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 24th, 2005 25
21 Appearances 2 Derry Millar ) Commission Counsel 3 Susan Vella ) (np) 4 Donald Worme, Q. C ) 5 Katherine Hensel ) (np) 6 Megan Ferrier ) (np) 7 Murray Klippenstein ) (np) The Estate of Dudley 8 Vilko Zbogar ) George and George 9 Andrew Orkin ) (np) Family Group 10 Basil Alexander ) (np) 11 12 Peter Rosenthal ) (np) Aazhoodena and George 13 Jackie Esmonde ) Family Group 14 15 Anthony Ross ) (np) Residents of 16 Cameron Neil ) (np) Aazhoodena (Army Camp) 17 Kevin Scullion ) 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 ) 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 ) Police Association & 4 Debra Newell ) (np) K. Deane 5 Ian McGilp ) (np) 6 Annie Leeks ) (np) 7 Jennifer Gleitman ) (np) 8 Robyn Trask ) (np) 9 10 Julian Falconer ) Aboriginal Legal 11 Brian Eyolfson ) (np) Services of Toronto 12 Kimberly Murray ) (np) 13 Julian Roy ) (np) 14 Clem Nabigon ) (np) 15 Adriel Weaver ) (np) Student-at-Law 16 17 Al J.C. O'Marra ) (np) Office of the Chief 18 Robert Ash, Q.C. ) (np) Coroner 19 20 William Horton ) Chiefs of Ontario 21 Matthew Horner ) 22 Kathleen Lickers ) (np) 23 24 25
51 APPEARANCES (cont'd) 2 Mark Fredrick ) (np) Christopher Hodgson 3 Craig Mills ) (np) 4 Megan Mackey ) (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 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 CHARLES HARNICK, Sworn 6 Examination-In-Chief by Mr. Donald Worme 9 7 8 9 10 11 Certificate of Transcript 129 12 13 14 15 16 17 18 19 20 21 22 23 24 25
71 EXHIBITS 2 No. Description Page 3 P-974 Document Number 1011738. ONAS 4 Briefing Note for Charles Harnick, 5 attaching appendix: Guidelines for 6 Responding to Aboriginal Emergencies, 7 Sept. 05/'95. 84 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
81 --- Upon commencing at 9:06 a.m. 2 3 THE REGISTRAR: This Public Inquiry is 4 now in session, the Honourable Mr. Justice Linden 5 presiding. Please be seated. 6 COMMISSIONER SIDNEY LINDEN: Good 7 morning. 8 MR. CHARLES HARNICK: Good morning. 9 COMMISSIONER SIDNEY LINDEN: Welcome to 10 Forest. 11 MR. CHARLES HARNICK: Thank you. 12 MR. DONALD WORME: Good morning, 13 Commissioner. 14 COMMISSIONER SIDNEY LINDEN: Good 15 morning. 16 MR. DONALD WORME: Commissioner, we -- 17 before we call the next witness just a public 18 announcement. As you are aware the Ontario Provincial 19 Police Highway Traffic report has suggested that driving 20 conditions are treacherous and likely to get worse before 21 they get better. 22 Accordingly, I have announced to My 23 Colleagues that we would try to break as early as 24 possible to facilitate driving at least in the daylight 25 hours and so I've indicated that potentially 12:00 --
91 between 12:00 and 1:00. 2 COMMISSIONER SIDNEY LINDEN: We'll keep 3 our eye on the weather reports as we move forward and if 4 it gets worse then we'll decide what to do. Okay? 5 MR. DONALD WORME: All right. Thank you, 6 Commissioner. The next witness then we would call in the 7 Inquiry is Charles Harnick, QC. 8 THE REGISTRAR: Good morning, Mr. 9 Harnick. 10 MR. CHARLES HARNICK: Good morning. 11 THE REGISTRAR: Sir, do you prefer to 12 swear on the Bible or affirm? 13 MR. CHARLES HARNICK: I could swear on 14 the Bible. 15 THE REGISTRAR: The bible's on your 16 right. Now, take it in your right hand, please. And 17 could you state your name in full for the record please. 18 MR. CHARLES HARNICK: Charles Harnick. 19 THE REGISTRAR: Thank you. 20 21 CHARLES HARNICK, Sworn 22 23 EXAMINATION-IN-CHIEF BY MR. DONALD WORME: 24 Q: Good morning, Mr. Harnick. 25 A: Good morning.
101 Q: Now, Mr. Harnick I had requested of 2 you and your counsel earlier the -- that you would 3 provide a CV and unfortunately you were unable to reach 4 your office, as I understand it, in order to obtain one. 5 And again as I understand you weren't entirely certain 6 that you had a -- a more recent curriculum vitae. 7 Nonetheless you were good enough to 8 provide me with a background on that and if -- if we may 9 I would like simply to commence by reviewing that with 10 you. 11 A: Yes? 12 Q: In terms then of your background, 13 sir, you had graduated from the University of Windsor 14 with your Bachelor of Laws in 1975? 15 A: Yes. 16 Q: And have been called to the Law 17 Society of Upper Canada in 1977? 18 A: Yes. 19 Q: You've practised law in a number of 20 law firms up until, approximately 1992, some seventeen 21 (17) years if my calculations are correct; initially at a 22 firm of Feigman Chernos? Am I saying that correctly? 23 A: Yes, Feigman and Chernos, yes. 24 Q: And from '93 to '95 at Mallach 25 Fiddler, again am I pronouncing that correctly?
111 A: Yes. 2 Q: At that -- in 1990 rather, you were 3 elected as the MPP for the Willowdale riding? 4 A: Yes. 5 Q: And you continued to practice 6 according to the notes that you've provided me with the 7 firm during the time that you were an MPP up until 1995? 8 A: Yes. 9 Q: All right. During the time that you 10 were elected -- oh pardon me, just before I go onto that. 11 From 1991 and onward, you were a specialist in civil 12 litigation? 13 A: Yes. 14 Q: And during the course of your elected 15 tenure from 1990, at least until 1995, you were the 16 critic for Justice and the Minister responsible for 17 Native Affairs. 18 A: Yes. 19 Q: All right. And sir, in 1995, with 20 the election of the Harris Government, the Conservative 21 Government, you were then appointed as the Attorney 22 General of Ontario? 23 A: Yes. 24 Q: As well as the Minister responsible 25 for Native Affairs?
121 A: Yes. 2 Q: And you had left Government in 1999? 3 A: Yes. 4 Q: And since that time have been counsel 5 at two (2) firms. A Toronto firm of McMillan -- perhaps 6 I should ask you if you could just tell us. 7 A: I was -- I -- I was at a firm by the 8 name of McMillan Rooke Boeckle that had an association 9 with another firm by the name of Ferguson Boeckle, so I 10 was counsel to those -- those two (2) firms. 11 And that relationship between those firms 12 ended and I have been involved in a -- in a Government 13 relations practice since that time on my own and with 14 partners. And as well, I -- I -- I'm associated in the 15 practice of law with the Sutts Strasberg law firm. 16 Q: All right. Beyond that, sir, you 17 were associated with a public affairs group, the Jeffrey 18 Group? 19 A: Yes. And then I went on, and now I'm 20 involved with a firm called Counsel Public Affairs. 21 Q: In addition to that, you were also a 22 Federal Lands -- Land Claims Negotiator and have been so 23 since 2002? 24 A: Yes. 25 Q: And you have a number of other
131 duties, public duties, if I can put it that way. You sit 2 on a number of Boards and such. I wonder if you could 3 just tell us about that. 4 A: Yes. I sit on the Board of two (2) 5 public companies and I also sit on the Board of the St. 6 John's Rehab Hospital and the Board of the Canadian 7 Society for Yad Vashem, which is the Holocaust 8 Remembrance Society. 9 Q: Okay. Thank you for that, sir. What 10 I'd like to turn to then is the role that you've had as 11 the Attorney General, and I wonder if you might just 12 start by telling us about what the role of the Attorney 13 General is. 14 A: The -- the role of the Attorney 15 General is -- are several roles that the Attorney General 16 plays. One is as the Chief Law officer of the Crown and 17 -- and legal advisor to the Government. 18 The second role would be the 19 administration -- the responsibility of the Ministry of 20 the Attorney General for the courts administration, the 21 responsibility for the civil law practice of the Ministry 22 of the Attorney General, the -- the person who is 23 responsible for the criminal prosecutorial practice of 24 the Ministry of the Attorney General, as well as running 25 the offices for Public Guardian and Trustee and the
141 Children's Lawyer. 2 The -- the Attorney General has 3 responsibility for a number of -- of the Acts of the 4 Legislature, and -- and a number of tribunals and -- or 5 at the time one of the Assessment Review Board for 6 instance, a responsibility for the Courts of Justice Act, 7 for acts dealing with people who cannot manage their own 8 affairs, and a number of other acts. 9 Q: All right. Thank you for that 10 general outline. Beyond that you -- the office, or the 11 Ministry of the Attorney General also had within it the 12 Secretariat and that is the Ministry responsible for 13 Native Affairs? 14 A: Yes. 15 Q: And can you just tell us about that 16 as well, in terms of how that association is -- is 17 structured and the function of that Ministry. 18 A: The -- the Ontario Native Affairs 19 Secretariat, as it was then called, was a secretariat for 20 which I was appointed as Minister responsible. 21 It was a body that -- that looked after 22 coordinating programs for Aboriginal people. It was not 23 a frontline Ministry in -- in the sense of delivering 24 services, but it was -- it was there to -- to monitor and 25 coordinate services being delivered by other Ministries;
151 programs that might be delivered, for instance, by the 2 Ministry of Health that -- that involved Aboriginal 3 people, like the Aboriginal Healing and Wellness Policy, 4 for instance. 5 The -- the Ontario Native Affairs 6 Secretariat was also responsible for negotiation of -- of 7 land claims and -- and for negotiation of self-government 8 agreements. 9 They also were responsible for developing 10 policies around economic development, well-being, that 11 kind of thing. 12 Q: All right. And within each of these 13 areas of responsibility, you would have an assistant, I 14 take it, or a deputy. 15 A: The -- the Deputy Minister for both - 16 - for both the Ministry of the Attorney General and the 17 Ontario Native Affairs Secretariat was Larry Taman. 18 Q: All right. Now, we've had the 19 benefit of Mr. Taman's -- Mr. Taman's evidence here at 20 this Inquiry and he's told us a bit about the 21 ramifications of the Attorney General being a member of 22 Cabinet. 23 Do you have anything to -- to say beyond 24 that? 25 A: Well, you as -- as the Attorney
161 General have a -- a dual role. One is -- one is a role 2 in which you were very independent from Cabinet and that 3 would particularly around issues dealing with criminal 4 matters, where your decisions are almost of a, in many 5 cases, of a quasi-judicial nature. 6 You don't consult with Cabinet and you 7 take the certainly the -- the advice and best advice of 8 the -- the various people who might be officials within 9 the Ministry of the Attorney General, but you make 10 decisions in a very independent way that do not, in any 11 way, touch the -- the Cabinet or the political process. 12 And at the same time, you're -- you're a 13 member of a government that -- that is involved in a -- 14 in day to day political -- political life and you got to 15 very careful about -- about where that line is and -- and 16 ensure that you don't cross it. 17 Q: Mr. Taman -- or Mr. Taman rather, was 18 very clear in terms of describing his role as the Deputy 19 Attorney General in taking certain actions or ensuring 20 that the Attorney General's office was -- pardon me, and 21 independence was free from political interference, and 22 that's what you're telling us now? 23 A: Yes. And then -- and that would have 24 been a very significant role that -- that the Deputy 25 would -- would play.
171 Q: Might you give us an example of the 2 kinds of things that you might be involved in where 3 political interference or independence from the political 4 process would be particularly important? 5 A: Well, for -- for instance, if you're 6 dealing -- and there may have been changes in this area, 7 the criminal law, since -- since I was Attorney General, 8 but if you were dealing with a situation where there was 9 an application, for instance, to declare somebody a 10 dangerous offender, that information would be brought to 11 you, or brought to the Attorney General by officials in 12 the -- in the Crown prosecutorial service likely through 13 the Assistant Deputy Minister responsible for criminal 14 law. 15 They would provide you with a brief and -- 16 and you would be asked to provide your consent so that 17 they could bring a dangerous offender application. 18 And the deliberations around the material 19 that you -- that you would be provided with and the 20 decision that you would make would be a very independent 21 decision. It would never be an issue that would ever be 22 discussed at Cabinet or within -- within Caucus. 23 They would not generally even be aware 24 that these things would be -- would be coming across my 25 desk and it -- and it would be something -- when I --
181 when I receive those materials it would be something that 2 my political staff would never see, that they would never 3 have any input into. 4 And it was -- and a lot of that I would 5 take home and do out of the office, just because I -- I 6 didn't -- I mean that line is -- is a very definite line. 7 Q: And the -- the definite line that you 8 just speak about, was there any protocols or 9 understandings about that interplay between your 10 political staff and the civil servants within the 11 Ministry of the Attorney General? 12 A: The -- the -- certainly the -- the 13 political staff would know that they would never venture 14 into any issues that were before the courts in -- in -- 15 and in particular the criminal courts; that that was a 16 place that they were forbidden to go and -- and they 17 understood that. 18 It was -- it was somewhere that I, as 19 Attorney General, would be -- would -- would be very 20 cognizant of -- of -- of not being involved in because 21 there is that perception that if you do become involved 22 there's a political motivation. So -- so, that you -- 23 you never ventured into the -- the area of individual 24 prosecutions. And that -- that would be, primarily, the 25 protocol that staff would follow.
191 Q: Insofar as that protocol, was there 2 anything in writing by way of a policy or directive? 3 A: I -- I -- there may have been but I - 4 - I don't recall. 5 Q: In 1995, sir, what was your 6 understanding about the relationship between the 7 Solicitor General's office and the -- and the police, the 8 OPP in particular? 9 A: Certainly -- certainly the -- the 10 rule in -- in -- in the Ministry of the Attorney General 11 was that police officers lay charges and the Ministry of 12 the Attorney General is responsible for prosecution. And 13 -- and there was a very definite line between those two 14 (2) functions. 15 We had little or no role in terms of the - 16 - in terms of the -- the Solicitor General and the 17 operation of -- of that aspect of the Solicitor General's 18 Ministry. 19 I did have a role to play in terms of 20 police oversight. And -- and simply that -- that was as 21 a result of the -- the police forces would be under the 22 purview of the -- of the Solicitor General. 23 And it -- it would be an obvious conflict 24 if they were a stakeholder of -- of the Ministry of the 25 Solicitor General and at the same time the Solicitor
201 General would be responsible for their oversight. 2 So, the oversight functions were functions 3 that were -- were part of the Ministry of the Attorney 4 General. And -- and by that I mean for instance the SIU 5 was a responsibility of the Attorney General, the Board 6 of Inquiry was a responsibility of the Attorney General, 7 but other than that there was not any role in -- in terms 8 of the Ministry of the Attorney General being involved in 9 policing. 10 Q: All right. And I want to direct your 11 attention to a couple of tabs within the book of 12 documents. 13 Firstly, at Tab Number 2 which is Exhibit 14 578. It is a discussion paper entitled, Ministerial 15 Control in the Ontario Provincial Police. It was 16 prepared as is -- as is noted by the Legal Services 17 Branch of the Ministry of the Solicitor General in 1991, 18 the author being Anne McChesney. 19 Okay. You had an opportunity to review 20 that? 21 A: Yes. 22 Q: And you'll agree that the paper sets 23 out several legal and policy rules with respect to police 24 independence from the Provincial Government? 25 A: Yes.
211 Q: Can you tell us, sir, whether this 2 was the Provincial Government policy in 1995? 3 A: Well, I -- I believe it was. 4 Q: And the general conclusions and the 5 analysis within that paper that you've had a chance to 6 review. I take it you'd be in agreement with that? 7 A: Yes. 8 Q: And can you tell us whether that 9 general policy and the -- the analysis, and the 10 conclusions within that policy document, whether it was 11 supplemented by any additional policies or guidelines or 12 rules on the under -- or other understandings that 13 influenced the Provincial Government's policy on police 14 independence? 15 A: I don't believe so. 16 Q: In terms of other Ministers or Deputy 17 Ministers, Provincial political staff or MPP's, were they 18 briefed, to your knowledge, with respect to the general 19 conclusions again with -- on police independence from the 20 Provincial Government? 21 A: I -- I don't know. I -- I would 22 assume so, but it's not something I would -- was involved 23 with. 24 Q: All right. Do you know how relevant 25 Ministries or officials within those Ministries,
221 political staff within those Ministries, or other MPP's 2 would learn about the -- the general government policy of 3 police independence? 4 A: I -- I would think it would be 5 through the Ministry of the Solicitor General, the 6 Solicitor General himself or herself, and -- and 7 certainly in -- in terms of the -- the civil service, it 8 would be through the Deputies of -- of probably the 9 Attorney General, Ministry of the Attorney General and 10 the Solicitor General's Ministry. 11 Q: Thank you. At Tab Number 3, Mr. 12 Harnick, which is Exhibit P-579 there's a document 13 entitled, Ministry of Community Safety and Correctional 14 Services, Roles and relationship between the Minister, 15 Deputy Minister and the Ontario Provincial Police. It's 16 a summary. 17 You've again had a chance to have a look 18 at that paper? 19 A: I have. 20 Q: You were aware of it in 1995? 21 A: I don't remember specifically, but 22 certainly the -- the concepts in it were familiar to me. 23 Q: Okay. Mr. Miller has just informed 24 me that that's a 1998 document. But in any event, you 25 would have -- you would have had a chance to review this
231 in the last little while? 2 A: Yes. And -- and it very much 3 summarizes the previous Tab that you've referred me to. 4 Q: All right. And likewise then you 5 would be in agreement with its general conclusions? 6 A: Yes. 7 Q: Prior to 19 -- to June of 1995, Mr. 8 Harnick, were you aware of the various issues encountered 9 by First Nations people and -- and the Government? 10 A: Prior to '95? 11 Q: Yes. Prior to June of 1995 when you 12 would've assumed the office of Attorney General. 13 A: In -- in -- probably in a general 14 way. 15 Q: As the -- as the critic of the 16 Ministry Responsible for Native Affairs, you would have 17 had some familiarity? 18 A: Yes. 19 Q: And can you just describe for us, 20 even in general terms, the nature and kinds of issues 21 that you would have been alive to at that point? 22 A: I -- I think, you know, certainly the 23 -- the negotiation and settlement of land claims has 24 always been something that -- that has -- has interested 25 me. And I -- and I knew that the previous government had
241 negotiated and signed agreements in principle on -- on a 2 couple of land claims. 3 Certainly I was interested in economic -- 4 development of economic policies and programs for 5 Aboriginal people. And you know, you -- I mean other -- 6 other specifics I -- I probably, I mean as I say, it was 7 a pretty general thing at that stage. 8 Q: Okay. Thank you. 9 A: Mr. Harnick, at Tab Number 4 there's 10 Exhibit P-643. It is Inquiry Document 1007239. This 11 document is entitled, Statement of Political 12 Relationship, SPR Guidelines, Questions and Answers, and 13 it's dated August of 1992, evidently prepared by the 14 Ontario Native Affairs Secretariat. 15 And I take it you would have been familiar 16 with this document even prior to your assuming the office 17 responsible for that secretariat? 18 A: Yes, I was. 19 Q: Can you tell us when you became aware 20 of that? 21 You -- you will note that it was signed in 22 August of 1991. 23 A: It would probably have been around 24 that time that I became aware of it, as a result of the - 25 - the announcement that was made by the previous
251 government at that time. 2 Q: And can you tell us just what your 3 general sense is with respect to that document? 4 A: I think it -- it reflects something 5 that has -- has become a reality and that is the 6 recognition of dealing with -- with First Nations on a -- 7 on a government-to-government basis. 8 The recognition of -- of the development 9 of self-government as a -- as a concept and as a -- as a 10 goal for negotiations pursuant to that 11 government-to-government relationship. And I think 12 that's probably the -- the general understanding. 13 Q: And upon your assumption of that -- 14 as the Minister responsible for Native Affairs what role 15 if any did this document play in -- in your role? 16 A: Certainly I -- I was cognizant of it. 17 I believed in it. I think it was the right -- the right 18 thing to do and -- and certainly it -- it clarified and 19 guided in -- in terms of the way I -- I personally felt 20 and -- and -- and -- and guided me in -- in dealings that 21 I would have had with First Nations. 22 Q: Okay. And beyond this guide was 23 there a specific policy of the new government that you 24 were -- you were just elected into with respect to issues 25 affecting Aboriginal people?
261 A: I'm not sure I understand your 2 question. Was... 3 Q: You -- you've just indicated that 4 this was used as a guide in terms of your dealings with 5 Aboriginal people? 6 A: Yes. 7 Q: Beyond this guide was there any 8 additional policy or guides that you would have used in 9 dealing with Aboriginal issues and Aboriginal people? 10 A: Well, certainly I -- the priorities 11 for me were to advance the negotiation of land claims, to 12 develop economic policies that -- and -- and programs 13 that would have benefited Aboriginal people. 14 And you know I know, certainly, those were 15 the -- the directions that I wanted to move in and -- and 16 that I think over the course of my four (4) years as 17 Minister I did move in with some success. 18 Q: All right. At Tab 5 is Exhibit P- 19 922. It is a document that was taken off the web and it 20 -- it's entitled, Common Sense Revolution May -- and it's 21 dated May of 1994. 22 You're familiar with that document? 23 A: I am. 24 Q: And having reviewed that and being 25 familiar with it you'll agree that there are no
271 provisions that speak to Aboriginal issues? 2 A: Yes. 3 Q: And at Tab Number 6, Mr. Harnick, the 4 document, Bringing Sense to Community Development; it's 5 Exhibit P-924? 6 A: Yes. 7 Q: You're familiar with that document? 8 A: As -- I mean I've -- I've been 9 reminded of it when I've gone through these materials. 10 Q: All right. I -- I take it you 11 weren't familiar with it in 1995? 12 A: Well, I may have been, but I -- the 13 passage of time -- 14 Q: All right. Perhaps I should just ask 15 you -- 16 A: I didn't specifically remember it, 17 but -- 18 Q: All right. Perhaps I should just ask 19 whether you had any role in its -- in its preparation or 20 creation? 21 A: I don't believe that I did. 22 Q: In the highlights of that document, 23 sir, if I could just turn you to that, the second page in 24 on the document which is page -- it's marked as page 4 at 25 the bottom, it says, "highlights" at the top?
281 A: Yes. 2 Q: All right. You see that at -- the 3 bottom two (2) bullets deal with Aboriginal issues, 4 correct? 5 A: Yes. 6 Q: And the first one says: 7 "Promote and encourage economic 8 development in native communities." 9 And you've already spoken to that as part 10 of the role that you had taken on? 11 A: Yes. 12 Q: And secondly: 13 "Ensure that all stakeholders are 14 represented in land claims 15 negotiations." 16 A: Yes. 17 Q: I wonder if you might just tell us a 18 bit about what does that mean? How was that, as a 19 general policy statement, meant to be implemented? 20 A: Well, I think there was a -- a 21 particular land claim that was causing some concern in -- 22 in Eastern Ontario that involved the Algonquin -- 23 Algonquins of Golden Lake. And there were some issues 24 around the negotiating team that -- that existed. 25 And there was, I guess, a feeling that --
291 that the negotiating team that was in place was not 2 representing the interests of various groups in Eastern 3 Ontario, and some of them were environmental groups, 4 anglers, hunters, municipalities. 5 And -- and we reconstituted the -- the 6 negotiating team to broaden it and to make it more 7 representative so that people in Eastern Ontario would be 8 content that the various interests that existed there 9 would -- would be represented and understood as part of 10 these negotiations. And -- and I think that was done 11 quite successfully. 12 The -- the negotiator that was brought in 13 was Mr. Justice Binnie who later left as a result of his 14 appointment to the Supreme Court of Canada. And we -- we 15 appointed to negotiate with him, a gentleman who had 16 written the -- the plan for Algonquin Park in the late 17 '50's, early '60's, as well as a gentleman who 18 represented a number of municipalities in -- in Eastern 19 Ontario. I think he was involved with the municipal 20 government in Pembrook. 21 And -- and they formed the negotiating 22 team, and Ontario then was in a position to be ready and 23 able to negotiate. I don't know where those negotiations 24 have gone since that time. 25 Q: All right. I think that's the
301 question I was going to ask. 2 A: I think they're ongoing. 3 Q: All right. 4 A: But -- and -- and it was done -- you 5 know, certainly we wanted to have a negotiating team that 6 was in place, that was able to get the negotiations 7 going. 8 The Algonquin First Nation and the Chief 9 were concerned that Ontario, because of all these 10 extraneous issues that and -- and concerns that people 11 had were dragging their feet, and I think we resolved 12 that issue. 13 So, I mean, certainly it -- it was done, I 14 think, in a sensitive way and, you know, certainly not to 15 unsettle things but to settle things and -- and permit 16 the Province to be at the negotiating table and -- and 17 move the negotiations along. 18 Q: If I can ask you turn the -- to the 19 next page; it's marked page 5 at the bottom. The first 20 bullet of three (3). 21 The first one says: 22 "Strike a balance between native 23 hunting and fishing rights and 24 Ontario's conservation priorities. 25 Insist on the same conservation rules
311 for all Ontarians." 2 And can you tell us, sir, how that, as a 3 general policy statement, was meant to be implemented 4 and, in fact, whether it was and how it -- whether it -- 5 whether it worked? 6 A: Again, I think that this was included 7 in the document, again as a result of some tensions that 8 existed in the -- in the Algonquin Park area that I think 9 on the -- I think it was the east side of Algonquin Park 10 in -- in territory of the -- that historically, the 11 Algonquin First Nation -- the Algonquins of Golden Lake 12 First Nation would have used for -- for hunting and 13 fishing. 14 And there were some issues about 15 harvesting. And I know that the Ministry of Natural 16 Resources, I wasn't involved in -- in this in any direct 17 way, I mean, we obviously had an interest, but I know 18 that the Ministry of Natural Resources, successfully, I 19 think, in each and every year that I was in -- in 20 Government, were able to negotiate fishing and -- and 21 harvesting agreements with -- with the Algonquin First 22 Nation. 23 Q: And when you say you had an interest 24 in that, although not directly involved in those 25 negotiations, I take it, the interest would arise as a
321 result of your being Minister responsible for Native 2 Affairs? 3 A: Yes. 4 Q: And what was the extent of that 5 interplay between that responsibility and the Ministry of 6 Natural Resources? 7 A: Well, certainly it -- it was a 8 Minister of Natural Resource -- a Ministry of Natural 9 Resource issue, but they would keep us informed. And 10 they -- they I think in the course of their negotiations 11 would take advice from the officials withing the Native 12 Affairs Secretariat. 13 And I think that the -- the results speak 14 for themselves. They -- they were good results. 15 Q: All right. The next point, or the 16 next bullet point on that page it says: 17 "Work with Native leaders to reflect 18 Aboriginal Concerns and include the 19 Native viewpoint in Government 20 policies." 21 Again -- 22 A: Yes. 23 Q: -- from a policy or a -- or a 24 practical perspective how was that implemented? 25 A: Certainly, you know, I -- I had an
331 opportunity to meet with Native leaders over the course 2 of the four (4) years that I held this position. I knew 3 that there were for instance, issues with land claims 4 that, in some situations, there -- there were delays in - 5 - in -- in land claims going forward. And I -- I 6 received those concerns and did my best to make sure that 7 we could -- that -- that we could advance these claims. 8 And I -- I did that on -- on a consistent 9 basis. We worked with Native leaders to -- to develop an 10 economic program that -- that, I think, still continues 11 to this day, that I think the -- the current Attorney 12 General who was the former Minister responsible for 13 Native Affairs, I don't believe he's the -- in that 14 position now, accepted an award for this program, which 15 was a program set up with the private sector, with the 16 banking community, to develop links between the -- the 17 business community -- the broader business community and 18 entrepreneurs within Aboriginal communities. And -- and 19 I -- and I think that that program is still going. 20 Certainly, I -- I spent time with a number 21 of people who were involved with the Aboriginal 22 Friendship Centres to learn -- learn more about some of 23 the challenges and difficulties of -- of off-reserve 24 Aboriginal people, and to -- to ensure that as -- as best 25 I could and -- and ONAS could, the delivery through line-
341 Ministries of programs that -- that would involve off- 2 reserve people. So, that's my answer. 3 Q: Thank you. And just the last 4 document I would refer you to in this series of 5 questions, that you'll find at Tab 7. It is P-925. It's 6 a document entitled, A Voice for the North, Report of the 7 Mike Harris Northern Focus Tour, and it's dated January 8 of 1995. 9 And as I've asked you with respect to 10 these other documents, you're familiar with that 11 document, are you? 12 A: In the same way I would have been my 13 ans -- with my answer to the previous document. 14 Q: And beyond what you've already told 15 us, with respect to the previous document, is there 16 anything that you wish to add stemming from -- from this 17 exhibit? 18 A: No, I don't think so. 19 Q: All right. I want to turn next, Mr. 20 Harnick, then to the summer of 1995. You would have now 21 assumed the -- the dual responsibilities of Attorney 22 General as well as Minister Responsible for Native 23 Affairs? 24 A: Yes. 25 Q: And as part of that assumption of
351 office you would have received various briefings? 2 A: Yes. 3 Q: And at Tab Number 8 there is a -- 4 Inquiry Document 3001718; it's Exhibit P-704. It's an 5 ONAS briefing note from Minister Responsible for Native 6 Affairs, prepared evidently by Lise Hansen who was the 7 Director of Negotiations -- Negotiation Support rather, 8 and it's dated June 29th of 1995. 9 And we're told the -- the reason for these 10 briefings is simply to give background on current 11 incidents and to prepare you as the Minister for 12 questions that might be received from media and -- and 13 perhaps in the House? 14 A: Yes. 15 Q: With respect to this document are you 16 familiar first of all with, or do you recall receiving 17 this as a briefing document? 18 A: Specifically I don't, but I -- I mean 19 I -- I was briefed and I -- I have no reason to believe 20 that this wasn't the subject of a -- of a briefing from 21 officials from the Ontario Native Affairs Secretariat. 22 Q: All right. And do you know -- and -- 23 and again I -- I understand that you're not familiar with 24 the actual briefing, who would have typically been 25 responsible for providing these briefings?
361 A: It would have been probably the 2 Deputy Minister and the -- the secretary of the Native 3 Affairs Secretariat and anyone else the Deputy felt would 4 be important to be there. 5 Q: And we've had Mr. Taman's evidence on 6 this and I believe that he's indicated or testified that 7 he had asked that this briefing note be prepared, so that 8 would be consistent with what you understand? 9 A: Yes. 10 Q: All right. And then just in looking 11 at that if we can look firstly, at the first page under 12 Item Number 1, Overview of the Secretariat, and you'll 13 agree that it goes on to -- to provide exactly what it 14 states; that is an overview of what the Secretariat's 15 functions are, it's roles, it's responsibilities? 16 A: Yes. 17 Q: And it provides the Secretariat's 18 mandate at the bottom? 19 A: Yes. 20 Q: And I think that's consistent with 21 what you've indicated to us as part of your overall 22 responsibility. 23 A: Yes. 24 Q: If we can turn to the second page, at 25 the bottom of the second page, sir. The paragraph at the
371 bottom and I just want to read this. It indicates: 2 "Ontario's relationships with 3 Aboriginal people are shaped by the 4 special status of Aboriginal peoples 5 conferred by the Constitution. 6 Ontario recognizes First Nations as an 7 order of government. Ontario liaises 8 with Aboriginal organizations on a wide 9 range of initiatives and issues and 10 must balance a desire of First Nations 11 to be recognized as individual 12 governments with the efficiencies of 13 working with a provincial or 14 territorial groups representing a 15 number of First Nations." 16 And was that the -- was that a statement 17 of what ONAS was doing back in June of 1995? 18 A: Yes. 19 Q: Just lastly, I would ask you to turn 20 to page 5 of that document, and at the paragraph number 21 4, The Minister's Priorities. It says: 22 "The Secretariat is interested to hear 23 from the Minister, his views about 24 future agenda items for briefings, 25 issues that he would like the
381 Secretariat to explore, et cetera." 2 I guess the only question I have with 3 respect to that: Did you take up the Secretariat on that 4 offer? 5 A: Yes. 6 Q: Okay. And can you tell us about 7 that? 8 A: Well, again, it -- it was my interest 9 and desire to -- to continue negotiating land claims and 10 to start completing negotiations and achieve agreements 11 in principle on -- on a number of the -- the land claims 12 that we were beginning to negotiate. It was to develop 13 an economic development program or forms of a -- of a 14 program that -- that we could ultimately implement and -- 15 and that was done. 16 And, you know, certainly to -- to develop 17 relationships between me and Aboriginal people, First 18 Nations leaders, and I think that to a very significant 19 degree that was accomplished. 20 Q: All right. We're also aware that 21 there had been, in and around that time period, some 22 confrontations as well as relationship building, but some 23 confrontations with Aboriginal groups? 24 A: Yes. 25 Q: And as the Minister responsible for
391 Native Affairs you would have been advised of this? 2 A: Generally, yes. 3 Q: Would you have been familiar at that 4 point in time as well that there would, as part of ONAS, 5 been a group dedicated to dealing with these sorts of 6 situations? 7 A: I -- I know that, you know, in terms 8 of briefings that I've seen from here, I mean, 9 specifically remember the day and time of the briefing, I 10 don't, but I saw that I was briefed on -- on that and 11 shown guidelines, and I have no reason to believe that 12 that didn't, in fact, happen. 13 Q: Okay. 14 A: And I was familiar with those 15 guidelines. 16 Q: and one of the -- one of the briefing 17 notes that you've just referred to, sir, you'll find at 18 Tab number 9, that's Exhibit P-303. It's Inquiry 19 document 1011557. It's titled, ONAS Briefing Note Re. 20 Procedures for Dealing with Aboriginal Emergencies, and 21 it's dated July 10th of 1995. 22 A: Yes. 23 Q: And under the first bullet -- the 24 first bullet of "current status", it indicates: 25 "There are procedures in place for
401 responding to Aboriginal emergencies." 2 All right? 3 A: Yes. 4 Q: And it continues: 5 "Under the current process, ONAS 6 coordinates the response to Aboriginal 7 Emergencies, although line-Ministries 8 will take the lead for followup actions 9 within their jurisdiction." 10 And then it continues on down the 11 paragraph: 12 "The main mechanism for coordination is 13 the Interministerial Officials 14 Committee." 15 A: Yes. 16 Q: In the second bullet it reads: 17 "If there's an emergency situation, the 18 Committee develops recommendations, may 19 appoint a negotiator, may recommend 20 that legal action be taken and ensures 21 that adequate communication occurs with 22 all affected groups including the 23 general public." 24 That was your understanding of -- 25 A: Yes.
411 Q: -- of those functions of that 2 Interministerial Committee? 3 A: Yes. 4 Q: It continues: 5 "The Committee also ensures that 6 approvals are obtained as needed for 7 the recommended action. For example, 8 Ministerial or Cabinet approval may be 9 required for actions relating to a 10 major disturbance." 11 And it continues beyond that. But, just 12 on that note, you'll agree that the ultimate authority 13 for taking certain actions in major disturbances rested, 14 at the end of the day, with the Minister -- with 15 Ministerial or Cabinet approval? 16 A: Yes, I agree with that. 17 18 (BRIEF PAUSE) 19 20 Q: And might that include obtaining 21 things like injunctive relief? 22 A: Yes. 23 Q: All right. If you turn to the second 24 page and the second bullet under the heading, Background. 25 And I'll just read that, if I may:
421 "The principles guiding the response to 2 emergencies are, the prevention of 3 violence, property damage or personal 4 injury." 5 Second: 6 "A time..." 7 Second bullet: 8 "A timely lifting of the blockade 9 through negotiations." 10 And the third bullet: 11 "A review of the Aboriginal grievances 12 and issues and establishment of 13 processes to address them. 14 However, no substantive negotiation is 15 to occur until after the blockade is 16 lifted." 17 A: Yes. 18 Q: Right. And you'll agree that that is 19 -- that that was the general policy with respect to 20 Aboriginal Emergencies. 21 A: Yes. 22 Q: And you agreed with that policy at 23 the time? 24 A: I did. 25 Q: You'll see that it's noted -- first
431 of all, it's prepared by Julie Jai and just the last note 2 that she makes is: 3 "More specific guidelines are attached 4 in the appendix." 5 And the appendix that's referred to, Mr. 6 Harnick, you'll find at the next tab, at Tab 10. That is 7 Exhibit P-498 in these proceedings, and it simply reads: 8 "Appendix. Guidelines for Responding 9 to Aboriginal Emergencies [and then 10 brackets] (Blockades)" 11 You see that? 12 A: Yes. 13 Q: Had you, first of all, any role in 14 terms of developing any of those policies or any of these 15 guidelines? 16 A: No. 17 Q: Do you know where they would have 18 came from or who would have been responsible for 19 developing them? 20 A: I believe they were developed during 21 the life of the previous government. 22 Q: All right. And as a consequence of 23 your assuming responsibility in these areas, did you take 24 any steps or measures to alter or otherwise amend the 25 policies or guidelines?
441 A: No. 2 Q: So, I take it from that, that you 3 would have agreed with the -- the general outline and the 4 process, or protocol, that it entails? 5 A: Yes. 6 Q: And particularly in terms of those 7 guidelines, at page 2, under paragraph 11, you'll see 8 that the Interministerial Committee, and it simply reads: 9 "The Committee will have discretionary 10 powers." 11 And it sets out a number of powers from A 12 to G, including, defining the problem, agreeing to 13 negotiated agendas, making decisions on third-party 14 intervention, appointing a facilitator or negotiator. 15 Involving the Indian Commission of 16 Ontario: 17 "F. Second Ontario public servants on 18 an emergency basis and lastly recommend 19 that legal action be taken." 20 I guess, what I'm -- what I'm trying to 21 get at is, first of all, you were aware that these were 22 the general guidelines; you've agreed with those 23 guidelines? 24 A: Yes. 25 Q: You've taken no steps to alter those?
451 A: That's right. 2 Q: The way that they're set out, is that 3 meant to be either/or, or, in terms of exercising these 4 discretionary powers, were they meant to be exercised 5 consecutively, I guess? 6 Perhaps I'm not asking this clearly. 7 A: I'm not 100 percent sure I -- I 8 understand where -- where you're going but I mean, 9 certainly the Committee had certain discretionary powers 10 that they -- I -- as I understood it, would have an 11 opportunity to exercise or -- and/or they could recommend 12 that legal action be taken, in which case, they would 13 make a recommendation. 14 And -- and depending on the circumstances, 15 it would ultimately have to be agreed upon by -- by 16 Ministerial agreement or -- or Cabinet. 17 Q: Okay. And -- and I apologize I 18 wasn't clear in my question but -- 19 A: Does that -- does that -- I mean, was 20 that where you were going? 21 Q: I think so. But, I guess what I -- 22 what I want to ask, more specifically, is whether as 23 these items are laid out in paragraph 11 from A to G, 24 were they meant to be exercised one after the other. 25 In other words would the Committee, when
461 it was coming together to exercise these powers, would it 2 first define the problem, move onto agreed to negotiating 3 an agenda, from there on to make a decision, or were any 4 of these discretionary powers within their purview to 5 exercise at their discretion? 6 A: Well, I -- I think that they would 7 certainly the first thing you want to do is to find the 8 problem and -- and thereafter you've -- it appears that 9 there are a number of options. 10 And -- and they could do all of them, 11 choose one of them, or recommend legal action be taken. 12 But, I -- I don't think any of these were seen as, 13 exclusively, all or nothing. 14 Q: Thank you. 15 A: I think. 16 Q: If you can turn to the next page, 17 page 3 there is a heading at the bottom of the page, 18 Major Occurrences and Policy Determinations. 19 A: Yes. 20 Q: And paragraph 23 reads: 21 "In the event of a major occurrence, or 22 where decisions required are 23 substantive, set new policy, or require 24 corporate advice and direction, the 25 Chair will ask the Minister Responsible
471 for Native Affairs to make a 2 recommendation to Cabinet." 3 And is that your understanding of what 4 happened within this Committee? 5 A: Yes. 6 Q: And at 24, the next -- the next 7 paragraph: 8 "Any decisions requiring civil legal 9 action, e.g. an application for an 10 injunction, may be directed to the 11 Minister Responsible for Native Affairs 12 and the Attorney General for 13 consideration and recommendation to 14 Cabinet." 15 And, again, sir, is that your 16 understanding of how this Cab -- how this Committee 17 functioned with respect to major occurrences? 18 A: Yes. 19 Q: And did it, in fact, operate in that 20 fashion according to your understanding? 21 A: That was the way I perceived the 22 protocol to work. 23 Q: And just again with respect to -- to 24 those two (2) documents that I've just taken you through, 25 at Tabs -- the last two (2) documents that I've taken to
481 you, I take it from your earlier response that you don't 2 have a specific recollection of being briefed on those? 3 A: No. 4 Q: We had testimony -- 5 A: But -- but again -- again, I don't 6 have any -- I have no doubt that I was briefed. Do -- do 7 I remember the actual briefing, no, I don't. But, 8 certainly the materials were prepared and I have no doubt 9 that -- that I would have been briefed. 10 I was -- during that period of time, I 11 mean, there was literally briefings all day on a myriad 12 of issues in -- in both within the Native Affairs 13 Secretariat and within the Ministry of the Attorney 14 General, and I have no doubt that those briefings 15 occurred. 16 Q: And just so I have an understanding 17 of this and perhaps the Commissioner can have an 18 understanding, when you say you're on -- involved in 19 briefings, virtually all day, how long would a typical 20 day be and how many briefings might you receive? 21 A: Well, we had -- we had taken -- I 22 think, the -- the Government was sworn in on June 26th, 23 1995, and I think the Legislature was scheduled to sit 24 later in September or early October, and -- and basically 25 a significant part of my time would have been -- would
491 have been spent being briefed on -- on the myriad of 2 issues and programs that -- that the Ministry was 3 involved with. 4 We -- we had some significant cost cutting 5 measures that -- that we were involved with, so it was -- 6 it was just a number of briefings in terms of day-to-day 7 things the Ministry was doing that I had to learn. 8 Q: All right. And you'll -- you'll know 9 that Julie Jai was the Secretary of -- pardon me, the 10 Chair, rather, of the Interministerial Committee on 11 Aboriginal Emergencies? 12 A: Yes, I -- I think at the time the -- 13 there was an interim Secretary of the Ontario Native 14 Affairs Secretariat who would have been, I think, Yan 15 Lazor at the time, and I think Julie Jai was the acting 16 legal director -- 17 Q: Okay. 18 A: -- at the time. 19 Q: Right. And she told us here, on 20 August the 30th in her testimony, that she had briefed 21 you and used the documents that I had taken you to and 22 you've earlier said you don't dispute that. 23 A: No. 24 Q: She's indicated as well that as part 25 of the briefing she would have discussed with you, the
501 implications of Section 35 of the Constitution Act, 1982? 2 A: Yes. 3 Q: All right. And indeed she -- she 4 reports at page 70 of the transcript that when you were 5 briefed on this, that you, as a lawyer, showed some 6 sensitivity to these issues. 7 A: Yes. 8 Q: Does that assist you at all in -- 9 A: Yes. 10 Q: -- terms of recalling? 11 At Tab 11, Mr. Harnick, there's a 12 document, it's an information note for the Honourable 13 Charles Harnick, that is you of course, dated July 31st, 14 1995? 15 A: Yes. 16 Q: It's exhibit P-938 and it has Inquiry 17 Document Number 300135. 18 19 (BRIEF PAUSE) 20 21 Q: Pardon me, 45. 22 A: Yes. 23 Q: All right. And the topic on that is 24 Camp Ipperwash land. Just before I ask you about the 25 document itself, were you aware of issues between
511 Aboriginal people and the Military Base, Camp Ipperwash? 2 A: I would have been aware because it 3 was an item in the news, and I guess between that and the 4 fact that I had been briefed I had an awareness. 5 Q: Okay. And then turning to the 6 document, did you -- do you recall being briefed on or 7 about July 31st with respect to the matter at Camp 8 Ipperwash? 9 A: I don't recall the briefing per se, 10 but I am sure that I was briefed. If, I mean, that -- 11 that appears to be the evidence and I don't dispute that. 12 Q: All right. And you'll note that the 13 recommended response in terms of -- the briefing note 14 first indicates the issue, and the issues were two (2) by 15 the looks of it. 16 The first bullet reads: 17 "How to respond to the recent 18 assumption of control over land 19 comprising Camp Ipperwash by the Stoney 20 Point community." 21 And second bullet: 22 "How to respond to the concerns of the 23 two (2) Aboriginal communities who have 24 claimed Camp Ipperwash; the Chippewas 25 of Kettle and Stony Point and the
521 Stoney Point community." 2 The recommended response to that, it 3 reads: 4 "The resolution of the claim to Camp 5 Ipperwash land is a Federal 6 responsibility. The Ontario Provincial 7 Police are on hand to keep the peace." 8 A: Yes. 9 Q: Beyond that did you have any role in 10 terms of either monitoring this or directing any of your 11 staff to -- to do anything, either in preparation for 12 anything that might come out of this? 13 A: I -- I didn't provide any -- any 14 specific direction. I -- I think certainly I -- I was 15 told that ONAS was monitoring the situation, but beyond 16 that I don't know that there was -- I'm quite sure I -- I 17 didn't provide any direction. 18 Q: All right. And the document is -- 19 was apparently prepared by John Van West from 20 Negotiations Support? 21 A: Yes. It appears to be. 22 Q: Might it have been Mr. Van West that 23 would have briefed you on this, and again I -- I 24 appreciate that this was some time ago? 25 A: I -- I wouldn't recall.
531 Q: All right. Given that you were 2 briefed on -- on this matter, were you aware, sir, that 3 the Interministerial Committee on Aboriginal Emergencies 4 was also concerned with this and, in fact, were going to 5 be meeting on August the 2nd of 1995? 6 A: I -- I assume that would have been 7 something that may have been told to me, but I don't 8 specifically or -- have -- have a recall of -- of that. 9 Q: One of the documents that we had 10 reviewed in preparation for this is found at Tab 13. 11 It's Inquiry Document 1003358 Exhibit P-646 which is an 12 e-mail from Julie Jai, Re. Possible Emergency, Ipperwash, 13 and it's dated 1995? 14 And you'll note that at the bottom one of 15 the expected attendees is David Moran from ONAS? 16 A: Yes. 17 Q: Mr. Moran had some function in your 18 office? 19 A: He -- he was my executive assistant. 20 Q: Okay. And you'll see that the -- the 21 first paragraph of that simply indicates that there was 22 to be a meeting of the Emergency Committee at 3:30. It 23 gives a time and a place? 24 Right. And specifically in the second 25 paragraph the first sentence:
541 "MNR is worried because of rumours that 2 the dissident group, which forcibly 3 entered Camp Ipperwash, will take over 4 Ipperwash Provincial Park." 5 Now, do you recall receiving a briefing in 6 advance of that at all; that that was a -- a potential 7 that was causing some concern? 8 A: I -- I don't recall. Certainly, Mr. 9 Moran may have advised me of that -- may have advised me 10 that he was going to this meeting, but -- but I don't 11 have any direct recall of it. 12 Q: At Tab 14, Mr. Harnick, it's Document 13 Number 1012232, and it has Exhibit Number P-504. 14 Now, this is a fax from Julie Jai dated 15 August the 2nd, 1995, and it attaches the agenda for the 16 Interministerial Committee Meeting? 17 A: Yes. 18 Q: There's a July 10th briefing note 19 accompanying that document as well, and additionally an 20 ONAS information note for August the 2nd, 1995, 21 Interministerial Meeting. There's a number of other 22 documents that are associated with that; media reports, 23 there's a map. 24 Do you recall these documents being 25 provided to you as part of, what would appear to be a
551 fairly extensive briefing on that subject? 2 A: Well, some of the documents we've 3 already gone through and -- and as I say I -- I have no 4 dispute with -- with the fact that they would have been 5 provided to me. I -- I can't specifically remember that, 6 nor specifically remember, I think, the one (1) new page 7 which is the -- the agenda. 8 And I think there's a couple of maps in 9 here that may not have been in the material you've 10 already provided me. But again I don't have any evidence 11 to say that... 12 Q: Thank you. At Tab 15, is Inquiry 13 Document 101682, and it's Exhibit P-506. Those are the 14 minutes of the IMC meeting of August 2nd. It would 15 appear to have been faxed on August the 8th of 1995. 16 A: Yes. 17 Q: One of the people that it's copied to 18 is right at the bottom of that, Frances Noronha at MAG, 19 Deputy Attorney General's office? 20 A: Yes. 21 Q: And can you tell us who that person 22 is? 23 A: I believe that she worked directly 24 with Larry Taman as I -- I -- maybe his executive 25 assistant. I'm not sure what her title was at the time,
561 but she was -- I know at some point she became his 2 executive assistant; whether it was then or not I'm not 3 sure, but she worked directly with Mr. Taman. 4 Q: All right. And if I can ask you to 5 turn to page 5 of that document -- 5 at the top under, 6 "Next Steps." 7 8 (BRIEF PAUSE) 9 10 A: Yes. 11 Q: All right. And the fourth and last 12 bullet on that page reads: 13 "It was agreed that the Committee will 14 reconvene if an actual incident at 15 Ipperwash occurs but that MNR and OPP 16 staff on the ground do not need to wait 17 for the Committee's approval before 18 taking actions that are necessary to 19 protect public safety." 20 Would that have been your understanding of 21 what was going on in and around that time with respect to 22 Ipperwash Camp? 23 A: I -- I don't remember specifically, 24 but -- but I -- I don't take issue with the fact that it 25 was a matter that MNR and the OPP would be dealing with.
571 Q: Thank you. Let me refer you then to 2 Tab 16. The document there is Inquiry Document Number 3 1011749. It's marked as P-735. 4 And they have been identified as the 5 handwritten notes of Elizabeth Christie. First of all do 6 you know Elizabeth Christie? Do you know who she is? 7 A: I know she was a lawyer with the 8 Ministry of the Attorney General. I -- I don't know 9 whether I have a recall directly of that or whether it's 10 from the involvement of reading these materials that I 11 became aware of who she -- who she is and I -- I know 12 that she worked with Tim McCabe. 13 Q: Thank you. And if we look at the -- 14 at the top of that handwritten note it -- it reads, 15 "Minister's Briefing." It's dated August the 8th. 16 A: Yes. 17 Q: The minister that is being briefed, I 18 take it, would have been yourself? 19 A: Yes. 20 Q: All right. 21 A: I assume. 22 Q: Again I understand you have no 23 specific recollection of the briefing, but I -- you 24 wouldn't disagree that she would have perhaps been 25 present at such briefing?
581 A: I'm sorry? 2 Q: She would have been present at such 3 briefing? She had created these notes? 4 A: Yes. 5 Q: All right. The first paragraph under 6 that would seem to indicate: 7 "Stoney Point dissidents agree it's a 8 Federal issue. Immediately adjacent to 9 Provincial Park." 10 It goes on to make a number of other 11 notations? 12 A: Yes. 13 Q: All right. See where it reads: 14 "The MNR says everything is -- things 15 are very quiet [rather] at this time. 16 The OPP are monitoring the situation 17 very closely. One (1) minor assault 18 over the weekend." 19 And then there's what appears to be a 20 question there? The question: 21 "I heard most of the people are not 22 members of a local First Nation. 23 A: The core group, the families who 24 were evicted, there are some members 25 from other First Nation the First
591 Nation does not condone." 2 And I simply raise that with you to see 3 firstly if that assists in you recollection of a 4 briefing? 5 A: I -- I don't have any direct 6 recollection but -- but again I -- I have no doubt that 7 the briefing occurred and the notes. 8 Q: And just the last note that I draw 9 your attention to, it follows the answer on that same 10 first page. It says: 11 "DM equals, should work on 12 communication strategy." 13 A: I assume that means that the Deputy 14 Minister who was probably present at the -- at this 15 briefing wanted officials to work on a communication 16 strategy. 17 Q: All right. And you would have been 18 aware, sir, that in addition to these briefings advising 19 you that there were concerns in and around the -- the 20 Ipperwash area relating to the takeover of Ipperwash 21 Camp, that MNR was concerned about the potential takeover 22 of the adjacent Park, right? 23 A: Yes, I -- I would have been aware of 24 that. I mean do I have any direct memory, I don't. 25 Q: All right.
601 A: But having acknowledged that 2 briefings took place, that notes exist, at the time I 3 would have known that. 4 Q: And additionally, around this time, 5 sir, you would have received communications from the 6 local MPP, Marcel Beaubien? Do you recall that? 7 And I'll draw your attention to the 8 document at Tab 12, it's Inquiry Document 1000918, it's 9 marked as P-534. 10 It's a two (2) page photocopy of a letter 11 under the letterhead of Marcel Beaubien, MPP, it's dated 12 July 31st, 1995 and directed to yourself, The Honourable 13 Charles Harnick, Attorney General. 14 A: Yes. 15 Q: Okay. Do you recall -- first of all 16 had -- had you met Mr. Beaubien at that time? Did you 17 know him? 18 A: I -- I probably had met him -- the 19 date of the letter is July 31st, there had probably been 20 following the election, he was a newly elected Member I 21 think as of 1995. He -- he hadn't been elected in -- in 22 -- I don't know whether he ran. 23 But I was first elected in 1990, he was 24 elected in '95. And we probably had, over the course of 25 a period around the election, some caucus gatherings I --
611 I may have met him. 2 But I didn't know him well. We probably 3 met at these functions. 4 Q: All right. And you've had a chance 5 to review this letter and you'll agree with me that he 6 speaks about the -- the concerns that he has for the 7 constituency. That is the West Ipperwash Property 8 Association, Owners Association rather, he speaks of 9 having met with him, he speaks of having concerns about 10 rising tensions in the area. 11 A: Yes. 12 Q: And he's seeking your advice, your 13 help, your direction. 14 A: Yes. 15 Q: Okay. At page 2 of that under 16 paragraph 7. It's marked paragraph 7, it reads: 17 "Law enforcement is basically non 18 existent and the OPP does not seem too 19 keen on getting involved." 20 Read that? 21 A: Yes. 22 Q: Do you recall being -- being provided 23 that information by Mr. Beaubien? 24 A: Specifically I -- I don't, I mean I - 25 - I have no doubt the letter was received and I know that
621 I -- what I would have done with the letter. 2 Q: And what is that? 3 A: And -- and that's that I would have 4 referred to it officials at the Ontario Native Affairs 5 Secretariat a) for their information and b) for their 6 response to Mr. Beaubien. 7 Q: Okay. You'll note at the -- in the - 8 - at the end of his letter, under the postscript, he 9 writes: 10 "I have been briefed by Staff Sergeant 11 W. Lacroix of the Petrolia OPP 12 Detachment this morning." 13 A: Yes. 14 Q: Can you tell us whether or not Mr. 15 Beaubien had ever related to you what it was that he was 16 briefed about? 17 A: I don't recall ever speaking to Mr. 18 Beaubien directly about these issues. 19 Q: All right. At Tab 17, Mr. Harnick, 20 it's Inquiry Document 1003513, it's Exhibit P-939. It's 21 a fax from Julie Jai to David Moran who you've identified 22 as your Executive Assistant. 23 It's dated August 10th of '95 and it 24 attaches that same letter that I've just taken you to. 25 A: Yes.
631 Q: And you'll see at -- on the top fax 2 cover page to Mr. Moran from -- and apparently in Julie 3 Jai's own handwriting she writes 4 "In response to your query re the 5 attached, Tim McCabe, Elizabeth 6 Christie in his absence is handling 7 this file. However, Ontario is not a 8 party in this action. I'm enclosing 9 two (2) memos on file to give you some 10 background." 11 And I take it that that's consistent of 12 what you've told us that you would have referred this 13 letter onto officials within ONAS for a response? 14 A: Yes. 15 Q: And the only question I ask you is: 16 Were you familiar that this response was given and that, 17 in fact, the -- the issue that Mr. Beaubien raised about 18 legal actions within his constituency was not something 19 that the Ontario Government was involved in. 20 Were you aware of that? 21 A: I wasn't aware of that. And -- no, 22 I'm just looking at the note and I -- I see that David 23 Moran would have referred this on to Julie Jai, it looks 24 like, and which is exactly what my instructions would 25 have been.
641 Q: Thank you. At tab 18, there's 2 Inquiry document 1012239, it's Exhibit P-418. It's a 3 letter from Mr. Beaubien. 4 A: Yes. 5 Q: To yourself, the Honourable Charles 6 Harnick. It's dated August 14th of 1995 and it's re 7 Chippewas of Kettle and Stony Point. 8 Okay. And you see that in the third 9 paragraph, he notes: 10 "We are not concerned with the take 11 over of Camp Ipperwash Army Camp as 12 this is a Federal matter. What does 13 concern us is Ipperwash Provincial 14 Park, the campground owned and operated 15 by the Ministry of Natural Resources. 16 The OPP is providing twenty-four (24) 17 hour protection and I am sure that you 18 were aware additional police protection 19 has been provided on site." 20 Right? 21 A: Yes. 22 Q: And at page 2, the second full 23 paragraph reads: 24 "Please note that the properly elected 25 First Nation officials are supportive
651 of upholding the laws of the land. 2 What we have is a small number of 3 dissidents making a mockery of the 4 system." 5 And again, do you have any recollection 6 of, first of all, receiving this type of letter, and what 7 response, if any, you would have had to that? 8 A: Again, I would have -- do I have a 9 specific recollection, I don't. But again, I would have 10 done the same thing with this information. I would have 11 referred it to the Ontario Native Affairs Secretariat 12 officials for their information and for a response. 13 14 (BRIEF PAUSE) 15 16 Q: And prior to your being informed of 17 the actual takeover of the Park, on or about September 18 the 5th of 1995, were you aware that aside from the rise 19 in tensions, that there were contingency plans either to 20 be prepared or being prepared? 21 A: Well I -- I -- I was aware, having 22 reviewed the notes, that people knew that the issue 23 existed and -- and that they -- that the OPP and MNR were 24 dealing with the problem, with the issues at the -- at 25 the Park and that was probably the extent of my -- of my
661 awareness of what -- what any contingency plans would be. 2 Q: Okay. 3 A: That would be their -- their issues. 4 Q: All right. Thank you for that, Mr. 5 Harnick. 6 Mr. Commissioner, I'm going to move into 7 another area and I wonder if this might be an appropriate 8 time for a break? 9 COMMISSIONER SIDNEY LINDEN: We'll have 10 our morning break now. 11 MR. DONALD WORME: Thank you. 12 THE REGISTRAR: This Inquiry will recess 13 for fifteen (15) minutes. 14 15 --- Upon recessing at 10:22 a.m. 16 --- Upon resuming at 10:41 a.m. 17 18 THE REGISTRAR: This Inquiry is now 19 resumed, please be seated. 20 21 CONTINUED BY MR. DONALD WORME: 22 Q: Mr. Harnick, when did you first learn 23 of the occupation of Ipperwash Provincial Park? 24 A: It -- it -- it could have been the 25 evening of September 4th or likely in the morning of
671 September 5th. I may have heard it on the news, I mean 2 certainly nobody -- nobody called me to tell me this had 3 happened. 4 Q: All right. And as a result of 5 learning this either on the -- the late evening of the 6 4th or the morning of the 5th, what did you do? 7 A: When I went into my office on the 8 morning of the 5th and -- 9 Q: Let me just interrupt you there 10 briefly. Where was your office located? 11 A: 720 Bay Street. 12 Q: All right. 13 A: In Toronto. 14 Q: I'm sorry, go ahead. 15 A: I -- I went into my office. 16 Generally I -- I was there early in the morning. I 17 started early in the morning and I met Mr. Taman and he 18 asked me if I'd like to go over to meet Elaine Todres who 19 was the -- the Deputy Solicitor General to find out what 20 was going on, and we -- we then drove over to her 21 office. 22 Q: And her office was located where? 23 A: Church and Bloor, in a building I 24 think called the Molson Building which was a -- I guess a 25 new location for the Ministry of the Solicitor General.
681 Q: All right. You agreed to attend this 2 meeting with Mr. Taman and on the drive over -- do you 3 recall, first of all, the drive over or any conversations 4 that you might have had in terms of further briefings or 5 obtaining further information? 6 A: No, I mean it was a short drive over. 7 We were dropped off at the building and -- and we went to 8 -- to meeting with Dr. Todres. 9 Q: And in your meeting with Dr. Todres, 10 what happened? 11 A: We -- I guess we sat in the -- in the 12 boardroom. I remember it was a big long table and there 13 was just the three (3) of us. And the Deputy Solicitor 14 General told us that the occupation had occurred, that 15 the OPP were monitoring what was going on on the ground 16 and that she really had no other information at that 17 time. 18 And that took about two (2) or three (3) 19 minutes and basically we then sat and chatted about other 20 things, had a coffee and we were probably gone from there 21 within twenty (2) minutes, half an hour. 22 Q: And do you have any recollection as 23 to what time this meeting would have occurred? 24 A: It was probably around 9:00 or a 25 little after.
691 Q: All right. 2 A: I remember -- I remember that Mr. 3 Taman, it was actually a beautiful day and Mr. Taman 4 asked me if I wanted to walk over. 5 And I do have that recollection, and I 6 said no because I had to be back by a certain time 7 because I -- I had meetings, I gather, lined up. So we 8 drove over and we spent a very short time there. 9 We spent minutes just confirming yes, 10 there's been an occupation and -- and we're monitoring 11 the situation. Don't have anything to tell you, keep you 12 informed. Chatted about a number of other things and -- 13 and then -- and then we were on our way. 14 Q: And -- and perhaps you may have 15 mentioned, but aside from Dr. Todres and Mr. Taman, 16 yourself, do you recall who else would have been present 17 for this meeting? 18 A: No one. 19 Q: In providing this information to you, 20 did Dr. Todres give any indication as to a level of 21 concern? 22 A: No. It was -- it was very brief. As 23 I said it was, The occupation's occurred, the situation's 24 being monitored, I'll keep you advised throughout -- keep 25 Larry -- Larry Taman advised.
701 Q: Okay. Just, Mr. -- Mr. Harnick, with 2 respect to your recollection that only the three (3) of 3 you were at this meeting, I can tell you that when Mr. 4 Taman testified here on November the 14th, it's found at 5 page 89 of the transcript. 6 He indicates, at line 15, that Minister 7 Runciman was also at that meeting. And I take it that 8 that doesn't accord with your recollection? 9 A: No, I was never in a meeting with -- 10 with Mr. Runciman until I attended a Cabinet meeting the 11 next day. But I never met with Mr. Runciman to talk 12 about this issue. I never met with Mr. Runciman in -- in 13 -- in combination with his Deputy and my Deputy to talk 14 about this issue. 15 And I can tell you, this would have been 16 the day after Labour Day and Mr. Runciman, I believe, was 17 -- was not even in Toronto yet. He was -- he would have 18 been coming in some time during that day for -- for 19 Cabinet the next day. 20 But he would have been in -- at his home 21 in -- in Brockville. And he was definitely not at that 22 meeting. 23 Q: Aside from the information, you've 24 already indicated that it was provided to by Dr. Todres, 25 do you recall whether there was any conclusions reached
711 or any consensus reached on any point at all? 2 A: None. It was just, I think, left 3 that she would keep Mr. Taman advised. 4 Q: In fairness, to your recollection as 5 to who was in attendance at the meeting, I can tell you 6 that Mr. Taman on November the 15th at page 38 -- 38 7 under cross-examination by your counsel, Ms. Horvat, 8 confirms -- a question was put to him, perhaps I'll just 9 read that for you. It reads: 10 "I anticipate that Mr. Harnick's 11 evidence will be that he met with 12 yourself and Ms. Todres on the morning 13 of September -- September 5th and that 14 he did not meet with or speak to 15 Minister Runciman until the afternoon 16 of September 6th at the dining room 17 meeting." 18 And Mr. Taman responded: 19 "That -- yeah, I wouldn't disagree with 20 that if you remembered more clearly 21 than I, that's possible." 22 And he goes on, and as a part of his 23 subsequent response: 24 "And so, if that's what the Minister 25 remembers I -- I wouldn't contradict
721 him." 2 A: No. I -- I can tell you that I never 3 with Mr. Runciman and I didn't see Mr. Runciman until we 4 were at Cabinet the -- the next day. 5 Q: All right. You have indicated that 6 as part of this briefing... 7 8 (BRIEF PAUSE) 9 10 Q: I'd -- I'd drawn your attention 11 earlier to the November 14th transcript at page 89. 12 Regrettably, I had suggested to you that that was the -- 13 the meeting of the 5th of September. In fact, Mr. Taman 14 was testifying with respect to the meeting of September 15 the 6th. 16 And do you recall, first of all, and we'll 17 come to this in more detail, but a meeting on September 18 the 6th with Mr. Taman? 19 A: With Mr. Taman and Mr. Runciman? 20 Q: And -- 21 A: And the -- 22 Q: Or the Deputy Solicitor General? 23 A: The only meeting that I went to with 24 those individuals being present would have been the 25 meeting in the dining room. I never met with Mr. Taman
731 together with Dr. Todres and Mr. Runciman as a group. It 2 never happened. 3 Q: All right. Thank you. And, Mr. 4 Harnick, you've indicated that Dr. Todres provided you 5 with some information. I take it from -- from your 6 response that there was no details provided -- 7 A: Not -- not -- 8 Q: -- aside from -- 9 A: Not that I can recollect. It was -- 10 the situation's being monitored. She certainly didn't 11 say that there was anything untoward happening. 12 Whether she didn't say that because that 13 was the case or she didn't know I can't -- I -- I can't 14 make the distinction, but just that she confirmed yes, 15 the -- the occupation had taken place and that they were 16 monitoring the -- the situation, the OPP and, I guess, 17 the MNR people and she'd keep Mr. Taman advised. 18 Q: And in particular were you provided 19 with any information as to the reason for the occupation 20 of the Provincial Park? 21 A: No. I don't believe that she was 22 aware of that, other -- there was nothing beyond the 23 knowledge that the occupation had taken place. 24 Q: Any allegation of the existence of a 25 -- a burial ground or a sacred site located within the
741 boundaries of Ipperwash Provincial Park? 2 A: No. 3 Q: Okay. I take it you would have been 4 aware that the Interministerial Committee as per the 5 subsequent briefing, they would continue to monitor the 6 situation? They would meet again if anything developed? 7 This development would have triggered a further meeting 8 of that committee? 9 A: Well, I'm -- I'm aware, having gone 10 through all of these notes, that there was a subsequent 11 meeting of the Interministerial Committee. 12 Q: You wouldn't have been aware that it 13 was meeting on that date, for example? 14 A: I don't think so. I -- I had, I 15 suspect, things, as I said, that I -- I was involved 16 with. I -- I had staff who were -- having read these -- 17 these notes were at these meetings, but it wasn't 18 something that I was directly involved with. 19 Q: All right. And -- 20 A: Whether I knew -- whether I knew they 21 were having the meetings or not I -- I can't recollect. 22 But, I don't dispute the fact that they were having the 23 meetings and that someone from my office was -- was at 24 the meeting. 25 Q: Okay. If I direct you to Tab 24,
751 it's Inquiry Document 1011769, Exhibit P-649. 2 It's an e-mail from Julie Jai dated 3 September the 5th, and you'll note it's time stamped at 4 2:27 in the afternoon? 5 A: Yes. 6 Q: It indicates that in fact the 7 Interministerial Committee had met that morning? 8 A: Yes. 9 Q: And just to the middle of the page 10 the third full paragraph reads: 11 "It was also agreed that the Committee 12 members would advise their Ministers 13 that the group's recommendation is to 14 seek a civil injunction, whether ex 15 parte or interim has not been 16 determined, and seek direction from 17 their Ministers on the issue." 18 I guess the question simply is, is whether 19 or not you were informed as the Minister from the 20 official that you would have had from your office in 21 attendance at that meeting? 22 A: I -- are you asking me whether I was 23 briefed by my political -- by -- by a member of my 24 political staff? 25 Q: Or any staff member that you would
761 have had there that -- if you can recall? 2 A: I -- I know that I was ultimately 3 briefed. As this paragraph indicates, Ministers were to 4 be briefed. And -- and from going through the notes and 5 -- and having been advised of previous testimony given by 6 others, I initially couldn't remember whether I was 7 briefed late in the day on the 5th, or on the morning of 8 the 6th, and it appears clear that I was briefed on the 9 6th. 10 Now, I remember being in my office when 11 the briefing occurred and it was -- and I don't dispute 12 that it was, in all probability, on the -- on the 6th. 13 Q: And if we move just to the second 14 last paragraph at the bottom of that document, I can take 15 you to the third sentence, reads: 16 "It was agreed that no legal action 17 would proceed until the lawyers sub- 18 group had done a risk assessment of the 19 options, so that we could take a best - 20 - take [pardon me] the best course 21 possible to reach the agreed upon goal, 22 which is removal of the people from the 23 Park, and until we had direction from 24 Minister Harnick." 25 A: Yes.
771 Q: And so they would have sought your -- 2 your direction on this -- on this matter? 3 A: Yes. They would have -- they would 4 have briefed me. They would have provided me with -- 5 with a recommendation and I would have then determined 6 whether I agreed with them. 7 Q: All right. Insofar as this 8 Interministerial Committee, did you have any role in 9 terms of directing them on what they should do in terms 10 of the exercise of the discretionary powers that we had 11 reviewed earlier? 12 A: Did I -- did I have any role with 13 them? 14 Q: Yes. 15 A: No. 16 Q: All right. And once the Park was 17 occupied, did you have any role with this Committee 18 insofar as telling them what they should or should not do 19 insofar as, again, those discretionary powers that we'd 20 reviewed earlier? 21 A: No. The -- the -- as far as I was 22 concerned, it was a -- a protocol or a guideline that -- 23 that was established. And -- and as this document that 24 we're now looking at indicates, decisions would be made 25 at that level that would be brought to the Ministers that
781 would be involved for their agreement. 2 Q: Okay. And I believe you've agreed 3 that at some point in time you were -- you were, in fact, 4 briefed on this matter, or at least you accept that you 5 were briefed on these issues? 6 A: Yes. 7 Q: And you were briefed on the issue of 8 the obtaining of an injunction at some point? 9 A: I was. 10 Q: And what, if anything, can you recall 11 about -- about that briefing? 12 A: I remember it was in my office, and I 13 remember that a group attended on my -- on me in my 14 office that would have been made up of, I believe, people 15 from the Ontario Native Affairs Secretariat. 16 I -- I know Mr. Taman's evidence was that 17 he was there as well, and I don't dispute that. I don't 18 remember that. 19 I think Mr. Moran said he was there, as 20 well. I don't -- I don't remember that. 21 I remember taking a look at the 22 guidelines. I know that there was a recommendation to 23 seek an injunction. I looked at the guidelines, and the 24 process that was followed to get to that point was -- was 25 followed pursuant to the guidelines which I was concerned
791 that we follow. 2 That was the -- the appropriate process. 3 I know that those guidelines were guidelines that were 4 developed in conjunction with the -- the OPP. And -- and 5 I think I -- I have been told that in terms of an 6 injunction, it was something that the -- the lawyers 7 believed was -- was a good technique to reduce any 8 tensions that were building, and -- and it was a good 9 technique to resolve these issues. 10 I asked who the lawyer was that was going 11 to be handling this, and I was advised that it was Tim 12 McCabe. I know that he was not there because I have 13 never met Tim McCabe. 14 But, I was advised that he was the -- the 15 senior person in the -- in the civil litigation office 16 that -- that dealt with -- with these kinds of issues, 17 that he had done this many times before, and that -- that 18 this was a recommendation that he was comfortable with. 19 And I -- I was advised of a sense of 20 urgency, and that people believed that we should be 21 dealing with this on an as-soon-as-possible basis. And I 22 essentially agreed with the -- the aid of process that 23 was being followed because it was pursuant to the 24 guideline. 25 I was satisfied that Tim McCabe was the --
801 the person who was going to be doing this and I was told 2 a little about him and -- and an injunction was -- was an 3 appropriate technique at this stage. 4 Q: Do you recall who advised you of the 5 qualifications of Mr. McCabe? 6 A: I -- I don't. But, I know that I -- 7 I did not know Tim McCabe, and I know that he was not 8 there. And I know that I -- I was assured that -- that - 9 - of the high qualifications that he had and the 10 experience that he had in -- in dealing with these kinds 11 of issues. 12 Q: With respect to the injunctive 13 relief, was there any discussion to your recollection as 14 to the nature or type of injunction that would be sought? 15 A: I -- I don't believe -- I don't 16 believe that there was. There -- there may have been 17 but, you know, certainly that would not be something that 18 -- that I would be making decisions on. It wasn't my 19 practice and it wasn't throughout the whole period of 20 time that I was the -- the Attorney General. 21 These were issues that would be best left 22 to the people doing the work who had materials to -- to 23 gather and -- and to form into affidavits, and to see if 24 service and -- and that kind of thing were -- were 25 possible. And -- and it wasn't for me to be telling Tim
811 McCabe how he should be doing his work. 2 I -- I just accepted broadly the -- the 3 concept of a -- of an injunction being sought and doing 4 it as soon as possible. 5 Q: Do you know whether your Deputy, Mr. 6 Taman -- Taman, would have had any role, insofar as 7 providing instructions, as again, to the nature and type 8 of injunctive relief? 9 A: Again, I -- I accept the fact that 10 Mr. -- Mr. Taman -- Mr. Taman was, in his evidence, says 11 he was at the meeting. 12 I -- I don't recall anyone advising me 13 that this was not a good approach. 14 Q: If I can refer you to Tab 25, Mr. 15 Harnick, of the book of documents in front of you. It's 16 Inquiry Document 1011738. I don't believe that this -- 17 A: Which -- I -- I'm at Tab 25 -- or 24 18 now, I'm sorry. Yes. 19 COMMISSIONER SIDNEY LINDEN: I'm sorry, 20 which tab was that, Mr. -- 21 MR. DONALD WORME: 25. 22 COMMISSIONER SIDNEY LINDEN: 25, that's 23 the one we're on. 24 MR. DONALD WORME: Inquiry Document 25 1011738. This is not an exhibit in these proceedings and
821 perhaps I should ask that that be made the next exhibit. 2 3 (BRIEF PAUSE) 4 5 THE WITNESS: Is this not already -- I 6 mean, I have a note that it's the same as Tab 9. 7 8 CONTINUED BY MR. DONALD WORME: 9 Q: And I was simply going to draw that 10 to your attention. You'll note that it bears the date 11 September the 5th of 1995. 12 A: Yes. 13 Q: And the document that I had referred 14 you to earlier at Tab Number 9, while the content of it 15 may be similar, is dated July the 10th of '95. 16 Do you see that? 17 A: Yes. 18 Q: And you've had a chance to review 19 those, and but for the difference of that date, do you 20 note any difference to those documents? 21 A: I don't. 22 Q: Okay. And you'll see that 23 accompanying this document, which again is a briefing 24 note for the Honourable Minister Charles Harnick, 25 Minister Responsible for Native Affairs, dated September
831 the 5th of '95. 2 There's also an appendix that's attached 3 to that and that appendix, I'm going to suggest to you, 4 is exactly the same as the document that we'd referred to 5 earlier at Tab 10; that's P-498. 6 A: Yes. 7 Q: All right. Do you recall seeing this 8 particular briefing note? 9 Did you receive a copy of this, for 10 example, on September the 5th, the date that it bears? 11 A: Certainly, I -- I mean, I believe 12 that it was -- I believe that it was put to me in the 13 briefing, I have no doubt about that. And -- and I can 14 tell you that as -- as the issue proceeded, my concern 15 was that we follow the protocol. 16 Q: All right. 17 A: The UV (phonetic) guidelines. And so 18 I -- I would have been aware of that. 19 Q: Thank you, Mr. Harnick. That is not 20 an exhibit, Mr. Commissioner, and perhaps we can ask -- I 21 would ask that be made the next exhibit. 22 THE REGISTRAR: That's Tab 25, Document 23 number 1011738, P-974. 24 COMMISSIONER SIDNEY LINDEN: Thank you. 25
841 --- EXHIBIT NO. P-974: Document Number 1011738. 2 ONAS Briefing Note for 3 Charles Harnick, attaching 4 appendix : Guidelines for 5 Responding to Aboriginal 6 Emergencies, Sept. 05/95. 7 8 CONTINUED BY MR. DONALD WORME: 9 Q: All right. Mr. Harnick, if I can 10 direct you to Tab 30 of the book of documents in front of 11 you, that is Inquiry Document 1010501. 12 I can tell you that that has been marked 13 as Exhibit P-709. 14 A: Yes. 15 Q: And that is a briefing note, again 16 for yourself as the Minister responsible for Native 17 Affairs, and it's dated September the 6th of 1995? 18 A: Yes. 19 Q: And again, I'm going to suggest to 20 you that that document is essentially a replication of 21 the earlier document that I had referred you to at Tab 22 25? 23 24 (BRIEF PAUSE) 25
851 A: Yes, it is. 2 3 (BRIEF PAUSE) 4 5 Q: As well, the appendix is -- is the 6 same as the earlier document that we referred to and the 7 one that we have just marked? 8 A: Yes. 9 Q: All right. As I'd asked you, with 10 respect to the earlier document of September the 5th, do 11 you recall receiving this briefing note? 12 A: Specifically, I don't. But, I know 13 that that's what I was briefed on, and I will say again, 14 it was a briefing that -- that I felt was taking place 15 pursuant to the role of the Committee insofar as their -- 16 the guidelines were concerned and the -- the seeking of 17 my agreement with -- with their recommendation. 18 Q: You've agreed with me that those 19 briefing notes are essentially the same but for the date 20 stamps on them? 21 A: Yes. 22 Q: Would that have been supplemented by 23 way of a verbal briefing in terms of providing you with 24 updated information? 25 Would that be how that would work?
861 A: I don't know that I follow your 2 question. 3 Q: I guess what I am -- what I am 4 getting at is that if you -- you've agreed with me that 5 these briefing notes are essentially identical from the 6 5th and the 6th? 7 A: Yes. 8 Q: Now, it wouldn't make any sense to 9 simply receive the document over and over again, it seems 10 to me. 11 A: Yes. 12 Q: And so can you tell us whether there 13 was additional information, if you can recall, that would 14 have been provided on the subsequent days to supplement 15 the -- the briefing document itself? 16 A: Well, the only -- the only time that 17 I was briefed would have been on the morning of the 6th, 18 and -- and so -- so that's -- that's the only time that - 19 - that this briefing took place. 20 So, whether I saw the briefing note that's 21 dated the 5th or the 6th, I don't know. 22 Q: All right. Thank you for that. At 23 Tab 26, Mr. Harnick, there's a further document; it's 24 Inquiry document number 1003418. It's Exhibit P-639. 25 This bears the date of September the 5th.
871 And you'll see at the bottom that it is -- has been 2 approved by Yan Lazor, the acting Secretary -- 3 A: Yes. 4 Q: -- or assistant Secretary -- acting, 5 rather. 6 A: Yes. 7 Q: Okay. And I just want to draw your 8 attention to a couple of notations within that. At the 9 second full paragraph under the heading, Issue -- 10 A: Yes. 11 Q: -- you'll see that it confirms that a 12 -- an Interministerial Committee Meeting had taken place 13 on September -- Tuesday, September the 5th and it was -- 14 it had met to review the situation and develop 15 recommendations. 16 A: Yes. 17 Q: And that it goes on, pardon me, to 18 indicate that the Ministry of Natural Resources would be 19 responsible for communications in the short term. 20 And I'll just stop there for a moment. Do 21 you see that? 22 A: Yes. 23 Q: And if you go to the next full 24 paragraph: 25 "The committee also recommended that an
881 injunction of some kind be sought and 2 that the possibility of Criminal Code 3 mischief charges or trespass charges 4 under the Provincial Statute be 5 explored. 6 It was agreed that Ministerial 7 direction should be sought as soon as 8 possible. The committee will be 9 meeting again on September the 6th." 10 And does that accord with -- with your 11 recollection of how the events transpired and how they 12 ought to have under the protocol that we've reviewed 13 earlier? 14 A: Yes, that they would be coming to -- 15 to brief me and -- and to ensure that I agreed with the 16 recommendation that I assumed was also being taken to the 17 other ministers whose ministries were involved. 18 Q: All right. And just one (1) last 19 area with respect to that document. Under the Summary of 20 Advice, it reads: 21 "It is recommended that a civil 22 injunction be sought to provide court 23 authority for removing the occupiers of 24 the Park. The injunction could be 25 sought either on an emergency ex parte
891 basis or an interim less urgent basis." 2 And again does -- having a chance to look 3 at that, does that assist you in recalling whether or not 4 there was any discussion about the nature and kind of 5 injunctive relief that would be looked for? 6 A: Well, I -- I think -- I think that, 7 you know, the -- the -- my recollection of what I agreed 8 to ultimately recommend in -- in the next step of -- of 9 this process was that I -- I thought we should be seeking 10 an injunction as soon as possible. 11 I was advised that -- that there -- there 12 was some pressure at -- at the Committee that -- that 13 this should be done without a lot of delay. And -- and I 14 thought it was realistic to do it as soon as possible and 15 leave it to the lawyers to -- to deal with it on that 16 basis. 17 Q: And this feeling that it ought to be 18 done as soon as possible, can you -- can you tell us how 19 that was developed; at least how you came to the 20 conclusion that that would be desired -- desired, pardon 21 me? 22 A: I -- I think it was the -- the sense 23 that this committee had met and -- and it was conveyed to 24 me that there should not be undue delay in terms of a 25 response from the Government. And I -- I felt that
901 seeking an injunction and -- and taking the matter to -- 2 to the Court was a reasonable response on -- on the part 3 of the Government. 4 And -- and again, in -- in terms of the 5 questions I asked, it was something that was compatible 6 with the way the OPP would deal with these issues. It 7 was a tool that the OPP had relied on before in -- in the 8 past. It was in the protocol which was developed in -- 9 in conjunction with the -- the Ontario Provincial Police 10 and it -- it seemed like an appropriate place to -- to 11 begin trying to resolve an issue by taking it to -- to 12 court. 13 Q: All right. I'll draw your attention 14 to Tab 28, which I'm going to suggest to you is exactly 15 the same -- it's a different version of the same document 16 that I've just referred you to earlier. It's Exhibit P- 17 549 and it's Inquiry Document 1011745. 18 19 (BRIEF PAUSE) 20 21 Q: Okay? Do you see that? 22 A: Yes. 23 Q: And I'd -- I'd referred you earlier 24 to the first sentence under Summary of Advice. 25 The -- the sentence that follows that
911 reads: 2 "An interim injunction could take a 3 week to be heard, but we'll provide 4 time to communicate with the group to 5 find out what they want in time for the 6 Province to show that it has taken all 7 reasonable steps to persuade them to 8 leave. Chances of success would be 9 higher with an interim injunction, but 10 delay could make it more difficult to 11 remove the occupiers." 12 And does that assist you at all in -- in, 13 again, the kind of discussion that might have taken 14 place, the briefing that would have taken place? 15 A: Well, again, I mean it -- it was, Go 16 ahead and get the injunction and do it as soon as 17 possible, which I -- I felt was a reasonable response and 18 -- and -- and it was something that I think everybody 19 agreed to. 20 Q: Okay. And you'll see on the very 21 next page of that document there's some handwritten 22 notes, and it starts out: 23 "Agreed Julie to call OPP Fox." 24 A: Right. 25 Q: "We want to support them; let's get
921 more facts. Concern is safety, we 2 don't want anyone injured over this. 3 If no one is at risk at the time, no 4 urgency." 5 And again, does that assist you in terms 6 of the briefing that you would have received? 7 A: Yes. 8 Q: And the very last entry of those 9 handwritten notes reads: 10 "Julie and Larry went over to Leg to 11 brief Minister." 12 Now, would that have been you, first of 13 all? 14 A: Well, I can tell you that Julie and 15 Larry would have briefed me in my office before I went to 16 a Cabinet meeting, that would usually be -- because the 17 Legislature wasn't sitting, would in all probability have 18 begun at ten o'clock, and they would have briefed me 19 before that Cabinet meeting. 20 They briefed me in my office not in the 21 Leg and I understand that they or that Julie would then 22 have gone off to another meeting of the Interministerial 23 Committee that was starting at 9:30. 24 So I -- I was -- this was the only time I 25 was briefed. I was not briefed again at the Legislature
931 by anyone. 2 I then went to a Cabinet meeting. 3 Q: If I can refer you then to document, 4 pardon me, Tab number 29. It's Inquiry Document 1011733. 5 It's Exhibit P-651. And we had Julie Jai's testimony 6 here to confirm that these are, in fact, her handwritten 7 notes. 8 And you'll see right at the top it's 9 written, "Notes for Briefing, September 6th, 1995 of 10 Minister Harnick." 11 A: Yes. 12 Q: All right. And she testified, Mr. 13 Harnick, on August the 30th at page 267, line 15, in 14 answer to the question: 15 "And what were you hoping, was it to 16 meet with Mr. Harnick the next morning? 17 A: Yes. And we did meet with him 18 early the next morning prior to 9:30 19 a.m. meeting of the Interministerial 20 Committee Meeting." 21 A: Yes. 22 Q: Right. And that accords with your 23 recollection? 24 A: Yes, it does. 25 Q: Being briefed at least?
941 A: Yes, it does. And there would have 2 been no point going over to the Legislature, because I 3 wouldn't have gone there until ten o'clock for -- for a 4 Cabinet meeting and they would have been -- or Julie 5 would have been leaving earlier to go to the 6 Interministerial meeting. 7 So it was probably earlier that morning 8 that we met and I don't dispute that it is correct. 9 Q: And on -- on the 31st of August, Ms. 10 Jai testified at page 34 at line 5, and I'll just read 11 the last part of her response, it says: 12 "And that briefing must have occurred 13 quite early because it was before the 14 Interministerial Committee which 15 started at 9:30." 16 And again, that accords with your 17 recollection? 18 A: Yes. 19 Q: She also testified, Mr. Harnick, on 20 the 31st of August at page 53, in answer to the question: 21 "And then as a result of this meeting, 22 what was the recommendation that you 23 and Mr. Taman were going to make to Mr. 24 Harnick? 25 A: We made the recommendation that an
951 injunction in the normal course be 2 sought, not an ex parte injunction." 3 And does that assist you in terms of the 4 recommendation that you would have received? 5 A: Yes. 6 Q: Do you know who else might have been 7 with you for this briefing when that recommendation was 8 made? 9 A: I had just taken a look at the -- I 10 mean I had been told about evidence and various notes and 11 I -- I suppose it could have been David Moran because he 12 says he was there and I don't dispute that. 13 I don't know whether Yan Lazor was there. 14 15 (BRIEF PAUSE) 16 17 A: I -- I have the vaguest recollection 18 that at -- that Andrew McDonald may have been there. And 19 he was a lawyer at the time who had been seconded to the 20 Ontario Native Affairs Secretariat, I believe from the 21 Ministry of Natural Resources, he was a lawyer; but I 22 can't be sure. 23 Q: As a result of receiving these 24 recommendations as part of that briefing, what was your 25 response to that?
961 What did you do as a result of receiving 2 these recommendations to seek an injunction? 3 A: Well, I -- I agreed that -- I agreed 4 with the proposal to seek an injunction as soon as 5 possible. I don't believe that I was involved in any 6 real discussion about whether it should be ex parte or 7 not simply because, as I told you, that was to be left to 8 the -- to the lawyers who were -- who were going to 9 prepare the -- the injunction. 10 And -- and I was -- after, I was going to 11 take this to the meeting that was to be convened 12 following the Cabinet meeting that would involve the 13 various Ministries that were involved in this issue, and 14 make that recommendation. 15 And Mr. Taman and I were -- were prepared 16 to do that. 17 Q: Were you aware, Mr. Harnick, at that 18 -- by that point in time, that your Deputy Minister, Mr. 19 Taman, had met with the Solicitor General and the Deputy 20 Solicitor General? 21 A: I -- I was not. 22 Q: And moreover, that the position that 23 they had indicated was that they wanted to go slowly? 24 A: I -- that -- that was -- as I said 25 before, I wasn't part of that meeting. But again, I
971 thought that the -- the idea of seeking the injunction 2 and -- and doing it as soon as it was possible was -- was 3 the appropriate response and that's what the 4 recommendation was to do. 5 Q: And Ms. Jai testified, at page 64 of 6 the transcript of the same day I've just indicated, that 7 Mr. Taman had indicated to you, as part of this briefing, 8 that he had, in fact, met with Minister Runciman and Dr. 9 Todres. 10 A: I -- I have no recollection of that. 11 I don't have any knowledge of -- of the meeting that took 12 place with them and certainly, as I said before, I wasn't 13 part of it. 14 Q: You don't dispute that that 15 information might have been provided to you? 16 A: I -- I don't believe it was. 17 Q: All right. Okay. In any event, your 18 recollection is, is that you agreed with what they were 19 recommending to you and I think you've already indicated 20 you were prepared to carry that recommendation to Cabinet 21 or the meeting immediately following the Cabinet meeting? 22 A: Yes. 23 Q: All right. The testimony that we 24 have on record, Mr. Harnick, would indicate that you had 25 provided instructions to proceed to obtain a civil
981 injunction in the ordinary course. 2 A: Yes. 3 Q: All right. And that is you -- you 4 didn't give instructions to seek an ex parte injunction 5 at that point. 6 A: I -- I wouldn't have done that. As I 7 said, that -- that's something that would have been left 8 to the discretion of the lawyers. 9 Q: Okay. If I can take you to Tab 34 of 10 the book of documents in front of you, there's Inquiry 11 Document 3000776, it's marked as P-550. We've had 12 testimony from Deputy Minister Taman that that is his 13 handwritten notes. 14 And the indication at the top: 15 "ONAS meeting re Ipperwash. AG 16 instructed by P that he desires -- " 17 Pardon me, let me see if I can read this. 18 "AG instructed by P that he desires 19 removal..." 20 In any event it -- it finishes: 21 "Instructed to [something] injunction." 22 Maybe you can help me with that. I know 23 it's been reviewed in the -- in these proceedings several 24 times. 25 COMMISSIONER SIDNEY LINDEN: Just a
991 minute. Yes. 2 3 (BRIEF PAUSE) 4 5 COMMISSIONER SIDNEY LINDEN: We've had 6 this read into the record -- 7 MR. DERRY MILLAR: It says on the record 8 at -- 9 COMMISSIONER SIDNEY LINDEN: Yes. 10 MR. DERRY MILLAR: -- page 103 of Mr. 11 Taman's evidence that the note reads: 12 "ONAS re Ipperwash. AG instructed by P 13 that he desires removal within twenty- 14 four (24) hours. [New sentence] 15 Instruction to seek injunction." 16 17 (BRIEF PAUSE) 18 19 CONTINUED BY MR. DONALD WORME: 20 Q: And you'll see that Mr. Taman -- Mr. 21 Taman indicates, in any event, that -- that you provided 22 him with those instructions as a consequence of being 23 instructed by the Premier, I take it? 24 A: Well, I -- I can tell you that I was 25 never instructed by the Premier. I never heard from the
1001 Premier, I never saw the Premier until I attended a 2 Cabinet meeting that morning. And the subject of 3 Ipperwash was not part of the -- the deliberations of 4 Cabinet. 5 The only time that I was in the presence 6 of the Premier or that I was speaking with the Premier 7 would have been at the meeting of the dining room after 8 the Cabinet meeting. 9 And I mean, I can tell you that over the 10 course of five (5) years in the Opposition and four (4) 11 years in -- in government, you very seldom, if ever, 12 received a phone call from the Premier. And certainly I 13 would remember a phone call where the Premier was 14 instructing me to remove the occupiers within twenty-four 15 (24) hours. 16 It -- it makes absolutely no sense to me. 17 I don't know what time this instruction was alleged to 18 have been given. Certainly I didn't tell Mr. Taman about 19 this. Somebody else may have had that impression and may 20 have told Mr. Taman, but I -- I never -- never heard from 21 the Premier in that regard, whatsoever. 22 And -- and I can tell you that -- I mean I 23 -- I assume this was written under Wednesday the 6th of 24 September. I -- I assume it was prior to the dining room 25 meeting where both Mr. Taman and I appeared at the
1011 meeting with the Premier. So certainly I -- I have no 2 idea where this -- where this has come from. 3 The other thing I'll say, though, about 4 that, is that -- and I -- I don't mean to, kind of, 5 destroy the order in which we're going through. This -- 6 but, my understanding of the evidence is that the 7 instruction that I gave or that I -- that I -- I agreed 8 to, the -- the means of proceeding that I agreed to when 9 I was briefed in the morning, was on all fours with the 10 instruction that was given by Mr. Taman to Elizabeth 11 Christie after the dining room meeting. 12 So, I -- I don't know where this came 13 from, but it -- it makes absolutely no sense to me. I 14 mean did people actually think that I had some magic way 15 of removing people from the Park within twenty-four (24) 16 hours? 17 It's absurd. It's absolutely absurd and 18 it doesn't accord with the dining room meeting or the 19 instructions that came out of the dining room meeting or 20 the instructions that Mr. Taman gave to Elizabeth 21 Christie. That's all I have to say about this. 22 Q: All right. And we'll -- and we'll 23 come to those other issues that you've -- that you've 24 raised, Mr. Harnick. But I can tell you, with respect to 25 Mr. Taman's testimony before these proceedings, he was
1021 cross-examined on November 5th by your counsel and that 2 transcript is at page 41 and 42. 3 And I just want to read you the questions 4 -- the question that was put to her -- to him rather: 5 "Q: I can take you to Tab 22 Exhibit 6 P-550 [and that's just the note that 7 we've just referred to.] 8 A: Yes? 9 Q: Is it possible that these notes 10 [continuing on page 42] from your -- 11 are from your briefing prior to the 12 briefing of the Minister?" 13 And Mr. Taman answers: 14 "No, I don't that's possible because I 15 -- I after ten (10) years, one (1) of 16 the things I recall, very clearly, is 17 that it was very important to be clear 18 that this instruction had been given, 19 that it had been given by the Premier 20 and that it had been given in these 21 terms." 22 A: Could -- could I -- could I stop you 23 there for a minute? 24 Q: Yes. 25 A: After the briefing I went to a
1031 Cabinet meeting. The next time I saw Mr. Taman was at 2 the meeting in the dining room that -- that followed the 3 Cabinet meeting. So if Mr. Taman is saying that 4 following the briefing I met with him and gave him this 5 instruction, it can't be, because I never saw Mr. Taman 6 until we met in the dining room. 7 And -- and that would be the next time 8 that I saw him. I went to a Cabinet meeting and -- and I 9 -- I had no contact with Mr. Taman until he came to the 10 meeting at the dining room which -- where I met him, 11 after the Cabinet meeting. 12 13 (BRIEF PAUSE) 14 15 A: I'm sorry, I interrupted your -- 16 Q: I'm just trying -- 17 A: -- your question. 18 Q: -- to understand, did you not agree 19 earlier that you had a briefing by Mr. Taman and Ms. Jai 20 earlier on the 6th of September 1995? 21 A: That's right. I had that briefing. 22 Q: Okay. 23 A: And what you're postulating to me is 24 that after that briefing, I would have provided this 25 information to Mr. Taman. I think that was --
1041 Q: I think that's the suggestion Mr. 2 Taman makes. 3 A: Yes. And I'm telling you that that 4 can't be, because after the briefing I went to a Cabinet 5 meeting and the next time I spoke with Mr. Taman would 6 have been at the meeting in the dining room. 7 So if you're telling me that I provided 8 this information to Mr. Taman, I didn't see Mr. Taman 9 after the morning briefing until we met at the dining 10 room. 11 Q: And I understand that completely, Mr. 12 Harnick. His evidence, nonetheless, was that at that 13 briefing, this was the instruction that was provided. 14 And I simply am asking for your response 15 on that? 16 A: I -- I have -- well, are you saying 17 now that -- that he told me I provided this information 18 to him at the briefing? 19 Q: That is the suggestion that he's... 20 21 (BRIEF PAUSE) 22 23 Q: Mr. Falconer has a different view of 24 that, and he suggests that this came after the meeting in 25 the dining room.
1051 MR. DERRY MILLAR: No, that's just -- 2 COMMISSIONER SIDNEY LINDEN: No -- 3 MR. DERRY MILLAR: The evidence -- 4 MR. JULIAN FALCONER: Now, that I've 5 tried to communicate to My Friend, and now because -- 6 what I tried to communicate to My Friend was my 7 understanding of the evidence is that Mr. Taman testified 8 that there was a meeting that morning, but then 9 afterwards they went to the Legislature and it was at the 10 Legislature, after, that this instruction came. 11 At the Legis, that was the -- 12 THE WITNESS: Well, can I -- I mean I... 13 14 (BRIEF PAUSE) 15 16 COMMISSIONER SIDNEY LINDEN: Just one 17 minute, Mr. Harnick, just one minute while... 18 MR. DERRY MILLAR: The evidence, and I've 19 -- and I can get the page again, but the evidence of Mr. 20 Taman was that the briefing that, as I understand his 21 evidence, that this instruction came at the briefing with 22 the Attorney General on the morning of September 6th. 23 COMMISSIONER SIDNEY LINDEN: Which 24 according to the evidence we've heard this morning is 25 before the Attorney General went to the Legislature to go
1061 to the Cabinet meeting. 2 MR. DERRY MILLAR: Well, it was before 3 the Cabinet meeting -- 4 COMMISSIONER SIDNEY LINDEN: Before the 5 Cabinet meeting. 6 MR. DERRY MILLAR: We've heard different 7 evidence as to where the meeting was but -- 8 COMMISSIONER SIDNEY LINDEN: Well, we've 9 heard the Cabinet meeting -- oh, okay, but before the 10 Cabinet meeting? 11 MR. DERRY MILLAR: Yes. 12 THE WITNESS: Well, if you're telling me 13 that I -- I heard or if the -- if the fact that you're 14 trying to ask me about is: Did I hear from the Premier 15 that morning or at any time before I was briefed? The 16 answer is no. 17 The other -- the other aspect, and why I 18 think there may be some confusion, is that some people 19 think that I may have changed my mind and been briefed 20 and agreed with a certain direction and then later 21 changed my mind, and that was not the case. 22 The -- the information that -- that I was 23 briefed on and made a decision on was information that 24 was consistent and it was -- it was consistent from the 25 time we had the meeting, the briefing in the morning.
1071 We went to the dining room. Mr. Taman, in 2 fact, was the one who spoke to the issue at the dining 3 room. And Mr. Taman gave an instruction to Elizabeth 4 Christie that was on all fours with what we had decided 5 coming out of my morning briefing. 6 COMMISSIONER SIDNEY LINDEN: I understand 7 th -- 8 THE WITNESS: And I can tell you that I 9 never heard from the Premier. And you tend to remember 10 if somebody gave you an instruction and -- and was laying 11 it at my feet to remove the -- the occupiers within 12 twenty-four (24) hours. And certainly that is not the 13 way we, in fact, proceeded. 14 15 CONTINUED BY MR. DONALD WORME: 16 Q: Prior to your meeting at the 17 Premier's dining room where the Premier, we were told, 18 was present -- 19 A: Yes. 20 Q: -- had you any communication with him 21 on September the 4th, September the 5th or earlier in the 22 day on September the 6th? 23 A: None whatsoever. 24 Q: At the Cabinet meeting? 25 A: There was no discussion at the
1081 Cabinet meeting about the Ipperwash that I can recall at 2 all and certainly I never received an instruction from 3 the Premier at that meeting. 4 Q: All right. I want to turn then to -- 5 unless there's anything else that you can tell us about 6 the 5th, I want to direct your attention to the 6th of 7 September. 8 And you've told us earlier that you didn't 9 have an office at the Legislative Building? 10 A: That's right. 11 Q: And your practice would be to -- 12 before you went to the Cabinet meeting, would you attend 13 to your own office? 14 A: Yes. 15 Q: All right. Do you know whether you 16 did so on that date? 17 A: Yes. I -- I would definitely attend 18 at my office because I tended not to want to take my 19 Cabinet books home. And -- and the preparation I would 20 do for Cabinet would be preparation in my office. So I 21 would have to come to my office in the morning. 22 I would often have a briefing before I 23 went to Cabinet and -- and then I would go to Cabinet. 24 Q: All right. And just insofar as 25 maintaining a date-minder or a diary or schedule, did you
1091 do anything like that where you would record your own 2 notes? 3 A: I had a scheduler who would maintain 4 my schedule. What happened to that schedule I have no 5 idea. 6 Q: All right. Did you carry a day- 7 minder or some such that you would record the -- the 8 events of the day? 9 A: No. But, I would -- I would receive, 10 on a daily basis, a binder that would have my schedule 11 for the day in it. And I would usually get it the day 12 before or the evening before. 13 And -- and then I would -- I would have -- 14 the various briefings would be in the binder and then at 15 the end of the day I'd give that back and get the one for 16 the next day. 17 Q: Okay. Sorry, Mr. Commissioner, I 18 just need a moment. 19 20 (BRIEF PAUSE) 21 22 Q: You were present for the entire 23 Cabinet meeting, Mr. Harnick? 24 A: I was. 25 Q: Okay. We've had some indication that
1101 Ron Fox was summoned to the Cabinet meeting. I take it 2 you don't recall seeing him there? 3 A: No. He was not at the Cabinet 4 meeting and very seldom would -- would anyone who was not 5 a Member of Cabinet be there. 6 7 (BRIEF PAUSE) 8 9 COMMISSIONER SIDNEY LINDEN: Are you 10 referring to the Cabinet meeting now or the dining room 11 meeting? 12 MR. DONALD WORME: I was simply just 13 going to cover off a point -- 14 COMMISSIONER SIDNEY LINDEN: Okay. 15 MR. DONALD WORME: -- that there is a 16 document in existence that indicated that he was summoned 17 to the Cabinet meeting and in fact he may have testified 18 to that himself. I simply wanted to cover that off with 19 the Witness. 20 THE WITNESS: He was -- he was not at the 21 Cabinet meeting and very seldom does anyone outside of 22 officials from Cabinet office and the Cabinet itself and 23 occasionally a Deputy Minister or an Assistant Deputy 24 Minister ever attend Cabinet. 25
1111 CONTINUED BY MR. DONALD WORME: 2 Q: You've told us already that Ipperwash 3 was not discussed at Cabinet meeting? 4 A: That's right. 5 Q: And do you know whether there had 6 been arrangements made where this would be addressed? 7 The -- the Ipperwash situation? 8 A: My understanding was that there would 9 be a meeting following Cabinet in the Premier's dining 10 room. 11 Q: Do you know whether or not you would 12 have received any information or a briefing that day 13 about the outcome of the Interministerial Committee 14 meeting that was also meeting on September the 6th? 15 A: I would not have received any 16 information. They -- they met while I was at Cabinet and 17 I went directly from Cabinet to the meeting in the dining 18 room. 19 Q: All right. If I can refer you to Tab 20 Number 20. It's Exhibit P-536 and these are the 21 handwritten notes of Julie Jai, they're dated September 22 the 6th of 1995. Do -- 23 A: Yes. 24 Q: -- you see that? 25 And on the very first page of that you'll
1121 see it says, "Agenda," at the top, "September 6th, 1995 2 Meeting Ipperwash?" 3 A: I'm sorry. 4 Q: You can just go into the -- 5 A: Just -- 6 Q: -- first -- first page of the written 7 -- handwritten notes? 8 A: Oh, I'm sorry. Yes, yes. Agenda, 9 yes. 10 Q: And it bears that date? 11 A: Yes, it does. 12 Q: And just down at the bottom there's 13 some notations: AG direction? 14 A: Yes? 15 Q: And it reads: 16 "Public safety key. We will support 17 OPP. We'll apply for a civil 18 injunction ASAP. We'll leave Criminal 19 Code charges up to police discretion as 20 a law enforcement/ public safety 21 matter." 22 A: Yes? 23 Q: And then there's the notation, 24 "agreed," around the -- around the parentheses that seem 25 to cover those points?
1131 A: Yes. 2 Q: And that would be the direction that 3 you provided? 4 A: Yes. 5 Q: All right. 6 A: That's exactly as I remember it. To 7 support the -- the OPP this was something that was -- 8 that was a tool that -- that they would want, public 9 safety being key. 10 I agree with -- with all of those points 11 and it -- it accords with certainly my recollection of 12 the instructions that I was or the -- the instructions 13 that I would be seeking when we met with all of the other 14 involved ministers including the Premier. 15 Q: And if I can just ask you to turn 16 three (3) pages into that document, it has the number "3" 17 written at the top? 18 A: Yes? 19 Q: The first full paragraph. Do you see 20 where it reads, "Tim..."? 21 A: Yes. 22 Q: It says: 23 "Mins can say [I take it that's 24 Ministers can say] instructions have 25 been given to AG to seek an injunction
1141 ASAP. Not a case for ex parte 2 injunction. Should give notice but we 3 could go to court to seek an 4 abridgement of the three (3) days 5 notice." 6 A: Yes? 7 Q: And you'll agree that that would seem 8 to indicate that Mr. McCabe was expressing a particular 9 opinion? 10 A: Yes. And -- and I think it's -- it's 11 important to note, I -- I guess, this was the -- the 12 meeting that was going on just from -- in the -- in the - 13 - the Interministerial Meeting that was 9:30 in the 14 morning on September 6th. 15 Is that -- just so I'm -- I'm clear, it 16 says, September 6th -- 17 Q: Right. 18 A: -- Emergency Committee Meeting? 19 Q: Yes. 20 A: And that would be the 9:30 meeting 21 because I think that was the only meeting. And -- and -- 22 and I gather that what the Committee was doing was 23 developing a communications plan in anticipation of those 24 instructions being obtained where it would say minister - 25 - ministers can say, instructions have been -- have been
1151 given to the Attorney General to seek an injunction as 2 soon as possible. 3 And that certainly accords with -- with 4 the instructions that I -- I would be seeking -- 5 Q: All right. 6 A: -- the recommendation that I've 7 accepted and the instructions that I would be seeking. 8 Q: And at Tab 23, Mr. Harnick, it's 9 Exhibit P-509? 10 A: Yes. 11 Q: Inquiry Document 1012288. It's the 12 meeting notes of September the 6th of 1995. 13 And at page 2 of those notes -- 14 A: I've got a cover that says, "Urgent". 15 My -- which -- which tab, sorry? 16 Q: 23. 17 A: 23 and the first page says, "Urgent" 18 on -- 19 Q: Yes. 20 A: -- the front? 21 Q: That's the fax cover page. 22 A: Yes. And are you looking at the 23 second page? 24 Q: I am looking at page 2 of the 25 document.
1161 A: Okay. The third page of the exhibit, 2 yes. 3 Q: The third -- third page of the 4 exhibit. I'm sorry, that's correct. 5 A: Yes. 6 7 (BRIEF PAUSE) 8 9 A: And this would be from September the 10 5th? I gather we're going back a day? 11 Q: I'm sorry, I've -- I've taken you to 12 the wrong -- wrong document. Part of the problem is that 13 this -- the second part of the exhibit, if you go in 14 several more pages, you have the meeting notes of 15 September the 6th and they've been both put in together. 16 A: Yes, I see that. 17 Q: All right. 18 A: I see that. 19 Q: And if I can take you to the second 20 page of that document, it's marked as page 2. 21 A: Yes? 22 Q: Item Number 3 Minister's Directives? 23 Okay? 24 A: Yes. 25 Q: And under Minister of the Attorney
1171 General, under "MAG" it reads: 2 "The Minister agrees that application 3 will be made for an injunction." 4 And that's consistent with what you've 5 just told us? 6 A: Yes. 7 Q: And at number 4 under, 8 "Communications", it reads: 9 "MNR will develop a communication plan 10 with main message as follows. 11 The AG has been instructed to seek an 12 injunction ASAP." 13 A: Yes. 14 Q: I guess again I'm just -- I'm 15 wondering as the Chief Law Officer, you would be 16 receiving instructions to obtain an injunction? 17 A: No, I -- I would have -- I would have 18 been briefed and I would have accepted the recommendation 19 and then pursuant to the protocol or the guideline as 20 it's described in your exhibits, we would have had a 21 subsequent meeting which would have been the dining room 22 meeting, where I would be seeking a consensus and making 23 a recommendation to the other Ministers and to the 24 Premier to seek an injunction. 25 I wouldn't have been instructed by anyone.
1181 The process would have been that I would have received 2 recommendations. I accepted the recommendations and now 3 I would, pursuant to the protocol or the guidelines, I 4 would be seeking consensus from the other Ministers. 5 And that's what the guidelines indicated I 6 should be doing. 7 Q: Okay. If I can ask you to turn to 8 the next page under point 5, next steps. The end of the 9 first bullet, you'll see in the -- in parenthesis, the 10 note. 11 A: Yes. 12 Q: "Following the meeting, Cabinet 13 directed MAG lawyers to apply 14 immediately for an ex parte injunction. 15 Tim McCabe, Elizabeth Christie and 16 Leith Hunter are preparing the 17 application and compiling the 18 supporting documentation." 19 Are you aware that Cabinet would have 20 directed MAG lawyers to apply immediately for an ex parte 21 injunction? 22 A: Well, I'm a little confused, because 23 it says next steps. It was agreed that an injunction 24 should be sought ASAP and then the -- the words in 25 brackets are there. And it's certainly not accurate and
1191 it's certainly not the instruction as I understand the 2 evidence, that Larry Taman gave to Elizabeth Christie. 3 And I gather that is so, both from the 4 perspective of Larry Taman and Elizabeth Christie. So I 5 don't know where this comes from. 6 Q: If I can ask you to turn to Tab 31. 7 It's Inquiry Document 1011784, it's Exhibit P-636. 8 We are told that these are the handwritten 9 notes of Eileen Hipfner. And you'll see they are -- they 10 bear the date of September the 6th of 1995? 11 A: Yes. 12 Q: And at page 3, towards the bottom of 13 the page -- 14 A: Can you just remind me -- 15 Q: Yes. 16 A: -- who Eileen Hipfner was? I'm 17 sorry, I know you've advised me of that before in our 18 preparation, but I can't remember. 19 20 (BRIEF PAUSE) 21 22 Q: Eileen Hipfner was an official within 23 ONAS. 24 A: Okay. 25 Q: All right.
1201 A: I'm sorry. 2 3 (BRIEF PAUSE) 4 5 Q: I'm sorry, if we can just... 6 7 (BRIEF PAUSE) 8 9 Q: Just before we go on to that, I want 10 to take you back to that earlier document at Tab 23. 11 A: Yes. 12 Q: Mr. Millar just confirmed for me that 13 that note that I just drew your attention to which didn't 14 seem to make sense to you, evidently was added 15 afterwards. 16 Were you aware of that at all? And that 17 Cabinet, as is being referred to there is, in fact, being 18 -- is, in fact, referring to the dining room meeting that 19 took place. 20 A: So -- so now apparently the -- the 21 implication here is that the dining room meeting, someone 22 says, was made a decision to apply immediately for an ex 23 parte injunction? 24 Q: That's what it would seem to 25 indicate.
1211 A: And -- and -- so that -- I mean, I 2 don't know -- certainly that's not the result of the 3 dining room meeting as I remember it or as Larry Taman 4 remembers it, or as Elizabeth Christie remembers it. 5 So I don't know who prepared this note. I 6 mean it's -- it's Nathalie Nepton, and I can guarantee 7 that Nathalie Nepton was not at the dining room meeting. 8 9 (BRIEF PAUSE) 10 11 Q: If you'll turn to Tab 36, your 12 Counsel has just helpfully pointed out that that was 13 added by Julie Jai and it comes from the conversation 14 that's recorded there at the document at Tab 36, it's 15 Exhibit P-515, Inquiry document 300106 -- 10 -- let me 16 try this again. 3001088. 17 A: Yes. 18 Q: Okay. And you'll see in the third 19 bullet on that, he was called into Cabinet. 20 "Larry Taman was also there and was 21 eloquent. He cautioned a bit about 22 rushing in with ex parte. Can't 23 interfere with police discretion. 24 But Premier and Hodgson came out 25 strong. Larry, Elaine Todres were at
1221 Cabinet. 2 Ron was there for part of the 3 discussion and decision to go ex parte 4 appeared to have already been made." 5 You see that? And I'm told that that's 6 where this note at -- in the document at Tab 25 comes 7 from. 8 Does that assist you at all in 9 understanding the -- the chain of events? 10 A: So -- so in other words, this was 11 something, apparently Ron Fox was at part of a meeting 12 and came out and told Julie Jai about a decision that was 13 made at the dining room meeting that finds its way into 14 the note that you referred to earlier? 15 Q: That -- that would seem to be 16 correct, yes. 17 A: Yes, and -- and that doesn't accord 18 with my recollection nor does it accord with the 19 instructions that Larry Taman gave to Elizabeth Christie, 20 nor does it conform with the instructions that Elizabeth 21 Christie says she received, as far as I'm aware. 22 And it certainly doesn't accord with my 23 recollection. 24 Q: And if I can just ask you to turn to 25 Tab 31 as I was doing earlier, and if we go to page 3 of
1231 that document, and that's Exhibit P-636 -- 2 A: Yes. 3 Q: And I told you these were Eileen 4 Hipfner's who was an ONAS official. It's her handwritten 5 notes of that meeting of September the 6th. 6 And towards the bottom of the page, you'll 7 see where it reads "Julie"? 8 A: Yes. 9 Q: "Met with deputy Attorney General, 10 Attorney General this a.m. Direction 11 from AG is to apply. [and I'll jump 12 ahead]. Civil injunction ASAP. Public 13 safety is paramount, including safety 14 of OPP officers. Criminal Code charges 15 are up to police discretion." 16 And that would seem to accord with your 17 recollection then? 18 A: Yes. 19 Q: All right. 20 A: And the recollections of Mr. Taman 21 and -- and Elizabeth Christie. 22 And can I also add something? I mean, can 23 I go back to the Ron Fox note? I'm not sure what Tab 24 that was. 25 Q: It's at 36 in the -- in your book.
1241 2 (BRIEF PAUSE) 3 4 COMMISSIONER SIDNEY LINDEN: Yes, it's 5 36. 6 THE WITNESS: I just -- you know, I -- I 7 know that Ron Fox has -- has given his evidence, and my 8 understanding is that Ron Fox indicated that he, and this 9 is my understanding of the evidence as it's -- I've had 10 an opportunity to read his cross-examination of Ron Fox, 11 and he indicated that he felt that the deputy Attorney 12 General and the Attorney General had proceeded 13 appropriately. 14 He had no criticisms of the deputy 15 Attorney General and the Attorney General. I'm not sure 16 where that is in the transcript, but I think it was my 17 counsel who cross-examined him and -- he -- he felt 18 obviously that the course that we were taking was helpful 19 to the OPP and he certainly had no criticism of that. 20 So just another area of corroboration. 21 MR. DONALD WORME: Thank you for that, 22 Mr. Harnick. 23 MR. JULIAN FALCONER: Mr. Commissioner, 24 there's an awkwardness that it's happened over the last 25 few answers and -- I think, with respect, it's not
1251 because of the questioning by your counsel, but there's a 2 dangerousness to witnesses getting into their 3 interpretation of other witness' evidence before you. 4 COMMISSIONER SIDNEY LINDEN: That's fine. 5 MR. JULIAN FALCONER: And it's happened 6 now several times. And I'm wondering if the Witness 7 could be cautioned about giving his recollection and not 8 his assessment of other witness' evidence. 9 COMMISSIONER SIDNEY LINDEN: That's fine, 10 Mr. Falconer. 11 MR. DONALD WORME: I think at the end of 12 the day, Mr. Commissioner, the assessment of the evidence 13 is entirely yours alone -- 14 COMMISSIONER SIDNEY LINDEN: Yes. 15 MR. DONALD WORME: -- and whatever a 16 witness may say is not of particular influence. 17 COMMISSIONER SIDNEY LINDEN: That's fine. 18 I think we're about ready to adjourn for the day are we? 19 MR. DONALD WORME: I think this would be 20 an excellent point to -- 21 COMMISSIONER SIDNEY LINDEN: Are you 22 going to move into the dining room now? So I think this 23 would be a good time -- 24 MR. DONALD WORME: I wanted to move into 25 that. I have one further area and I think it would be
1261 maybe an hour or more. So perhaps this would be a good 2 point. 3 COMMISSIONER SIDNEY LINDEN: That's fine. 4 We're hearing stories about the bad condition of the 5 roads. Do you want to give us an update? 6 MR. DERRY MILLAR: Sure. As at eleven 7 o'clock that's my understanding, that the -- Highway 21 8 is closed north and south bound from Forest to Middlesex 9 or the London area. 10 The 402 eastbound is closed from Oil 11 Heritage to London. 401 is really bad. An alternate 12 route to London would be County Road A into Middlesex for 13 access to Highway 401. 14 And there's been accidents caused by 15 white-outs. The -- Mr. Hewitt, the Inquiry officer is -- 16 has written out a route to get to London and he's having 17 it photocopied and he's going to bring it back in so 18 people can have the alternate route to London. 19 COMMISSIONER SIDNEY LINDEN: I think we 20 should all get an OPP escort. 21 MR. DERRY MILLAR: And it's snowing. Mr. 22 Hewitt tells me that it started to snow -- seriously 23 snow. And it's suppose to get worse as the day goes on. 24 MR. JULIAN FALCONER: I understand Mr. 25 Millar is extending invitations to stay at his place.
1271 COMMISSIONER SIDNEY LINDEN: Maybe we 2 should all stay here, just keep going. I think this is a 3 good time to adjourn unless somebody has anything to add. 4 Ms. Twohig...? 5 6 (BRIEF PAUSE) 7 8 MR. DERRY MILLAR: Thank you, sir. 9 COMMISSIONER SIDNEY LINDEN: I'm just 10 waiting for Ms. Twohig. She apparently has something she 11 wants to say. Do you have something to say, Ms. Twohig? 12 No? 13 MS. KIM TWOHIG: No. 14 MR. DONALD WORME: I wonder if maybe we 15 could simply adjourn for -- for the lunch break and -- 16 and if -- 17 COMMISSIONER SIDNEY LINDEN: No, I think 18 we're going to adjourn. Let's see what the story is. 19 Do you have something to say, Ms. Twohig? 20 MS. KIM TWOHIG: No. I was just going to 21 suggest. I understand other counsel have obligations 22 that require them to be back in Toronto and I had just 23 thought that if the roads are closed, we may as well just 24 proceed and do the best we can and look at the weather 25 tomorrow.
1281 MR. DONALD WORME: On the other hand 2 there are -- there are people who need to absolutely be 3 home tonight and they are wishing to make a run for it 4 now as it were. 5 COMMISSIONER SIDNEY LINDEN: I think 6 we're going to adjourn now and hope we can get home and 7 reconvene on Monday morning at nine o'clock -- 8 MR. DERRY MILLAR: 10:30, Commissioner. 9 COMMISSIONER SIDNEY LINDEN: I'm sorry at 10 10:30, at 10:30. It would have been necessary for you to 11 come back on Monday in any event, Mr. Harnick. 12 THE WITNESS: I understand. 13 14 (THE WITNESS RETIRES) 15 16 COMMISSIONER SIDNEY LINDEN: We'll 17 reconvene on Monday at 10:30. 18 MR. DONALD WORME: Thank you, 19 Commissioner. 20 COMMISSIONER SIDNEY LINDEN: Thank you 21 very much. 22 THE REGISTRAR: This Public Inquiry is 23 adjourned until Monday, November 28th at 10:30 a.m. 24 25 --- Upon adjourning at 11:59 a.m.
1291 2 3 4 5 Certified Correct, 6 7 8 9 10 11 12 _________________ 13 Carol Geehan, Ms. 14 15 16 17 18 19 20 21 22 23 24 25