that it was 3 not something to which I attached any particular 4 importance for the reasons I've given a few moments ago. 5 Q: Fair enough. But -- 6 A: And I'm not quite sure how it's 7 assumed the importance it has in these proceedings. 8 Q: Well, to be fair, sir, you're, with 9 great respect, musings about what's important in these 10 proceedings to be fair, sir, may not be necessarily an 11 answer to my question. 12 COMMISSIONER SIDNEY LINDEN: Just -- 13 THE WITNESS: Though it always seems to 14 depend on what the answer wants to be. But, in any case 15 I'm not sure I understand what the importance of the 16 issue is. 17 MR. JULIAN FALCONER: Well, again, I'm 18 just -- 19 COMMISSIONER SIDNEY LINDEN: That's fine. 20 Just carry on, ask the question. 21 MR. JULIAN FALCONER: Thank you. 22 23 CONTINUED BY MR. JULIAN FALCONER: 24 Q: What I'm putting to you is a 25 question. And the question was: Looking at these notes,
561 it's apparent that there was a discussion on the 2 distinction between ex parte and interim, yes? 3 A: Yes. The briefing note recommended 4 that we could do either. Tim McCabe said that he didn't 5 think there was a case for ex parte. 6 Q: And -- and you described yourself as 7 the senior civil litigator in the room, correct? 8 A: Yes. 9 Q: That distinction was a distinction 10 you well understood; the distinction between an ex parte 11 and an interim injunction, yes? 12 A: For sure. 13 Q: Thank you. Now, that same document 14 which is P-943 has a typed set of pages. I don't believe 15 Mr. Millar asked you any questions about the typed pages, 16 because I don't want to retread. I looked, I couldn't 17 find it in the transcript. 18 But, I don't mean that to be critical, I'm 19 just trying to make sure I'm not retreading. 20 MR. DERRY MILLAR: Yeah, I did ask about 21 the document. It -- the evidence was he had not seen the 22 typed pages, either exhibit -- of the Exhibit P-943 or 23 one of the other versions; he had not seen them. 24 MR. JULIAN FALCONER: All right. 25 THE WITNESS: Just at the risk of
571 confusing things, in one of the things I note here, for 2 what it's worth, if I understand the issue about who's 3 handwriting this is, is that we have Yan Lazor making 4 notes on one document. 5 It seems to be it would be unusual for him 6 to be making notes on a second document. And I note that 7 there's some differences between the way it's -- the way 8 people are described. 9 So, for example, on one document McCabe is 10 described as "Tim" and on the next, he's described as 11 "JTSM". 12 MR. JULIAN FALCONER: Quite right. 13 THE WITNESS: So, I -- I mean, I'm not 14 an analyst, but if anything turns on this, I just thought 15 I'd mention that. 16 MR. JULIAN FALCONER: It's helpful. 17 MR. DERRY MILLAR: No, I think that Mr. 18 Taman is -- is absolutely correct. That's one of the 19 problems we're trying to sort out because even though 20 it's believed they might be Mr. Lazor's, it's unusual to 21 have two (2) sets of notes for what we think would be the 22 same meeting. And as has been pointed out that in one it 23 says "Tim McCabe" and the other uses initials, so we're 24 still -- 25 COMMISSIONER SIDNEY LINDEN: It could
581 have been notes that are made simultaneously, or 2 contemporaneously -- 3 MR. DERRY MILLAR: Well, we're trying 4 to -- 5 COMMISSIONER SIDNEY LINDEN: -- 6 contemporaneously. 7 MR. DERRY MILLAR: Yeah, we're trying -- 8 we're trying to sort that out, Commissioner. 9 THE WITNESS: It seems likely they're 10 notes of the same meeting. 11 COMMISSIONER SIDNEY LINDEN: Yes, well 12 you wouldn't -- 13 MR. DERRY MILLAR: Yeah, we think it's -- 14 COMMISSIONER SIDNEY LINDEN: -- keeping 15 two (2) sets of notes. 16 MR. DERRY MILLAR: Yeah, we think it's 17 the same meeting, but it's unusual for somebody to have 18 two (2) sets of notes. 19 MR. JULIAN FALCONER: It's a criminal 20 lawyer's dream, Mr. Commissioner, to hear those words; 21 two (2) sets of notes. It usually means something else. 22 THE WITNESS: Second only to two (2) sets 23 of books. 24 MR. JULIAN FALCONER: That's right, 25 that's right.
591 2 CONTINUED BY MR. JULIAN FALCONER: 3 Q: If you look at the typed version, 4 it's apparent, and can you assist me on this, that the 5 typed version that is P-943, the first three (3) pages, 6 it's apparent it's a form of memorandum of law on the 7 options to be exercised, be it criminal, quasi-criminal 8 or civil, correct? 9 A: Yes. 10 Q: And is it -- can you just assist me 11 on this. Is it your evidence that you don't recall if 12 you saw it, or is it your evidence that you can 13 confidently say you didn't see it? 14 A: My evidence is that I don't recall 15 that I saw it. 16 Q: All right. And in an effort to 17 refresh your memory, looking under page 2, under the 18 subtitle, Civil Proceedings, it's apparent that the 19 writer is taking the reader through a detailed analysis 20 of the ways to commence the civil proceedings, the routes 21 to get a Judge and the distinctions between ex parte and 22 interim. 23 Is that fair -- 24 A: Yes. 25 Q: -- without me reading every word to
601 you? 2 A: Yes. 3 Q: And again, that would have been -- as 4 a senior civil litigator at the time, all of those things 5 maybe not by rule number, but all of those options and 6 all of those things would have been familiar to you? 7 A: Yes, but that doesn't mean I would -- 8 I agreed with them. 9 Q: Fair enough. Fair enough. 10 A: And -- and I didn't. 11 12 (BRIEF PAUSE) 13 14 Q: Gratefully, we have now moved beyond 15 the staff meeting. And I apologize, Mr. Commissioner -- 16 COMMISSIONER SIDNEY LINDEN: Well, you've 17 been going almost an hour I -- 18 MR. JULIAN FALCONER: I understand and 19 I'm watching the clock. Gratefully, I have now -- 20 COMMISSIONER SIDNEY LINDEN: I know it's 21 not important for the Witness to know exactly where 22 you're going, but at some point I'd like to know where 23 you're going. 24 MR. JULIAN FALCONER: Fair enough. Fair 25 enough. I think it will become apparent.
611 COMMISSIONER SIDNEY LINDEN: That's fine. 2 I'm giving you as much leeway as I think you need at the 3 moment. 4 MR. JULIAN FALCONER: Thank you. 5 6 CONTINUED BY MR. JULIAN FALCONER: 7 Q: At the 9:30 stage you now take -- with 8 Ms. Jai in tow or in the company of Ms. Jai you go and 9 see the Minister at Queen's Park, correct? 10 A: Yes. 11 Q: And you'll -- you can -- you can take 12 my word for this or I could take you to the September 6th 13 IMC minutes which appear at Tab 3 -- well, it's actually 14 one (1) of the additional documents you were given, P- 15 509. 16 But, the -- the IMC meeting actually 17 starts on September 6th at 9:30 and Julie Jai was the 18 Chair. So it's fair that the -- that the meeting with 19 the Minister to brief Minister Harnick with you and Julie 20 Jai probably was just before the 9:30 meeting? Is that 21 fair? 22 A: Yes, or -- or it could have been that 23 we were over at the Legislature and came back and caught 24 up with the 9:30 meeting. It -- it wouldn't be unlike -- 25 it wouldn't be likely that the Minister would have been
621 at the Legislature very early on the day of Cabinet so... 2 Q: So, Julie Jai might have been late 3 for the IMC meeting September 6th? 4 A: She could have come back, yes. 5 Q: Fair enough. And in any event it's 6 at that meeting that the go-slow is reversed? 7 A: Yes. 8 Q: And so -- 9 A: It's not quite fair to say it was 10 reversed. What -- what's fair to say is that in -- in a 11 process that was taking place the civil servants were 12 coalesc -- were coalescing around a view. Some of the 13 political -- the political people were clearly not 14 sharing the view and on that meeting a decision was 15 taken. 16 Q: All right. And when you say -- 17 A: Or communicated. 18 Q: And when you said some of the 19 political people that -- that were not of that view that 20 included Deb Hutton? 21 A: Yes. 22 Q: To you knowledge? 23 A: Yes. 24 Q: And she, in fact, was probably the 25 most senior political staffer that was quite outspoken on
631 that issue, correct? 2 A: I mean I'm not sure what the 3 seniority of the political staff was, but there were -- 4 generally the political staffers outside of the Solicitor 5 General and the Attorney General seemed to be taking 6 quite a strong view that it was an urgent matter, it 7 should be pushed forward quickly. 8 Q: Thank you. And in terms of -- 9 COMMISSIONER SIDNEY LINDEN: Do you have 10 an objection? 11 MS. ANNA PERSCHY: My concern again is 12 that we're now talking about a meeting that this Witness 13 didn't attend. 14 COMMISSIONER SIDNEY LINDEN: Yes. 15 MS. ANNA PERSCHY: And I'm not sure when 16 he was advised and by whom. I -- I asked these questions 17 when I was cross-examining him and -- and at this point, 18 the way this evidence is being introduced, it makes it 19 sound as if he was actually at the meeting at the time 20 and especially since -- 21 COMMISSIONER SIDNEY LINDEN: I don't have 22 the -- 23 MS. ANNA PERSCHY: Mr. Falconer's now 24 introducing this as -- as a form of chronology. 25 COMMISSIONER SIDNEY LINDEN: No, I don't
641 have the -- 2 MS. ANNA PERSCHY: And -- and I'm just 3 concerned that -- that it be clear. 4 COMMISSIONER SIDNEY LINDEN: I think it's 5 clear and I do not have the impression that he was at the 6 meeting. 7 MR. JULIAN FALCONER: It's what knowledge 8 came to his attention. 9 COMMISSIONER SIDNEY LINDEN: All right. 10 Carry on. 11 MR. JULIAN FALCONER: Thank you. 12 13 CONTINUED BY MR. JULIAN FALCONER: 14 Q: Now, you said it's not about 15 necessarily, the terminology I used was, 'a reversal'. 16 It's something else and you described what you had to 17 say. 18 You'd agree with me that it amounted to an 19 override of what the Attorney General, his Deputy, the 20 Solicitor General, and his Deputy, thought was the right 21 approach first thing that morning? 22 A: I think when you say it that way you 23 mistake the way the process really works in government. 24 The situation had arisen in substance twenty-four (24) 25 hours before. People in different corners of government
651 were considering the issue from the point of view of the 2 pers -- of their perspective. 3 In the corner that I was in there was a 4 certain perspective, but we were well aware that other 5 people were thinking other things. 6 Q: Okay. Fair enough. I appreciate the 7 context, but at the end of the day, and certainly 8 yesterday, you testified that when Charles Harnick came 9 back to you and told you what finally the decision was, 10 it was apparent to you at -- based on your experience 11 that day it wasn't a -- it wasn't a view shared by 12 Charles Harnick or, indeed, Robert Runciman? 13 A: Yes, but I don't think that 14 contradicts what I just said. 15 Q: I didn't say it did. I'm just -- you 16 agree with that? 17 A: What happened was that there were 18 discussions taking place among a group of legal people 19 who had a certain perspective. There were other 20 political people taking a different perspective and on 21 the 6th. The Government took a decision to resolve the 22 matter in one direction and that's the way government 23 typically works. 24 COMMISSIONER SIDNEY LINDEN: Unless I'm 25 mistaken, Mr. Falconer, I've heard this before.
661 MR. JULIAN FALCONER: Fair enough. 2 COMMISSIONER SIDNEY LINDEN: So, I'm not 3 sure where you're going. 4 MR. JULIAN FALCONER: Fair enough. 5 COMMISSIONER SIDNEY LINDEN: There's 6 nothing that I haven't heard before, so far. 7 8 CONTINUED BY MR. JULIAN FALCONER: 9 Q: When you wrote your note that said "P 10 instructs as follows," you didn't say government, you 11 said the Premier, correct? 12 A: Yes. 13 Q: And the idea was not the Government 14 was doing 'X' that the Premier had in essence overridden 15 the position that the Solicitor General, the Attorney 16 General and their Deputies had agreed was the right 17 direction; that essentially is what happened? 18 A: No, I don't think that I can say that 19 is what happened. 20 In the first place, the Premier, for 21 practical purposes in this kind of a setting is the 22 Government, so to somehow suggests there's a bifurcation 23 there is misleading. 24 And secondly, I don't know what advice was 25 taking place in private conversations with the Premier.
671 I only know what was being said when I was there. 2 Q: Thank you. However we describe it, 3 it's -- we're agreed it was a changing of gear? 4 A: No. I don't agree that it was a 5 changing of gear. 6 Q: It was the same as the go-slow 7 approach in the morning? 8 A: Well, it was not the same car. It 9 can't be a changing of gears because it wasn't the same 10 car if I can put it to you that way. 11 Q: Fair enough. A different vehicle was 12 now being used. 13 A: Well, now the metaphor's going to 14 start to limp. I mean, I think I've said what I have to 15 say about it and it's clear. 16 COMMISSIONER SIDNEY LINDEN: I think you 17 have and I think we've heard it often enough. 18 MR. JULIAN FALCONER: Fine. Fine. 19 20 CONTINUED BY MR. JULIAN FALCONER: 21 Q: The next step in the process is that 22 Ms. Jai contin -- goes and chairs the IMC meeting. And 23 at the IMC meeting -- again, I want to canvas your 24 knowledge. In essence, you'll find that set out if you 25 could flip back please to what is Tab -- it's the Jai
681 notes; what is of your documents Tab 19. If you could 2 flip back to now to the September 6th IMC notes. 3 Again, I simply, very quickly, want to 4 canvas your knowledge -- 5 A: This is 536? 6 Q: That's Exhibit 549. 7 MR. DERRY MILLAR: P-536. 8 MR. JULIAN FALCONER: -- no 536, that's 9 right. 536. It's miswritten on my documents. I'm 10 sorry. 11 12 CONTINUED BY MR. JULIAN FALCONER. 13 Q: Now, if you could -- you know at this 14 stage based on your evidence and your knowle -- your 15 stated knowledge, you know that Julie Jai has the 16 knowledge that there is a direction in place from the 17 Premier -- 18 A: Yes. 19 Q: -- about removal within twenty-four 20 (24) hours -- 21 A: Yes. 22 Q: -- and get an injunction? 23 A: Yes. 24 Q: Right. And notwithstanding that -- 25 and you -- you expected -- anticipated -- you testified
691 yesterday that that was passed onto Mr. McCabe? 2 A: Yes. 3 Q: All right. Now, Mr. McCabe and Julie 4 Jai are at that September 6th meeting for the full length 5 of the meeting, 9:30 to 11:45 as shown in the minutes; 6 two (2) hours and fifteen (15) minutes. All right? 7 A: If you say so. 8 Q: If you look at page 3 of the notes -- 9 COMMISSIONER SIDNEY LINDEN: This is the 10 September 6th meeting? 11 MR. JULIAN FALCONER: Yes. 12 13 CONTINUED BY MR. JULIAN FALCONER: 14 Q: If you look at page 3 of the 15 September 6th, Julie Jai notes -- you see page 3? 16 A: Yes, I do. 17 Q: And it's -- there's a reference to 18 Tim three (3) lines down? 19 A: Yes. 20 Q: "Tim: Ministers can say 21 instructions have been given to AG to 22 seek an injunction ASAP. Not a case 23 for ex parte injunction. Should give 24 notice but we could go into court to 25 seek an abridgement of the three (3)
701 days' notice. We are checking with 2 Sarnia Court to find out when a judge 3 is available. 4 The other variable, getting our 5 materials ready. Need to estimate. 6 This is Provincial land. Title 7 history. Incidents in Park et cetera. 8 Best case Friday in court. 9 Deb: Premier feels the longer they 10 occupy it, the more support they'll 11 get. He wants them out in a day or 12 two. 13 Tim: That suggests we proceed under 14 the Code." 15 Now, did that information get, to your 16 knowledge, that in essence what was now being 17 contemplated by the IMC group? And you'll see at page 4: 18 "Agreed. We will seek injunction ASAP 19 Friday." 20 Do you see page 4? What was being 21 contemplated now, did it come to your attention, that 22 what was being contemplated was now an injunction 23 returnable with notice in court on Friday? 24 A: I think it did come to my attention 25 that that was what was in play.
711 Q: Yes. All right. And you'll agree 2 with me that that was in circumstances where whatever we 3 call it, the new vehicle or the direction received from 4 the Premier, was in existence to the knowledge of both 5 Jai and McCabe, yes? 6 A: Yes. 7 Q: Thank you. 8 COMMISSIONER SIDNEY LINDEN: Mr. 9 Millar...? 10 11 (BRIEF PAUSE) 12 13 CONTINUED BY MR. JULIAN FALCONER: 14 Q: Mr. Millar quite rightly points out 15 that it's helpful -- could you tell us when you think you 16 got that knowledge about they were going to go to Court 17 for Friday? 18 A: I think at sometime during the day, 19 there's some -- someone told me that their plan was to be 20 in Court by Friday. 21 Q: And I take it you didn't have a real 22 problem with that? 23 A: I had a real problem with that, 24 because we'd been told to be in Court in twenty-four (24) 25 hours.
721 Q: Right. Now, we're going to get to 2 that in a minute, but you'll agree with me the immediate 3 response according to the Jai notes of Deb Hutton to the, 4 "best case Friday in Court", is: 5 "Wants them out [underlined 'out'] in a 6 day or two (2)." 7 Do you see that -- 8 A: Yes. 9 Q: -- in the note? All right. 10 MR. DERRY MILLAR: Well -- 11 COMMISSIONER SIDNEY LINDEN: Well -- 12 MR. DERRY MILLAR: That's -- 13 MR. JULIAN FALCONER: I said that you'll 14 agree with me the notes reflect that. That's -- 15 MR. DERRY MILLAR: The notes say that. 16 17 CONTINUED BY MR. JULIAN FALCONER: 18 Q: That's my -- that was my question. 19 You'll agree with me -- and it was your knowledge, wasn't 20 it, in and around that time that Ms. Hutton -- it was 21 your knowledge in and around that time following the IMC 22 meeting that Ms. Hutton was becoming more frustrated with 23 the process being contemplated? 24 A: Didn't have anything to do with Ms. 25 Hutton at that point as far as I was concerned, because I
731 had an instruction from my Minister than came directly 2 from the Premier. 3 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 4 Perschy? 5 MS. ANNA PERSCHY: I just wanted to make 6 a small point, and no words are underlined in the notes. 7 COMMISSIONER SIDNEY LINDEN: I'm sorry, 8 no...? 9 MS. ANNA PERSCHY: But -- no -- no words 10 are underlined in the notes. I'm not sure what Mr. 11 Falconer is referring to. 12 MR. JULIAN FALCONER: Well, I retract 13 that. If it's appeared in my copy by -- by an addition, I 14 apologize. 15 COMMISSIONER SIDNEY LINDEN: That's fine. 16 Well... 17 18 CONTINUED BY MR. JULIAN FALCONER: 19 Q: You'll notice that the response of 20 Mr. McCabe was that anything faster, you might as well 21 abandon injunction route and pursue the Criminal Code; is 22 that fair? 23 MR. DERRY MILLAR: I don't -- 24 THE WITNESS: Well, the note says what it 25 says.
741 MR. DERRY MILLAR: Yeah, the note says 2 what it says. 3 COMMISSIONER SIDNEY LINDEN: He wasn't -- 4 MR. DERRY MILLAR: He wasn't there -- 5 COMMISSIONER SIDNEY LINDEN: He wasn't at 6 the meeting. 7 MR. DERRY MILLAR: He can't -- 8 COMMISSIONER SIDNEY LINDEN: Now, you're 9 getting into an area that he just -- 10 MR. JULIAN FALCONER: All right. 11 COMMISSIONER SIDNEY LINDEN: -- simply 12 can't be helpful on. 13 MR. PETER DOWNARD: I would simply ask 14 that My -- if My Friend is going to state the evidence, 15 describe what the note says, I would be obliged if he 16 would state -- 17 COMMISSIONER SIDNEY LINDEN: Yes. 18 MR. PETER DOWNARD: -- precisely what the 19 note says -- 20 COMMISSIONER SIDNEY LINDEN: Yes, I -- 21 MR. PETER DOWNARD: -- and not gild the 22 lily. 23 COMMISSIONER SIDNEY LINDEN: I'm not sure 24 how helpful this is being at the moment. So, I don't 25 know where you're going now, Mr --
751 2 CONTINUED BY MR. JULIAN FALCONER: 3 Q: If you could direct your attention, 4 please, Mr. Taman, to Tab -- to an additional document 5 which is P-509 which is the minute, the formal minute of 6 the IMC meeting of September 6th, 1995. It's P-509, 7 document number 1012252. 8 MR. DERRY MILLAR: Mr. Taman, it's one of 9 the extra documents. 10 THE WITNESS: Okay. 11 MR. DERRY MILLAR: It's got 509. And the 12 September 6th minutes are the back. 13 THE WITNESS: I have 509. 14 MR. DERRY MILLAR: And the September 6th 15 meeting minutes are the last -- 16 THE WITNESS: Okay. 17 MR. DERRY MILLAR: -- pages of that. 18 19 (BRIEF PAUSE) 20 21 CONTINUED BY MR. JULIAN FALCONER: 22 Q: You, following the meeting with 23 Charles Harnick, in and around 9:30 a.m., went off to 24 Chair a senior management committee meeting, correct? 25 A: Yes.
761 Q: And then it's fair to say that that 2 would have taken the -- most of the remaining of your 3 morning? 4 A: Yes. 5 Q: I apologize for the English. Most of 6 the remainder of your morning? 7 A: Yes. 8 Q: And that virtually immediately after 9 the senior management committee meeting, you were called 10 into the dining room to meet with the Premier and some 11 Cabinet Ministers? 12 A: Yes, sir. 13 Q: The minute that I've directed your 14 attention at -- if you could direct your attention to 15 page 3. 16 A: Yes. 17 Q: Under, Next Steps? 18 A: Yes. 19 Q: It was agreed that an injunction 20 should 21 be sought ASAP. And you have the note about the 22 reference to going to Court on Friday? 23 A: Yes. 24 Q: And you'll recall Mr. McCabe's 25 reference to the amount of time it would take to prepare
771 materials. 2 Do you recall that in the notes? 3 A: Yes, I think I know what you mean, 4 yes. 5 Q: All right. And how much time it 6 would take to get a Judge, yes? 7 A: Yes. 8 Q: Now, here it says, square bracket: 9 "[note], following the meeting Cabinet 10 directed MAG lawyers..." 11 That's Ministry Attorney General, correct? 12 A: Yes. 13 Q: "Cabinet directed MAG lawyers to 14 apply immediately for an ex parte 15 injunction. Tim McCabe, Elizabeth 16 Christie and Leith Hunter are preparing 17 the application and compiling the 18 supporting documentation." 19 A: Yes. 20 Q: The minute of September 6th of the 21 IMC meeting, would that be a document, first of all, that 22 would have come to your attention? 23 A: Not necessarily, no. 24 Q: All right. You'll note it's copied 25 to Yan Lazor?
781 A: Yes. 2 Q: Would Yan Lazor -- would part of his 3 duties be comprised of apprising you of the relevant 4 information that occurs in an IMC meeting of this nature? 5 A: Yes. But he -- I mean, yes. I'm -- 6 I'm not quibbling with you, I -- I just don't know if I 7 saw this and -- 8 COMMISSIONER SIDNEY LINDEN: Okay. 9 THE WITNESS: -- Yan might or might not 10 have shown it to me or he might just have told me about 11 it. 12 13 CONTINUED BY MR. JULIAN FALCONER: 14 Q: The evidence we've heard from Ms. 15 Christie is that following the IMC meeting in which the 16 lawyers that were there for two and a half (2-1/2) hours, 17 not thinking they were going to court that afternoon or 18 the next day, they proceeded to 720 Bay, following the 19 IMC meeting after 11:45. 20 A: Yes. 21 Q: They were in the company of an 22 officer named Patrick, Officer Patrick. And Patrick 23 testifies that he was, in essence, called to Queen's Park 24 while he was in the company of Christie, leaving IMC, all 25 right, and that he ended up in the dining room no more
791 than fifteen (15) -- twenty (20) minutes after he leaves 2 Christie's company. All right? 3 A: Yes. 4 Q: And you were in that dining room when 5 he got there? 6 A: Yes. 7 Q: And Christie, according to her 8 evidence, had left for 720 Bay Street. All right? 9 A: Okay. 10 Q: Would you agree with me that it's 11 consistent with the facts, as you recall them, that you 12 would have spoke to Elizabeth Christie after the dining 13 room meeting? 14 A: I -- I just don't know the answer to 15 that. I mean I -- I -- it might have been after, it 16 might have been before. 17 Q: Elizabeth Christie's evidence is that 18 you spoke to her in the afternoon. 19 Do -- do you dispute that? 20 A: No. 21 Q: All right. Secondly, is it fair to 22 say that you don't have a precise recollection of what 23 you said to Ms. Christie? 24 A: Yes, that's true. 25 Q: I'm going to read to you, and it's
801 very brief, the evidence Ms. Christie gave to Mr. Worme 2 in-chief on September 26th, 2005. This is Elizabeth 3 Christie. 4 MR. DERRY MILLAR: What page? 5 MR. JULIAN FALCONER: I'm at page 146 and 6 it's brief and I'll -- I'll read it to: 7 "What happened after this meeting -- 8 And she's referring to the IMC meeting. 9 "What happened after this meeting in 10 addition to preparing -- starting to 11 prepare the materials, in my 12 recollection is that I -- I at one (1) 13 point was -- met with Mr. Taman who was 14 the Deputy Attorney General. 15 And the -- the upshot of that 16 discussion, and I actually recall it as 17 being a discussion in a hallway with 18 him, in which he indicated that we were 19 -- he was -- my interpretation was that 20 he was providing me with our 21 instructions which were to proceed with 22 an injunction just as quickly as we 23 possibly can. And, in fact, he had 24 suggested to me that there was some -- 25 either a role or a procedural route
811 through which it might even be an 2 option to us to apply for an injunction 3 that afternoon in Toronto, at a court 4 room in Toronto, given that we wouldn't 5 be able to get to Sarnia that quickly. 6 But -- so that 's my recollection of 7 the instructions." 8 Stopping there for a moment, you said you 9 don't recall speaking to Ms. Christie. 10 Does this in any way refresh your memory? 11 A: No, but I mean it sounds like exactly 12 the sort of conversation that could take place, so I have 13 no difficulty with it. 14 Q: All right. 15 "Then that's my recollection -- 16 I'm continuing now at page 147: 17 "Then that's my recollection of how 18 they came to me. So I don't know where 19 Mr. Taman got that information or the 20 advice or instructions, but that's my 21 recollection of how Tim and I got our 22 instructions was from Mr. Taman: Get 23 the injunction just as quickly as 24 possibly can. Maybe you can even get 25 it this afternoon. Why don't you call
821 the Trial Coordinator here in Toronto 2 and start and see what you can do?" 3 Now, Ms. Christie further testified in 4 cross-examination by Mr. Klippenstein, and I'm putting 5 this to you because I -- I want to be fair and I'm going 6 to be quick, but I am getting to a point here, Mr. 7 Commissioner. 8 COMMISSIONER SIDNEY LINDEN: I hope so. 9 10 CONTINUED BY MR. JULIAN FALCONER: 11 Q: I'm at page 65 of the transcript of 12 September 27, 2005, Mr. Klippenstein's questions: 13 "Right. And you mentioned that you'd 14 actually had a discussion with then 15 Deputy Minister Larry Taman about that. 16 Is that right? 17 A: Yes." 18 "So that must have happened after the 19 IMC meeting on the 6th. 20 Is that right? 21 A: That's my best recollection, yes." 22 Do -- do you dispute that evidence by Ms. 23 Christie? 24 A: No. 25 Q: "Q: And do you [and I'm continuing
831 on page 66]. And do you -- I believe 2 you said that the IMC meeting finished 3 somewhere around noon on the 6th. 4 Is that right? 5 A: I think -- I think it did. I think 6 it was a bit before noon. 7 Okay. 8 11:30 or 12:00, I think the minutes 9 indicate. 10 Okay. Not a whole lot hangs on exact 11 minutes. I was interested in your 12 discussion about meeting with Larry 13 Taman and you mentioned that you 14 thought it was in a hallway? 15 Yes, and my recollection is that, sort 16 of, the discussion with him when he was 17 saying to me describing, sort of, Can't 18 you get it this afternoon? 19 I think there is some guidelines or 20 accommodation within the rules. I 21 don't think it's actually a rule but 22 process notes in the rules that permit 23 for that sort of thing. That part of 24 my discussion. My recollection is, 25 just because it was an unusual
841 discussion, I have sort of a funny 2 recollection it was actually took place 3 in the hallway. 4 I believe it happened following or he 5 may have been on his way to another 6 meeting or we may have been coming out 7 of a meeting. I'm honestly not sure 8 precisely why it was in a hallway." 9 At the bottom of page 68, you'll see a 10 reference to the conversation hap -- 11 MR. DERRY MILLAR: He doesn't have it. 12 MR. JULIAN FALCONER: I'm sorry. 13 14 CONTINUED BY MR. JULIAN FALCONER: 15 Q: At the bottom of page 68 she refers 16 to it happening at 720 Bay Street. 17 Do -- do you have any problem with that's 18 where it happened? 19 A: No. 20 Q: All right. At the bottom -- at page 21 70, line 15, question by Mr. Klippenstein, page 70: 22 "And you clearly understood from him 23 that he wished you to try and schedule 24 a court hearing for that afternoon, the 25 6th, in Toronto?
851 A: He wanted us to get a court 2 hearing just as soon as we absolutely 3 possibly could. And then, as I said, 4 sort of follow that up with -- and I -- 5 can't you, you know, look into getting 6 this afternoon? 7 I think there's this avenue through 8 which you might be able to do that." 9 And then -- and what I -- what I ask you 10 is this, Mr. Taman. 11 You'd agree with me that, in essence, when 12 you spoke to Ms. Christie, it was following the dining 13 room and following the exchanges that occurred in that 14 dining room meeting, in terms of sequential events? 15 A: Well, as I've said, I don't -- I 16 don't actually recall. All I know is that she said that 17 it was in the afternoon. I don't know exactly what time 18 the dining room meeting was either. 19 So if anything turns on it, I'd have to 20 say I'm not really sure. 21 Q: Well let -- let me assist you with 22 Mr. Patrick's evidence. He says that twenty (20) minutes 23 following -- 24 A: But -- but can I say that -- 25 Q: Can I finish my question please?
861 A: Yeah. 2 Q: Thank you. 3 MR. DERRY MILLAR: Well, let the -- 4 MR. JULIAN FALCONER: No. I was asking a 5 question and I'd like to finish my question for the 6 record and -- 7 COMMISSIONER SIDNEY LINDEN: Finish the 8 question. 9 MR. JULIAN FALCONER: -- and then the 10 witness -- 11 MR. DERRY MILLAR: I think the witness 12 should be entitled -- 13 MR. JULIAN FALCONER: No. A witness is 14 not entitled to cut off -- 15 MR. DERRY MILLAR: But this is not a 16 trial. This is -- this -- 17 COMMISSIONER SIDNEY LINDEN: No, it's not 18 a trial. 19 MR. DERRY MILLAR: This is an Inquiry and 20 -- and the witness -- My Friend asked the witness a 21 question. 22 COMMISSIONER SIDNEY LINDEN: Yes. 23 MR. DERRY MILLAR: The witness was about 24 to -- 25 MR. JULIAN FALCONER: We're going to lose
871 more time discussing this. If he wants to finish, fine 2 go ahead. 3 COMMISSIONER SIDNEY LINDEN: If you have 4 -- if you have something to add -- did you have something 5 to add to the answer to the last question? 6 THE WITNESS: I forget. 7 COMMISSIONER SIDNEY LINDEN: Okay. 8 THE WITNESS: Go ahead. 9 MR. JULIAN FALCONER: Thank you. 10 COMMISSIONER SIDNEY LINDEN: If you had 11 something to add to your answer to last question, you 12 should do it before you're asked another question. 13 THE WITNESS: What I intended to add was 14 that, from my point of view, the situation hadn't changed 15 between before the meeting and after the meeting. I had 16 a clear instruction and I had a clear instruction before 17 and it was after the same. 18 19 CONTINUED BY MR. JULIAN FALCONER: 20 Q: So you had a clear instruction from 21 the Premier to get into court in the afternoon in Toronto 22 on an ex parte basis as of 9:30 that morning? 23 COMMISSIONER SIDNEY LINDEN: I didn't 24 hear the words ex parte. 25 THE WITNESS: I didn't say that.
881 MR. JULIAN FALCONER: May I stop for a 2 minute, Mr. Commissioner. I'm making a suggestion to the 3 witness and -- and I think I'm allowed to make the 4 suggestion. I said, and so you instructions -- 5 COMMISSIONER SIDNEY LINDEN: No. But 6 you're putting it on the basis that that's what was 7 evidence, or that came in that format and it didn't, in 8 my recollection. 9 10 CONTINUED BY MR. JULIAN FALCONER: 11 Q: May I infer from your evidence -- may 12 I infer from your evidence that you felt you had an 13 instruction to be in front of a judge that afternoon? 14 COMMISSIONER SIDNEY LINDEN: Now that's 15 fair. 16 THE WITNESS: The -- I don't think the 17 Premier or even the Attorney General necessarily were 18 clear on what the mechanics of it all would be. 19 What I had was an instruction in two (2) 20 parts. One (1), that the Premier wanted the removal of 21 the First Nation from the Park within twenty-four (24) 22 hours. And secondly, that we were to get an injunction 23 to permit that. 24 25 CONTINUED BY MR. JULIAN FALCONER:
891 Q: And all along you always had in your 2 mind that the Attorney General is not to be simply an 3 instrument if matters start to transgress beyond what is 4 legally allowed, correct? 5 A: It goes without saying, yes. 6 Q: At Tab 24 of Commission documents, 7 you should see the Julie Jai note. It starts -- it's a 8 September 6th, 1995 half page note. 9 Do you have that? 10 A: Yes. 11 Q: Now this is a note handwritten -- 12 MR. DERRY MILLAR: P-515. 13 MR. JULIAN FALCONER: 515? I apologize. 14 Exhibit P -- 15 COMMISSIONER SIDNEY LINDEN: P-515. 16 MR. DERRY MILLAR: 3001088. 17 MR. JULIAN FALCONER: Thank you, Mr. 18 Millar. 19 20 CONTINUED BY MR. JULIAN FALCONER: 21 Q: The note says: 22 "Ron Fox: Tim was asked for [and I 23 interpret that to be] someone for OPP 24 to give viva voce evidence before judge 25 today in Sarnia.
901 Now OPP commission is involved. 2 Decisions will be made at his level. 3 He was called into Cabinet. 4 Larry Taman was also there and was 5 eloquent. He cautioned about rushing 6 in with ex parte injunction and can't 7 interfere with police discretion." 8 I read it as "discretion", it says "discr" 9 for the record. 10 "But Premier and Hodgson came out 11 strong. Larry, Elaine Todres were at 12 Cabinet. Ron was there for part of 13 discussion. Decision to ex parte 14 appeared to have already been made." 15 "Decision to go ex parte appeared to have 16 already been made." Now, first of all, we understand 17 that this is a record of a telephone call and a 18 discussion that Julie Jai had with Ron Fox after the 19 dining room meeting. 20 Does that sound consistent with what you 21 see in this note? 22 A: I mean, I don't know what the note 23 is. 24 Q: Well the note talks about Ron Fox is 25 being called into Cabinet, yes?
911 2 (BRIEF PAUSE) 3 4 A: I mean, I'm not sure how helpful I 5 can be. I don't know how Ron Fox got into Cabinet. 6 Q: Thank you. And the note also talks 7 about Larry Taman. 8 A: The "Larry Taman was eloquent" part, 9 I -- 10 COMMISSIONER SIDNEY LINDEN: She likes 11 that, you like that, right? 12 THE WITNESS: I remember that very 13 clearly, right. 14 COMMISSIONER SIDNEY LINDEN: This is a 15 note of Julie Jai. This is Julie Jai's note. 16 MR. JULIAN FALCONER: Yes, it is. 17 COMMISSIONER SIDNEY LINDEN: Right? 18 Okay. 19 20 CONTINUED BY MR. JULIAN FALCONER: 21 Q: This is Julie Jai's note of a 22 conversation she had with Ron Fox following the dining 23 room meeting, right? 24 And it says: 25 "He cautioned about rushing in with ex
921 parte injunction." 2 Right after that part you liked about 3 being eloquent? 4 A: Yes. 5 Q: Right. Is that -- is Ron Fox's 6 account to Julie Jai consistent with what you recall 7 happened at the meeting? 8 A: Yes. 9 Q: So you actually cautioned about 10 rushing in with an ex parte injunction? 11 A: Yes. 12 Q: All right. And can we agree on 13 something? Had you had a number of meetings before 14 September 6th, 1995, personally, with the Premier and the 15 Cabinet Ministers in the form of the Solicitor General 16 and the Attorney General and their staff all in that way, 17 before September 6th, 1995? 18 A: I'd never met with the Premier. 19 Q: All right. That's what I want to 20 know. So September 6th 1995 represented the first time-- 21 A: I never met with the Premier about 22 this, is what I mean to say. 23 Q: Oh, okay. Well, prior to September 24 6th, 1995 had you met with the Premier and the Attorney 25 General and the Solicitor General and their various
931 staff, in this fashion, about another issue? 2 A: I'd met with the Premier many times. 3 I -- I'd have to think -- 4 Q: Prior to September 6th, 1995, not 5 subsequent. 6 A: I'd met with the Premier many times 7 between the time the Government was formed and this date. 8 Q: All right. So many times? 9 A: Many times. 10 Q: And did the meetings generally take 11 this form where there would be present the Attorney 12 General and his deputy minister and their staff, the 13 Solicitor General their deputy minister and their staff? 14 Did the meetings take that kind of format? 15 A: They would take lots of different 16 formats. Sometimes it would be at Cabinet meetings, 17 sometimes it would be at subcommittees with Cabinet. 18 Occasionally it would be with the Minister or with an 19 aide. 20 Q: And in meeting with Mike Harris, 21 personally, on that date, what you did at that meeting 22 was to caution him about rushing in to seek an ex parte 23 injunction. 24 A: Yes. 25 Q: And according to the time sequence --
941 and according to your evidence, the Minister -- the 2 Premier made clear that while he expected you to exercise 3 professional judgment, the Government's view was that was 4 just what was to be done; that they were to be removed 5 within twenty-four (24) hours? 6 A: Right. 7 Q: And following that meeting, you met 8 with Elizabeth Christie in the hallway and you told her, 9 Get a Judge that afternoon. 10 A: Right. 11 Q: And interestingly enough, Julie Jai 12 was someone whom you shared these thoughts about how to 13 manage the incident over the course of September 5th 14 through September 11th, correct? 15 A: Yes. 16 Q: Yes? 17 A: Yeah. 18 Q: She, in her minutes of September 6th, 19 says the reference to ex parte comes after the IMC 20 meeting of September 6th. She makes a point of bolding 21 up a note. 22 Did you see that at page 3 of the minutes? 23 She says: 24 "Following our IMC meeting where we had 25 a lawyer going in with notice on a
951 Friday, following all of that, 2 something came from above saying ex 3 parte." 4 Do you see that in the note -- 5 A: Yes. 6 Q: -- page 3? And, interestingly 7 enough, Julie Jai refers to a telephone call where the 8 very issue, the ex parte issue, she puts, Ron Fox tells 9 her it appeared to have been decided -- the decision had 10 already been made when he got there. 11 Do you see that? 12 A: Yes. 13 Q: Does this sound to you like a person, 14 I'm talking about Julie Jai, who took from the meeting, 15 first thing in the morning with Harnick, at Queen's Park, 16 took from that meeting that you were to go ex parte? 17 Julie Jai Chairs a meeting where the 18 decision was to go to court on a Friday. Julie Jai makes 19 a note at the end of a minute to say ex parte got decided 20 after IMC and Julie Jai makes a note that says, I talked 21 to Ron Fox and -- 22 COMMISSIONER SIDNEY LINDEN: You -- 23 MR. JULIAN FALCONER: -- he said we're 24 now going ex parte. I'm going to finish my thought, 25 please.
961 COMMISSIONER SIDNEY LINDEN: You asked a 2 question a while ago -- 3 MR. JULIAN FALCONER: Okay. 4 COMMISSIONER SIDNEY LINDEN: -- and then 5 you carried right on -- 6 MR. JULIAN FALCONER: That's fair. 7 COMMISSIONER SIDNEY LINDEN: -- to make a 8 statement. 9 MR. JULIAN FALCONER: I can -- I can 10 actually -- I -- I agree the question was inappropriate I 11 can -- 12 COMMISSIONER SIDNEY LINDEN: You asked 13 the question -- 14 MR. JULIAN FALCONER: Yeah. No, I don't 15 think the question was done properly. I'd like to back 16 up. 17 COMMISSIONER SIDNEY LINDEN: -- and at 18 that point you should give the Witness a chance to answer 19 it. I've forgotten what the question was and I -- 20 MR. JULIAN FALCONER: Fair enough. 21 22 CONTINUED BY MR. JULIAN FALCONER: 23 Q: I'm asking you, sir, based on the 24 documents I've taken you through, does it appear to you 25 that your colleague Julie Jai understood that you were to
971 proceed ex parte as of 9:30 a.m. when she was chairing 2 the IMC meeting? 3 Did it appear to you that way from what 4 I've taken you through? 5 COMMISSIONER SIDNEY LINDEN: Just let him 6 answer the question. 7 THE WITNESS: I -- I don't know what she 8 thought and I'm not sure that I'd quite digested what it 9 meant either, in terms of ex parte or on notice at 9:30 10 in the morning. 11 12 CONTINUED BY MR. JULIAN FALCONER: 13 Q: All right. And so based on the 14 conversations you were party to in that morning before 15 the IMC meeting, you can understand that Ms. Jai didn't 16 have the impression based on the signals you were getting 17 that you were to go ex parte, correct? 18 A: Well, I'm not sure which meeting 19 we're talking about now. We're talking about the meeting 20 that -- 21 Q: The meeting with Harnick. 22 A: -- I had with her and Yan? 23 Q: No, and Harnick. 24 A: Oh, I see. Okay, fine. I don't 25 recall any discussion at the meeting with the Minister
981 about how the injunction was to be sought. 2 Q: Julie Jai's notes suggest, don't 3 they, that she gets the news about ex parte in a somewhat 4 more accelerated approach with her telephone call of Ron 5 Fox and that minute at the end, subsequent to IMC from 6 on-high direction to go ex parte. 7 Isn't that fair? 8 A: Well, I think, looking -- I mean, in 9 fairness to the point you're making, I think your point 10 is also reinforced by my own note, because my own note 11 doesn't say anything about an ex parte injunction. 12 So the conclusion I draw from it is that 13 the question of how to get it was taking shape during the 14 course of the day. 15 Q: I'm going to suggest to you that over 16 -- over-ride, you didn't agree with me that there was an 17 over-ride in the morning. I suggested to you that 18 Harnick met with you and you were told, by the Premier, 19 there was an over-ride and you didn't agree. 20 I'm now going to suggest to you that over- 21 ride, as a result of the dining room meeting, became 22 over-drive; that Deb Hutton was unimpressed on September 23 6th at the IMC meeting with how slow things were going -- 24 COMMISSIONER SIDNEY LINDEN: Now -- 25 MR. JULIAN FALCONER: -- and within
991 minutes of the conclusion of that meeting there was a 2 meeting of the Premier, the Cabinet Ministers, including 3 Deb Hutton, in which override turned into overdrive? 4 COMMISSIONER SIDNEY LINDEN: Now -- 5 MR. DERRY MILLAR: It might be helpful if 6 My Friend, rather than making speeches, asked questions. 7 COMMISSIONER SIDNEY LINDEN: It would be 8 helpful. It would be extremely helpful -- 9 MR. JULIAN FALCONER: Fine. 10 COMMISSIONER SIDNEY LINDEN: -- Mr. 11 Falconer, if -- 12 MR. JULIAN FALCONER: Fine, I can 13 rephrase it. 14 COMMISSIONER SIDNEY LINDEN: -- instead 15 of making speeches you ask questions. 16 MR. JULIAN FALCONER: Fair enough. 17 18 CONTINUED BY MR. JULIAN FALCONER: 19 Q: I'm going to suggest to you that 20 whatever direction, new direction you were to take as a 21 result of the Harnick direction you received from the 22 Premier in the morning, before 9:30, that direction took 23 on a whole new acceleration following the dining room 24 meeting? 25 A: I don't think that's right. I think
1001 that what happened at the dining room meeting were two 2 (2) things. One (1) was that I wanted to make sure that 3 the Premier really understood what was involved in doing 4 what he was asking, and it was in that context that there 5 was a discussion about ex parte or not ex parte 6 injunction. 7 And number 2, the Premier made it 8 perfectly clear what he wanted to happen and I came out 9 of the meeting with what I thought was a clear 10 instruction that I had received, not once but twice. 11 Q: Mr. Rosenthal asked you -- 12 COMMISSIONER SIDNEY LINDEN: Are you 13 about to move on to something else or are you staying on 14 this same point? 15 MR. JULIAN FALCONER: I'm -- 16 COMMISSIONER SIDNEY LINDEN: Because I've 17 heard -- 18 MR. JULIAN FALCONER: -- shifting to 19 something else. 20 COMMISSIONER SIDNEY LINDEN: -- a lot of 21 questions about this very matter. 22 MR. JULIAN FALCONER: I'm shifting to 23 something else. 24 COMMISSIONER SIDNEY LINDEN: Are you? 25 MR. JULIAN FALCONER: Yes.
1011 COMMISSIONER SIDNEY LINDEN: Okay, then. 2 3 CONTINUED BY MR. JULIAN FALCONER: 4 Q: Mr. Rosenthal asked you a question 5 about the change in the structure of the Interministerial 6 Committee Meetings. 7 Do you remember that question that he 8 asked you? 9 A: I don't, no. 10 Q: All right. Yesterday he raised an 11 issue with you that, in fact, the structure of the IMC 12 was going to change and there was some discussion about 13 what, precisely, the evidence was on the previous day. 14 Did -- did you know, did it come to your 15 knowledge that Ms. Hutton was of the view that the 16 September 6th IMC meeting was, quote: 17 "The most useless meeting I have ever 18 attended." 19 It was a complete waste of her time. 20 Did that criticism of the IMC on September 21 6th come to your attention? 22 COMMISSIONER SIDNEY LINDEN: Ms. Perschy, 23 you're going to -- 24 MR. JULIAN FALCONER: It's a proper 25 question, sir.
1021 COMMISSIONER SIDNEY LINDEN: Just stop 2 for a minute. 3 MR. JULIAN FALCONER: I am reading, by 4 the way, from page 102 of the transcript of the evidence 5 of Elaine Hip -- Eileen Hipfner, of September 15th, 2005. 6 MS. ANNA PERSCHY: I -- I just want to 7 make sure that the question is put into context that it's 8 one person's recollection of what they understood 9 somebody else had been communicating. 10 COMMISSIONER SIDNEY LINDEN: A meeting 11 that -- 12 MS. ANNA PERSCHY: And this again -- this 13 again, this is with respect -- 14 COMMISSIONER SIDNEY LINDEN: Yes -- 15 MS. ANNA PERSCHY: -- to meetings that 16 this Witness was not at. 17 COMMISSIONER SIDNEY LINDEN: Yes. 18 MR. JULIAN FALCONER: And I asked, did it 19 come to your attention that Ms. Hutton made statements 20 along that line -- 21 COMMISSIONER SIDNEY LINDEN: Ms. Hutton-- 22 MR. JULIAN FALCONER: -- that just -- 23 COMMISSIONER SIDNEY LINDEN: -- is 24 alleged to have made statements. 25 MR. JULIAN FALCONER: Is alleged to have
1031 made statements. 2 COMMISSIONER SIDNEY LINDEN: One person's 3 notes of a meeting that he wasn't at. So, if you put it 4 in the proper context, it's a -- 5 MR. JULIAN FALCONER: Fair enough. We're 6 now beyond notes. It is Ms. Hipfner's evidence before 7 this Commissioner that that is what Deborah Hutton said, 8 so we're not just at notes. I've read from her evidence. 9 But I accept your point, Mr. Commissioner. 10 COMMISSIONER SIDNEY LINDEN: Yeah, that's 11 fine. 12 13 CONTINUED BY MR. JULIAN FALCONER: 14 Q: So, you understand, Mr. Taman, we're 15 talking about Ms. Hipfner's evidence of what she says Deb 16 Hutton said? 17 Did that -- 18 A: Mr. Falconer, I think all I really 19 knew was that some of the political staff, including Ms. 20 Hutton, thought that things were going too slowly and 21 that they were being quite clear in expressing that view. 22 Q: Did it come to your attention, and 23 I'm now reading from the Jeff Bangs' evidence of November 24 3rd, 2005, page 89, did it come to your attention that 25 Ms. Hutton said that these meetings would not occur in
1041 this fashion any longer. 2 Did you know that? 3 A: I don't think I did know that, no. 4 Q: Did it come to your attention, and 5 I'm now reading from the Jeff Bangs' evidence of November 6 3rd, 2005, page 193, quote, the line 11: 7 "At the end of the meeting, I don't 8 remember the exact wording, but she 9 made it clear that we would not be 10 having another meeting of this nature 11 and we didn't." Close quotes. 12 Did that fact come to your attention? 13 COMMISSIONER SIDNEY LINDEN: Just a 14 minute. Before you answer the question, Ms. -- 15 MS. ANNA PERSCHY: And that's my point. 16 It's not a fact. 17 COMMISSIONER SIDNEY LINDEN: No, it's 18 not. 19 MS. ANNA PERSCHY: It's one person's 20 understanding. 21 COMMISSIONER SIDNEY LINDEN: She said 22 that. 23 MS. ANNA PERSCHY: And this witness 24 wasn't there. 25 COMMISSIONER SIDNEY LINDEN: No. You're
1051 reading -- 2 MR. JULIAN FALCONER: And I told him 3 this, it's Mr. Bangs' account -- 4 COMMISSIONER SIDNEY LINDEN: You're 5 reading -- you're reading what Mr. Bangs' evidence is. 6 MS. ANNA PERSCHY: And then he went on to 7 say, were you made aware of that fact. 8 MR. JULIAN FALCONER: Oh, I apologize? 9 COMMISSIONER SIDNEY LINDEN: Well, that - 10 - okay. That -- 11 MR. JULIAN FALCONER: My Friend's quite 12 right. 13 14 CONTINUED BY MR. JULIAN FALCONER: 15 Q: Were you made aware of that 16 allegation that Ms. Hutton said that? 17 A: I don't recall beyond what I've said. 18 Q: Mr. Bangs testifies that, in fact, 19 the IMC didn't have another meeting of that nature; that 20 Mr. Bangs testifies -- 21 A: Didn't have another meeting of that 22 nature because I changed the structure. 23 Q: Now, the timing, as I understand it, 24 in terms of the dining room meeting, according to Officer 25 Patrick, the timing of the dining room meeting was such
1061 that it happened within minutes after the conclusion of 2 the September 6th IMC meeting. 3 Do you contest that? September 6th IMC 4 meeting finished at 11:45 a.m. according to the minutes. 5 A: No, that could be right, for sure. 6 Q: It has been testified too, that Ms. 7 Hutton sat at the table to the right of Solicitor General 8 Runciman who, in turn, sat to the right of Premier 9 Harris. 10 Do you contest that that happened? 11 A: Where at? 12 Q: At the dining room meeting? 13 A: I don't recall where everybody sat. 14 Q: A very frustrated Deb Hutton was some 15 -- a reality that had come to your attention, yes? 16 A: Well -- well -- 17 Q: Well, okay -- 18 COMMISSIONER SIDNEY LINDEN: Well -- 19 MR. JULIAN FALCONER: -- I'll move on. 20 I've got my answer to that. 21 22 CONTINUED BY MR. JULIAN FALCONER: 23 Q: You talked yesterday about 24 leadership. You said that structures -- structures can't 25 solve bad leadership.
1071 A: Yeah. 2 Q: Do you remember that. 3 A: Yeah. 4 Q: Okay. You talked about government 5 accountability; do you recall talking about that? 6 A: Yes. 7 Q: All right. Would you agree with me, 8 that to the extent a political staffer who does not have 9 any statutory enshrinement of their powers, no statutory 10 mandate, is running an important brief, there are 11 accountability issues that might arise? 12 A: I mean, I don't know what you mean by 13 running an important brief or -- or who you think was 14 running it. 15 Q: Well, it was the evidence heard by 16 this Commission, that after Deb Hutton declared, 17 according to the evidence of Bangs, that a meeting of 18 this nature would never happen again, that within minutes 19 there was a convening of the Premier, Cabinet Ministers 20 and Ms. Hutton where the Premier communicated the 21 accelerated pace he expected things to happen. 22 That's what happened, right? 23 A: Okay. 24 Q: And Deb Hutton -- 25 COMMISSIONER SIDNEY LINDEN: Just a
1081 minute. Just a minute. There's an objection and I want 2 to hear it. 3 MS. ANNA PERSCHY: I'm sorry, this is 4 completely argumentative. He's tying things together 5 with respect to issues and meetings that this Witness 6 never attended. 7 He can't possibly be able to answer these 8 questions. 9 COMMISSIONER SIDNEY LINDEN: Yes. Yes. 10 MS. ANNA PERSCHY: It's simply not 11 proper. 12 COMMISSIONER SIDNEY LINDEN: Yes. 13 MR. JULIAN FALCONER: I'll move on. 14 15 CONTINUED BY MR. JULIAN FALCONER: 16 Q: Ms. Hutton -- 17 COMMISSIONER SIDNEY LINDEN: But I don't 18 want you to move into areas that are improper and you -- 19 you know the rules. 20 MR. JULIAN FALCONER: Well, I'm not -- 21 I'm -- I'm -- 22 COMMISSIONER SIDNEY LINDEN: You know the 23 rules, Mr. Falconer. 24 MR. JULIAN FALCONER: That's right. 25 COMMISSIONER SIDNEY LINDEN: And I think
1091 you're pushing the limits beyond where they're proper. 2 So please be careful -- 3 MR. JULIAN FALCONER: Did it ever -- 4 COMMISSIONER SIDNEY LINDEN: -- you say 5 you're taking -- you're going in an expedited matter and 6 you say you're moving quickly. You've been on your feet 7 an hour and a half and so far we have not heard a great 8 deal that we haven't already heard. 9 A lot of this area has been gone over by 10 other Counsel, by Commission Counsel and by other Counsel 11 on behalf of other parties. There's nothing new that 12 I've been hearing in an hour and a half, for what it's 13 worth. 14 Do you want to carry on? 15 MR. JULIAN FALCONER: Thank you, Mr. 16 Commissioner. 17 18 CONTINUED BY MR. JULIAN FALCONER: 19 Q: Did Deb Hutton, in her role in terms 20 of influencing the Premier and cabinet ministers, was 21 that issue a subject of discussion in or around that time 22 period amongst yourself or staffers? 23 COMMISSIONER SIDNEY LINDEN: I'm sorry, 24 what was the question? 25 MR. DERRY MILLAR: Well -- but the
1101 question about Deb Hutton influencing cabinet ministers, 2 there's a premise built in there that -- 3 COMMISSIONER SIDNEY LINDEN: Yes. 4 MR. DERRY MILLAR: -- that -- he should 5 ask that instead of building an assumption into the 6 question. 7 MR. JULIAN FALCONER: Well I just -- I 8 asked: Did the topic of Deb Hutton's influence over 9 cabinet ministers and the Premier, was that a topic of 10 discussion? That was a proper question. 11 MR. DERRY MILLAR: It assumes the fact -- 12 COMMISSIONER SIDNEY LINDEN: It suggests 13 that there is that influence. 14 MR. JULIAN FALCONER: Yes. 15 COMMISSIONER SIDNEY LINDEN: It suggests 16 that there is that influence. It's a question that is 17 not appropriate. Now, ask the questions that are 18 appropriate. 19 20 CONTINUED BY MR. JULIAN FALCONER: 21 Q: Was there any discussion amongst you 22 and your staffers or ministers or deputy ministers about 23 the extent of influence that Deb Hutton exerted in the 24 early government? 25 A: No, not that I recall.
1111 Q: Was there a concern on your part as 2 to the influence exerted by political staffers in the 3 running of government? 4 A: No. 5 COMMISSIONER SIDNEY LINDEN: The answer's 6 no. Do you want to -- 7 MR. PETER DOWNARD: No, I -- again, 8 there's no evidence as to the extent of influence Deb 9 Hutton had -- 10 COMMISSIONER SIDNEY LINDEN: No. 11 MR. PETER DOWNARD: -- in the other 12 government at all, there's nothing. 13 COMMISSIONER SIDNEY LINDEN: No. There 14 was -- 15 MR. JULIAN FALCONER: So then I shouldn't 16 be allowed to ask any questions because we don't have 17 enough evidence on it yet? That's not a proper 18 objection. 19 MR. PETER DOWNARD: Yes, it is. My 20 Friend is not entitled to ask a question that implies a 21 fact that is not in evidence. And that's the objection. 22 MR. JULIAN FALCONER: And I rephrased it. 23 So I'll just keep moving. I rephrased it in line with 24 your direction. 25 COMMISSIONER SIDNEY LINDEN: Just keep
1121 moving, Mr. Falconer. 2 3 CONTINUED BY MR. JULIAN FALCONER: 4 Q: Your experience with the dining room 5 meeting was such that, following it, apparently 6 immediately following it, you met with Ms. Christie and 7 told her to get a judge that afternoon, correct? 8 A: Yes. 9 Q: Would you agree with me that your 10 imperative of getting a judge that afternoon became 11 higher as a result of the dining room meeting? 12 A: I would agree that it became clear in 13 my mind that the Premier knew exactly what he wanted, 14 that he had also been fair enough to say that you are to 15 exercise some professional judgment. And that my 16 professional judgment was that it was appropriate to act 17 as Counsel to get him what he wanted. 18 COMMISSIONER SIDNEY LINDEN: I'm going to 19 have a morning break some time. 20 MR. JULIAN FALCONER: All right. 21 COMMISSIONER SIDNEY LINDEN: Now is this 22 a good time or do you want to finish the thought of the-- 23 MR. JULIAN FALCONER: I need five (5) 24 minutes or less to finish the thought. 25 COMMISSIONER SIDNEY LINDEN: Five (5)
1131 minutes. 2 MR. JULIAN FALCONER: Is that all right? 3 But if it's not, we can -- 4 COMMISSIONER SIDNEY LINDEN: No. Carry 5 on, Mr. Falconer. 6 MR. JULIAN FALCONER: Thank you. 7 8 CONTINUED BY MR. JULIAN FALCONER: 9 Q: I'm going to put to you, because we 10 have to make argument at the end and I have to be fair 11 about the evidence. I'm going to put to you, sir, that 12 that ongoing obligation, to not simply be a tool of 13 government, extended to not going to court to seek an ex 14 parte injunction when you knew there couldn't be a case 15 for one. 16 A: I knew there could be a case for one 17 and I thought it was the exact right thing to do. 18 Q: So you thought getting an ex parte 19 injunction was the right thing to do? 20 A: I thought getting an ex parte 21 injunction was the wrong thing to do. I thought there 22 was a case for getting an ex parte injunction and then 23 when instructed to make it, I went and made it. 24 And it's no different, in my perspective, 25 from conversations that lawyers have with their clients
1141 everyday in which they give some advice, they get an 2 instruction. 3 And the only gloss of difference is the 4 idea of the Attorney General having an independent 5 accountability as a guardian of the law and I did not 6 think it was engaged in this situation. 7 Q: Is it -- 8 A: So I felt completely comfortable in 9 giving my advice, getting an instruction and taking the 10 appropriate steps, as instructed. 11 Q: Isn't it true your most senior 12 litigator on the ground told you there wasn't a case for 13 an ex parte injunction? 14 A: There are a thousand lawyers in the 15 Ministry of the Attorney General, Mr. Falconer, a big 16 part of my job was listening to senior litigators who 17 almost always take different views, one from the other, 18 sometimes one from the Government. 19 My job as the Deputy was to resolve those 20 issues. That's what I did in this case. 21 Q: What senior civil litigator on the 22 ground took a different view from Mr. McCabe? 23 A: I took a different view. 24 Q: Were you on the ground? 25 A: Well, I know as much about
1151 injunctions as Mr. McCabe does. And I felt completely 2 comfortable in making the decision that if this was what 3 the Government wanted we could go to court and get it. 4 And I remind you that the judge gave the injunction. 5 Q: Your testimony was along the lines to 6 Mr. Millar yesterday that you weren't on the ground and 7 didn't direct your mind to the distinctions between ex 8 parte and interim injunctions. 9 Do you remember giving Mr. Millar that 10 evidence yesterday? 11 A: Well, leave "on the ground" -- 12 COMMISSIONER SIDNEY LINDEN: Well -- 13 THE WITNESS: Leave "on the ground" out 14 of it. The -- the simple fact is this. My job in a 15 ministry of a thousand lawyers is to be the senior 16 lawyer. I was the chief law officer of the Crown. 17 COMMISSIONER SIDNEY LINDEN: Yeah. 18 THE WITNESS: Reporting to the Minister 19 of Justice, the Attorney General. 20 COMMISSIONER SIDNEY LINDEN: And in the 21 last hour and a half you've been bringing out all the 22 things that he did know and all the things that were 23 brought to his attention during this period of time. 24 MR. JULIAN FALCONER: That -- that's 25 correct.
1161 COMMISSIONER SIDNEY LINDEN: That's fine. 2 MR. JULIAN FALCONER: And in the last 3 hour and a half, with great respect, Mr. Commissioner, 4 since you've cautioned me in that fashion, I would like 5 to respond. 6 In the last hour and a half the notion 7 that Mr. Taman hadn't addressed his mind to the 8 distinction between an ex parte and interim injunction is 9 simply not borne out in the facts -- 10 COMMISSIONER SIDNEY LINDEN: Hmm hmm. 11 MR. JULIAN FALCONER: -- but that was the 12 evidence yesterday. And with great respect, I'm entitled 13 to cross-examine him -- 14 COMMISSIONER SIDNEY LINDEN: Yeah. 15 MR. JULIAN FALCONER: -- on areas in 16 which, with great respect, the evidence was unclear. 17 COMMISSIONER SIDNEY LINDEN: Well -- 18 MR. JULIAN FALCONER: And yesterday his 19 evidence was: Mike Harris and I didn't direct our minds 20 to what was ex parte and what wasn't. 21 COMMISSIONER SIDNEY LINDEN: I -- 22 MR. JULIAN FALCONER: Today the evidence 23 is: I'm a senior civil litigator and I knew the 24 difference. 25 COMMISSIONER SIDNEY LINDEN: Mr.
1171 Falconer, I'll hear your argument at the appropriate 2 time. Now, are you finished with this point? 3 MR. JULIAN FALCONER: Yes, thank you. 4 COMMISSIONER SIDNEY LINDEN: I think we 5 will now take a morning break. Thank you. 6 THE REGISTRAR: This Inquiry will recess 7 for fifteen (15) minutes. 8 9 --- Upon recessing at 10:38 a.m. 10 --- Upon resuming at 10:59 a.m. 11 12 THE REGISTRAR: This Inquiry is now 13 resumed, please be seated. 14 COMMISSIONER SIDNEY LINDEN: Mr. 15 Falconer, you're kind of unique in these proceedings in 16 the sense that the party who you represent does not have 17 what could be characterized as a direct and substantial 18 interest and in my grant of standing I made that clear. 19 However, recognizing that you could be 20 quite helpful to these proceedings, a party whose 21 interests you represent and on occasion you have been 22 extremely helpful. 23 And I understand you're moving on now to a 24 systemic issue, but it is -- I understand that, is that 25 correct?
1181 MR. JULIAN FALCONER: I was -- 2 COMMISSIONER SIDNEY LINDEN: A larger 3 issue? 4 MR. JULIAN FALCONER: I was on a 5 systemic, larger issue already all morning. 6 COMMISSIONER SIDNEY LINDEN: All right. 7 In my -- 8 MR. JULIAN FALCONER: With -- with great 9 respect, Mr. Commissioner, Counsel and a party is 10 entitled to wait to the end of the proceedings -- 11 COMMISSIONER SIDNEY LINDEN: May I finish 12 what I was about to say? 13 MR. JULIAN FALCONER: You asked me a 14 question. 15 COMMISSIONER SIDNEY LINDEN: Well, I 16 asked if you were going to move on to a substantive -- 17 MR. JULIAN FALCONER: Well, and with 18 respect -- 19 COMMISSIONER SIDNEY LINDEN: And you said 20 you were already on one. 21 MR. JULIAN FALCONER: You denigrated -- 22 you denigrated the issue that I was canvassing this 23 morning -- 24 COMMISSIONER SIDNEY LINDEN: No. It -- 25 MR. JULIAN FALCONER: -- and with respect
1191 I have an obligation to my client, when instructed, to 2 pursue an issue to -- to -- to -- 3 COMMISSIONER SIDNEY LINDEN: Mr. 4 Falconer, we're not going to move anywhere if you don't 5 let me finish. 6 MR. JULIAN FALCONER: Fair enough. 7 COMMISSIONER SIDNEY LINDEN: It is not 8 helpful to me or to these proceedings when you deal or go 9 over areas that have been covered in great detail by 10 Commission Counsel and by Counsel for one (1) of the 11 other parties; that is not helpful. 12 Now, in these proceedings the grounds that 13 you've just covered have been gone over in some detail by 14 both Commission Counsel and by Mr. Klippenstein on behalf 15 of the George Family and by other Counsel. 16 Now, I'm going to ask you, politely and 17 respectfully, in future if you would please try to 18 confine yourself to areas that have not been dealt with 19 in great detail by either Commission Counsel or by one 20 (1) of the other Counsel. 21 That's my respectful request of you and if 22 necessary we'll deal with this matter again, but I'm 23 expecting now that you're going to move on to what I 24 would consider other larger substantive issues where you 25 can be of assistance and where you have been.
1201 Are we moving on? Are you with me? Are 2 we in the same place, more or less? 3 MR. JULIAN FALCONER: More or less, Mr. 4 Commissioner. 5 COMMISSIONER SIDNEY LINDEN: Okay. Let's 6 carry on. I want to welcome some of our staff who are 7 here from Toronto who have never been up here before, 8 some of the support staff. Welcome here to our lovely 9 surroundings in Forest. I hope you have a good day. 10 Carry on. 11 12 (BRIEF PAUSE) 13 14 CONTINUED BY MR. JULIAN FALCONER: 15 Q: Mr. Taman, you testified yesterday 16 that the issue of structural change was one in which it 17 should be tempered by the question of whether it was 18 really about a leadership void. 19 Do you remember testifying along those 20 lines? 21 The question of structural change or the 22 implementation of structural change was a matter that 23 should be tempered by the reality that it may be a matter 24 of leadership or it may be a matter of common sense; do 25 you remember...?
1211 A: Yes. I think what I was just trying 2 to advise the Commissioner of was that structural changes 3 are not necessarily the most important changes that need 4 to be made when Government seems to need correction. 5 Q: In terms of this case, would you 6 agree with me that the issue of -- of appearance of 7 political interference, this case, the Ipperwash matter, 8 the appearance of political interference, is of as much 9 concern as the fact of political interference? 10 A: Well, I think appearances are always 11 of as much concern as facts. 12 Q: And the reason you testified the way 13 you did yesterday about the Dining Room Meeting is a 14 concern about the appearance of political interference in 15 police operations? 16 A: That was one of the concerns I had 17 arising out of the Dining Room Meeting. 18 Q: And you've had an opportunity to 19 review the transcript of the telephone conversation 20 between then Inspector Fox and John Carson, have you? 21 A: Was that in the material you gave me 22 last night? 23 Q: It was partially there, but yesterday 24 you testified you -- 25 A: Yes. Sorry --
1221 Q: -- had -- 2 A: -- now I recall what you mean, yes, I 3 saw that yesterday, yes. 4 Q: All right. And by that, I should be 5 using exhibit numbers, I believe it's Exhibit P-444, but 6 by that I mean you had an opportunity to see the 7 expressions of concern by Inspector Fox to Incident 8 Commander Carson about the impact of the Dining Room 9 Meeting? 10 A: Yes. 11 Q: Okay. It's -- it was the testimony 12 of Inspector Fox, among other things before this 13 Commission, that there were no clear rules or guidelines 14 about where he, as Liaison Officer, should go, -- 15 A: All right. 16 Q: -- that that was one of the things he 17 testified to. It was also his testimony, among other 18 things, that he viewed the existence of a buffer between 19 political masters, if you will, or politicians, and the 20 police, was something that was somewhat lacking in terms 21 of the OPP. 22 I took him through the Police Services Act 23 and -- and the role of the Commissioner, and he agreed 24 with me that improvements could be made, for example, by 25 way of a Police Services Board.
1231 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 2 Tuck-Jackson...? 3 MS. ANDREA TUCK-JACKSON: Mr. 4 Commissioner, my recollection, I stand to be corrected, 5 but my recollection was that Superintendent Fox was of 6 the view that he served as a buffer. It may have been 7 that it might have been helpful to have more, but he was 8 very clear that he understood that he served that role. 9 COMMISSIONER SIDNEY LINDEN: I do not 10 remember what the exact evidence was, but I think that is 11 the essence of it, that he thought he was serving as a 12 buffer. 13 MR. JULIAN FALCONER: I put to 14 Superintendent Fox, the role of an oversight body, and 15 the possibilities that such an oversight body -- 16 COMMISSIONER SIDNEY LINDEN: I remember 17 that. 18 MR. JULIAN FALCONER: -- would act -- 19 could act as a buffer and might serve to ameliorate some 20 of the problems experienced in this case. 21 COMMISSIONER SIDNEY LINDEN: As an 22 additional buffer or...? 23 MR. DERRY MILLAR: The -- the points are 24 not mutually exclusive -- 25 COMMISSIONER SIDNEY LINDEN: Yes.
1241 MR. DERRY MILLAR: -- in the sense of, he 2 may be -- he believes he was a buffer, but at the same 3 time it's not mutually exclusive that there be another 4 buffer. 5 And I think, I don't disagree that they 6 talked about that, I don't have the exact references. 7 It's actually, I would be -- I think for all of us, not 8 just Mr. Falconer, but for all of us when we -- when 9 we're going to take -- say that the evidence says, that 10 if we could identify the pages and where in the evidence 11 it is, it would be helpful so that we could just -- 12 people would know we're all on the same page, and, I 13 would ask that we all try to do that in the future. 14 COMMISSIONER SIDNEY LINDEN: Thank you, 15 Mr. Millar. Carry on, Mr. Falconer. 16 MR. JULIAN FALCONER: Thank you. 17 18 CONTINUED BY MR. JULIAN FALCONER: 19 Q: It was the evidence of Superintendent 20 Fox that he felt that a Police Services Board body, an 21 oversight body, -- 22 COMMISSIONER SIDNEY LINDEN: You just got 23 one word out and Mr. Downard...? 24 MR. PETER DOWNARD: Well I was hoping 25 that --
1251 COMMISSIONER SIDNEY LINDEN: You would 2 have the evidence page? 3 MR. PETER DOWNARD: -- that I'd get a 4 page, I mean, My Friend was very helpful with that 5 earlier this morning, and -- 6 COMMISSIONER SIDNEY LINDEN: Right. 7 MR. PETER DOWNARD: -- and if we can have 8 a page number for Mr. Fox's evidence, so that we can look 9 at this, because there's been some issues as to how 10 evidence is described and what evidence is, and I'd like 11 to be able to monitor that. 12 MR. JULIAN FALCONER: There's two (2) 13 matters, Mr. Commissioner, we have to make up our mind on 14 -- on when I go to detail -- 15 COMMISSIONER SIDNEY LINDEN: Efficiency 16 or -- 17 MR. JULIAN FALCONER: Exactly. I tried 18 to use gist evidence which in this case is 19 incontrovertible that Superintendent Fox adopted the idea 20 of a notion of an oversight body to act as a buffer 21 between politicians and police and that he thinks it 22 would be a useful reform. 23 COMMISSIONER SIDNEY LINDEN: And that's a 24 paraphrase. 25 MR. JULIAN FALCONER: That's right.
1261 COMMISSIONER SIDNEY LINDEN: That's a 2 paraphrase of his -- 3 MR. JULIAN FALCONER: That's right. 4 COMMISSIONER SIDNEY LINDEN: -- evidence. 5 If you -- if it's not your recollection or correct, then 6 you're entitled to ask for specifics, but if it is a 7 reasonably accurate paraphrase then we can carry on. I 8 don't -- I'm going to leave it up to you. 9 MR. PETER DOWNARD: I just have the 10 procedural point, is that I'd like to get a page 11 reference when -- when -- just as Mr. Millar said, when 12 My Friend's going to go to evidence and say what the 13 evidence is, I have no difficulty with him saying the 14 gist of it is this or that, but -- 15 COMMISSIONER SIDNEY LINDEN: That's 16 right. 17 MR. PETER DOWNARD: -- I want to know 18 what he's referring to in the transcript so I can have a 19 look at it myself. 20 COMMISSIONER SIDNEY LINDEN: I presume 21 you're able to do that, Mr. Falconer. If you can do that 22 it would make things easier for other Counsel to follow. 23 MR. JULIAN FALCONER: You presume 24 incorrectly, Mr. Commissioner. I felt that it was such 25 an incontrovertible fact. You saw how, in detail, I
1271 addressed things that I thought were controversial, and 2 My Friend has yet to tell you on the record that he 3 doesn't remember the same thing I do. 4 COMMISSIONER SIDNEY LINDEN: Well -- 5 MR. JULIAN FALCONER: Because, in fact, 6 that was what happened -- 7 COMMISSIONER SIDNEY LINDEN: All right. 8 But -- 9 MR. JULIAN FALCONER: -- but I'm content 10 to rephrase the question -- 11 COMMISSIONER SIDNEY LINDEN: If -- 12 MR. JULIAN FALCONER: -- so that I can 13 deal with it. 14 COMMISSIONER SIDNEY LINDEN: -- if you 15 have the page -- do you have the page? You can make the 16 reference and we can move on. 17 MR. JULIAN FALCONER: It -- I've just 18 said that I don't have the page. 19 COMMISSIONER SIDNEY LINDEN: All right. 20 So, then when you come back -- 21 MR. JULIAN FALCONER: I'll be happy to 22 give it to My Friend at a break if he -- if he wants to 23 look it up and I will rephrase the question so we can 24 address it. 25 MR. DERRY MILLAR: Actually the pages are
1281 -- it's page 1 -- the discussion appears at pages 133 -- 2 130 to 133 of Mr. Fox's transcript on the -- I just need 3 to find the date. 4 MS. JENNIFER MCALEER: July 18th. 5 MR. DERRY MILLAR: July 18th. 6 COMMISSIONER SIDNEY LINDEN: Thank you, 7 Ms. McAleer. Thank you Mr. Millar. All right. 8 MR. JULIAN FALCONER: Appreciate that Mr. 9 Millar. 10 COMMISSIONER SIDNEY LINDEN: That's fine. 11 12 CONTINUED BY MR. JULIAN FALCONER: 13 Q: Would you agree with me that, in 14 terms of the complex issues such as the independence of 15 the police and the separation between state and police, 16 that one of the mechanisms for achieving that, 17 historically, in various quarters, has been to insert 18 oversight bodies -- civilian oversight bodies? 19 A: I -- I don't believe in simple 20 expressions about the independence of the police or the 21 separation of the state from the police, so I don't want 22 to accept the premise just as you've put it. I'm not -- 23 I'm not just quibbling with you -- 24 Q: No, fair enough. 25 A: -- Mr. Falconer. I have quite a
1291 strong view about the way that the police should, in 2 fact, be supervised and accountable to the elected 3 representatives of the people. 4 So, I -- I always get cautious when I hear 5 talk about separation, about independence. The police 6 are not like the judiciary; they don't have a 7 constitutional mandate to be independent. 8 They are an organ of the executive branch 9 of government. They're the only organ of the executive 10 branch of government that's authorized to use force 11 against citizens. And I can't think of anything more 12 important than that the elected representatives of the 13 people be fully accountable for what they do in that 14 role. 15 Q: I was planning on rephrasing the 16 question when you're finished so that I could be more 17 precise for you -- to address your concerns. 18 Are you familiar with the fact that in 19 circumstances of municipal policing in the Province of 20 Ontario that police service boards have been statutorily 21 created as civilian oversight bodies, whose function, in 22 part, is to create somewhat of a buffer between 23 politicians and the police? 24 A: Yes. 25 Q: Are you also familiar with the
1301 oversight structure in respect of CSIS 2 A: I'm not familiar with the current 3 structure, no. 4 Q: Are you familiar with the fact that a 5 civilian oversight body acronym, SERC (phonetic) exists 6 in order to -- to also fulfil that function? 7 A: Okay. 8 Q: In terms of the OPP, the evidence 9 thus far has been, including Commissioner O'Grady's 10 evidence, that a buffer of that nature doesn't exist. 11 I take it you don't contest that, and it's 12 also your experience. There's no such buffer in -- in 13 cases of the OPP? 14 A: There's no intermediate body; that's 15 the case. 16 Q: The evidence we heard from 17 Commissioner O'Grady and deputy Commissioner Carson is 18 that they see the existence of such an oversight body as 19 potentially assisting in providing a buffer; do you 20 dispute that? 21 A: Do I dispute -- I don't dispute they 22 said that. 23 Q: No, I'm saying, do you dispute that 24 opinion? 25 COMMISSIONER SIDNEY LINDEN: Yes, Mr. --
1311 MR. DERRY MILLAR: Well, he can ask -- I 2 think that what -- what those two (2) witnesses think are 3 what those two (2) witnesses think. My Friend -- 4 MR. JULIAN FALCONER: That's fine. I can 5 -- I can just -- if Mr. Millar has a problem, I can move 6 on and rephrase it. 7 8 CONTINUED BY MR. JULIAN FALCONER: 9 Q: Would you agree with me that the -- 10 that in terms of qualitative running of a police service 11 whether it's the Toronto Police Service or the Ontario 12 Provincial Police that the existence of a civilian 13 oversight body has merit in terms of creating a buffer? 14 A: I think that if I were exploring the 15 options for addressing what happened here that it would 16 be one (1) of the options that I would like to assess for 17 its advantages and its disadvantages. 18 Q: I put an extract from the Police 19 Services Act in front of you; do you have it there? 20 A: In your white binder? 21 Q: No, it's a separate extract that I 22 left on your desk. 23 A: My assistant's not -- 24 COMMISSIONER SIDNEY LINDEN: It looks 25 like this.
1321 MR. JULIAN FALCONER: It's on a 2 paperclip; a free-standing document? Could you put this 3 -- sorry, I have an extra copy. 4 THE WITNESS: Thank you. 5 6 CONTINUED BY MR. JULIAN FALCONER: 7 Q: The first extract from the Police 8 Services Act I put in front of you, is Section 17 9 Subsection 2 with respect to the reporting line, in 10 respect to the Ontario Provincial Police. 11 I take it you're familiar with the fact 12 under 17(2), the section: 13 "Subject to the Solicitor General's 14 direction the Commissioner has the 15 general control and administration of 16 the Ontario Provincial Police and the 17 employees connected with it." 18 A: Yes. 19 Q: You're familiar with that? 20 A: Yes. 21 Q: Are you familiar with the fact that 22 beyond that statement there is -- there is no formal 23 statutory civilian oversight structure for the Ontario 24 Provincial Police? 25 A: Yes.
1331 Q: Now, flipping the page, under Section 2 31, the responsibilities of municipal police boards are 3 set out. Are you familiar with this section? If you 4 want -- 5 A: Just a very general -- yes. 6 Q: If you want take a minute. You can 7 familiarize yourself. I'm going to particularly ask you 8 a few questions about Subsections 2, 3, and 4. 9 10 (BRIEF PAUSE) 11 12 A: Okay. 13 Q: Now, you'll notice... 14 15 (BRIEF PAUSE) 16 17 Q: Section 31 Sub 3: 18 "The Board may give orders and 19 directions to the Chief of Police but 20 not to other members of the police 21 force. And no individual member of the 22 Board shall give orders or directions 23 to any member of the police force." 24 Do you see that? 25 A: Yes.
1341 Q: Now, I'm going to put it to you, sir, 2 that that is an example of the statutory enshrinement of 3 a convention on the one (1) hand and, secondly, an -- an 4 obvious and trite statement of a place that board members 5 can't go. 6 Would you agree with that? 7 A: Yes. 8 Q: But, nevertheless, in terms of your 9 municipal policing in the Province of Ontario, the 10 legislators saw fit to state the rule in clear and 11 unequivocal terms, agreed? 12 A: Agreed. 13 Q: Do you see any reason for not stating 14 the rules in clear and unequivocal terms with respect to 15 the Ontario Provincial Police? 16 A: No. 17 Q: Sub 4: 18 "The Board shall not direct the Chief 19 of Police with respect to specific 20 operational decisions or with respect 21 to the day-to-day operation of the 22 police force." 23 The very same questions I'm going to put 24 to you as I just did a minute ago. 25 In terms of the proposition, it's entirely
1351 in keeping with the convention, correct? 2 A: Yes. 3 Q: It's a very simple, trite statement, 4 but the legislators saw fit in terms of municipal 5 policing in this Province to make the rule a legal -- or 6 legally enshrine the rule, correct? 7 A: Yes. 8 Q: Do you see any reason not to legally 9 enshrine such a rule with respect to the Ontario 10 Provincial Police? 11 A: If we're talking about the rule I -- 12 I don't see any reason not to find some way to be 13 specific about it. If we're talking about the Board, I 14 mean that's a bigger proposition. 15 Q: Yes. And -- and it's fair that you 16 raise the distinction. I was talking about the former 17 that you've just raised, but I want to now move to the 18 latter. 19 The operation of municipal police services 20 boards obviously couldn't be identical to the operation 21 of a board that would oversee a provincial police 22 service, correct? It couldn't be the same? 23 A: Yes. 24 Q: One size doesn't fit all in any of 25 these kinds of areas?
1361 A: Right. 2 Q: And there's a level of complexity to 3 the management of an Ontario -- or -- or a Provincial 4 police service that may not attend to a more localized 5 regional police service, correct? 6 A: Yes. 7 Q: But, do the imperatives about the 8 prohibition against interference with police operations, 9 do those imperatives lessen? 10 A: No. I think the imperatives in -- in 11 fairness are the same. 12 Q: And you talked about structural 13 change and -- and be careful about good leadership, but 14 isn't it true that one of the problems in this case, that 15 you identified in your evidence, was the ambiguous role 16 played by Fox and Patrick? 17 A: Yes, that's true. And I -- I also 18 emphasized not just leadership but good policies and 19 programs. And so, if you look at -- just following on 20 from what you said, Mr. Falconer, if you -- if you look 21 at this situation from my -- from the perspective of my 22 advice to the -- the Commission, I -- I don't have a 23 problem with what the Premier said. 24 I don't have the problem with the Premier 25 wanting to pursue a policy. Whether it's one that he or
1371 I or you agree with is immaterial from the point of view 2 of this discussion. He's the Premier; he's entitled to 3 set policy. 4 I think what needs to be focussed on in 5 this setting is the alarming way that -- that policy 6 statement seems to have found its way directly to the 7 frontline, oddly enough by the person who described 8 himself as the buffer. 9 So, it suggests to me that there could be 10 real value in having transparency about how this works; 11 having clear delineation of what the role is. And I 12 think you mentioned yesterday and I agreed with you, the 13 need for training. 14 Q: Now, is it your understanding of the 15 situation as you sit here today that the -- that the only 16 way that this information or the political imperatives 17 found their way to the frontline was through Fox? 18 A: No, I -- I didn't mean to say that. 19 I only meant to say that you referred me to a section of 20 transcript which -- which -- 21 Q: Right. 22 A: -- if I read it correctly showed that 23 that had happened. 24 Q: Because the evidence heard by the 25 Commissioner, and you should know this because you were
1381 Deputy Attorney General, the most senior people managing 2 this incident, is there were numerous channels by which 3 information reached incident command. 4 Did you know that? 5 A: I mean, I'm not sure how much I knew 6 about that. If you can assist me I can tell you whether 7 I knew about it or not. 8 Q: Well, we -- we canvassed one of the 9 other examples yesterday. The fact that the local MPP 10 who claimed to be working closely with the Premier, the 11 local MPP, Mr. Beaubien, was, in essence, in a briefing 12 relationship with Staff Sergeant Wade Lacroix who 13 ultimately ended up managing the Crowd Management Unit. 14 A: Well, it all comes to the same thing, 15 in my opinion, which is that there has to be perfect 16 transparency about who's responsibility it is to have 17 those discussions and with whom. 18 Q: And it does amount to the same thing 19 but it's no longer the Fox problem or the liaison 20 problem, it's now there's other ways that government's 21 exercising its ability to send signals or information to 22 frontline command. Correct? 23 A: Well, I don't know if anybody was 24 sending signals or information, but I do know that the 25 structure appeared not to have given the politicians the
1391 opportunity I think they deserved to have their 2 discussions to think about their policy and then to think 3 about whether they wanted to turn it into something more 4 of an instruction. 5 And if what happened was that those 6 discussions did turn into instructions in an -- in an 7 unintended way, or in a way that lacked transparency, 8 then I think that is a problem that needs to be 9 addressed. 10 Q: As you sit here today are you able to 11 assist me as to any reason for not having a civilian 12 oversight body tailored to the needs of a provincial 13 police service to -- 14 A: Yes. Yes. 15 Q: -- to oversee the OPP? 16 A: Yes, because there are thousands of 17 children who don't have good schools, don't have good 18 medicine, and I hesitate to recommend to anybody the 19 expenditure of vast sums of public money on yet another 20 agency, board or commission, if the problem could be 21 solved in some other way. 22 Q: Well, you described solving the 23 problem in some other way and you described leadership. 24 Now, you -- the gist of your testimony so 25 far is that what happened in the Ipperwash incident in
1401 terms of the appearance problems of political 2 interference was not to your experience by any 3 deliberate, ill motive by the Government actors, correct? 4 I mean, that's the gist of your testimony? 5 A: I don't have any -- I don't have any 6 understanding of what their motives were. What I do know 7 is that the political side of Government needs to be able 8 to discuss its policies, its problems, its reservations, 9 without having the discussion find its way to the 10 Incident Commander. 11 Q: But the essence of your evidence 12 yesterday, and I understand it again today, is that to -- 13 to some extent, leadership and policy can solve these 14 problems, getting to the point. 15 What was the leadership failing at 16 Ipperwash that spawned these problems? 17 A: I didn't say there was a leadership 18 failing. I -- I just said -- 19 Q: All right. 20 A: I just said that when -- when we're 21 looking at these problems, big expensive structural 22 solutions are not always the best solution. If -- if you 23 take, for example, the possibility that you did have such 24 a Board, again, I -- I make the observation that -- that 25 -- that weak or incompetent leadership could easily
1411 enough circumvent that structure. 2 So, my feeling is that at least one option 3 that should be put on the table when the Commissioner 4 considers his options, is an option that develops 5 protocols that are clear and transparent to the public, 6 about how this works. 7 Q: When you talk about transparency, 8 obviously that's an important hallmark of a democracy in 9 policing; correct? 10 A: Yes. 11 Q: But transparency, in and of itself, 12 doesn't create a set of rules, does it? 13 A: No, I think you need a set of rules 14 to go with it, sure. 15 Q: And in the area of the oversight of 16 the Ontario Provincial Police, would you agree with me 17 that there is a dearth of rules? 18 A: I -- I'm not an expert in police 19 oversight and -- and I mean, I'm not sure how much more 20 help I can give you on the broad question of the 21 organization of the OPP. 22 Q: All right. And backing up a step, 23 when you say you're not an expert on policing matters, 24 are -- are you saying that basically your portfolio as 25 either Assistant Deputy Minister or your years at
1421 MacMillan Binch, or alternatively, your years as a 2 criminal law professor, simply weren't focussed on an 3 expertise or specialty in policing? Is that your point? 4 A: Well I think what I'm trying to say 5 is that -- 6 COMMISSIONER SIDNEY LINDEN: You know, 7 Mr. Falconer, that we have considerable research that we 8 have conducted -- 9 MR. JULIAN FALCONER: Yes. 10 COMMISSIONER SIDNEY LINDEN: -- in this 11 area and Mr. Taman is not the expert that we have been 12 relying on to provide that. 13 MR. JULIAN FALCONER: Fair enough. 14 COMMISSIONER SIDNEY LINDEN: So asking 15 him questions about -- 16 MR. JULIAN FALCONER: I thought -- but I 17 thought it was -- 18 COMMISSIONER SIDNEY LINDEN: -- just 19 the -- 20 MR. JULIAN FALCONER: -- incumbent upon 21 me to put these questions to a witness who yesterday, in 22 a very general way, said to you, Structural changes 23 discouraged, this is about leadership. 24 And I'm asking and querying about 25 leadership, because either something went wrong in this
1431 incident management, and if it's not structure, and it's 2 leadership, or vice versa, then it's an important 3 question to be asked, and that's where I'm going with 4 this. 5 COMMISSIONER SIDNEY LINDEN: Well, I am 6 not sure what the question you are going to ask is, but 7 so far the questions you have been asking have been 8 appropriate, so, I am just not sure how much farther -- 9 MR. JULIAN FALCONER: Okay. Fair enough. 10 COMMISSIONER SIDNEY LINDEN: -- with this 11 theoretical argument we can expect Mr. Taman to be 12 helpful. 13 MR. JULIAN FALCONER: No, that's fair. 14 That's fair. 15 THE WITNESS: But, if I might, Mr. 16 Falconer, just -- just to -- to correct the record: What 17 I did say to the Commissioner was that in my view, before 18 you get to structure, you have leadership, you have 19 policies, and you have implementation, and so those three 20 (3) things are all important to me. 21 And I mean, I think in looking at this 22 situation, the Commissioner might well feel that he has 23 an enough evidence to conclude that there were not 24 sufficiently clear policies in place about who was to 25 speak to who about which issue and in what circumstance,
1441 and to the extent that there were such policies, perhaps 2 they were not clearly or sufficiently implemented. 3 And my advice, to the extent it's 4 relevant, is simply to exhaust those solutions before 5 looking for big complex structural solutions, which in 6 the end often present the same problems. 7 COMMISSIONER SIDNEY LINDEN: I think that 8 has been very helpful, Mr. Taman. 9 10 CONTINUED BY MR. JULIAN FALCONER: 11 Q: It should be raised because Mr. 12 Millar pointed out, and he's quite right, when I talk to 13 you about the structure of the Police Services Act and 14 the line of authority between the Commissioner and 15 Solicitor General, I should, for the record, point out 16 that Section 3.2(j) of the Act, gives the Solicitor 17 General the authority to issue directives and guidelines 18 respecting policy matters in the -- 19 A: Yes. 20 Q: -- conduct of policing. Now I just 21 want to, since I -- for completeness of the record, and - 22 - and at the suggestion of Mr. Millar, I should point 23 that out to you. 24 You have spent some time explaining the 25 distinction between what McCabe may say about a case for
1451 an ex parte injunction and what ultimately a Deputy 2 Minister may ultimately decide to do. 3 What was the case in the end for the ex 4 parte injunction? What was the urgency? 5 COMMISSIONER SIDNEY LINDEN: Well -- 6 MR. JULIAN FALCONER: And he has not 7 testified to that anywhere in the evidence and it's a 8 proper question because with great respect it goes to the 9 issue of the Attorney General's role. And he has not 10 testified. 11 COMMISSIONER SIDNEY LINDEN: Carry on. 12 MR. JULIAN FALCONER: Thank you. 13 14 CONTINUED BY MR. JULIAN FALCONER: 15 Q: What was the urgency? 16 A: In my mind the urgency on the 17 Government view of the thing was that the situation was 18 in danger of worsening, that there were other citizens 19 around the Park who felt they were in danger, that there 20 was a case to be put forward, that this was not an 21 appropriate way of demonstrating or raising a grievance. 22 All of these issues were matters that 23 might be put to a judge and might prove persuasive and in 24 the end did prove -- prove persuasive. 25 Q: You had to make the call because
1461 you've told us you got advice and then you made a call as 2 Deputy Minister? 3 A: Well, I didn't make a call, as I 4 recall it, to seek -- to seek an ex parte injunction. I 5 mean, I believe what happened, as best that I've been 6 able to reconstruct it, is that I had the conversation 7 with Elizabeth Bennett that -- that you describe. I made 8 it clear that I did not think it was good enough to wait 9 until Friday when the Government had asked it to be done 10 immediately. 11 And I believe that what then happened was 12 that the Crown law officers took the job of making it 13 happen and they concluded that they would have to go on 14 an ex parte basis. 15 But just so there's no confusion, if 16 anybody had asked me and said, You understand this means 17 we have to go ex parte, I would have said fine. 18 Q: And the urgency you identified was 19 the perceived feeling of danger by the citizens in the 20 area at the time? 21 A: Well, the -- the urgency I -- I mean 22 I -- I identified, off the top of my head at this moment, 23 is that, as I recall it, the Government considered it a 24 matter of great importance not to tolerate the -- the -- 25 the ongoing -- not to let the incident carry on longer.
1471 The -- the incident commanders thought that the situation 2 was or might be changing on the ground. There were local 3 people who were concerned about the situation, and so on. 4 Again, the -- the real question for me was 5 whether or not there was evidence that might be put 6 before a judge. And I thought there was evidence that 7 might be put before a judge. And in the end the judge 8 was persuaded. 9 But as -- as I also said, the end result 10 of it was pretty much as I'd predicted it was, which was 11 that he was persuaded but said you can't do anything with 12 it until you serve it. So it all came to pretty much 13 where I thought it would. 14 15 (BRIEF PAUSE) 16 17 Q: You'd agree with me that the reason 18 you didn't give advice to seek an ex parte injunction in 19 the first place is that you didn't, in your personal 20 view, see the urgency? 21 You'd agree with that? 22 A: No. Well, I was one (1) of the 23 people who did not think that -- I was one (1) of the 24 people who thought that going slow was the better 25 approach.
1481 Q: And we can interpret and infer from 2 that you didn't see the urgency? 3 A: Well I don't think it's exactly the 4 same question -- 5 COMMISSIONER SIDNEY LINDEN: Well -- 6 A: -- because I -- I -- 7 COMMISSIONER SIDNEY LINDEN: You put it 8 the way you put it and I think I've heard enough on 9 that -- 10 MR. JULIAN FALCONER: Fair enough. No, 11 that's fine. 12 COMMISSIONER SIDNEY LINDEN: -- and I 13 think we should move on. 14 15 CONTINUED BY MR. JULIAN FALCONER: 16 Q: As you answered my questions 17 yesterday about the McChesney paper, dealing specifically 18 with pages 22 and 25, on the chain of command and the 19 involvement of the Commissioner, I --I'd ask you to 20 harken back to your answers about the incident at 21 Ipperwash being an ongoing process, an ongoing incident. 22 Do you remember testifying about that? 23 A: Yes. You -- you took me a bit aback 24 with those questions yesterday just because I wasn't, you 25 know, fully prepared to deal with them at the moment you
1491 raised them. I -- I had a chance to think about it; I 2 read the paper overnight. 3 I -- I don't think this is a chain of 4 command issue, I think this is an issue about what the 5 people in the role ought or ought not to do. 6 Q: Do you recall any conscious decision 7 not to consult with the Commissioner? 8 Do you recall anything like that? 9 A: On my part? 10 Q: Yes. 11 A: Yeah. I thought it was important for 12 me and everybody I could influence, to stay away from the 13 -- from the Commissioner. I thought it was important to 14 continue to maintain the line that they were managing 15 this situation and that we should all behave accordingly. 16 Q: So, in terms of the chain of command 17 you employed, it was to work though Fox because it was 18 better to work through Fox than the Commissioner; is that 19 right? 20 A: Well, I think, the chain of command 21 issue is a little bit different from the chain of comm -- 22 communication issue. As I understood it, Fox was named 23 by the Commissioner to be his person in the Ministry. 24 And I thought that we were authorized to speak to Fox; 25 that's why he was there.
1501 So, I -- I don't know what was said about 2 chain of command. I'm not an expert in chain of command, 3 but I think the problem -- the problem will be the same 4 if somebody had spoken to the Commissioner and he'd gone 5 to the frontline. 6 I mean the -- the issue is -- is, you 7 know, who should you be having the conversation with and 8 who else should hear about it. 9 Q: What you identify as the same 10 problem, in fact, is what's McChesney describes in the 11 paper as the right chain of command which is it's 12 appropriate to approach the Commissioner; isn't that 13 right? 14 A: Yes. Sure. 15 Q: All right. Your simple point is you 16 interpreted or inferred that Fox was given the express 17 delegation by the Commissioner to deal with you in the 18 fashion that he did. 19 A: My understanding was that Fox was the 20 OPP liaison officer and that things that were to be 21 communicated to the OPP were to be communicated through 22 Fox. 23 24 (BRIEF PAUSE) 25
1511 Q: Brief indulgence, I'm just wrapping 2 up my notes. 3 4 (BRIEF PAUSE) 5 6 Q: You testified to Mr. Millar in 7 closing that it was important that government, and this 8 was actually the day before yesterday, it was important 9 that government be accountable in this kind of incidence, 10 correct? 11 A: Yes. 12 Q: Do you include yourself as part of 13 the Government that had to be accountable? 14 A: Absolutely. 15 Q: And so, in saying it's important to 16 be accountable, do you agree that you have to be 17 accountable for the decision to disregard the advice you 18 received from Tim McCabe about ex parte injunctions and 19 direct your people to go into court to seek something you 20 were told you didn't have a case for? 21 You're accountable for that aren't you? 22 A: I don't accept any of the premises on 23 which that's based. I'm -- I'm responsible for the 24 decision I made. I don't accept that I disregarded the 25 advice. I don't accept any of the premises that you
1521 smuggled into that question. 2 Q: You'd also agree that you are 3 accountable for not stepping aside and becoming 4 independent when Mike Harris told you he had a twenty- 5 four (24) hour agenda on the ground to get the Indians 6 out; that you are accountable for that, agreed? 7 A: It's a decision I had to make. I 8 think I had made the right decision that there was no 9 independence issue engaged in that, and I'm responsible 10 for the decision. 11 Q: Those are my questions, thank you. 12 COMMISSIONER SIDNEY LINDEN: Thank you 13 very much, Mr. Falconer. 14 Do you have any questions, Ms. Twohig? 15 MS. KIM TWOHIG: Given the thoroughness 16 with which all the issues have been covered, I have no 17 questions, Mr. Commissioner. 18 COMMISSIONER SIDNEY LINDEN: Thank you, 19 Ms. Twohig. 20 Do you have any -- 21 22 RE-DIRECT EXAMINATION BY MR. DERRY MILLAR: 23 Q: Yeah I have one (1) brief question. 24 I just wanted to explore for a moment, in response to a 25 question yesterday from Mr. Sulman regarding -- he asked
1531 you about a statutory prohibition with respect to 2 government dealing with the police and some of the areas 3 actually that Mr. Falconer has just gone over, you said 4 that there was a convention that the Government should 5 not interfere with police operations, and we've talked 6 about that quite a bit over the last couple of days. 7 And can you assist the Commissioner in 8 what that convention is grounded in; what was the source 9 of that convention? 10 11 (BRIEF PAUSE) 12 13 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 14 Sulman...? 15 MR. DOUGLAS SULMAN: I was very specific 16 in particularizing between -- I didn't call it the 17 Government and I'm just asking My Friend to break that 18 down the same way I did. It isn't the Government. 19 I asked about two (2) specific -- not the 20 Government, but rather Cabinet members and back bench -- 21 COMMISSIONER SIDNEY LINDEN: MPP's. 22 MR. DOUGLAS SULMAN: -- not -- I mean 23 there is a big difference between Cabinet ministers, back 24 benchers and the Government which is a -- 25 COMMISSIONER SIDNEY LINDEN: All right,
1541 can you make -- 2 MR. DERRY MILLAR: Fair enough. I'm 3 simply interested in the convention issue, actually. 4 And -- 5 COMMISSIONER SIDNEY LINDEN: Well, I 6 think what Mr. Sulman is saying is there may be a 7 different convention for Cabinet ministers and for -- for 8 back benchers or for MPP's, there may be. 9 MR. DOUGLAS SULMAN: Civil -- or for 10 civil servants -- 11 COMMISSIONER SIDNEY LINDEN: Or for civil 12 servants. 13 MR. DOUGLAS SULMAN: -- Your Honour, 14 being the Government. 15 16 CONTINUED BY MR. DERRY MILLAR: 17 Q: Okay, well, we've heard the political 18 arm of government, the politicians, the political aides, 19 Mr. Taman, and the convention is it applies to them. 20 I believe that, in response to Mr. Sulman, 21 that you indicated that the convention not to interfere 22 with police operations would apply to a back bencher -- 23 back bench MPP; is that correct? 24 A: I think what I said was that I 25 thought it was unwise for a back bench MPP to be in a
1551 position where he could be mistakenly thought to be a 2 representative government directing the police operation. 3 Q: And that's because of the, as I think 4 you said, the perception? 5 A: Yes. 6 Q: And the perception is -- the 7 perception is an important issue because it -- why do you 8 say the import -- the perception is an important issue? 9 A: In any politically charged situation 10 such as this, I think the right course is for the 11 Government to be completely transparent about what 12 political instructions, if any, it's given and -- and how 13 it's giving them. 14 And I think that if it fails to do that, 15 but at the same time gives rise to the perception that 16 it's directing the operations, then it is both perceived 17 to be violating the convention and it is perceived to be 18 implementing a secret political agenda. 19 Q: And that would have the effect of, in 20 the public's mind, undermining the police and the work of 21 the police in an operational matter? 22 A: Absolutely. 23 Q: And so if I could take the next step 24 and ask you from what your understanding is the source of 25 the convention, with respect to the non-interference;
1561 whether it be by a back bencher or a Cabinet minister or 2 a political aide with the police operation? 3 A: Well, I think there are sources in 4 two (2) senses. I think one is the -- the historic 5 source is in, you know, the English jurisprudence which 6 accords a Chief Constable a good deal of independence. 7 Now these English conventions, I think, 8 have to be treated with a certain amount of caution 9 because we should never forget that in Great Britain, in 10 the United Kingdom, the Lord Chancellor, the Chief 11 Justice, is a member of cabinet. 12 So any people who are able to tolerate the 13 Chief Justice as a member of Cabinet have a tolerance for 14 ambiguity that most civilizations don't have. 15 So, often, these British or English 16 precedents are difficult for us to follow. 17 I think the route of the English view is, 18 as one, you know, would have spoken in -- in, you know, 19 the language of the day, that the Chief Constable knows 20 his men, knows his work and doesn't need to be advised by 21 anybody. 22 Now, the -- the second thing that grows 23 out of that, when you asked about the route of the 24 convention, is that I think that it's also routed in the 25 need for public trust and confidence that law enforcement
1571 is free from partisan political interference, that people 2 are not charged because they're Liberals or NDP'ers or -- 3 or Stony and Kettle Pointers. 4 It -- it is involved in the idea that 5 there should be complete neutrality in law enforcement. 6 And that you get more of that if you just let the police 7 get on with their job and keep the politicians out of it. 8 Q: And that convention has been 9 recognized in the jurisprudence in our country? 10 A: And in our country it's been 11 recognized in jurisprudence and it's found some statutory 12 expression in connection with, for example, the Police 13 Services Act in Ontario where there's a kind of line 14 drawn between what the minister does and what the 15 commissioner does in the RCMP Act, and it's been 16 reflected. 17 Mr. Falconer had me read some things last 18 night that reminded me of the, you know, the McDonald 19 Commission Inquiry and so on. There's lots of 20 expressions of this in our own jurisprudence. 21 Q: Thank you. Those are my questions 22 and I wish to thank you very much for coming and 23 assisting us for the last two and a half (2 1/2) days. 24 Thank you very much. 25 COMMISSIONER SIDNEY LINDEN: Thank you
1581 very much, Mr. Taman. And I understand that you're back 2 overseas now. 3 THE WITNESS: Soon enough. 4 COMMISSIONER SIDNEY LINDEN: Thank you 5 very much for coming and providing us with your evidence. 6 THE WITNESS: Commissioner, thank you for 7 the opportunity and thanks to all of My Friends at the 8 Bar for a vibrant and friendly exchange. Thank you all. 9 MR. DERRY MILLAR: Thank you. 10 Commissioner, if I might just before we break for lunch. 11 Mr. King is our next witness. Mr. King's estimated time 12 of arrival is one o'clock so it might be appropriate if 13 we break to 1:15. We're breaking a little early and 14 normally we would come back at one o'clock but I would 15 ask that we break to 1:15. 16 COMMISSIONER SIDNEY LINDEN: That's fine. 17 MR. DERRY MILLAR: And just for the 18 benefit of everyone, once we're -- Mr. King is finished, 19 we have no more witness for this week. We had -- Jeff 20 Bangs is going to be on on Monday morning followed by Ms. 21 Hutton. And we -- we at one time wanted to see if we 22 could get Mr. McCabe this week but he couldn't come until 23 later. 24 So rather than start a witness -- break 25 that witness, go back to Mr. Bangs, we built in a little
1591 leeway and so once Mr. King's done those are the 2 witnesses we have for this week. 3 COMMISSIONER SIDNEY LINDEN: For this 4 week. So we'll adjourn now until 1:15. Thank you very 5 much. 6 MR. DERRY MILLAR: Thank you, sir. 7 8 (WITNESS STANDS DOWN) 9 10 THE REGISTRAR: This Inquiry stands 11 adjourned until 1:15. 12 13 --- Upon adjourning at 11:45 p.m. 14 --- Upon resuming at 1:21 p.m. 15 16 THE REGISTRAR: This Inquiry is now 17 resumed. Please be seated. 18 COMMISSIONER SIDNEY LINDEN: Good 19 afternoon, Ms. Ferrier. 20 MS. MEGAN FERRIER: Good afternoon, 21 Commissioner. 22 COMMISSIONER SIDNEY LINDEN: Good 23 afternoon. 24 MS. MEGAN FERRIER: Our next witness is 25 Mr. Bill King.
1601 THE REGISTRAR: Good afternoon, Mr. King. 2 MR. WILLIAM KING: Good afternoon. 3 THE REGISTRAR: Do you prefer to swear on 4 the Bible, sir, or affirm? 5 MR. WILLIAM KING: Bible, please. 6 THE REGISTRAR: Very good. It's on your 7 right, there. Please take it in your right hand and 8 could you state your name in full for us please? 9 MR. WILLIAM KING: William Lloyd King. 10 THE REGISTRAR: Thank you. 11 12 WILLIAM LLOYD KING, Sworn 13 14 EXAMINATION-IN-CHIEF BY MS. MEGAN FERRIER: 15 Q: Mr. King, if we could begin by going 16 through a bit of your professional background. You began 17 working for Mr. Michael Harris in 1981? 18 A: That's correct. 19 Q: And in 1981, you ran Mr. Harris' 20 constituency offices in North Bay and Sturgeon Falls? 21 A: Correct. 22 Q: And then in 1983, Mr. Harris was 23 appointed parliamentary assistant to the Minister of the 24 Environment? 25 A: Correct.
1611 Q: And you became Mr. Harris' executive 2 assistant in Toronto? 3 A: Correct. 4 Q: In 1985, Mr. Harris became Minister 5 of Natural Resources, and then slightly later Minister of 6 Energy? 7 A: Yes. 8 Q: And you became his legislative 9 assistant? 10 A: Yes. 11 Q: In 1985 the Government changed, and 12 Mr. Harris became opposition House leader and party 13 critic? 14 A: Yes. 15 Q: And you were again his executive 16 assistant? 17 A: Correct. 18 Q: When -- Mr. Harris then became leader 19 of the Progressive Conservative party in May of 1990 and 20 you remained as his executive assistant? 21 A: Correct. 22 Q: And in those -- I guess, in that role 23 and possibly prior, could you maybe just describe for us 24 a little bit about your role as executive assistant? 25 A: Throughout most of that time, the --
1621 it -- very small staffing levels, so I handled pretty 2 well everything; media relations, correspondence, 3 speeches, in -- constituency enquiries while I was up 4 north, and also those that would -- delegation of Mayors 5 and Reeves that would come to Toronto once I was in 6 Toronto. 7 And I would assist with his ministerial or 8 parliamentary assistant responsibilities in the respect 9 of portfolios. 10 Q: Hmm hmm. And then in June of 1995, 11 when the Progressive Conservative party won the election 12 and formed a government, you became executive assistant 13 to the Premier responsible for MPP liaison; is that 14 correct? 15 A: Correct. Correct. 16 Q: And just to finish off your back -- 17 your background, you left your government position on 18 December 31st of 1997? 19 A: Correct. 20 Q: In September of 1995, if you could 21 tell us, just briefly, who else was on the Premier's 22 staff? 23 A: David Lindsay was Principal 24 Secretary; Mitch Patten, Deputy Principle Secretary; Deb 25 Hutton was responsible for issues management; Paul
1631 Rhodes, I think he was senior media advisor; and Guy 2 Giorno was responsible for policy. 3 And there were others, but I suppose they 4 would be the -- the principle team. 5 Q: Hmm hmm. And in terms of your role 6 of MPP liaison, can you maybe describe for us a bit, 7 about what that entailed. 8 A: Yeah, it was actually at a position 9 that the Premier created to create a -- a vehicle by 10 which the members of Provincial Parliament could deal 11 directly with the Premier's office with any of their 12 constituency concerns or other concerns. 13 And conversely that the Premier's office 14 could share information back to the members of Provincial 15 Parliament about what the Government was up to, what the 16 Premier was up to. 17 Q: So, it was common, if a caucus member 18 wanted to communicate with the Premier, they might copy 19 you on a letter; is that correct? 20 A: Particularly the Government members. 21 There -- there was no requirement that somebody include 22 me or go through me, but it -- it probably served -- 23 probably -- probably gave them better access and to 24 information that they would be seeking. 25 And the same service was extended to the
1641 Opposition Members as well. 2 Q: And in terms of information that you 3 might be disseminating, how would you usually do that 4 or...? 5 A: Well, at caucus meetings. 6 Q: Hmm hmm. 7 A: Or through direct communications, 8 letters, briefing packages, e-mails, faxes; that kind of 9 thing. And there was also an MPP liaison position that 10 was established in each of the different ministerial 11 offices who would perform a similar function directly on 12 behalf of their Minister. 13 And I coordinated that group and their 14 activities so that when there were government wide 15 initiatives, we would work together in terms of everybody 16 disseminating information. 17 Q: And where -- can you tell us where 18 your office was physically located? 19 A: Yes. I forget the room number, but 20 it was immediately -- it was in the main Legislative 21 Building immediately across the hall from the Premier's 22 own office. 23 Q: And we understand there was a daily 24 senior staff briefing with Mr. Harris? 25 A: Correct.
1651 Q: And that would take place at his 2 Whitney Block office? 3 A: Correct. 4 Q: And that was where the rest of his 5 staff had their offices? 6 A: Yes. Well, the -- the bulk of them. 7 There were some support staff in my precinct as well. 8 Q: But the individuals who you mentioned 9 such as David Lindsey, Mitch Patten, Deb Hutton -- 10 A: That's right. 11 Q: -- Paul Rhodes, they would have had 12 offices at the Whitney Block? 13 A: That's right. 14 Q: While you were in the Legislative 15 Building? 16 A: That's right. 17 Q: And did you attend the senior staff 18 briefings? 19 A: I did at the very beginning. And -- 20 and I can't tell you how long I attended, but after a 21 certain period in the summer, I found they weren't of 22 real value to me in -- between my responsibilities so I 23 stopped attending. 24 Q: And when were your regularly 25 scheduled meetings with the Premier, or when did you
1661 generally meet with him? 2 A: I had a long personal relationship 3 with the Premier so I -- I would see him all the time. 4 My one (1) regularly scheduled meeting was in conjunction 5 with weekly caucus meetings. 6 Caucus meetings were held weekly on 7 Tuesday when the House was in session. And I would meet 8 the Premier before caucus at a regular time to brief him 9 on caucus issues and assist him in preparing his notes to 10 -- to speak with caucus. 11 Q: And did you also attend the caucus 12 meetings? 13 A: Yes, I did. 14 Q: Do you recall if there was a caucus 15 meeting on Tuesday, September 5th of 1995? 16 A: I don't recall a meeting that day. I 17 don't believe there was one. 18 19 Q: Do you recall, prior to any caucus 20 meeting, preparing notes for Mr. Harris about Ipperwash? 21 A: No. 22 Q: How did you first become aware of 23 Ipperwash? 24 A: I believe through media reports. 25 Q: And what were those media reports in
1671 relation to if you can recall? 2 A: I think in the first instance, it may 3 have been sometime in the summer with respect to a 4 military base or air base or something of the same name. 5 Q: And how did you become aware of the 6 occupation of Ipperwash Provincial Park? 7 A: Again, through media reports. I -- I 8 think I was up North on the Labour Weekend, and I think I 9 probably heard it on the car radio returning to Toronto. 10 Q: And were the events at Ipperwash part 11 of your responsibility as caucus liaison? 12 A: No. Simply, to the extent that if 13 there were local members affected by it and there was -- 14 and -- and as it turned out that they would contact me 15 for information; that type of thing. 16 17 (BRIEF PAUSE) 18 19 Q: And if you had received questions 20 regarding media you would have referred them to Paul 21 Rhodes -- or from the media? 22 A: Yes. Any time we would be contacted 23 by the media we -- certainly that was handled by Paul 24 Rhodes. We had other media staff as well. 25 Q: Hmm hmm.
1681 A: But I'm not -- are you talking 2 generally or specific to Ipperwash? 3 Q: I guess, generally, first. 4 A: Yeah. I think generally -- I'm 5 hesitating because if it was the North Bay Nugget I -- I 6 would probably deal with it because I ran the Premier's 7 constituency office as well, or I shouldn't say I ran it, 8 I was the link to his Queen's Park office at that point 9 in time and I used to work there so they all knew me so 10 they would call me. 11 But -- and -- and the -- the media office, 12 actually, was adjacent to mine in the legislative 13 building, so while Paul Rhodes kept an office in the 14 Whitney -- the -- there was a number of people that deal 15 with media. 16 Q: Hmm hmm. 17 A: I might have just rapped on the wall 18 and told them to handle it. 19 Q: And if you had received questions 20 that might be categorized as issue questions, you would 21 have referred those to Deb Hutton? 22 A: Yes. 23 Q: Did you have any decision making role 24 in the Government's response to Ipperwash? 25 A: No.
1691 Q: Were you aware that the 2 Interministerial Committee on Aboriginal Issues was 3 meeting about the events at Ipperwash? 4 A: No. 5 Q: How did you think that the Government 6 was responding? 7 A: Well, I was told that the Government 8 was working with the courts to try to receive an 9 injunction that would help equip them to give some legal 10 status to requesting an end to the occupation. 11 Q: And do you recall who told you that? 12 A: Well, I -- I don't know -- I can't 13 recall where I heard it in the first instance. I do know 14 I discussed it with Deb Hutton. 15 Q: Do -- so do you know, then, how the 16 Government made the decision to seek an injunction? 17 A: No. 18 Q: Were you aware of the Premier meeting 19 sometime around midday on September 6th of 1995 to 20 discuss the events at Ipperwash? 21 A: No. 22 Q: Did you speak to the Premier about 23 the events at Ipperwash on September 5th? 24 A: I don't believe I did. 25 Q: Did you speak to the Premier about
1701 the events at Ipperwash on September 6th? 2 A: I don't believe so. 3 Q: Did the Premier speak to you about 4 the events at Ipperwash on either September 5th or 6th? 5 A: No. If -- if you're asking whether 6 he initiated a discussion with me, no. 7 Q: Do you recall being present for any 8 discussions with the Premier relating to Ipperwash on 9 September 5th or 6th? 10 A: I don't recall that, no. 11 Q: Do you know whether -- we understand 12 that Cabinet usually met on Wednesdays? 13 A: Correct. 14 Q: So they would have met on Wednesday, 15 September 6th. 16 Do you know whether Cabinet discussed the 17 events at Ipperwash? 18 A: No. 19 Q: Did you speak to anyone else in the 20 Premier's office about Ipperwash? 21 A: I had a request from Marcel Beaubien, 22 or a query about a news release that he was proposing to 23 issue, so I did contact Paul Rhodes to get some advice on 24 that. 25 I contacted Deb, as I mentioned earlier,
1711 to find out how the Government was handling it so I could 2 convey that back to the member. 3 And I don't recall any other specific 4 conversations, calls that I made to the Premier's office. 5 Q: In terms of your conversation with 6 Deb Hutton, do you recall any more about what she said to 7 you? 8 A: Simply that the Government was 9 looking for a peaceful resolution to it as soon as 10 possible, that public safety was the number 1 focus and 11 the means by which they would -- had been advised to do 12 that or were doing that was through obtaining an 13 injunction. 14 Q: And again, in terms of why you spoke 15 to Deb Hutton, it would have been to get -- 16 A: Yeah, I had, through the course of 17 this and I really can't remember the exact day or time, 18 but through the course of this I had received more than 19 one (1) phone call from Marcel. 20 I'm not sure if it was more than three 21 (3), but I had a couple -- a few phone calls from Marcel 22 and a couple of faxes, some of which sort of passed on 23 feedback he was getting from his constituents. 24 And so I guess as -- as I started 25 receiving those, I made a call to find out so I could
1721 properly answer him. 2 Q: And do you recall whether, in your 3 conversation with Ms. Hutton you -- did you talk -- did 4 you mention the enquiries you'd been receiving from 5 Marcel Beaubien? 6 A: I probably -- yeah, that was the 7 purpose of my call, so I would expect I would have told 8 her why I was calling. 9 Q: All right. Turning now, you've 10 mentioned some faxes that you had received from Mr. 11 Beaubien. If I could take you to Tab number 1 of the 12 binder in front of you. 13 This is Inquiry document 1006195 and it's 14 a fax from Marcel Beaubien to you, Mr. King, dated 15 September 5th of 1995. 16 A: Right. September 6th? I may have 17 the wrong tab here. 18 19 (BRIEF PAUSE) 20 21 A: Okay, "News release, September 5." 22 Q: Yes. 23 A: Okay. 24 Q: Tab 1, yeah. So if you can recall, 25 was this the first fax, then, in the -- that you received
1731 from Mr. Beaubien on September 5th? 2 A: I -- I don't recall the chronological 3 order. I -- I would simply go by the dates that I see 4 before me. 5 Q: Okay. But you recall receiving this 6 fax? 7 A: Yes. 8 Q: And perhaps we could mark that as the 9 next exhibit, Commissioner? 10 THE REGISTRAR: P-953, Your Honour. 11 12 --- EXHIBIT NO. P-953: Document Number 1006195. Fax 13 from Marcel Beaubien to Bill 14 King attaching press release, 15 September 05/'95. 16 17 THE WITNESS: Can I just say that I don't 18 believe there were -- there was writing on it, like this 19 one has, when I received it. I think I received a clean 20 copy so I don't know if I received this particular one. 21 22 CONTINUED BY MS. MEGAN FERRIER: 23 Q: Okay. And just for the record, Mr. 24 King, you're referring to, on page 2 of the fax from Mr. 25 Beaubien to you, there's the document that says, "Press
1741 Release," at the top? 2 A: Right. 3 Q: And certain portions of the text are 4 underlined? 5 A: Right. 6 Q: So you're saying that you didn't see 7 a copy with that underlining? 8 A: My recollection is that it would have 9 just been a clean draft. 10 Q: Okay. So obviously -- 11 A: I could be wrong, but I -- I -- so I 12 -- just for points of clarification. I have subsequently 13 seen about five (5) versions of this with different 14 writings on them, so I don't -- which one came to me -- 15 Q: Yes. 16 A: I think I'd have the original. 17 Q: And so obviously, then, this is not 18 your handwriting? 19 A: I don't believe so. And -- and -- 20 well certainly at the bottom it is not, where there's 21 actual writing. 22 Q: Okay. And, so again, this -- on the 23 first page of the fax from Mr. Beaubien there's a note, 24 it says: 25 "Bill, I'm going to issue the attached
1751 memo to the press at 3:00 p.m. today 2 unless I hear from Queen's Park." 3 A: Right. 4 Q: After you received this fax, what did 5 you do? 6 A: Again, it's hard to recall 7 specifically. My best recollection is that I would have 8 called Paul Rhodes and said Marcel's -- wants to issue 9 this, what do you think? 10 Paul told me what he thought and I would 11 get back to Marcel with those thoughts. 12 Q: So -- 13 A: Presumably before three o'clock. 14 Q: So you did speak to Mr. Beaubien 15 about the press release? 16 A: I'm sure I did. 17 Q: And can you recall what you said to 18 him? 19 A: I certainly recall feeling that this 20 was not going to be constructive and that -- that I 21 believe was the advice I got from Paul Rhodes as well. 22 So I would have conveyed to him that issuing this release 23 would not have been constructive or productive in terms 24 of the Government's desire to end it peacefully, quickly, 25 as nicely as possible.
1761 Q: And can you recall, was there any 2 other discussion in that conversation with Mr. Beaubien 3 about the events at Ipperwash or what was going on there? 4 A: I can't recall any other parts in 5 that conversation. 6 Q: Do you know whether Mr. Beaubien 7 spoke to any others members of the Premier's office? 8 A: About this? 9 Q: Yes, first. 10 A: I don't know. 11 Q: Do you know whether Mr. Beaubien 12 spoke to any other members of the Premier's office, 13 generally, in relation to Ipperwash? 14 A: I don't know, and I would go so far 15 as to say I don't believe so. Because I believe if he 16 did I would have been told, and then I would know. 17 Q: You mentioned that you would have 18 spoken, possibly, to Paul Rhodes about the press release? 19 A: I'm quite sure I called Paul Rhodes 20 about this. 21 Q: Did you speak to the Premier about 22 the press release? 23 A: No. 24 Q: Next, if I could take you to Tab 2 of 25 the binder in front of you. This document --
1771 (BRIEF PAUSE) 2 3 Q: Just back to the question of who else 4 Mr. Beaubien might have spoken to in the Premier's 5 office. You were the person who Mr. Beaubien was suppose 6 to deal with; is that right? 7 A: Again, we always hesitate to say you 8 were suppose to or it's required. It was there to make 9 it easy for everybody to directly communicate because I, 10 for example, knew who did what in the Premier's office. 11 And you have to remember the Government 12 was only elected for three (3) or four (4) months at that 13 point so some of these people had never met anybody in 14 the Premier's office. 15 But I -- I think to the gist of your 16 question was -- most members did because that was the 17 best way to convey information or to receive information. 18 Q: Hmm hmm. Okay. And again, if we 19 could look at Tab 2 of the binder in front of you. This 20 is Inquiry Document Number 1006196 and it's been marked 21 as Exhibit P-952 already. 22 This is a fax again to you Bill King from 23 Marcel Beaubien. The fax line at the top seems to 24 indicate a date of September 6th. 25 A: Right.
1781 Q: And the covering page says: 2 "Re: Ipperwash Provincial Park." 3 A: Right. 4 Q: The second page is a letter to you 5 from Mr. Beaubien. The first sentence says: 6 "I'm attaching a letter from a 7 respectful responsible tax paying law 8 abiding lawyer in my riding." 9 Do you recall receiving this fax from Mr. 10 Beaubien? 11 A: Yes. 12 Q: And do you recall what you did when 13 you received this fax? 14 A: My best recollection is that I read 15 it and filed it. 16 Q: So you wouldn't -- did you pass it 17 along to anyone else in the Premier's office? 18 A: I -- I have no recollection of doing 19 that; I doubt I would have. 20 Q: Did you speak to Mr. Beaubien about 21 this fax? 22 A: I don't recall phoning him about this 23 fax. He may have -- we may have discussed it in some of 24 the phone calls that we did have. But I don't actually 25 recall that specifically either.
1791 Q: And in terms of phone calls with Mr. 2 Beaubien on September 5th or 6th, can you recall anymore 3 about what you may have discussed? 4 A: I mean, generally, he was calling to 5 convey the -- the input and the feedback on the calls and 6 messages that he was receiving from his constituents. 7 So he would be calling me to say, Look, 8 I'm getting a lot of letters, I'm getting a lot of calls, 9 people are asking about this, people are asking about 10 that. 11 He conveyed to me a -- a general sense of 12 frustration in the community that things weren't being 13 resolved and -- and a desire by the community that they 14 be resolved. 15 Q: Did he talk to you at all about what 16 was going on at the Park? Did he talk about the OPP with 17 you? 18 A: Not to -- not in any real detail. I 19 -- I -- he certainly -- I think he may have mentioned to 20 me -- I believe he mentioned to me that he had gone to 21 see the OPP or had been in touch with the OPP locally, 22 but it's not memorable to me because that's what a member 23 would do. 24 I -- I think -- I shouldn't say, "I 25 think." I -- I seem to recall him -- him passing on some
1801 anecdotal information about things that may or may not 2 have been happening that were being told to him in -- in 3 -- as -- as evidence of the community's frustration. 4 Q: And what did that anecdotal 5 information have to do with? 6 A: People were concerned for their 7 safety. I -- I seem to recall there may have been some 8 residential housing or houses near the area where people 9 had to leave their homes during this stage and obviously 10 weren't happy about that and their lives were being 11 disrupted. 12 Things like reports of gunshots and that, 13 I don't know if I read about that in the newspaper or 14 heard it anecdotally through conversations like that. 15 But just a general sense that things were 16 unpleasant and -- and -- and his point which was, People 17 would like to get back to normal. 18 Q: And in terms of, first, his contact 19 with the OPP, that he mentioned to you, did you pass that 20 information along to anyone else? 21 A: I have no recollection of passing 22 that on, no. 23 Q: And then, in terms of the information 24 about concerns of people in the area, did you pass that 25 information along to anyone else?
1811 A: Only in the context of when I made 2 specific calls to seek information. Again, why am I 3 calling? Because Marcel's hearing a few things. So in 4 the -- the conversations around the news release, what 5 the Government's doing vis-a-vis the injunction, other 6 conversations I -- I had with Jeff Bangs at the Ministry 7 of Natural Resources, we -- we would compare what we were 8 hearing, type thing. 9 Q: Did you hear from any other MPP's 10 aside from Marcel Beaubien about Ipperwash? 11 A: I was thinking about that on the 12 drive up today and I -- I don't have any specific 13 recollections. I thought there might be some 14 conversation from -- or correspondence, citizen 15 correspondence that came, maybe through Bob Woods' office 16 London, but if I did, it -- it's in one (1) of these 17 books somewhere so. But I -- I really don't remember. 18 Q: You mentioned Jeff Bangs. If I could 19 ask you to turn to Tab 3 of the binder in front of you? 20 This is part of Inquiry Document 1012311 and it's 21 previously been marked as Exhibit P-732. 22 A: Hmm hmm. 23 24 (BRIEF PAUSE) 25
1821 Q: As part of this document, at the 2 second -- if you look at the second page there's a memo 3 to various -- a list of recipients: Kathryn Hunt, David 4 Moran, Deb Hutton, Dan Newman, Shelly Spiegel, and 5 yourself as the last recipient. This memo's dated 6 September 6th. It's re. Ipperwash Provincial Park and 7 Mr. Bangs says: 8 "In order to keep you apprised of the 9 Ministry of Natural Resource activities 10 concerning Ipperwash Provincial Park, 11 please find attached a two (2) page 12 summary of events of the last few 13 days." 14 Do you recall receiving this memo? 15 A: Vaguely. 16 Q: Do you recall what you did as a 17 result of receiving the memo? 18 A: Not specifically. 19 Q: Did you forward the memo to anyone 20 else? 21 A: I don't believe so. 22 Q: Why would you have received a copy of 23 this memo? 24 A: Well I think because I was in the 25 information dissemination business. And this was -- and
1831 I was getting calls and answering questions so this was 2 to give me information as to what the Government, 3 precisely, was doing. 4 Q: And if you turn just a few pages 5 later in that same document, past the minister's note and 6 then there's -- you'll see a fax cover sheet that's 7 actually to Shelley Spiegel, but then there's the second 8 memo and you're also listed as a recipient of this memo, 9 also from Jeff Bangs, dated September 6th. 10 And he says: 11 "Further to [his] earlier fax regarding 12 Ipperwash Provincial Park, please find 13 the following documents attached." 14 And there's a transcript of Minister 15 Hodgson's news conference, two (2) OPP news releases and 16 a letter to MNR field staff. 17 Do you recall receiving this memo? 18 A: Even more vaguely. 19 Q: And -- 20 A: Like there -- no, not really. 21 Q: So your answer is, with respect to 22 what you would have done with it are the same as with the 23 other memo, and why you would have received it? 24 A: We receive so much stuff like this on 25 so many issues and, generally, it was very informative so
1841 that you could -- you could use it as information. 2 Q: Okay. And just in terms of other 3 communications that you may have had on September 4th, 4 5th or 6th, did you speak with any OPP officer about 5 Ipperwash prior to the shooting of Dudley George? 6 A: No. 7 Q: Did you instruct any OPP officer to 8 take any action with respect to Ipperwash Provincial 9 Park? 10 A: No. 11 Q: Did you instruct any political staff 12 to instruct the police to take any action with respect to 13 Ipperwash Provincial Park? 14 A: No. 15 Q: And did you instruct any civil 16 servant to instruct the police to take any action with 17 respect to Ipperwash Provincial Park? 18 A: No. 19 Q: Did you have any contact with anyone 20 from the Solicitor General's office on September 4th, 5th 21 of 6th of 1995? 22 A: I don't believe I did, and the only 23 reason I hesitate here is I -- it -- I may have phoned 24 Kathryn Hunt at some point, again, in the search for 25 information, but I have no specific recollection of that.
1851 Q: Okay. 2 A: But I don't want to say I didn't, I 3 guess is what I'm trying to say. 4 Q: Hmm hmm. How did you learn of the 5 shooting of Dudley George? 6 A: I received a phone call from Jeff 7 Bangs early in the morning or late at night. I'm not 8 exactly sure when, 1:00 or 2:00 in the morning, informing 9 me of that. 10 Q: And why would Mr. Bangs have 11 telephoned you? 12 A: Well, several reasons. One, as I 13 say, I'm the first point of entry to the Premier's office 14 for most of the staff. 15 Secondly, Jeff and I are long time close 16 personal friends and both have a background of working in 17 the Ministry of Natural Resources and we have a lot in 18 common. 19 And third, I -- I don't know to what 20 extent he had tried to reach others. I've heard some 21 testimony that he had made a number of phone calls so -- 22 and he hadn't reached anybody, so he reached me. 23 Q: In trying to notify the Premier's 24 office? 25 A: Correct.
1861 Q: And what did you do after you 2 received that telephone call? 3 A: I, in turn, phoned David Lindsay and 4 woke him up and told him. 5 Q: And did you phone the Premier or have 6 any contact with the -- 7 A: No. 8 Q: -- Premier at that point? 9 A: No. 10 Q: Do you know what -- okay. Did you do 11 anything at work in relation to the events at Ipperwash 12 on September 7th? 13 A: Is this the next morning? 14 Q: Yes, that morning. 15 A: In the call to David, who, in 16 fairness, was half asleep, I -- he had said to me, Well 17 we certainly need to get together first thing in the 18 morning and asked me to be at Rita Burak's office and I 19 can't remember what time precisely, just to -- so that we 20 could figure out what's going on. 21 So I attended that meeting and -- with 22 Rita Burak and David, and I can't recall if Elaine Todres 23 was there or on the telephone. But I reme -- she seemed 24 to be the source of information to the three (3) of us as 25 to what had happened the night before.
1871 Q: And can you recall what she may have 2 said about what had happened? 3 A: Well in -- in general terms, because 4 information actually, I was going to say surprisingly 5 sparse, but I -- there really wasn't a detailed 6 explanation, at that point, given to us. 7 My general recollection is that the police 8 were responding to some type of situation and -- and then 9 events unfolded while they were doing that. 10 Q: And why -- what would your role have 11 been in attending that meeting or why was -- 12 A: I really think it was just because I 13 was the one who informed David Lindsey, and as I say, he 14 was half asleep and I -- I think he was starting to think 15 ahead, Okay, what do we do? And I was the person on the 16 line and I was probably just there to support him to go 17 from there. 18 I didn't really have any other formal, you 19 know, if there were other meetings about what -- what 20 would flow from that. I -- that was the -- sort of the 21 extent of my involvement. 22 Q: Okay. And in terms of that morning, 23 then, I take it you didn't speak to the Premier about 24 what had happened at Ipperwash? 25 A: No recollection of that at all.
1881 Q: And did you speak to Deb Hutton that 2 morning? 3 A: Again, no recollection. And again, 4 the only reason I hesitate is because I speak to these 5 people all the time. But whether I -- so I -- I would 6 never want to say that there was no, sort of, passing in 7 the hall mention of it. 8 But there were no meetings or specific 9 discussions about it, that I would have attended. 10 Q: Hmm hmm. Staying on September 7th, 11 if I could take you to Tab 4 of the binder in front of 12 you. This is Inquiry Document Number 1006197. And this 13 is a letter to Marcel Beaubien from you, Bill King, it's 14 dated September 7th. 15 Do you recall drafting this letter? 16 A: I do. 17 Q: And what can you tell us about this 18 letter to Mr. Beaubien? 19 A: My recollection is that Marcel had 20 been approached by Chief Bressette with an offer that he 21 would like to meet with Marcel and/or the Premier to 22 attempt to help resolve the situation. 23 And so Marcel conveyed that request to me 24 with a query as to how -- or looking for some advice on 25 how to respond. And I again would have contacted, I
1891 believe, Deb Hutton, as to how -- some advice for me as 2 to -- to pass onto Marcel about how it might be handled. 3 And I think the advice was, as you see 4 here, consistent with the Government's position that they 5 didn't -- that there was any desire to engage in 6 negotiations or appearances of negotiations until such 7 time as the occupation ended, at which point they were 8 quite anxious to sit down and talk. 9 So -- and I think that's exactly what this 10 letter says. 11 Q: Okay. And then turning next to Tab - 12 - oh sorry, before we move on perhaps we could mark this 13 document as the next exhibit, Commissioner. 14 THE REGISTRAR: P-954, Your Honour. 15 16 ---EXHIBIT NO. P-954: Document Number 1006197. 17 Faxed letter from Bill King 18 to Marcel Beaubien re. 19 suggested response, September 20 07/'95. 21 22 THE WITNESS: And this was not Marcel's 23 letter. This was my suggested wording for him to use in 24 his response to the Chief. 25
1901 CONTINUED BY MS. MEGAN FERRIER: 2 Q: Yes. And then at Tab 5 there's 3 Inquiry Document Number 1006198. And this is a fax to 4 you from Marcel Beaubien's office. And the date in the 5 fax line at the top is September 7th of 1995. 6 A: Right. 7 Q: Do you recall receiving this fax? 8 A: I -- I'm sure I've seen. 9 Q: I guess to make that more clear if we 10 turn to the second page of -- actually I think you were 11 maybe on the second page. Sorry, there's a fax cover 12 sheet -- 13 A: Oh. 14 Q: -- and then there's a letter dated 15 September 7th to Dennis Martel from Marcel Beaubien. 16 A: Right. 17 Q: So you recall seeing this letter from 18 Mr. Beaubien to Mr. Martel? 19 A: It's so hard to recall. I -- I know 20 I've seen it, and I've seen it many times in the last ten 21 (10) years, so it gets confusing. And I think it 22 actually comes from my files so I'm sure I've seen it and 23 I'm sure I saw it at the time. 24 Q: Okay. And perhaps, Commissioner, we 25 could mark this document as the next exhibit?
1911 THE REGISTRAR: P-955, Your Honour. 2 3 --- EXHIBIT NO. P-955: Document Number 1006198. Fax 4 from Marcel Beaubien to Bill 5 King with attachments: 1. 6 Letter from Marcel Beaubien 7 to Dennis Martel. 2. Sarnia 8 Observer Article, Queen's 9 Park to take Hard Line 10 Against Occupiers: Beaubien 11 3. Sarnia Observer 12 Editorial, Occupation of 13 Ipperwash Park Causes 14 Concern, September 07/'95. 15 16 CONTINUED BY MS. MEGAN FERRIER: 17 Q: And if we look, just briefly, at the 18 letter to Dennis Martel I guess you'd agree that it seems 19 to draw on the wording that you had suggested to Mr. 20 Beaubien in the draft response to Chief Bressette? 21 A: Yes, that's what I would have looked 22 for at the time to see that it compared. 23 Q: Okay. The third and fourth pages of 24 the fax are newspaper items; an article entitled, Queen's 25 Park to take Hard Line Against Park Occupiers: Beaubien.
1921 Do you have any recollection of seeing 2 that clipping? 3 A: Not specifically. 4 Q: And again, in terms of this fax, what 5 would you -- what did you do upon receiving this fax or 6 what -- 7 A: As I say I would have looked to see - 8 - because I'd asked him to send me back the wording, I 9 would have looked to see that it compared with my 10 suggested wording and would have filed it. 11 Q: Hmm hmm. So, you wouldn't have 12 passed it along to anyone else in the Premier's office? 13 Okay. 14 A: No, I don't believe I would have. 15 Q: Next, if I could take you to Tab 6 of 16 the binder in front you. This is, again, a fax to you 17 from Marcel Beaubien's office. The date at the top is 18 September 8th of 1995. The written note on the fax cover 19 sheet says: 20 "A letter of support for Premier Harris 21 which we were asked to forward to him. 22 Thanks." 23 Do you recall receiving this fax? 24 A: In the same way that I recall 25 receiving media reports sent to me and stuff like that;
1931 very, very, vaguely. 2 Q: And perhaps, Commissioner, if we 3 could mark this fax as the next exhibit? 4 THE REGISTRAR: P-956, Your Honour. 5 6 --- EXHIBIT NO. P-956: Document Number 1006200. Fax 7 from Marcel Beaubien's office 8 to Bill King re. Letter of 9 Support, September 08/'95. 10 11 THE WITNESS: If I could just say, so 12 that people understand, I think one (1) of the reasons I 13 even vaguely remember it is a lot of these came from my 14 files when we chose to release them publicly. So, I 15 would have gone back through them and re-read them. 16 And these -- these deletions are because 17 of privacy rules involving public correspondence and we 18 had to be -- and I had to be very, very careful that we 19 didn't break any of those rules when we released them 20 publicly in response to Freedom of Information requests. 21 So, I -- I don't know if I remember them 22 because of that, which happened a year or two (2) later, 23 or at the time that they were faxed in. I guess that's 24 what I'm trying to be clear on. 25
1941 CONTINUED BY MS. MEGAN FERRIER: 2 Q: Yeah. And I know you've said you 3 don't specifically remember this, what -- but what would 4 you have done with something like this, a letter of 5 support? 6 A: Well, it came from my files so I -- 7 Q: You would of -- 8 A: -- probably filed it. 9 Q: You would have put it in the file? 10 A: Yeah. 11 Q: Okay. Next, if I could take you to 12 Tab 8 of -- 13 A: Yes. 14 Q: -- the binder? This is Inquiry 15 Document Number 12000079. 16 17 (BRIEF PAUSE) 18 19 Q: Oh, sorry, I meant Tab 7 of the 20 binder in front of you. Sorry about that. 21 A: I was already there. 22 Q: Okay. I think I said 8. 23 A: I thought it was 8, too. 24 Q: Okay. This is a fax to all PC caucus 25 members from you dated September 8th, 1995, and do you
1951 recall this fax? 2 A: I do now. 3 Q: It wouldn't necessarily stand out for 4 you? 5 A: No. 6 Q: That -- right. 7 A: No, I'm shaking my head. No. 8 Q: Okay. 9 A: I -- no. 10 Q: Commissioner, if we could mark this 11 as the next exhibit. 12 THE REGISTRAR: P-957, Your Honour. 13 14 --- EXHIBIT NO. P-957: Document Number 12000079. 15 Fax from Bill King to all PC 16 Caucus members September 17 08/'95. 18 19 CONTINUED BY MS. MEGAN FERRIER: 20 Q: The fax attaches transcripts of the 21 Premier's comments to the media regarding Ipperwash and 22 the Quebec referendum question. The portion referring to 23 Ipperwash is at the last two (2) pages of the document. 24 Do you recall who provided you with the 25 transcript for distribution?
1961 A: No. 2 Q: Do you recall whether you received 3 any enquiries from caucus members as a result of sending 4 the fax? 5 A: No. 6 Q: Okay. Next, if we could turn to Tab 7 8 of the binder, and this is Inquiry Document 1006199. 8 This is a handwritten memo to you from Marcel Beaubien. 9 Do you recall receiving this memo? 10 A: Yes. 11 Q: If we could mark this document as the 12 next exhibit, Commissioner? 13 THE REGISTRAR: P-958, Your Honour. 14 15 --- EXHIBIT NO. P-958: Document Number 1006199. 16 Handwritten note from Marcel 17 Beaubien to Bill King 18 September 11/'95. 19 20 CONTINUED BY MS. MEGAN FERRIER: 21 Q: And what can you tell us about your 22 recollection of this memo? 23 A: Just that I received it and he was 24 passing on again some information from his community. I 25 would have read it.
1971 Q: And -- 2 A: I have no recollection of discussing 3 it with him afterwards, if that's what you're asking. 4 Q: Yes. And in terms of -- he says, at 5 point 1, it says: 6 "Constituents in this area are now 7 having, or starting to change their 8 position from one which was very 9 supportive to one of lack of trust due 10 to the following..." 11 And then it sets out certain things. At 12 point A, it says, I believe, 13 "Injunction not renewed. Police 14 decision not well perceived by public." 15 Did you know anything about who made the 16 decision not to renew the injunction? 17 A: No, I didn't know it wasn't. 18 Q: And in terms of the sentence of point 19 2 towards the bottom of the page, he writes: 20 "I can take the heat but will not be 21 the fall guy." 22 What did you understand that point to 23 mean? 24 A: Two (2) things. Marcel tended to 25 talk in colourful language. Secondly, that's his -- I'd
1981 interpreted that as his way of saying, as most members 2 do, when push comes to shove I'm on the side of my 3 constituents. 4 Q: And do you recall doing anything as a 5 result of receiving this memo, this note from him? 6 A: No. 7 Q: Did you respond to him? 8 A: I don't believe so. 9 Q: And in terms of working through the 10 timeline, this note is dated September 11th, 1995. And I 11 think you were aware of Ovide Mercredi attending to meet 12 with the Premier around the 12th or the 13th? 13 A: Correct. 14 Q: And what was your awareness of that 15 meeting? 16 A: That a request had come in from him 17 to meet; some general discussion in the Premier's office 18 about whether the Premier should meet or not meet, and -- 19 and a feeling that it probably wouldn't be constructive 20 either. 21 Q: But, you -- and you didn't 22 participate in a meeting that Mr. Mercredi had with the 23 Premier? 24 A: No, not withstanding his request 25 being turned down, he showed up anyway at Queen's Park at
1991 the Legislative Building effectively putting the Premier 2 in a position where he had no choice and had to meet. 3 So, the Premier did meet him and it just 4 so happened to be on an occasion where I was accompanying 5 the Premier, I can't remember if it was to or from a 6 caucus meeting. 7 And of course Mr. Mercredi brings all the 8 TV cameras and the media and everybody with him so I mean 9 you can't even physically pass him in the hall. So, they 10 went into a room and they met and I stayed outside with 11 the media. 12 Q: And as you said you just happened to 13 be with the Premier at that moment, but -- 14 A: Correct 15 Q: -- it wasn't the result of any 16 involvement in what was going on with Ipperwash or 17 responding to it? 18 A: No. We were -- it had to do with -- 19 we were either coming or going to a caucus meeting in the 20 Legislative Building. 21 Q: Okay. Then next, if we could turn to 22 Tab 9 of the binder. This is a fax from Marcel 23 Beaubien's office to you, dated September 19th of 1995. 24 The note on the front says, "More articles for your 25 reading pleasure". And then there are about fourt --
2001 there are fourteen (14) pages and -- of clipping. 2 Do you recall receiving this fax? 3 A: Yeah. I -- in -- in the same general 4 way. 5 Q: And perhaps -- 6 A: I -- I remember there were followup - 7 - followup things with clippings and stuff like that 8 after, yeah. 9 Q: Coming from Mr. Beaubien to you? 10 A: Yes. And this -- this looks like one 11 of them. 12 Q: And your -- as a result of receiving 13 this, you would have filed it? 14 A: Yeah. This one's a little longer, so 15 I can't say truthfully that I read the whole thing. But 16 I -- it looks like it comes from my files. 17 Q: And you wouldn't have passed it along 18 to anyone else in the Premier's office? 19 A: I doubt it. 20 Q: And perhaps, Commissioner, we can 21 mark this fax as the next exhibit. 22 THE REGISTRAR: P-959, Your honour. 23 24 --- EXHIBIT NO. P-959: Document Number 1006201. Fax 25 from Marcel Beaubien to Bill
2011 King re. More articles with 2 attachments September 19/'95. 3 4 CONTINUED BY MR. MEGAN FERRIER: 5 Q: Having gone through your evidence 6 about your contact with Mr. Beaubien, I'd like to take 7 you just briefly to a couple of examples of news reports 8 that came out in November of 1996. 9 The first one that we might look at is at 10 Tab 10 of the binder in front of you. This is Inquiry 11 Document Number 3000370 and it's already been marked as 12 Exhibit 13 P-906. 14 It's an article from the Toronto Star 15 dated November 6th of 1996. The headline is, "MPP Admits 16 He Tipped Police to Tory Fears About Ipperwash". 17 And if we could just look at in the middle 18 column starting from about half way down I'll just read 19 starting with: 20 "Beaubien also seemed to contradict 21 Harris' statements in the Legislature 22 that he was unaware of any police 23 buildup at the Park before the 24 shooting. 25 It was quite obvious to anyone in the
2021 area that there was an OPP buildup 2 because there were more cruisers, he 3 said. 4 Sure, this is something I would pass 5 onto senior aide -- to senior Harris 6 aide, Bill King. 7 Beaubien the Member for Lambton riding 8 said he assumed that King would have 9 passed on his observations to the 10 Premier." 11 And I guess just looking at -- at those 12 comments, first of all, do you recall Mr. Beaubien 13 telling you that there was an OPP buildup? 14 A: Not specifically. 15 Q: And so then, I take it you do not 16 recall passing that information along to the Premier? 17 A: Not at all. 18 Q: Along the same lines, if we just turn 19 over to Tab 11, and this is Inquiry -- part of Inquiry 20 Document Number 1004308. It's pages -- actually pages 9 21 and 11 of that Inquiry document which actually contains 22 thirteen (13) pages. But, this is a Globe And Mail 23 article dated November 6th, of 1996, and the title is, 24 Tory MPP Contradicts Harris on Ipperwash. 25 And it's, again, along the same lines, if
2031 you look at the third column on the first page halfway 2 down it says: 3 "During his comments to reporters Mr. 4 Beaubien first denied witnessing the 5 buildup then almost immediately changed 6 his position. He said he gave the 7 information to Bill King, the Premier's 8 executive assistant for caucus 9 liaison." 10 So, again, and your answer would be the 11 same with respect to that? I mean, Mr. Beaubien is 12 saying the same thing and you don't specifically recall 13 him talking about a buildup? 14 A: No, I don't. I vividly recall this 15 article, however I have -- I have no specific 16 recollection of him passing on details. I mean, he -- 17 they make references there's -- that the police are here. 18 I'm not even sure actually what it meant by a 'buildup'. 19 If it meant that they were marshalling somewhere then, 20 absolutely, he never passed that on. 21 If he said they've set up and they're at 22 the scene and they're, you know, managing the situation, 23 well I just assumed everybody knew that. 24 Q: You said though that you vividly 25 recall this article; can you tell us why that was?
2041 A: Well, because on a very personal 2 level it was some comments that are attributed to me in 3 this article that resulted in me being wrongly accused of 4 certain things and being added to a lawsuit or a civil 5 lawsuit against me. 6 Q: And in terms of those comments, if we 7 look at the second page of the article, in the second 8 column, and I think I'll do the same thing, I'll just 9 read what it says there and then if you'd like to comment 10 from your point of view on the quotes attributed to you? 11 A: Yeah. 12 Q: Again in the second column: 13 "Mr. King yesterday confirmed that he 14 had received information from Mr. 15 Beaubien on the Ipperwash dispute. 16 I'm sure he's telling you the truth, 17 Mr. King said, adding, I don't discuss 18 with reporters my dealings with Caucus 19 members, but certainly you can talk to 20 Marcel and he's free to talk to you 21 about his contacts. Mr. King also 22 indicated that he had spoken to the 23 Premier about the occupation at the 24 time although he couldn't provide 25 details on what they talked about. I
2051 can't imagine that I haven't had some 2 conversations with him about Ipperwash, 3 Mr. King said, referring to the 4 Premier." 5 So, just again looking -- 6 A: Yeah. And there's two (2) aspects 7 here and again it's -- it's a vivid recollection because 8 I believe this is the reason I was added to the civil 9 suit. 10 The first, and I should have known better, 11 I'm a former journalist myself. I'm journalist trained 12 so I know about techniques for baiting people. 13 The quotes that are in there are 100 14 percent accurate. Those are my words. The context is 15 not accurate and the context is, basically, he was trying 16 to say Beaubien said this, Harris said that, so if Harris 17 is telling the truth then are you telling me Marcel is a 18 liar? 19 And so I would have said, I'm sure he's 20 telling the truth. I'm not about to call Marcel a liar 21 and I invited the reporter to go talk to Marcel. But, it 22 comes out as though I'm contradicting the Premier, blah, 23 blah, blah. 24 Secondly, Well, were you passing on 25 information to the Premier about Ipperwash? No, I
2061 wasn't. Well, you've known him for twenty (20) years, 2 you deal with him every day, you talk to him every day. 3 You're telling me you never mentioned Ipperwash? 4 Now -- and this is almost a year and a 5 half later too, so he's bringing it right up to now. And 6 I said I can't imagine that in all that time we didn't 7 have some conversation. So, again I took the bait and it 8 was used to suggest that I was passing on these -- 9 whatever Marcel was passing onto me. 10 So -- and I get upset when I think back on 11 it because I -- I shouldn't have fallen for the bait and 12 I did. So, quote for quote, accurate words, let me 13 understand the context. I feel like I got set up by the 14 newspaper. 15 Q: Okay. Thank you for explaining that 16 for us. 17 Going back to September of 1995 and 18 leaving the civil litigation aside, do you recall any 19 further involvement with the Ipperwash file? 20 21 (BRIEF PAUSE) 22 23 Q: Any -- 24 A: Well, two (2), I guess, broad things. 25 One (1), the opposition, of course, was raising it on a
2071 regular basis. 2 I want to swat that fly. 3 And so I -- I guess in -- so they would 4 ask questions about Marcel and the Premier Harris and 5 things like that, so the extent that I was on the Marcel 6 end of things, I was involved but I wasn't really doing 7 anything, just, like, check our records or files and that 8 type of thing. 9 But, specifically, on that, the -- the 10 opposition Liberals made all kinds of freedom of 11 information requests which I referred to earlier and -- 12 and there were all these issues about privilege and I 13 mean, for one thing, I was employed by the Legislative 14 Assembly of Ontario, so I'm not even FYI-able. 15 I'm actually -- my position is exempt from 16 the Act. But we believed in transparency and being 17 accountable so we provided information, even though there 18 was no legal requirement to do that. 19 Having said that, we wanted to be careful 20 that we didn't inadvertently break the Act by revealing, 21 for example, private citizens who write in, you need 22 their permissions and such and such and such and such. 23 And it also raised an interesting question 24 that I'm sure the current Liberal Government is dealing 25 with now, which is, are communications between the
2081 Premier and his caucus members subject to the Act. And I 2 think they're going through that and finding out right 3 now that maybe they established a precedent. 4 So to that extent I was involved. 5 And of course, then I was -- a process 6 server showed up at my office one day and -- and sued me. 7 So I was involved through that as well, obviously. 8 Q: Okay. As a housekeeping matter, 9 Commissioner, if we could mark the article at Tab 11 as 10 the next exhibit. 11 THE REGISTRAR: P-960, Your Honour. 12 13 --- EXHIBIT NO. P-960: Document Number 1004308. 14 Toronto Globe & Mail article 15 "Tory MPP" contradicts Harris 16 on Ipperwash November 06/'96. 17 18 MS. MEGAN FERRIER: Commissioner, those 19 are our questions for now. Perhaps it would be 20 appropriate to canvass the parties? 21 COMMISSIONER SIDNEY LINDEN: Yes, fine. 22 You estimated an hour and you took almost exactly that. 23 Does anybody have any questions for this 24 witness? 25
2091 (BRIEF PAUSE) 2 3 COMMISSIONER SIDNEY LINDEN: Well, let's 4 see if we can... 5 Ms. McAleer...? 6 MS. JENNIFER MCALEER: Two (2) minutes, 7 Your Honour. 8 COMMISSIONER SIDNEY LINDEN: We can 9 handle that. 10 Is Ms. Horvat here? No, Ms. Horvat? 11 Yes, Ms. Melissa...? 12 MS. MELISSA PANJER: About five (5) 13 minutes. 14 COMMISSIONER SIDNEY LINDEN: Five (5) 15 minutes. 16 Mr. Sulman...? 17 MR. DOUGLAS SULMAN: Twenty (20) minutes 18 to half an hour. 19 COMMISSIONER SIDNEY LINDEN: Ms. Perschy 20 is not on her feet. 21 Ms. Tuck-Jackson's not on her feet. 22 Ms. Twohig...? 23 MS. KIM TWOHIG: Five (5) to ten (10) 24 minutes. Five (5) to ten (10) minutes. 25 COMMISSIONER SIDNEY LINDEN: Ms.
2101 Clermont's not on her feet. 2 Mr. Zbogar...? 3 MR. VILKO ZBOGAR: Probably an hour and a 4 half to two (2) hours. 5 I'll see if I can get it down. 6 COMMISSIONER SIDNEY LINDEN: You don't 7 want to think about that a little bit? 8 MR. VILKO ZBOGAR: Unfortunately there's 9 a lot of things that haven't been covered. 10 COMMISSIONER SIDNEY LINDEN: Mr. 11 Rosenthal...? 12 MR. PETER ROSENTHAL: About half an hour. 13 COMMISSIONER SIDNEY LINDEN: Mr. Ross...? 14 MR. ANTHONY ROSS: Ten (10) minutes at 15 best. 16 MS. MEGAN FERRIER: Ten (10) minutes. 17 COMMISSIONER SIDNEY LINDEN: Mr. 18 Horner...? 19 MR. MATTHEW HORNER: About ten (10) 20 minutes. 21 COMMISSIONER SIDNEY LINDEN: Okay. Let's 22 take a short afternoon break now and we'll see if it's 23 possible to complete this this afternoon. If not, we'll 24 have to come back tomorrow. 25 THE REGISTRAR: This Inquiry will recess
2111 for fifteen (15) minutes. 2 3 --- Upon recessing at 2:26 p.m. 4 --- Upon resuming at 2:42 p.m. 5 6 THE REGISTRAR: This Inquiry is now 7 resumed. Please be seated. 8 9 CROSS-EXAMINATION BY MS. JENNIFER MCALEER: 10 Q: Good afternoon, Mr. King. 11 A: Hello. 12 Q: My name is Jennifer McAleer and one 13 of the lawyers who's acting for the former Premier Mike 14 Harris. 15 A: Right. 16 Q: And I just have a couple of very 17 quick questions for you. As far as you are aware, over 18 the course of the events on September 4th, 5th and 6th, 19 did the Premier ever having any direct communication with 20 Marcel Beaubien? 21 A: As far as I'm aware, no. 22 Q: And during your conversation with Mr. 23 Beaubien, did you, at any point, relay to Mr. Beaubien 24 that the Premier was feeling uptight about the situation 25 at Ipperwash?
2121 A: I have no recollection of that. 2 Q: And do you recall, at any point, 3 expressing to Mr. Beaubien what the Premier's personal 4 views or comments may have been on the Ipperwash 5 situation? 6 A: No. 7 Q: Thank you. Those are all my 8 questions. 9 COMMISSIONER SIDNEY LINDEN: Thank you. 10 Ms. Melissa...? I'm sorry I thought -- who goes next? 11 No one's cross-examining on behalf of Mr. Harnick or Mr. 12 Runciman or Mr. Hodgson. 13 So I believe it's Mr. Sulman. 14 MR. DOUGLAS SULMAN: Good afternoon, Mr. 15 Commissioner. 16 COMMISSIONER SIDNEY LINDEN: Good 17 afternoon. 18 19 CROSS-EXAMINATION BY MR. DOUGLAS SULMAN: 20 Q: And good afternoon, Mr. King. 21 A: Good afternoon. 22 Q: As you're aware I represent Marcel 23 Beaubien who was the MPP back in 1995 for the riding 24 which encompassed Ipperwash Park. 25 Now you've told us that there was in place
2131 in 1995 September, a system whereby the caucus members 2 knew that if they wished to communicate with the Premier, 3 then they were to do so through your office. 4 A: Yes. 5 Q: And your role as Executive Assistant 6 Responsible for Caucus Liaison was, I think you described 7 as, the first point of entry or in -- in -- maybe in my 8 colloquial terms, would be the gatekeeper for the 9 Premier. 10 Is that a fair way to put it? 11 A: I don't like the term "gatekeeper." 12 I would say one-stop shopping. 13 Q: I see. Others might call it the 14 gatekeeper but, one-stop shopping. Fair enough. 15 But they knew that was the first point of 16 entry -- 17 A: Sure. 18 Q: -- to the Premier, correct? 19 A: Yes. 20 Q: Okay. And to the best of your 21 knowledge and belief, did Mr. Beaubien follow that 22 procedure of going through your office in the days before 23 and shortly after September 6th, 1995? 24 A: Yes. 25 Q: In the faxes that we have put in
2141 evidence here by the Commission Counsel, I trust that 2 those, that Mr. Beaubien, when communicating with the 3 Premier's office -- communicating with the Premier, went 4 through you and the Premier's office? 5 A: Yes. To the extent that I 6 represented the Premier for those -- receiving that 7 information. 8 Q: Yes. Okay. And if someone were to 9 suggest that, in the days between September 4th and 10 September 7th, that Mr. Beaubien spoke directly to the 11 Premier rather than you or the Premier's office, what 12 would your reaction to that be? 13 A: Sorry. I -- I blanked out when you 14 asked that, sorry. 15 Q: I'm sorry, I do that to people on 16 occasion. 17 If someone were to suggest that in the 18 days between September and September 7, 1995, Mr. 19 Beaubien spoke directly to the Premier rather than the 20 Premier's office, what would you reaction to that be? 21 A: If someone suggested to me that 22 Marcel spoke directly to the Premier? 23 Q: Rather than through the Premier's -- 24 than the Premier's office? 25 A: Well then I would have raised my
2151 eyebrows, because I would not have been aware that he 2 spoke directly to the Premier. 3 Q: And to the best of your knowledge and 4 belief, I believe you told us, that didn't happen? 5 A: Correct. 6 Q: Okay. And that's speaking to him? 7 A: Yes. 8 Q: If someone were to suggest that he 9 had some written communication -- now, 1995, my 10 recollection is that's before e-mails were in the use 11 that they are now. 12 A: Certainly. There -- there was some 13 use. It was just beginning. 14 Q: It was limited at Queen's Park as I - 15 - as I recall. 16 A: Many people couldn't type. 17 Q: And those that could didn't have 18 computers? 19 A: Correct. 20 Q: Okay. But with regard then to 21 written communication it was principally faxes and 22 letters? 23 A: Yes. 24 Q: And if someone were to suggest to you 25 the same thing, that in the days between September 4th
2161 and September 7th Mr. Beaubien communicated in a written 2 form directly with the Premier, rather than through you 3 in the Premier's office, would your -- what would your 4 reaction be? 5 A: The same. 6 Q: And that would be, to the best of 7 your knowledge and belief, that communication, in written 8 form between the Premier and Mr. Beaubien directly, 9 didn't happen? 10 A: The Premier didn't have a fax machine 11 on his desk, no -- it has to go through a staff member 12 and I was set up to receive that information. 13 Q: Right. And that's a system that had 14 been -- been put in place? 15 A: Yes. 16 Q: Okay. And you're quite confident in 17 that view? 18 A: It would be news to me if it wasn't 19 that way. 20 Q: Okay. And in the ten (10) years that 21 have passed you haven't received that news; nothing's 22 changed your view? 23 A: No. And -- and we're talking 24 specifically about Ipperwash? 25 Q: Yes.
2171 A: Lots of members have sent 2 correspondence to other ministers without my knowledge, 3 and that's fine, or maybe to the Premier's office and 4 somebody forgot to send it to me. But as best to my 5 knowledge, about Ipperwash, everything that Marcel 6 communicated came through my office. 7 Q: Right. And that's all we're talking 8 about in that short time frame, September 4th to 9 September 7th? 10 A: Yes. 11 Q: Thank you. Now, I want to talk to 12 you about another -- another issue, and that is, you've 13 told us about your experience not only as the executive 14 assistant to the Premier, but also a person, at one (1) 15 point, running, or in charge of the constituency office 16 in North Bay, and working with MPP's as back benchers and 17 as Cabinet ministers? 18 A: Correct. 19 Q: Okay. So you've got a pretty broad 20 range of experience and have some knowledge of what an 21 MPP does? 22 A: Very much. 23 Q: Okay. And -- and, as such, you 24 certainly had an understanding of their role; that is the 25 role of a back bench MPP?
2181 A: Absolutely. 2 Q: And I suggest to you that the role of 3 a back bench MPP, other than his or her limited role in 4 Question Period, and their role in -- in committees from 5 time to time, the principle role was to communicate the 6 concerns and views of their constituents to the 7 Government at Queen's Park, and likewise, to communicate 8 and convey the policies and views of the Government back 9 to their constituents. 10 Is that a fair way to describe their role? 11 A: Yes, it is. 12 Q: And -- and that's really what their 13 job is, right? 14 A: Yes, I can actually tell you that the 15 Premier's first comments to this Caucus, at which Marcel 16 was a member, was that he advised Caucus that they had 17 three (3) responsibilities: And number 1 was to the -- 18 to their families, number 2 was to their constituents, 19 and number 3 was their legislative responsibilities 20 outside the constituency. 21 Q: So, obviously, other than the family, 22 the most important responsibility is the job as I 23 described it? 24 A: Absolutely. 25 Q: Okay. And, in fact, MPP's aren't
2191 just elected to office, they're sworn into office, right? 2 A: Yes. 3 Q: And they have a duty to represent 4 their constituents? 5 A: Yes. 6 Q: That's their job? 7 A: Yes. 8 Q: And in providing information from his 9 constituents to you, in the days of September 4th to 10 September 7th, and seeking information about the 11 Government views and policies in order to communicate to 12 his constituents, that's what Mr. Beaubien was doing. 13 He was acting within his role and his job 14 as a back bench MPP, right? 15 A: I agree with that, yes. 16 Q: And, in fact, he was performing his 17 sworn duty at that point? 18 A: Yes. 19 Q: In your experience, an MPP speaking 20 with local OPP officers was, in fact, also a normal 21 situation? 22 A: Particularly in smaller communities 23 where people see each other every day, all the time. 24 Q: And that's quite usual in the north 25 or in the east or in -- in the southwest where there are
2201 rural -- smaller rural communities, correct? 2 A: Yes. 3 Q: And particularly -- it would be 4 particularly normal where an MPP is getting constituency 5 calls about policing and -- I think you said earlier, 6 correct? Particularly, that would be a situation where 7 they're getting the calls, about policing? 8 A: Yeah. I mean the caveat is always 9 that you would never interfere in a -- in a specific 10 situation on behalf of a -- an individual constituent, 11 for example, a speeding ticket. 12 But when it came to community issues, and 13 if the police were sources of information; for example, 14 in my briefing book people gave me copies of news 15 releases that the police put out and they put a phone 16 number and say call us if you need more information, so, 17 yeah. 18 Q: Exactly. And when, as you said 19 earlier, an OPP officer in a local situation in areas of 20 community concern, talking to a police officer, an OPP 21 officer, by an MPP, that's what you would, in fact, 22 expect an MPP to do. 23 Those were your earlier words, right? 24 A: Yes. 25 Q: Okay. And the key is that as an MPP
2211 it's the MPP's job to represent the concerns of the 2 constituents when they're talking to an OPP officer, but 3 not to speak on behalf of the Government, right? 4 A: Yeah. Unless, of course, if they 5 were a cabinet minister and had those responsibilities -- 6 Q: Right. 7 A: -- additionally but, yeah, typically 8 they're there to advocate for their constituency in those 9 situations. 10 Q: And I was solely restricting that to 11 a back bench MPP. 12 A: Yeah, when you say communit -- for -- 13 he may be -- if I had said to him, Here's the 14 Government's position on this, Marcel, and he was 15 communicating that to his constituents, that's -- would 16 be another part of his responsibility. 17 Q: Right. Okay. I'd like to turn to 18 another area now if we could. 19 You weren't involved in the -- any of the 20 decisions about how the Government was handling the 21 Ipperwash situation in September 4th -- of September 4th 22 to September 7th, 1995, right? 23 A: No, I wasn't. 24 Q: That simply wasn't part of your 25 responsibility?
2221 A: No. 2 Q: But once you became aware of the 3 situation, your role was knowing what was going on to the 4 extent that you -- you had to know what the Government's 5 position was, in order that you could communicate to 6 people? 7 A: Yes. 8 Q: Okay. And so that's, in effect, what 9 you were doing when you were speaking to Mr. Beaubien or 10 responding to faxes and letters, correct? 11 A: Yes. 12 Q: And as I understand the faxes that 13 we've had put in evidence by Commission Counsel, it -- in 14 particular they refer to Tab 1 and 2, those were the 15 faxes of September 5th and September 6th. 16 Do you recall that? 17 A: Yes. 18 Q: And particularly September 6th, it's 19 at Tab 2 if you want to turn it up for a moment. You'll 20 note it -- do you have that in front of you, Mr. King? 21 A: Yes. 22 Q: The first thing you'll have is the 23 fax cover sheet and then behind it you'll have an actual 24 letter that starts off, "Dear Bill" 25 When you look at the fax transmission line
2231 at the very top. 2 A: Yes. 3 Q: You'll note the time, September 6th 4 1995 at 1:16 p.m. 5 You see that, sir? 6 A: Mine says 1:17 p.m. 7 Q: That would be the letter itself -- 8 A: The letter -- 9 Q: -- and the fax -- 10 A: Yes. 11 Q: -- sheet is 1:16? 12 A: Correct. 13 Q: Okay. So in that time period, 1:16, 14 1:17 -- 15 A: Yeah. 16 Q: -- as they go through. And we've 17 been told that is on the -- September 6th was the -- the 18 date of a Cabinet meeting. That's been the evidence that 19 we -- we've heard to this date. 20 A: I -- I'll accept that. 21 Q: Okay. Do you know what time the 22 Cabinet meeting -- 23 A: Generally Cabinet began at 10:00, 24 supposed to end at noon. They didn't always; it would 25 depend on the day and the agenda.
2241 Q: Well, I'm going to suggest to you 2 that while you were receiving faxes -- that fax in 3 particular from Mr. Beaubien and possibly talking to him 4 on the phone, the Premier, Cabinet Ministers and other 5 members involved in meetings, had already made a decision 6 for formulating strategies on how to deal with the issue 7 at Ipperwash. 8 A: If it was even discussed at Cabinet, 9 I don't know that. 10 Q: Okay. But, in any event they would 11 have been oblivious to this fax from Mr. Beaubien having 12 -- you only having received it at 1:16 and 1:17 of 13 September 6th; is that fair? 14 A: Yeah, it's fair and I -- I can tell 15 you that he'd be even more oblivious because I didn't 16 give it to any of them. 17 Q: Okay. Thank you. 18 For purposes of the record, that has now 19 been given an exhibit number and that's P-952. Not of 20 your concern but rather the concern of the record, Mr. 21 King. 22 A: Okay. 23 Q: Now, at some point after September 24 4th, and my recollection is you're not sure of the exact 25 date and time, but sometime after September 4th, 1995 you
2251 received a call, or you spoke to Deb Hutton, whether it 2 was in a -- you received a call or you called her. 3 But at some point you had spoken to Deb 4 Hutton indi -- and there was an indication that the 5 Government's going to seek an injunction; that was the 6 process that was going to be followed. 7 A: Yes. 8 Q: Have I got that correct? 9 A: Yes. 10 Q: Okay. And I suggest to you that Ms. 11 Hutton had already told you that, prior to receipt of any 12 documentation, at least on the 6th from Mr. -- Mr. 13 Beaubien. 14 A: Yeah. In fact for one thing I was 15 just reminded in -- this morning that I received a fax 16 with a briefing note from Ron Vrancart on September 6th 17 telling me exactly that as well. 18 Q: Okay. 19 A: I don't know what time. 20 Q: I suggest to you that the 21 communications between you and Mr. Beaubien on September 22 5th and September 6th were in the nature of Mr. Beaubien 23 providing you with some information from his constituents 24 expressing the concerns that were expressed to him. 25 And seeking information from you on what
2261 was going on at Queen's Park rather than him giving -- 2 attempting to instruct or give you directions or the 3 Government directions, is any way, shape or form. 4 A: Yeah. And more specifically I had 5 been, as you mentioned earlier, I had been dealing with 6 constituents and doing Marcel's job effectively for 7 fourteen (14) years, and Marcel had been elected for 8 three (3) or four (4) months, had -- had constituents as 9 mayor or a reeve previously. 10 But, I was giving him advice on how to be 11 an MPP and how to deal with your constituents in times 12 like this. So, this is why, I believe, Marcel would send 13 me a draft of a newsletter and say, you know, would this 14 be helpful or -- or I've had a request from somebody to 15 meet, should I? 16 So -- so, a lot of it was just picking my 17 brains from my experience in -- in getting some direction 18 on that, as well as the substance of the issue. But 19 everything else you said is correct as well. 20 Q: But, let me be very clear just to 21 clear up some of the suggestions that have gone on over - 22 - or for months, and in fact through the civil litigation 23 you were involved in, over years. 24 You certainly were not passing on, from 25 the Premier of the Province, instructions to Mr. Beaubien
2271 and he was then to have pass on to the Ontario Provincial 2 Police in Forest or in Ipperwash. 3 A: And I -- no. And I have a hard time 4 even keeping a straight face when people say things like 5 that, because it's so bizarre. But, the answer is 6 absolutely not. 7 Q: Good. Thank you, sir. But you did 8 become aware at some point Mr. Beaubien was communicating 9 with the OPP in some fashion in Ipperwash? In -- I'm 10 sorry -- 11 A: Yeah. Well I believe he had 12 mentioned to me that he was visiting -- I don't know if 13 there was a command headquarters or post, if it was a 14 building, what it was, but there was a sort of a place, 15 and he told me that he had been there. 16 Q: And from speaking to Mr. Beaubien, it 17 was your understanding that this communication was taking 18 place in the context of a number of local officials 19 including Mr. Beaubien, searching for information and 20 answers about what's going on. 21 A: On behalf of their constituents. 22 Q: Absolutely. 23 A: Yes. 24 Q: Is that your understanding, sir? 25 A: Yes.
2281 Q: Okay. And again in your experience 2 that wouldn't be unusual for a local MPP or a local 3 elected official? 4 A: No, I've -- I've seen it. That's the 5 way it is; that's the way you represent your constituents 6 when there's a big issue in your community. 7 Q: And to do otherwise you'd be 8 surprised? 9 A: I would be very surprised. 10 Q: Okay. I'd like to turn to a couple 11 more specifics here and that is the -- specific issues, 12 and that is that fax, again, of September 5th. We can't 13 get away from that. 14 And that again, sir, if you'll -- if 15 you'll look to your binder you'll find that at Tab 1 and 16 it remain -- this is -- now been given Exhibit P -- 17 Number P-953? 18 A: Right. 19 Q: Okay. So let's -- 20 A: This is the one containing the press 21 release? 22 Q: Yes. 23 A: Yes. 24 Q: This is the one containing the press 25 release. And this is one that has been -- once again
2291 you'll see the -- at the top, if you look at the fax 2 cover sheet, just so we identify it properly, this is on 3 September 5th, 1995, the first page is at 1:07 p.m. Of 4 course when we turn to the next one it will be 1:08. 5 A: Correct. 6 Q: But -- okay. So -- but, it's in the 7 afternoon of September 5th? 8 A: Yes. 9 Q: And I understand from your evidence 10 that you understood Mr. Beaubien to be asking whether or 11 not it would be helpful to issue this press release? 12 A: Yes. 13 Q: And again he was looking for your 14 direction, from you, rather than trying to give you or 15 the Government any direction? 16 A: Yes, and more so, as I understand it 17 he took the direction that he asked for. 18 Q: Exactly. This press release was 19 never issued? 20 A: Was never issued. And again I 21 attributed that to the fact that he's a new member, he's 22 never been in a situation like this, his phone's ringing 23 off from his constituents saying, Tell us something, do 24 something. And he put this out as an option and did 25 absolutely the right thing. He brought it to the
2301 attention of somebody whose been through it before to say 2 what do you think and -- and took the advice. 3 Q: Thank you, sir. And I take it from 4 your evidence earlier that it would not be your practice 5 to forward a press release that wasn't being issued to 6 anyone? 7 A: No, I did -- I would have spoken to 8 Paul Rhodes about it because he is the expert and it 9 would have been his call ultimately. I shared the view 10 of exactly what we did tell Marcel, but I wanted to make 11 sure that my colleague agreed. 12 Q: Okay. 13 A: Whether I sent him a copy of the fax 14 or not, I don't know. I doubt it. 15 Q: But, following obtaining Paul Rhodes' 16 advice -- 17 A: Right. 18 Q: -- and then having communicated with 19 Mr. Beaubien -- 20 A: Right. 21 Q: -- that it would not be appropriate 22 to send the letter or you weren't recommending it would 23 be helpful -- 24 A: I said, Don't. 25 Q: Okay. And him not sending it?
2311 A: Yes. 2 Q: Then as I understand your evidence 3 the fax was simply placed in your file -- 4 A: Yeah. 5 Q: -- or in an out box. 6 A: Yeah. Exactly. 7 Q: Okay. And just so we get real clear 8 on this, is it your belief that no individual involved in 9 formulating the Government strategy to deal with the 10 Ipperwash situation, that is the decision makers, that no 11 individual involved in formulating that strategy would 12 have received from you a copy of this document, that 13 being the never sent but proposed press release, prior -- 14 no one received that who was in a decision-making 15 capacity prior to the death of Dudley George? 16 A: That is -- that is absolutely my 17 belief. 18 Q: Okay. In fact, that wouldn't be your 19 normal practice to pass along such a document of this 20 kind? 21 A: I -- I can't imagine why I would. 22 Q: Okay. And let's turn to the other 23 fax from Mr. Beaubien found at Tab 2. And that is again 24 Exhibit P-952 and we've -- we've talked about this one 25 briefly before.
2321 A: Yes. 2 Q: But, I suggest to you that this 3 letter which we'd gone through the time of it, in the 4 afternoon of September 6th is when you received it. 5 And in it he's asking for -- he's just not 6 asking for any response from you, it doesn't appear. 7 A: No. 8 Q: Unlike the prior fax? 9 A: Correct. 10 Q: And I suggest to you that when you 11 received this you understood it to be an attempt by Mr. 12 Beaubien to show his constituent that he was following up 13 on his constituent's letter? 14 A: That's exactly how I took it. 15 Q: Okay. 16 A: I've written many thousands of these. 17 Q: And you didn't interpret this as Mr. 18 Beaubien to be saying anything about what the Government 19 should be doing about the situation or when it should be 20 doing it, simply passing along a constituent's concern 21 and it appears, copying the constituent so the 22 constituent knew that he was acting in some way, shape or 23 form? 24 A: Exactly. 25 Q: Okay. And I can see that it's -- it
2331 says "cc". It may -- and it says "name same as above 2 removed," no doubt as a result of your earlier comment on 3 this not being properly -- 4 A: Freedom of information legislation. 5 Q: -- yes. 6 A: Yes. 7 Q: Thank you, sir. And again, with this 8 fax, did you forward it to anyone who was in a decision- 9 making position prior to the death of Mr. Dudley George? 10 A: I have no recollection of doing so at 11 all. 12 Q: But tell me from your practice, I 13 know you -- 14 A: Fine. 15 Q: -- have no recollection but from your 16 practice, is this the kind of document that you would 17 forward to someone who is in a decision-making position 18 in this situation? 19 A: No. Not only have I written many of 20 these, I have received even more -- either been cc'd or 21 in the reverse from members of all three (3) political 22 parties all the time. 23 This is -- you're absolutely right. This 24 is the standard practice of handling constituent 25 correspondence.
2341 Q: And the standard practice is to 2 receive it and file it; correct, sir? 3 A: Yes. 4 Q: Thank you, sir. Those are my 5 questions. 6 COMMISSIONER SIDNEY LINDEN: Thank you, 7 Mr. Sulman. 8 Counsel on behalf of Ms. Hutton. 9 MS. MELISSA PANJER: We have no 10 questions. 11 COMMISSIONER SIDNEY LINDEN: You have no 12 questions? I think that brings us to Mr. Zbogar. 13 Oh, I'm sorry, Ms. Twohig, I'm sorry. 14 MS. KIM TWOHIG: Thank you, Commissioner. 15 16 CROSS-EXAMINATION BY MS. KIM TWOHIG: 17 Q: Hello, Mr. King. My name is Kim 18 Twohig and I act for the Province of Ontario. I just had 19 a few questions for you regarding te meeting between the 20 Premier and Mr. Mercredi that you had spoken of. 21 A: Right. 22 Q: And not a lot turns on this, I 23 suppose, but I just want to plumb the depths of your 24 memory, ten (10) plus years ago. 25 We heard from former deputy Attorney
2351 General Larry Taman that there had been a request for a 2 meeting by Mr. Mercredi of the Premier some time between 3 September 7th and 12th and there was some discussion 4 about whether or not such a meeting should take place in 5 the Premier's office. 6 Do you recall anything of that nature -- 7 A: Just -- 8 Q: Would you have been involved in such 9 discussions? 10 A: Just what I testified to earlier 11 today. 12 Q: Hmm hmm. We also heard that a 13 meeting was arranged. It was to be a short meeting and, 14 in fact, Mr. Taman attended with then-Attorney General 15 Charles Harnick, the Premier, Mr. Mercredi, Mr. Bressette 16 and possibly Mr. Peters. 17 Would that have possibly been a different 18 meeting or could that have been the meeting that you were 19 referring to? 20 A: Yes, the -- my recollection is there 21 was one (1) meeting and my recollection is that Mr. 22 Mercredi just showed up, uninvited, unannounced, with the 23 media and caused the meeting to happen. 24 Q: All right. Would you have any 25 knowledge as to how the Attorney General and Deputy
2361 Attorney General would have been notified and attended 2 the meeting? 3 A: Presumably -- no. 4 Q: Okay. It's -- 5 A: I was going to say if there was a 6 caucus meeting, as I believe there was, the Attorney 7 General would have been in it. 8 I remember walking through the tunnel, 9 that's why I think it was on the way to a caucus meeting, 10 because the Whitney Block is in a different building. 11 It's a fair walk. 12 The media would be phoning our people and 13 telling us, here's what's happening, 'cause they'r3 -- 14 where do we set up our cameras, what's going on, why is 15 Ovide Mercredi here. 16 So there would have been ample time -- 17 like, 'cause I remember as -- as I walked along, I -- it 18 was almost an instant decision where the Premier said, 19 well, if he's here and obviously we're going to meet with 20 him and let's make sure we have the right people there, 21 so some calls would have went out. 22 Q: Okay. 23 A: I -- I -- that's just logical to me 24 as to how it would happen. 25 Q: Okay, just so I understand your
2371 evidence. Did you say whether or not you were aware of 2 any discussions within the Premier's office about whether 3 or not a meeting should take place between the Premier 4 and Mr. Mercredi? 5 A: I was aware that, as I testified 6 earlier, a request had come in for a meeting and there 7 were discussions about whether to meet or not and the 8 consensus was it wouldn't be helpful to meet. 9 Q: All right. And do you remember 10 whether or not Mr. Taman or others advised that a meeting 11 might be helpful and that it should take place? 12 A: I have no knowledge of that. 13 Q: All right. Thank you, those are my 14 questions. 15 COMMISSIONER SIDNEY LINDEN: Thank you, 16 Ms. Twohig. 17 MR. VILKO ZBOGAR: Good afternoon, Mr. 18 Commissioner. 19 COMMISSIONER SIDNEY LINDEN: Good 20 afternoon. 21 22 CROSS-EXAMINATION BY MR. VILKO ZBOGAR: 23 Q: Good afternoon, Mr. King. 24 A: Hi. 25 Q: My name is Vilko Zbogar. I represent
2381 the Estate of Dudley George and members of Dudley's 2 family. I want to start with some general questions 3 about your job duties, just briefly. 4 When you talked about your 5 responsibilities of ensuring information flow between 6 caucus members and the Premier's office, I guess, more 7 particularly, is it fair that you were to act as a 8 conduit of information between the Premier's office and 9 caucus members and to provide information -- or advice to 10 the Premier's office relating to issues involving caucus 11 members? 12 A: Yes. 13 Q: And as the representative for the 14 Premier's office, in communicating with caucus members 15 and others you had some responsibility to ensure that 16 what -- you had some responsibility to ensure that caucus 17 members were aware of what the Government's position was 18 or -- or what his position was on certain matters. 19 A: On certain matters, yes. 20 Q: Right. And you had some 21 responsibility to ensure that what caucus members were 22 saying to their constituents and to others was consistent 23 with the Government's message or position on those 24 matters? 25 A: We would provide the information what
2391 position a caucus member chose to take on it. And how 2 consistent their message to their constituents was, was 3 up to the caucus member. 4 Q: Are you saying that the caucus 5 members had free reign to take whatever position they 6 wanted even if it was directly opposite what the 7 Government's position was? 8 A: If they chose to. 9 Q: Okay. 10 A: Yeah. They're -- they're -- we 11 certainly don't tell them what to say or do. 12 Q: Sure. But if they said something 13 that was contrary to the Government's policy, there would 14 be some consequences or -- 15 A: It happened all the time. 16 Q: Pardon me? 17 A: It happened all the time. 18 Q: Happens all the time? In -- in this 19 instance -- this Ipperwash incident, are you aware of Mr. 20 Beaubien saying anything that was inconsistent with the 21 Government's position on -- on Ipperwash during the 22 period of September 5th or 6th? 23 A: I -- I'm not aware of Mr. Beaubien 24 speaking for the Government so the answer would be no. 25 I'm not aware of anything like that.
2401 Q: Okay. Well I'll get into more 2 specifics on that a bit later. 3 I want to ask you a bit about the staff 4 briefings with the Premier. I know you attended in the 5 early days and stopped attending and other senior staff 6 did attend those. But I want to ask, generally, some 7 general questions about those -- those meetings and what 8 they would have involved. 9 Generally, I guess, they would have 10 involved current issues which the Premier needed to be 11 aware of and briefed on and updated on? 12 A: Yeah. Sometimes. 13 Q: Sometimes? If there was a current 14 issue that was emerging, obviously, if it was something 15 that might affect the Government, the Premier would need 16 to know about it and be briefed about it and that would 17 be discussed at these meetings? 18 A: I'm not sure that that was always the 19 forum. 20 Q: Right. 21 A: It could have been. But that wasn't 22 -- probably more often than not, I think they followed an 23 agenda and worked through the schedule for the day and 24 made sure that everybody had everything lined up, media 25 wise, and otherwise.
2411 Q: All right. Now in an emerging issue 2 on an important matter like Ipperwash, that's something 3 that you would expect the Premier would have been briefed 4 on or that would have been discussed at these senior 5 staff briefings? 6 Is that fair? 7 A: I would expect the Premier to be 8 briefed on larger breaking issues like that. All I'm 9 saying is I'm not sure that it would have been done in a 10 thirty (30) minute meeting that covered all kinds of 11 ground. Basically, it was what's on the agenda for today 12 and make sure everybody was lined up to get everything 13 done. 14 Q: So -- 15 A: I fact I -- I don't always remember 16 the Premier attending these meetings. Sometimes he did, 17 sometimes he didn't. 18 Q: Okay. Now I understand your answer, 19 or explanation to be that this kind of issue was 20 something the Premier would have been briefed on 21 probably. And I think it's clear that he was aware of 22 what was going on. 23 You're just saying it may or may not have 24 been at this particular kind of senior staff briefing 25 that that briefing occurred?
2421 A: He certainly got briefed on issues 2 and not always at that meeting. 3 Q: I think the -- the information from 4 David Lindsay containing the answers to undertakings 5 given during the course of the civil litigation was that 6 he believes that the Ipperwash situation would have been 7 discussed with the Premier at one (1) of the senior staff 8 briefings; that's consistent with what you would expect? 9 A: I wasn't there, David was there. 10 Q: Right. But you've -- that sound 11 reasonable to you that that would have happened? 12 A: I have no opinion on it. 13 Q: Okay. Were you briefed on things 14 that happened in those senior staff meetings if you -- 15 the ones that you did not attend, if they happened to 16 deal with issues that you might need to be in contact 17 with Caucus -- 18 A: Yeah. I think if they -- if they 19 related to my work I would certainly be brought into the 20 loop. I mean from some -- time to time they'd say, You 21 should come tomorrow because of such and such. 22 Q: I think you've already explained -- 23 A: Or -- or maybe I'd put something on 24 the agenda and invite myself. 25 Q: Okay. You've already explained that
2431 you brought into the loop to some extent on this by Ms. 2 Hutton in your conversation with her? 3 A: Yeah. I asked her what was 4 happening. 5 Q: And you asked her what was happening. 6 So you -- you initiated the phone call with Ms. Hutton? 7 A: Yes. 8 Q: Okay. I want to ask you some more 9 questions about that, but before I do I want to ask you 10 about the OPS meetings. Do you know what I'm referring 11 to? Let me -- let me explain. 12 We know from David Lindsay, again in the 13 answers to undertakings given during the course of the 14 litigation, that there were operational meetings of 15 senior staff, without the Premier, that generally 16 occurred before the senior staff briefings with the 17 Premier, what he referred to as "operational" or "OPS" 18 meetings. 19 Are you aware of those kinds of meetings? 20 A: I would say it's the same meeting. 21 Q: Okay. 22 A: Half an hour and then the Premier 23 would attend, but now always. 24 Q: Okay. 25 A: So it became a longer meeting.
2441 Q: And your evidence was that you 2 wouldn't have attended a briefing meeting with the 3 Premier on the 5th or 6th of September, 1995? 4 I take it that's the same position you 5 would have with respect to this OPS -- operational part 6 of the meeting with -- without the Premier; that you 7 wouldn't have been in attendance for that part either? 8 A: I didn't attend those meetings. 9 Q: Okay. Now, on this issue, the 10 Ipperwash issue, during the course of September 5th or 11 6th of 1995, I understand the only Caucus member that you 12 were in communication with was Mr. Beaubien? 13 A: To the best of my recollection. 14 Q: I want to ask you about communication 15 with other staff and I'll get to Ms. Hutton in a minute. 16 Did you -- do you recall meeting Guy 17 Giorno at any time during the course of the September 5th 18 or 6th... 19 A: I don't recall meeting him, no. 20 Q: Okay. 21 A: But let me preface everything by 22 saying: We're a small team and I saw everybody all the 23 time. 24 Q: Of course. 25 A: So you -- I presume you are asking
2451 me: Did I meet with him to talk about Ipperwash? And the 2 answer is, no. 3 Q: Okay. 4 COMMISSIONER SIDNEY LINDEN: I'm sorry, I 5 didn't hear who you asked him about. I didn't hear that. 6 MR. VILKO ZBOGAR: I asked about Guy 7 Giorno. 8 COMMISSIONER SIDNEY LINDEN: Guy Giorno. 9 MR. VILKO ZBOGAR: Yes. 10 COMMISSIONER SIDNEY LINDEN: That's fine. 11 12 CONTINUED BY MR. VILKO ZBOGAR: 13 Q: And he's -- he was the policy advisor 14 to the Premier? 15 A: Yes. 16 Q: Do you know what that -- can you 17 describe what that position involves? 18 A: Setting long-term policy direction 19 for the Government and working with the ministries and 20 their responsibilities to do the same. 21 Q: I want to present you with a document 22 to try to refresh your memory a little bit, and let me -- 23 let me hand this up to you. 24 I'm referring to Document Number 3000390. 25 And these are excerpts from documents produced, and
2461 answers to undertakings by Premier Harris during the 2 course of the litigation. 3 And the documents that I've provided to 4 you, according to the answers to undertakings are, first 5 of all the daytimer of David Lindsey, which I don't 6 intend to refer you to. 7 And by the way for Counsel who are looking 8 for this on the -- on screen it's the very last few pages 9 of the -- of that production. 10 What I want to refer you to is, I think, 11 about four (4) pages in there's a calendar page for 12 September 5th. Let's see... 13 14 (BRIEF PAUSE) 15 16 Q: It's hard -- it's hard to see, but 17 were... 18 19 (BRIEF PAUSE) 20 21 Q: Well, let me do this a -- let me try 22 -- let me try again. The second last page of the 23 material I've provided to you. 24 A: Yeah. 25 Q: It says at the top...
2471 (BRIEF PAUSE) 2 3 Q: It looks like September 6th, do you 4 see that? 5 A: I see a page with my name on it. Is 6 that the one you mean? 7 Q: Yeah at the very bottom of that page. 8 A: Yeah. 9 Q: It says Barry D. and Bill K. 10 A: Yeah. 11 Q: And referring to a meeting in Bill's 12 office, I guess your office? 13 A: Yeah. 14 Q: Now do you know -- this suggests that 15 you met with Guy Giorno on that day. 16 A: Yeah. 17 Q: Do you know what that meeting may 18 have been in reference to? 19 A: I couldn't tell you specifically, but 20 I cold give you a very educated guess. As I said, Guy 21 was responsible for long term policy. The government had 22 a plan and did implement a plan to restructure the 23 Northern Ontario Development Fund. 24 I had a background in that; I'm from the 25 north, I've worked with the fund for many years. Barry
2481 Devlin (phonetic) was the executive assistant to the 2 Minister of Northern Development. 3 So if you put those three (3) things 4 together, and the words "Nor Dev," it looks to me like we 5 were there to talk about the long term direction of the 6 Northern Ontario Development Fund that day. 7 Q: Okay. So the topic, obviously, of 8 the meeting wasn't Ipperwash. But when I asked you if 9 this might help you refresh your memory as to whether or 10 not you may have discussed Ipperwash with Mr. Giorno, 11 perhaps incidentally, before or after that meeting, or 12 whether it came up at all -- 13 A: No. 14 Q: -- do you recall? 15 A: No. 16 Q: It may have, but you don't recall one 17 way or the other? 18 A: I don't accept the question. I -- 19 anything on earth may have. So you can decide that. I 20 am -- I am almost positive it didn't come up. 21 Q: Okay. 22 A: And I certainly don't recall it 23 coming up. 24 This was -- we were really busy at the 25 time with all kinds of long-term projects. We wouldn't
2491 be -- this would have been a short, tight conversation to 2 deal with the subject. 3 Q: That's fine. Now, in speaking with 4 Mr. Beaubien or others, I guess, obviously you needed to 5 know what the Government's approach was to the situation, 6 right? 7 A: Hmm hmm. 8 Q: That's a yes, for the record? 9 A: Yes, sorry. 10 Q: And there's -- I think there's, as I 11 understand it, two (2) aspects to the information, or 12 advice you passed along back to Mr. Beaubien. 13 One is, you sought the advice -- first of 14 all, you sought the advice of Mr. Rhodes as to whether it 15 would be appropriate or constructive to send out the 16 press release that Mr. Beaubien had drafted? 17 A: Yes. 18 Q: And in addition, you sought to pass 19 along information about what the Government's intentions 20 or plans or thoughts on the -- on the issue were? 21 A: Yes. 22 Q: And that information on how the 23 Government was handling or responding to the situation 24 was something you obtained from Ms. Hutton? 25 A: On one (1) occasion, yes.
2501 Q: And did you receive such information 2 about how the Government was handling the situation from 3 anybody other than Ms. Hutton? 4 A: Yes, as I've said earlier, I spoke to 5 Jeff Bangs on a regular basis, it was a Provincial Park 6 under the purview of his Ministry, the Ministry of 7 Natural Resources. 8 The location of my office is such is that 9 outside of the Premier's legislative office and outside 10 of the Cabinet office, that's where the media held all 11 their scrums. 12 So any time anybody in position of 13 authority in the Government was asked any question on any 14 subject, it was happening right in front of me and it was 15 quite a convenient way for me to hear what the Government 16 was saying about all these issues. 17 Q: Okay. Are you able to recall 18 specifically or generally what Jeff Bangs told you, as 19 opposed to Ms. Hutton? 20 A: Well, I -- yeah. The -- as I 21 referred to earlier, the Ron Vrancart note sets out 22 exactly, so Jeff would have been telling me all of those 23 things that are contained in the briefing note to the 24 Minister. 25 Q: Okay. Now do I understand correctly
2511 that you had a number of conversations with Jeff Bangs 2 during the course of September 5th and 6th, 1995? 3 A: I -- I don't recall that. Jeff and I 4 are long time friends with a very common interest in the 5 same Ministry and chatted on a regular basis. How many 6 times, I could not tell you. 7 Q: Okay. And now with respect to Ms. 8 Hutton. We know for sure there was at least one (1) 9 phone call which you initiated to her. 10 A: We know that I recall one (1) phone 11 call. 12 Q: And I'm -- yes, that's my other 13 question. Do you recall whether there may have been any 14 other conversations or you don't know -- 15 A: No. As I say I'm 99 percent sure on 16 recalling the one (1) phone call. I don't think there 17 were any other. I -- I may have asked her advice on the 18 -- the meeting with Chief Bressette, but I think that was 19 after -- 20 Q: Yes. 21 A: -- the death. So, I -- I'm not -- 22 again not clear on which time you're -- you're referring 23 to. But, during that time, the only one I'm pretty sure 24 I recall is when I called her to find out about the 25 injunction.
2521 Q: Okay. 2 A: Yeah. 3 Q: And so we're clear, all my questions 4 are referring to the two (2) specific days in question 5 unless I tell you otherwise. 6 A: Okay. 7 Q: September 5th and 6th, 1995. 8 A: Yeah. 9 Q: Now, can you help me identify when it 10 was that your conversation with Ms. Hutton happened? 11 A: No. More -- no. 12 Q: I presume it would have been before 13 your conversation with Mr. Beaubien, right? 14 A: It would -- no. Presumably, it was 15 in response to Beaubien's request to me for information. 16 Q: So, you're saying the sequence is 17 that, you had a conversation with Mr. Beaubien, then you 18 had a conversation with Ms. Hutton? 19 A: Beaubien calls, asked me questions. 20 I don't know the answer, I call somebody who I think 21 knows the answer, and I get back to Beaubien. 22 Q: Okay. 23 A: Yeah. 24 Q: So, you would have had, I guess -- I 25 wasn't clear when -- when this was discussed in-chief.
2531 A: Yeah. 2 Q: So, you would have had I guess two 3 (2) conversations with Mr. Beaubien; one being his 4 request to you and a subsequent conversation which you 5 were passing along answers to his questions and requests? 6 A: Yeah. 7 Q: And that happened some time on the 8 5th of September, right? 9 A: As I said earlier I don't know if it 10 was the 5th or the 6th. 11 Q: No, it was -- this conversation was 12 in response with Mr. Beaubien -- was in response to his 13 press release or regarding his press release? 14 A: Oh, on the press release, it would be 15 immediately after receiving it, some time before three 16 o'clock that day because -- 17 Q: Okay. 18 A: -- that's the time I had to get back 19 to him. 20 Q: Okay. So -- 21 A: So, if I received it at 1:17, I made 22 the call to Paul Rhodes, not Deb Hutton, and -- and got 23 the answer and called Marcel back. 24 Q: Okay. I'm -- I'm unfortunately 25 becoming more confused. I don't know if everybody -- I
2541 don't know how other people are. But, I want to try to 2 get the sequences as precisely as possible if I can and 3 I'm wondering if you can help me with that. 4 And I want to ask you about a number of 5 things and -- and ask you to help me to put them in 6 order. And they are as follows. 7 The receipt of the fax press release from 8 Mr. Beaubien, your phone call to Ms. Hutton, your phone 9 call to Ms. Rhodes -- or Mr. Rhodes, sorry, and your 10 phone conversation with Mr. Beaubien. 11 A: Okay. There's two (2) ways we can do 12 that because that's all been covered, so it's all in the 13 transcript. But, very quickly you'll see in Tab 1 of my 14 document that the fax was received at 1:08 p.m. on the 15 5th. 16 As I indicated I called Paul Rhodes, got 17 the answer, got back to Marcel, presumably, before three 18 o'clock which is the deadline he sets out and his fax to 19 me of the same fax. 20 COMMISSIONER SIDNEY LINDEN: That was all 21 made clear before. 22 MR. VILKO ZBOGAR: Yes. Now I'm 23 wondering -- 24 COMMISSIONER SIDNEY LINDEN: So, I don't 25 think anybody else was confused about that.
2551 MR. VILKO ZBOGAR: I'm wondering -- I'm 2 wondering where Ms. Hutton's conversation fits into that 3 whole sequence. That's the particular -- 4 COMMISSIONER SIDNEY LINDEN: If you want 5 to be specific about something, fine, but just going over 6 the whole sequences now isn't helpful. 7 MR. VILKO ZBOGAR: Yes. No, that's the 8 particular thing I -- I haven't be able to fit into that 9 sequence yet. I'm aware of that but I want to know how 10 it all fits together, if it does. 11 THE WITNESS: The next day -- I think 12 it's the next day on the 6th, again I -- I think it's Tab 13 7 or maybe it not be. I shouldn't go by the tabs, I'm 14 not -- I'm just seeing this for the first time. 15 The -- Ron Vrancart sends out a Minister's 16 briefing note that was sent to me and all of the staff 17 that's listed in these tabs and talked about an 18 injunction. Marcel was calling saying, What's going on, 19 mentioned the injunction. I think there was issues 20 around timing, when will this happen, what's -- what's 21 the chronology, where does that flow? 22 So, I would have -- I believe I called Deb 23 Hutton and asked what she knew about it. She told me and 24 I got back to Marcel on that day. 25
2561 CONTINUED BY MR. VILKO ZBOGAR: 2 Q: Okay. 3 A: Okay? 4 Q: That helps. So, you don't recall 5 having a conversation with Ms. Hutton on the 5th then? 6 A: No. 7 8 (BRIEF PAUSE) 9 10 Q: In your conversation with Hutton -- 11 with Ms. Hutton, I understand she -- you've already 12 talked about this -- she'd passed along to you 13 information that the Government was seeking an injunction 14 on the 6th and did she also mention anything about the 15 issue of interference with police operations or anything 16 like that? 17 A: I don't know what you mean. 18 Q: Did she mention that there was a 19 clear separation between police and politicians or 20 something along those lines? 21 A: I -- I don't recall that from my 22 perspective that's a given, so, I don't know why that 23 subject would come up. 24 Q: In your Examination for Discovery in 25 this matter you said that Hutton may have mentioned the
2571 clear separation of police and politicians and that the 2 Government is not involved with police activities. 3 A: She may have. 4 Q: She may have? You don't recall it 5 though? 6 A: I don't recall. Lawyers keeps asking 7 me these questions: Could this have happened? May that 8 have happened and I usually -- unless I know for a fact 9 that it couldn't have, I usually say yes. 10 Q: Okay. Now, from the information you 11 received from your various sources during the course of 12 September 5th and 6th, 1995, were you aware that -- or 13 whether the Premier had a sense of urgency in dealing 14 with this matter and, specifically, that he wanted the 15 occupation to be removed within a period of twenty-four 16 (24) hours or so? 17 A: Yeah. I -- I guess my general 18 understanding was that given the Premier's concern about 19 public safety, everyone's safety, it was his view that 20 the sooner people stopped being confrontational and sat 21 down and talked about issues, the better. 22 Q: Okay. I think it's a bit different 23 than what I asked. You -- you understood the Premier had 24 a sense of urgency during this period, right? 25 A: I understood that the Premier's view
2581 was because of his concern about public safety that the 2 sooner people started -- stopped being adversarial and -- 3 and sat down and started talking instead, the better. 4 Q: Okay. Now, you mentioned the issue 5 of public safety. We've heard some evidence that because 6 there was -- because the Park had been closed for the 7 season and there was no campers left in the Park after 8 the occupation had begun, the evidence of some people, 9 Jeff Bangs, Ron Vrancart, others that I recall, was that 10 there was no pressing public safety issue. 11 So when you say the Premier -- you 12 understood the Premier felt it was a public safety issue, 13 do you know what he was thinking of or can you help me, 14 enlighten me what you were thinking of? 15 A: Yes, you -- I'll need to find the tab 16 here because you cite Ron Vrancart specifically so all I 17 can do is refer you to his words. 18 19 (BRIEF PAUSE) 20 21 MR. DERRY MILLAR: Tab 3 I think you're 22 looking for. 23 THE WITNESS: Tab 3? Yes, where he 24 basically says: 25 "Number 1. Government seeking an
2591 injunction. 2 Number 2. The Minister of Natural 3 Resources considers the safety of the 4 Provincial Park staff, surrounding 5 property owners, and the public to be 6 paramount." 7 I was receiving calls from Marcel as I 8 testified earlier where people had been forced to leave 9 their homes and at the end of the day there was a whole 10 bunch of armed police officers there with guns in their 11 hands, so, public safety was absolutely top of mind. I 12 don't know why anybody would say it wasn't. 13 14 CONTINUED BY MR. VILKO ZBOGAR: 15 Q: I don't dispute that public safety 16 wasn't important. What I'm suggesting is that there's 17 the evidence from a number of witnesses and from a number 18 of notes that we've seen of people who attended the 19 Interministerial Committee Meetings during this period 20 was that public safety wasn't an issue because the Park 21 had been vacated. 22 A: You asked me for my understanding and 23 I -- 24 COMMISSIONER SIDNEY LINDEN: That's not a 25 fair synopsis --
2601 THE WITNESS: I'm giving you -- 2 COMMISSIONER SIDNEY LINDEN: -- of all of 3 that evidence. 4 THE WITNESS: No. 5 MR. DERRY MILLAR: I don't think that's a 6 fair statement. Public safety -- we've heard lots about 7 concerns about public safety. We know the Park was 8 closed, but that's not a fair statement and it -- 9 COMMISSIONER SIDNEY LINDEN: No. 10 MR. DERRY MILLAR: I would ask My Friend 11 to take us to the transcripts that he refers to -- 12 COMMISSIONER SIDNEY LINDEN: Yes, I -- 13 MR. DERRY MILLAR: -- where he said that 14 -- that people said there was not public safety. We've 15 heard lots about public safety. 16 MR. VILKO ZBOGAR: Okay. Indeed, we 17 have. I think I'll leave -- I'll let the transcripts 18 speak for themselves and I think I have the answer. 19 COMMISSIONER SIDNEY LINDEN: I think 20 that's a good idea. 21 MR. VILKO ZBOGAR: Yeah. 22 23 (BRIEF PAUSE) 24 25 CONTINUED BY MR. VILKO ZBOGAR:
2611 Q: I know you and Mr. -- or Premier, 2 former Premier Harris had a very good working 3 relationship. 4 A: Yes. 5 Q: And I understand that Ms. Hutton and 6 the Premier also had a very good relationship; is that 7 right? 8 A: I believe so. 9 Q: And you knew there was a great deal 10 of trust between the Premier and Ms. Hutton? 11 A: I would expect so. 12 Q: We've already -- we're already aware 13 that Ms. Hutton was Harris' executive assistant for 14 issues management. 15 A: Yes. 16 Q: And Ipperwash was one (1) of the 17 issues she would have been responsible for issue 18 managing? 19 A: Yes. 20 Q: And you were aware that she would 21 have been in direct communication with the Premier on the 22 Ipperwash issue during the course of September 5th and 23 6th, 1995? 24 A: I wasn't aware of that, but I expect 25 she would be.
2621 (BRIEF PAUSE) 2 3 Q: And just generally speaking, during 4 the course of your employment as executive assistant, 5 caucus liaison, if there was information that came to 6 your attention that you thought important to pass on to 7 the Premier, in some circumstances you might have done 8 that through Ms. Hutton; right? 9 A: In some circumstances. 10 Q: And you trusted that Ms. Hutton would 11 be a reliable medium of communication to the Premier in 12 circumstances where you couldn't communicate with the 13 Premier directly in those circumstances? 14 A: I -- you're -- you're leading down a 15 path. I did not ask Deb to convey any information to the 16 Premier, if that's what you're asking. 17 Q: No, I'm not asking you that. 18 A: Are you asking me was she a 19 trustworthy person? The answer is yes. 20 Q: Oh, of course. 21 A: Okay. 22 Q: I understand that's your evidence. 23 But if there was information that you felt -- 24 A: There wasn't. 25 Q: -- the Premier should be aware of,
2631 generally speaking -- 2 A: Okay, so we're not -- we're going 3 beyond the 5th and 6th which you asked me earlier to -- 4 Q: Even beyond Ipperwash. 5 A: Okay. In general? 6 Q: Right. 7 A: Yes, she would pass on information to 8 the Premier if she felt that that was the thing to do. 9 Q: Okay. And are you aware whether 10 that's what happened with Ipperwash, that she passed 11 along information to the Premier that she had spoken -- 12 she had discussions with you about? 13 A: I just said that that did not happen. 14 Q: You're sure it didn't happen or you 15 don't know -- 16 A: I didn't give her any information. I 17 asked for information. 18 Q: Okay. You didn't pass along to you - 19 - her anything that Mr. Beaubien was passing on to you? 20 A: No. I mean, I hesitated. It -- did 21 I say that Mr. Beaubien is hearing from his constituents 22 and they're very concerned about this situation? I may 23 have said that. 24 Q: Yeah. 25 A: Whether she dropped everything and
2641 pick up the phone and called the Premier to tell him 2 that, I doubt it. 3 Q: And I know it's -- it wasn't part of 4 your job duties to provide Counsel to the Premier on 5 Ipperwash related -- 6 A: Correct. 7 Q: -- matters. I take it that was Deb 8 Hutton's role? 9 A: I actually think it was more the role 10 of the bureaucrats. 11 Q: Okay. 12 A: The lawyers, the people that deal 13 with these things. 14 Q: But from a political perspective as 15 far as the Premier's office was concerned, she would be 16 the person responsible for that? 17 A: Depends on what political perspective 18 you were coming from. 19 If it was a caucus perspective, that would 20 have been me. If it was a media perspective, that would 21 have been Paul. They're all in very close proximity, so, 22 I wouldn't say it was exclusively Debbie's. 23 Q: Okay. In this particular situation, 24 now you've already said you didn't have any response -- 25 or you didn't have any specific conversation with the
2651 Premier -- 2 A: Correct. 3 Q: So it would have been up to Ms. 4 Hutton and Mr. Rhodes to do that with respect to their 5 particular areas of expertise? 6 A: If -- if they did, yeah, I don't 7 know. 8 Q: Okay. 9 A: I can't speak for them, sorry. 10 Q: Now, Mr. Beaubien's evidence -- and 11 I'm referring for the record -- I don't intend to put it 12 directly, to -- to pull it out, but it's at page 172 of 13 his Examination for Discovery on September 17. 14 A: I have not read that. 15 Q: You've read that? 16 A: I have not read that. 17 Q: You have not read that. 18 A: No. 19 Q: I don't intend to ask you to do that, 20 but I can advise you that his evidence was on that 21 occasion that there -- that he was fairly certain that 22 there was no further conversation between him and 23 yourself after September 5th, 1995? 24 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 25 Sulman...?
2661 MR. DOUGLAS SULMAN: I'm not sure what 2 turns on -- on the response to that question, it's just 3 an improper question putting Mr. Beaubien's Examination 4 for Discovery to another -- to another person -- 5 COMMISSIONER SIDNEY LINDEN: Yes. 6 MR. DOUGLAS SULMAN: -- who has never 7 seen it -- 8 COMMISSIONER SIDNEY LINDEN: Yes. 9 MR. DOUGLAS SULMAN: -- and has no 10 knowledge of it. 11 COMMISSIONER SIDNEY LINDEN: Are you 12 referring to the phone call back? Is that what you're 13 saying, Mr. Beaubien said never happened? 14 MR. VILKO ZBOGAR: Well, we've -- we've 15 talked about a phone call on September 5th, 1995, and I 16 have no -- no question that happened. 17 COMMISSIONER SIDNEY LINDEN: Which? The 18 phone call...? 19 MR. VILKO ZBOGAR: Between Mr. King and 20 Mr. Beaubien. 21 COMMISSIONER SIDNEY LINDEN: Yes. 22 MR. VILKO ZBOGAR: And I think there's 23 also been a suggestion that there may been a phone call 24 between -- with Mr. King that there may have been a phone 25 call between him and Mr. Beaubien on the 6th.
2671 COMMISSIONER SIDNEY LINDEN: On the 6th. 2 MR. VILKO ZBOGAR: In response to the -- 3 in response to your -- in response to Mr. Beaubien's fax 4 attached to the constituent's letter on that date. 5 COMMISSIONER SIDNEY LINDEN: Well... 6 MR. VILKO ZBOGAR: Now, actually -- 7 COMMISSIONER SIDNEY LINDEN: I just want 8 to get it straight. I -- 9 MR. VILKO ZBOGAR: Yeah. 10 COMMISSIONER SIDNEY LINDEN: Yes. 11 MR. VILKO ZBOGAR: Let me -- let me get 12 it straight then. 13 14 CONTINUED BY MR. VILKO ZBOGAR: 15 Q: Mr. King, do you recall having a 16 conversation with Mr. Beaubien on September the 6th of 17 1995 after receiving his second fax? 18 A: If it's the fax here where he's 19 passing on the cc letter to his constituent, I have no 20 recollection talking to him about this after the fact, 21 no. 22 Q: Okay. Sorry. I misunderstood. I 23 thought that you had suggested -- 24 COMMISSIONER SIDNEY LINDEN: That's 25 right.
2681 MR. VILKO ZBOGAR: -- you may have and I 2 -- I take it now that my recollection's incorrect. 3 COMMISSIONER SIDNEY LINDEN: So I haven't 4 seen the transcript of his evidence, but that would be 5 consistent. 6 MR. VILKO ZBOGAR: Right. Right. No, 7 that's -- that's fine. 8 THE WITNESS: The -- the -- the one (1) 9 request for follow-up I had was where he asked for the 10 advice about meeting with Chief Bressette. I see that I 11 actually faxed him back words, but whether I actually 12 phoned him in conjunction with that I can't recall. 13 14 CONTINUED BY MR. VILKO ZBOGAR: 15 Q: I apologize. I misunderstood your 16 evidence so I think it is consistent with what Mr. 17 Beaubien said that neither of you have a recollection of 18 having a conversation on the 6th. So that -- that's 19 fine. 20 A: Okay. 21 Q: The -- the letter that I've just been 22 referring to, the fax attaching the constituent's letter 23 for the record is P-592. 24 MR. DERRY MILLAR: 952. 25 MR. VILKO ZBOGAR: 952. I apologize.
2691 (BRIEF PAUSE) 2 3 CONTINUED BY MR. VILKO ZBOGAR: 4 Q: When you spoke with Mr. Beaubien on 5 September the 5th sometime before 3:00 p.m., I guess 6 sometime between 1:00 and 3:00 p.m. to be more precise, I 7 know you had spoken with Mr. Rhodes. 8 I think it's correct you had also spoken 9 to Mr. Bangs by that time? 10 A: No specific recollection, but 11 generally I recall having a couple of conversations with 12 him about what was happening with the Park, yes. 13 Q: Okay. 14 A: And -- and time frame not sure, but 15 it would make sense that it would be when it was -- as it 16 was developing, yes. 17 Q: Did you have any other sources of 18 information for what you would be communicating to Mr. 19 Beaubien when you called him? 20 A: I had the materials that were sent to 21 me which are all documented and I -- as I say, the media 22 scrums that were outside my door, media reports generally 23 and whatever colleagues I asked for information about. 24 Q: The -- the materials that you've 25 referred me to, in other words, specifically the Ron
2701 Vrancart note -- 2 A: Yes. 3 Q: -- media scrum -- well, let's start 4 with the Ron Vrancart note, that was dated September the 5 6th. You wouldn't have been aware of that -- 6 A: Correct. 7 Q: -- when you spoke with Mr. Beaubien, 8 right? 9 A: On the 5th that was about the 10 newsletter, the news release, right? 11 Q: Okay. 12 A: So that's what we spoke about then. 13 Q: And -- and at that time on the 5th 14 you wouldn't have been aware of the Ron Vrancart note 15 because it hadn't existed yet? 16 A: No, I received it on the 6th. 17 Q: On the 6th, sorry. It may have 18 existed but you hadn't -- you hadn't seen it until the 19 6th right? 20 A: It could be, yeah. 21 Q: You didn't see -- 22 A: Whether -- whether Jeff Bangs had 23 mentioned it to me by phone, I cannot specifically 24 recall. And certainly -- and certainly not the date. 25 Q: You didn't see Mr. Vrancart's
2711 briefing note nor the transcript of Minister Hodgson's 2 press conference until -- until it was faxed to you by 3 Ms. Spiegel on September the 6th, that's correct? 4 A: That's -- I don't even see a -- a 5 received time like on the fax machine, but it's dated on 6 the 6th so I'm presuming I saw it on the 6th. 7 Q: And when you -- 8 A: Again there was a news conference. 9 It refers to a news conference on the 5th, that's 10 probably one (1) of the ones that I listened in on when I 11 was talking about these media scrums so I would have 12 heard the minister talk about it the day before type 13 thing. 14 Q: Do you recall hearing Minister 15 Hodgson? 16 A: Specifically which minister or not, 17 the practices in that area is the media would interview 18 any minister they could get about whatever issues of the 19 day they were reporting news on. 20 So -- but I don't remember specifically, 21 but if it was happening I -- I generally attended those. 22 Q: I take it you've had a chance at 23 least in preparing for this -- this -- your attendance 24 here today, you've had a chance to review that transcript 25 of that press conference involving Minister Hodgson?
2721 A: I haven't re-read it, no. I received 2 it when I arrived here today. 3 Q: Okay. 4 COMMISSIONER SIDNEY LINDEN: It's three 5 and a half (3 1/2) pages -- 6 MR. VILKO ZBOGAR: So if I -- 7 COMMISSIONER SIDNEY LINDEN: Three and a 8 half (3 1/2) pages long. Are you going to ask him 9 something about it? Perhaps he should get a chance to 10 look at it. 11 MR. VILKO ZBOGAR: I want to -- I don't 12 want to spend too much on it so I'm not -- I'm not going 13 to ask anything about the contents of it. 14 15 CONTINUED BY MR. VILKO ZBOGAR: 16 Q: But I want to be clear that when you 17 spoke with Mr. Beaubien on the 5th between 1:00 and 3:00 18 p.m. there's sources of information about what the 19 Government was doing from perhaps Mr. Bang, Mr. Rhodes in 20 the context he mentioned, and possibly overhearing 21 Minister Hodgson speaking. 22 A: And media reports. 23 Q: And media reports that you had 24 received. 25 A: That's -- that's my recollection.
2731 Q: Okay. Now when you spoke with Mr. 2 Beaubien, you wouldn't have been assuming things or 3 making things up that you thought may be happening. 4 You would have passed along information 5 that you would have known to be true or you would have 6 been briefed on by certain people, right? That's fair -- 7 fair to say? 8 A: You're asking me would I have made up 9 things to tell Mr. Beaubien? 10 Q: When you spoke with Mr. Beaubien -- 11 A: Yes. 12 Q: -- the things that communicated were 13 things that had been briefed to you. It wasn't things 14 that you were inferring or assuming or something like 15 that, right? 16 A: When I passed on information, it 17 would be information that I believed to be information, 18 yes. 19 Q: And you didn't have firsthand 20 information so you obviously you were relying on the 21 source that we just referred to, right? 22 A: Again, to refresh your memory, my 23 recollection of our discussion on the 5th had to do with 24 whether he ought to be sending out a news release or not. 25 So we talked about that.
2741 And I did go to the person who's 2 responsible for the media and discussed it with him, Paul 3 Rhodes. We came to a consensus and I conveyed that 4 consensus to Marcel, and he agreed. 5 Q: Okay. There was a little more that 6 you spoke about with Marcel besides whether or not he 7 should send out the press release, right? 8 For example, and I'll take you through 9 this, you already said that he mentioned to you the 10 feelings of the constituents and I think it's correct 11 that he said that his constituents wanted rapid action? 12 A: I -- I don't recall that. The -- the 13 other thing I guess is -- I had several conversations 14 with Marcel. I believe the one on the 5th was about the 15 news release. 16 Q: We've established that there was 17 definitely one (1) conversation between the 5th -- there 18 was definitely one (1) conversation that happened -- 19 A: On the 5th. 20 Q: -- during the course of September 5th 21 and 6th. There may have been some after -- after the 7th 22 and I'm not asking about those. 23 A: I'm not certain of that. You haven't 24 asked me that. 25 Q: Right.
2751 A: I'm saying there was one (1) for sure 2 on the 5th, there may have been another one (1) or two 3 (2) on the 6th or 7th, I don't recall specifically. 4 I -- and one (1) of the reasons I -- I may 5 not recall specifically is even though e-mail had barely 6 been invented, we did have voice mail. So there may have 7 been messages left back and forth on voice mail, that 8 type of thing. 9 Whether we connected that day or it had to 10 wait until the next morning, I -- I really can't 11 remember. 12 Q: Now what I wanted to ask you 13 specifically about was the content of, whenever it 14 happened, the content of -- of Mr. Beaubien's comments to 15 you. And one (1) of the things you were asked about in 16 your Examination for Discovery, and that was on September 17 17th of 2001, you were asked the following question, at 18 page 46 of the transcript, Question Number 179: 19 "Q: Did he tell you that he or his 20 constituents wanted fast action, rapid 21 action, anything like that? 22 A: Absolutely. As I say, the general 23 consensus, and certainly he reported 24 this on behalf of his constituents, was 25 that they would like a resolution very
2761 quickly." 2 Do you recall giving that answer? 3 A: Vaguely, but I -- I think that's was 4 my answer to you, a number of minutes ago, on that same 5 question, yes. 6 Q: I didn't recall you saying that, but 7 that's -- 8 A: To somebody. 9 Q: -- that's -- that's correct. 10 A: Early today. 11 Q: Right. You don't resile from that 12 comment? 13 A: The general consensus was because of 14 public safety concerns, the sooner the situation get 15 resolved, the better. 16 Q: Okay. I think what you gave, like, 17 in answer was -- 18 A: And -- and I believe that the 19 constituents agreed with that as well. 20 Q: Okay. 21 A: Yeah. 22 Q: So you spoke with the Premier and 23 you're telling me now that you recall Mr. Beaubien saying 24 that his constituents wanted rapid, or fast action? 25 COMMISSIONER SIDNEY LINDEN: I am sorry.
2771 Did you say he spoke with the Premier? I am sorry, is 2 that what you said? I just heard -- 3 MR. VILKO ZBOGAR: We -- Mr. King, I 4 recall, did say that the Premier, as was his 5 understanding, wanted fast action. 6 THE WITNESS: You asked me -- 7 MR. VILKO ZBOGAR: I didn't say -- 8 THE WITNESS: You -- you -- 9 THE WITNESS: I didn't say you spoke with 10 the Premier, I asked what his understanding was, and -- 11 and I think -- 12 THE WITNESS: Generally from my contacts 13 in the office. I don't remember specifically, Marcel, 14 saying that I -- the message that's being conveyed is 15 that everybody wanted it resolved very -- and get on -- 16 and get on with talking about the real issue, which was a 17 land claim or a -- a burial ground -- claim that was at 18 issue. 19 20 CONTINUED BY MR. VILKO ZBOGAR: 21 Q: Did you pass along to Ms. Hutton or 22 Mr. Rhodes, or anybody else, that the constituents or the 23 MPP were on-side with what the Government wanted in terms 24 of wanting a fast resolution or anything like that? 25 A: Most -- the -- the conversation that
2781 I recall with Paul Rhodes was to get advice about the 2 news release, the one with Deb was to find out about this 3 injunction. And so I wasn't sending messages, I was 4 looking for information. 5 Q: So you don't recall whether you did 6 or not? It may have come up, I think you suggested 7 before, but you don't recall? 8 A: Usually when -- when you call 9 somebody, or when I do, I always explain my reason why. 10 I'd say, Look, I got a call from Marcel, he's getting a 11 lot of pressure from his constituents, they want to know 12 what's going on, why is this taking so long, what's 13 happening, and I hear we're doing an injunction. 14 Deb would say, Yeah, we are, Courts are 15 slow, -- justice is slow, these things take time, just, 16 you know, let Marcel know that due process is being 17 followed. 18 And that was like our conversation. 19 Q: I take it you are paraphrasing or 20 characterizing the conversation, that's not specifically 21 the contents or words used? 22 A: That's what I -- now, I don't recall 23 word for word what was said, but that's the gist of what 24 I took away. I mean, we're talking thirty (30), forty- 25 five (45) second conversations here.
2791 COMMISSIONER SIDNEY LINDEN: Unless there 2 is something new now, Mr. Zbogar, I think you have 3 exhausted this particular line. 4 MR. VILKO ZBOGAR: Yes. 5 6 CONTINUED BY MR. VILKO ZBOGAR: 7 Q: I am -- I am moving on to the next 8 question which is: Mr. Beaubien, now you also were 9 asked, or -- or you also told Mr. Klippenstein, during 10 your Examination for Discovery, that prior to the 11 shooting, you understood that many of the local residents 12 had been forced to evacuate their homes? 13 Do you recall giving that evidence first 14 of all in that discovery? 15 A: I did, pretty well word for word what 16 I -- the evidence I've given them exactly on that 17 subject today, yeah. 18 Q: Do you recall Mr. Beaubien passing 19 that information along to you in September of 1995? 20 A: My recollection is that's where I got 21 that information. I may also have got it from newspaper 22 or media clippings on -- from the local press. 23 Q: Now, in terms of the chronology of 24 that, when that information came to your attention, I 25 don't believe there's any evidence that there was an
2801 evacuation taking place, of the homes in the area until 2 after the shooting. 3 It's possible that when you said that you 4 understood that people were being forced to evacuate, 5 that information came to you after the shooting? 6 A: As I say, I cannot remember 7 specifically to that level of detail, so again, 8 anything's possible. 9 10 (BRIEF PAUSE) 11 12 Q: And do you recall Mr. Beaubien 13 telling you that he had spoken with the OPP on September 14 5th of 1995? 15 A: Yes. 16 Q: Yes. 17 18 (BRIEF PAUSE) 19 20 A: I'm sorry, I always have to stop and 21 think because I -- I'm never clear whether these are new 22 questions or -- I'm realizing now you're over the same 23 questions that I've already answered, so -- 24 Q: Well, I want to get into -- 25 A: -- I apologize --
2811 Q: I want to get into a bit more -- 2 A: Okay. 3 Q: -- detail on this -- 4 A: But I -- 5 COMMISSIONER SIDNEY LINDEN: Well -- 6 THE WITNESS: I start thinking was there 7 another time or another incident, so that's what confuses 8 me with -- when you repeat the same. 9 10 CONTINUED BY MR. VILKO ZBOGAR: 11 Q: I think Mr. Beaubien's evidence in 12 discovery at page 108 of his transcript, if I could 13 paraphrase it, was that he might have discussed with you 14 that OPP Staff Sergeant Wade Lacroix was telling him that 15 there was no danger to individuals -- 16 A: No recollection of that. 17 COMMISSIONER SIDNEY LINDEN: Sorry, I 18 didn't hear that. There was what? Wade Lacroix said 19 what? 20 21 CONTINUED BY MR. VILKO ZBOGAR: 22 Q: Mr. Beaubien said that might have 23 discussed with you that OPP Staff Sergeant Wade Lacroix 24 was telling him, Mr. Beaubien, that there was no danger 25 to individuals.
2821 A: I don't recall that. 2 Q: You don't recall him saying that to 3 you? 4 A: No, no. 5 Q: Mr. Beaubien also stated in discovery 6 that he might have mentioned to you that Lacroix, Staff 7 Sergeant Lacroix had advised that there were about sixty 8 (60) officers on the scene; there were two (2) teams 9 present around the clock. 10 Do you recall him saying like that to you? 11 A: No. 12 Q: If he did would you remember? 13 A: I think so and partly because I -- 14 even when you use the gentleman's name, the officer, I -- 15 I've never -- I don't think I've ever heard that name 16 before, so. 17 Q: Okay. Now he may not have passed 18 along to you the officer's name, but do you recall the 19 information generally that I described being passed along 20 to you? 21 A: No, no. I remember Marcel saying 22 that he'd gone to the scene of where they were doing all 23 this and getting information and sharing information for 24 his constituents. 25 Q: Mr. Beaubien also explained in
2831 discovery that he believed you mentioned -- 2 COMMISSIONER SIDNEY LINDEN: Just before 3 you go on, Mr. Zbogar. 4 Yes, Mr. Sulman...? 5 MR. DOUGLAS SULMAN: I've sat fairly 6 quietly, but the objection is one that's procedural. I 7 don't -- number one, Mr. -- I'm not Mr. King's Counsel. 8 I'm not Mr. King's Counsel. Mr. King doesn't have 9 Counsel here, unlike many -- 10 COMMISSIONER SIDNEY LINDEN: Mr. King 11 doesn't have Counsel. 12 MR. DOUGLAS SULMAN: -- of the witnesses. 13 But I think in fairness to him, the proper procedure 14 would be to ask these questions. 15 You can ask the same question without 16 giving them credibility by saying, Out of Mr. Beaubien's 17 examination for discovery, which isn't before you by the 18 way, and Mr. Beaubien isn't before you. 19 And in my experience the use of an 20 examination for discovery transcript is more properly 21 used to impeach the -- he should be using his own in 22 impeaching his credibility on that basis. 23 He didn't put that in front of him while 24 he was asking questions, by the way, but I sat quietly 25 during that --
2841 COMMISSIONER SIDNEY LINDEN: Yes. 2 MR. DOUGLAS SULMAN: -- so we could get 3 moving. 4 But the fact of the matter, sir, is that 5 the proper way to ask those questions is not from Mr. 6 Beaubien's examination for discovery. Just put them to 7 him -- 8 COMMISSIONER SIDNEY LINDEN: Yes. 9 MR. DOUGLAS SULMAN: Put the questions to 10 him and it's improper to do it the way it's being done. 11 COMMISSIONER SIDNEY LINDEN: Yes, I mean, 12 that's all you need to do. You need to just put the 13 questions and that's fine. 14 MR. VILKO ZBOGAR: I -- I want to give 15 the witness a fair opportunity to respond -- 16 COMMISSIONER SIDNEY LINDEN: No, I'm sure 17 that that's fair to do it that way. 18 MR. VILKO ZBOGAR: -- to that. 19 COMMISSIONER SIDNEY LINDEN: That's why 20 we're suggesting you do it another way. 21 MR. VILKO ZBOGAR: I'll -- I'll rephrase 22 my questions in that light. 23 COMMISSIONER SIDNEY LINDEN: That's fine. 24 25 CONTINUED BY MR. VILKO ZBOGAR:
2851 Q: And do you recall Mr. Beaubien 2 mentioning to you a -- that there had been a claim raised 3 of a burial ground in the Park? 4 A: That was so common knowledge that I - 5 - I don't remember him specifically saying it as well. 6 Q: By common knowledge, I take it you 7 mean you were aware of that from, among other sources, 8 the press? 9 A: I -- I thought that was the whole 10 point of the occupation from day one. I don't think he 11 would have brought that to my attention as news. 12 Q: Okay. So pretty much upon learning 13 of the occupation, you were also of the understanding 14 that one (1) of the reasons for it was that there was a 15 claim of a burial ground in the Park; is that right? 16 A: I -- I think so. 17 Q: Okay. And you don't recall whether 18 or not you discussed the burial ground issue with Mr. 19 Beaubien? 20 A: No. 21 22 (BRIEF PAUSE) 23 24 Q: Do you recall -- I think this has 25 been covered, but I want to get into other areas. Do you
2861 recall passing along to Mr. Beaubien that the Government 2 -- the information that the Government was seeking a 3 court injunction to end the illegal occupation of the 4 Park? 5 A: Sorry, repeat that? 6 Q: Do you recall passing along to Mr. 7 Beaubien your understanding that the Government was 8 seeking a court injunction to end the illegal occupation 9 of the Park? 10 A: Yes. 11 Q: And you would have done that on 12 September the 5th, to your recollection? 13 A: I actually think it might have been 14 later than that, but I can't remember specifically when 15 it was. It was when I was told about it. 16 Q: Okay. So that -- that wouldn't have 17 happened on the 5th because there had been no decision 18 made at that point for an injunction; is that fair? 19 A: I don't know when the decision was 20 made. 21 MR. DERRY MILLAR: Well, in fairness 22 Exhibit P-732 at Tab 3 the comments that My Friend took 23 the Witness to of Mr. Hodgson talks about the Government 24 getting an injunction on September 5th, as did in the 25 scrum that the Witness said he may have -- he probably
2871 overheard. 2 MR. VILKO ZBOGAR: Mr. Hodgson said in 3 his press release, We were looking at the option of the 4 injunction and other options. 5 COMMISSIONER SIDNEY LINDEN: That's fine. 6 MR. VILKO ZBOGAR: There had been no 7 decision. We -- we've heard this evidence. 8 COMMISSIONER SIDNEY LINDEN: That's fine. 9 That was on the 5th? 10 MR. VILKO ZBOGAR: Yeah. 11 COMMISSIONER SIDNEY LINDEN: That's fine. 12 Carry on. 13 MR. VILKO ZBOGAR: So, I'll carry on. I 14 don't think Mr. Millar's reading of that is -- that that 15 was a decision is -- is correct. 16 THE WITNESS: I -- I may -- 17 MR. VILKO ZBOGAR: It was -- it was an 18 option under -- under consideration, but it wasn't a 19 decision at that point. 20 THE WITNESS: However, I may have 21 conveyed that information to Mr. Beaubien on the day that 22 I received it. 23 MR. VILKO ZBOGAR: Right. 24 25 (BRIEF PAUSE)
2881 COMMISSIONER SIDNEY LINDEN: Mr. 2 Millar...? 3 MR. DERRY MILLAR: Mr. Zbogar is right 4 and -- 5 COMMISSIONER SIDNEY LINDEN: Yeah. 6 MR. DERRY MILLAR: -- in the sense that - 7 - I'm not -- I wasn't saying that it shouldn't have been 8 taken, but they were talking about an injunction. 9 COMMISSIONER SIDNEY LINDEN: In the memo 10 on September the 6th? 11 MR. DERRY MILLAR: No, the September -- 12 well, it's reporting on the September the 5th news 13 conference -- 14 COMMISSIONER SIDNEY LINDEN: Yes, that's 15 what I'm talking about; that's all. 16 MR. DERRY MILLAR: -- of Hodgson. 17 18 CONTINUED BY MR. VILKO ZBOGAR: 19 Q: I'd like to refer you to Inquiry 20 Document 12000067, which is a version of Mr. Beaubien's 21 press release of September 5th, 1995. If I could hand a 22 copy up? 23 24 (BRIEF PAUSE) 25
2891 Q: Have you seen this version of the 2 press release before with Mr. Beaubien's handwritten 3 notes? I'm -- I'm told -- Mr. Beaubien tells us that 4 that's his writing. 5 A: I was certainly given a copy of it. 6 COMMISSIONER SIDNEY LINDEN: Just a 7 minute, Mr. King. 8 Mr. Sulman...? 9 I don't know where Mr. Beaubien tells you 10 that we haven't heard -- 11 MR. VILKO ZBOGAR: In his Examination for 12 Discovery -- 13 MR. DOUGLAS SULMAN: Just by submission. 14 COMMISSIONER SIDNEY LINDEN: Yeah, well, 15 put that -- 16 MR. VILKO ZBOGAR: This isn't an issue of 17 credibility, this is just simply saying this is whose 18 writing it is, just for identification. 19 COMMISSIONER SIDNEY LINDEN: You have 20 that information from the discovery? 21 MR. VILKO ZBOGAR: Absolutely. 22 COMMISSIONER SIDNEY LINDEN: That's fine. 23 MR. DOUGLAS SULMAN: That's -- 24 COMMISSIONER SIDNEY LINDEN: I'm sorry. 25 I don't know that.
2901 MR. VILKO ZBOGAR: That's his writing, 2 Mr. Sulman. 3 COMMISSIONER SIDNEY LINDEN: We're trying 4 to shorten things. I mean -- 5 MR. DOUGLAS SULMAN: Absolutely, but the 6 way to put the question is -- is not that Mr. Beaubien 7 told him that that's his writing -- 8 COMMISSIONER SIDNEY LINDEN: No, it's to 9 put it -- 10 MR. DOUGLAS SULMAN: -- or establishing 11 that it's his writing, it's to put it in the form of a 12 question that if it is Mr. Beaubien's writing and go from 13 there. 14 COMMISSIONER SIDNEY LINDEN: That's fine. 15 MR. DOUGLAS SULMAN: But he hasn't given 16 evidence before you, Your Honour, and the transcripts of 17 his examination for discovery are not documents filed in 18 this proceeding. 19 COMMISSIONER SIDNEY LINDEN: You're 20 right. 21 So I know you're trying to cut to the 22 chase as it were, Mr. Zbogar, but it's not helpful to do 23 it that way. 24 MR. VILKO ZBOGAR: Okay. 25 COMMISSIONER SIDNEY LINDEN: And it may
2911 not be fair. 2 3 CONTINUED BY MR. VILKO ZBOGAR: 4 Q: Let me put it this way: I anticipate 5 the evidence will be that this is Mr. Beaubien's writing? 6 COMMISSIONER SIDNEY LINDEN: Something 7 like that would be more appropriate. 8 9 CONTINUED BY MR. VILKO ZBOGAR: 10 Q: Have you seen this version of the 11 press release before? 12 A: Yes. 13 Q: Do you recall when? 14 A: Commission Counsel gave me a copy 15 when I arrived here today. 16 Q: Okay. And previous to that? 17 A: I don't recall before that. 18 Q: Okay. And I anticipate the evidence 19 will be that the notes in handwriting at the top of that 20 page and -- and along the right hand side were recording 21 things that you passed onto him. And the handwriting, 22 we'll -- we'll ask Mr. Beaubien about this but I'll give 23 you my best guess as to what it says, and you can tell me 24 if you disagree or not. 25 It says:
2921 "MNR issue. Not and Indian issue. Is 2 a provincial park issue. Premier is 3 following closely. Police is there to 4 assist MNR." 5 I know that part of it's cut off but I 6 anticipate that's what we'll hear those words say. And 7 then I believe the next part says: 8 "Uphold the law no matter who was 9 involved." 10 And I know you can't make all of that out. 11 Do you -- is that, as far as you can tell, a fair or 12 reasonable reading of those words? 13 A: Well I certainly can't tell the part 14 that's -- that's not there, where it's cut off so I -- 15 your guess is as good as mine. I can read -- I think I 16 can read, although I actually read this as to say: 17 "It is a provincial park's issue. 18 Premier isn't following closely." 19 Would be my read, but. 20 Q: Okay. We'll -- 21 A: I don't know. 22 Q: -- we'll leave that for Mr. Beaubien, 23 but. 24 A: I was going to say you'd have to ask 25 Mr. Beaubien.
2931 Q: Right. Now I want to ask you about 2 those comments, because in light of the evidence that I 3 anticipate we'll hear from Mr. Beaubien. 4 First of all the comment about: 5 "MNR issue, not an Indian issue. It is 6 a provincial park's issue." 7 Do you have any reason to believe you 8 didn't say those words to Mr. Beaubien? 9 A: Do I have any reason to believe I 10 didn't say those words to Mr. Beaubien? 11 Do I have any reason to believe I did say 12 those words to Mr. Beaubien? 13 Q: Well tell me either way. 14 A: I -- I -- I haven't got a clue. Are 15 you asking is -- is -- did I say those things to him? 16 Q: Did you say anything to Mr. 17 Beaubien -- 18 A: Right. 19 Q: -- along the lines of MNR issue, not 20 an Indian issue. It is a provincial park's issue? I 21 guess the answers are "yes," "no" or "I don't recall" or 22 I -- 23 A: I don't recall. I -- when I read 24 that it seems consistent with the Government's position 25 which we've referred to earlier which is: This is about
2941 -- this isn't a Native land claim issue. It's about a 2 provincial park occupation and the land claim would be 3 dealt with after the occupation ended. 4 So in that context I -- that's the type of 5 information I would have conveyed to him based on what I 6 understood the position was. 7 Whether the Premier was following it 8 closely or not, I don't know. 9 Q: Well let me ask my questions one at a 10 time here. 11 A: Okay. 12 Q: I guess further to your -- your 13 previous comment that it's the type of thing you probably 14 would have communicated. 15 You're not aware of any other source 16 through which Mr. Beaubien could have or would have 17 received that particular information? 18 A: You would have to ask Mr. Beaubien. 19 Q: Okay. But you're not aware, right? 20 A: I can't speak for Mr. Beaubien. 21 Q: Okay. Do you recall who or what was 22 specifically your source for that specific comment? 23 A: No. 24 Q: The next comment is, either Premier 25 is or isn't following closely. And I'll ask Mr. Beaubien
2951 what his interpretation of that is. 2 And again, you have -- I guess it may be 3 difficult to -- well let me ask you the both questions. 4 Do you recall telling Mr. Beaubien that 5 the Premier is following the situation closely? 6 A: I -- yeah, I don't -- I don't recall. 7 I'm -- I'm trying to think of what context I might have 8 said either one of those things. 9 Q: Right. 10 A: And I -- I can't even figure out -- I 11 mean, even if he wasn't I'd probably tell an MPP that he 12 was. 13 Q: Right. 14 A: So we really care about your issue, 15 you know, that type of thing. 16 Q: It's reasonable that you would have 17 possibly told Mr. Beaubien that the Premier is following 18 the situation closely? 19 A: That's reasonable, yes. 20 Q: And given what you see there that's 21 probably what you did tell him? 22 A: Unless he -- 23 Q: Is that fair? 24 A: Unless he was debating with me and 25 writing notes to himself about how he felt about what I
2961 was saying. I don't know. 2 Q: Okay. 3 A: And again, what he wrote I can't 4 speak to. Whether the Premier was following it closely 5 or not, my practice would have been to tell members the 6 Premier cared very, very, very much about their issues 7 and was right on top of it. 8 Q: Right. Now, the next comment, and 9 it's cut off a little bit, but my -- I believe it -- it 10 says and -- and we'll hear from Mr. Beaubien on this of 11 course: 12 "Police is there to assist MNR." 13 Do you recall saying anything along those 14 lines to Mr. Beaubien, that the police are there at the 15 Park, or in the area to assist MNR? 16 A: No, I don't recall that except that I 17 guess, as I understood it, MNR -- provincial parks are 18 run by MNR so when somebody took it over they -- I guess 19 they kicked out the MNR people and the MNR people called 20 the police. 21 Q: Okay. So back to my question, do you 22 re -- is it -- 23 A: Whether I told him that I don't -- I 24 can't recall. 25 Q: Okay. Now, is it reasonable that you
2971 probably would have said that, given what you see here, 2 if that's, in fact, what those words say? 3 A: If he'd asked me about why the police 4 were there or what's the role of the police, I would have 5 probably characterized it like I just did to you, that 6 MNR got kicked out so they called the police. And the 7 police would be there to assist them. 8 Q: Do you know -- do you know what your 9 specific source of that information, The police were 10 there to assist the MNR, was? 11 A: I may have made that one up on my 12 own. 13 Q: Hmm hmm. 14 A: If I said it, which I can't recall. 15 Q: Okay. 16 A: I just kind of made it up here just 17 trying to think of why. You're asking me the questions 18 and I'm trying to give you an answer. 19 Q: No, I appreciate it's a long time so 20 if -- if you can identify the source of that, that's 21 great. If you -- 22 A: I -- I don't think anybody advised me 23 that police are there to help people when they call for 24 help. I -- I -- that was probably me. 25 Q: Now, the next comment is -- seems to
2981 be: 2 "Uphold the law." 3 Do you recall any discussion with Mr. 4 Beaubien about upholding the law? 5 A: Well, there was always -- and I think 6 he was getting this from his constituents saying: 7 Because they're native, as opposed to non-native, would 8 these occupiers be treated any differently? 9 And I think the view that I would have 10 expressed to anybody who asked me was if somebody's 11 breaking the law then you would be treated the same. 12 Q: Right. I think that fits with the 13 next -- what I believe are the next words: 14 "Uphold the law no matter who was 15 involved." 16 So that would be consistent with the kind 17 of thing you... 18 A: Well, that -- that's what I was 19 referring to. 20 Q: You may have said to Mr. Beaubien or 21 probably would have said? 22 A: You're really asking me to speculate. 23 I don't remember saying that but that would be consistent 24 with my view of: If somebody breaks the law it doesn't 25 matter who they are, they -- they -- the police would
2991 treat the same, yes. 2 Q: And that's obviously consistent with 3 the Government's policy or position at that time. 4 A: Certainly the Ron Vrancart memo, yes. 5 Q: And we've heard or seen some evidence 6 that at the Interministerial Committee meetings Ms. 7 Hutton said that this government treats Aboriginals and 8 non-Aboriginals the same. 9 COMMISSIONER SIDNEY LINDEN: I don't 10 think -- 11 THE WITNESS: I didn't attend those so I 12 don't know. 13 COMMISSIONER SIDNEY LINDEN: I don't 14 think that's -- 15 MR. DERRY MILLAR: Yeah. 16 COMMISSIONER SIDNEY LINDEN: -- a good 17 way to put that. 18 MR. DERRY MILLAR: As he put it he wasn't 19 there. I don't know how he can -- 20 COMMISSIONER SIDNEY LINDEN: Yes, that's 21 a -- 22 MR. DERRY MILLAR: -- respond as to a 23 meeting he wasn't there at. 24 MR. VILKO ZBOGAR: Well, I want to see if 25 there's any connection between those kinds of comments
3001 and this kind of comment because there seems to be -- 2 COMMISSIONER SIDNEY LINDEN: Well, how 3 can -- 4 MR. DERRY MILLAR: Well, how can he 5 answer what Ms. Hutton did? It's impossible. It's -- 6 you know -- 7 COMMISSIONER SIDNEY LINDEN: No, it 8 isn't, not with that question. 9 MR. VILKO ZBOGAR: Well, we know those 10 comments were made at the Interministerial Committee 11 Meeting, but those ideas were -- 12 MR. DERRY MILLAR: But -- 13 MR. VILKO ZBOGAR: If Mr. Millar can 14 please let me respond to his objection, I'd appreciate 15 it. 16 MR. DERRY MILLAR: I'll wait. 17 MR. VILKO ZBOGAR: We are aware that Ms. 18 Hutton made those comments at the Interministerial 19 Committee Meeting. 20 It also appears that it may be the case 21 that that was a general policy of the Government at that 22 time, that it treats Aboriginals and non-Aboriginals the 23 same so -- 24 MR. DERRY MILLAR: Well, I'm waiting for 25 him to --
3011 MR. VILKO ZBOGAR: This is -- this 2 something that we have to leave for argument obviously, 3 Mr. Commissioner and I'm happy to do that. 4 COMMISSIONER SIDNEY LINDEN: I'm sorry, 5 something? Something? 6 MR. DERRY MILLAR: Well, I'll wait until 7 he's finished. Firstly -- are you finished? 8 MR. VILKO ZBOGAR: No, I'm not. 9 COMMISSIONER SIDNEY LINDEN: Line up. 10 Just line up and wait okay? That's fine. We have Ms. 11 Perschy and Mr. Downard and Mr. Millar all waiting to 12 speak. 13 MR. VILKO ZBOGAR: Right. There are 14 matters that -- first of all we're aware of the comments 15 that were made at the Interministerial Committee meeting 16 by Ms. Hutton. 17 COMMISSIONER SIDNEY LINDEN: I'm sorry. 18 Would you say that again please? 19 MR. VILKO ZBOGAR: We're aware of the 20 comments that were made or reported to have been made -- 21 COMMISSIONER SIDNEY LINDEN: Are 22 attributed -- attributed to Ms. Hutton at a meeting. 23 MR. VILKO ZBOGAR: Attributed to Ms. 24 Hutton at those meetings. Yes. And I suppose it may be 25 a matter for argument based on -- on that and perhaps
3021 other evidence that that was the general position of the 2 Government at that time. 3 And what I wanted -- I'm simply asking Mr. 4 King whether there may be some connection between a 5 policy of that nature or a position of that nature and 6 this comment about upholding law no matter who was 7 involved. 8 I don't think it's a controversial 9 question. 10 MR. DERRY MILLAR: Well, first of all the 11 -- until you decide what the facts are, what was said, 12 some people have attributed comments to Ms. Hutton at the 13 meeting. It's up to you to decide whether they were made 14 or whether they were not made. That's your job as the 15 fact finder. We have attribution, we haven't heard yet 16 from Ms. Hutton. 17 Secondly, this witness can tell us what he 18 did, what he said, who he spoke to, what he understands - 19 - stood, but he cannot tell us what Ms. Hutton was 20 thinking about at a meeting that he did not attend that - 21 - and -- and he just can't tell somebody. 22 It's im -- it's an impossibility. 23 COMMISSIONER SIDNEY LINDEN: I agree with 24 you, Mr. Millar, and I'm going to ask you to move onto 25 another question, Mr. Zbogar.
3031 MR. VILKO ZBOGAR: I will, Mr. 2 Commissioner. The line behind me has thinned. 3 4 CONTINUED BY MR. VILKO ZBOGAR: 5 Q: Now reading those comments as a 6 whole, those handwritten notes on -- on that press 7 release -- actually by the way, has -- has this 8 particular document been made an exhibit. I don't know 9 if it's appropriate to make it an exhibit at this time or 10 whether we should deal through Mr. Beaubien. 11 COMMISSIONER SIDNEY LINDEN: I don't 12 think it has been made an exhibit. 13 THE REGISTRAR: Not handwritten, no. 14 MR. VILKO ZBOGAR: Perhaps we can do 15 that. 16 COMMISSIONER SIDNEY LINDEN: Yes. 17 THE REGISTRAR: P-961, Your Honour. 18 19 --- EXHIBIT NO. P-961: Document Number 12000067. 20 Press Release from Marcel 21 Beaubien MPP - Lambton with 22 handwritten notes September 23 05/'95. 24 25 MR. VILKO ZBOGAR: Thank you.
3041 2 CONTINUED BY MR. VILKO ZBOGAR: 3 Q: Those handwritten comments that 4 appear on that press release, which we've reviewed in 5 some detail now, I take it that what you were doing, in 6 part, was informing Mr. Beaubien of the Government's 7 position on the issue, generally, right? 8 A: I'm not certain he's recording what 9 I'm saying to him with these notes. 10 Q: Well, let me ask you. Were you -- so 11 the general question, were you passing along to Mr. 12 Beaubien in addition to giving him advice about whether 13 or not to send out a press release, isn't it correct that 14 you were giving him some information about the 15 Government's position on the occupation? 16 A: Certainly if he was asking me in our 17 discussions about the Government's position, I would give 18 him information. If he was asking me what the Government 19 was doing I would tell him what I knew about that. 20 Q: I see. And wondering if it's a -- 21 you spoke with Mr. Rhodes, you talked about that, and -- 22 and he advised you that this isn't a constructive thing 23 to send out. You agreed with that, you passed it onto 24 Mr. Beaubien -- 25 A: Correct.
3051 Q: -- and is it also fair that what you 2 were doing in speaking with Mr. Beaubien in part, was 3 giving him some comments that he could use in speaking 4 with his constituents, for example? 5 A: I -- I just don't recall whether he 6 was looking for that information or whether I imparted 7 that information to him in response to a request. I just 8 don't recall. 9 Q: Okay. Let me leave aside the 10 specifics of the content of the communication, but was 11 part of what you were doing giving Mr. Beaubien a script 12 for him in speaking with constituents? 13 A: That's -- that's what I don't recall. 14 It would not be unreasonable for him to have had a 15 discussion with me about what was going on. 16 Q: Right. 17 A: And I would have tried to explain 18 what I understood as best as I understood it. I'd -- I 19 wouldn't say, here's your lines. I don't think he was 20 looking for lines, he was looking to respond to his 21 constituents who he was calling on behalf of. 22 Q: Okay. Did you have any expectation 23 that probably once you told this information to Mr. 24 Beaubien, or in any context where you would have given 25 information to a -- to a Caucus Member, that that's
3061 probably what they're going to tell, or may well tell, 2 their constituents or to the press? 3 A: That would be the purpose. 4 Q: Right. I want to refer you to your 5 Tab Number 5, and it's a fax from Mr. Beaubien dated 6 September the 7th, and attached to that is an article, 7 three (3) pages in, with the headline, "Queen's Park To 8 Take a Hard Line Against Park Occupiers," and that is an 9 article from the Sarnia Observer, dated September 6th, 10 1995. 11 It doesn't appear on the page, but I can 12 advise you that other productions in the database confirm 13 that. 14 And you were taken to this earlier, you 15 recall -- by the way this is Exhibit, for the record, 16 P-955. 17 COMMISSIONER SIDNEY LINDEN: Yes. You 18 said the date was September the 6th, of the article. 19 MR. VILKO ZBOGAR: The article is dated 20 September 6th, 1995. 21 COMMISSIONER SIDNEY LINDEN: I do not see 22 that on here, but you know that? 23 MR. VILKO ZBOGAR: It's not -- it's not 24 on there. 25 COMMISSIONER SIDNEY LINDEN: That's fine.
3071 MR. VILKO ZBOGAR: Other productions in 2 the database do confirm that, I can assure you, Mr. 3 Commissioner. 4 COMMISSIONER SIDNEY LINDEN: That's fine. 5 Okay. 6 7 CONTINUED BY MR. VILKO ZBOGAR: 8 Q: I don't want to spend much time on 9 this, but you saw this a bit earlier today and I want to 10 refer you to the first three (3) or four (4) paragraphs. 11 A: Right. 12 Q: It says: 13 "The Provincial Government has taken 14 the hard line on the Native occupiers 15 at Ipperwash Provincial Park," 16 which is the Journalist's commentary on this situation, 17 or the understanding of it. 18 A: Right. 19 Q: Then the next part is what I'm 20 interested in: 21 "We -- we will uphold the law no matter 22 who is involved, Lambton MPP Marcel 23 Beaubien said, If you are there 24 illegally, you will be asked to leave. 25 He was in contact with Queen's Park
3081 Tuesday and said Premier Mike Harris is 2 following this Park takeover closely. 3 This..." 4 and then in quotes, 5 "This is an MNR (Ministry of National 6 Resources) issue, not a Native issue, 7 Mr. Beaubien said." 8 Now, that appears to correspond very 9 closely to what appears on the press release that we just 10 reviewed. 11 A: Right. 12 Q: Was there any kind of suggestion -- I 13 don't know if that helps you advise me whether there was 14 any kind of suggestion or instruction that this should be 15 -- this is the party line, this is what should be 16 communicated to the press, if you're speaking with them? 17 A: Again, I don't really know. My -- my 18 observation in reading this is, in terms of his quotes, 19 as opposed to the editorial comment, I don't see anything 20 I disagree with or would have disagreed with at the time. 21 Q: Okay. 22 A: The law is the law and if somebody 23 breaks the law, the Government will prosecute type thing. 24 Q: Okay. The -- having read those 25 comments, most of them appear to parallel what we've just
3091 reviewed in -- in handwriting in Mr. Beaubien's press 2 release, the one that isn't on -- in the handwriting on 3 the press release is the comment which says, 4 "If you are there illegally, you will 5 be asked to leave." 6 Do you recall specifying or saying 7 anything like that to Mr. Beaubien in speaking with him? 8 A: No. 9 Q: It's possible you did, or likely you 10 did, but you don't recall? 11 A: I think -- I don't disagree with, if 12 somebody's somewhere illegally, they would be asked to 13 leave, that makes sense to me. 14 Q: But my question was whether you 15 advised him of that? 16 A: And I said I don't recall. And you 17 asked me if it was possible and that's the best answer I 18 can give to and if it's a possible question. 19 MR. VILKO ZBOGAR: Mr. Commissioner, I 20 have a couple -- I'm -- I'm planning on starting a new 21 area. I don't know if -- when you'd like to break for 22 the day. 23 COMMISSIONER SIDNEY LINDEN: How much 24 longer would you be, just so we can get an idea of where 25 we are?
3101 MR. VILKO ZBOGAR: I should be -- I'm 2 guessing half an hour to forty-five (45) minutes. 3 COMMISSIONER SIDNEY LINDEN: Okay. I 4 think this would be -- we usually break at 4:30. I know 5 we don't have a lot to go and if we could finish today I 6 would, but I don't think so. 7 MR. VILKO ZBOGAR: It's unlikely. 8 COMMISSIONER SIDNEY LINDEN: We still 9 have Mr. Rosenthal. I don't want to rush him and I think 10 that we should break now unless there's an outcry, a 11 scream, a roar. 12 I'm not anxious to stay any more than 13 anybody else, but we start at nine o'clock in the morning 14 and it's a long day for all of us and unless somebody has 15 some objection, I plan to adjourn now and reconvene 16 tomorrow morning at nine o'clock and have you finish and 17 carry on from there. 18 MR. VILKO ZBOGAR: Thank you. 19 COMMISSIONER SIDNEY LINDEN: I don't hear 20 any screaming. Thank you very much. We'll reconvene 21 tomorrow morning at nine o'clock. 22 23 (WITNESS RETIRES) 24 25 THE REGISTRAR: This Public Inquiry is
3111 adjourned until tomorrow, Thursday, November 17th at 9:00 2 a.m. 3 4 --- Upon adjourning at 4:27 p.m. 5 6 7 Certified Correct, 8 9 10 11 _________________ 12 Wendy Warnock, Ms. 13 14 15 16 17 18 19 20 21 22 23 24 25